[governance] .WINE .VIN - who's business is it ?

Sun Jun 1 09:20:51 EDT 2014

Milton,

What I found simplistic was not your reasoning about issues of trademarks
and domain names, much less your knowledge of that subject, only the very
specific argument (even before we enter the trademark zone) that _local
laws_ only can resolve issues raised on the global Internet about globally
exported/traded goods. Internet is crucial to commerce and _global_ trade
(that's just a fact, not my fancy) and that was part of the motivation of
the Clinton Administration to kill the IAHC in 1997 and start the process
that led to the creation of ICANN, putting the _DoC_ in charge of that
process with, later on, the oversight function regarding ICANN,
particularly its decisions in relation to the DNS. USG could have let the
IAHC process go ahead to form an international independent structure in
order to carry out the job IAHC set out to do, and resolve its own concerns
using its own local laws as you're now advising any other government to do,
but USG didn't. I wonder whether you think the only reason for that was to
mid-wife the wonderful multistakeholderism.

Now, that preliminary being cleared:

1. Contrary to what you think, I know and agree that domain names are not
trademarks (I even thought I was once, no doubt fleetingly compared to your
time in the trenches, part of the battle to make this clear.) We are
talking about .WINE as a TLD in this case while, to the best of my
knowledge, the string 'WINE' as such is not a trademark and there is at
this point no discussion for authorizing trademarks directly as TLDs.

2. And before you apply my reasoning to second-level domain names (the ones
users register), please let me say this. I wouldn't have had the same
reasoning with .COM as I am having with .WINE because the latter is too
narrow and seemingly targets a specific industry, not the whole range of
commercial entities (IOW, the "generic scope" of one is too narrow while
that of the other is broad.) So one may ask, if the reasoning is not meant
to apply to all domain names and TLDs, then how is that one can draw the
conclusion, based on that reasoning, that I equate domain names to
trademarks?

3. I would however apply the same reasoning if we were talking about TLD
extensions such as .CAR, .BANK, .FASHION or .SARTORIALACCESSORIES, you name
it (and haven't we seen some of that happening already, in one form or the
other, like with .BANK?) It is my claim that no matter how many times you
repeat what is right about the nature of TLDs and other domain names with
regard to trademarks, you will see the same kind of "tractations"
(negotiations) taking place whenever ICANN starts discussion about
authorizing that kind of TLDs of narrower generic scope obviously linking
to a specific industry sector (whether that's the intention or not.)

4. I hear you when you say domain names are strings of characters used as
technical identifiers. But that works perfectly well (meaning they are only
that) only if you limit them to meaningless strings, such as: .YFGTRPN,
.VF97HKS, or .TCHRRRR (although the sound trying to pronounce this may have
some insulting meaning in parts of Africa.)

5. So the point I was trying to make is more of a behavioral explanation
rather than stating what is right or true, de jure (and much less who is
wrong and who is right.) It simply says: _as long as domain names including
TLDs are strings that bear meaning to human beings, groups of them (and BTW
that's the reason why they can be framed as free speech issue and I have
never heard you talk of FoE about IP addresses), then further the meaning
narrows down to an industry tag, more chances there are that stakeholders
in that industry will seek to introduce some level of ex ante regulation
into the related policy being developed_. Would you say that tentative and
modest behavioral explanation is completely false? That's what I think
anyway, and I think the very nature of ICANN/multistakeholder policy
development process invite for that (as a result of people having a stake
in the outcome.) EU parties would do this, i.e. seeking ex ante regulation,
by leaning on government institutions as they are culturally inclined to,
and US parties would do the same sending experienced and well-funded
lobbyists directly trying to influence the process by themselves, as they
too culturally inclined to do (noting though that USG is already one of the
best, if not THE best, working for the interest of its business
constituents, which makes sense to me when it comes to international
affairs.) But in the end, the objectives are the same with regard to each
stakeholder group's interests.

6. Finally, I cannot say much more about the case at hand, for instance, as
to whether and the extent to which the European parties are being
protectionists, parochial (to use your words), etc. as, like I said before,
I don't know the exact terms of what they are asking for, what the legal or
enforceable form of safeguards they are seeking would be. As a result, you
have not read me saying someone is right or someone is wrong. As a matter
of fact, I'm not interested in that but the decision that will actually be
made, when it is made, and its rationale. Instead what I said, in summary,
is "let's move away from worn out arguments that USG controls ICANN because
it has written to the organization to present its argument with regard to
an ongoing process or a pending decision" to something that addresses the
subject matter. So I welcomed the post referencing ICANN Bylaws as being
the proper level for this discussion to take place, IMHO. Please note that
even as I recognized the quoted article 4 as being of relevance in this
discussion, on the opposite side to the US Assistant Secretary for Commerce
and Information (quoting myself below on that), I still didn't intend to
decide who's wrong and who's right because that is not my job to do, and
I'm still interested in listening to both parties.

<quote> And I would agree that it [ICANN's Articles of incorporation, #4]
is relevant here. So it may well be that USG writes to ICANN to argue a
position and still loses the argument in the end (although in this case,
it's only a hypothesis at this point and ICANN may face other objections,
based on different grounds, which might prove to be even more determinant
that the one currently raised by USG.) </quote>

I look forward to learning more about the issues raised by TLDs of such
scope (as I tried to characterize above) with regard to trademarks and
freedom of expression, and particularly in this case what exactly the
formal outcome might possibly be in order to satisfy the objectives of the
European parties with regard to GIs in a .WINE space.

Mawaki

 =================
Mawaki Chango, PhD
Founder and Owner
DIGILEXIS
http://www.digilexis.com
Skype: digilexis | Twitter: @digilexis & @pro_digilexis

On Fri, May 30, 2014 at 2:01 PM, Milton L Mueller <mueller at syr.edu> wrote:

>  The simplistic interpretation is yours, not mine, Mawaki.
>
>
>
> It's funny, when you say this:
>
>
>
> >Once your considering authorizing those TLDs, then you're clearly
>
> >inviting the wine industry (in this example), especially those that
>
> >export their products _globally_ to seek ways in which nobody else is
>
> > going to usurp, say, their wine brands, their identities within the wine
>
> >industry, which happen to be attached to geographical indications,
>
> >under the _global_ resource and medium that would be the .WINE TLD.
>
>
>
> ...you are stuck in the same mentality as the trademark maximalists of 1998.
> You think that domain names ARE the same thing as TMs/GIs  and that ICANN
> should be a global TM/GI regulator. You do not understand the distinction
> between allocating unique identifiers with a technical function and ex post
> regulation of problems pertaining to their semantics. The distinction is
> clear and it's taken noncommercial interests more than a decade, and tons
> of political blood, sweat and tears, to establish that distinction, which
> is important both for free trade and for freedom of expression. You are on
> the wrong side.
>
>
>
> Its depressing to see this important debate clouded by silly regional and
> personal animosities. Louis Louzin hates ICANN and the US but doesn't seem
> to understand that nothing makes ICANN more important, more powerful and
> more unaccountable than giving it the power to impose ex ante regulations
> on the use of names simply because someone _*might*_  misuse one. I'd
> suggest that anyone with sympathy for the GI case review the literature on
> intermediary liability and regulation through intermediaries and ask
> yourself why all the civil liberties and rights groups are strongly opposed
> to that approach. You might also review the chapter on "rights to names" in
> Ruling the Root, the same issues are all clearly laid out there, it's
>
>
>
> I find it amusing that the reborn "progressive" Louis Pouzin, interested
> in JustNet and the little guy, lets his hatred for the US and ICANN make
> him side with protectionist economist interests simply because they are
> European. Let's grow up, folks.
>
>
>
> It's also amusing to see Erick admit that the treaty he wants globally
> enforced hasn't been signed by the world's largest economy. And Erick is a
> lawyer. Apparently forgot some basic things about jurisdiction and
> sovereignty. Perhaps some review of law books is required there, too.
>
>
>
> *From:* Mawaki Chango [mailto:kichango at gmail.com]
>
>     Another remark about that quote from MM is that I'm afraid things are
> more complicated than the simplistic divide it seems to suggest between the
> DNS as global resource and local rules. The trouble is, and perhaps has
> always been, that names are not numbers.
>
>
>
>
>
>
>
> But first, there is something called global trade, of which USG is a world
> champion -- and understandably so. Thanks to global trade, many products
> such as wines are not just local consumption goods. Many such goods are
> demanded around the world, based on their reputation and some other
> factors. So this is not just a matter of local rules. Saying that does not
> mean I'm advocating for sweeping rules universally protecting one country's
> or one company's trademarks as global fortresses. There are still other
> rules to be considered, among possible others, off-line rules or principles
> of trademark law, etc. A wine that is produced in Western Cape which is
> globally exported with a well established reputation in connection with its
> geographical provenance is not only subject to Western Cape or South
> African rules. As a matter of fact, there are many local fine liquors that
> do not make it to the export list due to a whole stack of international
> rules and requirements to be met for them to be exported. So those that
> make it to the export list are subject to rules beyond local ones.
>
>
>
> Secondly, as I was saying, names are not numbers. Once we're talking about
> names, we're sooner or later confronted with things/ strings of characters
> which (literally) mean a lot to some people, not just as local folklore but
> also as a global asset. In a sense, at some point TLDs become something of
> a content. I know we often say ICANN shouldn't be regulating content, but
> the fact is that because they are names, TLDs may more often than not carry
> with them the same kind of challenges that relate to contents. Furthermore,
> once you're talking about names, then you might quickly be talking about
> identities (as far as human beings are concerned) and the boundaries of
> those identities may possibly not coincide with local or national
> boundaries.
>
>
>
> As long as there is no .WINE or .VIN, etc. TLD, people may register
> whatever they want which is available at second level of the DNS (gTLDs and
> ccTLDs) and countries may content themselves with regulating domain name
> sale/registration within their borders. Once your considering authorizing
> those TLDs, then you're clearly inviting the wine industry (in this
> example), especially those that export their products _globally_ to seek
> ways in which nobody else is going to usurp, say, their wine brands, their
> identities within the wine industry, which happen to be attached to
> geographical indications, under the _global_ resource and medium that would
> be the .WINE TLD. Would anyone seriously expect otherwise? (And let me
> quickly add that, as I see it, only within the boundaries of such TLD or
> any TLD that unambiguously refers to their industry, they may have claims
> to GIs that define their brand or identity in that industry.)
>
>
>
> As I said, I'm not a trademark militant, not even an advocate, to be
> clear. And I don't think a TLD designating an industry has to be ran
> necessarily by an entity whose business is in that industry. But industry
> players are entitled to ask that ground rules be established under that
> specific industry TLD, which do not mess up with their globally relevant
> business or products.
>
>
>
> In conclusion, names are not numbers. Internet is not for machines but for
> us the people who attach meaning to signs and names. Names (such as in the
> DNS) may equate to content, based on what they mean to people and they may
> encapsulate whole identities. So rules that are going to be made by ICANN
> about those names (including using them as a TLD, to begin with) are
> sometimes going to be as challenging as regulating contents, whether we
> like it or not. Some of these identities may have, even in the geo-physical
> space, a global scope or at least a scope larger than the local and
> national scope, in large part thanks to global trade. Therefore, it's clear
> that issues and questions will arise which, to be resolved, will need other
> rules or agreements beyond national jurisdiction rules. To my
> understanding, negotiating some of these new arrangements for the space
> that the .WINE TLD would open up is what the European Commission is engaged
> in with ICANN (based on what I have read here.)
>
>
>
> Mawaki
>
>
>
> On Thu, May 29, 2014 at 3:26 PM, Jefsey <jefsey at jefsey.com> wrote:
>
> At 21:57 28/05/2014, Milton L Mueller wrote:
>
>  The EC's idea that it can impose its parochial GI regulations on a
> global resource is misguided, and an attempt to assert extraterritorial
> jurisdiction. If they want to enforce their _*local*_ rules, let them
> regulate sale or consumption of the TLD registrations _*within their own
> territory*_ nothing stops them from doing that, they already have that
> authority.
>
>
>
> Milton,
>
> I feel that the time is now over for such debates about EC, or anyone
> else, copying the US in wanting to impose local global regulations. The US
> executive has removed itself from the loop and left the Internet to its
> reality of an aggregation of national, sales, regional, trade, local,
> private VGNs under the legal jurisdiction of the contracting parties,
> stakehodlers and users.
>
> The business, legal, structural, technical, etc. hysteresis is going to
> slowly fade away, most probably with some picks of resurgence: RFC 6852 has
> definitly acknowledged the nature of the modern Internet and paradigm: "We
> embrace a modern paradigm for standards where the economics of global
> markets, fueled by technological advancements, drive global deployment of
> standards regardless of their formal status". These standards without
> formal status (i.e. by local legal practices) "contribute to the creation
> of global communities, benefiting humanity". Prior to being politcal, or
> architectural, the fragmentation of the internet comes by its architectural
> use influenced by local laws and practices. Because internauts do not
> necessarily identify themselves as WASPs.
>
> You and I share the same catenet, use the same internet, but do not
> intersect much our "loglo.nets" (local virtual global networks).
>
> jfc
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