The Closed Generics Debate

Updated February 21, 2013 - From February 5th, 2013 through March 7, 2013, ICANN is seeking public comment on the subject of “closed generic" Top Level Domain (TLD) applications. A “Closed Generic" is a TLD that is a generic term, but domains within that TLD will not be sold to the public.

Today, there are 22 generic TLDs. These include .COM, .BIZ, .INFO and .NET. Domain names within today’s generic TLDs are available for purchase by the general public.

When ICANN held its open application process in 2012, there were many applicants for Top Level Domains for both branded and generic terms. For example, there were applications filed to create the .BMW Top Level Domain, the .DOT, Top Level Domain, the .SEARCH Top Level Domain, and the .SHOP Top Level Domain. Some of the applicants intend to sell domain names within their proposed new Top Level Domains to the public, while others do not intend to sell domain names within their proposed new TLDs to the public.

Branded TLDs: eg. .BMW. ,GAP, and .EPSON

For the first time in the history of the Internet, branded Top Level Domains will be operated by companies such as BMW, Gap, and Epson to provide a branded user experience to website visitors. Domain names within these Top Level Domains will not be sold to the general public; instead, companies like Gap, Inc. will use their Top Level Domains to promote their brand and to provide an “authentic", branded experience to the end user. After all…. who DOESN’T want to visit drive.bmw?

Open Generics: eg. .SHOP, .SITE, and .WEB

Some applicants have applied to create open generic Top Level Domains, such as .SHOP, .SITE, .BUZZ and .WEB. Domains within these Top Level Domains will be sold to the general public, so that consumer products companies, business to business companies, and individuals may soon create websites, stores, and other online communications media in these exciting and memorable new TLDs. For example, you may soon be able to visit www.Shoe.Shop or www.Web.Site.

Closed Generics: eg. .SEARCH, .DEV, DOT.

Some applicants have applied for Top Level Domains that are “generic" terms, but the applicant does not intend to sell domain names within these Top Level Domains to the general public. These so called “Closed Generics" include strings like .DEV, .SEARCH, and – we hate to think it, but yes, maybe even .DOT.

Many in the industry have questioned whether closed generic top level domains should be permitted. After all, it is argued, is it really fair for someone to claim rights to a dictionary word?

While there is a body of law that deals with the claiming of generic terms – trademark law – at this point ICANN has not embraced it, nor, at this time does the United States Patent and Trademark Office support trademark protection for Top Level Domains. As a result, ICANN is really in limbo here with no legal guidance on the best path to proceed.

If trademark law were to be applied to Top Level Domains, then closed generics would be permitted, since Trademark law provides for an orderly process to claim generic terms as long as the generic term is not used in a way that is merely descriptive of the item or idea that the name is applied to. This means that the word “apple" could be trademarked to sell computers – because computers are not apples, and therefore the word “apple" in common language does not describe computers in general - but it could not be trademarked as a brand of apple, because the word “apple" actually describes an apple, and therefore, no one can claim the “right" to the exclusive use of the word “apple" to describe, well, apples.

If Trademark law were applied to Top Level Domains, then a Top Level Domain called .TLD or .Registry could not be created, but pretty much anything else would be permissable so long as it was not actually illegal. For example, those engaged in illegal practices could not create a Top Level Domain, just as drug dealers cannot apply for a trademark.

The ICANN Public Comment Results-In-Progress

(Updated Feb. 21, 2013) To date, there have been only seven comments placed on the public comment forum which is available on ICANN’s website.

What do you think? Should ICANN take action to prohibit closed generics? Share your opinion on ICANN.org.

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