Geographic top-level domain names, such as .africa or .alsace or .amazon, often contain names or association with a geographic, ethnic, linguistic or cultural community. This makes geographic identifiers significant for the local communities and governments associated with the names.
For example, geographic locations are often associated with the production of wine, cheese, vinegars, and other agricultural or artisanal products. However, recognition of trademark rights associated with geographic names can present a double-edged sword: they can be sometimes over-applied or can impact human rights, particularly Freedom of Expression (FoE) in unhelpful and negative ways.
To manage these sensitivities, ICANN uses the ICANN new gTLD Applicants Guidebook and a list maintained by the International Organization for Standardization (ISO) as a guide on which new generic Top Level Domains (gTLD) to prohibit or restrict.
However, these measures are not enough. We have seen evidence of this in the case of the Amazon Corporation and Amazon Cooperation Treaty Organization (ACTO) [1] The .Amazon case shows that the absence of clear balance between trademark and geographical indicators may result in misappropriation and gaming application for new generic Top Level Domain(gTLD) opportunities. On the other hand, over-application can also negatively impact human rights.
Where we are now?
Currently and in anticipation of the next round of New gTLDs applications, the Generic Name Supporting Organization (GNSO) chartered a working group in 2016 to review the process and develop policy recommendations. These policy recommendations were to be based on collective community experiences from the previous New gTLDs application process launched in 2012.
Dubbed the New gTLD Subsequent Procedures Policy Development Process (hereinafter “Sub Pros PDP”), the new PDP was organized into five subgroups covering various elements of the application, evaluation, and delegation processes, and focused as follows:
- Work Track 1: Overall Process/Support/Outreach
- Work Track 2: Legal/Regulatory/Contractual Obligations
- Work Track 3: String Contention / Objections & Disputes
- Work Track 4: Internationalized Domain Names/Technical & Operational
- Work Track 5: Geographic Names at the Top-Level
Each of the Work Tracks have a role in balancing their impact on human rights. The Work Track 3 (WT3) subgroup has been tasked with a broad range of human rights issues, including generic human rights associated to string identifiers, and more specific freedom of expression rights.
The WT3 aims to identify mechanisms to protect a domain name Applicant’s Freedom of Expression rights. It will also work to ensure that evaluators and dispute resolution providers perform their roles in such a manner so as to protect these fundamental rights.
Opportunities and considerations
We note that Work Track 5 (WT5) has an opportunity to make recommendations on whether to move beyond the guidance of the International Organization for Standardization (ISO) on what new generic Top Level Domain(gTLD) to prohibit or restrict.
Any attempts towards preventive protection rights leads to complications in the domain name applications as well as evaluation processes. Therefore, it is critical that the WT5 subgroup consider new policy recommendations through a prism that takes into account the balance of rights we need to see. For instance, WT5 should consider:
- What specific advice or other guidance should TLD application evaluation and dispute resolution panelists (and other evaluators) be given, to ensure that the policy principle of protecting applicant rights to freedom of expression can be effectively implemented?
- When considering objections, what are the concrete guidelines that can be provided to dispute resolution providers to consider “fair use”, “parody”, and other forms of FoE rights, in its evaluation?
- In the evaluation of a string, what criteria can ICANN and/or its evaluators apply to ensure that the refusal of the delegation of a particular string will not infringe an Applicant’s Freedom of Expression rights?
Balancing rights is not the only challenge at hand. The WT5 policy recommendations must be easy to grasp, comprehensive, and action-oriented. Ideally, several executable alternatives will also be elaborated and included. Yet time is of the essence: the domain name industry has changed in many ways since the implementation of the first round of the new gTLD program in 2012.
One can say with certainty that the Internet will continue to change before the launch of the next round of the new gTLD program, and the pace of the change might be even greater going forward.
The new policy recommendations must take these realities into account in order for them to be applicable not only just for the present but also for many years to come.
ARTICLE 19 recommends:
Human rights impacts — on economic, social, and cultural rights, freedom of expression, access to information, and other salient rights – must be identified during the policy development processes.
Policy recommendations must also ensure that string identifier applications and related processes incorporate sufficient human rights considerations, in accordance with ICANN’s Human Rights Core Values. The challenging relationship between curative and preventive rights on geographic string identifiers is a serious concern that needs to be addressed urgently, and certainly before the launch of the next round of the new gTLD program.
There is need to urgently identify the full spectrum of human rights issues impacted by these policy recommendations and their subsequent implementation in the envisaged multilingual domain name space. More specifically, the following issues need to be settled before the launch of the next round of the new gTLD program. They are:
- Applicant FoE rights should be considered throughout the new gTLD evaluation and any applicable objection processes as well as any processes such as Requests for Reconsideration and/or Independent Review Panel proceedings;
- The delicate balance on the nonreciprocal relationship between preventive and curative rights should be maintained;
- Reservation of geographic string identifiers should always be considered as exception not the rule to handle issues such as balancing against freedom of expression;
- Clear implementation guidance in relation to protecting applicant freedom of expression rights- specifying detailed information about the evaluation criteria, objection standards, and other procedures that should be used to ensure freedom of expression rights are considered. These include information about specific gaps that may have been observed in the 2012 New gTLDs application round;
- New policy recommendations on the balance of Registrant and end-user freedom of expression rights
- Clear guidance on how Applicant Freedom of Expression shall be weighed against other legitimate interests and rights, including Trademark rights;
- Clear guidance on how Data Service providers (DSPs), and Internet Service Providers (ISPs) should consider Applicant’s freedom of expression rights including legal rights;
- A delicate balance should be struck between the right to words and brands derived from generic well-established keywords which in some cases include city names (city names may also be generic terms or brand names, and in many cases city names are not also unique).
- Protecting of the no objection process for city names from gaming as well as being overly a restraint for domain name applicants.
- Clear recommendations on Striking the delicate balance on domain name applicants FoE rights is critical if priority rights to city names are going to be exercised.
[1] member states (who include: Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela.)