[ga] Bret: on Selection Criteria

[Danny Younger <dannyyounger@xxxxxxxxx>]

Bret's comment on selection criteria (posted at
http://www.icannwiki.org/index.php/ALAC_on_New_TLDs )

"No process for creating a list of reserved strings
for TLDs could create a complete set given the myriad
cultural, religious, legal and political reasons that
a particular string might not be appropriate for
designation as a TLD. The process itself would take
significant time, the results would be outdated
immediately, and the persons creating the list
necessarily could not take account of any unique
circumstances presented by a specific future
application. 

Rather than create a list of reserved strings ab
initio, ICANN instead should allow applicants to
propose the TLD strings of their choice, ranking them
in order of preference. The filing of a new TLD
application should be followed by a public notice and
comment period, which would include the opportunity to
challenge any of the strings listed in the
application, for any reason. The decision to approve a
specific TLD string would require weighing the
benefits of the string to the segment of the Internet
community designed to be served by the new TLD against
the harm that would be done to the challenger and
others similarly situated. This will necessarily
require a case-by-case analysis. ICANN should ask the
GNSO to create a dispute resolution process, to be
administered on a cost-recovery basis by an
appropriate international body, that would provide
recommendations to the Board on whether the choice of
TLD string is appropriate in light of the concerns
expressed by any challenger. 

The level of protection given to trademarks and other
asserted rights in strings necessarily will depend on
the purpose of the TLD and the string selected by the
applicant. For example, reservation of pharmaceutical
INNs in a health care-oriented TLD would be
appropriate, perhaps even necessary, but those
pharmaceutical INNs would not need to be reserved in a
TLD such as .TRAVEL or .JOBS. Accordingly, the
appropriate protection for trademarks and other
asserted rights should be decided on a case-by-case
basis. The application process, however, should advise
applicants to (a) take account of the concerns of
putative rights-holders when submitting an application
and (b) propose an appropriate reservation policy and
dispute resolution procedure that protects those
rights. Inadequate protection for rights-holders
legitimately affected by a new TLD would be a reason
to reject the application. 

Alternatively, proliferation of new TLDs could
diminish the expectation that use of every string in a
domain name had been approved by its trademark holder,
lessening the importance of policing/reservation of
names because they would not be assumed to be serving
trademark functions." 



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