From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 25 July 2013

ICANN and the TLD jungle: when .amazon comes to a .

In the Amazon jungle: a dot-kat
Guest Kat Miri's Tuesday post ("ICANN: Amazon is also a Region", here) caught many an eye.  Apart from one puzzled and slightly careless reader who mistook the word "Region" in the title for "Religion", a number of keen followers of this weblog have posted comments, to which Miri has responded. The biggest response so far, however, and one that is a bit too big to post as a comment beneath the original, comes from Katfriend and domain name enthusiast Jean-François Vanden Eynde (Nameshield Group, Paris), Jean-François points out that what he says below reflects his own opinion and should not be taken to be anything other than that [Indeed, remarks Merpel, the French have been exercising their right to freedom of expression for quite a few centuries now, with little to prevent them doing so apart from the occasional bit of guillotining]. Anyway, this is what Jean-François writes:
.amazon : the story
When applying for a TLD, applicants are referred to the Applicant Guidebook, considered as the material of reference. When applying for .amazon, we assume that Amazon, like any other applicants, paid attention to the treatment of country or territory names as per the applicant guidebook. 
Applicant Guidebook (AGB) rules
The first check was to ensure that Amazon would not apply for a two character ASCII strings in order to avoid any conflict with current and future country codes based on the ISO 3166-1 standard.   
.amazon does not fall into this category. 
Next to the two-letter check, the AGB defines a series of items to check in order to make sure that your application does not fall into the country or Territory Names category.  The AGB states that applications for strings that are country or territory names will not be approved.  You might be of the opinion that Amazon could fall into this category. So let’s check these items. 
ISO 3166 
According to Wikipedia, “ISO 3166-1 is part of the ISO 3166 standard, published by the International Organization for Standardization (ISO), and defines codes for the names of countries, dependent territories, and special areas of geographical interest. The official name of the standard is Codes for the representation of names of countries and their subdivisions – Part 1: Country codes. It defines three sets of country codes:
(a)       ISO 3166-1 alpha-2 – two-letter country codes which are the most widely used of the three, and used most prominently for the Internet's country code top-level domains (with a few exceptions). 
(b)      ISO 3166-1 alpha-3 – three-letter country codes which allow a better visual association between the codes and the country names than the alpha-2 codes. 
(c)       ISO 3166-1 numeric – three-digit country codes which are identical to those developed and maintained by the United Nations Statistics Division, with the advantage of script (writing system) independence, and hence useful for people or systems using non-Latin scripts.”
Country or territory name
Let’s now get back to the AGB. A string shall be considered to be a country or territory name if:
i. it is an alpha-3 code listed in the ISO 3166-1 standard. Amazon is not a 3 letter country code as it contains more than 3 characters. 
ii. it is a long-form name listed in the ISO 3166-1 standard, or a translation of the long-form name in any language. Amazon is not in the 3166-1 list. 
iii. it is a short-form name listed in the ISO 3166-1 standard, or a translation of the short-form name in any language. Amazon is not in the 3166-1 list. 
iv. it is the short- or long-form name association with a code that has been designated as “exceptionally reserved” by the ISO 3166 Maintenance Agency. Amazon is not in the Maintenance list. 
v. it is a separable component of a country name designated on the “Separable Country Names List,” or is a translation of a name appearing on the list, in any language. Vhecking the Separable Country Names List in the AGB, there is no mention of Amazon. 
vi. it is a permutation or transposition of any of the names included in items (i) through (v). As Amazon is not to be seen under items I to V, Amazon does not fall under vi. 
vii. it is a name by which a country is commonly known, as demonstrated by evidence that the country is recognized by that name by an intergovernmental or treaty organization. Amazon could actually fall under this category. There is indeed the Amazon Cooperation Treaty Organization (ACTO) which is an IGO. This is probably where the discussion lies: the text says, it is a name by which a country is commonly known. We could certainly argue, but we could conclude that Amazon is not a country as per the ISO list but rather a region or a territory. As such we could assume that Amazon would not be considered as falling into this category. Moreover the ACTO has several member states, namely Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela.
If you look into the ACTO, you will find that it refers to the Amazon countries, meaning that it is not a country but rather a group of countries. With regard to the status of an IGO, ICANN does not provide any specific protection for IGO at the first level. 
From an intellectual property standpoint, we notice that Amazon has been able to register domain names in the specific countries, meaning that there are apparently no barriers to the registration of domain names. Amazon also has its trade mark registered in the countries for exactly the same services as they wish to develop under .amazon. So you can also assume that there are no trade mark hurdles imposed by the trade mark offices in these countries -- which would have shown potentially that Amazon would encounter any issue in the application of .amazon. 
Geographic names
ICANN also developed in the AGB a section in which applications referred as a geographic names would have required the support of governments. The AGB states that the following types of applied-for strings are considered geographic names and must be accompanied by documentation of support or non-objection from the relevant governments or public authorities:
1. An application for any string that is a representation, in any language, of the capital city name of any country or territory listed in the ISO 3166-1 standard. Here as well, Amazon is not a capital city and is not listed in the ISO 3166-1 list. 
2. An application for a city name, where the applicant declares that it intends to use the gTLD for purposes associated with the city name. Amazon is not a city name. 
3. An application for any string that is an exact match of a sub-national place name, such as a county, province, or state, listed in the ISO 3166-2 standard. Amazon is not listed in ISO 3166-2 list.  
4. An application for a string listed as a UNESCO region or appearing on the “Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings” list. Amazon does not appear in this specific UNESCO list.
Says the ABG, strings that include but do not match a geographic name (as defined in this section) will not be considered geographic names as defined by section, and therefore will not require documentation of government support in the evaluation process.

In conclusion, after reviewing the AGB, we can assume that Amazon was safe to go and, based on its current IP registrations around the world, there was no sign that Amazon would receive any objections with regard to .amazon.

GAC Intervention 
After applying, Amazon received a GAC(Governmental Advisory Committee) early warning.  ICANN’s GAC may issue a GAC Early Warning notice concerning an application. This provides the applicant with an indication that the application is seen as potentially sensitive or problematic by one or more governments. The GAC Early Warning is a notice only. It is not a formal objection, nor does it directly lead to a process that can result in rejection of the application. According to what we hear, Amazon has been trying to reach an agreement without success.

After the early warning, GAC is now trying to issue GAC Advice. The process for GAC Advice on New gTLDs is intended to address applications that are identified by governments to be problematic, e.g., that potentially violate national law or raise sensitivities. Recently the US GAC representative explained in a public letter that it wishes to remain neutral, which opened the path to a GAC consensus.

What comes next? Only time will tell

I think that, along with the battle which takes place right now, it seems that Amazon wouldn’t have applied if it would have known in first instance that the string would not be accepted. Amazon might have also withdrawn its application if the countries would have applied for .amazon themselves, as this was the case for .SWISS. It must also be understood that Amazon is an online business and that .amazon will enable a real brand awareness on the internet and will serve to build a community. .amazon is surely a must-have.

Probably that next to this, there is also a reason to fight against some of what could be considered as inconsistencies in the program. We see that singular and plurals might coexist without (it seems) creating any consumer confusion. We will then have .hotel and .hotels with maybe different eligibility requirements. In other words, paris.hotel and could lead to different websites.

At the same time, the GAC is concerned by .wine and .vin. This is of course more specifically linked to AO and GI matters. However, some would say that the coexistence of plural and singular could be as harmful as the .wine and its translation .vin.

Last, but not least, ICANN members are now also concerned about closed generic TLDs. If this could be an issue as it is not common in our current understanding, there were in the AGB no concrete obstacles to hindering an application for a generic TLD and keeping it for himself.

Adding here a new piece to the puzzle which has never been openly discussed, if .wine and .vin can coexist and they are both managed by different owners with different interests, could we imagine that .amazon would be managed by the Amazon countries and the Chinese and Japanese variants be managed by amazon based on the fact that Chinese and Japanese are not spoken in these countries?

In conclusion, ICANN has opened a broad program that will change the internet as we know now it and it opened the door for the first time to brand owners.It turned out that the Internet community is now facing some issues which were probably not foreseen in the first instance. The current applicants will pave the way for future applicants and some of them will learn it the hard way. On the other hand, ICANN must not forget that there are some appeal mechanisms within ICANN, but also that genuine law remains. Time will tell what will happen next…

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