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Warning: WalMart Is the Only Grocer in the World – Why Closed Generic gTLDs Spoil the Internet

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While most of the world is sleeping, a few companies are engaged in a land grab the size of which has not been seen since the Colonial Powers divided the world.  But rather than “plundering” countries, the powers in this “land grab” have different spoils in mind, namely generic-word gTLDs that they intend to run as “closed” for their benefit.

To be clear, I am a strong proponent of generic-word gTLDs, and of closed gTLD registries for Communities, or Trademark and Brand names.  In fact some would say I’m a little too excited to see what BMW, Ford, Canon and others are going to do with their TLDs.  However, certain combinations of generic-word gTLDs and closed or exclusive registries (in the absence of a community interest or a trademark right) are a recipe for disaster, and most people have no idea what’s cooking.

As you may know, the Governmental Advisory Committee (GAC) provided Advice on Closed Generics to ICANN.  ICANNs recent posting of the responses of Applicants to the GAC Advice on Closed Generics provides clarity on what the Applicants are cooking up.

To illustrate the point on why the GAC needs to continue to evaluate and examine all applicants and why ICANN should slow down and take a critical look at where this process is headed see WalMart’s Response to ICANN:

In defense of its bid to run .GROCERY for its exclusive benefit WalMart posits that:

1)      Generic domain names like “produce.grocery, deli.grocery, health grocery, and thanksgivingmeals.grocery . . . have no inherent value (emphasis added); rather, their value derives from an association in the minds of consumers between WalMart, ‘the world’s largest grocer,’ and the .GROCERY TLD.”

It’s hard to believe that Walmart believes its statement.  Years of domain name investment and development of generic .COM domain names hold otherwise.  A key generic term domain name like “produce.grocery” is a category “killer” domain name that any domain investor or “real grocer” would be thrilled to own because of its “inherent value.”  Do you place value on “grocery” because of its alleged association with WalMart?  Thanks to the American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company we know gro•cer•y  (grō′sə-rē) is defined as: 1. A store selling foodstuffs and various household supplies; and 2. groceries Commodities sold by a grocer.  I do not yet see “Walmart” under the definition of Grocery;

2)      WalMart’s closed gTLD for .Grocery will, among other things “complement Walmart’s branding and brand protection strategies and lower Walmart’s overall costs by reducing the need for defensive registrations in other TLDs.”

If I’m reading this correctly, Walmart is claiming that forever controlling the word “Grocery” will benefit the public because it will “complement” its branding strategy and reduce defensive domain registrations;

3)      In the antitrust context, Walmart states “[t]here are many other alternatives for potential registrants to the .Grocery TLD.”  In essence, the argument is that the independent grocer, food distributor, entrepreneur, or food safety advocate has no need for a .grocery domain name because it can by a .com, .net, or a .food or .market domain name instead; and

4)      Walmart’s operation of .Grocery as a closed registry is in the best interests of the public who use the global Internet.

Translation: the “global Internet” and worldwide public will benefit if Walmart is forever granted, in essence trademark rights, for the English dictionary word “Grocery.”

This comment is not meant to focus the spot light solely on Walmart, indeed it is no secret that we are assisting applicants in string contention with Amazon (for .MUSIC) and Google (for .TUBE) where the generic and/or exclusive gTLD debate is at issue.  However, WalMart’s response to ICANN exemplifies why the Closed Generic debate should not be “closed” and the Internet name community should be engaged in the GAC debate to protect and preserve generic word gTLDs for the public interest.   There are many “generic” words strings that are not trademarks and were not included on the, non-exclusive, GAC Category 2 list.

Unfortunately, after significant program delays there is an understandable desire to rush to market.  The critical question to ask after reviewing the above cited response and others is whether the public interest is served when companies like WalMart, Google, Amazon, and Richemond seek to control dictionary word gTLDs (as a non-brand and non-community applicants).

Do you agree that .GROCERY has “no inherent” value apart from Walmart?  I don’t, and I’m willing to bet neither does Walmart.

With the coming Application Change Requests and Requests for Exemptions from the Code of Conduct the need to pay close attention to what Applicants are saying is critical.

We can all do better.  Our children will thank us.


About The Contributor: Jason Schaeffer is an Internet and Domain Name Attorney that represents domain owners in acquiring, protecting, or selling their valuable assets. At ESQwire.com, P.C., he has successfully defended many premium domain names in UDRP and trademark cases, and has worked on many seven-figure domain sale transactions. Jason is also assisting two new gTLD Applicants in their quests to navigate through the 1st Round of ICANN’s new program. You can find him at ESQwire.com or musing about domains on Twitter @MrGTLD.

Reach out to Jason: Website | LinkedIn | Facebook | Twitter

Comments (23)

    Acro

    Can we extend the same logic to Amazon for .Books and Google for .Music ?

    Does WalMart own any ‘grocery’ marks, or they are attempting to dominate the online market by claiming ownership of the keyword as an identifier of WalMart?

    January 30th, 2014 at 3:28 pm

    Sammy

    Great article.

    Thank you for sharing Mr. Schaefer.

    January 30th, 2014 at 3:35 pm

    Confused Domains

    How can one private company operate a generic string like .grocery or .books? What if they don’t let competitors buy their own trademark domain names?

    I simply don’t understand this.

    January 30th, 2014 at 4:58 pm

    Jason

    Thank you for keying in on some of the other “big” strings at stake. As I mentioned, this Article was NOT intended to focus on solely on WalMart, fortunately (or unfortunately) the .GROCERY Response provided good language to highlight the issue and foster the debate.

    Your comments about Amazon’s .BOOK and .MUSIC present different, but very interesting and potentially troubling issues. Indeed, the issue of sensitive IP strings like .BOOK & .MUSIC should be the subject of its own article.

    Amazon applied to run these registries as exclusive registries. After receiving substantial objection they appear to have changed their “Tune” pun intended. See Amazon’s Response to GAC Advice on Exclusive Access, which seems to indicate that the TLD will no longer be run as “an exclusive access registry:” http://newgtlds.icann.org/sites/default/files/applicants/09oct13/gac-advice-response-1-1316-18029-en.pdf

    Now, the next issue is whether Amazon will file a change request with ICANN to amend their Applications. In my opinion, they must file a change to their Applications. Fairness and consistency dictate that all Applicants be held to the same standard and the parties provide clear and consistent statements. Moreover, the public needs to know what the Applicant will do with the proposed TLD. What does Amazon stand for with these strings? I’m still not sure.

    Which is it? Will Amazon withhold all .BOOK .MUSIC and other second level domains for their use? Will they provide restrictions requiring you to use the Amazon Platforms to distribute your books and/or music? Are they now opening up the strings to competition and fair use? If you are confused, you are not the only one.

    It gets worse. In the case of .TUBE, the string has not yet been included on the GAC CAT 2 list. Yet, Google’s Application seeks to run .TUBE for its exclusive benefit, while two competing applicants seek to run .TUBE as an open registry to allow for innovation and competition. https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails/1310

    Here is some choice language from Google’s Application:

    18.b.ii.1. Competition: … [Google] intends to apply for an exemption to the ICANN Registry Operator Code of Conduct and to act as the sole registrar for the proposed [.TUBE] gTLD. Given that the proposed gTLD is exclusively intended for use in connection with Googleʹs service, Charleston Road Registry believes that there is a reasonable case for such an exemption.

    18.b.iv. Registration Policies: … Because the sole purpose of the proposed [.TUBE] gTLD is to associate domain names with the YouTube product, Charleston Road Registry intends to apply for an exemption to the ICANN Registry Operator Code of Conduct and operate the gTLD with Google as the sole registrar and registrant. As the sole registrant, Google will have the opportunity to differentiate and innovate upon its YouTube products and services through its use of the [.TUBE] gTLD.

    18.c.i: … Should ICANN grant Charleston Road Registry’s exemption to the Code of Conduct, and the proposed gTLD operate with Google as the sole registrar and registrant, members of the public will not be able to directly register [.TUBE] domain names in this new gTLD.

    So query whether Google be allowed to control both .YOUTUBE and .TUBE for their own exclusive benefit? Is this innovative or competitive?

    Our position is that online distribution platforms for such critical Intellectual Property as books, music and video should not be controlled by Amazon or Google. The issue goes beyond whether the public can register domain names, it addresses the ability to control entire verticals and implicates issues of free speech, expression, and protection of IP.

    Lastly, just ask the questions “do these applications for .BOOK or .MUSIC benefit the community (authors, musicians, artists or fans)?” Do they benefit the public interest?

    As noted by GAC this issue goes across many strings, take your pick.

    January 30th, 2014 at 5:53 pm

    Acro

    Thank you Jason, for the detailed response. It’s something that baffles me, and it’s of interest to others, including Constantine Roussos, applicant of .Music. He faces an uphill battle to keep an open industry such as music away from the closed TLD applicants, Google and others.

    January 30th, 2014 at 6:31 pm

    Never Slave

    Finally someone with knowledge and honesty. You have all my respect, Mr.Schaeffer.

    Of course the battles that have to be done immediately are at least two:

    1) search engines must be IMPARTIAL, so they CAN NOT run GENERIC TLDs. Here is absolutely need an act from governs, EU, INdia, Brazil since it seems US is no more the country of Freedom, unfortunately

    2) it is absolutely ridiculous and outrageous that a company like AMAZON claims to run a TLD like .BOOK. Simply ridicolous and very very offensive for each human with a brain. They simply are thinking we are all stupid. Not all, sorry, and the ones not stupid will fight IN ALL MANNERS.
    And why not giving .smartphone to Apple, since they have already stolen the descriptive term iphone to the entire community, to all men and women on the planet. What more? What other new generic TLDs are claimed by companies playing in the same field of the TLD? Maybe .search to the beast? Double steal?!? A search engine that CAN NOT run generic TLDs and maybe they will run even .search…?!?…

    What a war is starting here. Rivers of blood will flow…

    As stated in the article: “We can all do better. Our children will thank us”
    Honor to you Mr.Schaeffer and to all free men that will fight for Liberty. I hope they will be many although I see many are not able to understand what these new generic tlds – run by google or by companies in the same field of the TLD managed etc. – will bring to humans

    January 30th, 2014 at 8:11 pm

    Never Slave

    Sorry, I forgot the third battle of course.

    NO GENERIC TLDs can be CLOSED!
    OF COURSE! EVEN A CHILD CAN UNDERSTAND IT!
    IS .INFO CLOSED? ARE .NET OR .ORG ETC.CLOSED?!? Even .info is a generic TLD, even .net or .org are clearly recognize as TLDs dedicated to informative sites, or sites related to internet or no-profit organizations respectively. Are they closed TLD?!?!?!

    When a TLD is closed the register will be able to do what it want, all the tricks the proprietors will want to do to competiors and/or unwelcome people/companies etc…. It is pretty clear but, as always, flocks of sheep everywhere…

    January 30th, 2014 at 8:25 pm

    accent

    There is no reason companies the size of Google or Amazon would be interested in the relatively tiny profits of a standard domain registry business. Free websites with advertising could create a little more content for Google, but they don’t need more than a handful of extensions for that.

    So we have to look for other motives. Thanks, good article.

    January 30th, 2014 at 8:26 pm

      Jeeps

      It’s not about profits. It’s about power. If they take a loss on this, it doesn’t matter – they just want the control.

      In reply to accent | January 31st, 2014 at 11:01 am

    Eric

    When I think of .grocery I think of Wegmans. Just sayin’.

    January 30th, 2014 at 9:49 pm

    Holly

    Great article, Jason!

    January 30th, 2014 at 10:25 pm

    Jean Guillon

    When I think of .grocery, I think of a French meal :-)

    January 31st, 2014 at 4:44 am

    Constantine Roussos (.MUSIC)

    Great article Jason!

    It is really refreshing to hear others weigh in and agree that private entities or billion-dollar corporations should not launch closed TLDs for generic terms since it poses significant anti-competitive issues and does not serve the public interest since a critical public resource – a generic TLD – is dominated by one player and their affiliates.

    We have been fighting the battle against Amazon (and the closed, exclusive access applicants) at many fronts to ensure that artists will be able to register their names under music-themed TLDs. Unfortunately Amazon’s strategy was to apply for all the major music-themed synonyms in .MUSIC, .TUNES and .SONG and close all of them for Amazon’s exclusive access use. So let us say I wanted to register Constantine.music to market and promote my music then I would be unable to do so. Same would apply for Constantine.tunes and other music-themed TLD synonym applied for.

    Would this mean my domain would be owned by Amazon and be given a cut through their AmazonMP3 store? Why would any artist give Amazon a cut just because Amazon found a way to use an artist’s brand name under a top-level domain name extension to lead generate? The artist should be entitled to keep 100% of revenues originating from their brand’s domain name. There is no need to have a middle-man since the DNS enables digital music distribution direct-to-fan from an artist’s site at minimal cost.

    We led an effort with a significant portion of the music community objecting against this anti-competitive move by some Applicants seeking exclusive access discriminating against music artists’ rights to register their names (Amazon’s application for .MUSIC, .SONG and .TUNES) or against registrar equal-access by blocking both legitimate music resellers and ICANN-accredited registrars (.MUSIC LLC/Far Further’s application for .MUSIC) seeking to offer domains.

    Amazon finally realized the serious issues with their applications and made clear public statements to change its position in their GAC Category 2 Advice changing their music-themed applications from exclusive access (closed) to non-exclusive access (http://newgtlds.icann.org/sites/default/files/applicants/09oct13/gac-advice-response-1-1316-18029-en.pdf).

    Despite Amazon’s public admission of guilt and our ongoing correspondence with ICANN, the ICC and the Panelist on the subject-matter, we were shocked when the Community Objection Determinations were decided by the ICC Panelist who ignored the fact that Amazon changed their position i.e the Panelist deemed the change of position was not “exceptional” enough!

    It was certainly quite baffling Decisions by the Panelist especially after going one step further to make Determinations based on inaccurate, false facts. Without any iota of evidence, the Panelist found a way to agree with Amazon’s disingenuous and self-serving claims that the music community is not dependent on the DNS/Internet for core activities ignoring the fact that nearly all music consumption (e.g iTunes, Pandora, Spotify) and piracy (e.g Piratebay who is known to change its domain extension quite frequently to circumvent the law) is DNS-based!

    The Panelist did not end there. He made another false claim by determining that the independent music community was not strongly associated with “music” so there was no standing to object. He completely ignored to consider that 99% of music is released by indies and the the independent music community won 50% of Grammys this year!

    We have filed a Re-Consideration Request with ICANN (http://www.icann.org/en/groups/board/governance/reconsideration/request-dotmusic-23dec13-en.pdf) to reverse the Amazon Determinations. Any reasonable person would expect that these Decisions are re-considered by ICANN given a whole host of process issues, which included an (i) unqualified Panelist, (ii) material changes by Amazon changing their Position during the proceeding, (iii) ICANN passing resolutions after GAC Advice against exclusive access registries during the proceeding, (iv) ICANN changing the new gTLD registry agreement during the proceeding to disallow exclusive access language, (v) conflicts of interest with Amazon (their general counsel was also a Panelist in another new gTLD Objection proceeding), (vi) allowing Applicants to make material changes to their Applications in the form of PICs (public Interest Commitments), and whole host of other process issues.

    We hope that many of you commenting continue to exert pressure on ICANN to do what is in the global public interest to ensure that generic gTLDs are not dominated by single entities and are run as public resources not closed “landgrabs” controlled by major corporations such as Amazon or Google.

    Great discussions on this post and keep up the great work and comments.

    Regards,

    Constantine Roussos
    .MUSIC
    @mus

    January 31st, 2014 at 5:05 am

    Tom G

    There is a change.org petition urging the board to reject closed generic tld applications at:

    http://www.change.org/petitions/icann-stop-corporatization-of-new-web-addresses.

    Every signature sends an email to ICANN and GAC board members.

    January 31st, 2014 at 8:09 am

      Constantine Roussos (.MUSIC)

      This petition and others’ feedback against exclusive, close registries worked since ICANN did incorporate non-exclusive language in the new registry agreement. Great initiative to get this petition going.

      We certainly need to continue exerting as much pressure as we can to prevent this type of anti-competitive, discriminatory policies from materializing for generic strings.

      P.S Was great seeing you at Namescon.

      Best

      Constantine Roussos
      .MUSIC
      https://twitter.com/mus

      In reply to Tom G | January 31st, 2014 at 7:26 pm

    Acro

    WalMart already has its own TLD: Dot .CN

    January 31st, 2014 at 12:19 pm

    Raider

    Aside from .net and .org, and looking back at all GTLD’s that have come along since, can anyone name one open GTLD that hasn’t been spoiled?

    January 31st, 2014 at 7:36 pm

      Constantine Roussos (.MUSIC)

      Only a few gTLDs have been launched so the sample size is small. Do not get me wrong, I do believe most new gTLDs will not be as successful as they are initially marketed. However some will rise above. Will be the first time you will have .BRAND gTLDs such as .GOOGLE or .APPLE or .MICROSOFT or .YAHOO. The. BRANDs will be the most interesting developments from this round which could help raise awareness for new gTLDs in general.

      Restricted gTLDs have their place e.g .EDU or .GOV. However they demand adoption and be used as an industry standard to be regarded successful. Success is not always registration volume though (e.g .EDU). It is recognition, trust and use. Many sensitive strings (e.g .MUSIC or .BANK) are better served with some restrictions to accommodate their communities and users but having them completely closed achieves the opposite effect.

      Constantine Roussos
      .MUSIC
      https://twitter.com/mus

      In reply to Raider | January 31st, 2014 at 8:00 pm

      Raider

      I agree with you on the point of brand TLD’s and that it will bring a higher level of awareness compared to previous GTLD’s, but I still believe all of them face a uphill battle, Back in the day of .Com, .Net and .Org, it was end users who did most the registering, today it’s far different, when a new TLD is released, the majority of registrants are Domainers and second are Trademark holders protecting their brand, As for the end user? he or she is forced yet once again to bargain with domainers asking outragous amounts of money.

      The fact of the matter is, every time a new GTLD is released, the overwhelming majority of registrants are domainers, and although NOT intentional, it is they who contribute heavily to the demise of every GTLD that comes along.

      In reply to Constantine Roussos (.MUSIC) | February 1st, 2014 at 3:24 am

      Constantine Roussos (.MUSIC)

      Relying on domainers as your primary business model will be a recipe for failure in the new gTLD Program. There will be many options for registration (i.e high supply of options for registrants) such as synonyms (.legal, .law, .lawyer, .attorney, .esq etc).

      Success will be determined by adoption from corresponding communities (e.g the music community adopting .MUSIC or sport community adopting .SPORT or bank community adopting .BANK) in the same manner that educational institutions adopted .EDU. This is where adopting a monopolistic approach of not allowing a community from registering (e.g Amazon’s approach with .music, .book etc or Walmart’s approach with .grocery) is not in the public interest since it blocks such an industry standard in a gTLD from becoming a reality.

      The majority of new gTLDs have a strategy of doing what was successful in the past i.e rely on registrars to do most of the work and premium auctions to generate additional revenues. Good luck getting shelf space on Godaddy or other registrars where there will be fierce competition. And of course, all registrars will have .COM as the de-facto domain for registration. That will not change since it is the most generic, global and popular gTLD.

      Constantine Roussos
      .MUSIC
      https://twitter.com/mus

      In reply to Raider | February 1st, 2014 at 9:14 am

    MarkFL

    To expand upon your comparison to the European colonial powers, imagine if, after Columbus discovered the New World, Spain said, “This new continent has no inherent value except that derived from its inclusion in the Spanish Empire. So let’s just everyone agree to recognize our claim over the entire Western Hemisphere because, you know, it’s just not worth ANYTHING if we don’t own it. And you can thank us later for preventing you wasting your time on it.”

    I suspect the Portuguese, the British, the French and the Dutch might have had differering opinions, which they would havd expressed rather forcefully. Oh wait, they did..

    March 16th, 2015 at 4:17 pm

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