We are pleased to submit these comments on the Proposed Procedure for Selecting a Top-Level Domain String for Private Use (“Private Use Procedure”).

We note that the Private Use Procedure is meant to be used to establish a top level domain name for a particular use by ICANN or members of the technical community. The resultant registry is not meant for any reselling of any second level domain names. The Private Use Procedure would allow the creation of TLDs outside of the New gTLD Program and the Policy upon which the program is based. It is, essentially, an alternative path distinct from the new gTLD program but an alternative path that ensures that the TLD can never be delegated and can never be run as a new gTLD registry. The proposal calls for:

The implementation of Section 5 of SAC113:

"... that the ICANN Board ensure a string is identified using the criteria specified in Section 4.1 and reserved at the top level for private use. This particular string must never be delegated." 

The proposal lists out the criteria and process for how strings will be selected:

Criteria:

1. It is a valid DNS label.

2. It is not already delegated in the root zone.

3. It is not confusingly similar to another TLD in existence.

4. It is relatively short, memorable, and meaningful.

 Process:

 1. IANA puts together a list of candidate strings and picks the favorite through internal deliberation (with the possibility of bringing in outside expertise).

 2. IANA publishes the selection.

 3. ICANN will have a public comment period but the community can only comment on whether or not IANA followed its process, not any substantive comments on the string itself.

 4. A final decision will be made by the Board.

 We see three major concerns with the Private Use Procedure.

First, there is no consideration of trademark issues in the selection of the strings. This is not a hypothetical concern. We recall that the .Onion underwent a similar process. As a result, we understand that the .Onion can never be delegated in the New gTLD Program. THE ONION is a well known satire paper in the United States having common law rights dating back to 1988 and registration rights dating back at least as early as 2001. See USPTO Reg. No. 2450949. The Private Use Procedure should be amended to include a trademark search in advance of a string being selected for any IANA list of candidates. 

Second, the public comment period following any string selection process should allow for meaningful public comment, not just comments on whether or not IANA followed the process. Processes can be flawed and such flaws are often not obvious until the processes are implemented. All people, including those who run IANA, are also flawed and can make substantive mistakes while staying within procedural frameworks.   Meaningful public comment is an integral part of the Multistakeholder model and should be respected.

Third, it is unclear why such a process is necessary at all. We note that ICANN has reserved various TLD strings already, including .EXAMPLE and .IANA, which TLD strings seem to meet the criteria set forth in the proposal.  ICANN should explain why such strings cannot be used for the purposes set forth in the proposal, and specifically why any additional strings could conceivably be necessary. 

The IPC has 3 major concerns with the proposed procedure. The first is that trademark considerations are not factored into the process. Second, there should be a meaningful, substantive public comment period after the string is selected, not just a comment on whether process was correctly followed. And, third, the necessity of the process at all. ICANN should explain why currently reserved strings cannot be used for the purposes set forth in the proposal, and specifically why any additional strings could conceivably be necessary. Ideally, there would be a dispute mechanism for words that are chosen that conflict with existing trademark rights, ICANN would have a substantive, open comment period to highlight any potential problems and the process would only be used in instances for which current reserved names do not suffice. ICANN would include in its rationale for reserving a name why current reserved names are not sufficient for the purpose.