22.1 Despegar Online SRL has Properly Researched this Topic
Despegar Online SRL (“Despegar”) is keenly aware of the sensitivity of national governments in connection with protecting country and territory identifiers in the Domain Name System (ʺDNSʺ). In preparation for answering this question, Despegar reviewed the following relevant background material regarding the protection of geographic names in the DNS:
-ICANN Board Resolution 01-92 regarding the methodology developed for the reservation and release of country names in the .INFO top-level domain, see http:⁄⁄www.icann.org⁄en⁄minutes⁄minutes-10sep01.htm;
-ICANN’s Proposed Action Plan on .INFO Country Names, see http:⁄⁄www.icann.org⁄en⁄meetings⁄montevideo⁄action-plan-country-names-09oct01.htm;
-“Report of the Second WIPO Internet Domain Name Process: The Recognition and Rights and the Use of Names in the Internet Domain Name System,” Section 6, Geographical Identifiers, see http:⁄⁄www.wipo.int⁄amc⁄en⁄processes⁄process2⁄report⁄html⁄report.html;
- ICANN’s Governmental Advisory Committee (GAC) Principles Regarding New gTLDs, see https:⁄⁄gacweb.icann.org⁄download⁄attachments⁄1540128⁄gTLD_principles_0.pdf?version=1&modificationDate=1312358178000; and
-ICANN’s Generic Names Supporting Organization Reserved Names Working Group – Final Report, see http:⁄⁄gnso.icann.org⁄issues⁄new-gtlds⁄final-report-rn-wg-23may07.htm.
22.2 Initial Reservation of Country and Territory Names
Despegar is committed to initially reserving the country and territory names contained in the internationally recognized lists described in Article 5 of Specification 5 attached to the Applicant Guidebook at the second level and at all other levels within the .HOTEIS gTLD at which Despegar will provide registrations. Specifically, Despegar will reserve:
1. The short form (in English) of all country and territory names contained on the ISO 3166-1 list, as updated from time to time, including the European Union, which is exceptionally reserved on the ISO 3166-1 list, and its scope extended in August 1999 to any application needing to represent the name European Union, see http:⁄⁄www.iso.org⁄iso⁄support⁄country_codes⁄iso_3166_code_lists⁄iso-3166-1_decoding_table.htm#EU;
2. The United Nations Group of Experts on Geographical Names, Technical Reference Manual for the Standardization of Geographical Names, Part III Names of Countries of the World; and
3. The list of United Nations member states in six official United Nations languages prepared by the Working Group on Country Names of the United Nations Conference on the Standardization of Geographical Names.
22.3 Fair & Non-Misleading Use of Geographical Identifiers
Despegar is part of the largest online travel agency in all of Latin America that enables its customers to book airline tickets, hotel rooms, rental cars, vacation packages, and other travel-related services, and also powers travel bookings for various airlines, hotels, rental car agencies, and other tourism-related organizations internationally. Despegar serves more than five million clients annually and has a presence in 21 countries. Its services and online content are accessible in the .COM gTLD and the .AR, .BO, .BR, .CC, .CL, .CO, .CR, .DO, .EC, .ES, .HN, .MX, PA, .PE, .PR, .PY, .TV, .US, .UY, .VE, and .WS ccTLDs.
Despegar is applying for five generic-term gTLDs: .VUELOS and .HOTELES, which target Despegar’s Spanish-speaking customers and Internet users; .PASSAGENS and .HOTEIS, which target Despegar’s Portuguese-speaking customers and Internet users; and .HOTEL, which targets Despegar’s English, Spanish, and Portuguese-speaking customers and Internet users.
In providing online content, sales, and services to customers throughout the world, Despegar makes regular use of geographical identifiers to provide consumers with a hierarchical and intuitive namespace to navigate for relevant content. For example, on its home page, users have the ability to select a country in order to receive the appropriate, geographically specific content, see www.Despegar.com.
Despegar would like to provide a hierarchical and intuitive framework for the .HOTEIS namespace by using geographical identifiers as second-level domain names. This use of geographical identifiers to the left of the gTLD and as part of the domain name itself is believed to have a direct and material impact on search engine algorithms and their corresponding query results. Despegar would like to see if this type of hierarchical and intuitive use of second-level domain names within a gTLD provides increased consumer functionality and innovation, as premised by ICANN.
Currently, Despegar operates a number of corporate websites using a combination of second-level and top-level domain names. A representative sampling of Despegar websites that incorporate geographical identifiers into the domain name include:
Despegar believes that a .HOTEIS gTLD can provide an online, single-source identifying function for its current and future customers around the world, especially Portuguese-speakers who are seeking to make hotel reservations and other travel purchases. This is in contrast to the present approach Despegar has used as it expands into different markets around the world, which consists of registering the domain names that are available, rather than those that may be the most intuitive.
22.4 The Legal Protection of Geographical Identifiers
One of the more authoritative resources on the current state of the law in connection with the protection of geographical identifiers was authored by the World Intellectual Property Organization (WIPO) in its 2001 “Report of the Second WIPO Internet Domain Name Process: The Recognition of Rights and the Use of Names in the Internet Domain Name System” publication. Section six of this report was devoted exclusively to the protection of geographical identifiers.
In analyzing the well-established framework against the misuse of geographical identifiers at the international, regional, and national levels, WIPO identified the following two elements for the protection of geographical identifiers: (i) a prohibition of false descriptions of the geographical source of goods; and (ii) a more extensive set of rules prohibiting the misuse of one class of geographical source indicators, known as geographical indications (see “Report of the Second WIPO Internet Domain Name Process,” Paragraphs 206 and 210). Neither false descriptions of the geographical source of goods, nor misuse of geographical indications, is present in Despegar’s current or proposed use of geographical identifiers.
Notwithstanding WIPO’s recommendation that the protection of geographical identifiers is “a difficult area on which views are not only divided, but also ardently held” (Paragraph 237) national governments within the ICANN Governmental Advisory Committee (GAC) and other international forums have continued to advocate for increased safeguards to protect against the misuse of geographical identifiers within the domain name system.
Despegar, acting as a responsible international business, seeks to minimize any potential business practices that might mislead consumers. However, at the same time, it believes that it is important to be able to use geographical identifiers in a fair use and non-misleading manner, if such use can benefit Internet users as proposed in Despegar’s business model.
22.5 Samples of Fair & Non-Misleading Use of Geographical Identifiers
In undertaking a thorough research of this subject matter prior to filing this application, Despegar’s subject matter experts were able to uncover the following representative sampling of fair and non-misleading use of geographical identifiers used in the existing gTLD domain name space:
Fair Use of National Geographical Identifiers
AUSTRALIA.COOP – Is operated by Co-operatives Australia, the national body for State Co-operative Federations, and provides a valuable resource about cooperatives within Australia.
USA.JOBS – Is operated by DirectEmployers Association (ʺDEʺ). While Employ Media, the registry operator of the .JOBS gTLD, is currently in a dispute with ICANN regarding the allocation of this and other domain names, DE has a series of partnerships and programs with the United States Department of Labor, the National Association of State Workforce Agencies, and Facebook to help unemployed workers find jobs.
MALDIVIAN.AERO – Is the dominant domestic air carrier in Maldives, and provides a range of commercial and leisure air transport services.
Fair Use of Regional⁄Local Geographical Indicators
BROOKLYN.COOP – Is operated by Brooklyn Cooperative Federal Credit Union, which began as a modest storefront business in 2001, but is now New York City’s fastest growing credit union and a model for community development credit unions nationwide.
HYDERABAD.AERO – Is operated by the Hyderabad International Airport and provides a range of interactive services and information for both business and leisure travelers.
SACRAMENTO.AERO – Is a portal website operated by Sacramento County to provide links to each of the airports serving the Sacramento area: Sacramento International Airport (SMF), Mather Airport (MHR), Executive Airport (SAC), and Franklin Field (F72).
22.6 Protection of Regional and Local Geographic Names for Non-Misleading Use
Despegar has stated its intention to consider using non-reserved geographic identifiers as part of a hierarchical and intuitive framework in a fair and non-misleading manner to help consumers navigate the .HOTEIS namespace. Despegar is committed to operating the .HOTEIS namespace in a manner that minimizes potential consumer confusion, and will actively work with others in the ICANN community regarding any future policy development in this area.
22.7 Potential Future Release of Initially Reserved Names
Given that Despegar is an international organization currently operating in numerous countries, Despegar looks forward to collaborating with other new gTLD registry operators in potentially working with ICANN’s GAC to explore potential processes that could permit the release of initially reserved country names (including ISO-3166 two-characters). Specifically, Despegar is interested in exploring other Registry Service Evaluation Processes (RSEP) that have been filed by existing gTLD registry operators in releasing previously reserved domain names.
22.8 Dispute Resolution
Despegar does not envision any potential disputes from governments or public authorities in connection with the registration and use of geographic names within the .HOTEIS gTLD based upon its proposed use, set forth in the response to Question 18 of this application.
However, Despegar is committed to working with governments, public authorities, or IGOs that may have a concern regarding the registration of names with national or geographic significance at the second level within .HOTEIS. Therefore, should there arise any potential disputes, Despegar will undertake an immediate policy development process as identified below.
22.9 Creation and Updating the Policies
If there should arise some future need for the creation or updating of the policies regarding this class of domain names, Despegar will act in an open and transparent manner consistent with its prior practices to develop such a policy and⁄or recommendation.
Despegar is also committed to continually reviewing and updating these lists to prevent the misleading use of geographical identifiers. Consistent with this commitment, Despegar intends to remain an active participant in any ongoing ICANN policy discussion regarding the protection of geographic names within the DNS.