images-11-150x103For the sake of full disclosure I am a fan of the company Patagonia and I own at least two Patagonia jackets and a Patagonia wetsuit. I read the book by Patagonia founder Mr. Yvon Chouinard “Let My People Go Surfing” and thought it was tremendously inspiring and a must read for anyone that wants to see how private enterprise can “do good” and still make a buck.

The company has a Mission Statement that reads:

“Build the best product, cause no unnecessary harm, use business to inspire and implement solutions to the environmental crisis.”

It’s safe to say that Patagonia is one of the most intriguing and admired companies in the world.

The issue over .PATAGONIA is simple – Patagonia (the company) wants to own the top level registry and use it to connect with users and presumably sell Patagonia brand products. Patagonia applied for the registry and jumped through all the hoops set up by ICANN up to the recent point when the Government Advisory Council (GAC) recommended that .PATAGONIA not proceed beyond the Initial Evaluation phase until further consideration is given by the GAC. The GAC “suggestion” however, was short on details, and simply made this recommendation without any other comments. This recommendation is seemingly a reflection of Argentina and Chile’s objection to the application.

Patagonia responded to the GAC recommendation and made a bunch of good points – namely that “patagonia” is not, technically, a “geographic region” as defined in the Applicant Guidebook; that Chile and Argentina influenced the GAC to make its recommendation; and that Patagonia has followed the letter of the law according to the Guidebook, relied on it, and should not be penalized because of vague, non-binding GAC recommendations that are short on specifics.

Patagonia’s reference to the Guidebook is particularly compelling because it notes that the Guidebook does not, per se, prohibit having a geographic gTLD that is the same as a brand name. Instead, it posits the role of the government as helping draw guidelines to prevent the gTLD from creating confusion:

“[t]o the contrary, the applicable remedial measure is the delineation by the Argentine Republic and the Republic of Chile of requirements and safeguards to prevent the use of .patagonia as a geoTLD. Yet, as discussed below, neither government has made any meaningful effort to engage collaboratively with Patagonia.”

But the idea that Patagonia was simply caught unaware or that the Guidebook does not leave room for any gray areas when it comes to geographic names/TLDs is disingenuous. In fact the same section of the Guidebook 2.2.1.4, that Patagonia quotes also states:

“[a]n applied-for gTLD string that falls into any of 1 through 4 listed above is considered to represent a geographic name. In the event of any doubt, it is in the applicant’s interest to consult with relevant governments and public authorities and enlist their support or non-objection prior to submission of the application, in order to preclude possible objections and pre-address any ambiguities concerning the string and applicable requirements. (emphasis added)

Winning the technical arguments though is not going to sway ICANN and certainly won’t help Patagonia the company or the region. In fact, everyone has a little something to lose (and nothing to gain) if the parties don’t start talking.

For Patagonia, well, the company won’t get its own branded TLD and be able to use it as a platform to reach new consumers in different parts of the world, or to help further the environmental causes it so passionately supports. Chile and Argentina will lose the opportunity to work with Patagonia to carve out space within the registry to gain some real benefits, such as:

  1. protecting their national interests in the Patagonia region via the .PATAGONIA registry; 
  2. helping local environmental groups;
  3. using the Patagonia name/registry to attract tourists/visitors; and
  4. obtain funds from Patagonia for their respective “cooperation”.

Lastly, for ICANN, it won’t look good for it to prevent the .PATAGONIA application from proceeding based on some very vague pronouncements by the GAC.

Although ICANN cannot force Chile and Argentina to come to the negotiating table, it can at least make them explain themselves to the public and stakeholders who would seemingly benefit from their cooperation, but surely won’t if there are no discussions or progress toward an agreed resolution...