January 2011 - Bc-gnso - lists.icann.org

Re: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
by Marilyn Cade Feb. 2, 2011

Feb. 2, 2011

Without any prejudice on any topic, some stuff belongs off list. :-) There are over 50 members in BC and we need to reflect a respect for what is best (eg: clearly a BC general issue) and what is best done bilaterally. Mike, I think that was what you intended/ you were offering to forward client materials to I party, not the full BC. Thanks. Marilyn Cade BC Chair Sent via BlackBerry by AT&T -----Original Message----- From: Matkowsky Jonathan <Jonathan.Matkowsky(a)LasVegasSands.com> Date: Sat, 29 Jan 2011 00:35:49 To: <icann(a)rodenbaugh.com>; <bc-gnso(a)icann.org> Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I wanted to also follow up on the issue of bona fide intent, and whether if there are competing applicants, all would have a bona fide intent to use that mark. While it has always been true that intent has to be more than a hope or a wish, the intent can be an external contingency. Jonathan Matkowsky From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 3:37 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Thanks for clarifying. My client's applications were refused by the Examining Attorney, and now are on appeal before the TTAB (still within the PTO). I'll forward you some materials. Use in commerce of a mark in connection with domain registration services can and has occurred without regard to ICANN, therefore a bona fide intent to supply those services need not involve ICANN. To the extent they are relevant, ICANN registry contracts are designed to ensure continuity of registry operations upon termination. So trademark rights should be assigned to the successor registry operator who is continuing to supply services under that TLD string/brand. I see no fundamental reason to ignore the fact that TLDs do function as indicators of source for the registry services provided by that TLD operator. The trademark laws protect colors, sounds, shapes, etc.,. so I would like to understand the logic behind any argument to deny trademark protection to TLD strings. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Deutsch, Sarah B [mailto:sarah.b.deutsch@verizon.com] Sent: Friday, January 28, 2011 3:03 PM To: 'icann(a)rodenbaugh.com'; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Mike, I make no judgments about your particular clients, am not familiar with the facts surrounding their application and would be happy to see the briefing materials you prepared for the TTAB. I assume this means that your client's application received a final refusal from the PTO? If someone is offering services not related to registry services, I agree this may be a different story. Perhaps the TTAB will opine on this legal issue, but I don't think it's possible to have "bona fide intent to use" a mark when the underlying contract to operate the services under that name have not yet been awarded to you. You -- and other competitive bidders -- may all have a bona fide *hope* that you'll receive such rights, but I don't think your bona fide intent to use can begin until the period until you're actually awarded the contract by ICANN up until the time you start actual use in commerce. Regarding your idea that ICANN simply amend its contract to require registries to disavow their trademark rights after cancellation of their contract, I think it's simpler for the contract to prohibit trademark registrations in the first place, at least for the registry services supplied under the contract. "Disavowing" trademark rights after the fact means the registry must either assign trademark rights to ICANN (do we really want ICANN owning these marks?) or a third party, both of which may be difficult for ICANN to enforce, or abandoning the trademark rights, which is not a great idea from a trademark policy perspective. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ---------------- From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 5:25 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Sarah, some further facts for your consideration. ICANN is not the only operator of TLDs, or of domain name registration providers. Registries can and do offer many other services under their TLD string/brand, other than domain registration services. Sometimes several applicants do each have a bona fide intention to use the same trademark in US commerce, even for the same services. This is surely a big reason we have an "intent to use" filing system in the US. I am not aware of any TMEP rule going anywhere near so far as you would interpret it with respect to TLDs as trademarks, and Berry has cited many examples of contrary PTO practice. These issues are thoroughly briefed before the Trademark Trial & Appeal Board in the US now, pending a hearing and a decision with respect to my client TheDot Communications Network LLC and its application to register the ".music" trademark. I would appreciate further comments once you have reviewed some of that briefing, and would appreciate you refraining from suggestions of perjury and bad faith, unless you become aware of the background facts and then have an informed opinion. Re your fear that ICANN would cancel a registry contract, that seems a simple matter to require, as a condition of the contract, that upon termination the applicant shall disavow any trademark rights in the TLD string/brand, at least with respect to domain registration services and ancillary services not offered by the applicant prior to the application. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Deutsch, Sarah B [mailto:sarah.b.deutsch@verizon.com] Sent: Friday, January 28, 2011 1:25 PM To: 'Matkowsky, Jonathan'; icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs You can't "acquire distinctiveness" in a trademark you neither own nor use. And when you apply now at the PTO, this is for a registry name that has not even been awarded to you by ICANN. The TLD program has not yet started. ICANN has not yet reviewed any applications or determined who is best positioned to run a registry. If there are competing applicants, do all applicants have a "bona fide" intent to use that mark? Applying for exclusive rights in a trademark in advance of the TLD program seems like a form of TLD front running. For generic terms especially, it's important that registries serve a fiduciary duty to the public. If for compliance or other reasons, ICANN winds up terminating their contracts, they would own exclusive nationwide or global trademarks, which may prevent or conflict with a third party who takes over their operations. This outcome would be exactly the opposite of ICANN's stated intent to encourage innovation and competition. Again, unless you own a prior trademark registration for services or products unrelated to the registry services, to me this is bad policy. Re: Berry's question, the PTO examiners are often inconsistent and sometimes marks will register despite the PTO's rules against it. I would think that marks that have been registered for "registry" type services are at risk for cancellation if someone should choose to challenge them. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ---------------- From: Matkowsky, Jonathan [mailto:Jonathan.Matkowsky@LasVegasSands.com] Sent: Friday, January 28, 2011 3:36 PM To: Deutsch, Sarah B; icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs The Trademark Manual of Examining Procedure states that if the TLD merely describes the subject or user of the domain space, registration should be refused on the ground that the TLD is merely descriptive of the registry services. Merely descriptive marks can still acquire distinctiveness and become recognized as trademarks. There is common use of ".com" to refer to Internet businesses. You can find "dot-com advertising" in some dictionaries. So it doesn't pass the familiar "who-are-you/what-are-you" test. That will hopefully not be the case as Mike points out, the new TLD program is supposed to encourage innovation and competitive new uses of the DNS. Even when it comes to the addition of a TLD indicator to a descriptive term, the U.S. Court of Appeals for the Federal Circuit has recognized the possibility of a distinctive mark. Jonathan Matkowsky From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: Friday, January 28, 2011 11:26 AM To: 'icann(a)rodenbaugh.com'; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I'd like to differ on a couple of points. I don't think it's difficult to determine what is a brand. Brands are trademarks. Ownership of a federal trademark registration and other global trademark registrations are not only proof of a "brand" but confer nationwide exclusive rights to use that mark for the goods and services in the application. However, I would distinguish that the "brand" be a trademark that is registered and used for goods and services unrelated to registry services. The mark should be used in commerce for unrelated goods and services well before that brand ever gets awarded a TLD. It's my understanding that the BC has long opposed the idea that a TLD alone can become a brand -- only an existing trademark, such as CANON for cameras could be recognized as a brand TLD. BTW, it's my understanding that certain TLD applicants are inappropriately trying to lock up trademark rights in their "brands" at the PTO before ICANN has even awarded them a contract to operate the TLD. Whether ICANN awards them a contract or not, the PTO has rule that in the Trademark Manual of Examining Procedure confirming that registry services alone are not registrable as trademarks. When you apply for a trademark registration, you need to sign a declaration under penalty of perjury that you either have a bona fide intent to use the mark or have rights to use the mark in commerce. I don't see how anyone can sign this declaration in good faith given the fact that ICANN has not yet considered their application, several may be applying for the same TLD and the PTO's rule that such services are unregistrable. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ---------------- From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 12:27 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I generally support Berry's comments too. I appreciate the effort to devise clear rules. I offer a few more thoughts fwiw. I have argued that all TLDs are in fact brands of their registries, as by definition they are indicators of source of the registry service. Also I can envision lots of companies, including current registrars and registries, who might benefit from the SRSU model as Berry exemplifies it. I envision that many of them who essentially will allow use of domains to the public (i.e. to all Facebook members, in Berry's example) would have robust content-monitoring systems, and would see benefit to exercising quality control over how all domains within the TLD are used. The 'types' of TLDs that could employ models like this may extend well beyond what we think of 'dotBrands' today (i.e. .canon and .facebook). So long as the TLD operator is ultimately responsible as the registrant as well as the 'registration authority', from the BC's perspective these models should be encouraged. But these models may be disruptive to the status quo in ICANNland, and so did not get very far in the Vertical Integration working group. With the Board's resolution on VI, it seemed that the SRSU and other innovative models were being encouraged. Yet now some elements of the "Code of Conduct" are being proposed as a tool to essentially restrict business models like SRSU, in favor of the incumbent ICANN contracting parties and those who have designed their TLD models around the status quo. The BC should fight against that, as our support of the newTLD program has always been founded on the innovative, competitive new uses of the DNS that are envisioned (and those that have not been envisioned). Best, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of jarkko.ruuska(a)nokia.com Sent: Friday, January 28, 2011 5:30 AM To: berrycobb(a)infinityportals.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Dear all, Just wanted to express my support for Berry's definition of a Single Registrant TLD. In my opinion this is a simple enough (and probably the only feasible) way to define such a thing. BR, -jr From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of ext Berry Cobb Sent: 28. tammikuuta 2011 2:12 To: 'bc - GNSO list' Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Thank you Steve for updating the BC. Adding to Steve's points...... The reason ICANN Staff, experienced Registry Operators, & some other stakeholders will not sign on for "carve outs" is because there is NO BRIGHT LINE DEFINTION FOR A BRAND. In the context of TLDs what is a BRAND? Is it because they are Fortune 1000 company? Do they own Trademarks in the USA or Europe? Do they earn over $2 billion dollars a year in revenue? Where do we start to draw the line? If some sort of bright line exists, then please share. If it exists then I doubt we would see the pushback experienced today or during the VI WG. In my opinion, if the BC and IPC ever expect any headway regarding the "dot-brand" concept, then we MUST stop using "DOT-BRAND." Within my short ICANN career, one thing I've noticed is that a BRAND is a loaded and charged word among the community. If the BC supports "carve outs," then the case must be presented very specifically and using BRAND is not the way forward. Framing this concept should embrace the use of "Single Registrant" only. Notice how Single User & Multiple User is omitted? The main reason SRSU gained support during VI is only because of the Single Registrant component and it's limitations in how domains were registered and used. Anything beyond SRSU was poking a stick at a tiger. I remind everyone the reasoning for SRSU & SRMU is only because BRAND could not be defined. The following is how I view the possible scope of a "Single Registrant" TLD: · Any 2nd, 3rd, 4th,5th level domains registered are owned and operated only the by the entity that owns the TLD · All WHOIS information for registered 2nd level domains reflect the entity that owns the TLD · If the entity chooses to deploy content or allow use by others external to them, the entity is still responsible or liable for that domain and its content · The entity may register its own domains without equivalent access to other Registrars (RAA concepts should still be used, but ZERO registration fees to ICANN) · The entity may deploy and use its 2nd level domains how it sees fit and the Reserve Names list no longer applies · The entity can "warehouse" domains because it owns the domains · The entity is required to provide Zone File Access for monitoring and compliance · I am sure there are other elements to define the boundary here.. · Therefore, much of the Code of Conduct is meaningless to a "Single Registrant" TLD So, using the Cannon example from Steve below, the above "Single Registrant" concepts can satisfy the "carve outs" defined by the BC. If Cannon chose to register 2nd level domains to their customers, partners & vendors, but it is still designated as the Registrant, then the Single Registrant carve outs still apply. What about the Facebook use case? The one batted around most often is berrycobb.facebook. If Facebook chooses to register and supply me a domain and the defined "Registrant" remains as Facebook and Facebook is willing to take on the risk for the content I deploy on berrycobb.facebook, then I imagine the stakeholders listed above will probably not have much issue with "Single Registrant carve outs." This is the essence to "Single Registrant, Single User" concept. Conversely, any hope for consensus in VI quickly broke down with a use case for "Single Registrant Multiple Users." Using Facebook as an example again...if FB chose to allow me to register berrycobb.facebook, but instead I am designated as the Registrant, Facebook now competes head to head with other Registrars & Registries in the domain registration business. This is the crux of the debate. Where does one draw the line as Facebook being a social media "BRAND" vs. Facebook a social media "BRAND" that also chooses to register domains and compete in the domain market. If any exceptions or carve outs are given to FB because they are designated a "BRAND", then wouldn't other entities competing for the same registration dollar be at a competitive disadvantage because they are bound by the full extent of the Code of Conduct? Most will recall that I did not support the sections of the BC Position that called for these SR exceptions, because it did not provide a bright line solution for the community. Rather, it called for nebulous, self-serving, carve outs that only provided confusion. I hope we do not repeat the same mistake for future BC position statements. I'm starting to believe that no position is better than a half-baked one. With all this said however, I CAN support a "Single Registrant" concept, just not as we have it defined in our position today. There is no doubt that without some sort of designation for single registrant TLDs the Code of Conduct will certainly interfere with operations and may in fact deter some applications. The challenge is that the "Single Registrant" type of TLD is NOT defined in the Guidebook. Until it is, then any exceptions will not make the next AGB. I am willing to join a team of BC members to develop a specific proposal that not only benefits the BC, but benefits the entire community by relieving confusion. If we expect any momentum, the BC must come together and define a reasonable solution that ICANN Staff and Community can embrace. I am sure my fast-run scope definition above has several holes. So I welcome contributions to fill them. Gripes, complaints, & moans are also welcome if you feel I am way off base. Thank you, B Berry Cobb Infinity Portals LLC berrycobb(a)infinityportals.com <mailto:berrycobb@infinityportals.com> http://infinityportals.com 720.839.5735 From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, January 27, 2011 12:11 PM To: 'bc - GNSO list' Subject: [bc-gnso] pressing the BC recommendations for dot-brand TLDs To: BC Members Re: ICANN Con call today regarding Registry Contracts I joined a large con call today hosted by ICANN, to discuss new gTLD registy agreement. (see description at bottom of this note) Berry Cobb and Jon Nevett were also on the call. When we got to the Registry Code of Conduct, ICANN staff mentioned they had received many comments on how this would or would not work for dot-brand registries. At that point I brought up the BC concerns expressed in our Guidebook comments filed 6-Dec in Cartagena. I used the example of Canon, since they have said they may pursue a dot-brand. I said Canon might want to operate its own Registrar and restrict registrations to its own operating divisions, like copiers.canon and cameras.canon And Canon might want to manage a big sub-domain of photographers using Canon cameras, like [name].photos.canon I said The Code of Conduct should not restrict dot-brands from using an owned or closely affiliated registrar to register and manage names that it controls. (e.g., for divisions, product lines, locations, customers, affiliates, etc. ) I gave the BC recommendation to insert this clause into the Registry Code of Conduct: 4. Nothing set forth in articles 1, 2, or 3 shall apply to a single-registrant ('dot brand') Registry Operator acting with respect to user data that is under its ownership and control, or with respect to conduct reasonably necessary for the management, operations and purpose of the TLD. An experienced registry operator on the call said our 'carve out' would allow 'gaming' and abuse. (they say that a lot). ICANN Staff is very resistant to any 'carve-out' for dot-brands. They oppose any exception (or even a definition) for dot-brand. Craig Schwartz said ICANN didn't want to get in the business of monitoring Canon's copier business. ( I think that was the point of our recommendation - we don't want ICANN getting involved in how a dot-brand allocates registrations to entities it owns or controls) Will discuss more on our Monday call, I hope. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482 Temporary Drafting Group Work Session on New gTLD Base Registry Agreement Issues – To Be Held 27 January 2011 <http://blog.icann.org/2011/01/temporary-drafting-group-work-session-on-new-…> by Craig Schwartz on January 14, 2011 The Temporary Drafting Group will hold a teleconference on 27 January 2011. The issues open for drafting/discussion during the call will include: · Suggestions for additional language for Specification 9 (the Registry Code of Conduct) · Proposed modifications to conditions related to the termination of a registry services agreement · Suggestions for clarifications to provision requiring advance notice of registry price increases · Concepts for continued registry operations instrument to provide continuity of services Results: This is not a formal public consultation, but is intended to inform drafting which might make up a later public consultation. Any results from the Temporary Drafting Group will be included in documents that will be posted for public comment. No results from the Group will necessarily be used in any agreement drafts, but inputs from the Group will be considered by the ICANN Staff in making recommendations relating to questions discussed or posed to the Group. Session: This third Temporary Drafting Group session will be held via teleconference on 27 January 2011 at 18.00 UTC (http://timeanddate.com/s/1xxz) and is scheduled to last for 120 minutes. Participation: The Temporary Drafting Group was formed in early 2010 and announced in a 28 April 2010 blog <http://blog.icann.org/2010/04/temporary-drafting-group-work-session-on-new-…> post. If you would like to participate, please submit your name to TDG-Legal(a)ICANN.org <mailto:TDG-Legal@ICANN.org> , and we will provide you with information for the call. [THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR IS NOT THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR REPLY BY E-MAIL AND THEN PROMPTLY DELETE THE MESSAGE. THANK YOU.] [THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR IS NOT THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR REPLY BY E-MAIL AND THEN PROMPTLY DELETE THE MESSAGE. THANK YOU.]

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Policy Calendar for 31-Jan-2011 BC Member call
by Steve DelBianco Jan. 31, 2011

Jan. 31, 2011

To: Business Constituency Members From: Steve DelBianco, vice chair for policy coordination Below is the latest BC policy calendar, for use during 31-Jan member call. Attachments are referenced in channel 4. Channel 1. BC participation in ICANN Public Comment processes: ICANN Public Comment page is at http://www.icann.org/en/public-comment/ Selected Public Comments open at this time: (in order of comment closing dates) 1. Constituency Petition of not-for-profit operations (30-Jan). the BC supported this petition, at http://forum.icann.org/lists/npoc-petition-charter/msg00008.html 1. GNSO Working Group Guidelines (8-Feb) 2. Accountability & Transparency Review Team FINAL recommendations (14-Feb) 3. Interim report on internationalized registration data (14-Mar) Note: BC members are encouraged to submit individual or company comments on any topic. Based on member interest, the BC selects topics on which to submit official positions. Channel 2. Support for discussion and votes of our representatives on GNSO Council Upcoming discussions & votes at 3-Feb GNSO Council meeting (11:00 UTC) Full agenda at http://gnso.icann.org/meetings/agenda-council-03feb11-en.htm 2: update on PENDR (Post-expiration Domain Name Recovery) 3: motion to extend terms of 2 steering committees and create a new standing committee extend OSC (operations steering committee) to Jun-2011 extend PPSC (policy process steering committee) to Jun-2011 draft a charter for new standing committee to track implementation of OSC & PPSC recommendations. (Philip Sheppard to chair drafting team) 4: Joint applicant support working group – resolving difference with ALEC on a charter 5: responding to Board resolution asking GNSO for definitions & metrics for AOC terms (consumer choice, consumer trust, and competition). 6: motion regarding Registration Abuse Policies (RAP). Includes amendment by Zahid Jamil requesting Issues Report on illicit use of domain names. Council Working Groups: (see GNSO Project Status List as of 4-Dec-2010, at http://gnso.icann.org/meetings/pending-projects-list.pdf Channel 3. Supporting discussion and voting on policy matters before the Commercial Stakeholders Group (CSG) (Sarah Deutsch ) Channel 4. BC statements and responses during public meetings (Board breakfast, outreach events, public forum, etc.) Upcoming Board/GAC Intercessional meeting in Brussels, 2/28 - March 1. USG scorecard letter to GAC ( attached ). GAC Checklist and Staff documents for Intercessional meeting (checklist attached) Affirmation review team for Whois (Susan Kawaguchi, Bill Smith) Affirmation review team for SSR (Security, Stability, & Reslience) (Jeff Brueggeman)

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US Dept of Commerce Position Paper for 2/28 GAC/ICANN Meeting - Govts Gone Wild
by Berry Cobb Jan. 29, 2011

Jan. 29, 2011

BC, The following link is a posting on IGP's site. It is a blog by Milton Mueller about the US' Dept of Commerce Position Paper. I will never proclaim to be an expert on Policy Development & GAC influence, but parts of this position paper seem a bit scary. http://blog.internetgovernance.org/blog/_archives/2011/1/29/4737705.html Berry Cobb Infinity Portals LLC berrycobb(a)infinityportals.com http://infinityportals.com 720.839.5735

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Statement for CSG representative
by Deutsch, Sarah B Jan. 28, 2011

Jan. 28, 2011

________________________________ From: Deutsch, Sarah B Sent: Friday, January 28, 2011 6:33 PM To: 'bcprivate(a)bizconst.org' Subject: Statement for CSG representative Statement of Interest in Standing for Election as CSG representative: Dear BC Members: I am standing once again for election to the position of the CSG representative for the BC. This statement describes my interest in continuing in this elected role, and provides a short interest statement, as required by the BC Charter. Section 4.6 of the BC Charter provides that the "CSG representative will be the BC representative to the CSG executive committee and represent the Constituency on all matters within the responsibility of the CSG executive committee excepting policy coordination." I've been grateful for the opportunity to serve as your CSG representative last year. I had the privilege of drafting, along with a number of key BC members, the provisions that went into our Final CSG Charter. Both the drafting process and the Charter itself were a collaborative success. In my opinion, the initial work of the CSG demonstrates how the three constituencies can work together cooperatively on matters of common interest while still leaving policymaking decisions to the individual constituency level. In addition, the CSG has come together over the past year to coordinate our voting on GNSO candidates, to schedule meetings of both the commercial and noncommercial Houses at the ICANN meetings and to begin to strategize on additional issues of common concern. I hope to continue this important work for the BC next year and think members would benefit from an additional year of continuity. I intend, as the BC's elected CSG representative, to continue to actively interact not just with other BC officers but with the BC's entire membership to understand views and concerns on any topics that are taken up by the CSG in this process. I also continue to believe in transparency by BC officers and adhering to BC processes. I do not currently hold any elected position at any another trade association. I have no financial involvement or business involvement in any registries, registrars or other parties who are contracted suppliers to ICANN. Verizon is a member of the ISPCP and a non-voting member of the IPC but the BC is the primary policy forum where Verizon presents and advocates its views on ICANN related policy. Thanks once again to all for your consideration. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670

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Re: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
by Marilyn Cade Jan. 28, 2011

Jan. 28, 2011

ICANN operates the single authoriative root. The BC's lonstanding position supports that. We rejected alternative roots eons ago. ICANN operates no TLDS itself. But does allocate the only space that the BC recognises. I know this is before many of you jpoined, but I can do a short background (with Philip's help) on the debate of alternate roots, which the BC rejected, and led the rejection across ICANN. Sent via BlackBerry by AT&T -----Original Message----- From: Mike Rodenbaugh <icann(a)rodenbaugh.com> Date: Fri, 28 Jan 2011 22:25:19 To: <bc-gnso(a)icann.org> Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Sarah, some further facts for your consideration. ICANN is not the only operator of TLDs, or of domain name registration providers. Registries can and do offer many other services under their TLD string/brand, other than domain registration services. Sometimes several applicants do each have a bona fide intention to use the same trademark in US commerce, even for the same services. This is surely a big reason we have an "intent to use" filing system in the US. I am not aware of any TMEP rule going anywhere near so far as you would interpret it with respect to TLDs as trademarks, and Berry has cited many examples of contrary PTO practice. These issues are thoroughly briefed before the Trademark Trial & Appeal Board in the US now, pending a hearing and a decision with respect to my client TheDot Communications Network LLC and its application to register the ".music" trademark. I would appreciate further comments once you have reviewed some of that briefing, and would appreciate you refraining from suggestions of perjury and bad faith, unless you become aware of the background facts and then have an informed opinion. Re your fear that ICANN would cancel a registry contract, that seems a simple matter to require, as a condition of the contract, that upon termination the applicant shall disavow any trademark rights in the TLD string/brand, at least with respect to domain registration services and ancillary services not offered by the applicant prior to the application. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Deutsch, Sarah B [mailto:sarah.b.deutsch@verizon.com] Sent: Friday, January 28, 2011 1:25 PM To: 'Matkowsky, Jonathan'; icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs You can't "acquire distinctiveness" in a trademark you neither own nor use. And when you apply now at the PTO, this is for a registry name that has not even been awarded to you by ICANN. The TLD program has not yet started. ICANN has not yet reviewed any applications or determined who is best positioned to run a registry. If there are competing applicants, do all applicants have a "bona fide" intent to use that mark? Applying for exclusive rights in a trademark in advance of the TLD program seems like a form of TLD front running. For generic terms especially, it's important that registries serve a fiduciary duty to the public. If for compliance or other reasons, ICANN winds up terminating their contracts, they would own exclusive nationwide or global trademarks, which may prevent or conflict with a third party who takes over their operations. This outcome would be exactly the opposite of ICANN's stated intent to encourage innovation and competition. Again, unless you own a prior trademark registration for services or products unrelated to the registry services, to me this is bad policy. Re: Berry's question, the PTO examiners are often inconsistent and sometimes marks will register despite the PTO's rules against it. I would think that marks that have been registered for "registry" type services are at risk for cancellation if someone should choose to challenge them. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ---------------- From: Matkowsky, Jonathan [mailto:Jonathan.Matkowsky@LasVegasSands.com] Sent: Friday, January 28, 2011 3:36 PM To: Deutsch, Sarah B; icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs The Trademark Manual of Examining Procedure states that if the TLD merely describes the subject or user of the domain space, registration should be refused on the ground that the TLD is merely descriptive of the registry services. Merely descriptive marks can still acquire distinctiveness and become recognized as trademarks. There is common use of ".com" to refer to Internet businesses. You can find "dot-com advertising" in some dictionaries. So it doesn't pass the familiar "who-are-you/what-are-you" test. That will hopefully not be the case as Mike points out, the new TLD program is supposed to encourage innovation and competitive new uses of the DNS. Even when it comes to the addition of a TLD indicator to a descriptive term, the U.S. Court of Appeals for the Federal Circuit has recognized the possibility of a distinctive mark. Jonathan Matkowsky From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: Friday, January 28, 2011 11:26 AM To: 'icann(a)rodenbaugh.com'; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I'd like to differ on a couple of points. I don't think it's difficult to determine what is a brand. Brands are trademarks. Ownership of a federal trademark registration and other global trademark registrations are not only proof of a "brand" but confer nationwide exclusive rights to use that mark for the goods and services in the application. However, I would distinguish that the "brand" be a trademark that is registered and used for goods and services unrelated to registry services. The mark should be used in commerce for unrelated goods and services well before that brand ever gets awarded a TLD. It's my understanding that the BC has long opposed the idea that a TLD alone can become a brand -- only an existing trademark, such as CANON for cameras could be recognized as a brand TLD. BTW, it's my understanding that certain TLD applicants are inappropriately trying to lock up trademark rights in their "brands" at the PTO before ICANN has even awarded them a contract to operate the TLD. Whether ICANN awards them a contract or not, the PTO has rule that in the Trademark Manual of Examining Procedure confirming that registry services alone are not registrable as trademarks. When you apply for a trademark registration, you need to sign a declaration under penalty of perjury that you either have a bona fide intent to use the mark or have rights to use the mark in commerce. I don't see how anyone can sign this declaration in good faith given the fact that ICANN has not yet considered their application, several may be applying for the same TLD and the PTO's rule that such services are unregistrable. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ---------------- From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 12:27 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I generally support Berry's comments too. I appreciate the effort to devise clear rules. I offer a few more thoughts fwiw. I have argued that all TLDs are in fact brands of their registries, as by definition they are indicators of source of the registry service. Also I can envision lots of companies, including current registrars and registries, who might benefit from the SRSU model as Berry exemplifies it. I envision that many of them who essentially will allow use of domains to the public (i.e. to all Facebook members, in Berry's example) would have robust content-monitoring systems, and would see benefit to exercising quality control over how all domains within the TLD are used. The 'types' of TLDs that could employ models like this may extend well beyond what we think of 'dotBrands' today (i.e. .canon and .facebook). So long as the TLD operator is ultimately responsible as the registrant as well as the 'registration authority', from the BC's perspective these models should be encouraged. But these models may be disruptive to the status quo in ICANNland, and so did not get very far in the Vertical Integration working group. With the Board's resolution on VI, it seemed that the SRSU and other innovative models were being encouraged. Yet now some elements of the "Code of Conduct" are being proposed as a tool to essentially restrict business models like SRSU, in favor of the incumbent ICANN contracting parties and those who have designed their TLD models around the status quo. The BC should fight against that, as our support of the newTLD program has always been founded on the innovative, competitive new uses of the DNS that are envisioned (and those that have not been envisioned). Best, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of jarkko.ruuska(a)nokia.com Sent: Friday, January 28, 2011 5:30 AM To: berrycobb(a)infinityportals.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Dear all, Just wanted to express my support for Berry's definition of a Single Registrant TLD. In my opinion this is a simple enough (and probably the only feasible) way to define such a thing. BR, -jr From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of ext Berry Cobb Sent: 28. tammikuuta 2011 2:12 To: 'bc - GNSO list' Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Thank you Steve for updating the BC. Adding to Steve's points...... The reason ICANN Staff, experienced Registry Operators, & some other stakeholders will not sign on for "carve outs" is because there is NO BRIGHT LINE DEFINTION FOR A BRAND. In the context of TLDs what is a BRAND? Is it because they are Fortune 1000 company? Do they own Trademarks in the USA or Europe? Do they earn over $2 billion dollars a year in revenue? Where do we start to draw the line? If some sort of bright line exists, then please share. If it exists then I doubt we would see the pushback experienced today or during the VI WG. In my opinion, if the BC and IPC ever expect any headway regarding the "dot-brand" concept, then we MUST stop using "DOT-BRAND." Within my short ICANN career, one thing I've noticed is that a BRAND is a loaded and charged word among the community. If the BC supports "carve outs," then the case must be presented very specifically and using BRAND is not the way forward. Framing this concept should embrace the use of "Single Registrant" only. Notice how Single User & Multiple User is omitted? The main reason SRSU gained support during VI is only because of the Single Registrant component and it's limitations in how domains were registered and used. Anything beyond SRSU was poking a stick at a tiger. I remind everyone the reasoning for SRSU & SRMU is only because BRAND could not be defined. The following is how I view the possible scope of a "Single Registrant" TLD: · Any 2nd, 3rd, 4th,5th level domains registered are owned and operated only the by the entity that owns the TLD · All WHOIS information for registered 2nd level domains reflect the entity that owns the TLD · If the entity chooses to deploy content or allow use by others external to them, the entity is still responsible or liable for that domain and its content · The entity may register its own domains without equivalent access to other Registrars (RAA concepts should still be used, but ZERO registration fees to ICANN) · The entity may deploy and use its 2nd level domains how it sees fit and the Reserve Names list no longer applies · The entity can "warehouse" domains because it owns the domains · The entity is required to provide Zone File Access for monitoring and compliance · I am sure there are other elements to define the boundary here.. · Therefore, much of the Code of Conduct is meaningless to a "Single Registrant" TLD So, using the Cannon example from Steve below, the above "Single Registrant" concepts can satisfy the "carve outs" defined by the BC. If Cannon chose to register 2nd level domains to their customers, partners & vendors, but it is still designated as the Registrant, then the Single Registrant carve outs still apply. What about the Facebook use case? The one batted around most often is berrycobb.facebook. If Facebook chooses to register and supply me a domain and the defined "Registrant" remains as Facebook and Facebook is willing to take on the risk for the content I deploy on berrycobb.facebook, then I imagine the stakeholders listed above will probably not have much issue with "Single Registrant carve outs." This is the essence to "Single Registrant, Single User" concept. Conversely, any hope for consensus in VI quickly broke down with a use case for "Single Registrant Multiple Users." Using Facebook as an example again...if FB chose to allow me to register berrycobb.facebook, but instead I am designated as the Registrant, Facebook now competes head to head with other Registrars & Registries in the domain registration business. This is the crux of the debate. Where does one draw the line as Facebook being a social media "BRAND" vs. Facebook a social media "BRAND" that also chooses to register domains and compete in the domain market. If any exceptions or carve outs are given to FB because they are designated a "BRAND", then wouldn't other entities competing for the same registration dollar be at a competitive disadvantage because they are bound by the full extent of the Code of Conduct? Most will recall that I did not support the sections of the BC Position that called for these SR exceptions, because it did not provide a bright line solution for the community. Rather, it called for nebulous, self-serving, carve outs that only provided confusion. I hope we do not repeat the same mistake for future BC position statements. I'm starting to believe that no position is better than a half-baked one. With all this said however, I CAN support a "Single Registrant" concept, just not as we have it defined in our position today. There is no doubt that without some sort of designation for single registrant TLDs the Code of Conduct will certainly interfere with operations and may in fact deter some applications. The challenge is that the "Single Registrant" type of TLD is NOT defined in the Guidebook. Until it is, then any exceptions will not make the next AGB. I am willing to join a team of BC members to develop a specific proposal that not only benefits the BC, but benefits the entire community by relieving confusion. If we expect any momentum, the BC must come together and define a reasonable solution that ICANN Staff and Community can embrace. I am sure my fast-run scope definition above has several holes. So I welcome contributions to fill them. Gripes, complaints, & moans are also welcome if you feel I am way off base. Thank you, B Berry Cobb Infinity Portals LLC berrycobb(a)infinityportals.com <mailto:berrycobb@infinityportals.com> http://infinityportals.com 720.839.5735 From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, January 27, 2011 12:11 PM To: 'bc - GNSO list' Subject: [bc-gnso] pressing the BC recommendations for dot-brand TLDs To: BC Members Re: ICANN Con call today regarding Registry Contracts I joined a large con call today hosted by ICANN, to discuss new gTLD registy agreement. (see description at bottom of this note) Berry Cobb and Jon Nevett were also on the call. When we got to the Registry Code of Conduct, ICANN staff mentioned they had received many comments on how this would or would not work for dot-brand registries. At that point I brought up the BC concerns expressed in our Guidebook comments filed 6-Dec in Cartagena. I used the example of Canon, since they have said they may pursue a dot-brand. I said Canon might want to operate its own Registrar and restrict registrations to its own operating divisions, like copiers.canon and cameras.canon And Canon might want to manage a big sub-domain of photographers using Canon cameras, like [name].photos.canon I said The Code of Conduct should not restrict dot-brands from using an owned or closely affiliated registrar to register and manage names that it controls. (e.g., for divisions, product lines, locations, customers, affiliates, etc. ) I gave the BC recommendation to insert this clause into the Registry Code of Conduct: 4. Nothing set forth in articles 1, 2, or 3 shall apply to a single-registrant ('dot brand') Registry Operator acting with respect to user data that is under its ownership and control, or with respect to conduct reasonably necessary for the management, operations and purpose of the TLD. An experienced registry operator on the call said our 'carve out' would allow 'gaming' and abuse. (they say that a lot). ICANN Staff is very resistant to any 'carve-out' for dot-brands. They oppose any exception (or even a definition) for dot-brand. Craig Schwartz said ICANN didn't want to get in the business of monitoring Canon's copier business. ( I think that was the point of our recommendation - we don't want ICANN getting involved in how a dot-brand allocates registrations to entities it owns or controls) Will discuss more on our Monday call, I hope. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482 Temporary Drafting Group Work Session on New gTLD Base Registry Agreement Issues – To Be Held 27 January 2011 <http://blog.icann.org/2011/01/temporary-drafting-group-work-session-on-new-…> by Craig Schwartz on January 14, 2011 The Temporary Drafting Group will hold a teleconference on 27 January 2011. The issues open for drafting/discussion during the call will include: · Suggestions for additional language for Specification 9 (the Registry Code of Conduct) · Proposed modifications to conditions related to the termination of a registry services agreement · Suggestions for clarifications to provision requiring advance notice of registry price increases · Concepts for continued registry operations instrument to provide continuity of services Results: This is not a formal public consultation, but is intended to inform drafting which might make up a later public consultation. Any results from the Temporary Drafting Group will be included in documents that will be posted for public comment. No results from the Group will necessarily be used in any agreement drafts, but inputs from the Group will be considered by the ICANN Staff in making recommendations relating to questions discussed or posed to the Group. Session: This third Temporary Drafting Group session will be held via teleconference on 27 January 2011 at 18.00 UTC (http://timeanddate.com/s/1xxz) and is scheduled to last for 120 minutes. Participation: The Temporary Drafting Group was formed in early 2010 and announced in a 28 April 2010 blog <http://blog.icann.org/2010/04/temporary-drafting-group-work-session-on-new-…> post. If you would like to participate, please submit your name to TDG-Legal(a)ICANN.org <mailto:TDG-Legal@ICANN.org> , and we will provide you with information for the call. [THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR IS NOT THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR REPLY BY E-MAIL AND THEN PROMPTLY DELETE THE MESSAGE. THANK YOU.]

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RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
by Matkowsky, Jonathan Jan. 28, 2011

Jan. 28, 2011

The case I found that supports this is a TTAB case from 1993 - Commodore Elec. Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503. That case quoted legislative history that a bona fide intent means an intention that is firm, even though it may be contingent upon the outcome of a future event. From: Matkowsky, Jonathan Sent: Friday, January 28, 2011 4:36 PM To: icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I wanted to also follow up on the issue of bona fide intent, and whether if there are competing applicants, all would have a bona fide intent to use that mark. While it has always been true that intent has to be more than a hope or a wish, the intent can be an external contingency. Jonathan Matkowsky From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 3:37 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Thanks for clarifying. My client's applications were refused by the Examining Attorney, and now are on appeal before the TTAB (still within the PTO). I'll forward you some materials. Use in commerce of a mark in connection with domain registration services can and has occurred without regard to ICANN, therefore a bona fide intent to supply those services need not involve ICANN. To the extent they are relevant, ICANN registry contracts are designed to ensure continuity of registry operations upon termination. So trademark rights should be assigned to the successor registry operator who is continuing to supply services under that TLD string/brand. I see no fundamental reason to ignore the fact that TLDs do function as indicators of source for the registry services provided by that TLD operator. The trademark laws protect colors, sounds, shapes, etc.,... so I would like to understand the logic behind any argument to deny trademark protection to TLD strings. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Deutsch, Sarah B [mailto:sarah.b.deutsch@verizon.com] Sent: Friday, January 28, 2011 3:03 PM To: 'icann(a)rodenbaugh.com'; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Mike, I make no judgments about your particular clients, am not familiar with the facts surrounding their application and would be happy to see the briefing materials you prepared for the TTAB. I assume this means that your client's application received a final refusal from the PTO? If someone is offering services not related to registry services, I agree this may be a different story. Perhaps the TTAB will opine on this legal issue, but I don't think it's possible to have "bona fide intent to use" a mark when the underlying contract to operate the services under that name have not yet been awarded to you. You -- and other competitive bidders -- may all have a bona fide *hope* that you'll receive such rights, but I don't think your bona fide intent to use can begin until the period until you're actually awarded the contract by ICANN up until the time you start actual use in commerce. Regarding your idea that ICANN simply amend its contract to require registries to disavow their trademark rights after cancellation of their contract, I think it's simpler for the contract to prohibit trademark registrations in the first place, at least for the registry services supplied under the contract. "Disavowing" trademark rights after the fact means the registry must either assign trademark rights to ICANN (do we really want ICANN owning these marks?) or a third party, both of which may be difficult for ICANN to enforce, or abandoning the trademark rights, which is not a great idea from a trademark policy perspective. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 5:25 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Sarah, some further facts for your consideration. ICANN is not the only operator of TLDs, or of domain name registration providers. Registries can and do offer many other services under their TLD string/brand, other than domain registration services. Sometimes several applicants do each have a bona fide intention to use the same trademark in US commerce, even for the same services. This is surely a big reason we have an "intent to use" filing system in the US. I am not aware of any TMEP rule going anywhere near so far as you would interpret it with respect to TLDs as trademarks, and Berry has cited many examples of contrary PTO practice. These issues are thoroughly briefed before the Trademark Trial & Appeal Board in the US now, pending a hearing and a decision with respect to my client TheDot Communications Network LLC and its application to register the ".music" trademark. I would appreciate further comments once you have reviewed some of that briefing, and would appreciate you refraining from suggestions of perjury and bad faith, unless you become aware of the background facts and then have an informed opinion. Re your fear that ICANN would cancel a registry contract, that seems a simple matter to require, as a condition of the contract, that upon termination the applicant shall disavow any trademark rights in the TLD string/brand, at least with respect to domain registration services and ancillary services not offered by the applicant prior to the application. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Deutsch, Sarah B [mailto:sarah.b.deutsch@verizon.com] Sent: Friday, January 28, 2011 1:25 PM To: 'Matkowsky, Jonathan'; icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs You can't "acquire distinctiveness" in a trademark you neither own nor use. And when you apply now at the PTO, this is for a registry name that has not even been awarded to you by ICANN. The TLD program has not yet started. ICANN has not yet reviewed any applications or determined who is best positioned to run a registry. If there are competing applicants, do all applicants have a "bona fide" intent to use that mark? Applying for exclusive rights in a trademark in advance of the TLD program seems like a form of TLD front running. For generic terms especially, it's important that registries serve a fiduciary duty to the public. If for compliance or other reasons, ICANN winds up terminating their contracts, they would own exclusive nationwide or global trademarks, which may prevent or conflict with a third party who takes over their operations. This outcome would be exactly the opposite of ICANN's stated intent to encourage innovation and competition. Again, unless you own a prior trademark registration for services or products unrelated to the registry services, to me this is bad policy. Re: Berry's question, the PTO examiners are often inconsistent and sometimes marks will register despite the PTO's rules against it. I would think that marks that have been registered for "registry" type services are at risk for cancellation if someone should choose to challenge them. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Matkowsky, Jonathan [mailto:Jonathan.Matkowsky@LasVegasSands.com] Sent: Friday, January 28, 2011 3:36 PM To: Deutsch, Sarah B; icann(a)rodenbaugh.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs The Trademark Manual of Examining Procedure states that if the TLD merely describes the subject or user of the domain space, registration should be refused on the ground that the TLD is merely descriptive of the registry services. Merely descriptive marks can still acquire distinctiveness and become recognized as trademarks. There is common use of ".com" to refer to Internet businesses. You can find "dot-com advertising" in some dictionaries. So it doesn't pass the familiar "who-are-you/what-are-you" test. That will hopefully not be the case as Mike points out, the new TLD program is supposed to encourage innovation and competitive new uses of the DNS. Even when it comes to the addition of a TLD indicator to a descriptive term, the U.S. Court of Appeals for the Federal Circuit has recognized the possibility of a distinctive mark. Jonathan Matkowsky From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: Friday, January 28, 2011 11:26 AM To: 'icann(a)rodenbaugh.com'; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I'd like to differ on a couple of points. I don't think it's difficult to determine what is a brand. Brands are trademarks. Ownership of a federal trademark registration and other global trademark registrations are not only proof of a "brand" but confer nationwide exclusive rights to use that mark for the goods and services in the application. However, I would distinguish that the "brand" be a trademark that is registered and used for goods and services unrelated to registry services. The mark should be used in commerce for unrelated goods and services well before that brand ever gets awarded a TLD. It's my understanding that the BC has long opposed the idea that a TLD alone can become a brand -- only an existing trademark, such as CANON for cameras could be recognized as a brand TLD. BTW, it's my understanding that certain TLD applicants are inappropriately trying to lock up trademark rights in their "brands" at the PTO before ICANN has even awarded them a contract to operate the TLD. Whether ICANN awards them a contract or not, the PTO has rule that in the Trademark Manual of Examining Procedure confirming that registry services alone are not registrable as trademarks. When you apply for a trademark registration, you need to sign a declaration under penalty of perjury that you either have a bona fide intent to use the mark or have rights to use the mark in commerce. I don't see how anyone can sign this declaration in good faith given the fact that ICANN has not yet considered their application, several may be applying for the same TLD and the PTO's rule that such services are unregistrable. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 12:27 PM To: bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs I generally support Berry's comments too. I appreciate the effort to devise clear rules. I offer a few more thoughts fwiw. I have argued that all TLDs are in fact brands of their registries, as by definition they are indicators of source of the registry service. Also I can envision lots of companies, including current registrars and registries, who might benefit from the SRSU model as Berry exemplifies it. I envision that many of them who essentially will allow use of domains to the public (i.e. to all Facebook members, in Berry's example) would have robust content-monitoring systems, and would see benefit to exercising quality control over how all domains within the TLD are used. The 'types' of TLDs that could employ models like this may extend well beyond what we think of 'dotBrands' today (i.e. .canon and .facebook). So long as the TLD operator is ultimately responsible as the registrant as well as the 'registration authority', from the BC's perspective these models should be encouraged. But these models may be disruptive to the status quo in ICANNland, and so did not get very far in the Vertical Integration working group. With the Board's resolution on VI, it seemed that the SRSU and other innovative models were being encouraged. Yet now some elements of the "Code of Conduct" are being proposed as a tool to essentially restrict business models like SRSU, in favor of the incumbent ICANN contracting parties and those who have designed their TLD models around the status quo. The BC should fight against that, as our support of the newTLD program has always been founded on the innovative, competitive new uses of the DNS that are envisioned (and those that have not been envisioned). Best, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of jarkko.ruuska(a)nokia.com Sent: Friday, January 28, 2011 5:30 AM To: berrycobb(a)infinityportals.com; bc-gnso(a)icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Dear all, Just wanted to express my support for Berry's definition of a Single Registrant TLD. In my opinion this is a simple enough (and probably the only feasible) way to define such a thing. BR, -jr From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of ext Berry Cobb Sent: 28. tammikuuta 2011 2:12 To: 'bc - GNSO list' Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Thank you Steve for updating the BC. Adding to Steve's points...... The reason ICANN Staff, experienced Registry Operators, & some other stakeholders will not sign on for "carve outs" is because there is NO BRIGHT LINE DEFINTION FOR A BRAND. In the context of TLDs what is a BRAND? Is it because they are Fortune 1000 company? Do they own Trademarks in the USA or Europe? Do they earn over $2 billion dollars a year in revenue? Where do we start to draw the line? If some sort of bright line exists, then please share. If it exists then I doubt we would see the pushback experienced today or during the VI WG. In my opinion, if the BC and IPC ever expect any headway regarding the "dot-brand" concept, then we MUST stop using "DOT-BRAND." Within my short ICANN career, one thing I've noticed is that a BRAND is a loaded and charged word among the community. If the BC supports "carve outs," then the case must be presented very specifically and using BRAND is not the way forward. Framing this concept should embrace the use of "Single Registrant" only. Notice how Single User & Multiple User is omitted? The main reason SRSU gained support during VI is only because of the Single Registrant component and it's limitations in how domains were registered and used. Anything beyond SRSU was poking a stick at a tiger. I remind everyone the reasoning for SRSU & SRMU is only because BRAND could not be defined. The following is how I view the possible scope of a "Single Registrant" TLD: * Any 2nd, 3rd, 4th,5th level domains registered are owned and operated only the by the entity that owns the TLD * All WHOIS information for registered 2nd level domains reflect the entity that owns the TLD * If the entity chooses to deploy content or allow use by others external to them, the entity is still responsible or liable for that domain and its content * The entity may register its own domains without equivalent access to other Registrars (RAA concepts should still be used, but ZERO registration fees to ICANN) * The entity may deploy and use its 2nd level domains how it sees fit and the Reserve Names list no longer applies * The entity can "warehouse" domains because it owns the domains * The entity is required to provide Zone File Access for monitoring and compliance * I am sure there are other elements to define the boundary here.... * Therefore, much of the Code of Conduct is meaningless to a "Single Registrant" TLD So, using the Cannon example from Steve below, the above "Single Registrant" concepts can satisfy the "carve outs" defined by the BC. If Cannon chose to register 2nd level domains to their customers, partners & vendors, but it is still designated as the Registrant, then the Single Registrant carve outs still apply. What about the Facebook use case? The one batted around most often is berrycobb.facebook. If Facebook chooses to register and supply me a domain and the defined "Registrant" remains as Facebook and Facebook is willing to take on the risk for the content I deploy on berrycobb.facebook, then I imagine the stakeholders listed above will probably not have much issue with "Single Registrant carve outs." This is the essence to "Single Registrant, Single User" concept. Conversely, any hope for consensus in VI quickly broke down with a use case for "Single Registrant Multiple Users." Using Facebook as an example again.....if FB chose to allow me to register berrycobb.facebook, but instead I am designated as the Registrant, Facebook now competes head to head with other Registrars & Registries in the domain registration business. This is the crux of the debate. Where does one draw the line as Facebook being a social media "BRAND" vs. Facebook a social media "BRAND" that also chooses to register domains and compete in the domain market. If any exceptions or carve outs are given to FB because they are designated a "BRAND", then wouldn't other entities competing for the same registration dollar be at a competitive disadvantage because they are bound by the full extent of the Code of Conduct? Most will recall that I did not support the sections of the BC Position that called for these SR exceptions, because it did not provide a bright line solution for the community. Rather, it called for nebulous, self-serving, carve outs that only provided confusion. I hope we do not repeat the same mistake for future BC position statements. I'm starting to believe that no position is better than a half-baked one. With all this said however, I CAN support a "Single Registrant" concept, just not as we have it defined in our position today. There is no doubt that without some sort of designation for single registrant TLDs the Code of Conduct will certainly interfere with operations and may in fact deter some applications. The challenge is that the "Single Registrant" type of TLD is NOT defined in the Guidebook. Until it is, then any exceptions will not make the next AGB. I am willing to join a team of BC members to develop a specific proposal that not only benefits the BC, but benefits the entire community by relieving confusion. If we expect any momentum, the BC must come together and define a reasonable solution that ICANN Staff and Community can embrace. I am sure my fast-run scope definition above has several holes. So I welcome contributions to fill them. Gripes, complaints, & moans are also welcome if you feel I am way off base. Thank you, B Berry Cobb Infinity Portals LLC berrycobb(a)infinityportals.com http://infinityportals.com 720.839.5735 From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, January 27, 2011 12:11 PM To: 'bc - GNSO list' Subject: [bc-gnso] pressing the BC recommendations for dot-brand TLDs To: BC Members Re: ICANN Con call today regarding Registry Contracts I joined a large con call today hosted by ICANN, to discuss new gTLD registy agreement. (see description at bottom of this note) Berry Cobb and Jon Nevett were also on the call. When we got to the Registry Code of Conduct, ICANN staff mentioned they had received many comments on how this would or would not work for dot-brand registries. At that point I brought up the BC concerns expressed in our Guidebook comments filed 6-Dec in Cartagena. I used the example of Canon, since they have said they may pursue a dot-brand. I said Canon might want to operate its own Registrar and restrict registrations to its own operating divisions, like copiers.canon and cameras.canon And Canon might want to manage a big sub-domain of photographers using Canon cameras, like [name].photos.canon I said The Code of Conduct should not restrict dot-brands from using an owned or closely affiliated registrar to register and manage names that it controls. (e.g., for divisions, product lines, locations, customers, affiliates, etc. ) I gave the BC recommendation to insert this clause into the Registry Code of Conduct: 4. Nothing set forth in articles 1, 2, or 3 shall apply to a single-registrant ('dot brand') Registry Operator acting with respect to user data that is under its ownership and control, or with respect to conduct reasonably necessary for the management, operations and purpose of the TLD. An experienced registry operator on the call said our 'carve out' would allow 'gaming' and abuse. (they say that a lot). ICANN Staff is very resistant to any 'carve-out' for dot-brands. They oppose any exception (or even a definition) for dot-brand. Craig Schwartz said ICANN didn't want to get in the business of monitoring Canon's copier business. ( I think that was the point of our recommendation - we don't want ICANN getting involved in how a dot-brand allocates registrations to entities it owns or controls) Will discuss more on our Monday call, I hope. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482 Temporary Drafting Group Work Session on New gTLD Base Registry Agreement Issues - To Be Held 27 January 2011 <http://blog.icann.org/2011/01/temporary-drafting-group-work-session-on- new-gtld-base-registry-agreement-issues-%e2%80%93-to-be-held-27-january- 2011/> by Craig Schwartz on January 14, 2011 The Temporary Drafting Group will hold a teleconference on 27 January 2011. The issues open for drafting/discussion during the call will include: * Suggestions for additional language for Specification 9 (the Registry Code of Conduct) * Proposed modifications to conditions related to the termination of a registry services agreement * Suggestions for clarifications to provision requiring advance notice of registry price increases * Concepts for continued registry operations instrument to provide continuity of services Results: This is not a formal public consultation, but is intended to inform drafting which might make up a later public consultation. Any results from the Temporary Drafting Group will be included in documents that will be posted for public comment. No results from the Group will necessarily be used in any agreement drafts, but inputs from the Group will be considered by the ICANN Staff in making recommendations relating to questions discussed or posed to the Group. Session: This third Temporary Drafting Group session will be held via teleconference on 27 January 2011 at 18.00 UTC (http://timeanddate.com/s/1xxz) and is scheduled to last for 120 minutes. Participation: The Temporary Drafting Group was formed in early 2010 and announced in a 28 April 2010 blog <http://blog.icann.org/2010/04/temporary-drafting-group-work-session-on- new-gtld-implementation-issues-%E2%80%93-to-be-held-3-may-2010/> post. If you would like to participate, please submit your name to TDG-Legal(a)ICANN.org, and we will provide you with information for the call. [THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR IS NOT THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR REPLY BY E-MAIL AND THEN PROMPTLY DELETE THE MESSAGE. THANK YOU.] [THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR IS NOT THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR REPLY BY E-MAIL AND THEN PROMPTLY DELETE THE MESSAGE. THANK YOU.]

1 0

pressing the BC recommendations for dot-brand TLDs
by Steve DelBianco Jan. 28, 2011

Jan. 28, 2011

To: BC Members Re: ICANN Con call today regarding Registry Contracts I joined a large con call today hosted by ICANN, to discuss new gTLD registy agreement. (see description at bottom of this note) Berry Cobb and Jon Nevett were also on the call. When we got to the Registry Code of Conduct, ICANN staff mentioned they had received many comments on how this would or would not work for dot-brand registries. At that point I brought up the BC concerns expressed in our Guidebook comments filed 6-Dec in Cartagena. I used the example of Canon, since they have said they may pursue a dot-brand. I said Canon might want to operate its own Registrar and restrict registrations to its own operating divisions, like copiers.canon and cameras.canon And Canon might want to manage a big sub-domain of photographers using Canon cameras, like [name].photos.canon I said The Code of Conduct should not restrict dot-brands from using an owned or closely affiliated registrar to register and manage names that it controls. (e.g., for divisions, product lines, locations, customers, affiliates, etc. ) I gave the BC recommendation to insert this clause into the Registry Code of Conduct: 4. Nothing set forth in articles 1, 2, or 3 shall apply to a single-registrant ('dot brand') Registry Operator acting with respect to user data that is under its ownership and control, or with respect to conduct reasonably necessary for the management, operations and purpose of the TLD. An experienced registry operator on the call said our 'carve out' would allow 'gaming' and abuse. (they say that a lot). ICANN Staff is very resistant to any 'carve-out' for dot-brands. They oppose any exception (or even a definition) for dot-brand. Craig Schwartz said ICANN didn't want to get in the business of monitoring Canon's copier business. ( I think that was the point of our recommendation — we don't want ICANN getting involved in how a dot-brand allocates registrations to entities it owns or controls) Will discuss more on our Monday call, I hope. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482 Temporary Drafting Group Work Session on New gTLD Base Registry Agreement Issues – To Be Held 27 January 2011<http://blog.icann.org/2011/01/temporary-drafting-group-work-session-on-new-…> by Craig Schwartz on January 14, 2011 The Temporary Drafting Group will hold a teleconference on 27 January 2011. The issues open for drafting/discussion during the call will include: * Suggestions for additional language for Specification 9 (the Registry Code of Conduct) * Proposed modifications to conditions related to the termination of a registry services agreement * Suggestions for clarifications to provision requiring advance notice of registry price increases * Concepts for continued registry operations instrument to provide continuity of services Results: This is not a formal public consultation, but is intended to inform drafting which might make up a later public consultation. Any results from the Temporary Drafting Group will be included in documents that will be posted for public comment. No results from the Group will necessarily be used in any agreement drafts, but inputs from the Group will be considered by the ICANN Staff in making recommendations relating to questions discussed or posed to the Group. Session: This third Temporary Drafting Group session will be held via teleconference on 27 January 2011 at 18.00 UTC (http://timeanddate.com/s/1xxz) and is scheduled to last for 120 minutes. Participation: The Temporary Drafting Group was formed in early 2010 and announced in a 28 April 2010 blog<http://blog.icann.org/2010/04/temporary-drafting-group-work-session-on-new-…> post. If you would like to participate, please submit your name to TDG-Legal(a)ICANN.org<mailto:TDG-Legal@ICANN.org>, and we will provide you with information for the call.

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Board resolution on new-gTLDs -- pushing hard for March
by Mike O'Connor Jan. 28, 2011

Jan. 28, 2011

i imagine most of you have seen this, but here's a link to the Board resolution on new gTLDs, passed last Tuesday; http://icann.org/en/minutes/resolutions-25jan11-en.htm#5. here's the payday resolution. > Resolved (2011.01.25.24), the ICANN Board hereby determines that it intends to progress toward launching the New gTLD Program, as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook. mikey - - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

1 0

BC members call moved to Monday
by Chris Chaplow Jan. 26, 2011

Jan. 26, 2011

Dear Members, In view of the short notice and the number of members who have responded we have decided to move the members call from tomorrow to Monday 31st January at 10.00 EST (07.00 PST, 15.00 GMT, 16.00CET). Apologies for the inconvenience. Chris Chaplow Managing Director Andalucía.com S.L. Avenida del Carmen 9 Ed. Puertosol, Puerto Deportivo 1ª Planta, Oficina 30 Estepona, 29680 Malaga, Spain Tel: + (34) 952 897 865 Fax: + (34) 952 897 874 E-mail: <mailto:chris@andaluciaws.com> chris(a)andaluciaws.com Web: <http://www.andalucia.com/> www.andaluciaws.com

1 0

BC Members Call on 1/27 for members discussion pre Council meeting on Feb 3
by Marilyn Cade Jan. 25, 2011

Jan. 25, 2011

with apologies for the delay in announcing the date and time, the ExComm would like to host a BC members call on 1/27, at 9 a.m. EST for a 1 hour discussion with the members on the Council agenda /as provided in the Council agenda. I earlier posted the Council agenda -- but am providing the link again for your convience. http://gnso.icann.org/meetings/agenda-council-03feb11-en.htm In addition to the items on the Council discussion[ or in direct support to what may be discussed in the Council] , we will discuss the following topics - in brief --as we have time on this Members call. Priority will be on any topic likely to be discussed within the Council. I will be taking the call from California, so joining those on the West Coast in our 'unfriendly hour' time zone of 6 a.m. The bridge will be posted tomorrow to the bcprivate list. as is now usual, the callwill be transcribed and posted to members separately. I am expecting the full Excomm on the call, although Sarah has indicated she will have to be on only part of the call. There is a second February Council meeting [I know, two in one month/we thank our councilorsfor their double duty in February!]. We will set the date for the members pre call for that second Council call at the end of this call/and confirm by email. We will hold then a separate members/prep call for San Francisco meeting, in early March. Look at the Council agenda for the priority topics/but also look at the list below of topics I've heard about, or added in from my own review/or Excomm members updates: The additional topics will be brief updates on as many of the following as timepermits/and based on members prioritization. Otherwise, updates by email after the call. These items are driven by discussions with members. 1) Upcoming Board/GAC Intercessional meeting in Brussels, 2/28 - March 1 2) BC outreach and members 'gathering' hosted by a Brussels based member on 1/28Marilyn to discuss/ETNO offer to host gathering on 1/28 over lunch. 3) BC responses to GAC Checklist and Staff documents for Intercessional meetingSteve to lead this discussion. 4) Comments about ICANN sponsorship charges /registration fees for upcoming meeting - members viewsMarilyn and Chris to lead this. 5) Discussion of Beckstrom proposal for 2 day meeting with chairs of SO/AC just before S.F. meeting/clarification already provided by ICANN staff/views from the Chairs of Constituencies on this proposed gathering as known from CSG constituency chairsMarilyn to update from discussions with chairs of constuencies/SGs. 6) Planning for the S.F. meeting/schedule/ideas for drawing particpation from Silicon Valley businesses [business and trademark/possible joint promotion for CSG session by the three constituencies/statusChairs of three constituencies discussing major redesign of Tuesday to serve additional attendees/posibly move part of BC members meeting to Sunday to support having a different program during CSG portion. 7) Other business /members From: marilynscade(a)hotmail.com To: bc-gnso(a)icann.org Subject: [bc-gnso] Proposed Agenda for GNSO Council Meeting 3 February 2011. Date: Thu, 20 Jan 2011 20:14:09 -0500 Dear BC Members I am forwarding the upcoming Council agenda for Feb 3 Council call.There are two Council calls in February, and we will manage the BC mmbers calls around those two calls. As such these calls will address both policy topics and preparation for the S.F. meeting. As we have committed, we will schedule a BC Call before each Council call, tol allow BC members to comment on the topics on the Council agenda. And we will do our best to have both BC councilors confirmed for these calls,as well as the full ExComm. These calls will need to address additional topics since we want to limit demand for mmbers calls. Thus, both calls will address other critical topics.such as close of comments on the Operating Plan; planning for the upcoming S.F. meeting, public comments as establishedby ICANN. Chris Chaplow, V.Chair, Finance and Operations and I will be working on dates for the next two BC calls with the ExComm and will post the BC calls in the next few days.In the meantime, if you want to add an agenda item other than those referenced in theCouncil agenda or the Operating Plan/Strategic Plan, please do post that to the bc-gnso list. Last BC Call: The transcript and BC participation in the last BC call was posted recently. If you can't find it, email to either me or Chris separately and we will resent it. We will continue the process of providing a BC transcript with the list of members in future BC calls. Please feel free to share the BC calls with your internal team membersand encourage them to join the BC calls. Our Bc Councilors may be sharing information on various topics on the Council's agenda. This is posting of the agendaas an informational 'hold the date' if you want to listen in via the Council's new feature that does allow real time listening. Separately, please look for an update from me as chair, on the debates on whether chairsof the Constituencies should talk about budget/operational plan issues, and whether the CEO/Chair of ICANNshould be convening a two day meeting of a self selected list of attendees to discuss the GNSO governance. That last item should intrique all BC members. I'll do a briefing email tomorrow. Marilyn CadeBC Chair From: Glen(a)icann.org To: liaison6c(a)gnso.icann.org Date: Thu, 20 Jan 2011 13:45:52 -0800 Subject: [liaison6c] Proposed Agenda for GNSO Council Meeting 3 February 2011. FYI Proposed Agenda for GNSO Council Meeting 3 February 2011. http://gnso.icann.org/meetings/agenda-council-03feb11-en.htm (Wiki agenda will have latest updates) https://st.icann.org/gnso-council/index.cgi?proposed_agenda_3_february_2011 This agenda was established according to the GNSO Council Operating Procedures approved 5 August 2010 for the GNSO Council. http://gnso.icann.org/council/gnso-op-procedures-05aug10-en.pdf For convenience:* An excerpt of the ICANN Bylaws defining the voting thresholds is provided in Appendix 1 at the end of this agenda. * An excerpt from the Council Operating Procedures defining the absentee voting procedures is provided in Appendix 2 at the end of this agenda.Meeting Time 11:00 UTC Coordinated Universal Time:11:00 UTC - see below for local times (03:00 Los Angeles, 06:00 Washington DC, 11:00 London, 12:00 Brussels, 22:00 Melbourne ) Dial-in numbers will be sent individually to Council members. Councilors should notify the GNSO Secretariat in advance if a dial out call is needed. GNSO Council meeting audiocast http://stream.icann.org:8000/gnso.m3uItem 1: Administrative matters (10 minutes)1.1 Roll call of Council members and polling for Disclosures of Interest • Per the GNSO Operating Procedures, Section 5.4, we are required to poll Councilors regarding “any direct or indirect interests that may affect a Relevant Party’s judgment on an issue that is under review, consideration, or discussion” in this meeting. Here is the definition provided in the procedures: “Disclosure of Interest: Relevant to a specific issue at a specific time. A written statement made by a Relevant Party of direct and indirect interests that may be commercial (e.g. monetary payment) or non-commercial (e.g. non-tangible benefit such as publicity, political or academic visibility) and may affect, or be perceived to affect, the Relevant Party's judgment on a specific issue.” The main issues for this meeting are: GNSO Project Decision Making Registration Abuse PoliciesPost Expiration Domain Name Recovery New gTLD Applicant Guidebook 1.2 Update any statements of interest 1.3 Review/amend agenda 1.4. Note the status of minutes for the previous Council meeting per the GNSO Operating Procedures: • 13 January 2011 Draft Council minutes – Scheduled for approval on 31 January 2011. http://gnso.icann.org/mailing-lists/archives/council/msg10512.html Item 2: Pending Projects – Post-Expiration Domain Name Recovery (PEDNR) (15 minutes)Update on Working Group's progess. Working Group (WG) was started on November 20, 2008. WG is chaired by Alan Greenberg. Refer to GNSO Pending Projects list http://gnso.icann.org/meetings/pending-projects-list.pdf. 2.1: Update on WG - Alan Greenberg, WG Chair. 2.2: Discussion2.3: Next steps Item 3: Joint Applicant Support Working Group (20 minutes)Refer to motion passed in previous meeting http://gnso.icann.org/resolutions/#201101 Refer to action item from previous meeting: "Discuss the way forward given there are now two different charters for the JAS working group, one approved by the ALAC and one approved by the GNSO Council." 3.1: Would ALAC be open to accepting the charter as amended by the GNSO? Report from ALAC Liaison - Alan Greenberg 3.2: Discussion3.3: Next steps Item 4: Cartagena Board Resolution on Consumer Choice, Competition and Innovation (15 minutes)Refer to Board resolution: http://www.icann.org/en/minutes/resolutions-10dec10-en.htm#6 Refer to action item from previous meeting: The Council agreed that Rosemary Sinclair would liaise with Bruce Tonkin and then the Council would consider whether it should send a letter to the Board saying the GNSO does not have the resources to undertake this work. 4.1 Update from Rosemary Sinclair4.2 Discussion 4.3 Next steps?Item 5: Recommendations re. Registration Abuse Policy (RAP) (20 minutes)Refer to letter from RAP team http://gnso.icann.org/correspondence/rap-idt-to-gnso-council-15nov10-en.pdf Refer to motion in response to the Registration Abuse Policies Working Group (RAP WG) final report, deferred from previous meeting.(motion 1) https://st.icann.org/gnso-council/index.cgi?3_february_motions 5.1 Discussion 5.2 Vote (Create an Issues Report: requires an affirmative vote of more than 25% vote of each House or majority of one House) Item 6: Status of Stakeholder Group and Constituency statements on Recommendation 6 (10 minutes)Refer to action item from previous meeting: Compile the constituency/stakeholder group comments and submit to the Board.6.1 Update on Rec6 CWG (Margie Milam) 6.2 Discussion and feedback from Stakeholder Groups and constituencies6.3 Confirmation of compilation of constituency/stakeholder group comments and submission to the Board (Margie Milam)Item 7: Operations Steering Committee (OSC) and Policy Process Steering Committee (PPSC) and new Standing Committee (20 Minutes)Refer to motion passed in Cartagena meeting (Motion 6 Motion to extend the Policy Process Steering Committee (PPSC) and the Operations Steering Committee (OSC)charters). http://gnso.icann.org/resolutions#201012 Especially resolve clauses. RESOLVED, The Council extends the terms of the Operations Steering Committee and the Policy Process Steering Committee and their respective work teams as necessary through the ICANN public meeting in June 2011. RESOLVED, the Council acknowledges and thanks the OSC, the PPSC and the five community work teams for their hard work; and directs each steering committee and applicable work team chair to identify for the Council any remaining targets and benchmarks for their respective work by no later than 19 January 2011, including expected deadlines for final delivery. RESOLVED FURTHER, a drafting team shall be established no later than 19 January 2011, to draft a charter for a Standing Committee to track and coordinate implementation of those OSC, PPSC and work team recommendations already approved by the Council and adopted, as recommended by the Communications and Coordination Work Team in its final report of 9 April 2010 7.1 Establish Drafting Team (DT) for new Standing Committee • Volunteers? Avri Doria (NCSG) Mary Wong (NCSG) Wolf-Ulrich Knoben (ISPCP) Others? • DT Chair? 7.2 Update on OSC work – Philip Sheppard, OSC Chair 7.3 Update on PPSC work – Jeff Neuman, PPSC Chair 7.4 Discussion 7.5 Next steps? 7.6 Updating OSC Recommendation for Proxies in the GNSO Operating Procedures • Bill Drake has volunteered to lead • Update • Next steps Item 8: Any Other Business (10 Minutes)8.1 Update from Staff on goals, expected outcomes and organization of GAC/Board February meeting in Brussels (Staff). 8.2 Status of San Francisco planning (Olga Cavalli). 8.3 CSG vice chair election results (Olga Cavalli) Appendix 1: GNSO Council Voting Thresholds (ICANN Bylaws, Article X, Section 3)9. Except as otherwise specified in these Bylaws, Annex A hereto, or the GNSO Operating Procedures, the default threshold to pass a GNSO Council motion or other voting action requires a simple majority vote of each House. The voting thresholds described below shall apply to the following GNSO actions: 1. Create an Issues Report: requires an affirmative vote of more than 25% vote of each House or majority of one House; 2. Initiate a Policy Development Process (“PDP”) Within Scope (as described in Annex A): requires an affirmative vote of more than 33% of each House or more than 66% of one House; 3. Initiate a PDP Not Within Scope: requires an affirmative vote of more than 75% of one House and a majority of the other House (“GNSO Supermajority”); 4. Approve a PDP Recommendation Without a GNSO Supermajority: requires an affirmative vote of a majority of each House and further requires that one GNSO Council member representative of at least 3 of the 4 Stakeholder Groups supports the Recommendation; 5. Approve a PDP Recommendation With a GNSO Supermajority: requires an affirmative vote of a GNSO Supermajority; and 6. Approve a PDP Recommendation Imposing New Obligations on Certain Contracting Parties: where an ICANN contract provision specifies that “a two-thirds vote of the council” demonstrates the presence of a consensus, the GNSO Supermajority vote threshold will have to be met or exceeded with respect to any contracting party affected by such contract provision.Appendix 2: Absentee Voting Procedures (Council Operating Procedures 4.4)Members that are absent from a meeting at the time of a vote on the following items may vote by absentee ballot: 1. Initiate a policy development process; 2. Forward a policy recommendation to the Board; 3. Recommend amendments to the ICANN Bylaws; 4. Fill a position open for election.The GNSO Secretariat will provide reasonable means for transmitting and authenticating absentee ballots, which could include voting by telephone, e- mail, or web-based interface. Absentee ballots must be submitted within 72 hours following the start of the meeting in which a vote is initiated, except that, in exceptional circumstances announced at the time of the vote, the Chair may reduce this time to 24 hours or extend the time to 7 days. There must be a quorum for the meeting in which the vote is initiated. ---------------------------------------------------------------------------- Local time between October and March, Winter in the NORTHERN hemisphere ---------------------------------------------------------------------------- Reference (Coordinated Universal Time) UTC 11:00 ---------------------------------------------------------------------------- California, USA (PDT) UTC-8+0DST 03:00 Cedar Rapids, USA (CDT) UTC-6+0DST 05:00 New York/Washington DC, USA (EDT) UTC-5+0DST 06:00 Buenos Aires, Argentina UTC-3+0DST 08:00 Rio de Janeiro/Sao Paulo Brazil UTC-2+1DST 09:00 London, United Kingdom (BST) UTC+0DST 11:00 Darmstadt, Germany (CET) UTC+1+0DST 12:00 Paris, France (CET) UTC+1+0DST 12:00 Karachi, Pakistan UTC+5+0DST 16:00 Beijing, China UTC+8+0DST 19:00 Tokyo, Japan UTC+9+0DST 20:00 Melbourne,/Sydney Australia (EDT) UTC+10+1DST 22:00 ---------------------------------------------------------------------------- The DST starts/ends on last Sunday of March 2011, 2:00 or 3:00 local time (with exceptions) ---------------------------------------------------------------------- For other places see http://www.timeanddate.com Glen de Saint GéryGNSO Secretariatgnso.secretariat@gnso.icann.orghttp://gnso.icann.org

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