July 2013 - Bc-gnso - lists.icann.org

BC comment on singular plural
by Steve DelBianco Aug. 16, 2013

Aug. 16, 2013

Here's what we just told the Board at the Public Forum, on behalf of the BC ICANN’s String Similarity Panel was to place into contention sets any strings that create a possibility of user confusion. But in late February ICANN published contention sets that did NOT include 24 pairs of singular-plural forms of the same string (English and Spanish) Sport(s) Loan(s) Web(s) Game(s) Hotel(es) Risks of allowing both singular and plural TLDs for the same word are well understood. -confusion -precedent for the next round -ICANN looking pretty ridiculous What’s not understood is how it happened and what we can do about it. First response is to ask if the panelist follow GNSO Policy on confusingly similar. Second response is “Chong” ( Chinese for “Do-over” ) -Do-over on just these 24 pairs - WIPO Mediation Rules, Article 1 says, “Words used in the singular include the plural and vice versa, as the context may require.” Guess we could correct the Guidebook (plurals are confusingly similar) String Confusion Objections on 7 of these pairs are in the hands of the ICDR rightnow. If ICSR does the right thing and finds these pairs should be contention sets, The Board can apply this rule to ALL 24 pairs Failing that, there’s Formal Reconsideration. We all worry about threat from inter-governmental groups just waiting for ICANN to stumble. We have enough vulnerability to stumble with so many unknowns in the new gTLD launch. No need to add to our vulnerability with this self-inflicted wound

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FOR FINAL REVIEW: BC comments on proposed new gTLD Registry Agreement
by Steve DelBianco Aug. 5, 2013

Aug. 5, 2013

ICANN posted the final new gTLD Registry Agreement for public comment. (<http://www.icann.org/en/news/public-comment/proposed-raa-22apr13-en.htm>link<http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm>) On todays BC member call we discussed two minor edits to the BC comment draft. (attached) Note that this comment is based closely on BC's March comments on previous Registry Agreement (link<http://www.bizconst.org/Positions-Statements/BC%20Comment%20on%20new%20gTLD…>) Please do your final review by 8-Jun-2013 so that we can submit to ICANN by the deadline of 11-Jun. Any objections or edits should be sent as Reply to All. Thanks again to Elisa Cooper for work on this draft. -- Steve DelBianco Vice chair for policy coordination Business Constituency

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FW: New ICA Webpost
by Phil Corwin July 30, 2013

July 30, 2013

BC members may find my latest opinion piece of some interest - especially those based in the US, in regard to this question: How can the NTIA best serve US business interests over the long haul? Kudos and criticism are equally welcome... http://internetcommerce.org/NTIA_Balancing_Act NTIA Caught Between a Congressional Rock and a Hard Place GAC Submitted by Philip Corwin on Sun, 07/28/2013 - 19:03 On July 18th the Senate Appropriations Committee issued Report 113-78 on S. 1329, the "DEPARTMENTS OF COMMERCE AND JUSTICE, AND SCIENCE, AND RELATED AGENCIES APPROPRIATIONS BILL, 2014". The Report contains language that is harshly critical of the role played by the National Telecommunications and Information Agency (NTIA) within ICANN's Governmental Advisory Committee (GAC), and would require NTIA to report back within thirty days after enactment of this spending measure on ICANN's compliance with the Affirmation of Commitments and whether the new gTLD program is proceeding in a manner consistent with cybersecurity concerns. We have no idea which lobbyists may have whispered in the Committee's ear to shape this language, nor do we know whether these exact words will be in the final compromise bill agreed to between Senate and House appropriators. Nevertheless, the "power of the purse" is the ultimate Congressional chokehold on Executive Branch activity, and such expressions of dissatisfaction cannot be ignored by those at the other end of Pennsylvania Avenue. While we haven't agreed with every position taken by NTIA vis-à-vis ICANN and within the GAC, we are quite familiar with all the personnel involved and know that they take their work quite seriously and labor long and hard on behalf of the U.S. Their challenge, not reflected in the Report language, is that they have a difficult and sometimes near-impossible balancing act to perform. On one hand, as the Committee states, "NTIA...represents the interests of the Nation in protecting its companies, consumers, and intellectual property". On the other hand, heavy-handed U.S. influence upon ICANN and within the GAC would be grist for the mill of ICANN critics, who are always primed to allege that beneath its multi-stakeholder façade it remains subject to undue U.S. influence and ultimate control. Therefore, defanging such charges and preserving ICANN's multi-stakeholder model, which allows meaningful participation by business and civil society, is in the long-term U.S. interest - but doing so sometimes requires the U.S. to take a low profile and pull its punches. The main charge against NTIA comes in this sentence of the Report: "The Committee is concerned that the Department of Commerce, through NTIA, has not been a strong advocate for U.S. companies and consumers and urges greater participation and advocacy within the GAC and any other mechanisms within ICANN in which NTIA is a participant." Frankly, that deviates from our observations, and fails to consider the NTIA's perpetual balancing act. Let's look at the NTIA's most significant decision in recent days - the issuance of the "U.S. STATEMENT ON GEOGRAPHIC NAMES IN ADVANCE OF ICANN DURBAN MEETING"[1]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx> that "the United States is willing in Durban to abstain and remain neutral on .shenzen (IDN in Chinese), .persiangulf, .guangzhou (IDN in Chinese), .amazon (and IDNs in Japanese and Chinese), .patagonia, .yun, and .thai, thereby allowing the GAC to present consensus objections on these strings to the Board, if no other government objects... the choice made in this discrete case does not prejudice future United States positions within the ICANN model or beyond." (Emphasis added) As for compliance with the Affirmation of Commitments, the NTIA statement characterizes that as something to be considered down the road and not at this moment, saying that the new gTLD program rules and related issues should "be considered in the review of the new gTLD program as mandated by the Affirmation of Commitments." What NTIA did in the above instance was to step back and let two U.S. corporations - Patagonia and Amazon - become subject to GAC consensus objections against their applications for company name gTLDs that elicited sharp pushback from Latin American nations. Soon after the statement was released Patagonia, reading the writing on the wall, withdrew its application. Amazon's is still pending and, while ICANN's Board is not bound to accept all GAC consensus objections, there is a strong presumption toward doing so - and significant potential political repercussions for refusing. That action came with some significant backdrop. At the prior April 2013 ICANN meeting in Beijing the U.S. stood fast against GAC consensus objections to .Patagonia and .Amazon, reportedly straining relationships and even impairing the U.S. ability to be effective on other GAC matters. Further, the State Department reportedly weighed in prior to the Durban meeting and urged the NTIA team to take a less confrontational profile within the GAC due to considerable foreign angst over the revelation of the NSA's metadata-gathering Prism program, and its even more pervasive and intrusive collection and analysis of Internet traffic involving foreign businesses and nationals. Let's face it, any U.S.-connected Internet enterprise, whether it's a private cloud service or ICANN, faces intense global scrutiny at this moment. IP interests were apoplectic in Durban, correctly noting that there was no precedent in trademark law for geographic indicators to trump a valid trademark (on the other hand, they failed to note that while .brand gTLDs may trigger legal evolution, up to now top level domains have been held uniformly by courts and trademark authorities to possess no trademark rights because a TLD like .com or .uk cannot serve as a source identifier). There's some irony in that angst, as those same IP interests had no past hesitation in lobbying GAC members to advocate changes in the new gTLD program's rights protection measures (RPMs) that were detrimental to registrant due process rights and appeared to some observers to expand trademark law beyond the bounds of existing statutes and case law. Some even came to ICANN meetings sporting t-shirts with "Mind the GAC" slogans emblazoned across the chest. Now they want ICANN to do anything but mind the GAC -- but all were well aware that the Applicant Guidebook provided that the GAC could object to any proposed "string" for any reason. Should the U.S. operate within the GAC in an inflexible manner, dogmatically asserting on behalf of all domestic interests at all times without weighing relative importance, it risks losing the ability to sway the GAC on the higher priority issues - and also risks feeding the impression that ICANN is still unduly dominated by the U.S. But formal U.S. oversight was ended in 2009, and the ultimate remaining U.S. authority over ICANN decisions - the ability to block or delete TLDs from the authoritative root server via the IANA contract - is a politically fraught "nuclear option" with little likelihood of being exercised. Let's take what just happened - if the U.S. representative on the GAC had literally adopted the Report's admonition to be "a strong advocate for U.S. companies" it would have maintained its opposition to the GAC advice against .Patagonia and .Amazon. The GAC would likely have still issued a strong (but not consensus) recommendation against them that ICANN would have to seriously evaluate, and the rift within the GAC would have been raw and public. But there are multiple other major GAC issues awaiting final resolution that have serious implications for U.S. companies and consumers, including the enhanced safeguard advice for sensitive strings and regulated industries and professions. As well as the view that "closed generic" gTLDs should be generally rejected unless surmounting a high and yet-to-be-determined public interest standard. Whatever the ultimate U.S. position on these matters, its ability to sway others within the GAC has likely been enhanced by its retreat on the two geography-linked names that caused such angst among South American GAC participants. Indeed, the GAC's current positions and their ultimate resolution will determine the operation of ICANN's multistakeholder model well into the future, addressing the reality that governments are the only stakeholders with the ability to promulgate and enforce laws against the other stakeholders. (And let's not forget that this is not a permanent setback for the two companies involved --Amazon can always submit an application for its stock symbol, .AMZN, in the second round of the gTLD program; privately held Patagonia will need to be more creative.) ICANN, while nominally a U.S. non-profit corporation, is now clearly evolving into an international enterprise that requires the support and involvement of multiple nations. Recent management decisions such as opening co-equal operational hubs in Singapore and Istanbul to supplement the Los Angeles headquarters just drive home the point. U.S. participation in ICANN will sometimes require compromise on some issues in order to preserve U.S. influence on others and protect the overall credibility of its multi-stakeholder model. While compromise is currently in short supply on Capitol Hill, Senators should still be familiar with the concept. Relevant excerpts from the Senate Report[2]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx> follow: Domestic and International Policies.-NTIA is the only executive agency with a core mission of ensuring that the Internet remains a platform for economic growth and consumer activity. The Committee supports the Administration's request to promote the development of a policy framework and international outreach that supports the U.S. marketplace, protects citizens, and maintains a free and open Internet. ICANN.-NTIA represents the United States on the Internet Corporation for Assigned Names and Numbers [ICANN] Governmental Advisory Committee [GAC], and represents the interests of the Nation in protecting its companies, consumers, and intellectual property as the Internet becomes an increasingly important component of commerce. The GAC is structured to provide advice to the ICANN Board on the public policy aspects of the broad range of issues pending before ICANN, and NTIA must be an active supporter for the interests of the Nation. The Committee is concerned that the Department of Commerce, through NTIA, has not been a strong advocate for U.S. companies and consumers and urges greater participation and advocacy within the GAC and any other mechanisms within ICANN in which NTIA is a participant. NTIA has a duty to ensure that decisions related to ICANN are made in the Nation's interest, are accountable and transparent, and preserve the security, stability, and resiliency of the Internet for consumers, business, and the U.S. Government. The Committee instructs the NTIA to assess and report to the Committee within 30 days on the adequacy of NTIA's and ICANN's compliance with the Affirmation of Commitments, and whether NTIA's assessment of ICANN will have in place the necessary security elements to protect stakeholders as ICANN moves forward with expanding the number of top level Internet domain names available. ________________________________ [1]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx>http://www.ntia.doc.gov/files/ntia/publications/usg_nextsteps_07052013_0.pdf [2]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx>http://www.gpo.gov/fdsys/pkg/CRPT-113srpt78/pdf/CRPT-113srpt78.pdf Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2013.0.3349 / Virus Database: 3209/6518 - Release Date: 07/24/13

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Questions for tomorrow's BC Candidate Call - Nominating Committee Elections
by Benedetta Rossi July 29, 2013

July 29, 2013

Dear BC Members and Candidates, Please find attached the questions submitted by BC members for tomorrow's BC Candidate call for the BC Nominating Committee elections taking place at 11 am EST (3 pm UTC). Thank you, Kind Regards, Benedetta Rossi BC Secretariat bc-secretariat(a)icann.org <https://community.icann.org/display/gnsobc/Home> https://community.icann.org/display/gnsobc/Home www.bizconst.org

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Minutes - BC Closed Meeting Durban July 15th, 2013
by Benedetta Rossi July 29, 2013

July 29, 2013

Dear BC Members, Please find attached the minutes from the BC Closed Meeting which took place in Durban on Monday, July 15th 2013. The transcript is also attached again for your convenience. The minutes and transcript can also be found on the BC wiki: https://community.icann.org/x/0YHbAQ Thank you, Kind Regards, Benedetta Rossi BC Secretariat bc-secretariat(a)icann.org <https://community.icann.org/display/gnsobc/Home> https://community.icann.org/display/gnsobc/Home www.bizconst.org

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Call for Volunteers: GNSO Policy & Implementation Working Group
by Benedetta Rossi July 29, 2013

July 29, 2013

> > > http://gnso.icann.org/en/announcements/announcement-18jul13-en.htm > > Call for Volunteers: GNSO Policy & Implementation Working Group > > In brief > The Generic Names Supporting Organization (GNSO) Council seeks volunteers to serve on a Working Team that has been tasked to address a number of issues that have been raised in the context of the recent discussions on policy & implementation that affect the GNSO. > > What This Working Group Will Do > The Working Group is tasked to provide the GNSO Council with a set of recommendations on: > > 1. A set of principles that would underpin any GNSO policy and implementation related discussions, taking into account existing GNSO Operating Procedures. > 2. A process for developing gTLD policy, perhaps in the form of “Policy Guidance”, including criteria for when it would be appropriate to use such a process (for developing policy other than “Consensus Policy”) instead of a GNSO Policy Development Process; > 3. A framework for implementation related discussions associated with GNSO Policy Recommendations; > 4. Criteria to be used to determine when an action should be addressed by a policy process and when it should be considered implementation, and; > 5. Further guidance on how GNSO Implementation Review Teams, as defined in the PDP Manual, are expected to function and operate. > > For further details on the charter, please see http://gnso.icann.org/en/drafts/policy-implementation-charter-04jul13-en.pdf. > > How This Working Group Will Work > ICANN Working Groups use transparent, open processes. The meetings of this WG will be recorded, and the recordings will be available to the public. The mailing list for the Working Group will be archived publicly. Working Group members are expected to submit Statements of Interest (SOI). The group will collaborate using a public workspace. The Working Group is expected to follow the GNSO Working Group Guidelines. > > How to Join > The GNSO Council invites all interested parties to put forward their names so they can be added to the WG mailing list. The WG will be open to anyone interested to join. Community members who wish to be invited to join the group should contact the GNSO secretariat (gnso.secretariat(a)icann.org) > > Background > Mainly as a result of discussions stemming from implementation related issues of the new gTLD program, there is increased focus on which topics call for policy and which call for implementation work, including which processes should be used, at what time and how diverging opinions should be acted upon. In order to facilitate these discussions, ICANN Staff developed a draft framework for community discussion that identifies a number of steps and criteria that might facilitate dealing with similar questions in the future. The paper identifies a number of questions that the community may want to consider further in this context, as well as a couple of suggested improvements that could be considered in the short term. While developing a bright-line rule as to what is policy or implementation may not be possible, the hope is that by developing clear processes and identifying clear roles and responsibilities for the different stakeholders, it will become easier to deal with these issues going forward and allow for broad participation and involvement. Following several discussions by the GNSO Council on this topic, the GNSO Council has now formed a Working Group which has been tasked to provide concrete recommendations on how to address some of these issues from a GNSO perspective. > > > > Glen de Saint Géry > GNSO Secretariat > gnso.secretariat(a)gnso.icann.org > http://gnso.icann.org >

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Reminder: questions for candidates due today
by Benedetta Rossi July 29, 2013

July 29, 2013

Dear BC Members, Please note that questions for candidates running for the BC Nominating Committee seats for 2014 are due today. Questions submitted by today will be aggregated and sent to the BC list and to the candidates prior to tomorrow's candidate call taking place at 11 am EST (3 pm UTC). These questions will be anonymously presented to candidates, and will take priority in the discussion with candidates. If there is remaining time, the Returning Officer may allow members to ask further questions directly on the call, time permitting. Thank you, Kind Regards, Benedetta Rossi BC Secretariat bc-secretariat(a)icann.org <https://community.icann.org/display/gnsobc/Home> https://community.icann.org/display/gnsobc/Home www.bizconst.org

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BC Nominating Committee Elections: Aggregated Candidate Statements
by Benedetta Rossi July 28, 2013

July 28, 2013

Dear BC Members, Please find attached the aggregated candidate statements for the four candidates nominated to stand in the currently open Nominating Committee election for the BC. I take this opportunity to remind members to submit questions for the candidates to bcvotes(a)hotmail.com to be discussed on the candidate call taking place on Tuesday, July 30th 2013 at 11 am EST (3 pm UTC). Thank you, Kind Regards, Benedetta Rossi BC Secretariat bc-secretariat(a)icann.org <https://community.icann.org/display/gnsobc/Home> https://community.icann.org/display/gnsobc/Home www.bizconst.org

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Minutes - BC Open Meeting in Durban, July 16th, 2013
by Benedetta Rossi July 25, 2013

July 25, 2013

Dear BC Members, Please find attached the minutes from the BC Open meeting which took place on Tuesday, July 16th, 2013 at 1:15 pm in Durban. I have also attached the updated and corrected transcript for your convenience. I will submit the minutes from the two BC closed meetings as soon as they are ready with their updated transcripts as well. Please note that minutes and transcripts are also available on the BC Wiki: https://community.icann.org/x/0YHbAQ Thank you, Kind Regards, Benedetta Rossi BC Secretariat bc-secretariat(a)icann.org <https://community.icann.org/display/gnsobc/Home> https://community.icann.org/display/gnsobc/Home www.bizconst.org

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Suggested Reading for all BC Members
by Phil Corwin July 23, 2013

July 23, 2013

http://www.bna.com/icann-legal-rights-b17179875369/?utm_content=bufferd19c5… [Fair Use excerpt to facilitate discussion of the LRO process as it is now playing out...] The biggest lesson so far has been that the Legal Rights Objection process is wholly ineffective for trademark owners seeking to knock down proposed domains containing generic strings. In many cases, companies owning marks for terms such as EXPRESS, HOME, VIP, LIMITED, MAIL, TUNES have lost LROs to domain applicants with no intellectual property rights in those terms whatsoever. Pinterest's failed challenge to Amazon's proposed .pin domain was particularly ominous for mark owners, because Amazon seems pretty clearly to be moving in on Pinterest's business. Proposed domains for dozens of generic terms (e.g., .academy, .blue, .cam, .coach, .direct, .food, .music, .now, .song) and many others all appear highly likely to emerge unscathed from the legal rights objections process. Law is a "never say never" profession but, seriously, the adverse results in the .express and .mail proceedings ought be be writing on the wall for the remaining trademark-based challengers to generic string domains... The reason for this dour outlook can be found in passages from two early LRO rulings: the first one, Right at Home v. Johnson Shareholdings Inc., No. LRO2013-0300 (WIPO, July 3, 2013); and the second, my favorite, Express LLC v. Sea Sunset LLC, No. LRO2013-0022 (WIPO, July 9, 2013). In Right at Home, panelist Robert A. Badgley offered the first interpretation of key terms in Section 3.5 of ICANN's New gTLD Applicant Guidebook<http://newgtlds.icann.org/en/applicants/agb>. The guidebook uses highly qualified language, directing LRO panelists to decide whether the proposed new domain "takes unfair advantage" of the trademark owner's rights, or "unjustifiably impairs" the value of the mark, or creates an "impermissible likelihood of confusion" between the mark and the proposed domain. In Badgley's view, this language creates a very high burden for trademark-based objections... The second opinion, Express LLC v. Sea Sunset LLC, was one of the better opinions (and I am including the federal court stuff that we wade through every day) I have read in a while. Panelist Frederick M. Abbott carefully summarized the arguments on each side (there are good lessons here for attorneys working on the next round of legal rights objections), and the law that he was required to apply to the dispute. When Abbott turned to the reasoning behind his decision to reject Express LCC's objection to the proposed .express top-level domain, I got that sense that this panelist was a teeny bit irked that ICANN itself had not made the hard policy choices that the LRO had just dropped in his lap. It's one thing to ask a panelist to transfer a domain name that might have cost the registrant $10 or so; and it's quite another to ask a panelist to upset an investment of at least a half-million dollars in a new top-level domain. All based on a trademark registration for a generic term, in a single market, issued by a single government entity. Abbott declined to do it. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

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