All of my clients, and my law firm, have business interests much broader than the domain industry. Who are these people expressing grave concerns? Because I am only hearing competitors to so-called closed generic TLD applicants expressing concerns (including indirectly through their ICANN-connected government reps), with no evidence or any real specifics as to the parade of horribles they seem to envision. And certainly no counter-argument to the points I am raising. Do you or anyone else
have any substantive response to any of those points? Mike Rodenbaugh RODENBAUGH LAW Tel/Fax: +1.415.738.8087 http://rodenbaugh.com From: jscottevans@yahoo.com [mailto:jscottevans@yahoo.com]
Sent: Thursday, May 23, 2013 1:10 PM
To: icann@rodenbaugh.com; lhc@yahoo-inc.com; svg@stephanevangelder.com; sarah.b.deutsch@verizon.com
Cc: Elisa.Cooper@markmonitor.com; sdelbianco@netchoice.org; bc-gnso@icann.org
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs Mike:
We appreciate your pov. However, there are many of us in this constituency that have business interests broader than the domain
industry. In my discussions with these non-ICANNers, they have voiced grave concerns and want assurances similar to those put forward by Sarah and Laura in the latest draft. Do others gave perspective here?
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We went through exercise of trying to define categories like this, in 2006. Then in the Vertical Integration WG. Then again recently in the IPC. It can’t be done, as far as I know. The GAC didn’t bother to provide a definition either. Making any response problematic as we don’t really know what we are responding to. I'm totally open to considering other definitions/terminology for "closed generics" if you have ideas to propose. As to the separate issue of responding to the GAC's advice, participants on the call the other day seemed interested in including – or at least considering - language on closed generics rather than being silent. It seems clear – and understandable - what your point of view is. Anybody else? VP, Intellectual Property Policy It seems that every dictionary word is a ‘pre-existing trademark’ at least insofar as it is registered as such somewhere (e.g. Benelux, in advance of the EU land rush). My examples are all registered at the USPTO. Any of those registrations could be purchased or even be
previously registered by any so-called ‘closed generic’ TLD applicant. Why is it legitimate for Apple to operate .apple to the exclusion of everyone else in the world that may have a legitimate use for a .apple domain name? (Maybe better examples are other new TLD applicants Abbott, Active, AFamilyCompany, Amazon, AmericanFamily… and the list goes on past Apple….) Yet it would not be legitimate for Weather.com to operate .weather that way? Sticking with the definition piece first, doesn't second bullet cover your question? Pre-existing trademark? VP, Intellectual Property Policy Then what about all the trademarks that exist for 'generic words'. Not just Apple, but also Sex, Drugs and even Rock 'n Roll (all registered at the USPTO)? Beyond that, what about the broader notion that closed generic business models are more in the public interest than open copycat business models? The BC is on record with the position that restricted registries are preferred over open registries, because abuse and consumer harm are far less likely. I don’t know of any official definition of a closed generic TLD, but perhaps a starting place would be to say that it is a TLD that: - Consists of a generic term/phrase which
- Is not intended to represent a pre-existing trademark, and
- The registry operator does not intend to sell/grant/give second level domains to the (general?) public
VP, Intellectual Property Policy Thanks Sarah, J. Scott and Laura for this work. I am wondering if there is a clear definition of what constitutes a closed generic TLD somewhere? Failing that, what is to stop the criteria suggested in this text being imposed on, say, a brand that has a term resembling a generic term as its brand name and that would understandably like to operate it for its own exclusive use? Stéphane Van Gelder
Chairman and Managing Director/Fondateur
STEPHANE VAN GELDER CONSULTING
T (UK): +44 (0)7583 457053 T (FR): +33 (0)6 20 40 55 89
To follow up on our BC call this morning, we discussed why the existing draft asking ICANN to develop a non-specific public policy exemption in the Registry Code of Conduct for closed
generics was not a good idea. Steve had encouraged me, J. Scott Evans and Laura Covington from Yahoo to put pen to paper and propose specific ideas (building on the Australia’s earlier GAC recommendations on closed generics) rather than for the BC to remain silent on this issue.
Our proposed language is attached for Members’ consideration.
Sarah B. Deutsch
Vice President & Deputy General Counsel
Verizon Communications
Phone: 703-351-3044
Fax:
703-351-3670
Thank you so much for all of your work on this. Please find attached my edits to Sarah’s draft. Director of Product Marketing ICANN Business Constituency
Thanks for your work on this draft. My comments are attached. One big issue I would flag for members is the paragraph dealing with closed generics. Various BC members have grave concerns about certain closed generics and formal objections have been filed. The focus on applying for an exemption in the Final Guidebook does not fix these fundamental concerns for the reasons outlined in the attached.
I’d suggest that the BC either (a) refrain from taking a position on the closed generic issue altogether or (b) support the GAC’s concerns about closed generics and the need to show that an award of an exclusive right in a generic term is in the larger public interest. ICANN’s new gTLD Board Committee has requested public comment on how it should address GAC advice to establish safeguards for categories of new gTLDs. (link) The BC has have held 3 conference calls on this topic (see minutes and transcripts on the BC Wiki). Several BC members provided input, including text from Ron Andruff, Marilyn Cade, and Andrew Mack. Comment period closes 4-Jun. That allows our regular 14-day review and approval period. So, please REPLY ALL with your suggested edits and comments regarding this draft, before 29-May-2013. Vice chair for policy coordination <BC Comment on GAC Advice for new gTLDs DRAFT v1sd2 (2).docx>
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