In the interests of transparency and to avoid any actual or perceived conflicts of interest, I'd ask everyone who has or will comment on this string to disclose whether you are applying for or representing applicants for closed generics and which closed generics you are advocating on behalf of. To address the assertion that closed generics are somehow necessarily better than open gTLDs, my position is that both have their risks and problems. We certainly don't like many of the open applications, which we believe will become havens for cybersquatting, fraud and abuse. But, as evidenced by the GAC language, Australia's specific red flags, and the many industry objections filed at ICANN and at the ICC, closed generics can carry their own risk of potential abuses. We wrote up what we think it means for responsible closed spaces to operate in the "public interest" and this included the following: 1) address antitrust and other anti-competition concerns; (2) minimize the risk of potential consumer confusion for users, who may not realize that the information, products or services promoted is provided via a closed or restricted registry; (3) appropriately and fairly define the class of potential second level domain name registrants; (4) prevent onerous and potentially anticompetitive registration fees; and (5) explore any necessary security and operational safeguards to minimize fraud, abuse and consumer complaints. Sarah From: Mike Rodenbaugh [mailto:mike@rodenbaugh.com] On Behalf Of icann@rodenbaugh.com Sent: Thursday, May 23, 2013 2:13 PM To: 'Laura Covington'; svg@stephanevangelder.com; Deutsch, Sarah B Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso@icann.org Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs 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? Mike Rodenbaugh RODENBAUGH LAW Tel/Fax: +1.415.738.8087 http://rodenbaugh.com From: Laura Covington [mailto:lhc@yahoo-inc.com] Sent: Thursday, May 23, 2013 10:54 AM To: Mike Rodenbaugh; svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>; Deutsch, Sarah B Cc: Elisa Cooper; Steve DelBianco; bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs Sticking with the definition piece first, doesn't second bullet cover your question? Pre-existing trademark? Laura Covington VP, Intellectual Property Policy Yahoo! Inc. lhc@yahoo-inc.com<mailto:lhc@yahoo-inc.com> 408.349.5187 From: Mike Rodenbaugh <icann@rodenbaugh.com<mailto:icann@rodenbaugh.com>> Reply-To: Mike Rodenbaugh <icann@rodenbaugh.com<mailto:icann@rodenbaugh.com>> Date: Thursday, May 23, 2013 10:42 AM To: "Yahoo! Inc." <lhc@yahoo-inc.com<mailto:lhc@yahoo-inc.com>>, "svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>" <svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>>, "Deutsch, Sarah B" <sarah.b.deutsch@verizon.com<mailto:sarah.b.deutsch@verizon.com>> Cc: Elisa Cooper <Elisa.Cooper@markmonitor.com<mailto:Elisa.Cooper@markmonitor.com>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, "bc-gnso@icann.org<mailto:bc-gnso@icann.org>" <bc-gnso@icann.org<mailto:bc-gnso@icann.org>> Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs Hi Laura, 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. Best, Mike ________________________________ From: Laura Covington <lhc@yahoo-inc.com<mailto:lhc@yahoo-inc.com>> To: "svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>" <svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>>; "Deutsch, Sarah B" <sarah.b.deutsch@verizon.com<mailto:sarah.b.deutsch@verizon.com>> Cc: Elisa Cooper <Elisa.Cooper@markmonitor.com<mailto:Elisa.Cooper@markmonitor.com>>; Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>; "bc-gnso@icann.org<mailto:bc-gnso@icann.org>" <bc-gnso@icann.org<mailto:bc-gnso@icann.org>> Sent: Thursday, May 23, 2013 10:23 AM Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs 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 Laura Covington VP, Intellectual Property Policy Yahoo! Inc. lhc@yahoo-inc.com<mailto:lhc@yahoo-inc.com> 408.349.5187 From: "svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>" <svg@stephanevangelder.com<mailto:svg@stephanevangelder.com>> Date: Thursday, May 23, 2013 12:49 AM To: "Deutsch, Sarah B" <sarah.b.deutsch@verizon.com<mailto:sarah.b.deutsch@verizon.com>> Cc: Elisa Cooper <Elisa.Cooper@markmonitor.com<mailto:Elisa.Cooper@markmonitor.com>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, "bc-gnso@icann.org<mailto:bc-gnso@icann.org>" <bc-gnso@icann.org<mailto:bc-gnso@icann.org>> Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs 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? Thanks, 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 Skype: SVANGELDER www.StephaneVanGelder.com<http://www.stephanevangelder.com/> ---------------- Follow us on Twitter: @stephvg and "like" us on Facebook: www.facebook.com/DomainConsultant<http://www.facebook.com/DomainConsultant> LinkedIn: fr.linkedin.com/in/domainconsultant/<http://fr.linkedin.com/in/domainconsultant/> Le 22 mai 2013 à 22:58, "Deutsch, Sarah B" <sarah.b.deutsch@verizon.com<mailto:sarah.b.deutsch@verizon.com>> a écrit : All, 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 Sarah B. Deutsch Vice President & Deputy General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org<mailto:bc-gnso@icann.org>] On Behalf Of Elisa Cooper Sent: Monday, May 20, 2013 3:34 PM To: Steve DelBianco Cc: bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs Steve, Thank you so much for all of your work on this. Please find attached my edits to Sarah's draft. As previously stated, I will recuse myself from comments related to Closed Generics. That said, I am concerned that the proposed comments in this draft may be at odds with our earlier position:http://www.bizconst.org/Positions-Statements/BC%20Comment%20on%20Closed%20Ge.... Thank you again. Best, Elisa Elisa Cooper Director of Product Marketing MarkMonitor Elisa Cooper Chair ICANN Business Constituency 208 389-5779 PH From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: Monday, May 20, 2013 12:29 PM To: Steve DelBianco; bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs Steve, All, 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. Sarah From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Wednesday, May 15, 2013 4:40 PM To: bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: [bc-gnso] FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs 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<http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en....>) The BC has have held 3 conference calls on this topic (see minutes and transcripts on the BC Wiki<https://community.icann.org/display/gnsobc/Home>). 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. Steve DelBianco Vice chair for policy coordination Business Constituency <BC Comment on GAC Advice for new gTLDs DRAFT v1sd2 (2).docx>