Thanks, Sarah, Berry, Mike, for your posting on this topic. We have had enough back and forth to indicate to me that it is going to be helpful to have an organized discussion on this topic. so, I am making a proposal below asking Steve to give thought to how to organize an informed discussion. I recall that we did have parts of this discussion within the BC earlier, but not in detail. we heard a few opinions, and a few comments not in agreement, but didn't have an actual discussion. We also did have a group of individual BC members who did work on the VI Working Group as individual participants. Some of their views, as individuals have been shared then back on the list. The VI Working Group was not specifically about this topic, although its purpose had, and has implications for the concerns of a brand holder who decides to operate as a TLD, or other kinds of registries, such as community, etc. It could be that a useful 'terminology' is single user, but that even in itself isn't really fully descriptive. It also could be that many parties would strongly oppose giving special rights to a TLD, just because it is a TLD [but not a brand]. In other words, it is complicated. And there are clearly different views. Let's do this. We have a Members call on Monday, but I don't want to spend that time debating specific topics, but instead to have a focus on the proposed agenda that I've circulated. I will add a topic: how to address Members views on treatment of brands as gTLDs and other approaches: Single-Registrant TLDs. So, NOT to debate, but to discuss how to address and flesh out this discussion, time frame, process, etc. Steve, can you give some thought to whether you would propose an informational discussion/via conf. call/ submission of written proposals for discussion; something else, or nothing until we see what happens in Brussels? If you would be able to propose a process first to the ExComm for consideration, considering the timing of other decisional aspects related to the DAG, then we can hear from you on Monday on the BC Members call on what options you see feasible for continuing an informed discussion. Marilyn Cade Chair From: icann@rodenbaugh.com To: bc-gnso@icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Date: Fri, 28 Jan 2011 12:42:55 -0800 Sarah, are you saying that we should try to define a “dot-Brand” TLD which should have different rights than anyone else? Putting aside for a moment the issue of whether and how to do that, do you think there is any realistic chance of getting any sort of implementation like that at this point? Could our efforts be better spent on proposals around “Single-Registrant” TLDs, which will include dotBrands but are not nearly as objectionable because there is no argument about what is a ‘brand’? What is the downside to trademark owners from that approach? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Berry Cobb Sent: Friday, January 28, 2011 12:00 PM To: bc-gnso@icann.org Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs Sarah, Thank you for your contribution. In the context of your explanation below, how do you view the following TLDs that have registered marks with the USPTO? .am .biz .coop .fm .la .name .org .tel .travel .us Berry Cobb Infinity Portals LLC berrycobb@infinityportals.com http://infinityportals.com 720.839.5735 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: Friday, January 28, 2011 11:26 AM To: 'icann@rodenbaugh.com'; bc-gnso@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@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, January 28, 2011 12:27 PM To: bc-gnso@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 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of jarkko.ruuska@nokia.com Sent: Friday, January 28, 2011 5:30 AM To: berrycobb@infinityportals.com; bc-gnso@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@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@infinityportals.com http://infinityportals.com 720.839.5735 From: owner-bc-gnso@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 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 post. If you would like to participate, please submit your name to TDG-Legal@ICANN.org, and we will provide you with information for the call.