Andy and all, In terms of the relevance to the discussion on this string, this may be less relevant, but nonetheless important. One needs to make the distinction that no one 'owns' or will own a top level domain. ICANN grants a 'license' to manage a domain space to a manager (which can be replaced). Registrants have virtually no rights to a domain name if they do not pay the annual 'subscription'. Registries effectively lease a domain name, with few rights or protections. The last thing they do is 'own' their domain name.  Registrars have put a lock on that space. I bring this point forward because many applicants are incorrectly defining the circumstances and the facts may benefit those new to ICANN and the BC. Kind regards, RA Ron Andruff www.lifedotsport.com  -------- Original message -------- From: Andy Abrams <abrams@google.com> Date: 05/23/2013 18:59 (GMT-05:00) To: Phil Corwin <psc@vlaw-dc.com> Cc: Mike Rodenbaugh <mike@rodenbaugh.com>,jscottevans@yahoo.com,icann@rodenbaugh.com,Laura Covington <lhc@yahoo-inc.com>,svg@stephanevangelder.com,sarah.b.deutsch@verizon.com,Elisa Cooper <Elisa.Cooper@markmonitor.com>,Steve Delbianco <sdelbianco@netchoice.org>,bc - GNSO list <bc-gnso@icann.org> Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs Phil - good point.  We will not operate as closed any strings that appear on the GAC Communique list of exclusive registrations.  If we get them, we still plan to operate as closed or offering pointing strings such as .tube, .play, .plus, .nexus and .chrome.  This goes precisely to Mike's earlier point about what constitutes a "closed generic."  I agree that brands should be exempted from this discussion, but who decides what is a "legitimate" brand?  We've personally seen a lot of overreaching from applicants claiming to own trademark rights (and thus the sole right to own the string) in generic terms such as music, mail and home. Andy On Thu, May 23, 2013 at 2:33 PM, Phil Corwin <psc@vlaw-dc.com> wrote:

  Andy:****

** **

Point of information – when you state “ For disclosure purposes, we no longer have strings that are the subject of GAC advice on exclusive generics” are you saying that Google (via Charleston Road) no longer proposes to be the exclusive registrant in any of the strings it has applied for, or just that it no longer has such plans for strings that appear on the non-exhaustive  list of exclusive registration strings included within the GAC Beijing Communique?****

** **

Thanks in advance.****

** **

(Full disclosure: I formerly did some work on behalf of a client that is in contention with Charleston Road on one string, but that relationship no longer exists.)****

** **

Best, Philip****

** **

*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*****

** **

*From:* owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] *On Behalf Of *Andy Abrams *Sent:* Thursday, May 23, 2013 4:35 PM *To:* Mike Rodenbaugh *Cc:* jscottevans@yahoo.com; icann@rodenbaugh.com; Laura Covington; svg@stephanevangelder.com; sarah.b.deutsch@verizon.com; Elisa Cooper; Steve Delbianco; bc - GNSO list

*Subject:* Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs****

** **

Dear All,****

** **

Thanks to all who have worked on these comments.  For disclosure purposes, we no longer have strings that are the subject of GAC advice on exclusive generics, but we still believe in the principle that such registries are not inherently problematic and can improve the gTLD program by allowing for innovative business models.  ****

** **

My vote would be to go back to Steve's original language, which strikes a balance between the BC's existing non-position on this issue and respecting the GAC's advice by asking the Board to consider the meaning of "public interest."  However, if enough members feel strongly about giving some substantive guidance to the Board on this interpretation (and some clearly do), I would not be opposed to adding our varied viewpoints in the document.  I appreciate that Sarah, J.Scott and Laura have already given their written input, and would be interested in others' opinions on the specific conditions where exclusive generics should be allowed.  For our part, we respectfully believe that the GAC envisions at least some subset of exclusive generics being permitted, as otherwise, requiring a registry to open up to all competitors in the industry would no longer render the registry "exclusive."   ****

** **

Best,****

** **

Andy****

** **

On Thu, May 23, 2013 at 1:20 PM, <icann@rodenbaugh.com> wrote:****

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?

Sent from Yahoo! Mail for iPhone****

  ****    ------------------------------

*From: *icann@rodenbaugh.com <icann@rodenbaugh.com>; *To: *'Laura Covington' <lhc@yahoo-inc.com>; <svg@stephanevangelder.com>; 'Deutsch, Sarah B' <sarah.b.deutsch@verizon.com>; *Cc: *'Elisa Cooper' <Elisa.Cooper@markmonitor.com>; 'Steve DelBianco' < 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 *Sent: *Thu, May 23, 2013 7:21:46 PM ****

  ****

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.****

  ****

Mike Rodenbaugh****

RODENBAUGH LAW****

Tel/Fax: +1.415.738.8087****

http://rodenbaugh.com****

  ****

*From:* Laura Covington [mailto:lhc@yahoo-inc.com <lhc@yahoo-inc.com>] *Sent:* Thursday, May 23, 2013 12:05 PM *To:* mike@rodenbaugh.com; 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****

  ****

Hey, Mike, ****

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? ****

  ****

Laura****

  ****

  ****

Laura Covington****

VP, Intellectual Property Policy****

Yahoo! Inc.****

lhc@yahoo-inc.com****

408.349.5187****

  ****

*From: *"icann@rodenbaugh.com" <icann@rodenbaugh.com> *Organization: *Rodenbaugh Law *Reply-To: *"mike@rodenbaugh.com" <mike@rodenbaugh.com> *Date: *Thursday, May 23, 2013 11:13 AM *To: *"Yahoo! Inc." <lhc@yahoo-inc.com>, "svg@stephanevangelder.com" < svg@stephanevangelder.com>, "'Deutsch, Sarah B'" < sarah.b.deutsch@verizon.com> *Cc: *'Elisa Cooper' <Elisa.Cooper@markmonitor.com>, 'Steve DelBianco' < sdelbianco@netchoice.org>, "bc-gnso@icann.org" <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 <lhc@yahoo-inc.com>] *Sent:* Thursday, May 23, 2013 10:54 AM *To:* Mike Rodenbaugh; 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****

  ****

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****

408.349.5187****

  ****

*From: *Mike Rodenbaugh <icann@rodenbaugh.com> *Reply-To: *Mike Rodenbaugh <icann@rodenbaugh.com> *Date: *Thursday, May 23, 2013 10:42 AM *To: *"Yahoo! Inc." <lhc@yahoo-inc.com>, "svg@stephanevangelder.com" < svg@stephanevangelder.com>, "Deutsch, Sarah B" < sarah.b.deutsch@verizon.com> *Cc: *Elisa Cooper <Elisa.Cooper@markmonitor.com>, Steve DelBianco < sdelbianco@netchoice.org>, "bc-gnso@icann.org" <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> *To:* "svg@stephanevangelder.com" <svg@stephanevangelder.com>; "Deutsch, Sarah B" <sarah.b.deutsch@verizon.com> *Cc:* Elisa Cooper <Elisa.Cooper@markmonitor.com>; Steve DelBianco < sdelbianco@netchoice.org>; "bc-gnso@icann.org" <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****

408.349.5187****

  ****

*From: *"svg@stephanevangelder.com" <svg@stephanevangelder.com> *Date: *Thursday, May 23, 2013 12:49 AM *To: *"Deutsch, Sarah B" <sarah.b.deutsch@verizon.com> *Cc: *Elisa Cooper <Elisa.Cooper@markmonitor.com>, Steve DelBianco < sdelbianco@netchoice.org>, "bc-gnso@icann.org" <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****

LinkedIn: fr.linkedin.com/in/domainconsultant/****

  ****

Le 22 mai 2013 à 22:58, "Deutsch, Sarah B" <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<owner-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 *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<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 *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<owner-bc-gnso@icann.org> ] *On Behalf Of *Steve DelBianco *Sent:* Wednesday, May 15, 2013 4:40 PM *To:* 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.htm> )****

  ****

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>****

   ****

  ****

        ****

****

** **

-- Andy Abrams | Trademark Counsel *G**o**o**g**l**e* | 1600 Amphitheatre Parkway, Mountain View, CA 94043*** *

(650) 669-8752 <https://www.google.com/voice#phones>****    ------------------------------

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