Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs
I do not advise or represent any client who is an applicant. Your discussion was informative, and helpful as a not conflicted discussion base. M Sent via BlackBerry by AT&T -----Original Message----- From: Phil Corwin <psc@vlaw-dc.com> Date: Thu, 23 May 2013 21:53:48 To: <marilynscade@hotmail.com>; <jscottevans@yahoo.com>; <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 The entity I represent on the BC (ICA) does not have a position on closed generics, so the following views are strictly personal and are provided for the purpose of contributing to this discussion -- If new gTLDs are indeed powerful new means to facilitate consumer search and to provide businesses and other potential registrants with more relevant and authoritative DNS addresses, then it is my belief that allowing a registry operator to be the exclusive registrant in a string in which it holds no trademark rights is inherently at odds with the competition and innovation goals that justified this vast expansion and reordering of the DNS. A closed generic registry is a monopoly, which is not innovative and is inherently anti-competitive. The history of the Internet is that innovation is developed at the edges, not by intermediaries, and a string that consists of a powerful dictionary word is far more likely to produce both innovation and competition if it is populated by tens of thousands of registrants rather than by just one -- especially since a primary motivation of the applicant may be to deny the availability of second level domains in the new string to its competitors. For those reasons -- as well as because I believe that the Code of Conduct in the RA already requires a closed generic to seek an exemption from ICANN based on the criteria that granting the exemption will not harm the public interest -- I believe the BC should support the GAC position that a public interest standard be developed for strings in which the applicant proposes to be the sole registrant. (While I am personally up in the air whether closed registration should be allowed for a string that is a dictionary word as well as a trademark of the applicant, a public interest standard might accommodate such a situation as protecting the trademark right at the top level of the DNS.) I am not just concerned about the first round. ICANN is a unique private sector organization imbued with a public trust. I believe that if ICANN permits non-trademark generic strings to go forward in the first round we will inevitably see a rush by applicants in the second round to secure dictionary word strings for their own permanent exclusive use and to deny such use to competitors. I think that would be an unseemly development and one that is detrimental to ICANN's reputation and long-term independence, and to the interests of those who favor ICANN's multi-stakeholder model (imperfect as it is) over potential replacements for DNS management. I hope that input is helpful. Regards, 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 -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, May 23, 2013 5:24 PM To: J. Scott Evans ; Mike Rodenbaugh ; lhc@yahoo-inc.com ; Stéphane Van Gelder ; Sarah Deutsch Cc: P0 Elisa Cooper ; sdelbianco@netchoice.org ; Bc GNSO list Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs I certainly have concerns about closed generics, and do think there are issues of consumer confusion - .cloud was a big concern of mine. .mobile is an example of another concern, if it were closed. .Hospital .Bank .Search I can list many that raise questions to my mind. I know some think that because .car.com might be registered by an auto manufacturer, that is equivalent to a GTLD. Not the case in my mind. Otherwise, why even bother w gTLDs? Recently I did a webinar with businesses in Africa. They were highly skeptical about fairness in closed generics operated by an industry player and excluding competitors. I also spoke to a number of governments this week. Sent via BlackBerry by AT&T -----Original Message----- From: jscottevans@yahoo.com Date: Thu, 23 May 2013 20:46:32 To: <icann@rodenbaugh.com>; <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: My new CMO, some marketers I know through my husband and some INTA members. I was bit surprised by their negative reactions. That said, most people could live with them with the appropriate safeguards in place. I think the language proposed by Sarah and Laura strikes the correct balance here. Sent from Yahoo! Mail for iPhone ---------------- From: icann@rodenbaugh.com <icann@rodenbaugh.com>; To: <jscottevans@yahoo.com>; <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 Sent: Thu, May 23, 2013 8:20:35 PM 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] 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] 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> <http://www.stephanevangelder.com/> ---------------- Follow us on Twitter: @stephvg and "like" us on Facebook: www.facebook.com/DomainConsultant <http://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> 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] 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] 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] 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>
I've stated multiple times that I am conflicted on this topic and that I will recuse myself from this discussion. Best, Elisa Sent from my iPhone On May 23, 2013, at 6:25 PM, "Marilyn Cade " <marilynscade@hotmail.com> wrote:
I do not advise or represent any client who is an applicant.
Your discussion was informative, and helpful as a not conflicted discussion base.
M
Sent via BlackBerry by AT&T
-----Original Message----- From: Phil Corwin <psc@vlaw-dc.com> Date: Thu, 23 May 2013 21:53:48 To: <marilynscade@hotmail.com>; <jscottevans@yahoo.com>; <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
The entity I represent on the BC (ICA) does not have a position on closed generics, so the following views are strictly personal and are provided for the purpose of contributing to this discussion --
If new gTLDs are indeed powerful new means to facilitate consumer search and to provide businesses and other potential registrants with more relevant and authoritative DNS addresses, then it is my belief that allowing a registry operator to be the exclusive registrant in a string in which it holds no trademark rights is inherently at odds with the competition and innovation goals that justified this vast expansion and reordering of the DNS. A closed generic registry is a monopoly, which is not innovative and is inherently anti-competitive. The history of the Internet is that innovation is developed at the edges, not by intermediaries, and a string that consists of a powerful dictionary word is far more likely to produce both innovation and competition if it is populated by tens of thousands of registrants rather than by just one -- especially since a primary motivation of the applicant may be to deny the availability of second level domains in the new string to its competitors.
For those reasons -- as well as because I believe that the Code of Conduct in the RA already requires a closed generic to seek an exemption from ICANN based on the criteria that granting the exemption will not harm the public interest -- I believe the BC should support the GAC position that a public interest standard be developed for strings in which the applicant proposes to be the sole registrant. (While I am personally up in the air whether closed registration should be allowed for a string that is a dictionary word as well as a trademark of the applicant, a public interest standard might accommodate such a situation as protecting the trademark right at the top level of the DNS.)
I am not just concerned about the first round. ICANN is a unique private sector organization imbued with a public trust. I believe that if ICANN permits non-trademark generic strings to go forward in the first round we will inevitably see a rush by applicants in the second round to secure dictionary word strings for their own permanent exclusive use and to deny such use to competitors. I think that would be an unseemly development and one that is detrimental to ICANN's reputation and long-term independence, and to the interests of those who favor ICANN's multi-stakeholder model (imperfect as it is) over potential replacements for DNS management.
I hope that input is helpful.
Regards, 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
-----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, May 23, 2013 5:24 PM To: J. Scott Evans ; Mike Rodenbaugh ; lhc@yahoo-inc.com ; Stéphane Van Gelder ; Sarah Deutsch Cc: P0 Elisa Cooper ; sdelbianco@netchoice.org ; Bc GNSO list Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs
I certainly have concerns about closed generics, and do think there are issues of consumer confusion - .cloud was a big concern of mine. .mobile is an example of another concern, if it were closed.
.Hospital .Bank .Search I can list many that raise questions to my mind.
I know some think that because .car.com might be registered by an auto manufacturer, that is equivalent to a GTLD. Not the case in my mind.
Otherwise, why even bother w gTLDs?
Recently I did a webinar with businesses in Africa. They were highly skeptical about fairness in closed generics operated by an industry player and excluding competitors. I also spoke to a number of governments this week.
Sent via BlackBerry by AT&T
-----Original Message----- From: jscottevans@yahoo.com Date: Thu, 23 May 2013 20:46:32 To: <icann@rodenbaugh.com>; <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:
My new CMO, some marketers I know through my husband and some INTA members. I was bit surprised by their negative reactions. That said, most people could live with them with the appropriate safeguards in place. I think the language proposed by Sarah and Laura strikes the correct balance here.
Sent from Yahoo! Mail for iPhone
---------------- From: icann@rodenbaugh.com <icann@rodenbaugh.com>; To: <jscottevans@yahoo.com>; <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 Sent: Thu, May 23, 2013 8:20:35 PM
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] 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] 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
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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] 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] 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] 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>
participants (2)
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Elisa Cooper -
Marilyn Cade