This. From: trachtenbergm@gtlaw.com <trachtenbergm@gtlaw.com> Sent: Thursday, August 29, 2019 3:42 PM To: phil@dotadvice.co.uk; Dorrain, Kristine <dorraink@amazon.com>; alexander@schubert.berlin Cc: gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Have you read any of the previous posts in this thread? Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Phil Buckingham Sent: Thursday, August 29, 2019 5:33 PM To: 'Dorrain, Kristine' <dorraink@amazon.com<mailto:dorraink@amazon.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Kristine, Separately, shouldn’t the WG be looking at recommending a policy change such that “closed brands” need to launch ( to be defined) within a set time post delegation, otherwise ICANN has a right to “undelegate”. Surely TLDs are about enhancing innovation, consumer choice , consumer trust and competition. How many 2012 TLDs have only one DUM , nic. Whatever. 200-300 ?? Why apply in the first place ? Regards, Phil From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Dorrain, Kristine via Gnso-newgtld-wg Sent: 29 August 2019 22:40 To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alexander, You are apparently proposing an entirely new definition for “closed” generic – one not even close to the one the Board suggested (I can’t recall how many emails back in this thread someone quoted it). Perhaps before you propose radical new policies, we should start with defining “closed generic.” I understand you’re eager for every new TLD to launch to meet the crushing registrant demand given the remarkable scarcity of domains in currently “open” TLDs, but I propose we agree on a definition first. Once we do that, we may be surprised to learn we’re closer than we think. Thanks, Kristine PS: Also, +1 Marc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 2:20 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, Thanks for being so open. I am suggesting a policy addition that will result in measures - e.g. changes in the future RA (registry agreement) – which enable ICANN to cancel a registry operator contract if an “open gTLD” has not been “launched” (made available for the public). Obviously such measure would likely only affect the future rounds. Reason for the suggested policy addition: An “open gTLD” is meant to enable prospective registrants to register domain names. By not making registrations available within a reasonable frame of time (X years – X needs to be defined) the gTLD is BY DEFINITION a “closed gTLD” – and not anymore “open”. Thus the applicant would have grossly mislead ICANN. ESPECIALLY if “closed generics” will remain unavailable an unlaunched generic gTLD would violate the AGB provisions. As a BARE MINIMUM such registry operator contract should NOT be extended. ICANN invites applicants to apply for gTLDs to enable registrant to register domain names; and to enable the Internet User to use these domains to navigate the Internet. Shutting a certain namespace down is the OPPOSITE (with the exception of Spec 13 designated gTLDs). Obviously most brand consultants will be opposing this suggestion. Are there supporters for my suggestion? Or is everyone OK that in the future for relatively small application fees anybody could for any reason “shut down” a complete namespace for decades on end? Thanks, Alexander From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Donnerstag, 29. August 2019 22:08 To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, That may have been your concern all along but that it is not the reality. I work with many brands, know almost all of the consultants, and participated in over 40 TLD applications and advised on many more and companies who were considering applying and I have never heard this. If anything, I think that while a few companies had plans to use a .brand TLD, the vast majority who applied for a TLD matching one of their trademarks did so out of fear that someone else would squat on the TLD or apply for it and block the company from using it or that the third party would use the TLD for fraudulent purposes, or that their competitors would have one and they wouldn’t. Maybe these aren’t the greatest reasons for applying for a TLD, but who are you to judge what is the right reason for applying for a TLD or what is in the best interest of the Internet Community? You still have not shown where this does not align with ICANN’s mission. As far as the new gTLD expansion spirit, again, you have your opinion and that is all that it is. I agree that one of the stated purposes of the program was to enhance innovation, competition, and consumer choice. I don’t think we have seen much innovation as just selling domain names in more TLDs does not seem very innovative to me but I guess arguably there is more competition and consumer choice although most of the good names were held back as premium names. Accordingly, it is just your opinion that applying for the operation of generic term gTLDs – then never offer registrations is very obviously the EXACT OPPOSITE: Such string does NOT “enhance innovation, competition and consumer choice.” Who knows – maybe just the fact that the TLD exists has some positive effect or that at some point, given enough time the RO will figure out a new and innovative way to use its TLD. Finally, as far as whether an RO gains “ownership” of a gTLD I think the answer is clearly no. But the RO has certain contractual rights in the TLD in the same way that the registrant of a domain name has certain contractual rights in the domain name and they can use the TLD or second level in any way they choose that is not illegal or violates the rights of a third party, including not using the TLD or second level at all. And they can renew the RA or second level as many times as they want. If you have your way and every possible word and string of characters can and must be a TLD, then ICANN will essentially be a TLD registrar and Registry Operators will be the equivalent of registrants supporting even more that they should be able to operate their TLDs or not and in the time frame that they want. They shouldn’t lose their rights in after some arbitrary amount of time if they haven’t figured out their business plan fully or are waiting on investment just because you are obsessed with being able to register domains in every conceivable TLD. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 10:14 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, It was my concern all along that the brand consultant cloud was “selling” the new gTLD program as “digital asset acquisition” program to brand managers: A “gTLD-sale” where the richest and quickest can snatch up as much land as they wish: and then it “belongs” to them till eternity – regardless whether or not they are using it. That’s obviously NOT in the interest of Internet Community – not aligning with ICANN’s mission and specifically NOT aligning with the new gTLD expansion spirit. ICANN said very clearly: “Via the introduction of new top-level domains (TLDs), the program aims to enhance innovation, competition and consumer choice.” Applying for the operation of generic term gTLDs – then never offer registrations is very obviously the EXACT OPPOSITE: Such string does NOT “enhance innovation, competition and consumer choice.”! Rather it prevents interested parties do so. Marc: Do you think a registrants gains “ownership” of a gTLD? They applied for the operation of the string – to ENABLE registrants to register domain names, so that these can be used by the Internet User to navigate the Internet. IF the applicant does his job well – he can get an extension of his contract after 10 years. If he fails (e.g. never offers any domains in the first place); then he OBVIOUSLY is in breach of the contract. If that isn’t the case with the current RAs (registry agreements) then we need to make sure that it is reflected in all FUTURE RAs! Outside of the “brand cloud”: Is there ANYBODY here that supports the notion that an operator of an “open gTLD” should (in the next round) be permitted to NOT make domain registrations available? For example: that it is “OK” when they do not offer domains 5 years after delegation (unless extreme circumstances prevent him from doing so – which would need to be signed off on by the community)? To me NOT making domains available means there is only 1 registrants (the registry operator entity) which matches the definition of “closed gTLD”. So if you are an “open gTLD” that’s a no-go! Thanks, Alexander From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Thursday, August 29, 2019 5:47 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, What is this “the mission of the new gTLD extension” that you are referring to? The new gTLD program was an initiative to ENABLE the expansion of the domain name space for interested parties – not to ensure the availability of every possible string of characters as a TLD. From ICANN as explained by the GNSO in the final Report: “The reasons for introducing new top-level domains include that there is demand from potential applicants for new top-level domains in both ASCII and IDN formats. In addition the introduction of new top-level domain application process has the potential to promote competition in the provision of registry services, to add to consumer choice, market differentiation and geographical and service-provider diversity.” There has never been a mission of ICANN to make sure that every possible string is available for use by any person on the planet for registering second level domains, although this appears to be your mission. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 5:43 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, In 2013 ICANN “defined” (rather the understanding of the community was) that: “…….a ‘closed generic’ TLD as a TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit.” The 2012 AGB did not provide for “closed generics” – the PDP never introduced such animal – hence the board denied applicants to operate a generic term based gTLD as “closed generic”. Obviously for a short time between delegation of the string and the Sunrise phase there is a period where EVERY gTLD is inadvertently matching the definition of a “closed generic”: They are forced to operate the domain name “nic.gtld” – hence they are a single registrant and operate the string “exclusively for its own benefit.”. It is the burden and responsibility of the APPLICANT (rather by now: registry operator) to keep such period within a reasonable scope of time. Most operators will try to start up ASAP. Some might need a few more month to sort themselves out. If the period is longer than a year – I think that’s already reason to question what’s going on. But MORE THAN THREE FULL YEARS? That’s not a “reasonable period” at all. Right now since 3 years the .beauty gTLD meets the ICANN definition of “closed generic”. The board has clearly DENIED such option. And you are telling me that there is no problem – and this charade should be allowed to go on “forever”? I do not think that outside of the “Brand-Cloud” ANYBODY would share your opinion. You do not “buy” a gTLD: you apply at ICANN to OPERATE IT: for the benefit of the entire Internet. gTLDs aren’t an “asset” – they are a responsibility. And right now L’Oreal is not meeting their responsibilities. Am I the only person here who is concerned that brands snag up generic category-killer keywords (the main defining dictionary keywords of their vertical; e.g. .beauty, -hair and .skin for L’Oreal) – seemingly with the goal to prevent competitors to snag those strings up, with no real plan how to use them, then simply not use them at all thus precisely meeting the definition of “closed generic”? Brand consultants will run around and tell their clients: “Hey, you GOT to do what L’Oreal did: snag up a couple of your most import verticals of your industry – shut them down; or risk that a competitor is running these strings in some way that would harm you”! If we were to lower the application fee floor to US $25k – then for a mere quarter Million USD a brand could snag up 10 generic keywords. Man: Good business for brand consultants – but horrific for the Internet Community: I see literally THOUSANDS of dictionary terms being “grounded”. Do we really want this to happen? Applying for a generic term based gTLD – never starting it up: That’s a loophole brands are exploiting. We need to shut down all these loopholes, and fast. The Board clearly directed that closed generics are BANNED. We now have the task to explore how many years of running such gTLD effectively as “closed gTLD” (even if just inadvertently) should lead to a cancelation of the contract – and release of the string into the pool of available ones. In my opinion 3 years is already way too long. Here a suggestion for a policy to keep operators compliant with the mission of the new gTLD extension: A year after delegation the applicant should provide a detailed explanation why they have NOT made domains available to the public (which is the entire foundation of their contract with ICANN: making domains available to registrants). The applicant should lay out a detailed timeline of the intended rollout. If another year goes by without startup: The contract should be canceled (unless extraordinary circumstances lay the foundation for a proprietary extension of the grace period; maybe even including a public comment period). This policy “draft” is a shot in the blue – but I think we need SOME policy to avoid that brands deny the public registrations in “their “ gTLDs – thus effectively operating their gTLD as “closed generic”. Thoughts? Alexander From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Thursday, August 29, 2019 12:52 AM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round You should be patient as long as the RO is compliant with its RA, even if forever. There is no innate right (or need) to have every word phrase or combination of characters available as a TLD. If the RO was the only one to apply for the string or won it at auction then they can wait as long as they want to do something with it or never do anything with it other than have a nic page. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 28, 2019 4:44 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Hi Marc, Re “no closed gTLDs in the next round”: I thought for THIS audience it is self-evident that my assumption is what it is: an assumption! But yes you are right; I could have said “I certainly hope that …..”! Regarding the non-use of a TLD 3 years after delegation (closed gTLD): In this case (.beauty) all domain names (which is 1 domain name: nic) are registered by the applicant – which is the EXACT definition of a closed gTLD. A closed gTLD is a TLD where the applicant is single registrant. So until they open it up – it is closed. How is this inaccurate? Arguably ALL gTLDs are for a short time “closed gTLDs” – until they admit sunrise regs. How long should we be patient that somebody reverts his “closed gTLD” (all domains registered by the applicant) to an open one? Should we wait 1 year? 3 years? 5 years? A decade? Then renew their contract and wait a bit more? Thanks, Alexander From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Wednesday, August 28, 2019 11:57 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, There not being closed generics in the next round and closed generics being a violation of the ICANN mission is your opinion. Please do not present it as a fact. Similarly, a registry operator no launching their TLD is not a closed TLD by definition – at least not in the way understood by anyone who has discussed closed TLDs. It is not helpful to conflate terms. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 28, 2019 3:48 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round *EXTERNAL TO GT* Hi Anne, They routed the SLD “nic”, not the third-level-domain “www”! So there is a website at http://nic.beauty<https://urldefense.proofpoint.com/v2/url?u=http-3A__nic.beauty&d=DwMFaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=bWlrvG0e9GOVlor1_dA4dFLdn6MSWnd3nWwZNCNMdE4&s=Ks8DhrChiD1tWn59vOwUurVBcMhGXUxzsUq0GyjrcxA&e=>; and at http://webwhois.nic.beauty<https://urldefense.proofpoint.com/v2/url?u=http-3A__webwhois.nic.beauty&d=DwMFaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=bWlrvG0e9GOVlor1_dA4dFLdn6MSWnd3nWwZNCNMdE4&s=TUfmNYz1xJ0sogHJkwYNOA1aFvseCQmmK_FbsFdWwAA&e=> But the TLD doesn’t seem to have been launched. There is only ONE domain in the zone – “nic.beauty”! And what do any potential next round gTLDs have to do with .beauty? Where is the connection? I don’t get it. There won’t be “closed generics” in the next round – it’s a violation of the ICANN mission and would construe a land grab. And .beauty will likely be available soon again: if you do not make a public DNS resource available to the public; then your contract won’t get extended (or so I hope very much). Actually the question is: Why not making “.beauty” available for the coming round? The TLD is delegated since July 2016 – that’s more than 3 years; plus they had a full 7 years of time after application submission to “make a plan”. So I say: If nothing happens there till 2021: just delete it from the zone. Because “non-use” is BY DEFINITION a “closed” TLD: and they were not allowed to do that. They asked to operate .beauty in order to further the evolution of the DNS – they never delivered. So just delete this string from the zone and make it available again. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Wednesday, August 28, 2019 10:52 PM To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>; Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Hi Heather, There is no prohibition on a registry seeking a reasonable contract modification from ICANN in light of all circumstances. It’s codified in Consensus Policy as the RSEP process. An unreasonable denial of that RSEP request for contract modification is fertile ground for a Request for Reconsideration, Independent Review Process, all the way up to and including a lawsuit. See https://www.icann.org/resources/pages/rsep-2014-02-19-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_rsep-2D2014-2D02-2D19-2Den&d=DwMFaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=bWlrvG0e9GOVlor1_dA4dFLdn6MSWnd3nWwZNCNMdE4&s=a0k1oNzQ2OdxeRJJXOG0HjMe6ANnsFwcVhNT00X2LXQ&e=> and note the legitimate purpose to “modify” or “remove” an existing Registry service. Let’s take the real life example of .BEAUTY – originally proposed as closed –now delegated as “open” and NOT launched (at least according to ICANN Sunrise records at the link provided by Rubens and I don’t see anything at www.nic.beauty<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nic.beauty&d=DwMFaQ&...>. Are we really saying that if L’Oreal’s competitor applies for and gets .PRETTY as a Closed Generic based on a 2022 application, it doesn’t matter and L’Oreal is stuck with remaining an open generic even if they have not launched? (I don’t represent L’Oreal or any other beauty industry client.) Keep in mind that there was absolutely nothing in the 2012 AGB that prohibited an application for a Closed Generic. (Sounds vaguely familiar to another IRP proceeding.) Maybe out of scope for Sub Pro, but GNSO Council will have to deal with this if they don’t want a “logjam” at the Board level as to any new Closed Generic policy that may be developed. Anne From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Tuesday, August 27, 2019 8:44 PM To: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> Cc: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Thanks, Maxim - I understand that, but amendments to an in-force contract are not the same as repudiating a contract and asking for a new contract to apply. The terms of the RA (clause 7.6(a) re "Special Amendment") and the AGB expressly provided for amendments to both. AGB Module 6, cl 14: "ICANN reserves the right to make reasonable updates and changes to this applicant guidebook and to the application process, including the process for withdrawal of applications, at any time by posting notice of such updates and changes to the ICANN website, including as the possible result of new policies that might be adopted or advice to ICANN from ICANN advisory committees during the course of the application process. Applicant acknowledges that ICANN may make such updates and changes and agrees that its application will be subject to any such updates and changes. In the event that Applicant has completed and submitted its application prior to such updates or changes and Applicant can demonstrate to ICANN that compliance with such updates or changes would present a material hardship to Applicant, then ICANN will work with Applicant in good faith to attempt to make reasonable accommodations in order to mitigate any negative consequences for Applicant to the extent possible consistent with ICANN's mission to ensure the stable and secure operation of the Internet's unique identifier systems." I can anticipate here that someone will say: "But Module 6 cl 14 expressly anticipates changes to the AGB and gives the 2012 applicant a right to demonstrate material hardship caused by the 'new' AGB being on more favourable terms!" I don't think that will be consistent with standard contract law interpretation in US courts, as only the 2012 applicants agreed to be contractually bound by the 2012 AGB, while new round applicants will only have the option of agreeing to whatever the AGB (or whatever name it has) is at that time, not a choice between old AGB or new AGB. A strict interpretation of "changes to this applicant guidebook" logically suggests that the 2012 AGB binds applicants who applied in 2012, because by applying, they consented to the application of the 2012 AGB. A new AGB, even if technically an amended version of the prior document, would apply to new applicants in the "next" round, whenever that is. Articulated another way, I think Jeff's point to now is that the charter of SubPro PDP instructs us to develop the rules that will apply to applicants in this "next" round, not to unsuccessful or any other applicants of the 2012 round (who already contractually agreed to a set of rules when they submitted their application to the TAS). The question of whether the new AGB/RA that results from SubPro PDP, RPM PDP, CCT Review, etc is to be applied to 2012 applicants is not within our PDP's scope. That's the question that would have to go to Council. Best wishes, Heather . Best wishes, Heather On Wed, Aug 28, 2019 at 11:51 AM Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> wrote: Heather, Formally ICANN changed AGB and RAin 2012 (Pic spec, for example), after the fees were paid. But anyway, we should not mix rules from the different sets. Maxim Alzoba On 28 Aug 2019, at 08:35, Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> wrote: Anne, all, It seems to me that basic principles of contract law apply here to keep us out of the weeds. ICANN's legal framework depends, in its entirety, on contract after all. Applicants who applied in 2012 under the AGB contractually agreed, by submitting an application, to the AGB and the base RA that was incorporated in it. Those applicants did not apply under a future AGB, or a future RA to reflect that future AGB. Whether a party on a 2012-era contract can adopt (in the case of those not yet contracted) the new RA or rescind current RA and adopt new RA (for those already completed contracting) is a separate question. I agree with Jeff that this separate question is not within the scope of the SubPro charter. Best wishes, Heather On Tue, Aug 27, 2019 at 5:50 AM Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Hi Jeff – Do we have Susan’s draft language on your first point yet? (You may recall that there were even discussions about PROHIBITING new applications for the same string as some still pending from 2012 –that was not agreed so Susan is working on a statement that 2012 string application processing must be complete before any new application for that string would be considered. HOWEVER – again here is the “rub” – When you say 2012 string applications have to be “completed”, what are you saying about the policy that applies to those? What if the pending strings from 2012 don’t meet current new gTLD policy but they did not violate that policy as of the time of application? We can only skirt this issue for so long. Are 2012 strings going to be allowed to update to current gTLD policy in order to get authorization to proceed or not? Or are you saying GNSO Council will have to launch another PDP for that purpose? From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Monday, August 26, 2019 12:43 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Anne, Where has it been proposed that applications from 2012 get priority? I am not aware of any recommendation that we have made that gives “priority” to any applicants from 2012. We did recommend that any applications that were still outstanding for a string that is applied from in a subsequent round be completed. With respect to Exclusive Generics, the Board resolution on this matter stated that any applications that wanted to maintain their “exclusive generic” status would be “deferred to the next round of the New gTLD Program, subject to rules developed for the next round…” They did not state that any of those applications would get priority. However, there were no applications that were deferred from the last round. If we did allow some form of Exclusive Generic in the next round, then those rules would only apply to new applicants for TLDs. Discussing what happens to TLDs from 2012 that wanted to be Exclusive Generics, but ended up opening their TLDs because of the Board Resolution is not within the topics contained within our Charter. So yes if we wanted to discuss that issue we would need an amendment to our charter to allow us to tackle that subject. The GNSO could then either grant our request or farm that issue out to a separate group. That is within their discretion. This is no different than any other changes we recommend where applicants from the past round would want the same things. For example, if we accept changes to the code of conduct, the COI, reserved names, agreement, etc., the existing registries would not get the benefit of those changes unless the changes go through a PDP that has jurisdiction over those issues. All Applications / TLDs are treated according the to rules for the round in which they applied. This is true regardless of whether they have launched yet or not. I hope this clears things up. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Monday, August 26, 2019 2:55 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Closed Generics and the 2012 Round Thanks Jeff. Your reasoning below is not consistent with what has been proposed in relation to giving priority to applications from the 2012 round that have not been withdrawn. (How is it that this “priority” is in scope for our WG but nothing else re 2012 applicants is in scope? AND if I applied for a Closed Generic and didn’t get it in 2012, why should I have to require another PDP authorization from GNSO Council in order to be treated similarly to new applicants and convert to a Closed Generic? (I believe some open registries that won contention sets in 2012 may not have not have actually launched yet. Why would we say that whether or not they can launch as a Closed Generic is up to GNSO Council?) Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Monday, August 26, 2019 5:27 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Thanks all. We have already got a number of people signed up for the group. I expect substantive discussions on this topic to start this week. So, it is not too late to join. But remember that if you join, the expectation is that we will attempt to find a compromise solution that we all can live with (if possible). You can view the member list for the small group here: https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Closed+Generics<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_NGSPP_Members-2BNew-2BgTLD-2B-253A-2BTopic-2Bof-2BClosed-2BGenerics&d=DwMFaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=bWlrvG0e9GOVlor1_dA4dFLdn6MSWnd3nWwZNCNMdE4&s=H2utbrEOw_NamdeHDwVf6dEH3mHdiE-f-Ay-9gKVkPM&e=> Please allow a day or two to pass before seeing your name on the list if you just volunteered over the weekend or today. We will not be talking about Closed Generics in our next meeting tomorrow (late tonight for some of us). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Friday, August 23, 2019 11:01 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Closed Generics and the 2012 Round All, There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications. Some have expressed concerns about the “fairness” of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012. The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things. Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round. As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely. There were NO applicants that elected to defer their applications to any future round. Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues. To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules. If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date. But for now, as some have stated, that issue is out of scope for our group. The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants. Some of those changes may be favorable to the new applicants and some less favorable. The same is true with respect to previous applicants. If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made. The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be. Finally, all requests for data or information from ICANN staff or any outside third party should go through the Working Group Leadership team. No working group members should request information directly without Leadership’s review. Leadership reviews all outstanding action items, including requests for information, and makes a decision on what is necessary and what is feasible. We consider all of these requests seriously and weigh the pros and cons of getting that data, including time, resources and cost. Thanks for your cooperation and let us know if you have any comments or questions. 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