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Agenda for WT2 Call at 20:30 UTC October 19th, 2017 for 90 Minutes
by Michael Flemming Oct. 17, 2017

Oct. 17, 2017

Dear All, Please note the WT2 call agenda for this week's meeting at 20:30 UTC on October 19th. 1. Welcomee 2. SOI Updates 3. CC2 Comments - Global Public Interest (PICs) 4. AOB After further discussion with the leadership team, we have decided to resume our Closed Generics discussion until after ICANN60. I know that the schedule has not been communicated effectively as of late. We are working to provide a more accurate schedule for future meetings. In the meantime, I am planning the material for this Thursday's call and ICANN60. On October 28th, Saturday, we will hold a meeting from 12:15 - 15:00 (local time) where WT2 will have roughly 30 minutes or so to engage with community members for further input on policy matters. I think that this will be an excellent opportunity to discuss the PICs, so I hope to have this as a continuation of our discussion this Thursday by going over CC2 comments and then opening the floor for input at ICANN60. If anyone has any questions, please feel free to reach out to me. Kind regards, Michael Flemming

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Recordings, attendance & AC chat from New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues call on Thursday, 12 October 2017 15:00 UTC
by Michelle DeSmyter Oct. 12, 2017

Oct. 12, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues held on Thursday, 12 October 2017 at 15:00 UTC. Adobe Connect recording (audio and visual): https://participate.icann.org/p9gaifz63rj/ The recordings of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: https://community.icann.org/x/jYJEB Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for 12 October 2017 Michelle DeSmyter:Welcome to the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues meeting on Thursday, 12 October 2017 15:00 UTC Michelle DeSmyter:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Cheryl Langdon-Orr 2:hi all Michael Flemming 2:Wonderful Michael Flemming 2:Cheryl, glad you are here. Steve Chan:Unsynced Cheryl Langdon-Orr 2:not as late as it is fof me Steve Chan:I reccommend using the arrows to page through rather than trying to scroll :) Steve Chan:If you would like to review the full text, you can see here: https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_… Emily Barabas:@michael -- the quoted text on slide 5 - section 6 is not from CC2. I believe the proposed text was put forward during one of the previous calls on this topic. Jim Prendergast 2:I believe the text on slide 11 is a vestige from a previous set of slides on another topic. They deal with closed gerics. Michael Flemming 2:Jim that could be true Michael Flemming 2:And it is Michael Flemming 2:I am sorry, I should've done a better due diligence check Jim Prendergast 2:no biggie Emily Barabas:checking. . . Steve Chan:I believe that's the entire comment for this section. Steve Chan:[Do you believe that this paragraph gives ICANN an absolute right to reject any application for any reason including a reason that contradicts the Applicant Guidebook, or any law or policy?] Yes. [If yes, should such an unrestricted right appear in any modifications to the Guidebook?] Yes. Emily Barabas:sorry, you are much faster than me today Emily Barabas:thanks steve Steve Chan:waking up for a 5 am Council call gives me an extra pep in my step apparently. Gg Levine (NABP):Agreed. Jon Nevett:Need an appeal process, but make it loser pays as a deterrent to frivilous complaints Michelle DeSmyter:yes Steve Chan:Note, the topic of possible appeal processes is part of WT3's slate of topics. For those interested in the topic, please be sure to participate in WT3's discussions. Jim Prendergast 2:for more background on my upcoming point - suggest reading this piece by Jeff Neuman - provides good background. https://urldefense.proofpoint.com/v2/url?u=http-3A__www.circleid.com_posts_… Susan Payne:apologies, I have to drop again Kristina Rosette:have to drop for another meeting Cheryl Langdon-Orr 2:bye Michelle DeSmyter:yes Jon Nevett:I would add to the list of ICANN inappropriate post-application changes was the $5K per-registry TMCH set-up fee that is nowhere in the AGB Michael Flemming 2:That is a good idea, I think, Jon. (Co-Chair hat off) Michael Flemming 2:Adding it to our list of issues, I mean. Cheryl Langdon-Orr 2:agree with the importance of predictability Jim Prendergast 2:are there examples of where applicants been accomodated? Jim Prendergast 2:exactly Greg Shatan:Well, that went pear-shaped. Cheryl Langdon-Orr 2:22 Steve Chan:SLide 22 Cheryl Langdon-Orr 2:half way in Affilias Cheryl Langdon-Orr 2:you wern't away long Michael Flemming 2:We go to 30 Emily Barabas:correct Cheryl Langdon-Orr 2:there isvalso an overlapping call Steve Chan:there is at least one competing WG call: IGO/INGO curative rights protection mechanisms Steve Chan:Yes, what Cheryl said Cheryl Langdon-Orr 2:good point Jim Cheryl Langdon-Orr 2:argh my audio seems delaydd now Jim Prendergast 2:hadnt heard that one before but Im gonna steal it! Steve Chan:2.5.4 - Do you believe that any changes are needed in the Terms & Conditions in Module 6 of the Applicant Guidebook? If so, what are those changes and what is the basis or rationale for needing to do so? Jon Nevett:I need to hop -- thanks all -- Jon Cheryl Langdon-Orr 2:your doing fine, we are making progress Cheryl Langdon-Orr 2:thanks everyone... bye for now thanks Michael

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Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 - 12 October 2017
by Julie Hedlund Oct. 12, 2017

Oct. 12, 2017

Dear Work Track members, Please find below the action items and discussion notes from today’s call. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The referenced slides are attached. Best, Julie Julie Hedlund, Policy Director -------------------------------------------------------------------------- Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 - 12 October 2017 1. SOI Updates: -- Cheryl Langdon-Orr reports that the GNSO Council confirmed her as Co-Chair with Avri and Jeff. -- Re-confirmed as the Director of Internet Society chapter. 2. CC2 Comments on Terms and Conditions: See the full text: https://newgtlds.icann.org/en/applicants/agb/terms Slide 3: -- Schedule for 12 and 19 October. -- Suggestions for topics for 28 October F2F meeting at ICANN60. Slide 4: Discussion Recap: Where are we at now? -- Sections 3, 6, and 14 are of particular interest. -- See the summaries on Slide 4. Slide 5: Discussion Recap: Where are we now? Proposed Language from Previous Call: -- Section 3: Some respondents suggested clarifying language. -- Section 6: Suggestion to bring in an appeals mechanism. -- Section 14: Emphasized the importance of predictability and having a framework for change management. Slide 6: CC2 Question 2.5.1 Slide 7-10: Question 2.5.1 Comments -- RySG, BRG, Afilias, and INTA suggested adjusting language to clarify that ICANN cannot unilaterally reject an application without an appropriate reason. -- Jannik Skou stated that ICANN should not have the right to stop processing an application unless the application is disqualified according to rules in the AGB. -- NORID, ALAC, and John Poole stated that ICANN should have this right. Discussion: -- There seems to be a factual predicate in the highlighted language that seems to suggest that ICANN offers this option at their discretion. This is something that is decide by policy from the community, not by ICANN. ICANN's core values of transparency would dictate that any reasons for a choice would be spelled out. -- Can see where there could be occasions for ICANN to reject an application for reasons not outlined in the AGB, but is there a process to appeal that decision? [Covered in 2.5.2 question and responses] Slide 12-16: Question 2.5.2 -- INTA, NORID, RySG, BRG, and Afilias supported establishing an appeals process prior to opening subsequent procedures. -- ALAC suggested that if appeals are allowed they should only be allowed when decision is based on an error of fact that ICANN has available at the time. -- Nominet recommended adopting a "better mechanism" to require ICANN to review operational decisions related to applications. -- John Poole stated that the interests of the global Internet community should receive priority over the interests of registry operators. Discussion: -- Seems to be general agreement for an appeals mechanism. >From the Chat: Gg Levine (NABP): Agreed. Jon Nevett: Need an appeal process, but make it loser pays as a deterrent to frivilous complaints Steve Chan: Note, the topic of possible appeal processes is part of WT3's slate of topics. For those interested in the topic, please be sure to participate in WT3's discussions. Slides 17-24: 2.5.3 -- INTA, NORID, Nominet, and Valideus emphasized this importance of ensuring predictability, planning in advance, and learning from the 2012 round. -- BC and Jim Prendergast stated that ICANN's ability to change the AGB should be limited. -- INTA, NORID, BRG, RySG, Afilias, Valideus, and Jim Prendergast suggested specific conditions and rules for changes in the AGB. -- ALAC stated the AGB should not be changed after the application procedure has been initiated. Discussion: -- This issue of ICANN insisting on language that ICANN could unilaterally amend the contract really struck a nerve with registries. We are still dealing with some issues we need to iron out, but these should be nailed down before application acceptance. -- The latter part of Section 14 says something to the effect that ICANN would provide accommodation if there was harm. -- Can we ask ICANN for examples of where the have accommodated applications? -- Some of these could be good test cases. -- Might be an error in the ALAC response that it agrees that after the application procedure has been initiated, Guidebook should not be changed. ALAC will get back to the WT on that. Seems anomalous. -- It is not as if we are going into this blind. We've had several years to learn from mistakes. We can avoid many of the discussions about changes being made after the AGB is finalized. Would hope that there are not major issues that would appear that we haven't seen the first round. -- Still need an escape hatch, but should do a much better job than before. >From the Chat: Jim Prendergast 2: for more background on my upcoming point - suggest reading this piece by Jeff Neuman - provides good background. http://www.circleid.com/posts/20130316_icann_must_drop_request_for_unilater… Jon Nevett: I would add to the list of ICANN inappropriate post-application changes was the $5K per-registry TMCH set-up fee that is nowhere in the AGB Michael Flemming 2: That is a good idea, I think, Jon. (Co-Chair hat off) Michael Flemming 2: Adding it to our list of issues, I mean. Cheryl Langdon-Orr 2: agree with the importance of predictability Jim Prendergast 2: are there examples of where applicants been accomodated? Jim Prendergast 2: exactly Slides 25-27: Question 2.5.4: Do you believe that any changes are needed in the Terms & Conditions in Module 6 of the Applicant Guidebook? If so, what are those changes and what is the basis or rationale for needing to do so? -- RySG, BRG, and Afilias suggested specific changes. -- Jannik Skou stated that ICANN should be allowed to make changes to the Terms and Conditions, but should seek to minimize the need for changes. Discussion: -- Doesn't seem like anyone is saying that no changes are allowed, but there should be an opportunity for applicants to modify or withdraw their applicants. Slide 28: General Comments: -- GAC pointed to its comments in response to questions in section 1.3.

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Agenda for call on Thursday 15 UTC 12 October 2017
by Michael Flemming Oct. 11, 2017

Oct. 11, 2017

Dear All, Please note that our call on Thursday is a bit of a change in schedule. We will be covering Terms and Conditions and move on with Closed Generics on our call next week or at a later date. We need to have a bit more development before we can move forward with that. 1. Welcome 2. SOI Updates 3. CC2 Comments on Terms and Conditions 4. AOB Apologies for the sudden change. Kind regards, Michael Flemming -- Sent from my mobile.

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Recordings, Attendance & AC Chat from New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues call on Thursday, 5 October 2017 20:30 UTC
by Julie Bisland Oct. 6, 2017

Oct. 6, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues held on Thursday, 5 October 2017 at 20:30 UTC. Adobe Connect recording : https://participate.icann.org/p2lkwg6mdra/<https://participate.icann.org/p2lkwg6mdra/?OWASP_CSRFTOKEN=ba32205baa7d5c6f…> The recordings of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: https://community.icann.org/x/i4JEB Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for 5 October 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues on Thursday, 05 October 2017 at 20:30 UTC Julie Bisland:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Cheryl Langdon-Orr:hi all Julie Bisland:reminder: please mute Jeff Neuman:michael - are you ready? Cheryl Langdon-Orr:morning Michael ðŸ˜€ Cheryl Langdon-Orr:slide control? or is it just me Jeff Neuman:there are no slides :) Cheryl Langdon-Orr:ok.... Kiran Malancharuvil:I don’t have audio. I have a new SOI. Kiran Malancharuvil:thanks michael Steve Chan:Link to the file being shared: https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spread… Alexander Schubert:What is the "harm" to the general public by blocking free access to a beach? Well: they don't have access! Same with generic term based gTLDs. Do you REALLY expect a beach-goer would start ligitation? No. They are simply sad and go to another beach. Does ICANN want to produce sad prospective registrants? Julie Bisland:For attendance purposes, please let me know who is 2062661000 Kristina Rosette (Amazon Registry):Hi Julie, I suspect that's me. Julie Bisland:Thank you, Kristina :) Greg Shatan:Beachgoers have in fact started multiple litigations with that fact pattern. Greg Shatan:There are always sad prospective registrants. It's inherent in the concept of unique strings. Annebeth Lange:If we compare this to the TLD-world, there would'nt be any more beaches to go to. That is a huge difference. Greg Shatan:There are no more prospective TLDs? Well then we can just shut this WG down now. And go to the beach. Alexander Schubert:+1 Annabeth Alexander Schubert:And yes: a closed beach potentially allows for "new business models" - but chances are it's benefitial only for a few; and often the beach might simply be shut down entirely and nobody can enjoy it. Annebeth Lange:What I mean is that the difference with TLDs is that it is only one registry that can have it, for example compared to trademarks, where several companies can have the same name in different areas. Alexander Schubert:+1 Annabeth Steve Chan:Beijing GAC Advice: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste… Annebeth Lange:+1 Greg, this is not only a question of the law, but should also be about policy avri doria:can lack of material harm be equated to a lack of detriment to the public interest? Holly Raiche:@ Avri +1 Jim Prendergast:are the leadership team calls where this topic was discussed recorded and/or transcribed? And available? Greg Shatan:They did refer to the concept of "monopoly" Greg Shatan:The panel was correct to reject that, as a matter of law. That's what I meant to say. avri doria:Jim, I think they are recorded, but have not been made avaialble outside the set of co-chairs. Annebeth Lange:But will it not be a kind of monopoly, when one actor is the only one that can use this generic term? Annebeth Lange:That is the reason why in the trademark world they do not allow generic terms as trademark, as least not in Norway Jeff Neuman:@Kathy - Most of the comments here are on the 4th element avri doria:Has the GAC standarded of supporting a public interest been accepted by the PDP? Greg Shatan:Not a "monopoly" as legally defined. And "generic terms" are allowed to be trademarks (even in Norway), as long as they are not generic for the goods and services of the applicant. I assume you were referring to "generic for the applicant's goods/services" meaning of "generic".... Jeff Neuman:@Kathy - That is my point. If you can show material detriment, then the TLD will not be allowed. But is it right to establish a rule preventing all forms of closed generics even though they cannot establish any likelihood of material harm avri doria:and, if so, which definition of public interest has the PDP accepted? Jeff Neuman:Does the right to "use" a generic word include the right to "register" a second level domain Jeff Neuman:I see those as different aspects Jeff Neuman:If a .book were introduced for example that was run by a company that owned all of the registrations but they allowed everyone in the world to "use" the content provided through the space, is that harmful? Annebeth Lange:@ Greg. Actually, in Norway we would never allow one company to register "book" as their trademark, even if the company sells books. The reason being that that gives one comopany an unfair advantage. Jeff Neuman:@Annabeth - they actually allow those in the Benelux countries as well Annebeth Lange:Interesting, Jeff. Greg Shatan:Annabeth, what if they only sell apples? Jim Prendergast: GAC advice process question - do we know if GAC advice from 2012 will still stand for this round or will the GAC have to issue new GAC advice on this and the multitude of other issues they issued advice on? avri doria:a generic word like "ibm" Annebeth Lange:Well, several companies can sell only apples, and in Norway it is a demand that you create a name that is unique to get it registered as a trademark. Jeff Neuman:@Jim - my assumption is that unless they specifically say that it only applies to that round, it continues to stand Greg Shatan:I was trying to make the point that a bookseller may not be able to register books, but an airline has... Jim Prendergast:thx avri doria:but a domain name is not a trademark. Kristina Rosette (Amazon Registry):Greg makes a good point. The analogy to trademark seems misplaced to me because the relevant goods and services (for which some are describing a TLD as "generic") are registry operator services or domain registry services (however you want to call them). Annebeth Lange:I agree, Avri, and that is even worse. Only one can have it and rule everyone out. Annebeth Lange:So if the company decides who are going to have a name on the second level, they can decide for example which applesellers that can register under .apple avri doria:or under .applesellers avri doria:? Annebeth Lange:Greg + 1 avri doria:would .applesellers be a generic? Jeff Neuman:I have no idea what those words mean :) Annebeth Lange:Apple is a difficult example since it has been allowed as trademark in US. But the Norwegian word would not have been allowed. Greg Shatan:"second level domains for third parties" Michael Flemming:Thanks, Greg. Annebeth Lange:Greg, let us have a discussion on this next time we meet. We have had several court cases in Norway about this. It is really difficult to get a generic word registered as a trademark. Alexander Schubert:I am not sure what exactly is being discussed here. here what will happen: Industry leaders will shut down "their" industry defining keywords! Or they will only allow registrants that promote THEIR brand! Kristina Rosette (Amazon Registry):With apologies, it seems I'm going to have to be on mute for a while. The dogs on my hallway are having a bark-a-thon. Greg Shatan:It's hard to foster innovation when you are looking backwards, Kristina Rosette (Amazon Registry):There's already some ICANN precedent for deferring competition issues to governmental authorities (the RSEP for example). Greg Shatan:How about the "I don't like it" objection? Greg Shatan:Very well put, Paul. Agree completely. Alexander Schubert:If ICANN promotes 2nd level registrations - then we need to MAKE THEM AVAILABLE! And not allow mlti billion corps to shut down generic terms! Kurt Pritz 2:To build on Greg’s comment: What would go for a higher price at auction: book.com or .book? What is more of a “monopoly,” .books or book.com.? My point is this: these are all just web addresses. If Barnes and Noble makes great use of book.com, the internet-using public will flock to it. If Amazon makes fantastic use of second-level names in .book, the internet using public will flock to it. There are millions of alternative web addresses available at the top and second level. I think we should not (and I think Greg was saying, we cannot) agonize over future uses of web addresses. As others have intimated, creating rules for restricting closed generics is problematic. The Guidebook allowed closed generics because it treated TLDs as alternative form of web addresses and because trying to restrict them is problematic. As Paul just said, we should not be pre-supposing which business model is preferred. Jeff Neuman:@Kathy, but many said just the opposite Greg Shatan:Registrars and registries can "promote" the market sale of second level domains. ICANN should not. Jeff Neuman:@Kathy - if you had asked most of the people participating in the policy process before the applications were submitted, whether closed generics would be allowed, I predict that 9 out of 10 would have said, yes Greg Shatan:Kathy, can you point us to a place where a closed generic applicant said they wanted to "lock out" their competitors (or words to that effect)? Alexander Schubert:Kurt: OBJECTION! boo.com owned by one company is the NORM - the Internet user KNOWS THAT! If all .book domains are given ONLY to authors that work with a certain publisher: The public won't know that not every author had access to these domains! Greg Shatan:Or is that only the "sour grapes" crowd. Alexander Schubert:*book.com Jeff Neuman:Attorneys making arguments against the practice saying that they never expected it is a little disingenuous Kathy Kleiman:@Jeff - not true. Please look at the list of companies that I shared, and that includes Yahoo! and J.Scott Evans... and materials submitted by Mark Partridge's firm Jeff Neuman:@Kathy - again, I love some of the people you are talking about, but they were responding as competitors of the applications avri doria:i certainly assumed it was possible and ok at that time. Michael Flemming:Co-Chair hat off: That what was I wanted to say. None of the applications included terms like monopoly within their application. Kathy Kleiman:Why can't you do that under .AWS or similar gTLDs, Kristine? Karen Day:+1 Kristina Greg Shatan:+1 Kristina avri doria:Kathy, why should they have to use a meaningless string? Greg Shatan:@Kathy, why restrict innovation? .AWS would be one kind of innovation. That doesn't exclude innovation based on words. Alexander Schubert:Maybe this discussion has to go OUTSIDE of this tiny circle of ICANN inisders who are clearly interest conflicted. Whenever I tell the "layman" out there that we are about to shut down ENTIRE VERTICALS by granting access to ONE player only - they look at me in gross disbelieve! Gg Levine (NABP):Would banning closed generics put the interests or potential registrants above those of gTLD applicants/potential registry operators? Alexander Schubert:Why don't we put this out to discussion outside of the inner ICANN circles? Greg Shatan:"I'm shocked, shocked that there are closed generics in this establishment." Alexander Schubert:E.G. a nice article in The Atlantic? Greg Shatan:@Alexander, because you would have to explain what a TLD is first. And they might ask, why should I care? Alexander Schubert:Maybe we lost contact with reality - and need some input from normal people from outside ICANN. avri doria:Really, I was cited? did not know. i was pretty sure that it was the case at the time. Alexander Schubert:Every single person I have told about "closed generics" commanded me to "stop that". Alexander Schubert:And the people out there aren't all stupid. Alan Greenberg:+1 Jeff Kurt Pritz 2:Hi Alexander. How are you? It is the norm today. We aare stil at the early stages of the DNS life. In a sense, isn't it HORRIBLE that stodgy Barnes and Noble monopolized this key internet space? Nonetheless, the marketplace worked around it.I think they are all web addressesthat Internet users can access. I find it really hard to put anyone in the governamce role to restrict usage. Heather Forrest:A blanket rule (to the extent based on the undefined concept 'public policy') is ineffective in any event, as proven by the disputes that came out of 2012 applications Alexander Schubert:To the GAC participants: Is GAC aware that we are about to allow generic term based new gTLDs being "shut down"? Jeff Neuman:I concede that some people were shocked.......I also know there were others that expected and in fact advocated it Greg Shatan:I thought that Co-Chairs participated in subgroups in their individual capacities, Kathy. Greg Shatan:Or is that only in the RPM group? avri doria:Greg, that is correct, except for when they specifically don their co-chair hats. Alexander Schubert:Well: We do all this FOR THE PUPLIC; so let's loop in the public. Because we are all conflicted in some way or other. Jeff Neuman:@Alexander - Whatever we come out with, we will of course ask the public in the form of public comments Jeff Neuman:We are just trying to come up with something to put out for public comment Annebeth Lange:But isn't that the difference between "true" generics and brands? Even if all words except of ccTLDs are considered gTLDs, brands in my mind are not generics Kathy Kleiman:Could you summarize it in one sentence again, Michael? Heather Forrest:@Michael - how can we base an applicant's fate on the necessity of proving something that they don't know what it means (ie, public policy)? This renders the entire application process so uncertain as to be worthless Jeff Neuman:It was interesting because ICANN asked all of the closed generics how they would "use the TLD" in the public interest, but did absolutely nothing with that information Jeff Neuman:Instead it played the waiting gale Jeff Neuman:game Jeff Neuman:Untilmany withdrew Jeff Neuman:or caved in Kathy Kleiman:@Greg, isn't there infinite room for innovation across the gTLD - why the push for doing it in Closed Generics? Alexander Schubert:Greg: I totally agree that IF the general public had somehow "fair an equal" access to 2nd level domains: everyone is fine. New business models: GREAT! But the reality will be that generic keyword terms will be shut down - or used in a way that ONLY promotes the brand that owns it! Greg Shatan:Your personal prediction of the future is not "reality". Alexander Schubert:".bank" is NOT closed - it is "restricted" Alexander Schubert:Any bank can have a .bank! Michael Flemming:Alexander, she is referring to .bank.au within that regard Alexander Schubert:SORRY! Greg Shatan:And why. is it bad thing if a TLD promotes only the company that owns it? Greg Shatan:That would seem to cover a lot of good business models. Alexander Schubert:Greg: Thank you for that comment :D Kristina Rosette (Amazon Registry):As I understand what Holly is describing, the gTLD analogue would be "open restricted" (I think). Holly Raiche:Thanks Kristina- correct Annebeth Lange:Alan, +1 Cheryl Langdon-Orr:middle ground is a good aim. IMO Gg Levine (NABP):Not hearing anything. Is audio working? Michael Flemming:Yes Michael Flemming:Gg, please try restarting Alexander Schubert:New business models are good - we just need to make sure to ensure access in my opinion. Denying access is alrady harm. Like with the beach: no access = harm. Greg Shatan:There are plenty of private beaches. Greg Shatan:Third party access to register second level domains in top level domains is not a divine right. Greg Shatan:Jeff, you say that with all the power of your personal capacity, right? Annebeth Lange:Greg, - but only one .beach Jeff Neuman:@Greg, that was actually my alter ego talking Greg Shatan:But also .beaches, .shore, .shores, .waterfront, .waterfronts, .coast, .coasts, etc., etc. Annebeth Lange::-) Heather Forrest:Sorry, all - I have to drop now. Cheryl Langdon-Orr:we have Paul on audio so we can capture Gg Levine (NABP):Then why not have all applicants show public interest? Annebeth Lange:I have to go - very interesting discussion tonight. And one that really shows that there is very diversified views here. Cheryl Langdon-Orr:bye ðŸ‘‹ Annabeth Annebeth Lange:Goodnight :-) Jon Nevett:I'm having a hard time understanding the rights to register a domain name concern -- isn't the harm the same w/r/t rights to register 2nd level names if Apple operates .apple as a brand TLD or apple operates .computer? Do folks think we should prohibit both? Kathy Kleiman:I think we should put the two difffernt models forward Jeff Neuman:@Jon - we established that last week that Brands being closed is ok Jeff Neuman:if they are using their brands Jon Nevett:so how is the harm different? Greg Shatan:"Prior restraint" is running through my head..... Julie Bisland:next call, Thursday, 12 October 2017 at 15:00 UTC for 90 minutes. Greg Shatan:BTW, prior restraint is not a good thing. Kristina Rosette (Amazon Registry):Have to drop to get to another building for a 3 PM meeting. Greg Shatan:More than two models, I expect. Jeff Neuman:Remember there is always competition law Kathy Kleiman:Bye All avri doria:thanks all, good conversation Greg Shatan:Bye all! Cheryl Langdon-Orr:thanks everyone bye ðŸ‘‹

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Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 - 05 October 2017
by Julie Hedlund Oct. 5, 2017

Oct. 5, 2017

Dear Work Track members, Please find below the action items and discussion notes from today’s call. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The referenced document is available at: https://docs.google.com/spreadsheets/d/1kua4x0sLOXy5ZStMkzqG3oYnbkzbxCNMMIG…. Because of the large volume of comments in the chat room staff did not endeavor to capture excerpts. Please reference to the chat room transcript distributed by the GNSO Secretariat and on the wiki at: https://community.icann.org/display/NGSPP/2017-09-14+New+gTLD+Subsequent+Pr…. Best, Julie Julie Hedlund, Policy Director -------------------------------------------------------------------------- Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 - 05 October 2017 1. SOIs: Kiran Malancharuvil: I have a new SOI. 2. Closed Generic Discussions: -- Last week we discussed If we allowed closed generics how would we allow objections to be filed against them. -- Difficult to find the standing or where those had a good basis to follow through with. What the leadership did was look at the case the Kathy Kleinman brought up as well as others. -- Looked at whether the objection to the closed generic had standing. If we can look at community objectioins and see the common themes maybe we can find a way to allow for objections. See Matrix: https://docs.google.com/spreadsheets/d/1kua4x0sLOXy5ZStMkzqG3oYnbkzbxCNMMIG… -- If you go down the list all except for one were community based objections. -- We can start to prepare a test, that could be similar to what was used in the last round. .BOOK Case Against Amazon: -- Ignore the standing requirement. Even if they found no standing they looked at the merits of the claim. -- Objector said that if you gave .book to Amazon they will engage in monopolistic practices. Panel says you can't judge an application for a closed generic for monopolistic actions until you have some activity. Can't assume that the closed generics in general will necessarily restrain trade or cause material detriment. Whether they are good or not is a matter of policy, not for the panel. -- Contrast with .mobile decision: In a case such as this where a party has shown it is a community and there is substantial opposition in that community to a particular party having a closed registry on that gTLD, there is a strong likelihood that there is a material detriment. Discussion: -- What will that get us if the GAC just rejects it again? How would we deal with that? -- The GAC has provided its advice. If you look at it the advice basically said -- it didn't outright ban closed generic. It said there should be a finding that the TLD is in the public interest. This is looking at the other side of the coin. Unless there is a likelihood of material detriment it can't be said that it is not in the public interest. Beijing GAC Advice: https://www.icann.org/en/system/files/correspondence/gac-to-board-18apr13-e… -- On .books: Sounds like the decision was exactly right, but our policies don't have to mirror the law. Given the lack of a clear direction in the policies it is not surprising that the panel would turn to the law. If you are talking about monopolistic behaviour then you are using legal terms. We need a clear statement of policy against which a prospective TLD can be measured. Absent that we will get the GAC's idea of what the policy should be and objectors saying what they think the law or policy should be, and panels that will go back to the law. -- Applications that are for the public interest -- the GAC has stated that dictionary terms with proposed exclusive access where it can be determined that there is harm to the public interest. If we can develop clear policy an applicant for a dictionary if the applicant can show it could help the public interest in some way that could help. -- The panel used the AGB for the test. On monopoly they were quoting the objector. That wasn't introduced by the panel. Everyone should read the limited public interest objector -- #8 on the matrix -- .broker. Using the criteria it found that it was not contrary to generally accepted norms -- couldn't be sustained by international law. -- We should look to the law for guidance anyway for policy as we do for other types of names and for the legal rights objections. These decisions tackle the pros and cons we are talking about. -- The community objection wasn't designed for closed generics. Monopolistic isn't a standard. But CTIA did show a material detriment before the fact. Go to the definition of generic word. -- Don't think we are looking at the outcomes from the objections as the path forward. We aren't looking at the community objection as the path forward, we are looking at the evidence presented. -- Having to prove a community up front takes away from the entrepreneurs and innovators. -- Are we looking at domain names and trademarks as the same thing? -- There are ways to take trademark law and apply it to domains when you aren't talking about a trademark. There is the question of whether we are making a policy preference for the use of top-level domains to sell second-level domains to the public. Or do we not show a preference for the second-level domain sales of top-level domains. It seems like there is a definite leaning that we want top-level domains to be used to give different people the right to second-level domains. If there is no principle how do you decide what is a closed generic? Are we only talking about nouns? How about adverbs? I think we need to figure out what we are trying to accomplish or prefer. I think we do need to avoid using the term monopoly. -- People are saying since only one party can use the space -- is it "use" or "register"? In the .music decision from AAIM against Amazon they state it is not possible to conclude that this is a case of likely or concrete damage. Different opinions on the same type of issue. Try to avoid etting a blanket rule without allowing any kind of showing something is in the public interest. -- We've looked at public interest objection, it doesn't quite fit; we've looked at community objections and it doesn't quite fit; we've looked at trademark law it doesn't quite fit. ICANN needs to decide if it won't choose the business model it likes or didn't consistently, if not then it needs to be clear what business model it likes and how it is applied. -- Interesting point: There is nothing in policy that deters the innovative business models or an exclusive operation of a registry. ICANN's core value is the registration of second-level domain names. That doesn't say how the registry has to operate. -- There are considerable misunderstandings of what was in the AGB. Why people said they wanted closed generics was to lock out competition. -- We are discussing having some form of visibility into the business plans within the boundaries being for the public interest. -- Don't think we were favoring one business model over another. We have to consider the public interest. -- We need to be careful about guessing the motivation of applicants. Closed generics provided the opportunity for the registry to innovate with new services. -- The trademark spec 13 discussion is considered outside of this discussion. -- Most people who were preparing applications, and working on the AGB, everyone thought of the business model. One of the decisions cites Avri while she was chairing the committee saying that this was a model that was expected. -- What matters is do we keep the general rule opposing all closed generics, or do we look at the public interest and see if there is a detriment. We should avoid a blanket policy. -- Do want to ask the same question again: Could we as a WG consider that we do agree with the concept of innovative TLDs, and not all should be for the registration by third parties. We need to consider all gTLD types as well. If we were to propose this within the public interest -- showing that the applicant can say how they plan to use this in an exclusive way in the public interest, could we see that as a path forward. -- First, we should not favor as a policy matter models that involve the sale of second-level domains to third parties. As to what is in the public interest I would not say that that model is more favorable to the public interest than other forms of innovation. If we foster the current model we won't end up with innovation. -- We (Australia) considered having .bank as closed and they only people who could use it were registered with our regulator. That was an example of the public interest in giving certainty that yes it was a generic but you could be sure that it was registered and regulated. -- Our challenge is to find the way in between. Evaluating whether something is in the public interest is difficult, but don't see how we can get around that. -- We should take the next step and figure out what the criteria would be for a closed generic that adds some benefit. Brainstorm some criteria that might indicate the level of innovation. -- ICANN operates on an "ask permission" model. prefer that they should be allowed unless they are showing harm. Should have criteria that we don't want -- to protect from. -- A permissionless Internet used to be what we said we believed in. Good to deveope criteria in the negative. -- We are arguing up front, not after the fact -- the threshold should be made up front that you will be operating in the public interest. -- The public interest shouldn't only be community interest. Don't think we should have a not-for-profit idea of what a closed generic might be. -- Not suggesting that we adopt the community-based criteria. -- If we went with the permissionless model could see an analogy with vertical integration. You can vertically integrate but you had to live by a code of conduct to make sure you are not taking too much advantage. Could set up criteria that you have to meet for a closed generic.

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Agenda for WT2 Call at 20:30 UTC 5 October 2017
by Michael Flemming Oct. 5, 2017

Oct. 5, 2017

Dear All, Please note that the agenda for this week's call is as below. 1. Welcome 2. SOI Updates 3. Closed Generic Discussion 4. AOB Please note that this week will be a continuation of our discussion from last week on Closed Generics. In addition to the NGPC decision, there were several objections filed based against closed generics from the 2012 round. One of these, .mobile, was mentioned on the last couple of calls. Turns out there was more than one decision on this issue, but with opposite results. The assignment is to see if we can extract common themes in the findings to create a path forward that may allow certain closed generics to proceed while addressing the potential harms. I look forward to discussing with everyone. Kind regards, Michael Flemming

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For SubPro Sub team 2: Continuing discussion on Closed Generics
by Kathy Kleiman Oct. 3, 2017

Oct. 3, 2017

*** This is intended for SubPro Subteam 2. If it has not reached the right list, could you kindly send me the email address. *** Dear Subteam 2, I’ve been reading the discussion of the last meeting, and want to share some thoughts before the call this week. I hope this helps to inform and share information in this important discussion. 1. “Actual harm” is a purposely impossible standard. Very little requires proof of “actual harm” in the real world – it’s proof of “likelihood of harm” that is the basis of most standards, particularly in trademark law. For example, the test for trademark infringement is a “/likelihood of confusion/.” The test for “imminent danger” is where the danger exists which could “/reasonably be expended to cause death or serious physical harm.” /If I build a swimming pool in my backyard, I don’t have to wait until a child drowns to build the fence – the danger is foreseeable and avoidable – and I must act now. 2. When it comes to a “Likelihood of Harm,” we have tons of evidence of the likelihood of harms of Closed Generics, and a great deal of precedent. A. The protections against monopolization of generic words used in their generic sense date back almost three quarters of a century (1946) in US trademark law and can be recited by every trademark attorney. /"Generic word are the weakest types of 'marks' (and cannot even qualify as 'marks' in the legal sense) and are never registrable or enforceable against third parties. //*Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. *//Be aware that if you adopt a generic term to identify your goods or services, you will not be able to prevent others from using it to identify potentially competing products or services."/Basic Facts about Trademarks, USPTO, /https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf [emphasis added]/ *B. *Thus, the US Trademark Office would never allow one milk producer, milk pasteurizer, or milk distributor to monopolize or trademark the word “milk” for its own purposes. Milk for the limited purpose of a line of young children’s clothing, sure, but never to allow Borden Milk Products to monopolize the word “milk” as opposed to Horizon Organic Milk*. * 2)The high standard of the “likelihood of material detriment” WAS met when CTIA – The Wireless Association ®, representing the Mobile Industry, brought it’s Objection against Amazon for monopolize the gTLD planning to own all .MOBILE domain names to solely support its mobile business, and not that of the industry as a whole. /CTIA - The Wireless Association (R) (USA) vs/ Amazon EU S.A.R.L. (Luxembourg), Decision 1-1316-6133/. CTIA did meet the very high and difficult standard of showing that the Closed Generic application of Amazon for .MOBILE and the Panelist found that Amazon’s ==> “/would create a likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted."/ 3)Hundreds of commenters from around the world – a larger and wider spectrum than in any ICANN comment proceeding before – responded to the Board’s call for clarification and understanding of the issues of Closed Generics by stating clearly and precisely the “likelihood of harm” they would suffer if Amazon owned the Internet space of “.BOOK” or Google owned all the domain names of .SEARCH. In the comment period, some of the largest and best known companies in the world explained why Closed Generics were a “restriction of competition to the detriment of consumers.” One was the attorney Martin Broden, an attorney for Inter IKEA Systems B.V. presenting IKEA’s concerns with ICANN: “Preventing others from registering under descriptive gTLDs means restriction of competition to the detriment of consumers. The current proposal is contrary to ICANN’s intention with the launch of new gTLDs, namely to broad the domain name space and to spur competition for the benefit of all.” https://forum.icann.org/lists/comments-closed-generic-05feb13/msg00049.html *Others included Microsoft, the McCarthy Institute for Intellectual Property and Technology Law, Spanish Booksellers Federation, Asia Cloud Computing Association, Yves Rocher, Prudential Insurance Company, even the US Postal Service. The eloquent and informative Microsoft letter is attached. * 4) As was noted during the Subteam discussions, dozens of GAC Early Warnings were filed specifically on Closed Generics. The Governments shared with us the basic principles of competition and trademark outlined above. _Overall:_ We made a great compromise in the original round – we allowed .BRANDS to be Closed – defined as the Registry being the sole Registrant and owning all of the domain names. Thus we created the space for experimentation of the brand, and .AWS, among others, is well underway with their models – all of which tie their New gTLD to their products and services. We clarified the policy of the First Round that Generic gTLDs would be open – and that the Registry would sell domain names and service all within its industry or product/service group. You’ll see attorneys and companies long in the ICANN space tell us that this clarification by the ICANN Board was what they thought the rule was all along. Not new policy, but clarified one. They view the ICANN Board's work barring Closed Genrics as clarifying and restating the policy as originally intended – if a New gTLD Registry is not a .BRAND, then the Registry /cannot own all of the second level domains. /No single business can control all of the domain names of its industry. I hope this bit of history and analysis has been helpful to the discussion. I think the world would be happy to revisit these issues, if needed, but that would delay the next round of New gTLDs which none of us want to do. Best, Kathy

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Recordings, attendance & AC Chat from New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues call
by Julie Bisland Sept. 28, 2017

Sept. 28, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues held on Thursday, 28 September 2017 at 15:00 UTC. Adobe Connect recording (audio and visual): https://participate.icann.org/p8guf24g7vj/<https://participate.icann.org/p8guf24g7vj/?OWASP_CSRFTOKEN=96c8662b94871fcc…> The recordings of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: https://community.icann.org/x/_xkhB Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for 28 September 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues on Thursday, 28 September 2017 at 15:00 UTC Julie Bisland:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Liz Brodzinski:I hear you both! Michele Neylon:audio is loud and clear Karen Day:hello & happy Thursday/Friday everyone Julie Bisland:yes Michele Neylon:.office + .play are both trademarks though Alexander Schubert:Almost every premium keyword is trademarked in MULTIPLE TM registries! Jeff Neuman:.office itself is not a trademark that qualifies under Spec 13 Mike Rodenbaugh:I suspect Microsoft would disagree with that Jeff Neuman:The point is that we need to all understand and agree that the current rules are that if you have a valid trademark registration for a string that COULD have a generic connotation, but the trademark registration is for a use that is NOT for the use of the mark in connection with the potential generic connotation, that IS allowed as a closed gTLD Jeff Neuman:So the string apple, food, or any other term can be used as a closed TLD provided that the use of the TLD is consistent with the goods/services for which the string is trademarked Mike Rodenbaugh:There is NO definition whatsoever of "public interest" in ICANNland. It is whatever anyone wants to say it is on any given day and any given issue. Michele Neylon:Mike - yeah - it's a wonderfully fluffy term :) Mike Rodenbaugh:It's a ridiculously vague term Karen Day:IF you had a trademark REGISTRATION PRIOR TO THE DATE OF FILIING THE TLD APPLICATION ONLY. Mike Rodenbaugh:The so-called "rule against closed generics" is not one devised by the community. In fact, we came up with the opposite rule (that they should be allowed) in the run-up to 2012. Michael Flemming:Karen is correct. Michael Flemming:So pre-2012 Cheryl Langdon-Orr:sorry to be laye Cheryl Langdon-Orr:late Jim Prendergast:Is there standing GAC advice against closed generics? and where does overcoming that come into this. Mike Rodenbaugh:yes, so that GAC advice somehow became the new "rule" Michele Neylon:+1 Greg Alexander Schubert:The TM should be at least X years old (e.g. 5 years), and USED in at least X nations (not just registered, e.g. 25 nations). A simple 1 year old TM regisration is not good enough. Michele Neylon:the term is generic the usage in the case of apple isn't Michele Neylon:Apple using .apple doesn't bother me Kurt Pritz:The RPM Working Group uses the term "dictionary word" rather than "generic" Michele Neylon:IBM (for example) closing off .cloud just for their own use would bother me Trang Nguyen:@Jim, GAC category 2 advice says: "For strings representing generic terms, exclusive registry access should serve a public interest goal." Jim Prendergast:thx trang Mike Rodenbaugh:the Board then acted on this post 2012 applications Karen Day:@Alexander - and how will that foster innovation? Alexander Schubert:If a generic term is snacked up by a brand and "closed" - then it is inaccessable to the public. And that should not be! Michele Neylon:New TLDs to date haven't fostered much innovation unless you consider price gouging to be innovative Mike Rodenbaugh:@Alexander -- doesn't the same logic apply at the 2d level? Michele Neylon:the last innovative TLD I've seen was .tel and that was a roaring success Alexander Schubert:Industry giants will snoop up their industry related killer keywords - and shut them down. At about US $300k that is a STEAL! Michele Neylon:Alexander - exactly Mike Rodenbaugh:same thing has happened at 2d level Michele Neylon:and that bothers me Karen Day:@Michele that depends on your definition of success. For a brand, success has nothing to do with sales. Alexander Schubert:+1 Susan Payne:@Alexander I don't think thi si sthe place to unpick fundementals of TM law Susan Payne:companies can register TMs, they have to persuade the relevant TM office that it is valid and aceptable registration.That's it Jim Prendergast:http://domainincite.com/22114-loreal-is-using-closed-generic-ma… Susan Payne:and no-one is stopping you applying first for the purpose of running the TLD in a generic rather than a non-branded manner. There have been plenty of examples of that in round 1. Coach for example Jeff Neuman:Validated TLDs are not closed because they offer third party registrations Alexander Schubert:It is lawful to use a generic keyword for a TM - but not really advisable. Do it on your own risk. Don't tell the world that now that you use a generic term as a TM you need also to shut down the matching TLD. Doesn't fly with the general public, sorry. In TM law there are goods and service classes; in the DNS not! Therefore in the DNS generic keyword terms need to be accessable to the public! Jeff Neuman:That is very different than what we are talking about Mike Rodenbaugh:@Alexander the same argument can be made as to ..com? Greg Shatan:Maybe we need to clearly define "closed", if there's any doubt.... Alexander Schubert:Mike: Please specify! Mike Rodenbaugh:to be clear, I think it's a silly argument. why is DOTmakeup any worse to public interest than makeupDOTcom? Michele Neylon:Mike - I disagree - an entire TLD is the online equivalent of a country Mike Rodenbaugh:ok, then makeup.DE Michele Neylon:while a single domain is the equivalent of a bit of real estate Alexander Schubert:ICANN's mandate are TLDs - not the 2nd level namespace. Karen Day:Are we talking about GeneriPICs? Alexander Schubert:We are discussing the DNS evolution, on TOP-LEVEL! Michael Flemming:I Karen, I am not going to say no to that, but neither yes. Greg Shatan:@Alexander, I think Mike is saying we don't need any more regulation at the top level than there is at the second level, which is none. Karen Day:My question was to Michael - in the same way we are discussing GeoPICS Michael Flemming:Which Michael Karen Day:Thanks, Michael Michael Flemming:? Michael Flemming:Ok Karen Day:Flemming Mike Rodenbaugh:I see the public interest as the same. Frankly, generic.COM names are much more valuable than genericTLDs in many, many cases. Greg Shatan:Third parties have bought .makeup domain names. It's no more exclusive than .luxury. Mike Rodenbaugh:and nobody screams about that Susan Payne:@Jeff, the names aren't really free for L'oreal - they paid 185k for the registry Greg Shatan:So .makeup is a form of innovation.... Alexander Schubert:Greg: EXACTLY! That's why we ought to secure "equal access" - INSTEAD of enabling indsutry leaders to shut down generic keyword based namespaces. Greg Shatan:No one is "shutting down" anything. Mike Rodenbaugh:@Alexander you mean like CentralNIC with us.com, etc.? Kurt Pritz:@Michele: are you disagreeing with Jeff N's assertion that the restrictions on closed 'generics' can be gamed? Alexander Schubert:Mike: We can only regulate the top-level...... that's our only mandate. Mike Rodenbaugh:there is no mandate to regulate anything Michele Neylon:Kurt - I don't think so Alexander Schubert:Mike: We DO regulate the evolution of the DNS evolution, that's why we are in this call. Greg Shatan:ICANN is not a regulator. Mike Rodenbaugh:+1 GG Greg Shatan:Regulating innovation is an oxymoron. Jeff Neuman:ok, to clarify. Michele, you are saying as a general rule, you can not have an exclusive use TLD. However, you can have an exclusive use TLD, if you make it nearly impossible for every third party to register a name, but make it easy for you to register a name. For example, if I want .phone (and really just use it for myself), I cant say I am an exclusive use registry, but I can say that everyone else has to pay me $10,000,000 for a name, but I can give second level names to myself for free. Michele Neylon:Jeff - that's one way of summarising my thoughts Trang Nguyen:@Alexander, ICANN's stated Mission in its Bylaws specifically says that ICANN is not a regulator: "ICANN shall not regulate … For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority." Jeff Neuman:Overall the point is that the rule against closed generics to me (personally) does not make any sense when it can be so easily gamed. We have to choose one way or the other. If we allow closed generics, lets allow them. If we do not want to allow closed generics, then we need to make sure it is not gamed. Right now, we have huge inconsistencies Alexander Schubert:So when we deny ISIS to apply for .isis then that is ...... NOT "regulation"? Alexander Schubert:Maybe ISIS wants to "innovate"? Alexander Schubert:We do not want that - hence regulate the DNS in a way that thy can't do it. Mike Rodenbaugh:This was very widely and publicly debated prior to 2012 and there was no consensus to preclude 'closed generics'; so they were explicitly allowed. I have still never seen any real explanation as to harm caused by them. Alexander Schubert:Maybe the term "regulate" is wrong here - we issue "policies" Karen Day:Why any special objections other than what is already in place Michele Neylon:I don't think it's coming from my line anyway Karen Day:lots of beep beeps Julie Bisland:Reminder: please mute when not speaking :) Jeff Neuman 2:I personally believe an objection process needs to focu on the harms to end users (as opposed to harms to competitors, registrars, registrants, etc). Mike Rodenbaugh:before we consider an objection process, don't we need to agree on some substantive basis to object? Greg Shatan:Exactly, Mike. Greg Shatan:I want to clarify that I'm not "in favor of" closed generics. The question is whether there is an objective basis within ICANN's remit to restrict them. Jim Prendergast:Jeff - Im not so sure the ALAC would agree with your position on addressing registrants comments but they have to speak for themselves (and internet users) Michael Flemming:Just remember, everone, that today's call is for 90 minutes. Jeff Neuman 2:objections by competitors should not be "ignored"> They should be handled by existing competition laws with existing competition authorities Jeff Neuman 2:Its not about "domain names"..... avri doria:even if .cloud was takne for the private use of a meteorlogical sociaty? Michael Flemming:Steve, could we get the list of proposed cons up? Michael Flemming:I think Emily did a sheet for that. Cheryl Langdon-Orr:perhaps we need to proactivly engage with end users to do so, then Jeff .... not seeing a slew of their representatives in this call for example Steve Chan:@Michael, let me try and dig that up avri doria:even if .book was taken by the antique bookbinders of the world? Michael Flemming:I can send it to you. Greg Shatan:As a recovering antitrust lawyer, I don't. see an antitrust concern that would arise. Jeff Neuman 2:Harm in competition law is ONLY assessed after the harms are realized....not in order to prevent theoretical harms Michael Flemming:Greg, if I don't all on you after Jeff, please go ahead. Steve Chan:@Michael, I justed grabbed the document from the WIki Michael Flemming:Need to send a sheet to Steve Michael Flemming:ALright Michael Flemming:Nvm Steve Chan:Ready to go whenever you're ready Michael Flemming:I will stay here. Michael Flemming:Lets put it up Jon Nevett:Don't think Jeff correctly stated US competition law Karen Day:+1 Jeff Jeff Neuman 2:Greg said that better than I did Jeff Neuman 2:Having an advantage by virtue of having a TLD is not anticompetitive in and of itself Mike Rodenbaugh:Thanks for putting this doc up; some real good laughs in here. "The impact is greater" of TLDs over 2d level names? Mike Rodenbaugh:"search engines are likely to give priority...." Jeff Neuman 2:Mike - these are all drawn from comments we have received Jeff Neuman 2:NO value judgement by the WT leadership is exercized in putting this chart together Mike Rodenbaugh:"closed generics wil put entire cultural identities at risk"! Jon Nevett:I'm not taking a position on this issue at all, but US competition law will look at some conduct before it occurs avri doria:the problem with a rule is that is excludes names that would not be a competaative problem as well as those that might. Jon Nevett:neither here nor there, but that point was typed in the notes Jeff Neuman 2:Conduct yes......theoretical conduct no Greg Shatan:Antitrust authorities will block mergers before they happen. avri doria:ie. clouds for meteorologists and books for bookbinders Jon Nevett:yes theoretical -- happy to take it offline Jeff Greg Shatan:But that is a very specific legal construct under a specific arm of competition law. Jon Nevett:correct Greg -- the whole HSR process is pre-conduct Jeff Neuman 2:HSR is for business consolidations where the result of which is having true market power. avri doria:is no compromise postion possible? have we explored the middle space? Susan Payne 3:some of these proposed harms are ludicrous, so no Greg Shatan:I filed over 150 HSRs prior to "recovery". Julie Bisland:avri, cannot hear you Julie Bisland:no audio for you, Avri Michele Neylon:Can't decipher that noise Jon Nevett:@jeff just correcting the record -- you just went a bit too far in your statement -- no biggie avri doria:i was trying to speak. avri doria:will call in. Greg Shatan:And the economic/legal analysis to get a merger blocked is intense. Julie Bisland:ok, thank you avri doria:but there is alwasy a middle space, just have to look for it/ Mike Rodenbaugh:why aren't we looking specifically at the 'closed generics' that are now in the market? what harm has been caused by DOTmakeup? Gg Levine (NABP):Shouldn't the objector have to demonstrate harms? Julie Bisland:haha, you sound great Avri Phil Buckingham 2:..so how do we move this forward . do we say that every TLD is open unless ............ Jeff Neuman 2:@Phil - no we cant say that. That would be setting a policy that top level domains can only have one business model - that of selling second level domains Greg Shatan:I think we say every TLD is free to operate as it sees fit with regard to third party second level domains (or not), unless.... And the "unless" needs to meet a very high bar. Greg Shatan:But Jeff, if people and companies can't buy and sell any domain name they want, how will anyone make any money? Cheryl Langdon-Orr:@Avri good point there is often reaction to the who holds a generic name Jeff Neuman 2:@greg - I assume that was sarcasm Greg Shatan:From me -- yes. Mike Rodenbaugh:I've got lots more sarcasm where that came from Jeff Neuman 2:ICANN needs to be neutral. It can not make determinations based on "who" applied for a string. Greg Shatan:WTF is harm to the public interest? Mike Rodenbaugh:I wonder how every other cosmetics company has managed to stay in business despite L'Oreal owning and effectively closing DOTmakeup for so long now Susan Payne 3:@Mike - LOL Jeff Neuman 2:@Greg - arent you the chiar of that accountability subteam :) Greg Shatan:No, just the Jurisdiction subgroup.... Jon Nevett:@greg -- looking for a deal on .WTF? Mike Rodenbaugh:none of these purported harms are legitimate. period. Mike Rodenbaugh:where is the proof, based on what has happened in the market? Greg Shatan:@Jon -- LOL. Jon Nevett::-) Trang Nguyen:Implementation of GAC category 2 "exclusive access" advice is here: https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_… avri doria:that does opne the door to a middle postion. Susan Payne 3:it's because the GAC said "For strings representing generic terms, exclusive registry access should serve a public interest goal." Cheryl Langdon-Orr:it does @Avri... worth persuing... Cheryl Langdon-Orr:@ Greg, yes Innovation is a stated aim of new names programs, so pity to not allow for it ;-) Jeff Neuman 2:@Trang correct. But ICANN never evaluated those responses. It paints the picture that 100+ TLDs voluntarily withdrew their desire to be exclusive use application Jeff Neuman 2:but they did not. avri doria:e.g. require a CG to define and PI and subject it something equivlent to the giggle test. Jeff Neuman 2:They eventaully did when it became clear after months that ICANN was not going to approve their TLDs IF they insisted on staying closed Jeff Neuman 2:in essence ICANN sent the message "if you want to stay closed, you will not move forward in this round" avri doria:that is what i call the defacto policy Mike Rodenbaugh:@Jeff that is right, they withdrew beause they didn't want many years of delay or outright obstruction from GAC and Michele's army. they needed to get to market to recoup investment. (which seems funny now) Jeff Neuman 2:So faced with the choice, most said, ok we will say we are not exclusive use Karen Day:@Jeff that is 100% what happened. Karen Day:Told change you application language or go home and lose your money. Mike Rodenbaugh:yes, that is what happened Jim Prendergast:They made it perfectly clear by putting the prohibition into the contract Trang Nguyen:There were 189 applications that were mentioned in GAC category 2 advice. Trang Nguyen:Of those, here's a break-down: Trang Nguyen:139 indicated that the applied-for TLDs will not be operated as exclusive access TLDs; 12 indicated that the applied-for TLDs will be operated as exclusive access registries; 35 indicated that their applications currently state that the applied-for TLDs will be operated as exclusive access registries, but the applicants will not operate them as exclusive access registries. Mike Rodenbaugh:BTW the GAC list was very arbitrary.... there were many others that inexplicably were not included Michele Neylon:Amazon changed some of theirs for example Phil Buckingham:@ Trang - could we not put together a database . Exacly Mike Mike Rodenbaugh:and regardless of community policy development Cheryl Langdon-Orr:very true @m Kurt Pritz:@ Michele: but we have to differentiate ICANN missteps and creating an unworkable policy Cheryl Langdon-Orr:ichele, there was a lot of "pressures" in thee last round Julie Bisland:next WT2 call-- Thursday, 05 October 2017 at 20:30 UTC for 90 minutes :) avri doria:hard to tell Michele Michele Neylon:I'll just glare at my data retention waiver Michele Neylon:and how "easy" that was to get Jeff Neuman 2:Correct - but we need to make sure the record is accurately reflected Cheryl Langdon-Orr:bye for now. Greg Shatan:Mike, thanks for chairing so many of these calls in your night! avri doria:bye

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Actions/Discussion Notes: Work Track 2 Sub Team Meeting 28 September
by Julie Hedlund Sept. 28, 2017

Sept. 28, 2017

Dear Work Track members, Please find below the action items and discussion notes from the call on 28 September. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/9hkhB. The slides are attached and the chat room excerpts included below for reference. Best, Julie Julie Hedlund, Policy Director -------------------------------------------------------------------------- Action Items and Discussion Notes: 28 September 2017 Continuation of CC2 Comments and discussion on Closed Generics: Slide 3: What is a "Closed Generic"? Slide 6: Key findings -- Several cases where a generic string may operate in an exclusive manner. Slide 7: Path Forward -- In order to move forward with policy, we must address several elements Slide 8: Path Forward -- Some Ideas: Discussion: -- Back to slide 6: Even though there is a rule against closed generics. If you have a trademark in a term and that is registered in a certain class of goods and services. Provided an entity uses that TLD in accordance with those goods and services then they can be under Spec 13 an exclusive use TLD. Apple, United, etc. -- On slide 6 -- some trouble with the nomenclature and citation of .apple. That is not a generic string. It is an arbitrary string. We are overusing the term "generic". The issue of a closed generic needs to be separated from a closed arbitrary string. Needs to be confined to something being used in the dictionary sense, such as .makeup. Be clear what a closed generic is and is not. -- The idea for putting it on slide 6 is to separate them. Yes, in some cases it could be seen as a generic string, because it is operating with a trademark it is not a closed generic. We need to propose some changes to language so there can be misconceptions. -- Ignore what it says on the slide and move beyond that. Maybe call it "dictionary words". The point that we are trying to get across that any word, distionary or not, can be used as an exclusive use registry if used in accordance with trademark registration goods and services description. -- Do want to look at the claim that by making certain decisions you are rendering an open TLD closed. All registry operators have policies and processes that they apply to registration. As long as you follow them you can register a domain name. Look at .bank, which is highly validated. That is highly vetted, which is different. Same with pricing. -- We could at least recognize and discuss if there could be a way to mitigate harms while allowing the exclusive operation of generic strings while having mitigation measures for strings that may pose harm to the public interest. -- When we say "defacto closed" we are not talking about .bank. You could have defacto ways to close your TLD. Any TLD that charges any third party the same amount that would be the same rules for everyone. But .makeup can say everyone is $10K except for the registry itself. Different from a validated TLD. -- Is there harm to the public interest by allowing a TLD that has a term that is used in a dictionary sense but sets retrictions for any other party than itself. If there is harm what is it and how do we mitigate it? -- In the case of an exclusive use domain no mattter how much money you have you can't get one. Charging more doesn't make a term exclusive, some are arguing. If you are talking about equal treatment that opens up another can of worms. >From the chat: Michele Neylon: .office + .play are both trademarks though Alexander Schubert: Almost every premium keyword is trademarked in MULTIPLE TM registries! Jeff Neuman: .office itself is not a trademark that qualifies under Spec 13 Mike Rodenbaugh: I suspect Microsoft would disagree with that Jeff Neuman: The point is that we need to all understand and agree that the current rules are that if you have a valid trademark registration for a string that COULD have a generic connotation, but the trademark registration is for a use that is NOT for the use of the mark in connection with the potential generic connotation, that IS allowed as a closed gTLD Jeff Neuman: So the string apple, food, or any other term can be used as a closed TLD provided that the use of the TLD is consistent with the goods/services for which the string is trademarked Mike Rodenbaugh: There is NO definition whatsoever of "public interest" in ICANNland. It is whatever anyone wants to say it is on any given day and any given issue. Michele Neylon: Mike - yeah - it's a wonderfully fluffy term :) Mike Rodenbaugh: It's a ridiculously vague term Karen Day: IF you had a trademark REGISTRATION PRIOR TO THE DATE OF FILIING THE TLD APPLICATION ONLY. Mike Rodenbaugh: The so-called "rule against closed generics" is not one devised by the community. In fact, we came up with the opposite rule (that they should be allowed) in the run-up to 2012. Michael Flemming: Karen is correct. Michael Flemming: So pre-2012 Jim Prendergast: Is there standing GAC advice against closed generics? and where does overcoming that come into this. Mike Rodenbaugh: yes, so that GAC advice somehow became the new "rule" Michele Neylon: +1 Greg Alexander Schubert: The TM should be at least X years old (e.g. 5 years), and USED in at least X nations (not just registered, e.g. 25 nations). A simple 1 year old TM regisration is not good enough. Michele Neylon: the term is generic the usage in the case of apple isn't Michele Neylon: Apple using .apple doesn't bother me Kurt Pritz: The RPM Working Group uses the term "dictionary word" rather than "generic" Michele Neylon: IBM (for example) closing off .cloud just for their own use would bother me Trang Nguyen: @Jim, GAC category 2 advice says: "For strings representing generic terms, exclusive registry access should serve a public interest goal." Jim Prendergast: thx trang Mike Rodenbaugh: the Board then acted on this post 2012 applications Karen Day: @Alexander - and how will that foster innovation? Alexander Schubert: If a generic term is snacked up by a brand and "closed" - then it is inaccessable to the public. And that should not be! Michele Neylon: New TLDs to date haven't fostered much innovation unless you consider price gouging to be innovative Mike Rodenbaugh: @Alexander -- doesn't the same logic apply at the 2d level? Michele Neylon: the last innovative TLD I've seen was .tel and that was a roaring success Alexander Schubert: Industry giants will snoop up their industry related killer keywords - and shut them down. At about US $300k that is a STEAL! Michele Neylon: Alexander - exactly Mike Rodenbaugh: same thing has happened at 2d level Michele Neylon: and that bothers me Karen Day: @Michele that depends on your definition of success. For a brand, success has nothing to do with sales. Alexander Schubert: +1 Susan Payne: @Alexander I don't think thi si sthe place to unpick fundementals of TM law Susan Payne: companies can register TMs, they have to persuade the relevant TM office that it is valid and aceptable registration.That's it Jim Prendergast: http://domainincite.com/22114-loreal-is-using-closed-generic-makeup-in-an-i… Susan Payne: and no-one is stopping you applying first for the purpose of running the TLD in a generic rather than a non-branded manner. There have been plenty of examples of that in round 1. Coach for example Jeff Neuman: Validated TLDs are not closed because they offer third party registrations Alexander Schubert: It is lawful to use a generic keyword for a TM - but not really advisable. Do it on your own risk. Don't tell the world that now that you use a generic term as a TM you need also to shut down the matching TLD. Doesn't fly with the general public, sorry. In TM law there are goods and service classes; in the DNS not! Therefore in the DNS generic keyword terms need to be accessable to the public! Jeff Neuman: That is very different than what we are talking about Slide 8 -- Consideration for a path forward: -- Need to document all the places where public interest was mentioned. Feedback on: -- Is the string considered generic? -- Will the TLD be operated exclusively? -- Is there evident of harm against the public interest? -- Are there any mitigation measures that could be introduced. Discussion: -- As far as predictability, to take one business model and say you can't do that doesn't allow registry operators to run their business in a way that they wish as long as it is not causing negative affects on the technical operational of the Internet. -- Concerned with the use of the word "public interest". Careful about using terms that validate themselves. -- Don't think you could ask a registry if what they are doing is against the public interest. -- What about having an objection procedure? One issue with objection procedures unless you have super deep pockets there was no way to access them. There was no clarity as to how the comments would be handled. An objection procedure would need to be more accessible. -- People need to remember that this issue was addressed in GAC advice and there were a very large number of people who objected. Opposing an application and challenging to get exemptions, there is no reason that can't be a two-way street. -- Part of the issue is where do we stop? We have a number of different objection processes already in place. We would need to set criteria. -- Need to consider if there are other models that are troublesome. Don't look at closed generics in a vacuum. Just one of the ways registries could be run in ways that people don't like. >From the chat: Mike Rodenbaugh: This was very widely and publicly debated prior to 2012 and there was no consensus to preclude 'closed generics'; so they were explicitly allowed. I have still never seen any real explanation as to harm caused by them. Alexander Schubert: Maybe the term "regulate" is wrong here - we issue "policies" Karen Day: Why any special objections other than what is already in place Jeff Neuman 2: I personally believe an objection process needs to focu on the harms to end users (as opposed to harms to competitors, registrars, registrants, etc). Discussion on Harms: -- Before we focus on objections we need to agree on a basis to object. Need focus on harms. If we are talking to harms to registrants because they can't register a name -- is that really what we need to protect? At the end of the day it is to look at harms to end users because a TLD is closed. If we focus on that and come up with what we want to protect the global community from. -- Disagree that objections from competitors should be ignored. If you look at terms such as "harm", it can be construed as many things. You need to allow organizations to voice their objections whether or not competitors. -- ICANN is not the place to deal with competition law. Competition law can only look after the fact and then take steps to address that. - If you have monopoly power there are lots of things you can't do. ICANN is a place where competitors get together. If there is collusive behavior there could be an issue. There is no guarantee of a level playing field and there does not appear to be a legal issue here. -- Those in favor or against closed generics, the arguments have not changed. -- Could the challenge procedure be based on the proposed harms? - Existing policy recommendations did not provide a clear direction, though it was generally understood. Is there somewhere in between no problem with closed generics and should be completely disallowed? Is there some way to handle the public policy concerns and still allow? Is there room for compromise? - If we're getting into the business of challenging business models, should it be limited to just closed generics? And just because there is this rule, doesn't mean we need to continue it. There should be benefit and harms analysis. -- NGPC in relation to closed generics, was concerned about generics that did not serve the public interest. - Who's responsibility is it to determine the validity of harms? Jeff: After GAC Advice, ICANN asked applicants how the registry would be in the public interest or not harm the public interest. The burden was on the applicant to demonstrate. What may be more appropriate is for the challenger to demonstrate that intended usage is against the public interest. -- There was the assumption that TLDs would support third party registrations, or created marketplaces for 2nd-level domains. THere should be more substantial harms than just foreclosing a possible marketplace. There should not be a public interest arguement that a 3rd party registrant model should be the preferred model. -- ICANN Bylaws - nothing about closed generics specifically. - ICANN asked applicants why exclusive access is in the public interest. No evaluation of response about substance of arguments. Insistence on maintaining closed generic meant being on hold and majority changed their exclusive use rules. -- Understanding the numbers provided by Trang. 174 have reluctantly indicated they will not operate as exclusive use. How about the 12? All but 5 withdrew. 1 signed Spec 13. Rest signed RA. -- Even if the exclusive use was in the public interest, didn't seem to be a factor. -- Just because past procedure had mistakes does not necessarily mean entire process was broken. >From the chat: Mike Rodenbaugh: before we consider an objection process, don't we need to agree on some substantive basis to object? Jeff Neuman 2: Harm in competition law is ONLY assessed after the harms are realized....not in order to prevent theoretical harms Susan Payne 3: some of these proposed harms are ludicrous, so no avri doria: is no compromise postion possible? have we explored the middle space? Cheryl Langdon-Orr: @Avri good point there is often reaction to the who holds a generic name Trang Nguyen: Implementation of GAC category 2 "exclusive access" advice is here: https://newgtlds.icann.org/en/applicants/advisories/gac-cat2-advice-19mar14… Jeff Neuman 2: @Trang correct. But ICANN never evaluated those responses. It paints the picture that 100+ TLDs voluntarily withdrew their desire to be exclusive use application Jeff Neuman 2: but they did not. Jeff Neuman 2: They eventaully did when it became clear after months that ICANN was not going to approve their TLDs IF they insisted on staying closed Jeff Neuman 2: in essence ICANN sent the message "if you want to stay closed, you will not move forward in this round" avri doria: that is what i call the defacto policy Mike Rodenbaugh: @Jeff that is right, they withdrew beause they didn't want many years of delay or outright obstruction from GAC and Michele's army. they needed to get to market to recoup investment. (which seems funny now) Jeff Neuman 2: So faced with the choice, most said, ok we will say we are not exclusive use Karen Day: @Jeff that is 100% what happened. Karen Day: Told change you application language or go home and lose your money. Mike Rodenbaugh: yes, that is what happened Jim Prendergast: They made it perfectly clear by putting the prohibition into the contract Trang Nguyen: There were 189 applications that were mentioned in GAC category 2 advice. Trang Nguyen: Of those, here's a break-down: Trang Nguyen: 139 indicated that the applied-for TLDs will not be operated as exclusive access TLDs; 12 indicated that the applied-for TLDs will be operated as exclusive access registries; 35 indicated that their applications currently state that the applied-for TLDs will be operated as exclusive access registries, but the applicants will not operate them as exclusive access registries.

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