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=96c8662b94871fccf55d58833d3c9ea8813255262baec5df38f242b37e427b7b> 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-makeup-in-an-in... 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_a... 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