December 2016 - Gnso-newgtld-wg-wt3

Actions/Discussion Notes: Work Track 3 Sub Team Meeting 20 December
by Julie Hedlund Dec. 21, 2016

Dec. 21, 2016

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 20 December. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the recording. Please also see the recording on the meetings page at: https://community.icann.org/display/NGSPP/Work+Track+3+Meetings. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 20 December 1. Update from the Full PDP Working Group (Avri Doria) · Focused on completing the first reading of the CC1. Completed that process. · Next step is for the Chairs and staff to try to pull together a first draft of a document that makes recommendations based on responses to CC1 · Poll on changing the rotation schedule to take the 3:00 UTC Monday out of rotation and replace with 3:00 UTC Tuesday. 2. Recap and Positioning on Limited Public Interest Objections a. Content & function for purpose of policy stated in AGB 3.2.2.3 and 3.5.3 b. Needs with regard to future implementation · Last meeting interesting discussion on this topic and there seemed to be some consensus around not needing major changes. Do we agree? [No objections offered.] · Think about a different interpretation on terminology. >From the chat: Gg Levine (NABP): "Universally" seems unrealistic as an alternative to "generally." Karen Day: universal isn't realistic so is there anything better than generally? Gg Levine (NABP): Sorry, I don't have a better suggestion than generally. Karen Day: Gg - Me either so absent anyone coming up with one, looks to me like "generally" is what we'll need to stick with. c. ALAC lack of standing · Discussion about the issue of ALAC being given funding to participate in the Limited Public Interest Objection process but not having standing. · Will be a discussion in the ALAC on this topic, whether to continue the process. Will come back to this group as that discussion proceeds. · The ALAC was given funding but not given standing, like the independent objector. To file a public interest objection you have to have some involvement in the issue. Classic Catch-22. · So, the solution could be to give ALAC standing or to removing the funding. · Maybe the intent was to fund ALAC where they would otherwise have standing to object. · Don't think it was actively discussed. ALAC decided to file objections similarly to filing advice to the Board (such as on confusingly similar). One way or another it has to be clarified or withdrawn. Not much more to say on this until we know whether or not the ALAC wants to continue with this option. · Did the ALAC file for the same things as the Independent Objector did? If so that would be duplication. · The Independent Objector was to pick up objections from those who had no other way to object. ALAC like the other ACs had the ability to object to things that were within their area of concern. Might need to say something about how the IOs are selected and used, to tighten up the descriptions. >From the Chat: Greg Shatan: Maybe the intent was to allow ALAC to object only where they had standing. Annebeth Lange, ccNSO: Good points from Alan here. ALAC is representing the users, even if it is difficult to prove. Paul McGrady 2: Apologies if this has already been asked, but were there times when ALAC filed an objection on a string that the I.O. didn't object to? Cheryl Langdon-Orr (CLO): that was the rationale for being funded to object Yes Annabeth Kiran Malancharuvil: I'm okay with standing for alac if the objection process requires alac to justify why this is on behalf of users. avri doria: lots of things may not have appeared clear to the panelists all along the way. By default however, it will stand as it is. Greg Shatan: Did ALAC analyze the standing issue before filing the objections? Or was it just assumed that there would be standing? Karen Day: @Greg - we're looking at doing deeper research in the objections themselves and if we get it lined up we will definately add this question as one to include. d. Does the process invite lobbying from 3rd parties? · Example: WHO lobbying ALAC. Concerns that this could be a problem. · There was an allegation that ALAC was being gamed. There is no question that the WHO is one of the groups that brought this to ALAC's attention. They carried out due diligence. Don't think it was gaming. · Clarification: Question about lobbying was in relation to the ALAC funding and standing issues. · One could be more clear if ALAC is funded again what their process would be. Could say that it is appropriate that things are brought to their attention according to their user community. Separate from whether there should be funding for ALAC and only ALAC. Needs a revisit overall. >From the chat: Kiran Malancharuvil: how would you ever solve for that? Paul McGrady 2: Isn't the WHO an end user? Can't an end user ask the ALAC for help? I guess I don't see the gaming. Kiran Malancharuvil: agree avri doria: i think the notion of gaming and esepcially accusations of gaming are pernitious and should be avoided as much as possible. Cheryl Langdon-Orr (CLO): agree avri doria: judging the intentionality of others is really hard. Annebeth Lange, ccNSO: @Avri - agree Greg Shatan: WHO is an IGO and thus aligned more with the GAC, but I suppose we could also call them an end-user. Alan Greenberg: Note that Jeff made it clear he was taking off his chair hat and speaking with relation to one of the applicants. (If I remember correctly). We did not class WHO as an end user, but as a group that alerted us to an end-user issue. Kurt Pritz: (1) I found 23 Limited Public Interest Objections - all seem bona fide except of course, we cannot tell with the Independent Objector or ALAC; (2) Everyone has standing to file a Limited Public Interest Objection, ALAC file one and withdrew it (although I do not know why) so why was ALAC denied standing? Kiran Malancharuvil 2: I honestly don't understand how we can call anything gaming. This is an open process. Organizations have every right to engage in the process. I think there's a tendency at ICANN to devalue certain voices (corporations, organizations, etc.) and I think that's dangerous. Multi-stakeholder is multi-stakeholder. Annebeth Lange, ccNSO: For me, gaming is something very different from what we are talking about now. I must be allowed to make a stakeholdergroup aware of a problem. Paul McGrady 2: @Annebeth - agree. "Gaming" is something sinister. End Users making ALAC aware of a concern is not. Phil Buckingham: +1 Annabeth. 3. Legal Rights Objections – AGB 3.2.2.2 and 3.5.2 / Principal G – Recommendation 3; See Wiki: https://community.icann.org/display/NGSPP/4.4.3+Objections a. Review of Objections Statistics with links to results for LRO cases. b. Review of WIPO Final Report on LRO c. Review of INTA Report – The ICANN LRO: Statistics and Takeaways: See: https://community.icann.org/x/Vz2AAw · Instead of trying to guess based on the statistics that we had an overwhelming number of applicants prevail and therefore the cases must have been no good, which should step back and suggest changes to the policy to make it useful for the future. One reason why the complainents lost because the LRO isn't tailored to do its job. Enfringement has to do with use, which is hard to prove. Not a useful policy. Need to do some significant reworking if we are going to protect consumers. · One of the issues that Paul McGrady has raised in his proposal and possible solution -- anyone else want to weigh in? · Seems that the LRO were nearly impossible to win from the mark owner, if the mark had more than one meaning the panelists decided it wasn't bad faith. Need more points for an inference of bad faith. · A lot of this stems from the fact that the standards that were being applied were kind of a hash, and also whether there was precedential value on decisions and what is being judged. · Not a lot of sympathy for trademark names when we are talking about a dictionary term. Don't want to take a dictionary word out of common use >From the chat: · Kurt Pritz: Are there any decisions where we thought the panel incorrectly found for the applicant? · Paul McGrady 2: Bad faith can only be inferred from the facts - unless a party admits to it - so we need more inference points. · avri doria: i think trying to decide that a decsion of a panel was right or wrong is tough since there are two sides, at least, to each of the cases. we can mre look for places where different panels seemed to decide similar cases in a contradictory manner. · Kurt Pritz: Abuse or infringement is generally demonstrated through use and there is no "use" at the application stage. (As Paul said.) But we should take care not to make a process that is more easily winnable just to balance out the results. There should be real infringement before an application is defined. · Paul McGrady 2: I think abuse can be shown without use as can dilution; infringement is based on use though. · Kurt Pritz: Has the delegation of .coach or .express resulted in abuse? · Paul McGrady 2: http://purses.coach/ leads to PPC ads, so yes. @Robin, we should be careful with throwing around terms like "generic." · Kurt Pritz: Then the RPM can be used with that specific example for purse.coach but all legitimate uses of a .coach name should not be barred. · Nathaniel Edwards: Yes, but because a trademark is a dictionary term does not mean that it is not an arbitrary or fanciful trademark entitled to broad protection. GOOGLE had a dictionary meaning before it was a trademark. · Greg Shatan: wallets.coach and handbags.coach do the same. Feh. · Paul McGrady 2: Dictionary entry does not = generic. · Rubens Kuhl: Google did not. Googol did. · Greg Shatan: Looks like all of those (bags.coach, too) are owned by Coach. Apparently registered defensively. Coincidence or business plan? · avri doria: Again, indicating intentions is risky. Paul McGrady on Legal Rights Objection 3.2.2.2 [Reading through the attached document with proposed language.] Action: Look through the proposal and discussion on the list/at next meeting.

3 2

Recording, Attendance & AC Chat for New gTLD Subsequent Procedures Sub Team - Track 3 - String Contention, Objections & Disputes
by Nathalie Peregrine Dec. 20, 2016

Dec. 20, 2016

Dear All, Please find the attendance and recording of the call attached to this email and the AC Chat below for the New gTLD Subsequent Procedures Sub Team – Track 3 - String Contention, Objections & Disputes held on Wednesday, 20 December 2016 at 20:00 UTC. <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn…> The recordings of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<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> http://mm.icann.org/pipermail/gnso-newgtld-wg-wt3 Wiki page: https://community.icann.org/x/GwSbAw Thank you. Kind regards, Nathalie ------------------------------- Adobe Connect chat transcript for 20 December 2016 Nathalie Peregrine:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes call onthe 20th December 2016 at 21:00 UTC Nathalie Peregrine:Meeting Page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Paul McGrady:Avri & Cheryl, I hope you enjoyed your 23 free minutes today. I did. :) avri doria:Paul did not know what to do with my time. Paul McGrady:Happy to walk through it. It is meant only to spark discussion - :) Cheryl Langdon-Orr (CLO):paul Cheryl Langdon-Orr (CLO):/Avri Karen Day:silence will be taken as agreement :) Cheryl Langdon-Orr (CLO):I am baby sitting so I was kinda occupied ;-) Gg Levine (NABP):"Universally" seems unrealistic as an alternative to "generally." Cheryl Langdon-Orr (CLO):thx Alan Kiran Malancharuvil:Robin, can you explain more about why ALAC would have standing? and why icann said no? Karen Day:+1 Gg - i Karen Day:universal isn't realistic so is there anything better than generally? Gg Levine (NABP):Sorry, I don't have a better suggestion than generally. Cheryl Langdon-Orr (CLO):access to funding for an objection Karen Day:Gg - Me either so absent anyone coming up with one, looks to me like "generally" is what we'll need to stick with. Greg Shatan:Maybe the intent was to allow ALAC to object only where they had standing. Annebeth Lange, ccNSO:Good points from Alan here. ALAC is representing the users, even if it is difficult to prove. Cheryl Langdon-Orr (CLO):that was the rationale for being funded to object Yes Annabeth Karen Day:Jeff posted an opinion to the list, perhaps he can speak to it when he joins the call. Paul McGrady 2:Apologies if this has already been asked, but were there times when ALAC filed an objection on a string that the I.O. didn't object to? Kiran Malancharuvil:I'm okay with standing for alac if the objection process requires alac to justify why this is on behalf of users avri doria:lots of things may not have appeared clear to the panelists all along the way. avri doria:by default however, it will stand as it is. Greg Shatan:Did ALAC analyze the standing issue before filing the objections? Or was it just assumed that there would be standing? Alan Greenberg:disconnected Greg Shatan:Maybe we need a Co-Dependent Objector.... Alan Greenberg:Can I please have a dialout to +1 514 487 9001 Karen Day:@Greg - we're looking at doing deeper research in the objections themselves and if we get it lined up we will definately add this question as one to include. Paul McGrady 2:@Avri- thanks. Good things to think about. Kiran Malancharuvil:how would you ever solve for that? Kiran Malancharuvil:sorry, not on audio Paul McGrady 2:Isn't the WHO an end user? Can't an end user ask the ALAC for help? I guess I don't see the gaming. Kiran Malancharuvil:agree avri doria:i think the notion of gaming and esepcially accusations of gaming are pernitious and should be avoided as much as possible. Cheryl Langdon-Orr (CLO):agree avri doria:judging the intentionality of others is really hard. Annebeth Lange, ccNSO:@Avri - agree Greg Shatan:WHO is an IGO and thus aligned more with the GAC, but I suppose we could also call them an end-user. Alan Greenberg:Note that Jeff made it clear he was taking off his chair hat and speaking with relation to one of the applicants. (If I remember correctly). Alan Greenberg:We did not class WHO as an end user, but as a group that alerted us to an end-user issue. Kurt Pritz:(1) I found 23 Limited Public Interest Objections - all seem bona fide except of course, we cannot tell with the Independent Objector or ALAC; (2) Everyone has standing to file a Limited Public Interest Objection, ALAC file one and withdrew it (although I do not know why) so why was ALAC denied standing? Kiran Malancharuvil 2:I honestly don't understand how we can call anything gaming. This is an open process. Organizations have every right to engage in the process Kiran Malancharuvil 2:I think there's a tendency at ICANN to devalue certain voices (corporations, organizations, etc.) and I think that's dangerous. Multi-stakeholder is multi-stakeholder Annebeth Lange, ccNSO:For me, gaming is something very different from what we are talking about now. I must be allowed to make a stakeholdergroup aware of a problem. Paul McGrady 2:@Annebeth - agree. "Gaming" is something sinister. End Users making ALAC aware of a concern is not. Phil Buckingham:+1 Annabeth. Steve Chan:The resources that Robin has and will be referencing are available on the WIki here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Kurt Pritz:Are there any decisions where we thought the panel incorrectly found for the applicant? Kurt Pritz:evidently not working Nathalie Peregrine:@ Kurt, I can dial out to you if you prefer Kurt Pritz:i'll try later Paul McGrady 2:Bad faith can only be inferred from the facts - unless a party admits to it - so we need more inference points. avri doria:i think trying to decide that a decsion of a panel was right or wrong is tough since there are two sides, at least, to each of the cases. we can mre look for places where different panels seemed to decide similar cases in a contradictory manner. Kurt Pirtz:Abuse or infringement is generally demonstrated through use and there is no "use" at the application stage. (As Paul said.) But we should take care not to make a process that is more easily winnable just to balance out the results. There should be real infringement before an application is defined. Paul McGrady 2:I think abuse can be shown without use as can dilution; infringement is based on use though. Kurt Pirtz:Has the delegation of .coach or .express resulted in abuse? Paul McGrady 2:https://urldefense.proofpoint.com/v2/url?u=http-3A__purses.coach_&d=DgIFa… leads to PPC ads, so yes. Paul McGrady 2:@Robin, we should be careful with throwing around terms like "generic." Kurt Pirtz:Then the RPM can be used with that specific example for purse.coach but all legitimate uses of a .coach name should not be barred Nathaniel Edwards:Yes, but because a trademark is a dictionary term does not mean that it is not an arbitrary or fanciful trademark entitled to broad protection. GOOGLE had a dictionary meaning before it was a trademark. Greg Shatan:wallets.coach and handbags.coach do the same. Feh. Paul McGrady 2:Dictionary entry does not = generic. Rubens Kuhl:Google did not. Googol did. Alan Greenberg:Rubens is right. Paul McGrady 2:I am happy to walk through my strawman now Annebeth Lange, ccNSO:A trademark can be degenerated, and a generic name can be a trademark, so we must be careful here Rubens Kuhl:What a Googol is: https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_… Alan Greenberg:10 ^ 100 Alan Greenberg:Invented by mathematician Edward Kasner's newpgew as a name for a REALLY big number. Alan Greenberg:Have to leave now. Good meeting. Greg Shatan:Looks like all of those (bags.coach, too) are owned by Coach. Apparently registered defensively. Coincidence or business plan? avri doria:Again, indicating intentions is risky. Greg Shatan:After 7 or 8 tries (no football.coach, basketball, baseball, college, etc.) I foudna legitimate use of coach! https://urldefense.proofpoint.com/v2/url?u=https-3A__www.fitness.coach_&d=D… Greg Shatan:Googol is not Google. But under a trademark infringement analysis, would probably be barred if used on related goods or services. Robin Gross:We are over time, so need to close up now, folks. Greg Shatan:A trademark by definition is not a generic name. And I've never heard the term "degenerated" applied to a trademark; perhaps something's been lost in translation. Cheryl Langdon-Orr (CLO):great work Paul good food for thought... I am sorry but I have to leave now for my NEXT ICANN call... Seasons Greetings to you all... Bye for now Greg Shatan:Time for the orchestra to start playing.... Annebeth Lange, ccNSO:Very good work, Paul Paul McGrady 2:Sorry for going over all! Annebeth Lange, ccNSO:Happy holidays everyone. Karen Day:Thanks everyone for your contributions today! Happy Holidays! Greg Shatan:Happy Holidays! Rubens Kuhl:Happy Holidays!

1 0

Re: [Gnso-newgtld-wg-wt3] Recording,_AC_Chat_&_A ttendance_from_New_gTLD_Subsequent_Procedures_Sub_Team_ _Track_3__String_Contention,_Objections_&_Disp utes_on_Tuesday,_13_December_2016_at_20:00_UTC
by policy＠paulmcgrady.com Dec. 20, 2016

Dec. 20, 2016

2 1

Agenda for WT3 Discussion on 20 December 20:00 UTC
by Robin Gross Dec. 20, 2016

Dec. 20, 2016

Dear All, Below please find the proposed agenda for our next WT3 meeting which will take place tomorrow, 20 December 2016 at 20:00 UTC. 1. Welcome / Review Agenda 2. SOIs 3. Update from Full WG - Avri 4. Recap and positioning on Limited Public Interest Objections a. Content & function for purpose of policy stated in AGB 3.2.2.3 and 3.5.3 b. Needs with regard to future implementation c. ALAC lack of standing d. Does the process invite lobbying from 3rd parties? 5. Legal Rights Objections – AGB 3.2.2.2 and 3.5.2 / Principal G – Recommendation 3; See Wiki: https://community.icann.org/display/NGSPP/4.4.3+Objections <https://community.icann.org/display/NGSPP/4.4.3+Objections> a. Review of Objections Statistics with links to results for LRO cases. b. Review of WIPO Final Report on LRO c. Review of INTA Report – The ICANN LRO: Statistics and Takeaways 6. Community Objections - Recommendation 20 a. Process fair to both communities and applicants? b. Process invite gaming of applications? 7. AOB 8. Confirmation of Date/Time of next meeting Thanks, Robin

4 3

Application or String Objection
by Rubens Kuhl Dec. 20, 2016

Dec. 20, 2016

Hi. Before our call today, I would like to introduce both a problem statement and a possible solution. Problem: Applicants are not bound to follow the business and operational model described in the application. Possible objectors might use the application to decide whether to object or not, but at a later time what ends up happening might generate concerns that previously known would trigger an objection. Same happens for applicant itself: applicant A might not generate concerns, but later registry A can transition the TLD to registry X that is a cause of concern. Possible solution: Except for LRO, all objections (LPI, Community, String Confusion) would be on the string, not on the application. So if a string can trigger concern depending on how it's handled, that can be addressed by getting PICs as the result of winning the objection. Full extinction of all applications could still be an ask, but that would require a much higher threshold to be granted as remedy. Added benefits: If a string is heavily disputed, that would make less costly for objectors, that would pay 1 fee instead of multiple, and for defendants, that will share the panel/admin fee among all applicants. The objection result could be persistent for further procedures, saving communities from repeatedly defending themselves This would greatly diminish the interest in gaming the process from other applicants to the same string, although the possibility for gaming from applicants to different string addressing the same markets could still occur. Rubens

1 0

Subsequent Procedures WT3 (Objections) Action Items
by Karen Day Dec. 16, 2016

Dec. 16, 2016

Dear All, As we discussed during our last call we are going to make concerted effort to conduct some of our business via the list to try to avoid having to either lengthen or make more frequent our calls. To that end, here are this week's list of items that we need your feedback on - hopefully prior to our next scheduled call on 20DEC16. 1. Recap and positioning on Limited Public Interest Objections: Is the content & function for purpose of policy stated in AGB 3.2.2.3 and 3.5.3 adequate as written or does the language need adjusting for clarification or correction? One issue that was raised on the call was that although the ALAC was given funding by ICANN to submit LPI objections they were denied standing in the case they did file. Does this ambiguity need to be eliminated by granting the ALAC standing or otherwise? A second issue that was raised was with regard to the use of the term "generally" in the definition (3.2.1) of LPI Objections. " The applied for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under principals of international law." Can this be better written to define what is generally accepted without going so far as to require a principal to be "universally" accepted? If you feel that the language of these or other LPI related sections (other than those relating to fees or the IO which we will tackle later) needs clarification please specify for the groups consideration which section needs changing and make a proposal of how you feel it should be changed. Again, silence will be taken that you ascribe to the 'Neuman Rule' that the language isn't broken so we don't need to fix it. 2. Legal Rights Objections - AGB 3.2.2.2 and 3.5.2 / Principal G - Recommendation 3; See Wiki: https://community.icann.org/display/NGSPP/4.4.3+Objections Please review the following three documents (all found on the WT3 wiki page linked above to prepare for our discussions on this topic: Objections Statistics with links to results for LRO cases. WIPO Final Report on LRO INTA Report - The ICANN LRO: Statistics and Takeaways As several of you were heavily involved in LROs from the 2012 round, it would be appreciated if you could share your experiences and suggestions for changes with the group via the list. We look forward to hearing from you all soon. Best regards, Karen & Robin

3 3

Community Objection
by Rubens Kuhl Dec. 15, 2016

Dec. 15, 2016

Although Community Objections is not yet in WT3 schedule although part of the WT3 roadmap, I would like to record a suggestion I made during the Full WG F2F meeting in Hyderabad so when time comes, if I don't have availability to discuss it, the idea is still out there. In the 2012-round, the possible gain to affected communities was to make that application not move forward. This has shown some issues: - Communities, or the IO on their behalf, needed to file against all applicants for that string - Some applicants tried, and sometimes succeeded, leveraging this type of objection against competitors either in the contention set or in the market. - Even for the communities that prevailed, they will need to refile over and over again in subsequent procedures So, the idea that came about was for such objections to have a different winning proposition: PICs. So if the community of Animal rights activists filled an objection on .animal, they would need to say what commitments they want from registries for .animal to have. The panel would evaluate their standing, their cause of action and the PICs they want, deciding if none, some or all of their asks are applicable. If they win, such PICs will become mandatory PICs for such TLD, no matter which applicant wins the contention set. They would also be persistent in that such PICs would still apply after registry transitions, or to new procedures if that contract ends with no transition. Another possible use case would be a professional association from a country while applicant is a professional association from other country. Let's say Card Dealers of America applied to .carddealers ; French association of Card Dealers could file a community objection to have a PIC saying that .carddealers registry can't restrict registration based on being from the US, since there are card dealers in all countries that gambling is allowed. This could have a positive effect in removing this objection type from contention set battles and actually upholding communities best interests regarding usage of a TLD they care for. Rubens

2 1

Community Priority
by Rubens Kuhl Dec. 15, 2016

Dec. 15, 2016

Although Community Priority is not yet in WT3 schedule although part of the WT3 roadmap, I would like to record a suggestion I made during the Full WG F2F meeting in Hyderabad so when time comes, if I don't have availability to discuss it, the idea is still out there. In the 2012-round, prevailing in CPE achieved killing all other non-CPE members of a contention set. This had some issues: - Brand Applications that tried including Community status as an additional protection against squatting if an LRO fails - Construed, or perceived as such, communities to win highly desirable TLDs - Never ending disputes on criteria, fairness, processes (although some of it might be due to poor execution) So, the idea that came about was for such priority to have a different winning proposition: auction multiplier. So prevailing in Restricted Priority Evaluation would allow an application that is suggesting limiting its market in a way to make it more relevant for both registrants and end-users to not have an unbalanced competition in auction against an application that is suggesting a mass scale operation. Note that restriction relevance would be a factor, so if someone suggests restricting .company to Fortune 500 companies that wouldn't get a multiplier bonus since it would not benefit all companies. That auction multiplier would have a ceiling (5, perhaps ?) and would be based on the ratio between estimated target audience versus unrestricted audience. One difference, though, is that it would not only apply to Community applications (if such type keeps existing in the process); Geographical restrictions would also carry value considering strings that are not mandated to get specific governmental clearances (like country regions). If the restriction brings, at the same time, relevance and market potential reduction, then it could try getting such a multiplier. Of course such multiplier would only apply to ICANN-auction, but it's likely that private auctions would follow the ICANN model for an specific contention set, although not guaranteed. Rubens

1 0

Recording, AC Chat & Attendance from New gTLD Subsequent Procedures Sub Team Track 3 String Contention, Objections & Disputes on Tuesday, 13 December 2016 at 20:00 UTC
by Michelle DeSmyter Dec. 14, 2016

Dec. 14, 2016

Dear All, Please find the attendance and recording of the call attached to this email and the AC Chat below for the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes held on Tuesday, 13 December 2016 at 20:00 UTC. The recordings of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<http://gnso.icann.org/en/group-activities/calendar#nov> ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-newgtld-wg-wt3 Wiki page: https://community.icann.org/x/45vDAw Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for 13 December 2016 Michelle DeSmyter:Dear All, Welcome to the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes call on Tuesday, 13 December 2016 at 20:00 UTC. Michelle DeSmyter:Meeting page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Jeff Neuman:Thanks! I am on mute now until call starts Jeff Neuman:yes Greg Shatan:I am not walking through Grand Central Terminal, so that Greg Shatan:is an improvement for me.... Gg Levine (NABP):I think we could get more milage out 90 minute calls than weekly calls. Jeff Neuman:Just to emphasize the Council of Europe Report, this was brought up again at the IGF session briefly Jeff Neuman:I believe the GAC is discussing this report and may likely base some advice on that report Robin Gross:nothing to add. thanks Jeff Neuman:same Kurt Pritz:Is a link to the Council of Europe Report readily available? Steve Chan 2:@Kurt, available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Emily Barabas 2:https://urldefense.proofpoint.com/v2/url?u=https-3A__rm.coe.int_CoERMPubl… Emily Barabas 2:(sorry steve, i was one step behind you) Kurt Pritz:thanks, and, thanks Steve Chan 2:Sorry all, wasn't getting chat in the AC room and had to relaunch. Emily Barabas 2:correct, karen Jeff Neuman:My bad....same time next week :) Its the last calls this week for WT 1 and 2 :) Jon Nevett:Alan, to which ones did ALAC object? Jeff Neuman:There was only one of them Jeff Neuman:.health Kurt Pritz:@ Alan: I think the distinction is that the Independent Objector was automatically granred standing; the ALAC was funded but also had to qualify as having standing as an injured party Jeff Neuman:ok..then I am in favor of abolishing that right. Alan Greenberg:Clearly! Jeff Neuman:The ALAC should have no different objection rights than any other AC (other than the GAC) or SO Alan Greenberg:We had the same rights. Only the funding was different. Alan Greenberg:But in any case, I was simply raising the issue to be discussed. Alan Greenberg:@Kirk, yes that is correct. Alan Greenberg:Oops - bad fingers - Kurt. Jeff Neuman:sorry, can you repeat that point Jeff Neuman:yes Kurt Pritz:Not sure how to introduce this: It was cleared to me that the objection process was used (gamed) by some applicants to delay other applications. It was thought that the loser pays mechanism would prevent much of this gaming but it turned out not to be so. Mike Rodenbaugh:Fees can be dealt with on omnibus basis. Seems no reason why they would be structured differently depending on objection type. Jeff Neuman:Yes, deal with at the end with some general principals applicable to all Jeff Neuman:principles Jeff Neuman:sorry Rubens Kuhl:Kurt, I believe that was a mixture of doing by purpose and doing by not caring whether someone will be impacted, just for the small chance of prevailing. Jon Nevett:Agree with Kurt and Rubens Kurt Pritz:If we agree there was gaming and that there was harm that game from it (I am not sure it is true) then we should try to address gaming, not just but pricing, but by other means. Kurt Pritz:@Jeff having a "right" to object does not mean it is a legitimate use of the process Rubens Kuhl:The dog agrees that we had gaming. Annebeth Lange, ccNSO:Sorry that I am late - I was delayed in another call Jeff Neuman:: Kurt Pritz:The penalty for losing (say 30,000) is so small compared to the value of the TLD ($x million) that it is a small gamble to file an objection Jeff Neuman:Neuman Rule #2 Rubens Kuhl:Perhaps such penalties belong with competition authorities and courts ? Jeff Neuman:I agree with Paul.....I am not a believer that we have proven it is broken Paul McGrady:+1 - agree that we should ask for factual evidence before fixing it Cheryl Langdon-Orr (CLO):yes good for CC2 Rubens Kuhl:LRO standing for IGOs/INGOs is something peculiar. Rubens Kuhl:But removing it might cause issues with GAC of where they would go. Rubens Kuhl:It was not used, although could have been used by ECO. Paul McGrady:Just to confirm @Rubens. This is a hot topic right now in GNSOland. Rubens Kuhl:ECO later sent a letter to ICANN questioning that application, but that was too late and out of process. Mike Rodenbaugh:adobe connect is not working for my audio... Mike Rodenbaugh:apparently still no audio. ugh Mike Rodenbaugh:don't worry about it. I'll take it to the email list because it is detailed. Involves my client .GCC. Rubens Kuhl:We can just acknowledge that as an useful quirk and keep it on. It's weird but not too weird. Greg Shatan:That would be helpful. Rubens Kuhl:I have an issue with SCO standing, but we are talking LROs. Just to put a marker down. Kurt Pritz:The legal rights objection was lightly, if at all, used. It is cheap insurance for the gTLD program. I think we should leave it as is. Paul McGrady:+1 Kurt. I see no reason to wade into the mess if we don't have to. Cheryl Langdon-Orr (CLO):agreed Jeff Rubens Kuhl:"If ain't broke, don't fix it" Mike Rodenbaugh:The LRO was used in several instances, which bear reviewing and considering whether changes are appropriate. Mike Rodenbaugh:.Merck. .DelMonte. .GCC Rubens Kuhl:Merck is Kramer x Kramer, corporate world version. No happy ending possible. Kurt Pritz:@ Mike - those were the legitimate uses of the process and it worked fairly well Paul McGrady:@Mike, were the examples you gave related to standing? or just the LRO generally? Mike Rodenbaugh:LRO generally. Though GCC has a standing issue. Mike Rodenbaugh:Specifically, GCC was not on the WIPO trademark list until after the applications were revealed. Kurt Pritz:Side issue: initial evidence of gaming: Just checking: out of about 275 objections, the objector prevailed about 30 times, about 11%. In an evenly constructed process, I wiould think objectors would prevail 50% or more of the time. In loser pays, I would think objectors would prevail much greater than 50% of the time. Emily Barabas 2:Objections section of the wiki: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Rubens Kuhl:It could be close to UDRP prevail rates, I believe. Mike Rodenbaugh:GCC did not work well at all. In fact the Board stopped the LRO from being heard, even though it was fully briefed by the parties. Because of intervening GAC Advice. Jeff Neuman:Paul has just volunteered to submit his comments to the list :) Paul McGrady:@Jeff - you bet I did. Jeff Neuman:Does Paul want to form a little subgroup to work on that? Paul McGrady:I was +1'ing Kurt only on the standing issue Paul McGrady:@Kurt, I think it just didn't get the attention it needed at the time. Wasn't meant to be critical of the hard work of the staff at the time. I think we can improve it. Paul McGrady:Attention from the community (not staff) Alan Greenberg:Dead air! Paul McGrady:I can't heart anything. Cheryl Langdon-Orr (CLO):audio Paul McGrady:hear Jeff Neuman:This is a tough objection, because we do not really ask registries what they are going to do with the TLD and hold them to that. If we did, a legal rights objection may be easier because you can judge it based on the proposed use Paul McGrady:happy to Jeff Neuman:But that would raise a whole other set of issues in enforcement and how to change your purpose of your TLD, etc. Jeff Neuman:Great discussion on the call! Cheryl Langdon-Orr (CLO):thanks. Bye for now

1 0

Actions/Discussion Notes: Work Track 3 Sub Team Meeting 13 December
by Julie Hedlund Dec. 13, 2016

Dec. 13, 2016

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 13 December. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the recording. Please also see the recording on the meetings page at: https://community.icann.org/display/NGSPP/Work+Track+3+Meetings. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 13 December 1. Frequency or Duration of Future WT3 meetings -- Keep calls every other week for 60 minutes? -- Not sure if we need an increase in frequency, but focus on doing more on the mailing list. -- Continue to plug on and see how we go. Too much on at the moment with other calls. Agreed: Keep to the current every other week schedule of 60-minute calls, but focus on getting work done on the list. 2. Recap & Reminders of Hyderabad Discussions a. Council of Europe Report on Community -Based gTLD Applications: https://community.icann.org/x/Wz2AAw and https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?docum… -- Brought up again at the IGF and the GAC is discussing it b. Role of Independent Objector -- session moderated by Robin Gross -- Community is calling for a major overhaul of that role 3. Update from Full WG since Hyderabad – Jeff Neuman -- Goal for the full WG is to finalize the response to community comment 1. Try to come up with community comment 2 -- more specific questions in each of the work track areas. Focus on early next year. 4. Recap and positioning on Limited Public Interest Objections Content & function for purpose of policy stated in AGB 3.2.2.3 and 3.5.3 -- agreement with the existing language? -- Keep it on the list for additional comments. Do another review of the decisions. -- Send it back out to the list for comments. -- At-Large and ALAC funded by ICANN to submit Limited Public Interest Objections. Rejected because they didn't have standing. Could require clarification. -- Language of "generally" versus "universally" -- resistence to objection. Something strong than "generally", but not as strong as "universally". -- The only ALAC objection was to .health. Lobbying by groups who did not want to file their own objections. -- Disagree about manipulation. -- Do we want feedback on a per-objection basis, or on all of them? Tailor some CC2 questions towards those that did face objections. -- Costs associated with filing objections -- deal with as a whole or by type? Better dealt with at the end than with each objection. Deal with at the end with some general principals applicable to all -- Should find factual basis for gaming. Add for CC2 questions. -- Circulate to the list the questions address today and ask if there are language tweaks. >From the chat: Kurt Pritz: @ Alan: I think the distinction is that the Independent Objector was automatically granred standing; the ALAC was funded but also had to qualify as having standing as an injured party Jeff Neuman: ok..then I am in favor of abolishing that right. Alan Greenberg: Clearly! Jeff Neuman: The ALAC should have no different objection rights than any other AC (other than the GAC) or SO Alan Greenberg: We had the same rights. Only the funding was different. Alan Greenberg: But in any case, I was simply raising the issue to be discussed. Alan Greenberg: @Kurt, yes that is correct. Kurt Pritz: Not sure how to introduce this: It was cleared to me that the objection process was used (gamed) by some applicants to delay other applications. It was thought that the loser pays mechanism would prevent much of this gaming but it turned out not to be so. Side issue: initial evidence of gaming: Just checking: out of about 275 objections, the objector prevailed about 30 times, about 11%. In an evenly constructed process, I would think objectors would prevail 50% or more of the time. In loser pays, I would think objectors would prevail much greater than 50% of the time. Mike Rodenbaugh: Fees can be dealt with on omnibus basis. Seems no reason why they would be structured differently depending on objection type. Jeff Neuman: Yes, deal with at the end with some general principles applicable to all 5. Legal Rights Objections – AGB 3.2.2.2 and 3.5.2 / Principal G – Recommendation 3; See Wiki: https://community.icann.org/display/NGSPP/4.4.3+Objections -- Re: standing -- is what was used in the past still relevant for future rounds? -- Not sure there is an issue with standing rules. -- Look into this more before the next call. -- Request for Paul McGrady to lead the discussion on the list on what to aim for. >From the chat: Rubens Kuhl: LRO standing for IGOs/INGOs is something peculiar. But removing it might cause issues with GAC of where they would go. It was not used, although could have been used by ECO. Paul McGrady: Just to confirm @Rubens. This is a hot topic right now in GNSOland. Rubens Kuhl: ECO later sent a letter to ICANN questioning that application, but that was too late and out of process. We can just acknowledge that as an useful quirk and keep it on. It's weird but not too weird. Greg Shatan: That would be helpful. Rubens Kuhl: I have an issue with SCO standing, but we are talking LROs. Just to put a marker down. Kurt Pritz: The legal rights objection was lightly, if at all, used. It is cheap insurance for the gTLD program. I think we should leave it as is. Paul McGrady: +1 Kurt. I see no reason to wade into the mess if we don't have to. Cheryl Langdon-Orr (CLO): agreed Jeff Rubens Kuhl: "If ain't broke, don't fix it" Mike Rodenbaugh: The LRO was used in several instances, which bear reviewing and considering whether changes are appropriate. .Merck. .DelMonte. .GCC Rubens Kuhl: Merck is Kramer x Kramer, corporate world version. No happy ending possible. Kurt Pritz: @ Mike - those were the legitimate uses of the process and it worked fairly well Paul McGrady: @Mike, were the examples you gave related to standing? or just the LRO generally? Mike Rodenbaugh: LRO generally. Though GCC has a standing issue. Specifically, GCC was not on the WIPO trademark list until after the applications were revealed. Rubens Kuhl: It could be close to UDRP prevail rates, I believe. Mike Rodenbaugh: GCC did not work well at all. In fact the Board stopped the LRO from being heard, even though it was fully briefed by the parties. Because of intervening GAC Advice.

1 0