As encouraged by Javier my comment on the “shared use”: In a nutshell: Good in theory – impractical to impossible in reality. The shared use model works off two assumptions that won’t materialize in real world scenarios: 1. That the geo-related entity’s (the city community’s) application was spearheaded by the city government. Which is usually NOT the case! The city Government will have to provide support – the applicant and the overwhelming majority of the registrants however will NOT be the city government. While it is obviously important to ensure that the city government can utilize domains for eGovernment, city marketing and official functions (police, fire fighters, all kind of public service departments) more than 99% of all registrations will be by organizations, companies and private entities. And the constituents of the city community need a city name based gTLD to identify themselves on the net. It is THEIR interests that are of key importance – the city Government’s interests are second in line. The city government sits in the backseat so to speak; and provides a few directions. They are NOT the driver! 2. Brands are HYPER SENSITIVE when it comes to their IP assets. The average brand that is big enough to apply for a gTLD will want to have 100% control over their namespace. If a brand affiliates itself with a certain gTLD – and the consumer has the impression that it is the brand’s asset: any content on any of the 2nd level domain names WILL be associated with the brand. A NIGHTMARE for brand managers to imagine that the city puts up something that isn’t in control of the brand. And in the end Jorge is (once again) SPOT ON with his remark that IF such “sharing agreement” would be a good fit: that I PRECISELY what the current model is about: Go to the city government and make a proposal. If they like it: GREAT. Why inventing the wheel once again – we already HAVE this possibility already embedded. Thanks, Alexander From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Javier Rua Sent: Friday, May 18, 2018 2:29 PM To: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com> > wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com <mailto:javrua@gmail.com> > wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com> > wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch> > wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org> ] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au <mailto:liz.williams@auda.org.au> www.auda.org.au <http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg