Jeff, I will disagree with one statement you made: It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently. On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas. Greg. On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au> wrote:

Hello Jeff

You have raised some interesting points. Another question to add is what happens when the intended use changes?

For example, the business which was the original intention looks difficult and the operator has to modify the original business plan? Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)?

Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s?

Is a better/stronger Specification 13 the way to solve “intended use” question or something else?

Looking forward to other ideas/questions/discussion.

Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au 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 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com> wrote:

All,

Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion.

Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted.

Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters.

It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on.

*Questions*

- Is it possible, however, to come up with a solution that is outside of the box? - Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? - Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? - Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? - For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? - Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD?

I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all?

Thanks.

*Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA* | *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: *jeff.neuman@valideus.com <jeff.neuman@valideus.com>* or *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>* T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw

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Thanks Timo! My comments here under --- Carlos Raúl Gutiérrez El 2018-05-08 03:10, Timo Võhmar escribió:

Hi

I think that the difference between community and private/commercial TLD should be at the level of ccTLD vs gTLD.

_it is logical, but I'm afraid some cc TLDs have long gone commercial_

Leaving the generics as free from special requirements and exemptions as possible.

_This is very important for ICANN as we know survives over a long period time_

But this requires higher level approach than this WG is mandated for. So outside of the box suggestion might be to drop the topic here and open up much bigger box to discuss ICANN wide policy of different policies - differences between cc- and gTLDs is there a need for third or fourth kind of policy type ie geoTLD or is there any need for the separation at all.

_I think that exclusive brand gTLDs have gone a long way towards independence already_

In the lines of gTLD PDP I believe that local governments should have priority over private interests ie each single community of Clinton should have precedence over the interests of Mr and Mrs Clinton. But the question remains how to determine the intended use and that the actual use coincide with the initial intention or what to do if the intention has changed as Liz pointed out and who should monitor that?

I have a simpler thought - community interest TLDs should be delegated to not-for-profit organisations/foundations only. There are usually laws and legislation in place to make sure that the org type is not misused and bodies like competition authority to monitor that.

_Fully agree with your simpler thought and I think it is within this WT-5 mandate_

Best Regards,

Timo Võhmar _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5

Thanks, Alexander. Interesting thoughts. It is good to be thinking outside the box. Kindly Annebeth From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Alexander Schubert <alexander@schubert.berlin> Reply-To: "alexander@schubert.berlin" <alexander@schubert.berlin> Date: Tuesday, 8 May 2018 at 14:31 To: "gnso-newgtld-wg-wt5@icann.org" <gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear group, Greg’s point is very valid – and in fact has been raised by many others as well: There has to be a sufficient amount of people (or other metric that establishes “relevance”) being affiliated with a place to grant them the privilege of being looped into the application process (via letter of non-objection). We are working off the 2012 AGB. Per 2.2.1.4.2 only strings identical to these entities require “Government Support” (letter of non-objection): * Capital City (in any language) – irrelevant to its size! * Sub-national place names as listed in the ISO 3166-2 standard (caused problems with .bar, .tata and others in 2012) – again: irrelevant to its size! The U.S. has listed only a few (namely their States), but others have listed insane amounts of tiny places. Population size-wise a very inconsistent list in my mind. * UNESCO regions. URL: https://unstats.un.org/unsd/methodology/m49/ then click “Geographic regions”. These names shouldn’t pose any problem – no overlapping with other places or brands here. * CITIES! Last not least: City names. While the first three are fairly overseeable and lists exist – this last category is slightly “murky” – and that is PRECISELY why we are primarily talking about that category: it is the ONLY one of the 2012 AGB that provides a base for discussion really. In the U.S. alone there are over 3,000 “cities” with more than 10,000 people – and 19,500 places in total. India has over 4,000 cities with more than 10k people as well. I can’t find reliable statistics – but there must be in excess of 50,000 cities globally with more than 10,000 people. Now imagine you lower that bar to 5,000! We will need a proposal to “limit” the number of cities (and in my mind the “Sub-national place names as listed in the ISO 3166-2 standard” as well) in respect to the requirement for a letter of non-objection. Only if a city has enough inhabitants (or is otherwise very important, e.g. because it is the capital) enough affiliated people are deprived of their chance to express themselves via their own self-managed gTLD. And quite frankly: Even if I am a very daring person when it comes to gTLD applications (.berlin WAS “daring” in 2005, so was .gay in 2009) – I simply completely fail to imagine that cities smaller than 10,000 people would ever apply for their own gTLD. There might be singular cases (Aspen!) – but policy will ALWAYS have to balance between protections and burdens. And obviously anybody can still apply for any super tiny city if they wish: but most likely that application will be funded and operated by city constituents anyway – and NOT by portfolio applicants: you can’t “make profit” of a city gTLD when there are only less than 10k people. So we are good with “warehousing” and fight off profiteers. Hence my suggestion (again – please don’t beat me): * We define a cut-off size “X”. My gut feeling says somewhere between 10,000 and 50,000 people. Maybe others here could chime in! * Any gTLD applicant (regardless of intended use!) that applies for an identical string will have to acquire a letter of non-objection from EACH city with more than “X” inhabitants. That limits the burden for city applicants and generic string / brand applicants as well! * I suggest that the cut-off rule applies for “Sub-national place names as listed in the ISO 3166-2 standard”, too. If we want to avoid a “beauty contest” or “repositories” then I see no other metric than population size. And population size matters – as an underpopulated place simply can’t sustain their own gTLD (unless they are Aspen). I think such compromise would ease the “pain” of the TM lobby – while it would sufficiently protect the interest of the people of cities. Thanks, Alexander.berlin From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, May 08, 2018 8:02 AM To: Liz Williams <liz.williams@auda.org.au> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jeff, I will disagree with one statement you made: It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently. On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas. Greg. On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> wrote: Hello Jeff You have raised some interesting points. Another question to add is what happens when the intended use changes? For example, the business which was the original intention looks difficult and the operator has to modify the original business plan? Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)? Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s? Is a better/stronger Specification 13 the way to solve “intended use” question or something else? Looking forward to other ideas/questions/discussion. 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 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion. Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted. Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters. It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on. Questions * Is it possible, however, to come up with a solution that is outside of the box? * Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? * Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? * Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? * For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? * Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD? I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all? Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5

Dear Jeff As said before, non-objection does not equal to priority. It is a requirement for an application to go forward. The incentives for compromise seem to have been there when 60+ applications went through successfully. If there is a problem with the incentive structure we should base that on factual analysis of what happened in the last round, listening to both applicants and relevant public authorities involved. Best regards Jorge Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Jeff Neuman Gesendet: Dienstag, 8. Mai 2018 15:25 An: alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org Betreff: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Thanks for this Alexander and for a proposal. So it seems like we have 2 different questions: 1. Which cities / regions are included in whatever process we develop. 2. For the cities/regions that are include in the process, what will that process be? I am trying to focus on number 2 without involving the notion of “priority”? If we do not have a default that states that an applicant cannot have that term unless they get affirmative consent / non-objection nor do we have a default that the name is automatically given to the applicant without conditions, what are the other options? If we put aside question 1 for the moment…I am trying to elicit responses to number 2 without using terms like priority. When one side has priority there is little incentive for any compromise. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, May 8, 2018 8:31 AM To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear group, Greg’s point is very valid – and in fact has been raised by many others as well: There has to be a sufficient amount of people (or other metric that establishes “relevance”) being affiliated with a place to grant them the privilege of being looped into the application process (via letter of non-objection). We are working off the 2012 AGB. Per 2.2.1.4.2 only strings identical to these entities require “Government Support” (letter of non-objection): * Capital City (in any language) – irrelevant to its size! * Sub-national place names as listed in the ISO 3166-2 standard (caused problems with .bar, .tata and others in 2012) – again: irrelevant to its size! The U.S. has listed only a few (namely their States), but others have listed insane amounts of tiny places. Population size-wise a very inconsistent list in my mind. * UNESCO regions. URL: https://unstats.un.org/unsd/methodology/m49/ then click “Geographic regions”. These names shouldn’t pose any problem – no overlapping with other places or brands here. * CITIES! Last not least: City names. While the first three are fairly overseeable and lists exist – this last category is slightly “murky” – and that is PRECISELY why we are primarily talking about that category: it is the ONLY one of the 2012 AGB that provides a base for discussion really. In the U.S. alone there are over 3,000 “cities” with more than 10,000 people – and 19,500 places in total. India has over 4,000 cities with more than 10k people as well. I can’t find reliable statistics – but there must be in excess of 50,000 cities globally with more than 10,000 people. Now imagine you lower that bar to 5,000! We will need a proposal to “limit” the number of cities (and in my mind the “Sub-national place names as listed in the ISO 3166-2 standard” as well) in respect to the requirement for a letter of non-objection. Only if a city has enough inhabitants (or is otherwise very important, e.g. because it is the capital) enough affiliated people are deprived of their chance to express themselves via their own self-managed gTLD. And quite frankly: Even if I am a very daring person when it comes to gTLD applications (.berlin WAS “daring” in 2005, so was .gay in 2009) – I simply completely fail to imagine that cities smaller than 10,000 people would ever apply for their own gTLD. There might be singular cases (Aspen!) – but policy will ALWAYS have to balance between protections and burdens. And obviously anybody can still apply for any super tiny city if they wish: but most likely that application will be funded and operated by city constituents anyway – and NOT by portfolio applicants: you can’t “make profit” of a city gTLD when there are only less than 10k people. So we are good with “warehousing” and fight off profiteers. Hence my suggestion (again – please don’t beat me): * We define a cut-off size “X”. My gut feeling says somewhere between 10,000 and 50,000 people. Maybe others here could chime in! * Any gTLD applicant (regardless of intended use!) that applies for an identical string will have to acquire a letter of non-objection from EACH city with more than “X” inhabitants. That limits the burden for city applicants and generic string / brand applicants as well! * I suggest that the cut-off rule applies for “Sub-national place names as listed in the ISO 3166-2 standard”, too. If we want to avoid a “beauty contest” or “repositories” then I see no other metric than population size. And population size matters – as an underpopulated place simply can’t sustain their own gTLD (unless they are Aspen). I think such compromise would ease the “pain” of the TM lobby – while it would sufficiently protect the interest of the people of cities. Thanks, Alexander.berlin From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, May 08, 2018 8:02 AM To: Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jeff, I will disagree with one statement you made: It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently. On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas. Greg. On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> wrote: Hello Jeff You have raised some interesting points. Another question to add is what happens when the intended use changes? For example, the business which was the original intention looks difficult and the operator has to modify the original business plan? Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)? Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s? Is a better/stronger Specification 13 the way to solve “intended use” question or something else? Looking forward to other ideas/questions/discussion. 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 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion. Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted. Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters. It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on. Questions * Is it possible, however, to come up with a solution that is outside of the box? * Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? * Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? * Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? * For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? * Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD? I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all? Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5

Dear Jeff As to the data: I feel that we need more analysis here on the specific applications that fell under the geonames provisions and where any potential issues emerged. Otherwise we are just talking about opinions, guesses and hypothesis. The data is out there and staff could help gather that information, including the views of applicants and relevant public authorities. That data could help us to improve the letter of non-objection system. As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know… As to the incentives: as far as I know most public authorities do not run the TLDs for themselves. But they have a general interest in their name and want to have a say in the process (for reasons already explained in detail). On the other hand we have the applicant with a specific, direct interest and a business model. You have two different kinds of interests converging on one unique resource. The non-objection letter gets the applicant onto a table with the public authorities. And the non-objection may be sought after by anyone: brands, communities, businesses, academia, ngos (if they have the money!)… The non-objection just means that the public authority is OK with their plans after their conversation. It does not give any further priority, but means that the public interests represented by that public authority have been satisfactorily considered – which may take many different forms depending on the city (laisser faire; participate in the governance; follow some conditions, etc.). As to intended use: I refer back to my summary of the issue, shared by many colleagues from all SO/ACs here, where it is explained why such a distinction is not helpful when we are talking about a unique resource. Hope this helps Jorge Von: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Gesendet: Dienstag, 8. Mai 2018 15:40 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org Betreff: RE: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jorge, By “priority”, I also mean without a “default rule” where one party gets a veto right (by not writing a letter of non-objection or refusing to grant consent). I am not taking a side here, just trying to get an out of box solution. Jorge – For the 60+ that you mention, there were at least a dozen if not more examples of terms that were not included in the AGB, where problems with predictability were identified. Some of those are still in accountability mechanisms. Plus, most of the 60+ that you refer to were applications for geo-related terms where the TLDs intended use was for that geographic area (eg. Nyc, berlin, boston, London, etc.) I have not seen any dispute with the notion that if someone wants to use a geoterm in conjunction with the geographic area they should get some sort of letter of consent or non-objection. If I am wrong, please weigh in. It is with respect to those terms that match a geoterm but are not intended to be used in conjunction with the geographic area. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Sent: Tuesday, May 8, 2018 9:30 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff As said before, non-objection does not equal to priority. It is a requirement for an application to go forward. The incentives for compromise seem to have been there when 60+ applications went through successfully. If there is a problem with the incentive structure we should base that on factual analysis of what happened in the last round, listening to both applicants and relevant public authorities involved. Best regards Jorge Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Jeff Neuman Gesendet: Dienstag, 8. Mai 2018 15:25 An: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Thanks for this Alexander and for a proposal. So it seems like we have 2 different questions: 1. Which cities / regions are included in whatever process we develop. 2. For the cities/regions that are include in the process, what will that process be? I am trying to focus on number 2 without involving the notion of “priority”? If we do not have a default that states that an applicant cannot have that term unless they get affirmative consent / non-objection nor do we have a default that the name is automatically given to the applicant without conditions, what are the other options? If we put aside question 1 for the moment…I am trying to elicit responses to number 2 without using terms like priority. When one side has priority there is little incentive for any compromise. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, May 8, 2018 8:31 AM To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear group, Greg’s point is very valid – and in fact has been raised by many others as well: There has to be a sufficient amount of people (or other metric that establishes “relevance”) being affiliated with a place to grant them the privilege of being looped into the application process (via letter of non-objection). We are working off the 2012 AGB. Per 2.2.1.4.2 only strings identical to these entities require “Government Support” (letter of non-objection): * Capital City (in any language) – irrelevant to its size! * Sub-national place names as listed in the ISO 3166-2 standard (caused problems with .bar, .tata and others in 2012) – again: irrelevant to its size! The U.S. has listed only a few (namely their States), but others have listed insane amounts of tiny places. Population size-wise a very inconsistent list in my mind. * UNESCO regions. URL: https://unstats.un.org/unsd/methodology/m49/ then click “Geographic regions”. These names shouldn’t pose any problem – no overlapping with other places or brands here. * CITIES! Last not least: City names. While the first three are fairly overseeable and lists exist – this last category is slightly “murky” – and that is PRECISELY why we are primarily talking about that category: it is the ONLY one of the 2012 AGB that provides a base for discussion really. In the U.S. alone there are over 3,000 “cities” with more than 10,000 people – and 19,500 places in total. India has over 4,000 cities with more than 10k people as well. I can’t find reliable statistics – but there must be in excess of 50,000 cities globally with more than 10,000 people. Now imagine you lower that bar to 5,000! We will need a proposal to “limit” the number of cities (and in my mind the “Sub-national place names as listed in the ISO 3166-2 standard” as well) in respect to the requirement for a letter of non-objection. Only if a city has enough inhabitants (or is otherwise very important, e.g. because it is the capital) enough affiliated people are deprived of their chance to express themselves via their own self-managed gTLD. And quite frankly: Even if I am a very daring person when it comes to gTLD applications (.berlin WAS “daring” in 2005, so was .gay in 2009) – I simply completely fail to imagine that cities smaller than 10,000 people would ever apply for their own gTLD. There might be singular cases (Aspen!) – but policy will ALWAYS have to balance between protections and burdens. And obviously anybody can still apply for any super tiny city if they wish: but most likely that application will be funded and operated by city constituents anyway – and NOT by portfolio applicants: you can’t “make profit” of a city gTLD when there are only less than 10k people. So we are good with “warehousing” and fight off profiteers. Hence my suggestion (again – please don’t beat me): * We define a cut-off size “X”. My gut feeling says somewhere between 10,000 and 50,000 people. Maybe others here could chime in! * Any gTLD applicant (regardless of intended use!) that applies for an identical string will have to acquire a letter of non-objection from EACH city with more than “X” inhabitants. That limits the burden for city applicants and generic string / brand applicants as well! * I suggest that the cut-off rule applies for “Sub-national place names as listed in the ISO 3166-2 standard”, too. If we want to avoid a “beauty contest” or “repositories” then I see no other metric than population size. And population size matters – as an underpopulated place simply can’t sustain their own gTLD (unless they are Aspen). I think such compromise would ease the “pain” of the TM lobby – while it would sufficiently protect the interest of the people of cities. Thanks, Alexander.berlin From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, May 08, 2018 8:02 AM To: Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jeff, I will disagree with one statement you made: It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently. On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas. Greg. On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> wrote: Hello Jeff You have raised some interesting points. Another question to add is what happens when the intended use changes? For example, the business which was the original intention looks difficult and the operator has to modify the original business plan? Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)? Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s? Is a better/stronger Specification 13 the way to solve “intended use” question or something else? Looking forward to other ideas/questions/discussion. 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 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion. Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted. Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters. It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on. Questions * Is it possible, however, to come up with a solution that is outside of the box? * Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? * Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? * Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? * For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? * Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD? I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all? Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5

Jeff and all, I had already started such a table a couple of weeks ago, which I have now revised to harmonize with your suggested categories. I was also able to pull in a lot of information from ICANNWiki, so we actually have a really good start. It still could use some clean-up (ok, a lot of clean-up), but I think it is well over the first hurdle for projects like this. Here is the link: https://docs.google.com/spreadsheets/d/1jPa4jdBgo8P2aC6G4pzLoFTfyocIeon8qVD7... Anyone can edit, but please use "suggest" mode for any edits that are not simply facts (no matter your position....) Greg On Tue, May 8, 2018 at 1:31 PM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:

Jorge,

Appreciate the feedback. Just a couple of questions:

1. You state:

- *“As to the dozen names that did not fall under the geonames provisions*, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know…”

However, others have stated that they believe the problems stem from (1) lack of knowledge that the name in question would be considered by anyone to be geographic, (2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter, and (3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter.

1. To push back a little on “Intended Use.” I agree with you that up until now, TLDs have been considered a “Unique” resource and therefore the fact that only one party gets complete rights to the TLD has been a stumbling block to the discussions of Intended Use.

- What if that wasn’t the case? 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.

1. On the data collection question, specifically, what data are you seeking? I can start with the following (some of which we have):

*Question 1*

1. How many applications were there for geographic terms (as such terms were defined in the Guidebook)? 2. Of those in question a, how many of those required either a letter of consent or letter of non-objection. 3. Of the ones in b that required a letter, how many obtained that letter? 4. Of those in c, how many of those letters met the requirements set forth in the Guidebook? 5. Of those in d, how many of them entered into a contract? 6. Of those in e, how many of them were delegated.

*Question 2*

1. How many applications were there that were for geographic terms that were not indicated as such in the Guidebook? 2. Of those applications in a, how many of those applications received one or more early warnings? If they received n early warning, who issued them and what were the reasons given? 3. Of the applications in a which of those applications received formal GAC Advice? 4. Of the applications in a, which applications, if any, received non-consensus GAC advice, and what were the reasons given? 5. Of the applications mentioned in b, c, and d above, were any of those applications withdrawn? If so, were reasons stated for their withdrawal? 6. Of the applications mentioned in b, c, and d above, were any of those applications terminated by ICANN (“will not proceed”). Of those, which applications are still on hold pending the final outcome of an accountability mechanism? 7. Of the applications in b, c, and d, have any applications been subsequently accepted and approved to move forward? If so, which ones? 8. Of the applications in b that received early warnings, have any of the applicants agreed to additional commitments, or formal public interest commitments as a result of the early warnings? 9. Of the applications in b that received early warnings, or c that received Consensus GAC Advice or non-consensus advice, which applicants were able to have discussions with the applicable governments prior to the issuance of Early Warnings, GAC Advice, or non-consensus GAC advice? 10. Of the applications in b that received early warnings, or c that received Consensus GAC Advice or non-consensus advice, which applicants were able to have discussions with the applicable governments after the issuance of Early Warnings, GAC Advice, or non-consensus GAC advice, but prior to ultimate resolution?

I can see constructing a table with the following columns for strings considered to be “geographic”:

1. String 2. Current Status (Delegated, Withdrawn, Terminated by ICANN, Pending Accountability Mechanism) 3. Applicant / Registry Operator 4. Was the string classified as geographic in the AGB? (Yes or No) 5. If yes, under which section? 6. Did the string require a letter of non-objection / consent in the AGB? 7. If a letter was required, was such a letter obtained? (Yes or no) 8. If the string was not explicitly classified as geographic in the AGB, was their an “intended use” of the string enumerated in the Application? 9. For those in #8 above, indicate whether the strings “intended use” was as an open TLD (also includes Open restricted), Brand TLD, community TLD, or geographic TLD. 10. Did the string pass the geographic evaluation panel (Yes, no, or N/A) 11. Did the string receive one or more Early Warnings? (yes or no) – If so, from who? 12. Did the string receive formal GAC Advice? 13. Notes 1. This section would include records of any discussions that may have taken place and are publicly known.

This would be just a start 😊

*Jeffrey J. Neuman*

*Senior Vice President *|*Valideus USA* | *Com Laude USA*

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E: *jeff.neuman@valideus.com <jeff.neuman@valideus.com>* or *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

*From:* Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch> *Sent:* Tuesday, May 8, 2018 9:56 AM

*To:* Jeff Neuman <jeff.neuman@comlaude.com>; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org *Subject:* AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Dear Jeff

*As to the data*: I feel that we need more *analysis here on the specific applications that fell under the geonames provisions* and where any potential issues emerged. Otherwise we are just talking about opinions, guesses and hypothesis. The data is out there and staff could help gather that information, including the views of applicants and relevant public authorities. That data could help us to improve the letter of non-objection system.

*As to the dozen names that did not fall under the geonames provisions*, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know…

*As to the incentives*: as far as I know most public authorities do not run the TLDs for themselves. But they have a general interest in their name and want to have a say in the process (for reasons already explained in detail). On the other hand we have the applicant with a specific, direct interest and a business model. You have two different kinds of interests converging on one unique resource. The non-objection letter gets the applicant onto a table with the public authorities. And the non-objection may be sought after by anyone: brands, communities, businesses, academia, ngos (if they have the money!)… The non-objection just means that the public authority is OK with their plans after their conversation. It does not give any further priority, but means that the public interests represented by that public authority have been satisfactorily considered – which may take many different forms depending on the city (laisser faire; participate in the governance; follow some conditions, etc.).

*As to intended use*: I refer back to my summary of the issue, shared by many colleagues from all SO/ACs here, where it is explained why such a distinction is not helpful when we are talking about a unique resource.

Hope this helps

Jorge

*Von:* Jeff Neuman [mailto:jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>] *Gesendet:* Dienstag, 8. Mai 2018 15:40 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org *Betreff:* RE: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Jorge,

By “priority”, I also mean without a “default rule” where one party gets a veto right (by not writing a letter of non-objection or refusing to grant consent).

I am not taking a side here, just trying to get an out of box solution.

Jorge – For the 60+ that you mention, there were at least a dozen if not more examples of terms that were not included in the AGB, where problems with predictability were identified. Some of those are still in accountability mechanisms. Plus, most of the 60+ that you refer to were applications for geo-related terms where the TLDs intended use was for that geographic area (eg. Nyc, berlin, boston, London, etc.)

I have not seen any dispute with the notion that if someone wants to use a geoterm in conjunction with the geographic area they should get some sort of letter of consent or non-objection. If I am wrong, please weigh in.

It is with respect to those terms that match a geoterm but are not intended to be used in conjunction with the geographic area.

*Jeffrey J. Neuman*

*Senior Vice President *|*Valideus USA* | *Com Laude USA*

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E: *jeff.neuman@valideus.com <jeff.neuman@valideus.com>* or *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

*From:* Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch> *Sent:* Tuesday, May 8, 2018 9:30 AM *To:* Jeff Neuman <jeff.neuman@comlaude.com>; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org *Subject:* AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Dear Jeff

As said before, non-objection does not equal to priority. It is a requirement for an application to go forward. The incentives for compromise seem to have been there when 60+ applications went through successfully. If there is a problem with the incentive structure we should base that on factual analysis of what happened in the last round, listening to both applicants and relevant public authorities involved.

Best regards

Jorge

*Von:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org>] *Im Auftrag von *Jeff Neuman *Gesendet:* Dienstag, 8. Mai 2018 15:25 *An:* alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org *Betreff:* Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Thanks for this Alexander and for a proposal.

So it seems like we have 2 different questions:

1. Which cities / regions are included in whatever process we develop. 2. For the cities/regions that are include in the process, what will that process be?

I am trying to focus on *number 2* without involving the notion of “priority”? If we do not have a default that states that an applicant cannot have that term unless they get affirmative consent / non-objection nor do we have a default that the name is automatically given to the applicant without conditions, what are the other options?

If we put aside question 1 for the moment…I am trying to elicit responses to number 2 without using terms like priority. When one side has *priority* there is little incentive for any compromise.

Thanks.

*Jeffrey J. Neuman*

*Senior Vice President *|*Valideus USA* | *Com Laude USA*

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E: *jeff.neuman@valideus.com <jeff.neuman@valideus.com>* or *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

*From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> *On Behalf Of *Alexander Schubert *Sent:* Tuesday, May 8, 2018 8:31 AM *To:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Dear group,

Greg’s point is very valid – and in fact has been raised by many others as well:

There has to be a sufficient amount of people (or other metric that establishes “relevance”) being affiliated with a place to grant them the privilege of being looped into the application process (via letter of non-objection). We are working off the 2012 AGB. Per 2.2.1.4.2 only strings identical to these entities require “Government Support” (letter of non-objection):

- Capital City (in any language) – irrelevant to its size! - Sub-national place names as listed in the ISO 3166-2 standard (caused problems with .bar, .tata and others in 2012) – again: irrelevant to its size! The U.S. has listed only a few (namely their States), but others have listed insane amounts of tiny places. Population size-wise a very inconsistent list in my mind. - UNESCO regions. URL: https://unstats.un.org/unsd/methodology/m49/ then click “Geographic regions”. These names shouldn’t pose any problem – no overlapping with other places or brands here. - CITIES! Last not least: City names. While the first three are fairly overseeable and lists exist – this last category is slightly “murky” – and that is PRECISELY why we are primarily talking about that category: it is the ONLY one of the 2012 AGB that provides a base for discussion really.

In the U.S. alone there are over 3,000 “cities” with more than 10,000 people – and 19,500 places in total. India has over 4,000 cities with more than 10k people as well. I can’t find reliable statistics – but there must be in excess of 50,000 cities globally with more than 10,000 people. Now imagine you lower that bar to 5,000!

We will need a proposal to “limit” the number of cities (and in my mind the “Sub-national place names as listed in the ISO 3166-2 standard” as well) in respect to the requirement for a letter of non-objection. Only if a city has enough inhabitants (or is otherwise very important, e.g. because it is the capital) enough affiliated people are deprived of their chance to express themselves via their own self-managed gTLD. And quite frankly: Even if I am a very daring person when it comes to gTLD applications (.berlin WAS “daring” in 2005, so was .gay in 2009) – I simply completely fail to imagine that cities smaller than 10,000 people would ever apply for their own gTLD. There might be singular cases (Aspen!) – but policy will ALWAYS have to balance between protections and burdens. And obviously anybody can still apply for any super tiny city if they wish: but most likely that application will be funded and operated by city constituents anyway – and NOT by portfolio applicants: you can’t “make profit” of a city gTLD when there are only less than 10k people. So we are good with “warehousing” and fight off profiteers.

Hence my suggestion (again – please don’t beat me):

- We define a cut-off size “X”. My gut feeling says somewhere between 10,000 and 50,000 people. Maybe others here could chime in! - Any gTLD applicant (regardless of intended use!) that applies for an identical string will have to acquire a letter of non-objection from EACH city with more than “X” inhabitants. That limits the burden for city applicants and generic string / brand applicants as well! - I suggest that the cut-off rule applies for “Sub-national place names as listed in the ISO 3166-2 standard”, too.

If we want to avoid a “beauty contest” or “repositories” then I see no other metric than population size. And population size matters – as an underpopulated place simply can’t sustain their own gTLD (unless they are Aspen).

I think such compromise would ease the “pain” of the TM lobby – while it would sufficiently protect the interest of the people of cities.

Thanks,

Alexander.berlin

*From:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Tuesday, May 08, 2018 8:02 AM *To:* Liz Williams <liz.williams@auda.org.au> *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Jeff,

I will disagree with one statement you made:

It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible.

I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently.

On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas.

Greg.

On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au> wrote:

Hello Jeff

You have raised some interesting points. Another question to add is what happens when the intended use changes?

For example, the business which was the original intention looks difficult and the operator has to modify the original business plan?

Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)?

Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s?

Is a better/stronger Specification 13 the way to solve “intended use” question or something else?

Looking forward to other ideas/questions/discussion.

Liz

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On 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com> wrote:

All,

Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion.

Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted.

Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters.

It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on.

*Questions*

- Is it possible, however, to come up with a solution that is outside of the box? - Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? - Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? - Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? - For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? - Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD?

I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all?

Thanks.

*Jeffrey J. Neuman*

*Senior Vice President *|*Valideus USA* | *Com Laude USA*

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E: *jeff.neuman@valideus.com <jeff.neuman@valideus.com>* or *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*

T: +1.703.635.7514

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@Jintlaw

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Thanks Jorge. On the questions you have asked on the data gathering exercise, in 2(h), I was wondering whether applicants that received early warnings due to the potential geographic nature of their strings, were able to address concerns raised by governments through making commitments to the applicable government either directly to the governments or through something like a Public Interest Commitment. On the other points, we will try to make the questions more objective as you suggest to ensure that the question is not leading to a particular response. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch> Sent: Wednesday, May 9, 2018 4:38 AM To: Jeff Neuman <jeff.neuman@comlaude.com>; gnso-newgtld-wg-wt5@icann.org Subject: AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff Thanks for your feedback… here go some comments from my side: As to the “dozen“ (of geonames not falling under the 2012 AGB…): we need more data. But on some of the cases the geographic connection seems at least intuitive, so it is difficult to accept that companies (especially big ones) were not aware of the geographic connection after a minimal search, but perhaps there was one case or two where they didn’t know… One important fact that remains is that the “letter of non objection” was not required under the AGB for these cases… so there is fair degree of speculation with points (2) and (3) you mention. But info from applicants and relevant public authorities could help, I guess… As for “intended use”: the agreements coming out of the application of the “non-objection letter” can perfectly provide for co-use, for shared governance, for complying with conditions on the reputation of the name, for laisser-faire. That is left to the parties. Perhaps the AGB could mention these examples or include info about success stories? Regarding the questions you suggest I see that you have given a great deal of thought to it ☺. For the results to be as reliable and objective as possible I feel that -at least- the following basic requirements should be met: * The data gathering is done by Staff under the direction of the co-leads * The information gathered is easily traceable, i.e. specific URLs are provided and/or source documents are identified publicly available under a wiki * Information sources are objective data (such as logs in the application process, from GDD), info from independent third parties (IRP, Panels…). If information from a party is gathered, the other would need to be consulted and their feedback recorded. Hearsay, third party accounts should not be accepted. As to “question 2” I guess you are referring to applications for strings that had a geographic significance, but did not fall under the 2012 AGB, right? Which objective criteria would be used to determine that we are talking in fact about a term with geographic significance not covered under the 2012 AGB? It would be good to have some clarity/common understanding about that… Besides, I don’t fully understand the connection of question 2 h with the “letter of non-objection”, could you clarify? As to 2 i) and j) it seems to me that the questions are maybe directing the responses in some way – questions should be as factual as possible (e.g. “did applicants have conversations with relevant public authorities?” instead of “which applicants were able to have discussions with the applicable governments”; it would also be interesting to know whether “assistance from ICANN was sought in identifying the relevant public authorities?” “if yes, could the contact be established…”). Finally, the scope of the questionnaire should be very clear (i.e. country names and its variants are not in scope). In any case, the resulting “table” should clearly separate the cases falling under the AGB 2012 provisions for geonames and those that didn’t. And the data gathered should always clearly identify the geoname-type (e.g. “capital city”, “city”, “subnational region”… or “non AGB 2012”) under the AGB 2012 we are talking about… I guess that it would be important for others to look into it with detail and prepare this effort with care ☺ Hope this helps Best regards Jorge Von: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Gesendet: Dienstag, 8. Mai 2018 19:31 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: RE: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jorge, Appreciate the feedback. Just a couple of questions: 1. You state: * “As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know…” However, others have stated that they believe the problems stem from (1) lack of knowledge that the name in question would be considered by anyone to be geographic, (2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter, and (3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter. 1. To push back a little on “Intended Use.” I agree with you that up until now, TLDs have been considered a “Unique” resource and therefore the fact that only one party gets complete rights to the TLD has been a stumbling block to the discussions of Intended Use. * What if that wasn’t the case? 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. 1. On the data collection question, specifically, what data are you seeking? I can start with the following (some of which we have): Question 1 * How many applications were there for geographic terms (as such terms were defined in the Guidebook)? * Of those in question a, how many of those required either a letter of consent or letter of non-objection. * Of the ones in b that required a letter, how many obtained that letter? * Of those in c, how many of those letters met the requirements set forth in the Guidebook? * Of those in d, how many of them entered into a contract? * Of those in e, how many of them were delegated. Question 2 1. How many applications were there that were for geographic terms that were not indicated as such in the Guidebook? 2. Of those applications in a, how many of those applications received one or more early warnings? If they received n early warning, who issued them and what were the reasons given? 3. Of the applications in a which of those applications received formal GAC Advice? 4. Of the applications in a, which applications, if any, received non-consensus GAC advice, and what were the reasons given? 5. Of the applications mentioned in b, c, and d above, were any of those applications withdrawn? If so, were reasons stated for their withdrawal? 6. Of the applications mentioned in b, c, and d above, were any of those applications terminated by ICANN (“will not proceed”). Of those, which applications are still on hold pending the final outcome of an accountability mechanism? 7. Of the applications in b, c, and d, have any applications been subsequently accepted and approved to move forward? If so, which ones? 8. Of the applications in b that received early warnings, have any of the applicants agreed to additional commitments, or formal public interest commitments as a result of the early warnings? 9. Of the applications in b that received early warnings, or c that received Consensus GAC Advice or non-consensus advice, which applicants were able to have discussions with the applicable governments prior to the issuance of Early Warnings, GAC Advice, or non-consensus GAC advice? 10. Of the applications in b that received early warnings, or c that received Consensus GAC Advice or non-consensus advice, which applicants were able to have discussions with the applicable governments after the issuance of Early Warnings, GAC Advice, or non-consensus GAC advice, but prior to ultimate resolution? I can see constructing a table with the following columns for strings considered to be “geographic”: 1. String 2. Current Status (Delegated, Withdrawn, Terminated by ICANN, Pending Accountability Mechanism) 3. Applicant / Registry Operator 4. Was the string classified as geographic in the AGB? (Yes or No) 5. If yes, under which section? 6. Did the string require a letter of non-objection / consent in the AGB? 7. If a letter was required, was such a letter obtained? (Yes or no) 8. If the string was not explicitly classified as geographic in the AGB, was their an “intended use” of the string enumerated in the Application? 9. For those in #8 above, indicate whether the strings “intended use” was as an open TLD (also includes Open restricted), Brand TLD, community TLD, or geographic TLD. 10. Did the string pass the geographic evaluation panel (Yes, no, or N/A) 11. Did the string receive one or more Early Warnings? (yes or no) – If so, from who? 12. Did the string receive formal GAC Advice? 13. Notes * This section would include records of any discussions that may have taken place and are publicly known. This would be just a start 😊 Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Sent: Tuesday, May 8, 2018 9:56 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff As to the data: I feel that we need more analysis here on the specific applications that fell under the geonames provisions and where any potential issues emerged. Otherwise we are just talking about opinions, guesses and hypothesis. The data is out there and staff could help gather that information, including the views of applicants and relevant public authorities. That data could help us to improve the letter of non-objection system. As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know… As to the incentives: as far as I know most public authorities do not run the TLDs for themselves. But they have a general interest in their name and want to have a say in the process (for reasons already explained in detail). On the other hand we have the applicant with a specific, direct interest and a business model. You have two different kinds of interests converging on one unique resource. The non-objection letter gets the applicant onto a table with the public authorities. And the non-objection may be sought after by anyone: brands, communities, businesses, academia, ngos (if they have the money!)… The non-objection just means that the public authority is OK with their plans after their conversation. It does not give any further priority, but means that the public interests represented by that public authority have been satisfactorily considered – which may take many different forms depending on the city (laisser faire; participate in the governance; follow some conditions, etc.). As to intended use: I refer back to my summary of the issue, shared by many colleagues from all SO/ACs here, where it is explained why such a distinction is not helpful when we are talking about a unique resource. Hope this helps Jorge Von: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Gesendet: Dienstag, 8. Mai 2018 15:40 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: RE: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jorge, By “priority”, I also mean without a “default rule” where one party gets a veto right (by not writing a letter of non-objection or refusing to grant consent). I am not taking a side here, just trying to get an out of box solution. Jorge – For the 60+ that you mention, there were at least a dozen if not more examples of terms that were not included in the AGB, where problems with predictability were identified. Some of those are still in accountability mechanisms. Plus, most of the 60+ that you refer to were applications for geo-related terms where the TLDs intended use was for that geographic area (eg. Nyc, berlin, boston, London, etc.) I have not seen any dispute with the notion that if someone wants to use a geoterm in conjunction with the geographic area they should get some sort of letter of consent or non-objection. If I am wrong, please weigh in. It is with respect to those terms that match a geoterm but are not intended to be used in conjunction with the geographic area. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Sent: Tuesday, May 8, 2018 9:30 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff As said before, non-objection does not equal to priority. It is a requirement for an application to go forward. The incentives for compromise seem to have been there when 60+ applications went through successfully. If there is a problem with the incentive structure we should base that on factual analysis of what happened in the last round, listening to both applicants and relevant public authorities involved. Best regards Jorge Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Jeff Neuman Gesendet: Dienstag, 8. Mai 2018 15:25 An: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Thanks for this Alexander and for a proposal. So it seems like we have 2 different questions: 1. Which cities / regions are included in whatever process we develop. 2. For the cities/regions that are include in the process, what will that process be? I am trying to focus on number 2 without involving the notion of “priority”? If we do not have a default that states that an applicant cannot have that term unless they get affirmative consent / non-objection nor do we have a default that the name is automatically given to the applicant without conditions, what are the other options? If we put aside question 1 for the moment…I am trying to elicit responses to number 2 without using terms like priority. When one side has priority there is little incentive for any compromise. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, May 8, 2018 8:31 AM To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear group, Greg’s point is very valid – and in fact has been raised by many others as well: There has to be a sufficient amount of people (or other metric that establishes “relevance”) being affiliated with a place to grant them the privilege of being looped into the application process (via letter of non-objection). We are working off the 2012 AGB. Per 2.2.1.4.2 only strings identical to these entities require “Government Support” (letter of non-objection): * Capital City (in any language) – irrelevant to its size! * Sub-national place names as listed in the ISO 3166-2 standard (caused problems with .bar, .tata and others in 2012) – again: irrelevant to its size! The U.S. has listed only a few (namely their States), but others have listed insane amounts of tiny places. Population size-wise a very inconsistent list in my mind. * UNESCO regions. URL: https://unstats.un.org/unsd/methodology/m49/ then click “Geographic regions”. These names shouldn’t pose any problem – no overlapping with other places or brands here. * CITIES! Last not least: City names. While the first three are fairly overseeable and lists exist – this last category is slightly “murky” – and that is PRECISELY why we are primarily talking about that category: it is the ONLY one of the 2012 AGB that provides a base for discussion really. In the U.S. alone there are over 3,000 “cities” with more than 10,000 people – and 19,500 places in total. India has over 4,000 cities with more than 10k people as well. I can’t find reliable statistics – but there must be in excess of 50,000 cities globally with more than 10,000 people. Now imagine you lower that bar to 5,000! We will need a proposal to “limit” the number of cities (and in my mind the “Sub-national place names as listed in the ISO 3166-2 standard” as well) in respect to the requirement for a letter of non-objection. Only if a city has enough inhabitants (or is otherwise very important, e.g. because it is the capital) enough affiliated people are deprived of their chance to express themselves via their own self-managed gTLD. And quite frankly: Even if I am a very daring person when it comes to gTLD applications (.berlin WAS “daring” in 2005, so was .gay in 2009) – I simply completely fail to imagine that cities smaller than 10,000 people would ever apply for their own gTLD. There might be singular cases (Aspen!) – but policy will ALWAYS have to balance between protections and burdens. And obviously anybody can still apply for any super tiny city if they wish: but most likely that application will be funded and operated by city constituents anyway – and NOT by portfolio applicants: you can’t “make profit” of a city gTLD when there are only less than 10k people. So we are good with “warehousing” and fight off profiteers. Hence my suggestion (again – please don’t beat me): * We define a cut-off size “X”. My gut feeling says somewhere between 10,000 and 50,000 people. Maybe others here could chime in! * Any gTLD applicant (regardless of intended use!) that applies for an identical string will have to acquire a letter of non-objection from EACH city with more than “X” inhabitants. That limits the burden for city applicants and generic string / brand applicants as well! * I suggest that the cut-off rule applies for “Sub-national place names as listed in the ISO 3166-2 standard”, too. If we want to avoid a “beauty contest” or “repositories” then I see no other metric than population size. And population size matters – as an underpopulated place simply can’t sustain their own gTLD (unless they are Aspen). I think such compromise would ease the “pain” of the TM lobby – while it would sufficiently protect the interest of the people of cities. Thanks, Alexander.berlin From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, May 08, 2018 8:02 AM To: Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jeff, I will disagree with one statement you made: It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently. On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas. Greg. On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> wrote: Hello Jeff You have raised some interesting points. Another question to add is what happens when the intended use changes? For example, the business which was the original intention looks difficult and the operator has to modify the original business plan? Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)? Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s? Is a better/stronger Specification 13 the way to solve “intended use” question or something else? Looking forward to other ideas/questions/discussion. 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 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion. Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted. Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters. It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on. Questions * Is it possible, however, to come up with a solution that is outside of the box? * Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? * Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? * Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? * For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? * Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD? I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all? Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5

Katrin I totally agree. Claiming that Patagonia was not intended to be geographic it's a joke, because the brand derives directly from the geo-name. ‎And the rules -as you pointed- were very clear already in 2012. We have just to improve it and make more cogent. Giacomo De: Katrin Ohlmer | DOTZON GmbH Envoyé: mercredi, 9 mai 2018 13:27 À: Jeff Neuman Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff, let me propose a way forward on your three identified potential causes for the issues: (1) lack of knowledge that the name in question would be considered by anyone to be geographic

a search on wikipedia.org would determine that e.g. .lucerne has several geographic meanings. The knowledge, whether an application would be considered by someone to be geographic, can be gained this way pretty easily.

(2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter I believe that the AGB provided some answers to the questions others raised. However, more clarity might be helpful, how to identify the proper contact.

The AGB 2012, 2.2.1.4 states: “Applicants should review these requirements even if they do not believe their intended gTLD string is a geographic name. All applied-for gTLD strings will be reviewed according to the requirements in this section, regardless of whether the application indicates it is for a geographic name.”

The AGB 2012, 2.2.4.2.1 states: “In the event of any doubt, it is in the applicant’s interest to consult with relevant governments and public authorities and enlist their support or non-objection prior to submission of the application, in order to preclude possible objections and pre-address any ambiguities concerning the string and applicable requirements.”

The AGB 2012 states: “Note: the level of government and which administrative agency is responsible for the filing of letters of support or non-objection is a matter for each national administration to determine. Applicants should consult within the relevant jurisdiction to determine the appropriate level of support.”

(3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter Can the person who raised this point elaborate what exactly has been the issue in 2012? In the last round, ICANN issues “Applicant Advisories” for certain topics, like the COI. Would a “GEO-Advisory” be helpful in order to determine if the applied-for TLD equals a geo term and if so, which next steps are expected / recommended from applicants? Kind regards, Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Jeff Neuman Gesendet: Dienstag, 8. Mai 2018 19:31 An: Jorge.Cancio@bakom.admin.ch; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org Betreff: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jorge, Appreciate the feedback. Just a couple of questions: 1. You state: * “As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know…” However, others have stated that they believe the problems stem from (1) lack of knowledge that the name in question would be considered by anyone to be geographic, (2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter, and (3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter. ------------------------------------------------------------------------------ ************************************************** This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error, please notify the system manager. This footnote also confirms that this email message has been swept by the mailgateway **************************************************

Katrin, Thanks for this insightful mail. Looking forward to the call in a few minutes! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua

On May 9, 2018, at 7:27 AM, Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com> wrote:

Dear Jeff,

let me propose a way forward on your three identified potential causes for the issues:

(1) lack of knowledge that the name in question would be considered by anyone to be geographic

...

a search on wikipedia.org would determine that e.g. .lucerne has several geographic meanings. The knowledge, whether an application would be considered by someone to be geographic, can be gained this way pretty easily.

(2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter

I believe that the AGB provided some answers to the questions others raised. However, more clarity might be helpful, how to identify the proper contact.

...

The AGB 2012, 2.2.1.4 states: “Applicants should review these requirements even if they do not believe their intended gTLD string is a geographic name. All applied-for gTLD strings will be reviewed according to the requirements in this section, regardless of whether the application indicates it is for a geographic name.”

...

The AGB 2012, 2.2.4.2.1 states: “In the event of any doubt, it is in the applicant’s interest to consult with relevant governments and public authorities and enlist their support or non-objection prior to submission of the application, in order to preclude possible objections and pre-address any ambiguities concerning the string and applicable requirements.”

...

The AGB 2012 states: “Note: the level of government and which administrative agency is responsible for the filing of letters of support or non-objection is a matter for each national administration to determine. Applicants should consult within the relevant jurisdiction to determine the appropriate level of support.”

(3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter

Can the person who raised this point elaborate what exactly has been the issue in 2012?

In the last round, ICANN issues “Applicant Advisories” for certain topics, like the COI. Would a “GEO-Advisory” be helpful in order to determine if the applied-for TLD equals a geo term and if so, which next steps are expected / recommended from applicants?

Kind regards, Katrin

DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting www.dotzon.consulting

DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin

Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Jeff Neuman Gesendet: Dienstag, 8. Mai 2018 19:31 An: Jorge.Cancio@bakom.admin.ch; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org Betreff: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion

Jorge,

Appreciate the feedback. Just a couple of questions:

You state:

“As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know…”

However, others have stated that they believe the problems stem from (1) lack of knowledge that the name in question would be considered by anyone to be geographic, (2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter, and (3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter. _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5

While I think it always provides insight to examine the past – I am sure that the geo gTLD (and there especially the city gTLD) space will change DRAMATICALLY. We will have tons of newcomers joining the market – entities within cities that want to repeat the success of current registries. I think the entire “intended use” clause made some kind of sense (and did not create much damage) in the past round. But my gut feeling tells me it would be heavily exploited: in some cases inadvertently – in others maliciously. Especially when brands or registries are “sold”. My suggestion is to get rid of the “intended use” provision – and in return dramatically limit the amount of cities protected (via population size cut-off). Inhabitants of a city might want one day to identify themselves through “their” gTLD – and they couldn’t care less whether the applicant is a brand or not. By having a population size cut-off there won’t be many generic terms or brands affected – and they STILL might apply: just need that letter. But we could get rid of the intended use! Katrin’s mentioned Wikipedia is a initial go-to instance – something I am recommending since quite a time. Nobody can claim they won’t know who is using the desired string for what. Thanks, Alexander From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, May 08, 2018 8:31 PM To: Jorge.Cancio@bakom.admin.ch; alexander@schubert.berlin; gnso-newgtld-wg-wt5@icann.org Subject: RE: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jorge, Appreciate the feedback. Just a couple of questions: 1. You state: * “As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know…” However, others have stated that they believe the problems stem from (1) lack of knowledge that the name in question would be considered by anyone to be geographic, (2) the belief that since they were not planning on using the name in a geographic sense they did not need to seek any form of non-objection, nor did they know from whom to get such a letter, and (3) lack of an incentive for the relevant governmental authority to even come to the table to discuss the application or to agree to write such a letter. 2. To push back a little on “Intended Use.” I agree with you that up until now, TLDs have been considered a “Unique” resource and therefore the fact that only one party gets complete rights to the TLD has been a stumbling block to the discussions of Intended Use. * What if that wasn’t the case? 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. 3. On the data collection question, specifically, what data are you seeking? I can start with the following (some of which we have): Question 1 a. How many applications were there for geographic terms (as such terms were defined in the Guidebook)? b. Of those in question a, how many of those required either a letter of consent or letter of non-objection. c. Of the ones in b that required a letter, how many obtained that letter? d. Of those in c, how many of those letters met the requirements set forth in the Guidebook? e. Of those in d, how many of them entered into a contract? f. Of those in e, how many of them were delegated. Question 2 a. How many applications were there that were for geographic terms that were not indicated as such in the Guidebook? b. Of those applications in a, how many of those applications received one or more early warnings? If they received n early warning, who issued them and what were the reasons given? c. Of the applications in a which of those applications received formal GAC Advice? d. Of the applications in a, which applications, if any, received non-consensus GAC advice, and what were the reasons given? e. Of the applications mentioned in b, c, and d above, were any of those applications withdrawn? If so, were reasons stated for their withdrawal? f. Of the applications mentioned in b, c, and d above, were any of those applications terminated by ICANN (“will not proceed”). Of those, which applications are still on hold pending the final outcome of an accountability mechanism? g. Of the applications in b, c, and d, have any applications been subsequently accepted and approved to move forward? If so, which ones? h. Of the applications in b that received early warnings, have any of the applicants agreed to additional commitments, or formal public interest commitments as a result of the early warnings? i. Of the applications in b that received early warnings, or c that received Consensus GAC Advice or non-consensus advice, which applicants were able to have discussions with the applicable governments prior to the issuance of Early Warnings, GAC Advice, or non-consensus GAC advice? j. Of the applications in b that received early warnings, or c that received Consensus GAC Advice or non-consensus advice, which applicants were able to have discussions with the applicable governments after the issuance of Early Warnings, GAC Advice, or non-consensus GAC advice, but prior to ultimate resolution? I can see constructing a table with the following columns for strings considered to be “geographic”: 1. String 2. Current Status (Delegated, Withdrawn, Terminated by ICANN, Pending Accountability Mechanism) 3. Applicant / Registry Operator 4. Was the string classified as geographic in the AGB? (Yes or No) 5. If yes, under which section? 6. Did the string require a letter of non-objection / consent in the AGB? 7. If a letter was required, was such a letter obtained? (Yes or no) 8. If the string was not explicitly classified as geographic in the AGB, was their an “intended use” of the string enumerated in the Application? 9. For those in #8 above, indicate whether the strings “intended use” was as an open TLD (also includes Open restricted), Brand TLD, community TLD, or geographic TLD. 10. Did the string pass the geographic evaluation panel (Yes, no, or N/A) 11. Did the string receive one or more Early Warnings? (yes or no) – If so, from who? 12. Did the string receive formal GAC Advice? 13. Notes a. This section would include records of any discussions that may have taken place and are publicly known. This would be just a start 😊 Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> > Sent: Tuesday, May 8, 2018 9:56 AM To: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >; alexander@schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff As to the data: I feel that we need more analysis here on the specific applications that fell under the geonames provisions and where any potential issues emerged. Otherwise we are just talking about opinions, guesses and hypothesis. The data is out there and staff could help gather that information, including the views of applicants and relevant public authorities. That data could help us to improve the letter of non-objection system. As to the dozen names that did not fall under the geonames provisions, there I agree that we had and still have around problematic cases. In fact, as said, I believe that those problems were due to the lack of the non-objection requirement, i.e. applicants apparently did not have enough incentives to seek an agreement/non-objection from the affected public authorities, with the ensuing problems we all know… As to the incentives: as far as I know most public authorities do not run the TLDs for themselves. But they have a general interest in their name and want to have a say in the process (for reasons already explained in detail). On the other hand we have the applicant with a specific, direct interest and a business model. You have two different kinds of interests converging on one unique resource. The non-objection letter gets the applicant onto a table with the public authorities. And the non-objection may be sought after by anyone: brands, communities, businesses, academia, ngos (if they have the money!)… The non-objection just means that the public authority is OK with their plans after their conversation. It does not give any further priority, but means that the public interests represented by that public authority have been satisfactorily considered – which may take many different forms depending on the city (laisser faire; participate in the governance; follow some conditions, etc.). As to intended use: I refer back to my summary of the issue, shared by many colleagues from all SO/ACs here, where it is explained why such a distinction is not helpful when we are talking about a unique resource. Hope this helps Jorge Von: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Gesendet: Dienstag, 8. Mai 2018 15:40 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >; alexander@schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: RE: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jorge, By “priority”, I also mean without a “default rule” where one party gets a veto right (by not writing a letter of non-objection or refusing to grant consent). I am not taking a side here, just trying to get an out of box solution. Jorge – For the 60+ that you mention, there were at least a dozen if not more examples of terms that were not included in the AGB, where problems with predictability were identified. Some of those are still in accountability mechanisms. Plus, most of the 60+ that you refer to were applications for geo-related terms where the TLDs intended use was for that geographic area (eg. Nyc, berlin, boston, London, etc.) I have not seen any dispute with the notion that if someone wants to use a geoterm in conjunction with the geographic area they should get some sort of letter of consent or non-objection. If I am wrong, please weigh in. It is with respect to those terms that match a geoterm but are not intended to be used in conjunction with the geographic area. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> > Sent: Tuesday, May 8, 2018 9:30 AM To: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >; alexander@schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: AW: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear Jeff As said before, non-objection does not equal to priority. It is a requirement for an application to go forward. The incentives for compromise seem to have been there when 60+ applications went through successfully. If there is a problem with the incentive structure we should base that on factual analysis of what happened in the last round, listening to both applicants and relevant public authorities involved. Best regards Jorge Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Jeff Neuman Gesendet: Dienstag, 8. Mai 2018 15:25 An: alexander@schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Thanks for this Alexander and for a proposal. So it seems like we have 2 different questions: 1. Which cities / regions are included in whatever process we develop. 2. For the cities/regions that are include in the process, what will that process be? I am trying to focus on number 2 without involving the notion of “priority”? If we do not have a default that states that an applicant cannot have that term unless they get affirmative consent / non-objection nor do we have a default that the name is automatically given to the applicant without conditions, what are the other options? If we put aside question 1 for the moment…I am trying to elicit responses to number 2 without using terms like priority. When one side has priority there is little incentive for any compromise. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org> > On Behalf Of Alexander Schubert Sent: Tuesday, May 8, 2018 8:31 AM To: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Dear group, Greg’s point is very valid – and in fact has been raised by many others as well: There has to be a sufficient amount of people (or other metric that establishes “relevance”) being affiliated with a place to grant them the privilege of being looped into the application process (via letter of non-objection). We are working off the 2012 AGB. Per 2.2.1.4.2 only strings identical to these entities require “Government Support” (letter of non-objection): * Capital City (in any language) – irrelevant to its size! * Sub-national place names as listed in the ISO 3166-2 standard (caused problems with .bar, .tata and others in 2012) – again: irrelevant to its size! The U.S. has listed only a few (namely their States), but others have listed insane amounts of tiny places. Population size-wise a very inconsistent list in my mind. * UNESCO regions. URL: https://unstats.un.org/unsd/methodology/m49/ then click “Geographic regions”. These names shouldn’t pose any problem – no overlapping with other places or brands here. * CITIES! Last not least: City names. While the first three are fairly overseeable and lists exist – this last category is slightly “murky” – and that is PRECISELY why we are primarily talking about that category: it is the ONLY one of the 2012 AGB that provides a base for discussion really. In the U.S. alone there are over 3,000 “cities” with more than 10,000 people – and 19,500 places in total. India has over 4,000 cities with more than 10k people as well. I can’t find reliable statistics – but there must be in excess of 50,000 cities globally with more than 10,000 people. Now imagine you lower that bar to 5,000! We will need a proposal to “limit” the number of cities (and in my mind the “Sub-national place names as listed in the ISO 3166-2 standard” as well) in respect to the requirement for a letter of non-objection. Only if a city has enough inhabitants (or is otherwise very important, e.g. because it is the capital) enough affiliated people are deprived of their chance to express themselves via their own self-managed gTLD. And quite frankly: Even if I am a very daring person when it comes to gTLD applications (.berlin WAS “daring” in 2005, so was .gay in 2009) – I simply completely fail to imagine that cities smaller than 10,000 people would ever apply for their own gTLD. There might be singular cases (Aspen!) – but policy will ALWAYS have to balance between protections and burdens. And obviously anybody can still apply for any super tiny city if they wish: but most likely that application will be funded and operated by city constituents anyway – and NOT by portfolio applicants: you can’t “make profit” of a city gTLD when there are only less than 10k people. So we are good with “warehousing” and fight off profiteers. Hence my suggestion (again – please don’t beat me): * We define a cut-off size “X”. My gut feeling says somewhere between 10,000 and 50,000 people. Maybe others here could chime in! * Any gTLD applicant (regardless of intended use!) that applies for an identical string will have to acquire a letter of non-objection from EACH city with more than “X” inhabitants. That limits the burden for city applicants and generic string / brand applicants as well! * I suggest that the cut-off rule applies for “Sub-national place names as listed in the ISO 3166-2 standard”, too. If we want to avoid a “beauty contest” or “repositories” then I see no other metric than population size. And population size matters – as an underpopulated place simply can’t sustain their own gTLD (unless they are Aspen). I think such compromise would ease the “pain” of the TM lobby – while it would sufficiently protect the interest of the people of cities. Thanks, Alexander.berlin From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, May 08, 2018 8:02 AM To: Liz Williams <liz.williams@auda.org.au <mailto:liz.williams@auda.org.au> > Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] "Intended Use" Discussion Jeff, I will disagree with one statement you made: It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. I suppose it depends on how you define "impacted governments." If every geographical term, no matter how obscure, results in an "impacted government," then I disagree vehemently. On the other hand, if we are first going to define some small subset of geographic terms (e.g., names of countries) where there will be an "impacted government," then I probably agree. But this is predicated on the idea that the vast majority of strings with geographic meanings will not create "impacted governments." Otherwise, if Bill and Hillary Clinton want to apply for .Clinton, they will need to "somehow have a consultation" with the 30 "impacted governments" of the 30 Clintons in the United States -- and maybe elsewhere. That can't be right. I'll note that Alexander Schubert proposed some sort of minimum population size; while I'm not endorsing that, it shows that the statement quoted above is at the very least, far too broad, and that the result will not be a consultation every time a string shows up in the index to to an atlas. Greg. On Mon, May 7, 2018 at 10:55 PM, Liz Williams <liz.williams@auda.org.au <mailto:liz.williams@auda.org.au> > wrote: Hello Jeff You have raised some interesting points. Another question to add is what happens when the intended use changes? For example, the business which was the original intention looks difficult and the operator has to modify the original business plan? Or the business is sold? There have been many examples of strings which have been repurposed (tv, la, co spring immediately to mind) and others that have changed hands (where the operator changes)? Are we satisfied that from a policy perspective that, for example, the public interest commitments system worked/s? Is a better/stronger Specification 13 the way to solve “intended use” question or something else? Looking forward to other ideas/questions/discussion. 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 8 May 2018, at 1:05 am, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > wrote: All, Just wanted to get a new thread going just on the concept of “intended use” of a TLD since there has been some good discussion on this narrow topic and thought it may be a good jumping off place to put some ideas out there for discussion. Some have stated that the “intended use” of a gTLD should be considered when looking at whether governments (national/local, etc.) should have to issue a letter of non-objection / consent as a condition of the gTLD application being accepted. For example, if a TLD applicant does not intended to use the TLD for purposes associated with the geographic connotation of the string, then they argue that the geographic government should not have the final word on whether the TLD is granted. Others have stated that “intended use” of the TLD is irrelevant or not helpful given the fact that only one organization is granted the right to operate and administer the TLD. And that being the case, consideration should be given to the political, legal, historical, etc. connotations for the communities affected. Some countries have laws protecting the use of those names regardless of use, according to some commenters. It seems like no one is arguing against the notion of trying to somehow have a consultation between the applicant(s) and the impacted governments to the extent possible. But having a presumption one way or the other (either that a letter of non-objection/consent be required or a presumption in favor of delegation) is not something there is agreement on. Questions * Is it possible, however, to come up with a solution that is outside of the box? * Can we have consultations where the ultimate outcome is not pre-ordained, but still provide incentives for all of the parties to “come to the table” to express concerns, but also provide ways in which those concerns can be mitigated? * Are there ways to allow the delegation of the TLD, but also address the concerns of the impacted governments? * Could this include agreements to allow the use of second level strings (or the reservation of second level strings) where there is an inherent association with the government / local community? * For brand TLDs, there is a requirement currently that all registrations be registered to the brands (or their affiliates / licensees) in order to maintain their Specification 13 protections? Can there be an exception granted for ones that coincide with a geographic string where certain second level strings that are inherently geographic can be registered by others? * Are there any other parameters that can be established to help guide consultations to prevent the perception as expressed by some that governments will try to extract payments in exchange for the right to be the registry of the TLD? I am not expressing a view one way or the other on this issue, but merely recognizing that arguments are being made on both sides on the utility of “intended use.” And I would be curious to see if we could flush this out at all? Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw _______________________________________________ Gnso-newgtld-wg-wt5 mailing list <mailto:Gnso-newgtld-wg-wt5@icann.org> Gnso-newgtld-wg-wt5@icann.org <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org <mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5