June 2018 - Gnso-newgtld-wg

- Initial Report Excerpts Red-lines and Updated Preamble
by Steve Chan June 28, 2018

June 28, 2018

Dear WG Members, As noted by Jeff a short while ago, the red-lined excerpts have all been made available on the Wiki here: https://community.icann.org/x/NwUhB. On this page, you will a full set of red-lined excerpts, all sections in a single document. You will also find extracts of each section as well. All of these documents are available in Word and PDF. Included as well on this page is the latest version of the remaining elements of the Initial Report, which includes edits suggested by WG members to the Preamble. The next steps from the staff side are to complete some of the remaining elements in the Initial Report, as well as to begin integrating the excerpts into the report. If you have any questions, please do let us know. Best, Steve, Emily, and Julie Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

7 8

Re: [Gnso-newgtld-wg] - Initial Report Excerpts Red-lines and Updated Preamble
by Jamie Baxter June 27, 2018

June 27, 2018

1 0

Re: [Gnso-newgtld-wg] New gTLD Subsequent Procedures PDP WG - Initial Report
by Rubens Kuhl June 23, 2018

June 23, 2018

The attached email was about call #21, Registry Services, as I mentioned before, not about Aggregated Evaluation. And that's exactly what drove the registry services outcome that was discussed in San Juan and later published in the report. So, I still don't see any evidence of anyone besides you making that point on aggregated technical (or financial) evaluation. Rubens > On 19 Jun 2018, at 21:20, Aikman-Scalese, Anne <AAikman(a)lrrc.com> wrote: > > In order to refresh your memory, please see attached email with references to the specific minute of the mp3 recording for each issue. > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 office > 520.879.4725 fax > AAikman(a)lrrc.com <mailto:AAikman@lrrc.com> > _____________________________ > <image003.png> > Lewis Roca Rothgerber Christie LLP > One South Church Avenue, Suite 2000 > Tucson, Arizona 85701-1611 > lrrc.com <http://lrrc.com/> > > > From: Rubens Kuhl [mailto:rubensk@nic.br <mailto:rubensk@nic.br>] > Sent: Tuesday, June 19, 2018 5:14 PM > To: Aikman-Scalese, Anne > Cc: Jeff Neuman; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] New gTLD Subsequent Procedures PDP WG - Initial Report > > > > > On 19 Jun 2018, at 20:48, Aikman-Scalese, Anne <AAikman(a)lrrc.com <mailto:AAikman@lrrc.com>> wrote: > > Rubens, > > See comments inline. If these issues are not raised in the Initial Report, the discussions that occurred in Work Track 4 are not accurately reflected. (See especially the mp3 of the November 30 call and my follow up emails in January and February citing to the exact minute of the mp3 recording.) > > Anne, while you are focused on the report, I referred to the actual substantive discussions in WT4. I'll let staff and co-chairs answer anything related to the report, which was not the focus of my responses. > > > > 2. Disclosure of New Services at the Time of Application. Regarding the portion of the draft report that deals with disclosure of new services at the time of application, Question 23 of the existing application requires that all new services proposed be described, including any security and stability issues that may be associated with that. The initial draft report skipped over this issue that was clearly raised in Work Track 4 and talked about the flexibility to propose new services either at the application stage or later on in the RSEP process (even if known at the time of application). As mentioned, there are “trade-offs” here in relation to opportunities for Objections and Evaluations and these should be highlighted for public comment. > > Actually, it is quite the opposite. What is said there is that applicants would be able to disclose services at application time even if not submitting them to evaluation, increasing opportunity for Objections. There is no point in arguing this difference of opinion further. The 2012 round application Question 23 REQUIRES disclosure of all services at the time of application. This is not optional “would be able” disclosure. That’s why the draft does not reflect the discussion in Work Track 4. > > I mentioned above how the WT4 outcome described how it could be done, not how 2012 round was done, which is only part of the report. > > > The draft says it’s optional and does not highlight the issue discussed in Work Track 4 which I have raised and documented multiple times. > > It's actually silent on that, and others also didn't take that language as saying that, as you probably remember. > > > > > > > > > > 3. Aggregated Technical and Financial Evaluations. There was discussion in Work Track 4 about not putting applications that propose new and innovative services at a disadvantage as to timing of contract award based on the fact that these could not be processed as quickly. The purpose of the new gTLD program is innovation. Again, there are “trade-offs” here. This question falls into the category of items as to which there has been no coordination among the Work Tracks. While this may not have been the responsibility of Work Track 4 per se, that does not mean it is not a concern and does not mean it was not discussed. I am not the only person in the Work Track who mentioned this problem. > > There is a fundamental difference between evaluation processing and results publishing. WT4 only addressed the first part; if a result is ready but due to the application sequencing it's publishing is not yet timely, then it won't be published. The process is not meant to be a waterfall, but a series of parallel efforts that have some control points, and any fairness issue is address at those control points. I and others expressed concern about the effect of this aggregation on time of processing applications in Work Track 4. > > Actually not; only in Registry Services other have mentioned that, regarding aggregation of evaluations. > > > > Rubens > > > > > This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

3 5

ICANN62 sessions: New gTLD Subsequent Procedures PDP WG and Work Track 5
by Emily Barabas June 22, 2018

June 22, 2018

Dear Working Group and Work Track 5 members, Please see below the schedule and links for the New gTLD Subsequent Procedures PDP Working Group and Work Track 5 meetings at ICANN62. Subsequent Procedures PDP WG Working Sessions: Subsequent Procedures PDP Working Group Face-to-Face Session 1: Mon, Jun 25, 2018 from 9:00 - 10:15 in Salon 7 (GNSO) Subsequent Procedures PDP Working Group Face-to-Face Session 2: Mon, Jun 25, 2018 from 10:30 - 12:00 in Salon 7 (GNSO) Subsequent Procedures PDP Working Group Face-to-Face Session 3: Thu, Jun 28, 2018 from 13:30 - 15:00 in Salon 7 (GNSO) Work Track 5 Cross-Community Sessions: Cross-Community Session: Geographic Names at the Top-Level (1 of 2): Mon, Jun 25, 2018 from 15:15 - 16:45 in Salon 1-3 (GAC) Cross-Community Session: Geographic Names at the Top-Level (2 of 2): Thu, Jun 28, 2018 from 15:15 - 16:45 in Salon 1-3 (GAC) Working Group and Work Track 5 members may also be interested in: ccNSO: Members Meeting Day 1: Tue, Jun 26, 2018 from 10:30 - 12:00 in Salon 4 (ccNSO) -- Work Track 5 co-leaders will be discussing WT5 during this policy session. GAC: New gTLD Subsequent Procedures WT1-5 (incl. GAC Geographic Names WG) Discussion: Mon, Jun 25, 2018 at 14:00 - 15:00 in Salon 1-3 (GAC) Kind regards, Emily Emily Barabas | Senior Policy Specialist ICANN | Internet Corporation for Assigned Names and Numbers Email: emily.barabas(a)icann.org | Phone: +31 (0)6 84507976

1 0

Re: [Gnso-newgtld-wg] [Ext] RE: - Initial Report Excerpts Red-lines and Updated Preamble
by Steve Chan June 21, 2018

June 21, 2018

Dear Anne, Jorge, all, As Jeff noted, compiling a verbatim list of preliminary recommendations, options, and questions is one of the last things we envision doing, to avoid having to make any changes in multiple places. However, we will begin integrating the excerpts (i.e., the substantive sections we have been discussing the last few months) into the Initial Report template. While on the surface, this might seem like a simple copy-paste exercise, the Initial Report template and excerpts have some formatting differences that we would prefer to resolve. We would also like to do a full review of the report, so that to the extent possible, we are able to normalize the way terms are phrased (e.g., Applicant Guidebook versus AGB), capitalization is consistent, and other things that seek to increase the overall consistency of the document. As Jeff stressed, these changes are exclusively administrative, but staff believes they are important to the overall quality of the work product. These changes take time and with ICANN62 rapidly approaching, we are hesitant to provide a precise timeline. We understand the preference to have a single, complete product, but if you can identify how it will substantively affect your review, perhaps there is something we can do to mitigate those concerns. Best, Steve On 6/21/18, 9:20 AM, "Jeff Neuman" <jeff.neuman(a)comlaude.com> wrote: Anne, To be honest, the Annexes which are going to literally copy word from word from the main body of the document (like the preliminary recommendations and the things we are soliciting for public comment), we were not planning to do a draft of for version control reasons. We didn’t want to have a separate Annex now, then have to fix changes in both versions if there are changes to either of those. I will discuss with staff today to see what we can do. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman(a)valideus.com or jeff.neuman(a)comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw -----Original Message----- From: Jorge.Cancio(a)bakom.admin.ch <Jorge.Cancio(a)bakom.admin.ch> Sent: Thursday, June 21, 2018 2:46 AM To: AAikman(a)lrrc.com; Jeff Neuman <jeff.neuman(a)comlaude.com>; steve.chan(a)icann.org Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Initial Report Excerpts Red-lines and Updated Preamble +1 ________________________________ Von: Aikman-Scalese, Anne <AAikman(a)lrrc.com> Datum: 21. Juni 2018 um 02:45:13 MESZ An: 'Jeff Neuman' <jeff.neuman(a)comlaude.com>, Steve Chan <steve.chan(a)icann.org> Cc: gnso-newgtld-wg(a)icann.org <gnso-newgtld-wg(a)icann.org> Betreff: Re: [Gnso-newgtld-wg] - Initial Report Excerpts Red-lines and Updated Preamble Thanks Jeff. Is there a particular time when we will have the complete, entire redlined draft report including Annexes with the all the questions in one document? (That would be handy.) Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D408BE.55AF5770] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__lrrc.com_&d=DwIGaQ&c=Fm…> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Wednesday, June 20, 2018 4:03 AM To: Steve Chan Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Initial Report Excerpts Red-lines and Updated Preamble Thanks Steve. Just to clarify what Steve has said below, when he refers to the”remaining elements in the Initial Report” he is referring to purely administrative items such as (a) insertion of the participant list in the applicable Annex, (b) copying the preliminary recommendations and the questions for community input and putting them in the appropriate Annexes, (c) ensuring that the font is the same throughout the report, (d) ensuring consistency with how we refer to the Applicant Guidebook, the 2007 GNSO Final Report, and other terms, etc. He is not referring to substantive sections that have to be written which would need Working Group review. Thanks. Best regards, Jeffrey J. Neuman Senior Vice President Com Laude USA / Valideus USA 1751 Pinnacle Dr., Suite 600 McLean, VA 22102 Jeff.Neuman(a)comlaude.com<mailto:Jeff.Neuman@comlaude.com> +1 (202) 549-5079 On Jun 20, 2018, at 1:30 AM, Steve Chan <steve.chan(a)icann.org<mailto:steve.chan@icann.org>> wrote: Dear WG Members, As noted by Jeff a short while ago, the red-lined excerpts have all been made available on the Wiki here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…. On this page, you will a full set of red-lined excerpts, all sections in a single document. You will also find extracts of each section as well. All of these documents are available in Word and PDF. Included as well on this page is the latest version of the remaining elements of the Initial Report, which includes edits suggested by WG members to the Preamble. The next steps from the staff side are to complete some of the remaining elements in the Initial Report, as well as to begin integrating the excerpts into the report. If you have any questions, please do let us know. Best, Steve, Emily, and Julie Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 steve.chan(a)icann.org<mailto:steve.chan@icann.org> mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>. Follow @GNSO on Twitter: https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGN… Follow the GNSO on Facebook: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.facebook.com_icann… https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_&d=Dw… _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg(a)icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

1 0

Re: [Gnso-newgtld-wg] - Initial Report Excerpts Red-lines and Updated Preamble
by Jamie Baxter June 20, 2018

June 20, 2018

1 0

Short Update from the Leadership Team
by Jeff Neuman June 19, 2018

June 19, 2018

All, As promised, we just got off of a call with the full Working Group Leadership team consisting of the 2 Co-Chairs, the 5 of the 7 Work Track Co-Leads for Work Tracks 1-4, one of the Co-Leads from Work Track 5, our 3 ICANN Policy support staff and 1 of our 2 Council Liaisons. We have taken all of the recent concerns expressed on the mailing list and have come up with the following plan. Please note that this is high level at this point since we just got off the call, and more details will follow. 1. In the next few hours you will see the redlines to each of the Sections that we have discussed over the past few months. The should include the comments that were made either by e-mail or on the calls about those sections. The revisions have all been reviewed by the Work Track Leaders as well as by Cheryl and I. As we discussed, there were a number of comments that were submitted by Working Group members that related to the substance of the issues as opposed to comments related to clarity of the substance, issues for community input, or whether the sections accurately reflected the discussions that took place over the past 1.5 years. Those comments are NOT being ignored. Rather, they will be included with all of the public comments that come in from the community on the Initial Report. 1. Because the redlines are only going out now, instead of "locking down" the document on June 20th, we are keeping the document open for comments on the redlines until Friday, June 29th. Comments on the redlines should not be to change the substance of the Initial Report, but only whether the Leadership Team and ICANN staff have captured all of the comments that have been received by Working Group members over the past few months on the clarity of the substance, issues for community input and whether the sections accurate reflected the discussions in the Work Tracks. 1. In addition, we have decided to discuss the Initial Report and any issues at ICANN during the scheduled 3rd session of the SubPro Working Group. More specifically, this will be discussed on Thursday, June 28, 2018 at 13:30 - 15:00 Local Panama Time. This will replace our discussion on the CCT-RT Report. * Although we will be having a brief discussion about the Initial Report and next steps in the first session on Monday, June 25, 2018 starting at 9:00 am local time in Panama, this session will not be used to discuss the redlines. The reason we are not discussing the redlines at the first session is two-fold. First, having it at the last session gives you all more time to review the redlines. Second, there are some groups like the ALAC and the Registries that have cancelled or at least modified their meeting on Monday so that members could attend our SubPro sessions. We believe a better use of that time will be for talking about the topics that we were previously scheduled to discuss. To not stick to that original agenda would be unfair to those that had planned to attend those sessions to discuss the other topics (Regardless of how much some would like to discuss the Initial Report). 1. We will describe the ICANN agenda in more detail in a subsequent note, but at a high level, the plan for the first two sessions on Monday, June 25 at 9:00am local time to 10:15 am local time; then again at 10:30 am local time to 12:00 pm local time) is to discuss an update on where we are, a roadmap on where we go from here, a level set on how we will measure consensus, the role of supplemental report (and when they are needed), and tools to clear up any potential logjams. We will then get into some substantive discussions on topics that we already know have not been addressed in the Initial Report including things like (a) Auctions of Last Resort to resolve contention sets, (b) the use of Private Auctions by parties to avoid Auctions of Last Resort, (c) Change Requests to applications - When should they be allowed and when should they not, (d) other topics to be spelled out in the next 24-48 hours. Other than the initial update on where we are, the plan is to make both sessions as interactive as possible given the limitations of Adobe Connect and having remote participants. As always, please do not hesitate to reach out to either Cheryl or myself, or for that matter anyone on the Leadership Team, if you have any questions. Best regards, Cheryl Landon-Orr Jeff Neuman SubPro Co-Chairs

2 1

Section 1.5.5.c &f - Terms & Conditions - Covenant Not to Sue
by Rosette, Kristina June 19, 2018

June 19, 2018

All, I'm writing to request changes in Section 1.5.5.c, e and f of the report so that it is consistent with and reflects WT(2) discussions. (Section accessible at https://community.icann.org/display/NGSPP/f.+Report+Drafting?preview=/69272…) During the 18 January 2018 WT call discussing this issue, I opposed the covenant not to sue - regardless of any appeal mechanism. Based on statements by the WG Co-Chairs (one verbally and one in chat), I understood that the report would reflect that opposition. I also understood based on statements in chat that we would seek public comment on the covenant not to sue - independent of any appeals mechanism - in the Initial Report. Moreover, the discussion was clear that, for even those WT members who supported an appeals mechanism, that support is dependent on the efficacy of the appeals mechanism. The current draft of the report doesn't reflect either of these points (c and f), and doesn't seek public comment on either of them, either (e). I believe these inadvertent omissions need to be corrected. I apologize for the timing of this request, but didn't realize until yesterday's meeting that the text I was looking for was in Section 1.5 (and not Section 1.8) Kristina Kristina Rosette Senior Corporate Counsel, IP - Domains rosettek(a)amazon.com<mailto:rosettek@amazon.com> | 703.407.1354

4 3

Re: [Gnso-newgtld-wg] New gTLD Subsequent Procedures PDP WG - Initial Report
by Aikman-Scalese, Anne June 19, 2018

June 19, 2018

As everyone knows, I also support the approach of finalizing the version for public comment AFTER the meeting in Panama, as did many commenters on the last call. It’s a policy meeting. The Preamble looks good with the exception of the following: A. “different” should be “differently” B. “man-hours” should be “hours” Listing the questions for public comment in separate Annexes (with links to the deliberations) is a terrific idea. Thank you Leadership for thinking of this! I think Jeff made it clear on the last call that members of the Working Group could submit changes and comments up until Friday June 29. That makes sense. Due to time constraints on the drafting process, I am underlining the items below (from my previous comments) in advance of seeing the revisions. These revisions are necessary to accurately reflect discussions in Work Tracks 3 and 4 respectively. With respect to work actually discussed in the Work Tracks, I was disappointed that several issues I raised in those (time-consuming) discussions did not appear in the draft Initial Report. I have raised these again (and again – even going back and documenting them from the calls in the case of Work Track 4) and will be looking for revisions to the draft report to accurately reflect those discussions. Some of the more significant are: 1. Predictability Framework. The proposed framework is duplicative of the GNSO Procedures already adopted by the Board for GNSO Input, GNSO Guidance, and Expedited PDP. At first Jeff and Steve Chan thought these existing procedures only applied to the pre-launch phase. This is obviously not the case and was never intended by the P & I Working Group. Many of the examples provided in the draft Initial Report were carefully studied by the WG before recommending the policy to the GNSO which was later adopted by the Board and now appears in the GNSO Operating Procedures Annexes. This was mentioned several times in the plenary calls. The conflict should be highlighted, as should be clear from the fact that the GNSO is now launching an EPDP. 2. Disclosure of New Services at the Time of Application. Regarding the portion of the draft report that deals with disclosure of new services at the time of application, Question 23 of the existing application requires that all new services proposed be described, including any security and stability issues that may be associated with that. The initial draft report skipped over this issue that was clearly raised in Work Track 4 and talked about the flexibility to propose new services either at the application stage or later on in the RSEP process (even if known at the time of application). As mentioned, there are “trade-offs” here in relation to opportunities for Objections and Evaluations and these should be highlighted for public comment. 3. Aggregated Technical and Financial Evaluations. There was discussion in Work Track 4 about not putting applications that propose new and innovative services at a disadvantage as to timing of contract award based on the fact that these could not be processed as quickly. The purpose of the new gTLD program is innovation. Again, there are “trade-offs” here. This question falls into the category of items as to which there has been no coordination among the Work Tracks. While this may not have been the responsibility of Work Track 4 per se, that does not mean it is not a concern and does not mean it was not discussed. I am not the only person in the Work Track who mentioned this problem. 4. Definition of “community”. I raised the Principle of Freedom of Expression numerous times within Work Track 3 discussions in relation to concerns that the proposed policy change to narrow the definition of community to those community applications that are “deserving” of CPE violates that principle and involves content regulation that is beyond ICANN’s Mission. This issue did not appear in the initial draft report so I had to raise it again in the full WG calls. Karen Day says that she and Robin Gross are “on it” so thank you Karen! It is not appropriate for any of the above issues to be “sidelined” by suggesting that the WG post the comments to the public comment section rather than describing the issues in the Initial Report exactly as they were raised in the Work Track discussions. I agree with those who have remarked that if the issues clearly raised in the Work Tracks are not clearly set forth for public comment, the failure will merely “blow up later”. In this regard, I have never had this much trouble getting bottom-up participation reflected, notwithstanding the fact that Jeff is doing a yeoman’s job in dealing with this much material and trying to coordinate his Work Track leaders. Thank you Jeff. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D407C1.74F1C030] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jonathan Robinson Sent: Tuesday, June 19, 2018 9:02 AM To: 'Jon Nevett'; 'Jeff Neuman' Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC I’d like to support Jon here. This seems like a sensible approach. Jonathan From: Jon Nevett [mailto:jon@donuts.email] Sent: Tuesday, June 19, 2018 4:11 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC Jeff: There are a number of examples, like this one, where I am hearing about last minute proposed improvements to the report. We should have the time in Panama to go through theses changes vs. on the fly now. I propose that we consider and make any final clarifications/improvements in Panama. We should lock down the report after Panama and then send it out for public comment. Locking it down before Panama would only prevent us from making final clarifications and improvements necessitating comments on stale or incorrect language. Wouldn't we be better off getting comments on a better version? Thx. Jon On Jun 19, 2018, at 7:40 AM, Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, I think we can find a way to incorporate Kristina and Anne's comments because upon thinking about this, they are correct. Although the Guidebook uses the term "infringe" many times, technically, the Guidebook does not use an "infringement" standard in the supporting text. Perhaps generalizing the text to just ask if the standard that was applied was the correct one. So how about this: • Should the standard for the Legal Rights Objection remain the same as in the 2012 round? Please explain. And we drop a footnote quoting section 3.5.2 in full as Anne did below. Does that work? Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman(a)valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw -----Original Message----- From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: Monday, June 18, 2018 10:26 PM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC Anne, The policy reads "Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law." (Source: https://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm) Anything different than that, including AGB which was supposed to be its implementation when it does not follow policy, is a change of GNSO policy. It also doesn't work picking 1 AGB reference when other 3 references in AGB say exactly what the GNSO policy says. We can't just pick references that go to one view and not the others from the same document. Rubens > On 18 Jun 2018, at 23:00, Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> wrote: > > Rubens, > This is definitely not a “change in policy” that Kristina and I are suggesting. The clear language of the AGB which codifies the grounds for the LRO is at 3.5.2 as follows: > > 3.5.2 Legal Rights Objection > In interpreting and giving meaning to GNSO Recommendation 3 (“Strings > must not infringe the existing legal rights of others that are > recognized or enforceable under generally accepted and internationally > recognized principles of law”), a DRSP panel of experts presiding over > a legal rights objection will determine whether the potential use of > the applied-for gTLD by the applicant takes unfair advantage of the > distinctive character or the reputation of the objector’s registered > or unregistered trademark or service mark (“mark”) or IGO name or > acronym (as identified in the treaty establishing the organization), > or unjustifiably impairs the distinctive character or the reputation > of the objector’s mark or IGO name or acronym, or otherwise creates an > impermissible likelihood of confusion between the applied-for gTLD and > the objector’s mark or IGO name or acronym. > > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 office > 520.879.4725 fax > AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> > _____________________________ > <image003.png> > Lewis Roca Rothgerber Christie LLP > One South Church Avenue, Suite 2000 > Tucson, Arizona 85701-1611 > lrrc.com<http://lrrc.com> > > > From: Rubens Kuhl [mailto:rubensk@nic.br] > Sent: Monday, June 18, 2018 6:06 PM > To: Aikman-Scalese, Anne > Cc: Rosette, Kristina; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD > Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC > > > Anne and Kristina, > > While we can reckon the actual standard used in 2012, we can't simply > ignore that we have > - The current applicable GNSO Recommendation (3) saying infringement > - Three AGB references using infringement > 3.2.1 Grounds for Objection > Legal Rights Objection – The applied-for gTLD string infringes the existing legal rights of the objector. > 3.2.2.2 Legal Rights Objection A rightsholder has standing to file a legal rights objection. The source and documentation of the existing legal rights the objector is claiming (which may include either registered or unregistered trademarks) are infringed by the applied-for gTLD must be included in the filing. > Attachment to Module 3 > Article 2 (e) (ii) > “Existing Legal Rights Objection” refers to the objection that the > string comprising the potential new gTLD infringes the existing legal > rights of others > > (not counting 3.5.2, where infringement is redefined to the criteria > actually used) > > That means that in order to keep 2012 status-quo, the policy recommendation needs to be changed and AGB also needs to be changed. > > What I find curious is that ICANN's own Program Implementation Review failed to acknowledge this deviation from policy, and we probably need to state that somehow. Even if the PDP finds that it was for the better, and it looks that way to me, we shouldn't miss the learning that this mistake provided. > > > Rubens > > > > > > On 18 Jun 2018, at 19:07, Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> wrote: > > I support Kristina’s comments shown in the attachment and note that she also states in her comment on page 10 that the LRO in 2012 was not an “infringement” standard. Kristina suggests in the attachment that we simply refer to the “standard used in 2012” if we are not willing to set out the three grounds set forth in the AGB and copied again below. > > This same reference to “infringement analysis” occurs on page 15 of draft Section 1.8 so the language there should be conformed to the language chosen for page 10. > > Again, the standard for LRO from 2012 is as follows: > > As provided for in section 3.5.2 of the ICANN Applicant Guidebook, the independent panel will determine whether the potential use of the applied-for gTLD by the applicant: > (i) takes unfair advantage of the distinctive character or the reputation of the objector’s registered or unregistered trademark or service mark (“mark”) or IGO name or acronym, or > (ii) unjustifiably impairs the distinctive character or the reputation of the objector’s mark or IGO name or acronym, or > (iii) otherwise creates an impermissible likelihood of confusion between the applied-for gTLD and the objector’s mark or IGO name or acronym. > > Anne > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 office > 520.879.4725 fax > AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> > _____________________________ > <image003.png> > Lewis Roca Rothgerber Christie LLP > One South Church Avenue, Suite 2000 > Tucson, Arizona 85701-1611 > lrrc.com<http://lrrc.com> > > > From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On > Behalf Of Rosette, Kristina via Gnso-newgtld-wg > Sent: Monday, June 18, 2018 7:52 AM > To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> > Subject: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent > Procedures PDP WG - 18 June 2018 at 15:00 UTC > > This time with attachment. Apologies. > > > From: Rosette, Kristina > Sent: Monday, June 18, 2018 10:51 AM > To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> > Cc: 'Steve Chan' <steve.chan(a)icann.org<mailto:steve.chan@icann.org>> > Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent > Procedures PDP WG - 18 June 2018 at 15:00 UTC > > My comments and suggestions on 1.8 attached. > > From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On > Behalf Of Steve Chan > Sent: Sunday, June 17, 2018 1:25 PM > To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> > Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent > Procedures PDP WG - 18 June 2018 at 15:00 UTC > > Dear WG Members, > > With apologies for the late delivery, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for 18 June 2018 at 15:00 UTC, for 90 minutes. > > • Agenda Review > • Roll Call/SOIs > • Review of the Initial Report (continued). * The purpose of this review is to ensure that preliminary outcomes and deliberations are accurately captured and written in an understandable manner. The WG Co-Chairs have sought to make clear that this exercise is not intended to re-open substantive discussions, which is better served by the submission of public comments and subsequently when reviewing public comments received. Please submit your comments about these sections to the Working Group mailing list (gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>) in advance of the meeting. > • Review of Section 1.8 (Accountability Mechanisms) > • Review of Section 1.9 (Community Applications) > • Review of other sections in the Initial Report > • AOB > > For Item 3, the relevant documents are attached. As a reminder, please note that a resource page has been set up on the Wiki to track the distribution of Initial Report sections, which you can find here: https://community.icann.org/x/NwUhB. > > For Item 4, you will find a draft of most of the other sections within the Initial Report, including the Preamble and the Executive Summary. You will see a placeholder in Section 2, which states, “Insert sections from the excerpts reviewed by Working Group…” – here, staff will insert the sections we have been reviewing for the last couple of months, inclusive of any changes as needed from discussions on calls and on list. > > Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>). > > Best, > Steve > > > > > > > > Steven Chan > Policy Director, GNSO Support > > ICANN > 12025 Waterfront Drive, Suite 300 > Los Angeles, CA 90094-2536 > steve.chan(a)icann.org<mailto:steve.chan@icann.org> > mobile: +1.310.339.4410 > office tel: +1.310.301.5800 > office fax: +1.310.823.8649 > > Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. > > Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the > GNSO on Facebook: https://www.facebook.com/icanngnso/ > http://gnso.icann.org/en/ > > > > This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. > <RosetteK cmts Section 1.8 Dispute > Proceedings_7June2018.docx>___________________________________________ > ____ > Gnso-newgtld-wg mailing list > Gnso-newgtld-wg(a)icann.org<mailto:Gnso-newgtld-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg > > > > This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg(a)icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

4 6

Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC
by Aikman-Scalese, Anne June 19, 2018

June 19, 2018

I support Kristina’s comments shown in the attachment and note that she also states in her comment on page 10 that the LRO in 2012 was not an “infringement” standard. Kristina suggests in the attachment that we simply refer to the “standard used in 2012” if we are not willing to set out the three grounds set forth in the AGB and copied again below. This same reference to “infringement analysis” occurs on page 15 of draft Section 1.8 so the language there should be conformed to the language chosen for page 10. Again, the standard for LRO from 2012 is as follows: As provided for in section 3.5.2 of the ICANN Applicant Guidebook, the independent panel will determine whether the potential use of the applied-for gTLD by the applicant: (i) takes unfair advantage of the distinctive character or the reputation of the objector’s registered or unregistered trademark or service mark (“mark”) or IGO name or acronym, or (ii) unjustifiably impairs the distinctive character or the reputation of the objector’s mark or IGO name or acronym, or (iii) otherwise creates an impermissible likelihood of confusion between the applied-for gTLD and the objector’s mark or IGO name or acronym. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D40716.126BB2F0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Rosette, Kristina via Gnso-newgtld-wg Sent: Monday, June 18, 2018 7:52 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC This time with attachment. Apologies. From: Rosette, Kristina Sent: Monday, June 18, 2018 10:51 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Cc: 'Steve Chan' <steve.chan(a)icann.org<mailto:steve.chan@icann.org>> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC My comments and suggestions on 1.8 attached. From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Steve Chan Sent: Sunday, June 17, 2018 1:25 PM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC Dear WG Members, With apologies for the late delivery, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for 18 June 2018 at 15:00 UTC, for 90 minutes. 1. Agenda Review 2. Roll Call/SOIs 3. Review of the Initial Report (continued). * The purpose of this review is to ensure that preliminary outcomes and deliberations are accurately captured and written in an understandable manner. The WG Co-Chairs have sought to make clear that this exercise is not intended to re-open substantive discussions, which is better served by the submission of public comments and subsequently when reviewing public comments received. Please submit your comments about these sections to the Working Group mailing list (gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>) in advance of the meeting. * Review of Section 1.8 (Accountability Mechanisms) * Review of Section 1.9 (Community Applications) 4. Review of other sections in the Initial Report 5. AOB For Item 3, the relevant documents are attached. As a reminder, please note that a resource page has been set up on the Wiki to track the distribution of Initial Report sections, which you can find here: https://community.icann.org/x/NwUhB. For Item 4, you will find a draft of most of the other sections within the Initial Report, including the Preamble and the Executive Summary. You will see a placeholder in Section 2, which states, “Insert sections from the excerpts reviewed by Working Group…” – here, staff will insert the sections we have been reviewing for the last couple of months, inclusive of any changes as needed from discussions on calls and on list. Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>). Best, Steve Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org<mailto:steve.chan@icann.org> mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<applewebdata://310CAD3E-E244-4690-A938-C2655DD44BDE/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-…>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

9 12