August 2019 - Gnso-newgtld-wg

Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 19 August 2019
by Julie Hedlund 20 Sep '19

20 Sep '19

Dear Working Group members, Please see below the notes from the meeting today, 19 August 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-08-19+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: Reserved Names: ACTION ITEM: Liaise with the RPM PDP WG to understand their discussions on reserved names and any overlap. Registrant Protections: ACTION ITEM re: ALAC General Comments on registrant protections: Ask ALAC to give examples of where applicants failed to meet the registrant protection standards that were allowed to proceed. Notes: 1. Welcome and Updates to Statements of Interest: No updates provided. 2. Review of summary document – See: https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrou… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> a. Reserved Names (continued discussion, start at page 7) Ability to reserve an unlimited number of second level domain names and release those names at the RO’s discretion through ICANN-accredited registrars. -- A number of comments oppose any limit on these reservations. -- Some support for some form of limit. -- Concerns if names are being released from reservation after Sunrise. -- RrSG – Concern/New Idea: Counter to the allocation of domain names via the registrar. When names are released they should be allocated thorough the registrar. Sunrise process for second-level domain names removed from a reserved names list and released by a registry operator. -- Support a sunrise period for subsequent releases. -- Process only required if commercially feasible. -- INTA/Valideus: Second sunrise may not be feasible, but support measures to allow trademark owners, with trademark recorded in TMCH, to have right of first refusal. -- RySG: Does not support Discussion: -- For geoTLDs important to be able to reserve names independent from any limits. -- Right of first refusal extend right beyond TM owners in real world. -- RPMs PDP WG discussed the 100 names that registries can reserve. Also discussed QLP and ALP. ACTION: Liaison with the RPM PDP WG to understand their discussions on reserved names and any overlap. SAC090: Advisory on Stability of the Domain Namespace: -- Names on the special use list. .onion was added recently. Questions from the SSAC: -- If the IETF updates the special use list, how do the groups communicate with each other? -- What if there is a round ongoing and there are strings that match something that the IETF is recommending to be reserved? IETF liaison to the Board could be required to notify ICANN if a applied-for string is a match for a word the IETF is seeking to reserve. -- How should ICANN discover and respond to future collisions between private names and proposed new ICANN-recognized gTLDs. Discussion: -- RFC6761 – how and why to have a special use domain: Do not operate like top-level domain registries. Generally for different purposes, such as testing, or private applications. The intent was that these would not enter the root at all. They are not supposed to resolve. -- Are these questions really for this PDP WG? Seems to be one level up. -- .onion was a good example – only resolves if you are using their app. -- Are these names temporary, or once they are assigned they are assigned permanently? Most are permanent. Need to know more about their criteria. What is the policy question here? Note that these are not TLDs. -- IETF would not be looking to use a name that already exists as a TLD. -- .home, .corp, .mail addressed through NCAP. b. Registrant Protections (page 9) High-Level Agreements: -- Generally support or not oppose maintaining existing registrant protections, including EBERO etc. -- Generally support providing TLDs exemption from spec 9 and spec 13 from EBERO requirements. -- Supported improving the background screening process. General Comments about registrant protections: -- ALAC: Might be special circumstances that require adjusting the evaluation process. Do a better job of applying standards. ACTION ITEM: Give examples of where applicants failed to meet the registrant protection standards that were allowed to proceed. -- Any exemptions to RPMs should be address by the RPM PDP WG. General Comments on EBERO: -- Not appropriate for some models of registries. -- Requiring both the EBERO and COI is unnecessarily burdensome. -- Relationship between an EBERO and COI should be clarified. EBERO exemption for single registrant TLs (including under Spec 13): -- ICANN Org: WG should clarify whether the EBERO exemption applies only to single registrant TLDS, or all ROs with Spec 13. -- Exemption from EBERO should include exemption from COI and apply to registries with exemption from Spec 9. -- SSAC: Exempting any TLD from EBERO should be considered carefully. Proposal to extend the background screening exemption currently given to publicly traded companies to include exemption for officers, etc. -- Some support and some oppose. Split in the comments. Suggest no support to change the status quo. Proposal to make background screenings more accommodating. Some support. Timing of background screening. -- ICANN Org: Given the large number of change requests on Q11 from 2012 round, consideration should be given to whether background screening should be performed during Initial Evaluation or at Contracting. Proposed additional questions for background screening: -- Some support and some oppose. Address online. Discussion: -- What happens when the COI runs out or if the registry fails after the COI is returned? These are important questions but not sure they can be addressed by this WG. -- Spec 9, Registry Code of Conduct -- there is a provision to get an exemption from the code of conduct (part of Spec 9) – only being used by the registry operator or its affiliates. Here, for those entities being granted that exception they also should be granted exemption from Spec 13. -- Sounds like it make sense to do the background check once and on the right people.

2 1

Rollot of open gTLDs: Defining a gTLD launch enforcement mechanism for the new AGB
by Alexander Schubert 30 Aug '19

30 Aug '19

Hi Steve, I think the “rollout” of gTLDs is completely unaffiliated with “closed generics”. Seemingly the rollout policy elements touch ALL gTLD variants. The mentioned initial report is important: I can only urge everybody to read the one page that concerns the “rollout” it starts at PDF page 206 (of 310) at the bottom and is only about 1 page long: https://gnso.icann.org/sites/default/files/file/field-file-attach/subsequen… Seemingly already in 2012 ICANN was very concerned that applicants would NOT be rolling out their new gTLD! ICANN provided a quite short timeframe to start “use” of the gTLD, and it based that on: Implementation Guideline I: “An applicant granted a TLD string must use it within a fixed timeframe which will be specified in the application process.” The text goes on to describe that specifically applicants have to complete the contracting just 9 month after completion of the evaluation (with an additional 9 month grace period IF “could demonstrate, to ICANN’s reasonable satisfaction, that it was working diligently and in good faith toward successfully completing the steps necessary for entering into the Registry Agreement”. Then within another 12 month all the “testing and procedures …… for delegation of the TLD into the root zone” have to be executed (the same grace conditions apply)! ICANN even threatens to terminate the agreement if that timeline is not met. For open gTLDs the question arises: Why is ICANN threating agreement termination to get a gTLD into the root – but then ICANN stops to follow up whether the startup was executed? It gets even better on page 208 section “e.”: 2.12.1.e.1: One of the reasons the delegation deadline was put into place was to prevent the incidence of squatting/warehousing. The document continues that work track members couldn’t agree on whether having just nic.gtld and nothing else constitutes already “squatting/warehousing”. Funny. So ICANN FORCES you to delegate your open gTLD – and even threatens the termination of the registrar agreement (RA) – but once nic.gtld is delegated: you are “fine”? That doesn’t make ANY sense AT ALL. How does that prevent “squatting/warehousing”? Especially for open gTLDs (we might give Spec 13 gTLDs more liberties here). It is very obvious that ICANN was keen that new gTLDs are being actually “used”. For an open gTLD just having “nic.gtld” online: sorry. That’s not “use”. We have to pick this issue up and fix it. That the WT couldn’t find agreement: probably STACKED with brand consultants who blocked any consensus. ICANN has already DRACONIC penalties for not contracting and not delegating. We need the same draconic penalties for NOT launching an open gTLD. I have no opinion on “Spec 13 gTLDs” though, after all there is no “rollout” to the public anyways. Let’s focus on “open gTLDs” first. Thanks, Alexander From: Steve Chan [mailto:steve.chan@icann.org] Sent: Friday, August 30, 2019 12:50 AM To: Dorrain, Kristine <dorraink(a)amazon.com>; alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Dear WG Members, As a reminder and at the suggestion of Jeff, the discussion on Closed Generics should be moved over to the dedicated list created for that topic here: gnso-newgtld-wg-cg(a)icann.org <mailto:gnso-newgtld-wg-cg@icann.org> As an additional reminder, I would note that that there is actually a WG topic called TLD Rollout, which seems closely related to the points Alexander is raising. You can review section 2.12.1 of the Initial Report <https://gnso.icann.org/sites/default/files/file/field-file-attach/subsequen…> and the public comment review tool <https://docs.google.com/spreadsheets/d/1MQmo1B6zBqGXYFRF2pKZXPhGmz0JfZhIaMx…> . Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Reply-To: "Dorrain, Kristine" <dorraink(a)amazon.com <mailto:dorraink@amazon.com> > Date: Thursday, August 29, 2019 at 2:40 PM To: "alexander(a)schubert.berlin <mailto:alexander@schubert.berlin> " <alexander(a)schubert.berlin <mailto:alexander@schubert.berlin> >, "gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> " <gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alexander, You are apparently proposing an entirely new definition for “closed” generic – one not even close to the one the Board suggested (I can’t recall how many emails back in this thread someone quoted it). Perhaps before you propose radical new policies, we should start with defining “closed generic.” I understand you’re eager for every new TLD to launch to meet the crushing registrant demand given the remarkable scarcity of domains in currently “open” TLDs, but I propose we agree on a definition first. Once we do that, we may be surprised to learn we’re closer than we think. Thanks, Kristine PS: Also, +1 Marc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 2:20 PM To: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, Thanks for being so open. I am suggesting a policy addition that will result in measures - e.g. changes in the future RA (registry agreement) – which enable ICANN to cancel a registry operator contract if an “open gTLD” has not been “launched” (made available for the public). Obviously such measure would likely only affect the future rounds. Reason for the suggested policy addition: An “open gTLD” is meant to enable prospective registrants to register domain names. By not making registrations available within a reasonable frame of time (X years – X needs to be defined) the gTLD is BY DEFINITION a “closed gTLD” – and not anymore “open”. Thus the applicant would have grossly mislead ICANN. ESPECIALLY if “closed generics” will remain unavailable an unlaunched generic gTLD would violate the AGB provisions. As a BARE MINIMUM such registry operator contract should NOT be extended. ICANN invites applicants to apply for gTLDs to enable registrant to register domain names; and to enable the Internet User to use these domains to navigate the Internet. Shutting a certain namespace down is the OPPOSITE (with the exception of Spec 13 designated gTLDs). Obviously most brand consultants will be opposing this suggestion. Are there supporters for my suggestion? Or is everyone OK that in the future for relatively small application fees anybody could for any reason “shut down” a complete namespace for decades on end? Thanks, Alexander From: trachtenbergm(a)gtlaw.com <mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Donnerstag, 29. August 2019 22:08 To: alexander(a)schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, That may have been your concern all along but that it is not the reality. I work with many brands, know almost all of the consultants, and participated in over 40 TLD applications and advised on many more and companies who were considering applying and I have never heard this. If anything, I think that while a few companies had plans to use a .brand TLD, the vast majority who applied for a TLD matching one of their trademarks did so out of fear that someone else would squat on the TLD or apply for it and block the company from using it or that the third party would use the TLD for fraudulent purposes, or that their competitors would have one and they wouldn’t. Maybe these aren’t the greatest reasons for applying for a TLD, but who are you to judge what is the right reason for applying for a TLD or what is in the best interest of the Internet Community? You still have not shown where this does not align with ICANN’s mission. As far as the new gTLD expansion spirit, again, you have your opinion and that is all that it is. I agree that one of the stated purposes of the program was to enhance innovation, competition, and consumer choice. I don’t think we have seen much innovation as just selling domain names in more TLDs does not seem very innovative to me but I guess arguably there is more competition and consumer choice although most of the good names were held back as premium names. Accordingly, it is just your opinion that applying for the operation of generic term gTLDs – then never offer registrations is very obviously the EXACT OPPOSITE: Such string does NOT “enhance innovation, competition and consumer choice.” Who knows – maybe just the fact that the TLD exists has some positive effect or that at some point, given enough time the RO will figure out a new and innovative way to use its TLD. Finally, as far as whether an RO gains “ownership” of a gTLD I think the answer is clearly no. But the RO has certain contractual rights in the TLD in the same way that the registrant of a domain name has certain contractual rights in the domain name and they can use the TLD or second level in any way they choose that is not illegal or violates the rights of a third party, including not using the TLD or second level at all. And they can renew the RA or second level as many times as they want. If you have your way and every possible word and string of characters can and must be a TLD, then ICANN will essentially be a TLD registrar and Registry Operators will be the equivalent of registrants supporting even more that they should be able to operate their TLDs or not and in the time frame that they want. They shouldn’t lose their rights in after some arbitrary amount of time if they haven’t figured out their business plan fully or are waiting on investment just because you are obsessed with being able to register domains in every conceivable TLD. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 <mailto:trachtenbergm@gtlaw.com> trachtenbergm(a)gtlaw.com | <http://www.gtlaw.com/> www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 10:14 AM To: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, It was my concern all along that the brand consultant cloud was “selling” the new gTLD program as “digital asset acquisition” program to brand managers: A “gTLD-sale” where the richest and quickest can snatch up as much land as they wish: and then it “belongs” to them till eternity – regardless whether or not they are using it. That’s obviously NOT in the interest of Internet Community – not aligning with ICANN’s mission and specifically NOT aligning with the new gTLD expansion spirit. ICANN said very clearly: “Via the introduction of new top-level domains (TLDs), the program aims to enhance innovation, competition and consumer choice.” Applying for the operation of generic term gTLDs – then never offer registrations is very obviously the EXACT OPPOSITE: Such string does NOT “enhance innovation, competition and consumer choice.”! Rather it prevents interested parties do so. Marc: Do you think a registrants gains “ownership” of a gTLD? They applied for the operation of the string – to ENABLE registrants to register domain names, so that these can be used by the Internet User to navigate the Internet. IF the applicant does his job well – he can get an extension of his contract after 10 years. If he fails (e.g. never offers any domains in the first place); then he OBVIOUSLY is in breach of the contract. If that isn’t the case with the current RAs (registry agreements) then we need to make sure that it is reflected in all FUTURE RAs! Outside of the “brand cloud”: Is there ANYBODY here that supports the notion that an operator of an “open gTLD” should (in the next round) be permitted to NOT make domain registrations available? For example: that it is “OK” when they do not offer domains 5 years after delegation (unless extreme circumstances prevent him from doing so – which would need to be signed off on by the community)? To me NOT making domains available means there is only 1 registrants (the registry operator entity) which matches the definition of “closed gTLD”. So if you are an “open gTLD” that’s a no-go! Thanks, Alexander From: trachtenbergm(a)gtlaw.com <mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Thursday, August 29, 2019 5:47 PM To: alexander(a)schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, What is this “the mission of the new gTLD extension” that you are referring to? The new gTLD program was an initiative to ENABLE the expansion of the domain name space for interested parties – not to ensure the availability of every possible string of characters as a TLD. From ICANN as explained by the GNSO in the final Report: “The reasons for introducing new top-level domains include that there is demand from potential applicants for new top-level domains in both ASCII and IDN formats. In addition the introduction of new top-level domain application process has the potential to promote competition in the provision of registry services, to add to consumer choice, market differentiation and geographical and service-provider diversity.” There has never been a mission of ICANN to make sure that every possible string is available for use by any person on the planet for registering second level domains, although this appears to be your mission. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 <mailto:trachtenbergm@gtlaw.com> trachtenbergm(a)gtlaw.com | <http://www.gtlaw.com/> www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 5:43 AM To: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, In 2013 ICANN “defined” (rather the understanding of the community was) that: “…….a ‘closed generic’ TLD as a TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit.” The 2012 AGB did not provide for “closed generics” – the PDP never introduced such animal – hence the board denied applicants to operate a generic term based gTLD as “closed generic”. Obviously for a short time between delegation of the string and the Sunrise phase there is a period where EVERY gTLD is inadvertently matching the definition of a “closed generic”: They are forced to operate the domain name “nic.gtld” – hence they are a single registrant and operate the string “exclusively for its own benefit.”. It is the burden and responsibility of the APPLICANT (rather by now: registry operator) to keep such period within a reasonable scope of time. Most operators will try to start up ASAP. Some might need a few more month to sort themselves out. If the period is longer than a year – I think that’s already reason to question what’s going on. But MORE THAN THREE FULL YEARS? That’s not a “reasonable period” at all. Right now since 3 years the .beauty gTLD meets the ICANN definition of “closed generic”. The board has clearly DENIED such option. And you are telling me that there is no problem – and this charade should be allowed to go on “forever”? I do not think that outside of the “Brand-Cloud” ANYBODY would share your opinion. You do not “buy” a gTLD: you apply at ICANN to OPERATE IT: for the benefit of the entire Internet. gTLDs aren’t an “asset” – they are a responsibility. And right now L’Oreal is not meeting their responsibilities. Am I the only person here who is concerned that brands snag up generic category-killer keywords (the main defining dictionary keywords of their vertical; e.g. .beauty, -hair and .skin for L’Oreal) – seemingly with the goal to prevent competitors to snag those strings up, with no real plan how to use them, then simply not use them at all thus precisely meeting the definition of “closed generic”? Brand consultants will run around and tell their clients: “Hey, you GOT to do what L’Oreal did: snag up a couple of your most import verticals of your industry – shut them down; or risk that a competitor is running these strings in some way that would harm you”! If we were to lower the application fee floor to US $25k – then for a mere quarter Million USD a brand could snag up 10 generic keywords. Man: Good business for brand consultants – but horrific for the Internet Community: I see literally THOUSANDS of dictionary terms being “grounded”. Do we really want this to happen? Applying for a generic term based gTLD – never starting it up: That’s a loophole brands are exploiting. We need to shut down all these loopholes, and fast. The Board clearly directed that closed generics are BANNED. We now have the task to explore how many years of running such gTLD effectively as “closed gTLD” (even if just inadvertently) should lead to a cancelation of the contract – and release of the string into the pool of available ones. In my opinion 3 years is already way too long. Here a suggestion for a policy to keep operators compliant with the mission of the new gTLD extension: A year after delegation the applicant should provide a detailed explanation why they have NOT made domains available to the public (which is the entire foundation of their contract with ICANN: making domains available to registrants). The applicant should lay out a detailed timeline of the intended rollout. If another year goes by without startup: The contract should be canceled (unless extraordinary circumstances lay the foundation for a proprietary extension of the grace period; maybe even including a public comment period). This policy “draft” is a shot in the blue – but I think we need SOME policy to avoid that brands deny the public registrations in “their “ gTLDs – thus effectively operating their gTLD as “closed generic”. Thoughts? Alexander From: trachtenbergm(a)gtlaw.com <mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Thursday, August 29, 2019 12:52 AM To: alexander(a)schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round You should be patient as long as the RO is compliant with its RA, even if forever. There is no innate right (or need) to have every word phrase or combination of characters available as a TLD. If the RO was the only one to apply for the string or won it at auction then they can wait as long as they want to do something with it or never do anything with it other than have a nic page. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 <mailto:trachtenbergm@gtlaw.com> trachtenbergm(a)gtlaw.com | <http://www.gtlaw.com/> www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 28, 2019 4:44 PM To: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Hi Marc, Re “no closed gTLDs in the next round”: I thought for THIS audience it is self-evident that my assumption is what it is: an assumption! But yes you are right; I could have said “I certainly hope that …..”! Regarding the non-use of a TLD 3 years after delegation (closed gTLD): In this case (.beauty) all domain names (which is 1 domain name: nic) are registered by the applicant – which is the EXACT definition of a closed gTLD. A closed gTLD is a TLD where the applicant is single registrant. So until they open it up – it is closed. How is this inaccurate? Arguably ALL gTLDs are for a short time “closed gTLDs” – until they admit sunrise regs. How long should we be patient that somebody reverts his “closed gTLD” (all domains registered by the applicant) to an open one? Should we wait 1 year? 3 years? 5 years? A decade? Then renew their contract and wait a bit more? Thanks, Alexander From: trachtenbergm(a)gtlaw.com <mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Wednesday, August 28, 2019 11:57 PM To: alexander(a)schubert.berlin <mailto:alexander@schubert.berlin> ; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, There not being closed generics in the next round and closed generics being a violation of the ICANN mission is your opinion. Please do not present it as a fact. Similarly, a registry operator no launching their TLD is not a closed TLD by definition – at least not in the way understood by anyone who has discussed closed TLDs. It is not helpful to conflate terms. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 <mailto:trachtenbergm@gtlaw.com> trachtenbergm(a)gtlaw.com | <http://www.gtlaw.com/> www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 28, 2019 3:48 PM To: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round *EXTERNAL TO GT* Hi Anne, They routed the SLD “nic”, not the third-level-domain “www”! So there is a website at http://nic.beauty <https://urldefense.proofpoint.com/v2/url?u=http-3A__nic.beauty&d=DwMFaQ&c=2…> ; and at http://webwhois.nic.beauty <https://urldefense.proofpoint.com/v2/url?u=http-3A__webwhois.nic.beauty&d=D…> But the TLD doesn’t seem to have been launched. There is only ONE domain in the zone – “nic.beauty”! And what do any potential next round gTLDs have to do with .beauty? Where is the connection? I don’t get it. There won’t be “closed generics” in the next round – it’s a violation of the ICANN mission and would construe a land grab. And .beauty will likely be available soon again: if you do not make a public DNS resource available to the public; then your contract won’t get extended (or so I hope very much). Actually the question is: Why not making “.beauty” available for the coming round? The TLD is delegated since July 2016 – that’s more than 3 years; plus they had a full 7 years of time after application submission to “make a plan”. So I say: If nothing happens there till 2021: just delete it from the zone. Because “non-use” is BY DEFINITION a “closed” TLD: and they were not allowed to do that. They asked to operate .beauty in order to further the evolution of the DNS – they never delivered. So just delete this string from the zone and make it available again. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Wednesday, August 28, 2019 10:52 PM To: Heather Forrest <haforrestesq(a)gmail.com <mailto:haforrestesq@gmail.com> >; Maxim Alzoba <m.alzoba(a)gmail.com <mailto:m.alzoba@gmail.com> > Cc: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Hi Heather, There is no prohibition on a registry seeking a reasonable contract modification from ICANN in light of all circumstances. It’s codified in Consensus Policy as the RSEP process. An unreasonable denial of that RSEP request for contract modification is fertile ground for a Request for Reconsideration, Independent Review Process, all the way up to and including a lawsuit. See https://www.icann.org/resources/pages/rsep-2014-02-19-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource…> and note the legitimate purpose to “modify” or “remove” an existing Registry service. Let’s take the real life example of .BEAUTY – originally proposed as closed –now delegated as “open” and NOT launched (at least according to ICANN Sunrise records at the link provided by Rubens and I don’t see anything at www.nic.beauty <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nic.beauty&d=DwMFaQ…> . Are we really saying that if L’Oreal’s competitor applies for and gets .PRETTY as a Closed Generic based on a 2022 application, it doesn’t matter and L’Oreal is stuck with remaining an open generic even if they have not launched? (I don’t represent L’Oreal or any other beauty industry client.) Keep in mind that there was absolutely nothing in the 2012 AGB that prohibited an application for a Closed Generic. (Sounds vaguely familiar to another IRP proceeding.) Maybe out of scope for Sub Pro, but GNSO Council will have to deal with this if they don’t want a “logjam” at the Board level as to any new Closed Generic policy that may be developed. Anne From: Heather Forrest < <mailto:haforrestesq@gmail.com> haforrestesq(a)gmail.com> Sent: Tuesday, August 27, 2019 8:44 PM To: Maxim Alzoba < <mailto:m.alzoba@gmail.com> m.alzoba(a)gmail.com> Cc: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman(a)lrrc.com>; <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] _____ Thanks, Maxim - I understand that, but amendments to an in-force contract are not the same as repudiating a contract and asking for a new contract to apply. The terms of the RA (clause 7.6(a) re "Special Amendment") and the AGB expressly provided for amendments to both. AGB Module 6, cl 14: "ICANN reserves the right to make reasonable updates and changes to this applicant guidebook and to the application process, including the process for withdrawal of applications, at any time by posting notice of such updates and changes to the ICANN website, including as the possible result of new policies that might be adopted or advice to ICANN from ICANN advisory committees during the course of the application process. Applicant acknowledges that ICANN may make such updates and changes and agrees that its application will be subject to any such updates and changes. In the event that Applicant has completed and submitted its application prior to such updates or changes and Applicant can demonstrate to ICANN that compliance with such updates or changes would present a material hardship to Applicant, then ICANN will work with Applicant in good faith to attempt to make reasonable accommodations in order to mitigate any negative consequences for Applicant to the extent possible consistent with ICANN's mission to ensure the stable and secure operation of the Internet's unique identifier systems." I can anticipate here that someone will say: "But Module 6 cl 14 expressly anticipates changes to the AGB and gives the 2012 applicant a right to demonstrate material hardship caused by the 'new' AGB being on more favourable terms!" I don't think that will be consistent with standard contract law interpretation in US courts, as only the 2012 applicants agreed to be contractually bound by the 2012 AGB, while new round applicants will only have the option of agreeing to whatever the AGB (or whatever name it has) is at that time, not a choice between old AGB or new AGB. A strict interpretation of "changes to this applicant guidebook" logically suggests that the 2012 AGB binds applicants who applied in 2012, because by applying, they consented to the application of the 2012 AGB. A new AGB, even if technically an amended version of the prior document, would apply to new applicants in the "next" round, whenever that is. Articulated another way, I think Jeff's point to now is that the charter of SubPro PDP instructs us to develop the rules that will apply to applicants in this "next" round, not to unsuccessful or any other applicants of the 2012 round (who already contractually agreed to a set of rules when they submitted their application to the TAS). The question of whether the new AGB/RA that results from SubPro PDP, RPM PDP, CCT Review, etc is to be applied to 2012 applicants is not within our PDP's scope. That's the question that would have to go to Council. Best wishes, Heather . Best wishes, Heather On Wed, Aug 28, 2019 at 11:51 AM Maxim Alzoba <m.alzoba(a)gmail.com <mailto:m.alzoba@gmail.com> > wrote: Heather, Formally ICANN changed AGB and RAin 2012 (Pic spec, for example), after the fees were paid. But anyway, we should not mix rules from the different sets. Maxim Alzoba On 28 Aug 2019, at 08:35, Heather Forrest <haforrestesq(a)gmail.com <mailto:haforrestesq@gmail.com> > wrote: Anne, all, It seems to me that basic principles of contract law apply here to keep us out of the weeds. ICANN's legal framework depends, in its entirety, on contract after all. Applicants who applied in 2012 under the AGB contractually agreed, by submitting an application, to the AGB and the base RA that was incorporated in it. Those applicants did not apply under a future AGB, or a future RA to reflect that future AGB. Whether a party on a 2012-era contract can adopt (in the case of those not yet contracted) the new RA or rescind current RA and adopt new RA (for those already completed contracting) is a separate question. I agree with Jeff that this separate question is not within the scope of the SubPro charter. Best wishes, Heather On Tue, Aug 27, 2019 at 5:50 AM Aikman-Scalese, Anne <AAikman(a)lrrc.com <mailto:AAikman@lrrc.com> > wrote: Hi Jeff – Do we have Susan’s draft language on your first point yet? (You may recall that there were even discussions about PROHIBITING new applications for the same string as some still pending from 2012 –that was not agreed so Susan is working on a statement that 2012 string application processing must be complete before any new application for that string would be considered. HOWEVER – again here is the “rub” – When you say 2012 string applications have to be “completed”, what are you saying about the policy that applies to those? What if the pending strings from 2012 don’t meet current new gTLD policy but they did not violate that policy as of the time of application? We can only skirt this issue for so long. Are 2012 strings going to be allowed to update to current gTLD policy in order to get authorization to proceed or not? Or are you saying GNSO Council will have to launch another PDP for that purpose? From: Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman(a)comlaude.com> Sent: Monday, August 26, 2019 12:43 PM To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman(a)lrrc.com>; <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg(a)icann.org Subject: RE: Closed Generics and the 2012 Round [EXTERNAL] _____ Anne, Where has it been proposed that applications from 2012 get priority? I am not aware of any recommendation that we have made that gives “priority” to any applicants from 2012. We did recommend that any applications that were still outstanding for a string that is applied from in a subsequent round be completed. With respect to Exclusive Generics, the Board resolution on this matter stated that any applications that wanted to maintain their “exclusive generic” status would be “deferred to the next round of the New gTLD Program, subject to rules developed for the next round…” They did not state that any of those applications would get priority. However, there were no applications that were deferred from the last round. If we did allow some form of Exclusive Generic in the next round, then those rules would only apply to new applicants for TLDs. Discussing what happens to TLDs from 2012 that wanted to be Exclusive Generics, but ended up opening their TLDs because of the Board Resolution is not within the topics contained within our Charter. So yes if we wanted to discuss that issue we would need an amendment to our charter to allow us to tackle that subject. The GNSO could then either grant our request or farm that issue out to a separate group. That is within their discretion. This is no different than any other changes we recommend where applicants from the past round would want the same things. For example, if we accept changes to the code of conduct, the COI, reserved names, agreement, etc., the existing registries would not get the benefit of those changes unless the changes go through a PDP that has jurisdiction over those issues. All Applications / TLDs are treated according the to rules for the round in which they applied. This is true regardless of whether they have launched yet or not. I hope this clears things up. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman(a)comlaude.com From: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman(a)lrrc.com> Sent: Monday, August 26, 2019 2:55 PM To: Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman(a)comlaude.com>; <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg(a)icann.org Subject: RE: Closed Generics and the 2012 Round Thanks Jeff. Your reasoning below is not consistent with what has been proposed in relation to giving priority to applications from the 2012 round that have not been withdrawn. (How is it that this “priority” is in scope for our WG but nothing else re 2012 applicants is in scope? AND if I applied for a Closed Generic and didn’t get it in 2012, why should I have to require another PDP authorization from GNSO Council in order to be treated similarly to new applicants and convert to a Closed Generic? (I believe some open registries that won contention sets in 2012 may not have not have actually launched yet. Why would we say that whether or not they can launch as a Closed Generic is up to GNSO Council?) Thank you, Anne From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Jeff Neuman Sent: Monday, August 26, 2019 5:27 AM To: Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman(a)comlaude.com>; <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] _____ Thanks all. We have already got a number of people signed up for the group. I expect substantive discussions on this topic to start this week. So, it is not too late to join. But remember that if you join, the expectation is that we will attempt to find a compromise solution that we all can live with (if possible). You can view the member list for the small group here: <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di…> https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Clo… Please allow a day or two to pass before seeing your name on the list if you just volunteered over the weekend or today. We will not be talking about Closed Generics in our next meeting tomorrow (late tonight for some of us). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman(a)comlaude.com From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Jeff Neuman Sent: Friday, August 23, 2019 11:01 AM To: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg(a)icann.org Subject: [Gnso-newgtld-wg] Closed Generics and the 2012 Round All, There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications. Some have expressed concerns about the “fairness” of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012. The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things. Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round. As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely. There were NO applicants that elected to defer their applications to any future round. Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues. To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules. If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date. But for now, as some have stated, that issue is out of scope for our group. The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants. Some of those changes may be favorable to the new applicants and some less favorable. The same is true with respect to previous applicants. If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made. The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be. Finally, all requests for data or information from ICANN staff or any outside third party should go through the Working Group Leadership team. No working group members should request information directly without Leadership’s review. Leadership reviews all outstanding action items, including requests for information, and makes a decision on what is necessary and what is feasible. We consider all of these requests seriously and weigh the pros and cons of getting that data, including time, resources and cost. Thanks for your cooperation and let us know if you have any comments or questions. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman(a)comlaude.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com_&d=DwM…> www.comlaude.com _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see <https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMFaQ&…> www.comlaude.com _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMFaQ&…> _____ 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. _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMFaQ&…> _____ 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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…> ) and the website Terms of Service (https://www.icann.org/privacy/tos <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…> ). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _____ 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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> _____ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…> ) and the website Terms of Service (https://www.icann.org/privacy/tos <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…> ). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _____ 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. _____ If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster(a)gtlaw.com <mailto:postmaster@gtlaw.com> , and do not use or disseminate the information.

2 1

TLD Roll-Out Topic
by Aikman-Scalese, Anne 29 Aug '19

29 Aug '19

Dear all, Steve’s link to the public comment on this specific question of “time to roll-out” is very helpful: https://docs.google.com/spreadsheets/d/1MQmo1B6zBqGXYFRF2pKZXPhGmz0JfZhIaMx… Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Phil Buckingham Sent: Thursday, August 29, 2019 3:33 PM To: 'Dorrain, Kristine' <dorraink(a)amazon.com>; alexander(a)schubert.berlin Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Kristine, Separately, shouldn’t the WG be looking at recommending a policy change such that “closed brands” need to launch ( to be defined) within a set time post delegation, otherwise ICANN has a right to “undelegate”. Surely TLDs are about enhancing innovation, consumer choice , consumer trust and competition. How many 2012 TLDs have only one DUM , nic. Whatever. 200-300 ?? Why apply in the first place ? Regards, Phil From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Dorrain, Kristine via Gnso-newgtld-wg Sent: 29 August 2019 22:40 To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alexander, You are apparently proposing an entirely new definition for “closed” generic – one not even close to the one the Board suggested (I can’t recall how many emails back in this thread someone quoted it). Perhaps before you propose radical new policies, we should start with defining “closed generic.” I understand you’re eager for every new TLD to launch to meet the crushing registrant demand given the remarkable scarcity of domains in currently “open” TLDs, but I propose we agree on a definition first. Once we do that, we may be surprised to learn we’re closer than we think. Thanks, Kristine PS: Also, +1 Marc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 2:20 PM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, Thanks for being so open. I am suggesting a policy addition that will result in measures - e.g. changes in the future RA (registry agreement) – which enable ICANN to cancel a registry operator contract if an “open gTLD” has not been “launched” (made available for the public). Obviously such measure would likely only affect the future rounds. Reason for the suggested policy addition: An “open gTLD” is meant to enable prospective registrants to register domain names. By not making registrations available within a reasonable frame of time (X years – X needs to be defined) the gTLD is BY DEFINITION a “closed gTLD” – and not anymore “open”. Thus the applicant would have grossly mislead ICANN. ESPECIALLY if “closed generics” will remain unavailable an unlaunched generic gTLD would violate the AGB provisions. As a BARE MINIMUM such registry operator contract should NOT be extended. ICANN invites applicants to apply for gTLDs to enable registrant to register domain names; and to enable the Internet User to use these domains to navigate the Internet. Shutting a certain namespace down is the OPPOSITE (with the exception of Spec 13 designated gTLDs). Obviously most brand consultants will be opposing this suggestion. Are there supporters for my suggestion? Or is everyone OK that in the future for relatively small application fees anybody could for any reason “shut down” a complete namespace for decades on end? Thanks, Alexander From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Donnerstag, 29. August 2019 22:08 To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, That may have been your concern all along but that it is not the reality. I work with many brands, know almost all of the consultants, and participated in over 40 TLD applications and advised on many more and companies who were considering applying and I have never heard this. If anything, I think that while a few companies had plans to use a .brand TLD, the vast majority who applied for a TLD matching one of their trademarks did so out of fear that someone else would squat on the TLD or apply for it and block the company from using it or that the third party would use the TLD for fraudulent purposes, or that their competitors would have one and they wouldn’t. Maybe these aren’t the greatest reasons for applying for a TLD, but who are you to judge what is the right reason for applying for a TLD or what is in the best interest of the Internet Community? You still have not shown where this does not align with ICANN’s mission. As far as the new gTLD expansion spirit, again, you have your opinion and that is all that it is. I agree that one of the stated purposes of the program was to enhance innovation, competition, and consumer choice. I don’t think we have seen much innovation as just selling domain names in more TLDs does not seem very innovative to me but I guess arguably there is more competition and consumer choice although most of the good names were held back as premium names. Accordingly, it is just your opinion that applying for the operation of generic term gTLDs – then never offer registrations is very obviously the EXACT OPPOSITE: Such string does NOT “enhance innovation, competition and consumer choice.” Who knows – maybe just the fact that the TLD exists has some positive effect or that at some point, given enough time the RO will figure out a new and innovative way to use its TLD. Finally, as far as whether an RO gains “ownership” of a gTLD I think the answer is clearly no. But the RO has certain contractual rights in the TLD in the same way that the registrant of a domain name has certain contractual rights in the domain name and they can use the TLD or second level in any way they choose that is not illegal or violates the rights of a third party, including not using the TLD or second level at all. And they can renew the RA or second level as many times as they want. If you have your way and every possible word and string of characters can and must be a TLD, then ICANN will essentially be a TLD registrar and Registry Operators will be the equivalent of registrants supporting even more that they should be able to operate their TLDs or not and in the time frame that they want. They shouldn’t lose their rights in after some arbitrary amount of time if they haven’t figured out their business plan fully or are waiting on investment just because you are obsessed with being able to register domains in every conceivable TLD. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 10:14 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, It was my concern all along that the brand consultant cloud was “selling” the new gTLD program as “digital asset acquisition” program to brand managers: A “gTLD-sale” where the richest and quickest can snatch up as much land as they wish: and then it “belongs” to them till eternity – regardless whether or not they are using it. That’s obviously NOT in the interest of Internet Community – not aligning with ICANN’s mission and specifically NOT aligning with the new gTLD expansion spirit. ICANN said very clearly: “Via the introduction of new top-level domains (TLDs), the program aims to enhance innovation, competition and consumer choice.” Applying for the operation of generic term gTLDs – then never offer registrations is very obviously the EXACT OPPOSITE: Such string does NOT “enhance innovation, competition and consumer choice.”! Rather it prevents interested parties do so. Marc: Do you think a registrants gains “ownership” of a gTLD? They applied for the operation of the string – to ENABLE registrants to register domain names, so that these can be used by the Internet User to navigate the Internet. IF the applicant does his job well – he can get an extension of his contract after 10 years. If he fails (e.g. never offers any domains in the first place); then he OBVIOUSLY is in breach of the contract. If that isn’t the case with the current RAs (registry agreements) then we need to make sure that it is reflected in all FUTURE RAs! Outside of the “brand cloud”: Is there ANYBODY here that supports the notion that an operator of an “open gTLD” should (in the next round) be permitted to NOT make domain registrations available? For example: that it is “OK” when they do not offer domains 5 years after delegation (unless extreme circumstances prevent him from doing so – which would need to be signed off on by the community)? To me NOT making domains available means there is only 1 registrants (the registry operator entity) which matches the definition of “closed gTLD”. So if you are an “open gTLD” that’s a no-go! Thanks, Alexander From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Thursday, August 29, 2019 5:47 PM To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, What is this “the mission of the new gTLD extension” that you are referring to? The new gTLD program was an initiative to ENABLE the expansion of the domain name space for interested parties – not to ensure the availability of every possible string of characters as a TLD. From ICANN as explained by the GNSO in the final Report: “The reasons for introducing new top-level domains include that there is demand from potential applicants for new top-level domains in both ASCII and IDN formats. In addition the introduction of new top-level domain application process has the potential to promote competition in the provision of registry services, to add to consumer choice, market differentiation and geographical and service-provider diversity.” There has never been a mission of ICANN to make sure that every possible string is available for use by any person on the planet for registering second level domains, although this appears to be your mission. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Thursday, August 29, 2019 5:43 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Marc, In 2013 ICANN “defined” (rather the understanding of the community was) that: “…….a ‘closed generic’ TLD as a TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit.” The 2012 AGB did not provide for “closed generics” – the PDP never introduced such animal – hence the board denied applicants to operate a generic term based gTLD as “closed generic”. Obviously for a short time between delegation of the string and the Sunrise phase there is a period where EVERY gTLD is inadvertently matching the definition of a “closed generic”: They are forced to operate the domain name “nic.gtld” – hence they are a single registrant and operate the string “exclusively for its own benefit.”. It is the burden and responsibility of the APPLICANT (rather by now: registry operator) to keep such period within a reasonable scope of time. Most operators will try to start up ASAP. Some might need a few more month to sort themselves out. If the period is longer than a year – I think that’s already reason to question what’s going on. But MORE THAN THREE FULL YEARS? That’s not a “reasonable period” at all. Right now since 3 years the .beauty gTLD meets the ICANN definition of “closed generic”. The board has clearly DENIED such option. And you are telling me that there is no problem – and this charade should be allowed to go on “forever”? I do not think that outside of the “Brand-Cloud” ANYBODY would share your opinion. You do not “buy” a gTLD: you apply at ICANN to OPERATE IT: for the benefit of the entire Internet. gTLDs aren’t an “asset” – they are a responsibility. And right now L’Oreal is not meeting their responsibilities. Am I the only person here who is concerned that brands snag up generic category-killer keywords (the main defining dictionary keywords of their vertical; e.g. .beauty, -hair and .skin for L’Oreal) – seemingly with the goal to prevent competitors to snag those strings up, with no real plan how to use them, then simply not use them at all thus precisely meeting the definition of “closed generic”? Brand consultants will run around and tell their clients: “Hey, you GOT to do what L’Oreal did: snag up a couple of your most import verticals of your industry – shut them down; or risk that a competitor is running these strings in some way that would harm you”! If we were to lower the application fee floor to US $25k – then for a mere quarter Million USD a brand could snag up 10 generic keywords. Man: Good business for brand consultants – but horrific for the Internet Community: I see literally THOUSANDS of dictionary terms being “grounded”. Do we really want this to happen? Applying for a generic term based gTLD – never starting it up: That’s a loophole brands are exploiting. We need to shut down all these loopholes, and fast. The Board clearly directed that closed generics are BANNED. We now have the task to explore how many years of running such gTLD effectively as “closed gTLD” (even if just inadvertently) should lead to a cancelation of the contract – and release of the string into the pool of available ones. In my opinion 3 years is already way too long. Here a suggestion for a policy to keep operators compliant with the mission of the new gTLD extension: A year after delegation the applicant should provide a detailed explanation why they have NOT made domains available to the public (which is the entire foundation of their contract with ICANN: making domains available to registrants). The applicant should lay out a detailed timeline of the intended rollout. If another year goes by without startup: The contract should be canceled (unless extraordinary circumstances lay the foundation for a proprietary extension of the grace period; maybe even including a public comment period). This policy “draft” is a shot in the blue – but I think we need SOME policy to avoid that brands deny the public registrations in “their “ gTLDs – thus effectively operating their gTLD as “closed generic”. Thoughts? Alexander From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Thursday, August 29, 2019 12:52 AM To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round You should be patient as long as the RO is compliant with its RA, even if forever. There is no innate right (or need) to have every word phrase or combination of characters available as a TLD. If the RO was the only one to apply for the string or won it at auction then they can wait as long as they want to do something with it or never do anything with it other than have a nic page. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 28, 2019 4:44 PM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Hi Marc, Re “no closed gTLDs in the next round”: I thought for THIS audience it is self-evident that my assumption is what it is: an assumption! But yes you are right; I could have said “I certainly hope that …..”! Regarding the non-use of a TLD 3 years after delegation (closed gTLD): In this case (.beauty) all domain names (which is 1 domain name: nic) are registered by the applicant – which is the EXACT definition of a closed gTLD. A closed gTLD is a TLD where the applicant is single registrant. So until they open it up – it is closed. How is this inaccurate? Arguably ALL gTLDs are for a short time “closed gTLDs” – until they admit sunrise regs. How long should we be patient that somebody reverts his “closed gTLD” (all domains registered by the applicant) to an open one? Should we wait 1 year? 3 years? 5 years? A decade? Then renew their contract and wait a bit more? Thanks, Alexander From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Wednesday, August 28, 2019 11:57 PM To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Alex, There not being closed generics in the next round and closed generics being a violation of the ICANN mission is your opinion. Please do not present it as a fact. Similarly, a registry operator no launching their TLD is not a closed TLD by definition – at least not in the way understood by anyone who has discussed closed TLDs. It is not helpful to conflate terms. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 28, 2019 3:48 PM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round *EXTERNAL TO GT* Hi Anne, They routed the SLD “nic”, not the third-level-domain “www”! So there is a website at http://nic.beauty<https://urldefense.proofpoint.com/v2/url?u=http-3A__nic.beauty&d=DwMFaQ&c=2…>; and at http://webwhois.nic.beauty<https://urldefense.proofpoint.com/v2/url?u=http-3A__webwhois.nic.beauty&d=D…> But the TLD doesn’t seem to have been launched. There is only ONE domain in the zone – “nic.beauty”! And what do any potential next round gTLDs have to do with .beauty? Where is the connection? I don’t get it. There won’t be “closed generics” in the next round – it’s a violation of the ICANN mission and would construe a land grab. And .beauty will likely be available soon again: if you do not make a public DNS resource available to the public; then your contract won’t get extended (or so I hope very much). Actually the question is: Why not making “.beauty” available for the coming round? The TLD is delegated since July 2016 – that’s more than 3 years; plus they had a full 7 years of time after application submission to “make a plan”. So I say: If nothing happens there till 2021: just delete it from the zone. Because “non-use” is BY DEFINITION a “closed” TLD: and they were not allowed to do that. They asked to operate .beauty in order to further the evolution of the DNS – they never delivered. So just delete this string from the zone and make it available again. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Wednesday, August 28, 2019 10:52 PM To: Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>>; Maxim Alzoba <m.alzoba(a)gmail.com<mailto:m.alzoba@gmail.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round Hi Heather, There is no prohibition on a registry seeking a reasonable contract modification from ICANN in light of all circumstances. It’s codified in Consensus Policy as the RSEP process. An unreasonable denial of that RSEP request for contract modification is fertile ground for a Request for Reconsideration, Independent Review Process, all the way up to and including a lawsuit. See https://www.icann.org/resources/pages/rsep-2014-02-19-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource…> and note the legitimate purpose to “modify” or “remove” an existing Registry service. Let’s take the real life example of .BEAUTY – originally proposed as closed –now delegated as “open” and NOT launched (at least according to ICANN Sunrise records at the link provided by Rubens and I don’t see anything at www.nic.beauty<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nic.beauty&d=DwMFaQ…>. Are we really saying that if L’Oreal’s competitor applies for and gets .PRETTY as a Closed Generic based on a 2022 application, it doesn’t matter and L’Oreal is stuck with remaining an open generic even if they have not launched? (I don’t represent L’Oreal or any other beauty industry client.) Keep in mind that there was absolutely nothing in the 2012 AGB that prohibited an application for a Closed Generic. (Sounds vaguely familiar to another IRP proceeding.) Maybe out of scope for Sub Pro, but GNSO Council will have to deal with this if they don’t want a “logjam” at the Board level as to any new Closed Generic policy that may be developed. Anne From: Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>> Sent: Tuesday, August 27, 2019 8:44 PM To: Maxim Alzoba <m.alzoba(a)gmail.com<mailto:m.alzoba@gmail.com>> Cc: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Thanks, Maxim - I understand that, but amendments to an in-force contract are not the same as repudiating a contract and asking for a new contract to apply. The terms of the RA (clause 7.6(a) re "Special Amendment") and the AGB expressly provided for amendments to both. AGB Module 6, cl 14: "ICANN reserves the right to make reasonable updates and changes to this applicant guidebook and to the application process, including the process for withdrawal of applications, at any time by posting notice of such updates and changes to the ICANN website, including as the possible result of new policies that might be adopted or advice to ICANN from ICANN advisory committees during the course of the application process. Applicant acknowledges that ICANN may make such updates and changes and agrees that its application will be subject to any such updates and changes. In the event that Applicant has completed and submitted its application prior to such updates or changes and Applicant can demonstrate to ICANN that compliance with such updates or changes would present a material hardship to Applicant, then ICANN will work with Applicant in good faith to attempt to make reasonable accommodations in order to mitigate any negative consequences for Applicant to the extent possible consistent with ICANN's mission to ensure the stable and secure operation of the Internet's unique identifier systems." I can anticipate here that someone will say: "But Module 6 cl 14 expressly anticipates changes to the AGB and gives the 2012 applicant a right to demonstrate material hardship caused by the 'new' AGB being on more favourable terms!" I don't think that will be consistent with standard contract law interpretation in US courts, as only the 2012 applicants agreed to be contractually bound by the 2012 AGB, while new round applicants will only have the option of agreeing to whatever the AGB (or whatever name it has) is at that time, not a choice between old AGB or new AGB. A strict interpretation of "changes to this applicant guidebook" logically suggests that the 2012 AGB binds applicants who applied in 2012, because by applying, they consented to the application of the 2012 AGB. A new AGB, even if technically an amended version of the prior document, would apply to new applicants in the "next" round, whenever that is. Articulated another way, I think Jeff's point to now is that the charter of SubPro PDP instructs us to develop the rules that will apply to applicants in this "next" round, not to unsuccessful or any other applicants of the 2012 round (who already contractually agreed to a set of rules when they submitted their application to the TAS). The question of whether the new AGB/RA that results from SubPro PDP, RPM PDP, CCT Review, etc is to be applied to 2012 applicants is not within our PDP's scope. That's the question that would have to go to Council. Best wishes, Heather . Best wishes, Heather On Wed, Aug 28, 2019 at 11:51 AM Maxim Alzoba <m.alzoba(a)gmail.com<mailto:m.alzoba@gmail.com>> wrote: Heather, Formally ICANN changed AGB and RAin 2012 (Pic spec, for example), after the fees were paid. But anyway, we should not mix rules from the different sets. Maxim Alzoba On 28 Aug 2019, at 08:35, Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>> wrote: Anne, all, It seems to me that basic principles of contract law apply here to keep us out of the weeds. ICANN's legal framework depends, in its entirety, on contract after all. Applicants who applied in 2012 under the AGB contractually agreed, by submitting an application, to the AGB and the base RA that was incorporated in it. Those applicants did not apply under a future AGB, or a future RA to reflect that future AGB. Whether a party on a 2012-era contract can adopt (in the case of those not yet contracted) the new RA or rescind current RA and adopt new RA (for those already completed contracting) is a separate question. I agree with Jeff that this separate question is not within the scope of the SubPro charter. Best wishes, Heather On Tue, Aug 27, 2019 at 5:50 AM Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> wrote: Hi Jeff – Do we have Susan’s draft language on your first point yet? (You may recall that there were even discussions about PROHIBITING new applications for the same string as some still pending from 2012 –that was not agreed so Susan is working on a statement that 2012 string application processing must be complete before any new application for that string would be considered. HOWEVER – again here is the “rub” – When you say 2012 string applications have to be “completed”, what are you saying about the policy that applies to those? What if the pending strings from 2012 don’t meet current new gTLD policy but they did not violate that policy as of the time of application? We can only skirt this issue for so long. Are 2012 strings going to be allowed to update to current gTLD policy in order to get authorization to proceed or not? Or are you saying GNSO Council will have to launch another PDP for that purpose? From: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Monday, August 26, 2019 12:43 PM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Anne, Where has it been proposed that applications from 2012 get priority? I am not aware of any recommendation that we have made that gives “priority” to any applicants from 2012. We did recommend that any applications that were still outstanding for a string that is applied from in a subsequent round be completed. With respect to Exclusive Generics, the Board resolution on this matter stated that any applications that wanted to maintain their “exclusive generic” status would be “deferred to the next round of the New gTLD Program, subject to rules developed for the next round…” They did not state that any of those applications would get priority. However, there were no applications that were deferred from the last round. If we did allow some form of Exclusive Generic in the next round, then those rules would only apply to new applicants for TLDs. Discussing what happens to TLDs from 2012 that wanted to be Exclusive Generics, but ended up opening their TLDs because of the Board Resolution is not within the topics contained within our Charter. So yes if we wanted to discuss that issue we would need an amendment to our charter to allow us to tackle that subject. The GNSO could then either grant our request or farm that issue out to a separate group. That is within their discretion. This is no different than any other changes we recommend where applicants from the past round would want the same things. For example, if we accept changes to the code of conduct, the COI, reserved names, agreement, etc., the existing registries would not get the benefit of those changes unless the changes go through a PDP that has jurisdiction over those issues. All Applications / TLDs are treated according the to rules for the round in which they applied. This is true regardless of whether they have launched yet or not. I hope this clears things up. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Monday, August 26, 2019 2:55 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Closed Generics and the 2012 Round Thanks Jeff. Your reasoning below is not consistent with what has been proposed in relation to giving priority to applications from the 2012 round that have not been withdrawn. (How is it that this “priority” is in scope for our WG but nothing else re 2012 applicants is in scope? AND if I applied for a Closed Generic and didn’t get it in 2012, why should I have to require another PDP authorization from GNSO Council in order to be treated similarly to new applicants and convert to a Closed Generic? (I believe some open registries that won contention sets in 2012 may not have not have actually launched yet. Why would we say that whether or not they can launch as a Closed Generic is up to GNSO Council?) Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Monday, August 26, 2019 5:27 AM To: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] ________________________________ Thanks all. We have already got a number of people signed up for the group. I expect substantive discussions on this topic to start this week. So, it is not too late to join. But remember that if you join, the expectation is that we will attempt to find a compromise solution that we all can live with (if possible). You can view the member list for the small group here: https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Clo…<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di…> Please allow a day or two to pass before seeing your name on the list if you just volunteered over the weekend or today. We will not be talking about Closed Generics in our next meeting tomorrow (late tonight for some of us). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Friday, August 23, 2019 11:01 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Closed Generics and the 2012 Round All, There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications. Some have expressed concerns about the “fairness” of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012. The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things. Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round. As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely. There were NO applicants that elected to defer their applications to any future round. Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues. To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules. If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date. But for now, as some have stated, that issue is out of scope for our group. The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants. Some of those changes may be favorable to the new applicants and some less favorable. The same is true with respect to previous applicants. If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made. The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be. Finally, all requests for data or information from ICANN staff or any outside third party should go through the Working Group Leadership team. No working group members should request information directly without Leadership’s review. Leadership reviews all outstanding action items, including requests for information, and makes a decision on what is necessary and what is feasible. We consider all of these requests seriously and weigh the pros and cons of getting that data, including time, resources and cost. Thanks for your cooperation and let us know if you have any comments or questions. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com_&d=DwM…> ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMFaQ&…> ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMFaQ&…> ________________________________ 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. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMFaQ&…> ________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…>) and the website Terms of Service (https://www.icann.org/privacy/tos<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> ________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…>) and the website Terms of Service (https://www.icann.org/privacy/tos<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_…>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ 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. ________________________________ If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster(a)gtlaw.com<mailto:postmaster@gtlaw.com>, and do not use or disseminate the information. ________________________________ 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

Proposed agenda - New gTLD Subsequent Procedures PDP WG - Tuesday, 03 September 2019 at 20:00 UTC
by Julie Hedlund 29 Aug '19

29 Aug '19

Dear all, Please find below the proposed agenda for the call on Tuesday, 03 September 2019 at 20:00 UTC for 90 minutes: 1. Welcome and Updates to Statements of Interest 2. Review of summary document – See: https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrou… a. Security and Stability (page 33) b. Applicant Reviews: Technical/Operational, Financial and Registry Services (page 40) 4. AOB If you need a dial out or would like to submit an apology, please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>. Kind regards, Julie Julie Hedlund, Policy Director

1 0

Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 29 August 2019
by Julie Hedlund 29 Aug '19

29 Aug '19

Dear Working Group members, Please see below the notes from the meeting on 29 August 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-08-29+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: ACTION ITEM 1 re: High-Level Agreement (as relates to RySG comments): “If an applicant is compliant with IDNA2008 (RFCs 5890-5895) or its successor(s) and applicable LGRs for the scripts it intends to support, Pre-Delegation Testing should be unnecessary for the relevant scripts.” Seek clarification from RySG as this is reflected as a high-level agreement, but there is divergence from the ALAC and ICANN Org. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Review of summary document – See: https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrou… a. IDNs (page 26) Note: The GNSO Council has convened a scoping team to examine the policy implications from the IDN Variant TLD Implementation<https://www.icann.org/public-comments/managing-idn-variant-tlds-2018-07-25-…> and Final Proposed Draft Version 4.0<https://www.icann.org/resources/pages/implementation-guidelines-2012-02-25-…> of the IDN Implementation Guidelines. After examining the policy implications, the group will accordingly suggest to the GNSO Council a mechanism to address (e.g., SubPro, new PDP/EPDP, other) the relevant issues. Outstanding Items - New Ideas/Concerns/Divergence Root Zone Label General Rules: -- A lot of the rules for the root have erred on the side of being very conservative as they could affect users globally. -- There are 28 scripts identified for RZ-LGR at this time  of which 18 have completed their proposals. -- There currently a study group from SOs and ACs and Internet Architecture Board (IAB) -- Study on Technical Use of Root Zone Label Generation Rules -- and they have made recommendations for public comment on root LGR: https://www.icann.org/public-comments/technical-rz-lgr-2019-05-15-en -- if a script is not integrated in the root zone LGR then that application should wait, which is slightly different from what is currently recommended. -- Most of the scripts would be done by the next round, except for maybe two or three. -- Should we say that they shouldn’t be able to apply for it, or if they do they have to wait for the LGR to be in place before delegated? Could let them apply and get processed, but not delegated until the LGR are in place. -- There was some discussion around this in the Study Group. It is the GNSO’s call how to decide that. If we don’t allow people to apply they lose the opportunity until the next round. So the suggest from the Study Group is that they apply but are not delegated until the LGR goes into effect. -- Application could be processed, go through contention resolution, objection, but no delegation until the root zone LGR are implemented. -- Status of different scripts: https://www.icann.org/resources/pages/generation-panel-2015-06-21-en for RZ-LGR. -- Would this also be positive in prioritizing the activities that might come about if certain scripts are applied for in more numbers than others. Automation of the RZ-LGR: -- RZ-LGR tool is currently available online: https://www.icann.org/resources/pages/lgr-toolset-2015-06-21-en -- Those cases that allow for script mixing are already accounted for in the RZ-LGR. Pre-Delegation Testing: -- Clarifying: The original recommendation is that pre-delegation testing may not be necessarily as there is compliance with IDNA2008. So, the assumption that something is compliant to IDNA2008 then you don’t need pre-delegation testing is not quite right as compliance itself is not sufficient. There should be steps to address confusability for example. Taking away the pre-delegation testing from this process then how do we determine that those additional requirements for the second level are addressed? -- The comments suggest you shouldn’t have to check if the second level is compliant because that’s the registry’s responsibility. -- One of the concerns to address is end user security and confusability, so the registry is not the only stakeholder. Should the high-level agreement be adjusted (because ALAC and ICANN Org have divergence views): If an applicant is compliant with IDNA2008 (RFCs 5890-5895) or its successor(s) and applicable LGRs for the scripts it intends to support, Pre-Delegation Testing should be unnecessary for the relevant scripts. Allocation of IDN variant TLDs: -- Please see. IDN Variant TLD management recommendations: https://www.icann.org/en/system/files/files/idn-variant-tld-recommendations… -- Recommendation 7: Same registry service provider for IDN variant TLDs. They can be different, but per this recommendation they have to be the same. -- There should be a recommendation that includes that concept. Bundling of 2nd-level IDN variants: -- Second level variants need to be harmonized under the top-level variants. -- Can variants both be used by the same registrant for different purposes? Recommendation 4 is if you have a label under one TLD variant -- my name then that same label under TLD variants should come to the same registrant. If they are delegated at the second level but then given to the same registrant. SSAC Concerns: -- This part of the SSAC comment seems to speak to the discussion about using the 2nd-level variants for different purposes: “There is no indication that PIR will market the service as causing a pair of names from a bundle to “be the same,” to “act the same,” or other phrases that would cause more significant security and stability issues.  -- Variants are, by definition, “same” for the script community. -- Preserving user preference. Additional inputs on 1-Unicode character gTLDs: -- SSAC Concerns: variants can be different for different scripts but mean the same thing: For ideographic scripts such as Han, not only can a single character represent a complete “word” or idea, but in some cases different single characters can represent the same “word” or idea. Were ICANN to delegate each such different single character as a TLD label (whether to the same or to a different registrant), users would likely be subject to confusion based on varying deployments of the single character, defined by registry policy.

1 0

Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round
by Alexander Schubert 29 Aug '19

29 Aug '19

Hi,seems there are right now less than 5 strings not completed - and presumably these will find completion till the next application round starts. IF there should be still a string undelegated: obviously not available until withdrawn.Otherwise I would expect both application rounds to be SEPARATED completely:No 2012 application can invoke any 2nd round policy elements. They can withdraw and apply again of course.More interesting question: if in a few years the first delegated generic keyword based brand TLDs (.smart!) become ten years old; but aren't used: we need to determine how to release them back into the pool of available strings. Blocking a geo-name or a generic keyword for your "brand" - then not even USING IT: how is THAT serving the Internet User? Maybe AtLarge has an opinion here? .smart uses TWO domains right now. WOW. They needed to block the ENTIRE NAMESPACE; to use TWO domains after +SEVEN years? And two domains in use is actually more than average. Most brands don't have ANY domain in active use. They clocked up the system - asked for priority numbers in the lottery - then never USED their loot? Unused generic term & geo-name based "brand"-gTLDs (Spec 13) should not be eligble for renewal - and need to be made available again. Do we have any policy in this regard? Thanks,AlexanderSent from my Samsung device -------- Original message -------- From: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> Date: 8/26/19 22:49 (GMT+02:00) To: Jeff Neuman <jeff.neuman(a)comlaude.com>, gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round  Hi Jeff – Do we have Susan’s draft language on your first point yet? (You may recall that there were even discussions about PROHIBITING new applications for the same string as some still pending from 2012 –that was not agreed so Susan is working on a statement that 2012 string application processing must be complete before any new application for that string would be considered. HOWEVER – again here is the “rub” – When you say 2012 string applications have to be “completed”, what are you saying about the policy that applies to those? What if the pending strings from 2012 don’t meet current new gTLD policy but they did not violate that policy as of the time of application? We can only skirt this issue for so long. Are 2012 strings going to be allowed to update to current gTLD policy in order to get authorization to proceed or not? Or are you saying GNSO Council will have to launch another PDP for that purpose? From: Jeff Neuman <jeff.neuman(a)comlaude.com> Sent: Monday, August 26, 2019 12:43 PM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com>; gnso-newgtld-wg(a)icann.org Subject: RE: Closed Generics and the 2012 Round [EXTERNAL] Anne, Where has it been proposed that applications from 2012 get priority? I am not aware of any recommendation that we have made that gives “priority” to any applicants from 2012. We did recommend that any applications that were still outstanding for a string that is applied from in a subsequent round be completed. With respect to Exclusive Generics, the Board resolution on this matter stated that any applications that wanted to maintain their “exclusive generic” status would be “deferred to the next round of the New gTLD Program, subject to rules developed for the next round…” They did not state that any of those applications would get priority. However, there were no applications that were deferred from the last round. If we did allow some form of Exclusive Generic in the next round, then those rules would only apply to new applicants for TLDs. Discussing what happens to TLDs from 2012 that wanted to be Exclusive Generics, but ended up opening their TLDs because of the Board Resolution is not within the topics contained within our Charter. So yes if we wanted to discuss that issue we would need an amendment to our charter to allow us to tackle that subject. The GNSO could then either grant our request or farm that issue out to a separate group. That is within their discretion. This is no different than any other changes we recommend where applicants from the past round would want the same things. For example, if we accept changes to the code of conduct, the COI, reserved names, agreement, etc., the existing registries would not get the benefit of those changes unless the changes go through a PDP that has jurisdiction over those issues. All Applications / TLDs are treated according the to rules for the round in which they applied. This is true regardless of whether they have launched yet or not. I hope this clears things up. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com From: Aikman-Scalese, Anne <AAikman(a)lrrc.com> Sent: Monday, August 26, 2019 2:55 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com>; gnso-newgtld-wg(a)icann.org Subject: RE: Closed Generics and the 2012 Round Thanks Jeff. Your reasoning below is not consistent with what has been proposed in relation to giving priority to applications from the 2012 round that have not been withdrawn. (How is it that this “priority” is in scope for our WG but nothing else re 2012 applicants is in scope? AND if I applied for a Closed Generic and didn’t get it in 2012, why should I have to require another PDP authorization from GNSO Council in order to be treated similarly to new applicants and convert to a Closed Generic? (I believe some open registries that won contention sets in 2012 may not have not have actually launched yet. Why would we say that whether or not they can launch as a Closed Generic is up to GNSO Council?) Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Jeff Neuman Sent: Monday, August 26, 2019 5:27 AM To: Jeff Neuman <jeff.neuman(a)comlaude.com>; gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round [EXTERNAL] Thanks all. We have already got a number of people signed up for the group. I expect substantive discussions on this topic to start this week. So, it is not too late to join. But remember that if you join, the expectation is that we will attempt to find a compromise solution that we all can live with (if possible). You can view the member list for the small group here: https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Clo… Please allow a day or two to pass before seeing your name on the list if you just volunteered over the weekend or today. We will not be talking about Closed Generics in our next meeting tomorrow (late tonight for some of us). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Jeff Neuman Sent: Friday, August 23, 2019 11:01 AM To: gnso-newgtld-wg(a)icann.org Subject: [Gnso-newgtld-wg] Closed Generics and the 2012 Round All, There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications. Some have expressed concerns about the “fairness” of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012. The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things. Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round. As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely. There were NO applicants that elected to defer their applications to any future round. Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues. To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules. If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date. But for now, as some have stated, that issue is out of scope for our group. The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants. Some of those changes may be favorable to the new applicants and some less favorable. The same is true with respect to previous applicants. If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made. The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be.

6 13

Closed Generics and the 2012 Round
by Jeff Neuman 29 Aug '19

29 Aug '19

All, There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications. Some have expressed concerns about the "fairness" of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012. The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things. Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round. As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely. There were NO applicants that elected to defer their applications to any future round. Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues. To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules. If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date. But for now, as some have stated, that issue is out of scope for our group. The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants. Some of those changes may be favorable to the new applicants and some less favorable. The same is true with respect to previous applicants. If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made. The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be. Finally, all requests for data or information from ICANN staff or any outside third party should go through the Working Group Leadership team. No working group members should request information directly without Leadership's review. Leadership reviews all outstanding action items, including requests for information, and makes a decision on what is necessary and what is feasible. We consider all of these requests seriously and weigh the pros and cons of getting that data, including time, resources and cost. Thanks for your cooperation and let us know if you have any comments or questions. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> [cid:image003.jpg@01D559A2.0B4457E0] ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>

13 37

Closed Generics / Creation of Sub-group
by Jeff Neuman 27 Aug '19

27 Aug '19

All, Thanks for the great discussion on Closed Generics earlier today/yesterday. For those that were not able to be on the call, I highly recommend listening to the recording which can be found on the agenda wiki page<https://community.icann.org/x/VqujBg>. The latest version of the Summary Document is here<https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrou…> (specifically Section 2.7.3 - currently pages 14-20). One of the action items from the call with to create a small sub-group to discuss this issue further to see if it is possible to get a "compromise position" of the Working Group on one of the options that were presented (or any hybrid or new option). We are seeking volunteers to serve on this small group. Please let us know if you would like to sign up for this group. One word of caution: This group is not being set up to rehash the arguments for and against Closed Generics. We have spent more than enough time on that issue and the Summary Documents, combines with the Initial Report and Public Comment Analysis referenced in the Summary Document we believe have effectively captured all of that. What we are looking for is whether there is any solution that can address/mitigate the alleged harms expressed by those that oppose Closed Generics. We are trying to assess whether there is an appetite in the group to compromise. If, after several weeks, we (the Leadership) do not believe there is such an appetite, then we will close the small group down. The last thing we want to do is waste a lot of time discussing an issue that no side is willing to give anymore on. Although you should be familiar with the Summary Document, please do not make any changes to that document at this time (other than glaring errors). The focus should be on finding a compromise (if there is one to be reached). To reiterate, this is a unique situation we have with this issue, because there technically may not be a default position to fall back on. Although it is true that the Board decided to temporarily not allow Closed Generics in 2012<https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06…>, the ICANN Board expressly asked the GNSO to create policy on this matter. The Board, in deciding not to temporarily allow closed generics did not expressly endorse any argument for or against closed generics, but rather made it clear that this was an issue for the communti. Therefore, if we cannot agree on a solution, it is not clear what the ICANN Board would ultimately conclude was the default position. It could be the default was not allowing them or, alternatively, the default could be allowing them because the AGB did not indicate a position on this one way or another. Please let us know ASAP if you would like to join this discussion. We will endeavor to get this list up by early next week and try to start discussing the issues right away. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> [cid:image003.jpg@01D558D6.0CFB5060] ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>

16 22

Proposed agenda - New gTLD Subsequent Procedures PDP WG - 29 August 2019 at 20:00 UTC
by Julie Hedlund 27 Aug '19

27 Aug '19

Dear all, Please find below the proposed agenda for the call on Thursday, 29 August 2019 at 20:00 UTC for 90 minutes: 1. Welcome and Updates to Statements of Interest 2. Review of summary document – See: https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrou… b. IDNs (page 26) 3. Security and Stability (page 33) 4. AOB If you need a dial out or would like to submit an apology, please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>. Kind regards, Julie Julie Hedlund, Policy Director

1 0

Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 27 August 2019
by Emily Barabas 27 Aug '19

27 Aug '19

Dear Working Group members, Please see below the notes from the meeting on 27 August 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/x/WKujBg. Please note that following this call, WG members are encouraged to provide additional input on two topics: * Should additional time should be provided after the string similarity review to allow potential objectors to consider results of the review and prepare objections? * Should certain synonyms -- those associated with highly-regulated sectors and those representing verified TLDs -- be included in the String Similarity Review (example: .DOCTOR and .PHYSICIAN)? Kind regards, Emily Notes and Action Items: Actions: ACTION ITEM 1: WG members are encouraged to comment on list about whether additional time should be provided after the string similarity review to allow potential objectors to consider results of the review and prepare objections. ACTION ITEM 2: WG members are encouraged to comment on list about whether certain synonyms -- those associated with highly-regulated sectors and those representing verified TLDs -- should be included in the String Similarity Review (example: .DOCTOR and .PHYSICIAN). Notes: 1. Welcome/Agenda Review/SOI Updates * No SOI updates 2. Review of summary document – See: https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrou… a. String Similarity (page 21) * Review of Policy Goals * Review of CCT-RT Recommendation 35 * Review of High Level Agreements * Review of concerns and suggestions from ICANN Org * Feedback from ICANN Org -- one challenge is that even though an applicant may suggest a language or label, when the end user is looking at the label, it may also relate to another language. For example, someone applies for a label in English and another applies for a string in Spanish, the two strings might represent a single and a plural in Spanish, which could be confusing for the end user. * Comment - The use of the TLDs matter. If the two strings look like a single and a plural but the way they are used does not represent a singular and a plural, this may not be confusing. * From one perspective, this still not reduce end user confusion. * From another perspective, it may be helpful to disambiguate the applications, looking at what the applications state in terms of purpose. That is the only thing we can assess at the point of application. There could be a contractual provision in the case of potential confusion. * From another perspective, disambiguating the applications may not address the root issue of end user confusion. * Additional consideration raised by ICANN Org -- there are different forms of inflection beyond singular/plural. Some languages that inflect for gender, person, respect, tense, and others. If singular/plural is considered confusing, the group may want to consider these other forms of inflection as confusingly similar? It may be that in the last round that only the singular/plural issue came up, but that other types might come up in the future. * Question raised -- how do we boil this down to provide predictability for applicant? * One suggestion -- use side shows, create an opportunity for applicants to collaborate with other applicants if the strings are variations of one another. Suggestion to look at the .accountant and .accountants example. * Response -- this is more related to addressing the issue among applicants but does not address the concern about end-user confusion. * Question raised -- would “decide” and “decides” be allowed? This example shows an inflection that differentiates between the singular and plural subject for a verb. The only difference is an “s”. We are saying that that the addition of an “s” is important to differentiate in the context of a noun, but potentially not in the case of a verb. Inflections are reasonably well understood in linguistics relative to other morphology. * Question - Is there an existing source that could be used by evaluators and applications to understand the different forms of inflections? * Response - Inflections are typically provided in dictionaries. This can vary from language to language, but inflections such as tense are typically also covered in addition to singular/plural. * Comment - If it is easily determined and looking at the applications it is clear that one is intended to be an inflection of another, this may be something to consider. * There seems to be agreement that having the different inflections of the same root, if they are intended to be inflections of the same root, is not good for end-users. * Another issue raised -- Labels are not necessarily words. Consider the examples car vs. cars and com vs. coms. If one applicant applies for car with the intention of using it in association with the vehicle, but the other applies for cars as an acronym, would this be allowed? What about if someone applies for coms as an abbreviation, not a plural, would this be allowed? * Suggestion -- If the intention of the application is clearly not singular/plural, then it should go through (for example abbreviations, acronyms, or brands that look like plurals of existing TLDs). * Nets basketball team is an example of a brand that is a plural of singular “net.” * Question - How do you bind an applicant to the intent of the application? * Question - How does the stated intent of the applicant solve the issue of consumer confusion in the end? * Response - We may not be able to completely solve the issue of potential confusion, typos on the part of end users, etc. but it is a step in the right direction. * Review of comments and concerns from the SSAC. * One view on SSAC comment - we also have to look at how domain names have been used historically. SSAC is taking a purely technical view of what a domain name is. They may not have originally been intended this way, but there are now many domains that are semantic representations. * Review of comments and concerns from the NCSG. * Question - should we consider treating string similarity reviews and objections differently than other forms of reviews and objections? Should there be additional time after review to allow for objections? This would allow people to consider cases they expected to be caught in the review. On the downside, it could extend the timeline of the application review process. ACTION ITEM 1: WG members are encouraged to comment on list about whether additional time should be provided after the string similarity review to allow potential objectors to consider results of the review and prepare objections. * ALAC comment regarding SWORD tool - if eliminated, a replacement is needed. * Question -- why is there an assumption that an automated tool is needed or wanted? * Clarification from ALAC -- a replacement solution is needed, not necessarily an automated tool. Something needs to be in place to address issues in the 2012 round. * Suggestion -- offer a manual submission of the string to ICANN so they can test a string within a few days for a fee. It would only be possible to test against existing TLDs, not other applications. * Review of comments regarding inclusion of synonyms (for example .DOCTOR and .PHYSICIAN) in the String Similarity Review and a potential dIfferent standard for strings in a highly-regulated sector or verified TLD. * Discussion can continue on the mailing list on this topic. ACTION ITEM 2: WG members are encouraged to comment on list about whether certain synonyms -- those associated with highly-regulated sectors and those representing verified TLDs -- should be included in the String Similarity Review (example: .DOCTOR and .PHYSICIAN). * Review of comment on treatment of homonyms. This may be addressed in the examples we have discussed. * Review of comment from the ccNSO on coordination between the GNSO and ccNSO. * WG Co-Chairs sent a letter to Council on this issue noting that there are differences between the ways the two SOs treat this issue, the work is concluding in the GNSO, ccNSO members are welcome to participate in GNSO processes, and any outputs of a cross-community effort would still need to go through policy development processes in the respective SOs. Therefore, it may not be logical to combine these efforts. b. IDNs (page 26, time permitting) * This will be covered on the next call. 3. Schedule for ICANN66 Saturday, 02 November Session 1: 12:15-13:15 -- SubPro WT5 -- but could change to Full WG meeting Session 2: 13:30-15:00 -- SubPro WT5 -- but could change to Full WG meeting Monday, 04 November Session 3: 09:00-10:15 -- SubPro Full WG Session 4: 15:15-16:45 -- SubPro Full WG

1 0