August 2019 - Gnso-newgtld-wg

Re: [Gnso-newgtld-wg] - Specification 13
by Alexander Schubert Aug. 16, 2019

Aug. 16, 2019

Hi Martin,quoting from spec 11:"“Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others."Would you see "visa" being covered by spec 11? Is there another term for "temporary permission to enter a country" than "visa"?Thanks,AlexanderSent from my Samsung device -------- Original message -------- From: Martin Sutton <martin(a)brandregistrygroup.org> Date: 8/15/19 00:57 (GMT+02:00) To: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> Cc: trachtenbergm(a)gtlaw.com, alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Following the email thread, it appears Alexander is focused on the term “Generic String TLD” referred to in Spec 13 but ignoring the definition quoted within Spec 11 that directly relates to this. I can see that Rubens has referred to this in his earlier response but wanted to flag again as Alexander seems to have ignored this in subsequent replies. Kind regards, Martin Sent from my iPhone On 14 Aug 2019, at 22:41, Aikman-Scalese, Anne <AAikman(a)lrrc.com> wrote:  .Brands have Spec 13 because they are not selling to the public. They are not in the business of selling domain names. That is why they are simpler. In truth, there should be a separate department for processing .BRAND applications because they are much simpler and far fewer consumer issues at stake. It would make no sense to apply Spec 13 to entities that are selling domain names. No one decided that brands could not apply if the brand happened to also be a word that was generic for SOME OTHER good or service. If someone else applied for the generic meaning of the word, then the brand lost. I hope you are not suggesting that Apple shouldn’t have .apple because it happens to be a fruit? There are so many different possible new gTLDs available that I think it is wrong to conclude that this confers “monopoly” of some sort. What about .applegrowers or .buyapples or .gotapples .appleorchard or .loveapples. VISA is clearly a worldwide well-known brand for its global payment technology/credit card services. https://usa.visa.com/legal/visa-nic.html As far as I know, no one applied for a “generic” .visa or .visas gTLD. ORANGE is a very well-known brand for Internet services based in France but operating in many countries. It is not for oranges. https://www.orange.com/en/nic/domains I am guessing no one applied for oranges as a generic. Otherwise they would have won. The big gaming issue in the next round is the question whether someone applies for the generic version of a TLD if they know a brand that has a name that can be construed as generic will or may be applying. If application fees come way down in future, I could spend $50,000 (plus some fees to write up an application and get a pre-qualified Registry Services Provider in place) and then hope the brand (that happens to have a generic name that is fanciful as to its products) and gamble on the brand(s) me out for much bigger money. As application fees come down and associated operational plans are standardized, we are not far from a time when well-funded players could speculate in new gTLD names. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Wednesday, August 14, 2019 2:30 PM To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 [EXTERNAL] Alex, I don’t understand your question. Yes it is correct that ONLY trademark based applications can qualify for Spec 13 and that applications based on generic terms cannot. However, I never said that trademark applications based on “generic terms” can’t qualify for Spec 13. I quoted directly from Spec 13 which said that generic TLDs will not qualify. Trademarks, by their nature, are not generic because they do not describe a category of goods and services – they are in indicator of source. Just because the word or words in a trademark could be generic in one context does not mean they cannot be trademarks in another- e.g. VISA for credit cards and ORANGE for telecom services. ‘protectable under applicable law” generally would mean national law but could also be international law as in the case of regional trademarks or famous marks that are protected by treaty or statute. 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 | www.gtlaw.com <image001.jpg> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 4:12 PM To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Marc, If I understand correctly then ONLY trademark based applications can have a Spec 13; right? You claimed in your initial posting that TM applications based on "generic terms" can't get a Spec 13! Are you standing by this claim - or not? Also "protectable under applicable law" - does that mean "national law" - as in law in the jurisdiction of the country the string is trademarked in? Alexander -------- Original message -------- From: trachtenbergm(a)gtlaw.com Date: 8/14/19 21:16 (GMT+02:00) To: alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: RE: [Gnso-newgtld-wg] - Specification 13 Alex, These applications are for trademarks, not generic terms, and at least VISA and DISCOVER are famous and well-known brand across the globe. You might even have one in your wallet. 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 | www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 10:47 AM To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Dear Marc, I might misinterpret your suggestion – but you are saying there are no generic term based applications such as “smart”, “visa” or “discovery” have a Spec 13 in their contract? (I checked these three – and they seem to have a Spec 13 in their contracts – I assume when checking all the other generic keyword based applications the same will occur). And well: You need to register with the TM Clearinghouse: easy thing to do; the hurdles for that are very low (I have done TMCH applications for trademarks). Plus I am taking about a “real brand” – albeit a small one. So a small shoe brand “SHANGHAI” will easily meet all requirements for a spec 13. In my mind – please correct me if I am wrong. Thanks, Alexander From: trachtenbergm(a)gtlaw.com [mailto:trachtenbergm@gtlaw.com] Sent: Mittwoch, 14. August 2019 17:51 To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org Subject: RE: [Gnso-newgtld-wg] - Specification 13 Alexander, Please also note that Spec 13 does not require just “some trademark registration” and specifically excludes generic string TLDs. Christopher conveniently “forgot” to point out that Section 9.3 of Spec 13 requires: (i) the TLD string is identical to the textual elements protectable under applicable law, of a registered trademark valid under applicable law, which registered trademark: a. is recorded with, and issued a signed data mark file by, the Trademark Clearinghouse or any successor or alternative trademark validation authority appointed by ICANN, if such trademark meets the eligibility requirements of such validation authority (provided that Registry Operator is not required to maintain such recordation for more than one year); b. is owned and used by the Registry Operator or its Affiliate in the ordinary course of Registry Operator’s or its Affiliates’ business in connection with the offering of any of the goods and/or services claimed in the trademark registration; c. was issued to Registry Operator or its Affiliate prior to the filing of its TLD registry application with ICANN; d. is used throughout the Term continuously in the ordinary course of business of Registry Operator or its Affiliate in connection with the offering of any of the goods and/or services identified in the trademark registration; e. does not begin with a period or a dot; and f. is used by Registry Operator or its Affiliate in the conduct of one or more o

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Proposed agenda - New gTLD Subsequent Procedures PDP WG - 19 August 2019 at 20:00 UTC
by Julie Hedlund Aug. 16, 2019

Aug. 16, 2019

Dear all, Please find below the proposed agenda for the call on Monday, 19 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… a. Reserved Names (continued discussion, start at page 7) b. Registrant Protections (page 9) c. Closed Generics (page 13) (time permitting) 3. 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

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 15 August 2019
by Julie Hedlund Aug. 15, 2019

Aug. 15, 2019

Dear Working Group members, Please see below the notes from the meeting today, 15 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/2019-08-15+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: High-Level Agreements: -- ACTION: Include a note in brackets by Reserved Names [“Unavailable Names, referred to in 2012 AGB as “Reserved Names”] -- ACTION: Re: Comments generally support updating Schedule 5 to include the measures for Letter/Letter Two-Character ASCII Labels to Avoid Confusion with Corresponding Country Codes adopted by the ICANN Board on 8 November 2016. Add a footnote to reference that there is ongoing discussion with the Board. 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 (page 4) -- Two types of reserved names – top level and second level. -- Not talking about Geographic Names (WT5), IGO/INGO (waiting for input from implementation), Red Cross/Red Crescent. Discussion: -- Make a note to put the deliberations in this section once they are complete. High-Level Agreements: -- General support reserving the names for Public Technical Identifiers. -- General support reserving Special-Use Domain Names through IETF RFC 6761. -- General support updating Schedule 5 to include the measures for Letter/Letter Two Character ASCII Labels etc. Discussion: -- Question: Shouldn’t we distinguish between “ineligible” strings and “reserve” for other parties? Answer: Helpful to make this distinction. Reserved for non-use by anyone, or reserved for use by a particular, designated party. -- Question: Is there any difference in the degree of protection between the top level and the second level? Answer: If it is reserved at the top level it is reserved from application so you can’t apply for it. Some names at the second level nobody may have, some are for the registry operator, and some for use by certain people. -- In the AGB ICANN uses “reserved” – think of them as unavailable at the top level. -- Should we add the new terms that we use instead of “WHOIS” such as “RDAP”. -- ACTION: Include a note in brackets by Reserved Names [“Unavailable Names, referred to in 2012 AGB as “Reserved Names”] -- ACTION: Add a foot note to reference that there is ongoing discussion with the Board. Outstanding Items—New Ideas/Concerns/Divergence: -- Question: Do we envision that these lists would never change? Answer: Think they would be subject to review. -- RySG: New Idea – If ICANN knows a level will not be delegated it should not be possible to apply for that label. If not reserved, Currency Codes Proposal (Christopher Wilkinson): -- ISO 4217 Currency Codes. -- “Reserve until such time that there is clear agreement with the international Central Banks (e.g. through IMF or BIS) as to whether these codes could be delegated and to which entities, not excluding themselves” -- These platforms could result in seriously destabilizing aspects of the international financial systems. -- Why protect the 3-letter country codes but not the currency codes? Discussion: -- Application includes identifying purposes. And objections can be raised. So, if for a financial purpose, we are likely to see GAC early warning and certain requirements applied. Particularly with highly regulated services. -- What is the damage? -- Most likely GAC member will raise concerns. -- Talked a few weeks ago about applicant freedom of expression. Agreed that it is an important goal. -- To protect a form a speech it should be the most narrow restriction. -- Question: Is reserving them the least restrictive means, or does national law address this. -- Not on solid ground to be taking preventative action unless there’s a clear risk of confusion. -- Helpful to create two lists: 1) no one can have 2) special use case to apply. Where do currency codes fall? That’s a judgement call. -- Currency codes are pretty obscure. Many are not widely used. Reserved Names and the Second Level: -- Valideus: concern – 5 letter/letter 2 character ASCII labels remain reserved because they are IGO acronyms [so not sure we need to address them here] Reserved Names at the Top Level: Remove reservation of two-character letter-number combination: -- Huge list of organizations oppose – confusion with country code. This might belong in top level. -- Substantial number of commenters that were not in favor, but also some supporting but taking measures to avoid confusion. -- ACTION: Say that we allow it but should be taken up in the string confusion analysis. -- If we allow any two-letter combination then that would water down the identification of ccTLDs. Would a sublist of two-character TLD which match any ccTLD work? -- Theme of potential for confusion. Could be opportunity to pick up any of those similarity checks. Recommendation that there need to be strong similarity checks. Only 0 and 1 could cause confusion. Also 1, l, and capital i. -- Given that the potential problem is so limited, and we haven’t as yet identified a likely risk of confusion, isn’t the best way to handle this through a Module 3 objection ground. Voluntary reservation of up to 100 strings at the second level for the operation or the promotion of the TLD: -- Registry can reserve unlimited number of strings, these are for the registry for its own use. -- One of the reason for a request for more than 100 names is that the average big city has more than 100 names. Geos had to reserve names during Sunrise to deliver to the local governments. -- What is the origin of the number of 100? How will it be used? Came from informal discussion in ICANN. Registries often establish cites to promote a name and they will use a second level TLD for that.

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FW: - Specification 13 - Well-Known Brands
by Aikman-Scalese, Anne Aug. 15, 2019

Aug. 15, 2019

Accidentally failed to copy the list. From: Aikman-Scalese, Anne Sent: Wednesday, August 14, 2019 11:31 AM To: 'trachtenbergm(a)gtlaw.com' <trachtenbergm(a)gtlaw.com>; alexander(a)schubert.berlin Subject: RE: [Gnso-newgtld-wg] - Specification 13 I consider it to be a rather unfortunate truth that an application for a famous brand which is also a “generic” word is going to lose out in this new gTLD environment anyway. For example, “Coach” lost in the 2012 round. I don’t know if they ended up paying big money for the “generic” or not. There is nothing that gives a famous brand priority over generic terms. Based on 2012, it’s the opposite. An improvement in this round would be to apply priority for registered marks that are well-known. Well-known marks get protection in almost all countries around the world even if not registered. Though I am doubtful we could develop sufficient consensus to change what happened in 2012 on that one. (RPMs were a “suite” of protective mechanisms involving various compromises.) I currently tell all my clients: Don’t adopt any marks with geo connotations and don’t adopt any marks with any possible “generic” interpretation. This is unfortunate since the geo names in particular actually give more attention to the regions and rivers that are named and that is good for tourism!. Maybe Work Track 5 is coming up with some standard Public Interest terms that could be adopted to accommodate governmental interests when regions and rivers are involved., (I don’t know cause I am not involved in Work Track 5 work.) Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Wednesday, August 14, 2019 11:16 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] - Specification 13 [EXTERNAL] ________________________________ Alex, These applications are for trademarks, not generic terms, and at least VISA and DISCOVER are famous and well-known brand across the globe. You might even have one in your wallet. 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: Wednesday, August 14, 2019 10:47 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13 Dear Marc, I might misinterpret your suggestion – but you are saying there are no generic term based applications such as “smart”, “visa” or “discovery” have a Spec 13 in their contract? (I checked these three – and they seem to have a Spec 13 in their contracts – I assume when checking all the other generic keyword based applications the same will occur). And well: You need to register with the TM Clearinghouse: easy thing to do; the hurdles for that are very low (I have done TMCH applications for trademarks). Plus I am taking about a “real brand” – albeit a small one. So a small shoe brand “SHANGHAI” will easily meet all requirements for a spec 13. In my mind – please correct me if I am wrong. Thanks, Alexander From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Mittwoch, 14. August 2019 17:51 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] - Specification 13 Alexander, Please also note that Spec 13 does not require just “some trademark registration” and specifically excludes generic string TLDs. Christopher conveniently “forgot” to point out that Section 9.3 of Spec 13 requires: (i) the TLD string is identical to the textual elements protectable under applicable law, of a registered trademark valid under applicable law, which registered trademark: a. is recorded with, and issued a signed data mark file by, the Trademark Clearinghouse or any successor or alternative trademark validation authority appointed by ICANN, if such trademark meets the eligibility requirements of such validation authority (provided that Registry Operator is not required to maintain such recordation for more than one year); b. is owned and used by the Registry Operator or its Affiliate in the ordinary course of Registry Operator’s or its Affiliates’ business in connection with the offering of any of the goods and/or services claimed in the trademark registration; c. was issued to Registry Operator or its Affiliate prior to the filing of its TLD registry application with ICANN; d. is used throughout the Term continuously in the ordinary course of business of Registry Operator or its Affiliate in connection with the offering of any of the goods and/or services identified in the trademark registration; e. does not begin with a period or a dot; and f. is used by Registry Operator or its Affiliate in the conduct of one or more of its businesses that are unrelated to the provision of TLD Registry Services; and (ii) only Registry Operator, its Affiliates or Trademark Licensees are registrants of domain names in the TLD and control the DNS records associated with domain names at any level in the TLD; (iii) the TLD is not a Generic String TLD (as defined in Specification 11); and (iv) Registry Operator has provided ICANN with an accurate and complete copy of such trademark registration. 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: Wednesday, August 14, 2019 9:42 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13 *EXTERNAL OF GT* Dear Paul, Don’t forget: I am ALL FOR famous (well known) TMs to be able to secure their brand as gTLD! I just think for generic term-based and geo name--based strings a spec 13 application (which locks out the general public) should meet WAY higher hurdles than just “some trademark registration”. Otherwise: Yes, I have grossly simplified the rather complex intellectual property rights cloud. There are of course IR TMs and (e.g. in Germany) enhanced protections for famous TMs that extend well beyond the goods and services originally protected. Thanks for clarifying, Alexander From: McGrady, Paul D. [mailto:PMcGrady@taftlaw.com] Sent: Mittwoch, 14. August 2019 17:15 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] - Specification 13 Thanks Alexander. Respectfully, your analysis is incorrect. While trademarks are local (state), national, or international (EU marks, Benelux marks) in nature there are protections for trademarks found in International law, e.g. the Paris Convention. I wouldn’t expect anyone in this WG to know that other than the trademark attorneys who participate, so good you brought it up so that I could set the record straight. Your second notion, that trademarks are limited to corresponding goods/services is mostly true (except in jurisdictions that recognize the doctrine of dilution for the protection of famous marks. This would be a more interesting point if gTLD registry applications came with restrictions, i.e. that an applicant made it clear that they have applied for .apple to run an apple farm and that they pledge in advance that there will be no second level registrations that would contain terms or could be used to infringe the APPLE mark (for example, no ability to register computer.apple or use store.apple to sell electronics). Those restrictions would then be incorporated in PICS and brand owners could enforce against registries accordingly. However, ICANN has put no use requirements in place for applicants to agree to, so until they do, we have to take a broad view of trademark rights in order to protect consumers from confusion and malicious activities. Best, Paul Taft / Paul D. McGrady / Partner Taft Stettinius & Hollister LLP 111 E. Wacker Drive, Suite 2800 Chicago, Illinois 60601-3713 Tel: 312.527.4000 • Fax: 312.754.2354 Direct: 312.836.4094 • Cell: 312.882.5020 www.taftlaw.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.taftlaw.com&d=DwMFa…> / PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com> [http://www.taftlaw.com/images/bio-icon.jpg] Taft Bio<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.taftlaw.com_bio_PMc…> [V-Card Icon] Taft vCard<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.taftlaw.com_vcard_P…> Subscribe to our law updates<https://urldefense.proofpoint.com/v2/url?u=http-3A__taftlaw.com_news_subscr…> This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 8:55 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13 Christopher, Brilliant. You pointed out an important factor that the brand lobby conveniently “forgot” to point out: The brand lobby claims that TM law is international law – and therefore protected brands were also protected in their representation on the top-level in the DNS. This however falls short (and btw THANKS to your excellent input here Christopher) on not just ONE but even TWO levels: 1. Most trademarks (and by extension all “brands”) are protected on NATIONAL level – while a gTLD in the DNS is a global registration! At bare minimum such TM should be valid in e.g. the majority of all nations (aka: more than 90). 2. Trademarks do NOT protect a “string” – they always ONLY protect the usage of a given string in connection with a very, very narrow defined set of goods and services. The “APPLE” TM doesn’t protect “APPLE” – it protects the USAGE (and in commerce only!) of “APPLE” for branding computers, laptops, etc! Of 100% of goods and services globally this protects just a few dozen out of hundreds of millions of potential use cases. It’s an INCREDIBLE narrow defined protection. There could be literally MILLIONS of trademarks “APPLE” globally - peacefully living in coexistence. But there can only be ONE gTLD “.apple”. Putting 1 and 2 together I think we might have to rethink spec 13 altogether. At BARE MINIMUM spec 13 should NOT be available for geo-name-based and generic dictionary keyword-based strings. There is neither a global right to such string, nor one that extends over ALL goods and ALL services. These need to be “available for the general public”. It is perfectly legal to register (and enforce its protection) “APPLE” for computers and laptops. But always at your own risk! And new gTLDs are such “risk”. You wanted a “catchy” brand – and used a common keyword. Fine. Just don’t try to hijack that keyword on global level of the DNS. It is NOT “yours” – you are merely allowed to “use” it. (using APLLE here only as example – and I will exonerate APPLE in the next paragraph). Spec 13 makes a certain sense – just not for geo names and dictionary terms. If somebody feels the urge and need to “block” such (generic or geo based) gTLD – they need to meet a certain standard. And a US $299 TM registration doesn’t meet ANY standard. We need to have much higher hurdles – like ACTIVELY USED Trademarks in at least 50 countries aged 5 years or older for example. That would be no problem for the APPLEs, ORANGEs or MANGOs in this world. But just only a “Trademark registration” “SHANGHAI” in one or two jurisdictions? Why empowering them to block the identity of a 24 Million community (in fact larger than 2/3 of all countries globally)? I am not “anti-brand”: I think large scale brands have the potential to create an IMMENSE visibility for new gTLDs (if after SEVEN YEARS of application they would finally start to make active use of their TLDs). I just want to avoid that tiny players abuse the protections we are installing for big players. This btw protects also the big players! So I WANT that .apple is with APPLE, Inc – because that is PRECISELY what the Internet user assumes it should be! I just would find it very sad if a small, national operating shoe label “Shanghai” got “.shanghai” for US $25k – depriving 24 Million people and their constituents (businesses, organizations, associations, Government) of their ability to identify themselves with .shanghai domains! So: “THINK BIG” :D Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of lists(a)christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> Sent: Dienstag, 13. August 2019 20:19 To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13 Good evening: Following a chat exchange during a recent call,, I have reviewed the Specification 13 .BRAND TLD<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_sit…> provisions, dated 31 July 2017, * For present purposes I shall limit my comments to section 9. Definitions : 9.3 (i) The header refers to “a registered trademark valid under applicable law …” from which one might infer that it refers to ANY registered trademark. In which case, it would beg the question quid identical trademark strings registered in different jurisdictions and activities? I believe that the PDP and WT5 have yet to take fully on board that a gTLD confers a global on line monopoly whereas in all other contexts, trademarks and geographical names do not. Thus a .BRAND TLD not only creates additional rights for the Registry, over and above those provided for by the original trademark, but also denies other trademark rights holders from using the same string on-line as a .brand An analogous issue has arisen in connection with Geographical names. 9.3 ( i) b. The language is rather open ended: “… business in connection with the offering… claimed in the trademark registration;” might be open to quite broad interpretations. 9.3 (iii) “the TLD is not a Generic String”. This is very welcome. I have argued, with others, ab initio in WT5 that geographical names are not Generic. I am glad to see that there is an approved precedent. 9.5 (iv) Again, the language “…reasonably related to any of the goods and services identified … “ is rather open ended. How has this been implemented by .brands that have already been delegated? Thankyou for your interest in this matter Christopher Wilkinson * https://newgtlds.icann.org/sites/default/files/agreements/agreement-approve…<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_sit…> ________________________________ 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. 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Re: [Gnso-newgtld-wg] - Specification 13
by Alexander Schubert Aug. 15, 2019

Aug. 15, 2019

Hi,I agree with your concerns of gaming - and suggest since a long time to keep application fees at minimum in the 6 figures range (fee FLOOR!). If we go to a fee floor of US $25k then all hell would break lose.And I stated before: I am OK with Apple, Orange and Mango being spec 13 registries (if operated by the affiliated famous brand). The Internet user is more or less expecting it.I am however NOT OK with unknown (or only nationally known) brands monopolizing geo names or dictionary terms globally via Spec 13.That's why the invocation of Spec 13 should be ineligible for brands that chose to piggyback on a generic term or geo name. The trademark is legal. But it shouldn't provide base for a GLOBAL blocking of such string - as the general public would be deprived to use the gTLD. These brands are ALREADY "free-riding" - but to block the string globally in the top-level of the DNS is too much.Btw: this is not about "confusion" - but primarily that Spec 13 blocks public registrations. Once a tiny shoe brand invokes Spec 13 on .shanghai - 24 Million people are deprived to use their identity on the top-level. Forget confusion, national rights or Governments - it's THE PEOPLE who are suffering.Thanks,AlexanderSent from my Samsung device -------- Original message -------- From: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> Date: 8/15/19 00:07 (GMT+02:00) To: Alexander Schubert <alexander(a)schubert.berlin>, gnso-newgtld-wg(a)icann.org Cc: Arasteh <kavouss.arasteh(a)gmail.com> Subject: RE: [Gnso-newgtld-wg] - Specification 13  KAVOUSS – you asked me about the Specification 13 discussion – please see the thread below – maybe read from the bottom. Anne Alexander, No one decided that brands could not apply if the brand happened to also be a word that was generic for SOME OTHER good or service. If someone else applied for the generic meaning of the word, then the brand lost. I hope you are not suggesting that Apple shouldn’t have .apple because it happens to be a fruit? There are so many different possible new gTLDs available that I think it is wrong to conclude that this confers “monopoly” of some sort. What about .applegrowers or .buyapples or .gotapples .appleorchard or .loveapples. VISA is clearly a worldwide well-known brand for its global payment technology/credit card services. https://usa.visa.com/legal/visa-nic.html As far as I know, no one applied for a “generic” .visa or .visas gTLD. ORANGE is a very well-known brand for Internet services based in France but operating in many countries. It is not for oranges. https://www.orange.com/en/nic/domains I am guessing no one applied for oranges as a generic. Otherwise they would have won. The big gaming issue in the next round is the question whether someone applies for the generic version of a TLD if they know a brand that has a name that can be construed as generic will or may be applying. If application fees come way down in future, I could spend $50,000 (plus some fees to write up an application and get a pre-qualified Registry Services Provider in place) and then hope the brand (that happens to have a generic name that is fanciful as to its products) and gamble on the brand(s) me out for much bigger money. As application fees come down and associated operational plans are standardized, we are not far from a time when well-funded players could speculate in new gTLD names. For example, if a large online retailer or multinational high tech company (such as major search engine provider) wanted to apply for a number of .brands and then set those up within its system and offer those to the brands as an “online sales service”, nothing would stop them other than a well-crafted Legal Rights Objection. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 1:19 PM To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 [EXTERNAL] Rubens, like "visa" for "visas"? Or "orange" for "oranges"? Why did they got a Spec13? Alexander Sent from my Samsung device -------- Original message -------- From: Rubens Kuhl <rubensk(a)nic.br> Date: 8/14/19 22:18 (GMT+02:00) To: trachtenbergm(a)gtlaw.com Cc: alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Note that generic strings are defined in the RA in a way much narrower than the commonplace definition of a generic term. "“Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others." Rubens > Em 14 de ago de 2019, à(s) 11:51:000, Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org> escreveu: > > Alexander, > > Please also note that Spec 13 does not require just “some trademark registration” and specifically excludes generic string TLDs. Christopher conveniently “forgot” to point out that Section 9.3 of Spec 13 requires: > > (i) the TLD string is identical to the textual elements protectable under applicable law, of a registered trademark valid under applicable law, which registered trademark: > > a. is recorded with, and issued a signed data mark file by, the Trademark Clearinghouse or any successor or alternative trademark validation authority appointed by ICANN, if such trademark meets the eligibility requirements of such validation authority (provided that Registry Operator is not required to maintain such recordation for more than one year); > > b. is owned and used by the Registry Operator or its Affiliate in the ordinary course of Registry Operator’s or its Affiliates’ business in connection with the offering of any of the goods and/or services claimed in the trademark registration; > > c. was issued to Registry Operator or its Affiliate prior to the filing of its TLD registry application with ICANN; > > d. is used throughout the Term continuously in the ordinary course of business of Registry Operator or its Affiliate in connection with the offering of any of the goods and/or services identified in the trademark registration; > > e. does not begin with a period or a dot; and > > f. is used by Registry Operator or its Affiliate in the conduct of one or more of its businesses that are unrelated to the provision of TLD Registry Services; and > > (ii) only Registry Operator, its Affiliates or Trademark Licensees are registrants of domain names in the TLD and control the DNS records associated with domain names at any level in the TLD; > > (iii) the TLD is not a Generic String TLD (as defined in Specification 11); and > > (iv) Registry Operator has provided ICANN with an accurate and complete copy of such trademark registration. > > 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 | www.gtlaw.com > > <image001.jpg> > > From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert > Sent: Wednesday, August 14, 2019 9:42 AM > To: gnso-newgtld-wg(a)icann.org > Subject: Re: [Gnso-newgtld-wg] - Specification 13 > > *EXTERNAL OF GT* > > Dear Paul, > > Don’t forget: I am ALL FOR famous (well known) TMs to be able to secure their brand as gTLD! I just think for generic term-based and geo name--based strings a spec 13 application (which locks out the general public) should meet WAY higher hurdles than just “some trademark registration”. > > Otherwise: Yes, I have grossly simplified the rather complex intellectual property rights cloud. There are of course IR TMs and (e.g. in Germany) enhanced protections for famous TMs that extend well beyond the goods and services originally protected. > > Thanks for clarifying, > > Alexander > > > From: McGrady, Paul D. [mailto:PMcGrady@taftlaw.com] > Sent: Mittwoch, 14. August 2019 17:15 > To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org > Subject: RE: [Gnso-newgtld-wg] - Specification 13 > > Thanks Alexander. > > Respectfully, your analysis is incorrect. While trademarks are local (state), national, or international (EU marks, Benelux marks) in nature there are protections for trademarks found in International law, e.g. the Paris Convention. I wouldn’t expect anyone in this WG to know that other than the trademark attorneys who participate, so good you brought it up so that I could set the record straight. Your second notion, that trademarks are limited to corresponding goods/services is mostly true (except in jurisdictions that recognize the doctrine of dilution for the protection of famous marks. This would be a more interesting point if gTLD registry applications came with restrictions, i.e. that an applicant made it clear that they have applied for .apple to run an apple farm and that they pledge in advance that there will be no second level registrations that would contain terms or could be used to infringe the APPLE mark (for example, no ability to register computer.apple or use store.apple to sell electronics). Those restrictions would then be incorporated in PICS and brand owners could enforce against registries accordingly. However, ICANN has put no use requirements in place for applicants to agree to, so until they do, we have to take a broad view of trademark rights in order to protect consumers from confusion and malicious activities. > > Best, > Paul > > > Taft / > > Paul D. McGrady / Partner > Taft Stettinius & Hollister LLP > 111 E. Wacker Drive, Suite 2800 > Chicago, Illinois 60601-3713 > Tel: 312.527.4000 • Fax: 312.754.2354 > Direct: 312.836.4094 • Cell: 312.882.5020 > www.taftlaw.com / PMcGrady(a)taftlaw.com > > > Taft Bio > > Taft vCard > > Subscribe to our law updates > > > > > > This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. > > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Alexander Schubert > Sent: Wednesday, August 14, 2019 8:55 AM > To: gnso-newgtld-wg(a)icann.org > Subject: Re: [Gnso-newgtld-wg] - Specification 13 > > Christopher, > > Brilliant. You pointed out an important factor that the brand lobby conveniently “forgot” to point out: > > The brand lobby claims that TM law is international law – and therefore protected brands were also protected in their representation on the top-level in the DNS. This however falls short (and btw THANKS to your excellent input here Christopher) on not just ONE but even TWO levels: > > • Most trademarks (and by extension all “brands”) are protected on NATIONAL level – while a gTLD in the DNS is a global registration! At bare minimum such TM should be valid in e.g. the majority of all nations (aka: more than 90). > • Trademarks do NOT protect a “string” – they always ONLY protect the usage of a given string in connection with a very, very narrow defined set of goods and services. The “APPLE” TM doesn’t protect “APPLE” – it protects the USAGE (and in commerce only!) of “APPLE” for branding computers, laptops, etc! Of 100% of goods and services globally this protects just a few dozen out of hundreds of millions of potential use cases. It’s an INCREDIBLE narrow defined protection. There could be literally MILLIONS of trademarks “APPLE” globally - peacefully living in coexistence. But there can only be ONE gTLD “.apple”. > > Putting 1 and 2 together I think we might have to rethink spec 13 altogether. At BARE MINIMUM spec 13 should NOT be available for geo-name-based and generic dictionary keyword-based strings. There is neither a global right to such string, nor one that extends over ALL goods and ALL services. These need to be “available for the general public”. > > It is perfectly legal to register (and enforce its protection) “APPLE” for computers and laptops. But always at your own risk! And new gTLDs are such “risk”. You wanted a “catchy” brand – and used a common keyword. Fine. Just don’t try to hijack that keyword on global level of the DNS. It is NOT “yours” – you are merely allowed to “use” it. (using APLLE here only as example – and I will exonerate APPLE in the next paragraph). > > Spec 13 makes a certain sense – just not for geo names and dictionary terms. If somebody feels the urge and need to “block” such (generic or geo based) gTLD – they need to meet a certain standard. And a US $299 TM registration doesn’t meet ANY standard. We need to have much higher hurdles – like ACTIVELY USED Trademarks in at least 50 countries aged 5 years or older for example. That would be no problem for the APPLEs, ORANGEs or MANGOs in this world. But just only a “Trademark registration” “SHANGHAI” in one or two jurisdictions? Why empowering them to block the identity of a 24 Million community (in fact larger than 2/3 of all countries globally)? > > I am not “anti-brand”: I think large scale brands have the potential to create an IMMENSE visibility for new gTLDs (if after SEVEN YEARS of application they would finally start to make active use of their TLDs). I just want to avoid that tiny players abuse the protections we are installing for big players. This btw protects also the big players! So I WANT that .apple is with APPLE, Inc – because that is PRECISELY what the Internet user assumes it should be! I just would find it very sad if a small, national operating shoe label “Shanghai” got “.shanghai” for US $25k – depriving 24 Million people and their constituents (businesses, organizations, associations, Government) of their ability to identify themselves with .shanghai domains! > > So: “THINK BIG” :D > > Alexander > > > From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of lists(a)christopherwilkinson.eu > Sent: Dienstag, 13. August 2019 20:19 > To: gnso-newgtld-wg(a)icann.org > Subject: Re: [Gnso-newgtld-wg] - Specification 13 > > > Good evening: > > Following a chat exchange during a recent call,, I have reviewed the Specification 13 .BRAND TLD provisions, dated 31 July 2017, * > For present purposes I shall limit my comments to section 9. Definitions : > 9.3 (i) The header refers to “a registered trademark valid under applicable law …” from which one might infer that it refers t

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FW: [Gnso-newgtld-wg-pf] Welcome - SubPro Predictability Framework Small Team
by Jeff Neuman Aug. 15, 2019

Aug. 15, 2019

All, We are getting conversations kicked off on the Predictability Framework in the small group. A list of members is here: https://community.icann.org/display/NGSPP/Members+New+gTLD+Predictability+F…. If you are not on that list and want to participate, please let Julie Hedlund know. Julie is cc’d on this email. Jeffrey J. Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive , Suite 600 Mclean , VA 22102 UNITED STATES T: +1.703.635.7514 M: +1.202.549.5079 CONFIRMATION OF ORDERS: Please note that we always confirm receipt of orders. To assist us in identifying orders, please use the word ORDER in the subject line of your email. If you have sent us an order and have not received confirmation on the same working day (PST) it is possible that your order has not been received or has been trapped by our spam filter. In this case, please contact your client manager or admin(a)comlaude.com for confirmation that the order has been received and is being processed. Thank you. From: Gnso-newgtld-wg-pf <gnso-newgtld-wg-pf-bounces(a)icann.org<mailto:gnso-newgtld-wg-pf-bounces@icann.org>> on behalf of Steve Chan <steve.chan(a)icann.org<mailto:steve.chan@icann.org>> Date: Tuesday, May 14, 2019 at 4:29 PM To: "gnso-newgtld-wg-pf(a)icann.org<mailto:gnso-newgtld-wg-pf@icann.org>" <gnso-newgtld-wg-pf(a)icann.org<mailto:gnso-newgtld-wg-pf@icann.org>> Subject: [Gnso-newgtld-wg-pf] Welcome - SubPro Predictability Framework Small Team Dear Small Team Members, As noted on the full WG mailing list, a new mailing list has been created for this small team to make progress on the Predictability Framework and to eventually recommend a version for the full WG to consider. The latest version of the summary document can be found here: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecG…. As I believe Jeff has mentioned during the past call a few times, there are a number of elements of the Predictability Framework/Standing IRT that the WG did not get to during discussions, but would warrant discussion here. Starting on page 5, you will see a section called General Comments and Issues To Be Determined – here, you will find a number of open questions about the Standing IRT (or whatever it may end up being called), such as composition, managing of conflicts of interest, decision-making, etc. It is probably easiest to maintain conversation on this mailing list, at least for the time being? Lastly, you can find the link to this small team’s Wiki space here: https://community.icann.org/x/P5WGBg Best, Steve Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<https://learn.icann.org/> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-…>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ 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>

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Re: [Gnso-newgtld-wg] - Specification 13
by Alexander Schubert Aug. 15, 2019

Aug. 15, 2019

I hear you. Question to others:Do all here agree with Marc, that any generic term based gTLD applicant may invoke Spec 13 as long as they provide a matching TM and TMCH entry (which is super super easy to get: I did many times)?So you could invoke Spec 13 restrictions (blocking registrations by the public) for ".fuel" or ".dvd" - if you have the matching TM and TMCH entry?Thanks,AlexanderSent from my Samsung device -------- Original message -------- From: trachtenbergm(a)gtlaw.com Date: 8/15/19 02:42 (GMT+02:00) To: alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: RE: [Gnso-newgtld-wg] - Specification 13  Alex, If Acme Registry applies to operate .Visa in connection with permission to enter a country, then this would be a Generic String per Spec 11. But if Visa, Inc. is using .VISA in connection with its VISA trademark then the second part of Spec 11, which explains what is NOT a generic string would apply – a string used to distinguish a specific brand of goods, services, groups, organizations or things from those of others. 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 | www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 6:23 PM To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 *EXTERNAL OF GT* Hi Martin, quoting from spec 11: "“Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others." Would you see "visa" being covered by spec 11? Is there another term for "temporary permission to enter a country" than "visa"? Thanks, Alexander Sent from my Samsung device -------- Original message -------- From: Martin Sutton <martin(a)brandregistrygroup.org> Date: 8/15/19 00:57 (GMT+02:00) To: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> Cc: trachtenbergm(a)gtlaw.com, alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Following the email thread, it appears Alexander is focused on the term “Generic String TLD” referred to in Spec 13 but ignoring the definition quoted within Spec 11 that directly relates to this. I can see that Rubens has referred to this in his earlier response but wanted to flag again as Alexander seems to have ignored this in subsequent replies. Kind regards, Martin Sent from my iPhone On 14 Aug 2019, at 22:41, Aikman-Scalese, Anne <AAikman(a)lrrc.com> wrote: .Brands have Spec 13 because they are not selling to the public. They are not in the business of selling domain names. That is why they are simpler. In truth, there should be a separate department for processing .BRAND applications because they are much simpler and far fewer consumer issues at stake. It would make no sense to apply Spec 13 to entities that are selling domain names. No one decided that brands could not apply if the brand happened to also be a word that was generic for SOME OTHER good or service. If someone else applied for the generic meaning of the word, then the brand lost. I hope you are not suggesting that Apple shouldn’t have .apple because it happens to be a fruit? There are so many different possible new gTLDs available that I think it is wrong to conclude that this confers “monopoly” of some sort. What about .applegrowers or .buyapples or .gotapples .appleorchard or .loveapples. VISA is clearly a worldwide well-known brand for its global payment technology/credit card services. https://usa.visa.com/legal/visa-nic.html As far as I know, no one applied for a “generic” .visa or .visas gTLD. ORANGE is a very well-known brand for Internet services based in France but operating in many countries. It is not for oranges. https://www.orange.com/en/nic/domains I am guessing no one applied for oranges as a generic. Otherwise they would have won. The big gaming issue in the next round is the question whether someone applies for the generic version of a TLD if they know a brand that has a name that can be construed as generic will or may be applying. If application fees come way down in future, I could spend $50,000 (plus some fees to write up an application and get a pre-qualified Registry Services Provider in place) and then hope the brand (that happens to have a generic name that is fanciful as to its products) and gamble on the brand(s) me out for much bigger money. As application fees come down and associated operational plans are standardized, we are not far from a time when well-funded players could speculate in new gTLD names. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Wednesday, August 14, 2019 2:30 PM To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 [EXTERNAL] Alex, I don’t understand your question. Yes it is correct that ONLY trademark based applications can qualify for Spec 13 and that applications based on generic terms cannot. However, I never said that trademark applications based on “generic terms” can’t qualify for Spec 13. I quoted directly from Spec 13 which said that generic TLDs will not qualify. Trademarks, by their nature, are not generic because they do not describe a category of goods and services – they are in indicator of source. Just because the word or words in a trademark could be generic in one context does not mean they cannot be trademarks in another- e.g. VISA for credit cards and ORANGE for telecom services. ‘protectable under applicable law” generally would mean national law but could also be international law as in the case of regional trademarks or famous marks that are protected by treaty or statute. 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 | www.gtlaw.com <image001.jpg> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 4:12 PM To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Marc, If I understand correctly then ONLY trademark based applications can have a Spec 13; right? You claimed in your initial posting that TM applications based on "generic terms" can't get a Spec 13! Are you standing by this claim - or not?

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Re: [Gnso-newgtld-wg] - Specification 13
by Alexander Schubert Aug. 14, 2019

Aug. 14, 2019

Kurt: I said initially that I think VISA should indeed own .visa - as they are so well known.And they do own the TLD .visa!They applied 7.5 years ago - and there is not a SINGLE domain online.How does the public benefit from that? What if after 10 years in the root they STILL haven't started to use the gTLD? The public waits another decade? But again: super well known, globally famous brands should have their matching strings - generic or not. I agree. But a small shoe brand "SHANGHAI" invoking Spec 13? Why should they be allowed to block .shanghai domain registrations for 24 Million people in Shanghai?Thanks,AlexanderSent from my Samsung device -------- Original message -------- From: Kurt Pritz <kurt(a)kjpritz.com> Date: 8/15/19 02:25 (GMT+02:00) To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 I’d like to chip in with two thoughts:One, I think we should discuss the value a TLD string and operator can bring to the domain name space rather than reducing the discussion whether it is a famous mark or a “generic” word. (Maybe in the next round we can outlaw the use of “generic” and go to “dictionary” as has been previously discussed.) Put another way, our job as policy makersis to perturb the current policy in a way that increases the value of domain name to the domain name space or the internet-using public.I think “visa” is a famous brand and a dictionary word. The question is which application would bring more value to the name space? The answer, of course, is, “it depends.” If Visa Inc. acquires .visa and uses the code of conduct exemption to provide services to it millions of customers, that is a lot of value and should be favored over a possible application for an operator of a generic .visa TLD. If Visa Inc. acquires .visa to protect its mark, not so much. Code of conduct exemptions should be based on a value-added service that require the exemption to be successful. Owning a trademark can be tangentially related (i.e., correlated) to providing value based on the exemption but is not necessary. This brings me to point Two. The current code of conduct stifles innovation; exemptions should be available to models (other than those owned by trademarks) that provide value. The are many entities that can add value that do not possess a trademark. Libraries can catalogue books using domains; companies can maintain inventories and manage logistics; museums can use domains to catalogue their art works and artifacts to make their objects more accessible. Neither should the code of conduct exemption be all or nothing. Partial exemptions should be available for TLDs to offer more than one product. By way of example (and for transparency) I work with the .ART registry that has developed a significant innovation but cannot offer it and “regular domain” because of ICANN rules. The code of conduct can remain in place for the use of domains as developed back in the 1900s but relaxed to encourage innovation. (Maybe we should change the titel form “code of conduct’ to "regulatory restrictions.”)Specification 13 was written as it is because trademark owners have great influence with ICANN and ICANN likes bright-line rules. We should aspire to something greater: that regulatory restriction exemptions are granted for those with a plan to utilize the TLD in a significant, value-added way. Sometime ago, we had an extensive discussion that the new gTLD policy should be augmented to encourage innovation. This is an opportunity to remove one of the strangleholds on it. Thank you for reading this.KurtOn Aug 14, 2019, at 4:23 PM, Alexander Schubert <alexander(a)schubert.berlin> wrote:Hi Martin,quoting from spec 11:"“Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others."Would you see "visa" being covered by spec 11? Is there another term for "temporary permission to enter a country" than "visa"?Thanks,AlexanderSent from my Samsung device-------- Original message --------From: Martin Sutton <martin(a)brandregistrygroup.org> Date: 8/15/19 00:57 (GMT+02:00) To: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> Cc: trachtenbergm(a)gtlaw.com, alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Following the email thread, it appears Alexander is focused on the term “Generic String TLD” referred to in Spec 13 but ignoring the definition quoted within Spec 11 that directly relates to this. I can see that Rubens has referred to this in his earlier response but wanted to flag again as Alexander seems to have ignored this in subsequent replies.

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Re: [Gnso-newgtld-wg] FW: - Specification 13 - Well-Known Brands
by Alexander Schubert Aug. 14, 2019

Aug. 14, 2019

"Coach" is a well known brand? Where? What do they offer? I was in 60 countries am 54 years of age and am generally very attentive to advertisement - never ever HEARD about a COACH brand. I had to Google to get a hint. Guess why they use "coach": they are FREE-RIDING on the generic term. Now you want to allow them to prevent the public from using .coach domains in the DNS? This piggybacking and free-riding needs to stop, folks. It's "legal" to protect the USAGE of such string for VERY NARROW defined goods and services in a jurisdiction - but that doesn't extend to a global protection. We are creating a HYPER-Protection-class here. AlexanderSent from my Samsung device -------- Original message -------- From: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> Date: 8/14/19 22:22 (GMT+02:00) To: gnso-newgtld-wg(a)icann.org Cc: alexander(a)schubert.berlin Subject: FW: [Gnso-newgtld-wg] - Specification 13 - Well-Known Brands  Accidentally failed to copy the list. From: Aikman-Scalese, Anne Sent: Wednesday, August 14, 2019 11:31 AM To: 'trachtenbergm(a)gtlaw.com' <trachtenbergm(a)gtlaw.com>; alexander(a)schubert.berlin Subject: RE: [Gnso-newgtld-wg] - Specification 13 I consider it to be a rather unfortunate truth that an application for a famous brand which is also a “generic” word is going to lose out in this new gTLD environment anyway. For example, “Coach” lost in the 2012 round. I don’t know if they ended up paying big money for the “generic” or not. There is nothing that gives a famous brand priority over generic terms. Based on 2012, it’s the opposite. An improvement in this round would be to apply priority for registered marks that are well-known. Well-known marks get protection in almost all countries around the world even if not registered. Though I am doubtful we could develop sufficient consensus to change what happened in 2012 on that one. (RPMs were a “suite” of protective mechanisms involving various compromises.) I currently tell all my clients: Don’t adopt any marks with geo connotations and don’t adopt any marks with any possible “generic” interpretation. This is unfortunate since the geo names in particular actually give more attention to the regions and rivers that are named and that is good for tourism!. Maybe Work Track 5 is coming up with some standard Public Interest terms that could be adopted to accommodate governmental interests when regions and rivers are involved., (I don’t know cause I am not involved in Work Track 5 work.) Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Wednesday, August 14, 2019 11:16 AM To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 [EXTERNAL] Alex, These applications are for trademarks, not generic terms, and at least VISA and DISCOVER are famous and well-known brand across the globe. You might even have one in your wallet. 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 | www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, August 14, 2019 10:47 AM To: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Dear Marc, I might misinterpret your suggestion – but you are saying there are no generic term based applications such as “smart”, “visa” or “discovery” have a Spec 13 in their contract? (I checked these three – and they seem to have a Spec 13 in their contracts – I assume when checking all the other generic keyword based applications the same will occur). And well: You need to register with the TM Clearinghouse: easy thing to do; the hurdles for that are very low (I have done TMCH applications for trademarks). Plus I am taking about a “real brand” – albeit a small one. So a small shoe brand “SHANGHAI” will easily meet all requirements for a spec 13. In my mind – please correct me if I am wrong. Thanks, Alexander From: trachtenbergm(a)gtlaw.com [mailto:trachtenbergm@gtlaw.com] Sent: Mittwoch, 14. August 2019 17:51 To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org Subject: RE: [Gnso-newgtld-wg] - Specification 13 Alexander, Please also note that Spec 13 does not require just “some trademark registration” and specifically excludes generic string TLDs. Christopher conveniently “forgot” to point out that Section 9.3 of Spec 13 requires: (i) the TLD string is identical to the textual elements protectable under applicable law, of a registered trademark valid under applicable law, which registered trademark: a. is recorded with, and issued a signed data mark file by, the Trademark Clearinghouse or any successor or alternative trademark validation authority appointed by ICANN, if such trademark meets the eligibility requirements of such validation authority (provided that Registry Operator is not required to maintain such recordation for more than one year); b. is owned and used by the Registry Operator or its Affiliate in the ordinary course of Registry Operator’s or its Affiliates’ business in connection with the offering of any of the goods and/or services claimed in the trademark registration; c. was issued to Registry Operator or its Affiliate prior to the filing of its TLD registry application with ICANN; d. is used throughout the Term continuously in the ordinary course of business of Registry Operator or its Affiliate in connection with the offering of any of the goods and/or services identified in the trademark registration; e. does not begin with a period or a dot; and f. is used by Registry Operator or its Affiliate in the conduct of one or more of its businesses that are unrelated to the provision of TLD Registry Services; and (ii) only Registry Operator, its Affiliates or Trademark Licensees are registrants of domain names in the TLD and control the DNS records associated with domain names at any level in the TLD;

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Re: [Gnso-newgtld-wg] - Specification 13
by Alexander Schubert Aug. 14, 2019

Aug. 14, 2019

Rubens,like "visa" for "visas"? Or "orange" for "oranges"?Why did they got a Spec13?AlexanderSent from my Samsung device -------- Original message -------- From: Rubens Kuhl <rubensk(a)nic.br> Date: 8/14/19 22:18 (GMT+02:00) To: trachtenbergm(a)gtlaw.com Cc: alexander(a)schubert.berlin, gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] - Specification 13 Note that generic strings are defined in the RA in a way much narrower than the commonplace definition of a generic term. "“Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others."Rubens> Em 14 de ago de 2019, à(s) 11:51:000, Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org> escreveu:> > Alexander,> > Please also note that Spec 13 does not require just “some trademark registration” and specifically excludes generic string TLDs. Christopher conveniently “forgot” to point out that Section 9.3 of Spec 13 requires:> > (i) the TLD string is identical to the textual elements protectable under applicable law, of a registered trademark valid under applicable law, which registered trademark:> > a. is recorded with, and issued a signed data mark file by, the Trademark Clearinghouse or any successor or alternative trademark validation authority appointed by ICANN, if such trademark meets the eligibility requirements of such validation authority (provided that Registry Operator is not required to maintain such recordation for more than one year);> > b. is owned and used by the Registry Operator or its Affiliate in the ordinary course of Registry Operator’s or its Affiliates’ business in connection with the offering of any of the goods and/or services claimed in the trademark registration; > > c. was issued to Registry Operator or its Affiliate prior to the filing of its TLD registry application with ICANN;> > d. is used throughout the Term continuously in the ordinary course of business of Registry Operator or its Affiliate in connection with the offering of any of the goods and/or services identified in the trademark registration; > > e. does not begin with a period or a dot; and> > f. is used by Registry Operator or its Affiliate in the conduct of one or more of its businesses that are unrelated to the provision of TLD Registry Services; and> > (ii) only Registry Operator, its Affiliates or Trademark Licensees are registrants of domain names in the TLD and control the DNS records associated with domain names at any level in the TLD; > > (iii) the TLD is not a Generic String TLD (as defined in Specification 11); and> > (iv) Registry Operator has provided ICANN with an accurate and complete copy of such trademark registration.> > 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 | www.gtlaw.com> > <image001.jpg>> > From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert> Sent: Wednesday, August 14, 2019 9:42 AM> To: gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13> > *EXTERNAL OF GT*> > Dear Paul,> > Don’t forget: I am ALL FOR famous (well known) TMs to be able to secure their brand as gTLD! I just think for generic term-based and geo name--based strings a spec 13 application (which locks out the general public) should meet WAY higher hurdles than just “some trademark registration”.> > Otherwise: Yes, I have grossly simplified the rather complex intellectual property rights cloud. There are of course IR TMs and (e.g. in Germany) enhanced protections for famous TMs that extend well beyond the goods and services originally protected.> > Thanks for clarifying,> > Alexander> > > From: McGrady, Paul D. [mailto:PMcGrady@taftlaw.com] > Sent: Mittwoch, 14. August 2019 17:15> To: alexander(a)schubert.berlin; gnso-newgtld-wg(a)icann.org> Subject: RE: [Gnso-newgtld-wg] - Specification 13> > Thanks Alexander.> > Respectfully, your analysis is incorrect. While trademarks are local (state), national, or international (EU marks, Benelux marks) in nature there are protections for trademarks found in International law, e.g. the Paris Convention. I wouldn’t expect anyone in this WG to know that other than the trademark attorneys who participate, so good you brought it up so that I could set the record straight. Your second notion, that trademarks are limited to corresponding goods/services is mostly true (except in jurisdictions that recognize the doctrine of dilution for the protection of famous marks. This would be a more interesting point if gTLD registry applications came with restrictions, i.e. that an applicant made it clear that they have applied for .apple to run an apple farm and that they pledge in advance that there will be no second level registrations that would contain terms or could be used to infringe the APPLE mark (for example, no ability to register computer.apple or use store.apple to sell electronics). Those restrictions would then be incorporated in PICS and brand owners could enforce against registries accordingly. However, ICANN has put no use requirements in place for applicants to agree to, so until they do, we have to take a broad view of trademark rights in order to protect consumers from confusion and malicious activities. > > Best,> Paul> > > Taft /> > Paul D. McGrady / Partner> Taft Stettinius & Hollister LLP> 111 E. Wacker Drive, Suite 2800> Chicago, Illinois 60601-3713> Tel: 312.527.4000 • Fax: 312.754.2354> Direct: 312.836.4094 • Cell: 312.882.5020> www.taftlaw.com / PMcGrady(a)taftlaw.com> > > Taft Bio> > Taft vCard> > Subscribe to our law updates> > > > > > This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.> > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Alexander Schubert> Sent: Wednesday, August 14, 2019 8:55 AM> To: gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13> > Christopher,> > Brilliant. You pointed out an important factor that the brand lobby conveniently “forgot” to point out:> > The brand lobby claims that TM law is international law – and therefore protected brands were also protected in their representation on the top-level in the DNS. This however falls short (and btw THANKS to your excellent input here Christopher) on not just ONE but even TWO levels:> > • Most trademarks (and by extension all “brands”) are protected on NATIONAL level – while a gTLD in the DNS is a global registration! At bare minimum such TM should be valid in e.g. the majority of all nations (aka: more than 90).> • Trademarks do NOT protect a “string” – they always ONLY protect the usage of a given string in connection with a very, very narrow defined set of goods and services. The “APPLE” TM doesn’t protect “APPLE” – it protects the USAGE (and in commerce only!) of “APPLE” for branding computers, laptops, etc! Of 100% of goods and services globally this protects just a few dozen out of hundreds of millions of potential use cases. It’s an INCREDIBLE narrow defined protection. There could be literally MILLIONS of trademarks “APPLE” globally - peacefully living in coexistence. But there can only be ONE gTLD “.apple”.> > Putting 1 and 2 together I think we might have to rethink spec 13 altogether. At BARE MINIMUM spec 13 should NOT be available for geo-name-based and generic dictionary keyword-based strings. There is neither a global right to such string, nor one that extends over ALL goods and ALL services. These need to be “available for the general public”.> > It is perfectly legal to register (and enforce its protection) “APPLE” for computers and laptops. But always at your own risk! And new gTLDs are such “risk”. You wanted a “catchy” brand – and used a common keyword. Fine. Just don’t try to hijack that keyword on global level of the DNS. It is NOT “yours” – you are merely allowed to “use” it. (using APLLE here only as example – and I will exonerate APPLE in the next paragraph).> > Spec 13 makes a certain sense – just not for geo names and dictionary terms. If somebody feels the urge and need to “block” such (generic or geo based) gTLD – they need to meet a certain standard. And a US $299 TM registration doesn’t meet ANY standard. We need to have much higher hurdles – like ACTIVELY USED Trademarks in at least 50 countries aged 5 years or older for example. That would be no problem for the APPLEs, ORANGEs or MANGOs in this world. But just only a “Trademark registration” “SHANGHAI” in one or two jurisdictions? Why empowering them to block the identity of a 24 Million community (in fact larger than 2/3 of all countries globally)?> > I am not “anti-brand”: I think large scale brands have the potential to create an IMMENSE visibility for new gTLDs (if after SEVEN YEARS of application they would finally start to make active use of their TLDs). I just want to avoid that tiny players abuse the protections we are installing for big players. This btw protects also the big players! So I WANT that .apple is with APPLE, Inc – because that is PRECISELY what the Internet user assumes it should be! I just would find it very sad if a small, national operating shoe label “Shanghai” got “.shanghai” for US $25k – depriving 24 Million people and their constituents (businesses, organizations, associations, Government) of their ability to identify themselves with .shanghai domains!> > So: “THINK BIG” :D> > Alexander> > > From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of lists(a)christopherwilkinson.eu> Sent: Dienstag, 13. August 2019 20:19> To: gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] - Specification 13> > > Good evening:> > Following a chat exchange during a recent call,, I have reviewed the Specification 13 .BRAND TLD provisions, dated 31 July 2017, *> For present purposes I shall limit my comments to section 9. Definitions :> 9.3 (i) The header refers to “a registered trademark valid under applicable law …” from which one might infer that it refers to ANY registered trademark. In which case, it would beg the question quid identical trademark strings registered in different jurisdictions and activities?> > I believe that the PDP and WT5 have yet to take fully on board that a gTLD confers a global on line monopoly whereas in all other contexts, trademarks and geographical names do not. Thus a .BRAND TLD not only creates additional rights for the Registry, over and above those provided for by the original trademark, but also denies other trademark rights holders from using the same string on-line as a .brand> > An analogous issue has arisen in connection with Geographical names.> > 9.3 ( i) b. The language is rather open ended: “… business in connection with the offering… claimed in the trademark registration;” might be open to quite broad interpretations.> > 9.3 (iii) “the TLD is not a Generic String”. This is very welcome. I have argued, with others, ab initio in WT5 that geographical names are not Generic. I am glad to see that there is an approved precedent.> > 9.5 (iv) Again, the language “…reasonably related to any of the goods and services identified … “ is rather open ended.> > How has this been implemented by .brands that have already been delegated?> Thankyou for your interest in this matter> Christopher Wilkinson> > * https://newgtlds.icann.org/sites/default/files/agreements/agreement-approve…> > > > > > > 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, and do not use or disseminate the information.> _______________________________________________> Gnso-newgtld-wg mailing list> Gnso-newgtld-wg(a)icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg> _______________________________________________> 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) and the website Terms of Service (https://www.icann.org/privacy/tos) 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.

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