June 2020 - Gnso-newgtld-wg

Switching Roles
by Jeff Neuman July 2, 2020

July 2, 2020

All, I just wanted to let everyone know that today is my last day of full time employment with Com Laude / Valideus. I am launching my own consulting company called "JJN Solutions, LLC". Though I am leaving Com Laude officially, they will be my first client and I will be helping them with some of their clients and on some policy-related services. I will be filing a Statement of Interest change shortly, but I wanted to let everyone know. My new e-mail address is Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> although for a transition period I will still have some access to my comlaude.com e-mail as well. I would love to continue on as one of the Co-Chairs of this group until its conclusion if there are no objections to my continuing to do so. I will let the GNSO Council know as well in case they have any concerns. Sincerely, Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> +1.202.549.5079 P.S. - I tried sending this with the jjnsolutions.com domain name and for some reason it was not able to go through. So, I am sending it from my Com Laude address until my JJNSOlutions one is recognized. ________________________________ 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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Deadline 30 June - Comments on Revised Draft Recommendations - Package 6
by Emily Barabas July 1, 2020

July 1, 2020

Dear all, The leadership team is releasing the sixth set of revised draft recommendations for your review. 1. There are 6 topics in package 6 here, beginning on page 117: https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQL… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> · 2.2.4 Different TLD Types (last discussed on 23 Apr<https://community.icann.org/display/NGSPP/2020-04-23+New+gTLD+Subsequent+Pr…>) · 2.2.8 Conflicts of Interest (this is new section, but the recommendation contained in it was discussed on 9 Apr<https://community.icann.org/display/NGSPP/2020-04-09+New+gTLD+Subsequent+Pr…> under topic Objections) · 2.6.1 Application Queuing (last discussed on 8 Jun<https://community.icann.org/display/NGSPP/2020-06-08+New+gTLD+Subsequent+Pr…>) · 2.7.3 Closed Generics (last discussed on 14 May<https://community.icann.org/display/NGSPP/2020-05-14+New+gTLD+Subsequent+Pr…>) · 2.8.1 Objections (last discussed on 9 Apr<https://community.icann.org/display/NGSPP/2020-04-09+New+gTLD+Subsequent+Pr…>) · 2.9.1 Community Applications (last discussed on 8 Jun<https://community.icann.org/display/NGSPP/2020-06-08+New+gTLD+Subsequent+Pr…>) 1. Please limit comments to items in the revised sections that you absolutely “cannot live with.” If there is text that you cannot accept, please fill out the attached form and send it to the WG by email. Please do not provide your input in any other format. 1. Deadline for comments is Tuesday 30 June at 23:59 UTC 1. Comments will be tracked here: https://community.icann.org/x/JDKJBw. Kind regards, Emily

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Change of Roles
by Jeff Neuman July 1, 2020

July 1, 2020

All, I just wanted to let everyone know that today is my last day of full time employment with Com Laude / Valideus. I am launching my own consulting company called "JJN Solutions, LLC". Though I am leaving Com Laude officially, they will be my first client and I will be helping them with some of their clients and on some policy-related services. I will be filing a Statement of Interest change shortly, but I wanted to let everyone know. My new e-mail address is Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> although for a transition period I will still have some access to my comlaude.com e-mail as well. I would love to continue on as one of the Co-Chairs of this group until its conclusion if there are no objections to my continuing to do so. I will let the GNSO Council know as well in case they have any concerns. Sincerely, Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> +1.202.549.5079

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Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6
by McGrady, Paul D. July 1, 2020

July 1, 2020

Hi Jeff and Cheryl, Your urgent reply on this question would be appreciated. How are we supposed to do this “can’t live with exercise” when this is a live topic? To the extent that you do not remove so-called “closed generics” from Package 6, please take this as my notice that I cannot live with that section as written. And, I believe I am not alone. Can you please respond and let us know if you are leaving it in Package 6? The clock you guys wound up is ticking. Thanks! Best, Paul From: McGrady, Paul D. <PMcGrady(a)taftlaw.com> Sent: Monday, June 29, 2020 4:41 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com>; Cheryl Langdon-Orr <langdonorr(a)gmail.com> Cc: gnso-newgtld-wg(a)icann.org Subject: Package 6 Hi Jeff & Cheryl, I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls? Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case. 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<http://www.taftlaw.com> / PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com> [https://dg01.redatatech.com/onprem_image_fetch?cid=1016&ep=747d8606d89086fa…] Taft Bio<http://www.taftlaw.com/bio/PMcGrady@taftlaw.com> [V-Card Icon] Taft vCard<http://www.taftlaw.com/vcard/PMcGrady@taftlaw.com> Subscribe to our law updates<http://taftlaw.com/news/subscribe> To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. 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.

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Re: [Gnso-newgtld-wg] Switching Roles
by Vanda Scartezini June 30, 2020

June 30, 2020

Well Jeff, I wish you lots of success that I am sure will follow your path within the new company!!! Lots of kisses Vanda Scartezini Polo Consultores Associados Av. Paulista 1159, cj 1004 01311-200- Sao Paulo, SP, Brazil Land Line: +55 11 3266.6253 Mobile: + 55 11 98181.1464 Sorry for any typos. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of Jeff Neuman <jeff.neuman(a)comlaude.com> Date: Tuesday, June 30, 2020 at 18:38 To: Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org> Subject: [Gnso-newgtld-wg] Switching Roles All, I just wanted to let everyone know that today is my last day of full time employment with Com Laude / Valideus. I am launching my own consulting company called “JJN Solutions, LLC”. Though I am leaving Com Laude officially, they will be my first client and I will be helping them with some of their clients and on some policy-related services. I will be filing a Statement of Interest change shortly, but I wanted to let everyone know. My new e-mail address is Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> although for a transition period I will still have some access to my comlaude.com e-mail as well. I would love to continue on as one of the Co-Chairs of this group until its conclusion if there are no objections to my continuing to do so. I will let the GNSO Council know as well in case they have any concerns. Sincerely, Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> +1.202.549.5079 P.S. – I tried sending this with the jjnsolutions.com domain name and for some reason it was not able to go through. So, I am sending it from my Com Laude address until my JJNSOlutions one is recognized. ________________________________ 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] This is a test
by Terri Agnew June 30, 2020

June 30, 2020

Confirm receipt @Jeff From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of Jeff Neuman <jeff(a)jjnsolutions.com> Date: Tuesday, June 30, 2020 at 5:24 PM To: "gnso-newgtld-wg(a)icann.org" <gnso-newgtld-wg(a)icann.org> Subject: [Gnso-newgtld-wg] This is a test Sorry folks, I am just testing my e-mail which apparently is giving ICANN’s systems some issues. Thanks

3 2

This is a test
by Jeff Neuman June 30, 2020

June 30, 2020

Sorry folks, I am just testing my e-mail which apparently is giving ICANN's systems some issues. Thanks

1 0

Re: [Gnso-newgtld-wg] Package 6
by Aikman-Scalese, Anne June 30, 2020

June 30, 2020

Paul, I don’t think we are talking about whether ICANN can “censor” something you call a “pre-trademark”. I’m familiar with the arguments made before the Supreme Court in relation to whether booking.com was capable of acquiring secondary meaning to consumers or not. (It apparently did acquire such secondary meaning. It was not the term, booking, alone that acquired the meaning, ( It turned out the trademark office interpretation of .com added to a generic was not particularly relevant.) I don’t think this somehow means that an application for a Closed Generic TLD must be delegated for the purpose of allowing the applicant to develop acquired secondary meaning over time after delegation. Is that your argument? Anne From: McGrady, Paul D. <PMcGrady(a)taftlaw.com> Sent: Tuesday, June 30, 2020 11:11 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com>; trachtenbergm(a)gtlaw.com; jeff.neuman(a)comlaude.com; langdonorr(a)gmail.com Subject: RE: Package 6 [EXTERNAL] ________________________________ Correct, Anne. So we are no longer talking about whether or not ICANN has the ability to censor so-called “closed generics”, we are taking about whether or not ICANN can censor pre-trademarks. There was a fundamental shift this morning in this area of the law. The WG needs to take that on board. Best, Paul From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 12:57 PM To: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Booking.com held NOT GENERIC because it already had meaning to consumers – that is the right decision and has nothing to do with Closed Generic TLD applications. https://www.kxlh.com/news/national/supreme-court-upholds-lower-court-ruling… From: Aikman-Scalese, Anne Sent: Tuesday, June 30, 2020 10:54 AM To: 'McGrady, Paul D.' <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Paul –I am going to guess, without having read the opinion, that it’s a “secondary meaning” case. Yes or no? Anne From: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Tuesday, June 30, 2020 10:33 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ Thanks Anne. To which I would say that they should read today’s SCOTUS opinion saying the exact opposite. Best, Paul From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 12:28 PM To: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Paul, Since you and Marc insist on using loaded words like “censorship”, how about if I say there are those in the Working Group who are opposed to “monopoly”. (In other words, compare to the same reason you cannot get exclusive trademark rights to a generic term.) ;-) Anne From: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Tuesday, June 30, 2020 10:19 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ Thanks Anne. It may end up in wasteful litigation, but the multi-stakeholder model is inherently inefficient. That is what keeps it from devolving into a top down model or from being captured by one specific interest. I appreciate your desire to make ICANN efficient, but I’m not on board when the cost of that efficiency is censorship. Best, Paul From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 12:04 PM To: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 This is overall organizational effectiveness improvement 101. GNSO shouldn’t say “we are the policymakers” and then say “the Board will have to decide the policy.” I don’t agree that when GNSO fails to arrive at Consensus Policy on an important issue, the best solution is to let applicants “fight it out” with the ICANN Board. That just costs ICANN (and therefore the Internet community” a bunch of time and money. It’s wasteful litigation. Anne From: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Tuesday, June 30, 2020 9:59 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ Thanks Anne. I don’t think it is our job to shelter the Board from litigation risk. That isn’t policy making. That is in-house GC’ing and this WG isn’t that. Best, Paul From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 11:57 AM To: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Marc, There is no consensus on criteria for judging when a closed generic will serve the public interest and Leadership does not see the WG reaching such a Consensus at this time. Many are dead set against Closed Generics period, the end and others have not provided convincing cases showing a demonstrated public interest. So there is no WG Consensus. To some, that means it’s a “free-for-all” and they may be prepared to sue ICANN to prove their Closed Generic application does, in fact, serve a public interest. Some WG members end up saying “The Board will have to decide” while as to other issues, they say “The Board can’t make policy, only the GNSO makes policy”. Given there is no policy consensus, I think we should affirm the three points below. If nothing else, this would protect the Board (somewhat) from having to bear the litigation risk of our WG not having achieved consensus on a new policy. This solution may “split the baby” but at least it doesn’t prevent the Closed Generic applications and it doesn’t force the Board to make the policy. The Working Group affirms the Board’s action and recommends that in the event Closed Generic applications are received in the next round, then ICANN should allow applicants to (1) make a change to non-exclusive access, (2) maintain & defer until policy on serving a public interest is finalized, or (3) withdraw Anne From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, June 30, 2020 9:47 AM To: PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ It doesn’t kick the can down the road – it decides now that closed generics are banned unless and until the policy on serving a public interest is created. I disagree with this approach and believe that others do as well. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: McGrady, Paul D. [mailto:PMcGrady@taftlaw.com] Sent: Tuesday, June 30, 2020 11:37 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Why not just solve the puzzle instead? The recommendation you propose just kicks the can again. I think we can do it! (but we do have to get the “ban” language out – it just isn’t what happened). From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 11:29 AM To: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Why don’t we just affirm the Board’s action and recommend that in the event Closed Generic applications are received, then ICANN should allow applicants to (1) make a change to non-exclusive access, (2) maintain & defer until policy on serving a public interest is finalized, or (3) withdraw Then there is an actual recommendation from the WG as to the next round. 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: Monday, June 29, 2020 2:44 PM To: PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Package 6 [EXTERNAL] ________________________________ +1 to Paul. Everyone does not agree with that position. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@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 McGrady, Paul D. Sent: Monday, June 29, 2020 4:41 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr(a)gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Package 6 *EXTERNAL TO GT* Hi Jeff & Cheryl, I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls? Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case. Best, Paul Taft / Paul D. McGrady / Partner Taft Stettinius & Hollister LLP 111 E. 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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. ________________________________ 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. 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2 1

Re: [Gnso-newgtld-wg] Package 6
by trachtenbergm＠gtlaw.com June 30, 2020

June 30, 2020

Anne, Just sharing the rest of the conversation with the WG. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) Sent: Tuesday, June 30, 2020 12:58 PM To: 'Aikman-Scalese, Anne' <AAikman(a)lrrc.com>; PMcGrady(a)taftlaw.com; jeff.neuman(a)comlaude.com; langdonorr(a)gmail.com Subject: RE: Package 6 Yes but there is only a single supplier of the goods or services – in this case domain names in that TLD - without any competitors, which is the definition of a monopoly. The registry operator is also able to set any price it wants and to manipulate the market through premium domains. Each TLD is a monopoly in the truest sense. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, June 30, 2020 12:53 PM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Not at all since purchase is open to all comers who meet eligibility requirements and comply with the terms of the registrant agreement. From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, June 30, 2020 10:31 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ Anne, That’s fine with me as long as we also acknowledge that every newgTLD operator has a monopoly over the text of their TLD since they control the entire market for domain names in the TLD. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, June 30, 2020 12:28 PM To: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Paul, Since you and Marc insist on using loaded words like “censorship”, how about if I say there are those in the Working Group who are opposed to “monopoly”. (In other words, compare to the same reason you cannot get exclusive trademark rights to a generic term.) ;-) Anne From: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Tuesday, June 30, 2020 10:19 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ Thanks Anne. It may end up in wasteful litigation, but the multi-stakeholder model is inherently inefficient. That is what keeps it from devolving into a top down model or from being captured by one specific interest. I appreciate your desire to make ICANN efficient, but I’m not on board when the cost of that efficiency is censorship. Best, Paul From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 12:04 PM To: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 This is overall organizational effectiveness improvement 101. GNSO shouldn’t say “we are the policymakers” and then say “the Board will have to decide the policy.” I don’t agree that when GNSO fails to arrive at Consensus Policy on an important issue, the best solution is to let applicants “fight it out” with the ICANN Board. That just costs ICANN (and therefore the Internet community” a bunch of time and money. It’s wasteful litigation. Anne From: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Tuesday, June 30, 2020 9:59 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ Thanks Anne. I don’t think it is our job to shelter the Board from litigation risk. That isn’t policy making. That is in-house GC’ing and this WG isn’t that. Best, Paul From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 11:57 AM To: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Marc, There is no consensus on criteria for judging when a closed generic will serve the public interest and Leadership does not see the WG reaching such a Consensus at this time. Many are dead set against Closed Generics period, the end and others have not provided convincing cases showing a demonstrated public interest. So there is no WG Consensus. To some, that means it’s a “free-for-all” and they may be prepared to sue ICANN to prove their Closed Generic application does, in fact, serve a public interest. Some WG members end up saying “The Board will have to decide” while as to other issues, they say “The Board can’t make policy, only the GNSO makes policy”. Given there is no policy consensus, I think we should affirm the three points below. If nothing else, this would protect the Board (somewhat) from having to bear the litigation risk of our WG not having achieved consensus on a new policy. This solution may “split the baby” but at least it doesn’t prevent the Closed Generic applications and it doesn’t force the Board to make the policy. The Working Group affirms the Board’s action and recommends that in the event Closed Generic applications are received in the next round, then ICANN should allow applicants to (1) make a change to non-exclusive access, (2) maintain & defer until policy on serving a public interest is finalized, or (3) withdraw Anne From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, June 30, 2020 9:47 AM To: PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ It doesn’t kick the can down the road – it decides now that closed generics are banned unless and until the policy on serving a public interest is created. I disagree with this approach and believe that others do as well. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: McGrady, Paul D. [mailto:PMcGrady@taftlaw.com] Sent: Tuesday, June 30, 2020 11:37 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Why not just solve the puzzle instead? The recommendation you propose just kicks the can again. I think we can do it! (but we do have to get the “ban” language out – it just isn’t what happened). From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 11:29 AM To: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Why don’t we just affirm the Board’s action and recommend that in the event Closed Generic applications are received, then ICANN should allow applicants to (1) make a change to non-exclusive access, (2) maintain & defer until policy on serving a public interest is finalized, or (3) withdraw Then there is an actual recommendation from the WG as to the next round. 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: Monday, June 29, 2020 2:44 PM To: PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Package 6 [EXTERNAL] ________________________________ +1 to Paul. Everyone does not agree with that position. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of McGrady, Paul D. Sent: Monday, June 29, 2020 4:41 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr(a)gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Package 6 *EXTERNAL TO GT* Hi Jeff & Cheryl, I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls? Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case. Best, Paul Taft / Paul D. McGrady / Partner Taft Stettinius & Hollister LLP 111 E. 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For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covi…>. 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. ________________________________ 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. 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1 0

FW: Package 6
by Aikman-Scalese, Anne June 30, 2020

June 30, 2020

For some reason, my reply all sometimes fails to copy the list. See below. Thank you, Anne From: Aikman-Scalese, Anne Sent: Tuesday, June 30, 2020 9:56 AM To: 'trachtenbergm(a)gtlaw.com' <trachtenbergm(a)gtlaw.com>; PMcGrady(a)taftlaw.com; jeff.neuman(a)comlaude.com; langdonorr(a)gmail.com Subject: RE: Package 6 Marc, There is no consensus on criteria for judging when a closed generic will serve the public interest and Leadership does not see the WG reaching such a Consensus at this time. Many are dead set against Closed Generics period, the end and others have not provided convincing cases showing a demonstrated public interest. So there is no WG Consensus. To some, that means it’s a “free-for-all” and they may be prepared to sue ICANN to prove their Closed Generic application does, in fact, serve a public interest. Some WG members end up saying “The Board will have to decide” while as to other issues, they say “The Board can’t make policy, only the GNSO makes policy”. Given there is no policy consensus, I think we should affirm the three points below. If nothing else, this would protect the Board (somewhat) from having to bear the litigation risk of our WG not having achieved consensus on a new policy. This solution may “split the baby” but at least it doesn’t prevent the Closed Generic applications and it doesn’t force the Board to make the policy. The Working Group affirms the Board’s action and recommends that in the event Closed Generic applications are received in the next round, then ICANN should allow applicants to (1) make a change to non-exclusive access, (2) maintain & defer until policy on serving a public interest is finalized, or (3) withdraw Anne From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, June 30, 2020 9:47 AM To: PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 [EXTERNAL] ________________________________ It doesn’t kick the can down the road – it decides now that closed generics are banned unless and until the policy on serving a public interest is created. I disagree with this approach and believe that others do as well. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: McGrady, Paul D. [mailto:PMcGrady@taftlaw.com] Sent: Tuesday, June 30, 2020 11:37 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Why not just solve the puzzle instead? The recommendation you propose just kicks the can again. I think we can do it! (but we do have to get the “ban” language out – it just isn’t what happened). From: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> Sent: Tuesday, June 30, 2020 11:29 AM To: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>; McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Subject: RE: Package 6 Why don’t we just affirm the Board’s action and recommend that in the event Closed Generic applications are received, then ICANN should allow applicants to (1) make a change to non-exclusive access, (2) maintain & defer until policy on serving a public interest is finalized, or (3) withdraw Then there is an actual recommendation from the WG as to the next round. 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: Monday, June 29, 2020 2:44 PM To: PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>; jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>; langdonorr(a)gmail.com<mailto:langdonorr@gmail.com> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Package 6 [EXTERNAL] ________________________________ +1 to Paul. Everyone does not agree with that position. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@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 McGrady, Paul D. Sent: Monday, June 29, 2020 4:41 PM To: Jeff Neuman <jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr(a)gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Package 6 *EXTERNAL TO GT* Hi Jeff & Cheryl, I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls? Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case. Best, Paul Taft / Paul D. McGrady / Partner Taft Stettinius & Hollister LLP 111 E. 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