- Gnso-newgtld-wg - lists.icann.org

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

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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

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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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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. Wacker Drive, Suite 2800 Chicago, Illinois 60601-3713 Tel: 312.527.4000 • Fax: 312.754.2354 Direct: 312.836.4094 • Cell: 312.882.5020 https://urldefense.com/v3/__http://www.taftlaw.com__;!!DUT_TFPxUQ!T5xkgzVj5… <https://urldefense.com/v3/__http:/www.taftlaw.com__;!!DUT_TFPxUQ!WfZ003NwR5…> / PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com> [https://urldefense.com/v3/__https://dg01.redatatech.com/onprem_image_fetch?… ] Taft Bio<https://urldefense.com/v3/__http:/www.taftlaw.com/bio/PMcGrady@taftlaw.com_…> [V-Card Icon] Taft vCard<https://urldefense.com/v3/__http:/www.taftlaw.com/vcard/PMcGrady@taftlaw.co…> Subscribe to our law updates<https://urldefense.com/v3/__http:/taftlaw.com/news/subscribe__;!!DUT_TFPxUQ…> To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DU…>. 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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If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

1 0

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. 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.com/v3/__http:/www.taftlaw.com__;!!DUT_TFPxUQ!WfZ003NwR5…> / PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com> [https://dg01.redatatech.com/onprem_image_fetch?cid=1016&ep=35b8a53717ffef6a…] Taft Bio<https://urldefense.com/v3/__http:/www.taftlaw.com/bio/PMcGrady@taftlaw.com_…> [V-Card Icon] Taft vCard<https://urldefense.com/v3/__http:/www.taftlaw.com/vcard/PMcGrady@taftlaw.co…> Subscribe to our law updates<https://urldefense.com/v3/__http:/taftlaw.com/news/subscribe__;!!DUT_TFPxUQ…> To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DU…>. 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. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ 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

Package 6
by McGrady, Paul D. June 30, 2020

June 30, 2020

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=2b8abf60503911b8…] 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.

4 4

With correction: Post Call | New gTLD Subsequent Procedures Working Group | Monday, 29 June 2020 at 15:00 UTC
by Nathalie Peregrine June 30, 2020

June 30, 2020

** with correct agenda wiki page url, thank you Justine Chew for pointing this out!** Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Monday, 29 June 2020 at 15:00 UTC can be found on the agenda wiki page<https://community.icann.org/display/NGSPP/2020-06-29+New+gTLD+Subsequent+Pr…> (attendance included) and the GNSO Master calendar <https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> . These include: * Attendance (please let me know if your name has been left off the attendance list) * Audio recording * Zoom chat archive * Zoom recording (including audio, visual, rough transcript) * Transcript As a reminder only members can join the call, observers can listen to the recordings and read the transcript afterwards. Please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> if you would like to change your status from observer to member. For additional information, you may consult the mailing list archives <http://mm.icann.org/pipermail/gnso-newgtld-wg/> and the main wiki page<https://community.icann.org/x/RgV1Aw>. Thank you. Kind regards Terri

1 0

Additional Transparency for Private Auctions
by McGrady, Paul D. June 29, 2020

June 29, 2020

Jeff, As promised I am kicking around your suggestion. Can you clarify what you had in mind? Would the parties and dollars need to be reported at the end of every private auction, or in one lump report after the close of the round? I guess I’m a little concerned that Party A and B have a private auction, Party A reports it because they have no more contentions left and the report helps/hurts Party B in an auction with Party C. One final report at the end of a round may be easier to get on board with (although I am still trying to identify unintended consequences). 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=32b382944b053828…] 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.

2 1

Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
by Aikman-Scalese, Anne June 29, 2020

June 29, 2020

Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D64BAD.734CB280] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image002.jpg@01D64BAD.734CB280] Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
by Pruis, Elaine June 29, 2020

June 29, 2020

Hi Paul, Since we’re still waiting for leadership to define how consensus will be determined, three dissenting voices on the WG calls doesn’t mean the majority of the community hasn’t come to agreement…. It means there could be a dissenting statement included in the recommendations. Elaine Pruis Senior Director Naming Operations and Policy epruis(a)verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_51725297] From: "McGrady, Paul D." <PMcGrady(a)taftlaw.com> Date: Monday, June 29, 2020 at 11:03 AM To: Jim Prendergast <jim(a)GALWAYSG.COM>, Jean Guillon <jean(a)guillon.com>, "Pruis, Elaine" <epruis(a)verisign.com> Cc: "gnso-newgtld-wg(a)icann.org" <gnso-newgtld-wg(a)icann.org> Subject: [EXTERNAL] RE: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry. As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call. Best, Paul 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. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 9:01 AM To: Jean Guillon <jean(a)guillon.com>; Pruis, Elaine <epruis(a)verisign.com> Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis(a)verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> <image002.jpg> Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. 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