All, This conversation demonstrates exactly why it is so difficult to put into place restrictions like a “use” requirement. In trying to sum up where we are: Proposal: Unless exempt, you must complete a Sunrise phase prior to contract renewal (10 years). Spec 13 Registries would be exempt from this requirement. What is the problem we are trying to Solve? * From Alex’s e-mails, it seems like the argument is that not “using” a TLD for an extended amount of time essentially takes that TLD out of circulation and that “someone else might be able” to use it; “All kinds of big corps will be talked into “secure your killer keyword – before your competition does.” * From Kathy K.: “If you are going to ask for a gTLD space, use it” and this “is a underlying premise of much of the Applicant Guidebook with its roll-out provisions.” * From Christopher: “to s to strongly discourage, indeed penalise, the warehousing of un-used strings. * Supported by Jorge From those not in favor of the Proposal * Kristine: No one has agreed this is even an issue or problem; This forces everyone into a singular model (namely always selling domain names to third parties.”; ICANN already has a number of restrictions that stand in the way of innovation; “Let’s stop accusing businesses of bad faith (claims that the intent was to “shut down a vertical” are just that) just because they haven’t found the right niche given all the ICANN business restrictions.” * Marc: What does “use” mean?; This would not foster innovation; This would only ensure one business model; “There is no innate incontrovertible human right to be able to register any domain name in any gTLD and as Kristine pointed out, Alex’s proposal attempts to solve a problem that doesn’t exist.”; No evidence that corporations are trying to shut down a vertical * Maxim: What is the problem we are trying to solve?; There were a number of things that happened in 2012 round which impacted Registries plans for launch * Supported by Martin * Rubens: The fact that ICANN changed a number of things made it more difficult to launch the TLD in Latin America; this will discriminate against the Global South We need to hear from the rest of the group as to what their thoughts are. Also, if there is a real issue, we need to have evidence to show the problem. Otherwise we are developing a solution to something that many do not agree is a problem? What is the harm caused by not having this rule in place? Thanks. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Friday, November 22, 2019 4:47 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs Correct. Apple has no inherent right for .Apple. That’s why they had to apply for it along with anyone else who wanted it. And if someone else was willing to pay more in a public or private auction that other company would be the RO for .apple and Apple could apply for something else in the next or subsequent rounds. Of course Apple has a right to stop infringing and abusive uses of .Apple but that is a different question. 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@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 Alexander Schubert Sent: Friday, November 22, 2019 2:53 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs Marc, So APPLE has no inherent right or need for .apple? Is it that what you are saying? They could apply for .appleinc for example, right? Thanks, Alexander From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> [mailto:trachtenbergm@gtlaw.com] Sent: Freitag, 22. November 2019 15:10 To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs He should be able to wait as long as he wants or needs to. What is the worst case scenario – there are only 999,998 TLDs instead of 1,000,000? Again, there is no inherent right (or need) to have every possible combination of letters and numbers be a TLD and be able to register domains in it. 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@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 Alexander Schubert Sent: Friday, November 22, 2019 1:55 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs *EXTERNAL TO GT* Hi Rubens, I understand you. But how long more do you want to wait? 10 years? 25 years? If you can’t launch the string: someone else might be able. Create a white label registrar for example. There are many countries that do NOT have ICANN registrars. Latvia for example. Does that mean there should never be a .riga? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Rubens Kuhl Sent: Freitag, 22. November 2019 12:26 To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs Alexander, I happen to be from an organisation that applied to 2 gTLDs in 2012 and still have launched them. What I need to point out is that bring this requirement on registries would also need requirements on ICANN. At the time we applied, it was said that vertical integration would not require two different legal entities; this was added in an AGB version after applications have been submitted. At the time we applied, there was no indication that then current registrars with RAA 2009 wouldn't be able to sell 2012 gTLDs; when the RA was finalised, this suddenly appeared. And since we had only 2009 Registrars in our country, that meant no registrars. But as RAAs start expiring, we were hopeful that some registrars would become RAA 2013... what happened though is that all Brazilian registrars preferred dropping their accreditations instead of on boarding new, cumbersome requirements that were added to RAA mostly due to pressures from developed countries. So, ICANN Org failed us miserably in a lot of ways, and you are suggesting that even in that condition we would be obliged to launch expeditiously ? No, thanks. And if your intention is to widen the gap from "Global North" to "Global South", that's a sure way to do it. There is more to the world than Western Europe and North America. Rubens Em 20 de nov de 2019, à(s) 13:49:000, Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> escreveu: Dear Jeff, As discussed on the call yesterday here a brief suggestion regarding a “use requirement”. First a summary of my suggestion: The new RA (Registry Agreement) should contain a clause that denies contract renewal if registries have not had a Sunrise registration phase (Spec-13 Brand Registries would be exempted from this clause). Here my rationale for this: Obviously the 2007 PDP demanded a use requirement. Hence currently registries face steep penalties for not contracting (application will be withdrawn) and not testing/entering the root (cancelation of the contract). Let’s be cognizant of the 3 gTLD categories that emerged in 2012: 1. Spec 13 gTLDs (Brands) 2. Geo gTLDs (mainly cities) 3. All others We can’t always find “one size fits all” solutions – and claim that in absence of a global solution we will not create ANY solution at all. That said: I can’t speak for the category 1. And as Martin Sutton said on the Monday GNSO call: if “use” was defined by “number of domains”: nothing more easy than registering a number of domains. So yes: for brand gTLDs it’s nifty to “define” a “use requirement” – maybe someone else can come up with a solution for Spec-13 registries. BUT: For categories 2 and 3 I think the solution is simple! We already steeply penalize if the prospective registry doesn’t contract or engage in testing. There are grace periods to do so (I think 9 month). We could use the same grace period for “startup” – which is opening the string up for registrations in Sunrise! At BARE minimum we should put into the new RA (Registry Agreement) that failure for categories 2 and 3 (non-Spec-13 registries) to startup (start sunrise) WILL be a reason to deny contract renewal! A DECADE of not starting up should be a clear sign of failure. This solution is NOT impacting Spec 13 applicants. We can discuss separately whether or not we wish to add a “use requirement” for them as well. This solution would also NOT impact 2012 round new gTLDs. 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