HI Paul.

The Factors are an outcome of an attempt to compromise on private resolution. We allow for creative private resolution with the conditions that include “a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the TLDs for any and all applications that they submit.”

We have to account for the fact that some applicants will apply for TLDs without a bona fide intent to operate the TLD. Which I think you are describing when you write “there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.”

Let me provide an example that might better illustrate my concern. Savvy gambler “J” comes along and applies for lots of generic/brand TLDs “orange” is one example. He convinces the defensive brand applicant to resolve the contention not at private auction but through a deal where he gets a thousand cases of Orange’s product every year for life.

We haven’t come to agreement to require all material terms of an arrangement to be made public.

Therefore, the suggested language to add to the Factors for evaluators/ ICANN to consider if a bona fide intent to operate the TLD is If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs.

I don’t think the factors are “bright line” (savvy gambler J will win one TLD to avoid scrutiny) ….

but the “bona fide intent” is… and that might be where your issue around defensive applications needs to be addressed.

 

Regarding my addition of “some” here:

“By requiring all applicants to agree to the bona fide use clause, some of the Working Group believes that the Board’s primary concerns are mitigated and that private resolutions (including private auctions) as a mechanism to resolve string contention, can be permitted.”

Is meant to reflect that not everyone believes the clause actually resolves the boards concerns. It’s a compromise the WG is recommending, but it may not actually mitigate the board’s concerns that applicants will participate to profit.

 

Hope that helps. And congrats on the last bird leaving the nest.

 

Elaine Pruis

Senior Director Naming Operations and Policy

epruis@verisign.com

703.948.4672

signature_1482981386

 

 

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of "McGrady, Paul D." <PMcGrady@taftlaw.com>
Date: Saturday, August 15, 2020 at 7:47 AM
To: Jim Prendergast <jim@GALWAYSG.COM>, Steve Chan <steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

 

Hi All,

 

Responding now to Elaine’s comments. 

 

I admit that I don’t fully understand what Elaine is asking for here:

 

Adding bullet point

Recommendation xx (Rationale 2), The non-exhaustive list of “Factors”

If ICANN isn’t privy to the material terms of settlements, some resolutions could purposely lose without any money changing hands or business combinations being made. Captures possible “paid (not necessarily in cash) to go away” settlements.
  • If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs.

 

Maybe Elaine can expound on the next call?  I don’t think we want to set up a bright line factor that indicates you are didn’t have a bona fide good faith intent just because you resolved contention sets by non-auction and didn’t end up continuing your applications.  Since the AGB doesn’t provide for any meaningful rights protection mechanisms for brand owners (and we haven’t really improved the situation much), there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.  Why would we want to preclude those brand owners from future rounds?  We don’t, and that is the problem with bright line factors like this one.  But, maybe I am missing Elaine’s point or maybe she can refine this in such a way that it more narrowly addresses what her concerns may be. 

 

Also, Elaine also includes “some of” language in her comments. As below with Jim’s, I do hope that this language isn’t being introduced in order to wreck a consensus call later (for the reasons mentioned below).  

 

Best,

Paul

 

 

 

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From: McGrady, Paul D.
Sent: Saturday, August 15, 2020 6:34 AM
To: 'Jim Prendergast' <jim@GALWAYSG.COM>; Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org
Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

 

Hi All,

 

I thought a brief note reacting to Jim’s proposed changes make sense.  Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year).  Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call.

 

Jim suggests we strike:  “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable.  This will have a chilling effect on application submission and is just bad governance.  At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists.  The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences. 

 

As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales.  I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call.  We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes.  If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well.  So, hopefully, the record keeping is the reason behind Jim’s insertions. 

 

Best to all,

Paul

 

 

 

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jim Prendergast
Sent: Wednesday, August 12, 2020 1:45 PM
To: Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

 

Attached is my feedback on the draft report on Auctions.

 

Thanks

 

Jim Prendergast

The Galway Strategy Group

+1 202-285-3699

 

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Steve Chan
Sent: Friday, August 7, 2020 11:36 AM
To: gnso-newgtld-wg@icann.org
Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

 

Dear WG Members,

 

As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020.

 

 

 

 

Please let us know if you have any questions or concerns.

 

Best,

Steve

 

 

Steven Chan


Policy Director, GNSO Support

 

Internet Corporation for Assigned Names and Numbers (ICANN) 

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536


                                                                  

Email: steve.chan@icann.org

Skype: steve.chan55

Mobile: +1.310.339.4410

 

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