Hi All, To borrow and modify a phrase from Anne -- please keep in mind that that was absolutely nothing in the 2012 AGB that provided for .BRAND protection (Specification 13 dates back to special action by the Board in 2014). In response to widespread calls, we clarified that Closed Generics would be banned and created a balance in allowing .BRANDS to be closed. I am assuming that all of this post-2012 work is being put up for review and re-evalaution... Best, Kathy On 8/28/2019 3:51 PM, Aikman-Scalese, Anne wrote:
Hi Heather,
There is no prohibition on a registry seeking a reasonable contract modification from ICANN in light of all circumstances. It’s codified in Consensus Policy as the *RSEP *process. An unreasonable denial of that RSEP request for contract modification is fertile ground for a Request for Reconsideration, Independent Review Process, all the way up to and including a lawsuit.
See https://www.icann.org/resources/pages/rsep-2014-02-19-en <https://www.icann.org/resources/pages/rsep-2014-02-19-en> and note the legitimate purpose to “modify” or “remove” an existing Registry service.
Let’s take the real life example of .BEAUTY – originally proposed as closed –now delegated as “open” and NOT launched (at least according to ICANN Sunrise records at the link provided by Rubens and I don’t see anything at www.nic.beauty <http://www.nic.beauty>. Are we really saying that if L’Oreal’s competitor applies for and gets .PRETTY as a Closed Generic based on a 2022 application, it doesn’t matter and L’Oreal is stuck with remaining an open generic even if they have not launched? (I don’t represent L’Oreal or any other beauty industry client.) Keep in mind that there was absolutely nothing in the 2012 AGB that prohibited an application for a Closed Generic. (Sounds vaguely familiar to another IRP proceeding.)
Maybe out of scope for Sub Pro, but GNSO Council will have to deal with this if they don’t want a “logjam” at the Board level as to any new Closed Generic policy that may be developed.
Anne
*From:*Heather Forrest <haforrestesq@gmail.com <mailto:haforrestesq@gmail.com>> *Sent:* Tuesday, August 27, 2019 8:44 PM *To:* Maxim Alzoba <m.alzoba@gmail.com <mailto:m.alzoba@gmail.com>> *Cc:* Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> *Subject:* Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round
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Thanks, Maxim - I understand that, but amendments to an in-force contract are not the same as repudiating a contract and asking for a new contract to apply. The terms of the RA (clause 7.6(a) re "Special Amendment") and the AGB expressly provided for amendments to both.
AGB Module 6, cl 14: "ICANN reserves the right to make reasonable updates and changes to this applicant guidebook and to the application process, including the process for withdrawal of applications, at any time by posting notice of such updates and changes to the ICANN website, including as the possible result of new policies that might be adopted or advice to ICANN from ICANN advisory committees during the course of the application process. Applicant acknowledges that ICANN may make such updates and changes and agrees that its application will be subject to any such updates and changes. In the event that Applicant has completed and submitted its application prior to such updates or changes and Applicant can demonstrate to ICANN that compliance with such updates or changes would present a material hardship to Applicant, then ICANN will work with Applicant in good faith to attempt to make reasonable accommodations in order to mitigate any negative consequences for Applicant to the extent possible consistent with ICANN's mission to ensure the stable and secure operation of the Internet's unique identifier systems."
I can anticipate here that someone will say: "But Module 6 cl 14 expressly anticipates changes to the AGB and gives the 2012 applicant a right to demonstrate material hardship caused by the 'new' AGB being on more favourable terms!" I don't think that will be consistent with standard contract law interpretation in US courts, as only the 2012 applicants agreed to be contractually bound by the 2012 AGB, while new round applicants will only have the option of agreeing to whatever the AGB (or whatever name it has) is at that time, not a choice between old AGB or new AGB. A strict interpretation of "changes to /this applicant guidebook/" logically suggests that the 2012 AGB binds applicants who applied in 2012, because by applying, they consented to the application of the 2012 AGB. A new AGB, even if technically an amended version of the prior document, would apply to new applicants in the "next" round, whenever that is. Articulated another way, I think Jeff's point to now is that the charter of SubPro PDP instructs us to develop the rules that will apply to applicants in this "next" round, not to unsuccessful or any other applicants of the 2012 round (who already contractually agreed to a set of rules when they submitted their application to the TAS). The question of whether the new AGB/RA that results from SubPro PDP, RPM PDP, CCT Review, etc is to be applied to 2012 applicants is not within our PDP's scope. That's the question that would have to go to Council.
Best wishes,
Heather
.
Best wishes,
Heather
On Wed, Aug 28, 2019 at 11:51 AM Maxim Alzoba <m.alzoba@gmail.com <mailto:m.alzoba@gmail.com>> wrote:
Heather,
Formally ICANN changed AGB and RAin 2012 (Pic spec, for example), after the fees were paid.
But anyway, we should not mix rules from the different sets.
Maxim Alzoba
On 28 Aug 2019, at 08:35, Heather Forrest <haforrestesq@gmail.com <mailto:haforrestesq@gmail.com>> wrote:
Anne, all,
It seems to me that basic principles of contract law apply here to keep us out of the weeds. ICANN's legal framework depends, in its entirety, on contract after all. Applicants who applied in 2012 under the AGB contractually agreed, by submitting an application, to the AGB and the base RA that was incorporated in it. Those applicants did not apply under a future AGB, or a future RA to reflect that future AGB.
Whether a party on a 2012-era contract can adopt (in the case of those not yet contracted) the new RA or rescind current RA and adopt new RA (for those already completed contracting) is a separate question. I agree with Jeff that this separate question is not within the scope of the SubPro charter.
Best wishes,
Heather
On Tue, Aug 27, 2019 at 5:50 AM Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:
Hi Jeff – Do we have Susan’s draft language on your first point yet? (You may recall that there were even discussions about PROHIBITING new applications for the same string as some still pending from 2012 –that was not agreed so Susan is working on a statement that 2012 string application processing must be complete before any new application for that string would be considered. HOWEVER – again here is the “rub” – When you say 2012 string applications have to be “completed”, what are you saying about the policy that applies to those? What if the pending strings from 2012 don’t meet current new gTLD policy but they did not violate that policy as of the time of application? We can only skirt this issue for so long. Are 2012 strings going to be allowed to update to current gTLD policy in order to get authorization to proceed or not? Or are you saying GNSO Council will have to launch another PDP for that purpose?
*From:*Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> *Sent:* Monday, August 26, 2019 12:43 PM *To:* Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> *Subject:* RE: Closed Generics and the 2012 Round
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Anne,
Where has it been proposed that applications from 2012 get priority? I am not aware of any recommendation that we have made that gives “priority” to any applicants from 2012. We did recommend that any applications that were still outstanding for a string that is applied from in a subsequent round be completed.
With respect to Exclusive Generics, the Board resolution on this matter stated that any applications that wanted to maintain their “exclusive generic” status would be “deferred to the next round of the New gTLD Program, subject to rules developed for the next round…” They did not state that any of those applications would get priority. However, there were no applications that were deferred from the last round.
If we did allow some form of Exclusive Generic in the next round, then those rules would only apply to new applicants for TLDs. Discussing what happens to TLDs from 2012 that wanted to be Exclusive Generics, but ended up opening their TLDs because of the Board Resolution is not within the topics contained within our Charter. So yes if we wanted to discuss that issue we would need an amendment to our charter to allow us to tackle that subject. The GNSO could then either grant our request or farm that issue out to a separate group. That is within their discretion.
This is no different than any other changes we recommend where applicants from the past round would want the same things. For example, if we accept changes to the code of conduct, the COI, reserved names, agreement, etc., the existing registries would not get the benefit of those changes unless the changes go through a PDP that has jurisdiction over those issues. All Applications / TLDs are treated according the to rules for the round in which they applied. This is true regardless of whether they have launched yet or not.
I hope this clears things up.
*Jeff Neuman*
Senior Vice President
*Com Laude | Valideus*
D: +1.703.635.7514
E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
*From:*Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> *Sent:* Monday, August 26, 2019 2:55 PM *To:* Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> *Subject:* RE: Closed Generics and the 2012 Round
Thanks Jeff. Your reasoning below is not consistent with what has been proposed in relation to giving priority to applications from the 2012 round that have not been withdrawn. (How is it that this “priority” is in scope for our WG but nothing else re 2012 applicants is in scope? AND if I applied for a Closed Generic and didn’t get it in 2012, why should I have to require another PDP authorization from GNSO Council in order to be treated similarly to new applicants and convert to a Closed Generic? (I believe some open registries that won contention sets in 2012 may not have not have actually launched yet. Why would we say that whether or not they can launch as a Closed Generic is up to GNSO Council?)
Thank you,
Anne
*From:*Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> *On Behalf Of *Jeff Neuman *Sent:* Monday, August 26, 2019 5:27 AM *To:* Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> *Subject:* Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round
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Thanks all. We have already got a number of people signed up for the group. I expect substantive discussions on this topic to start this week. So, it is not too late to join. But remember that if you join, the expectation is that we will attempt to find a compromise solution that we all can live with (if possible).
You can view the member list for the small group here: https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Clos... Please allow a day or two to pass before seeing your name on the list if you just volunteered over the weekend or today.
We will not be talking about Closed Generics in our next meeting tomorrow (late tonight for some of us).
*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 *Jeff Neuman *Sent:* Friday, August 23, 2019 11:01 AM *To:* gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> *Subject:* [Gnso-newgtld-wg] Closed Generics and the 2012 Round
All,
There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications. Some have expressed concerns about the “fairness” of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012.
The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things. Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round. As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely. There were NO applicants that elected to defer their applications to any future round.
Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues. To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules. If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date. But for now, as some have stated, that issue is out of scope for our group.
The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants. Some of those changes may be favorable to the new applicants and some less favorable. The same is true with respect to previous applicants. If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made. The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be.
Finally, all requests for data or information from ICANN staff or any outside third party should go through the Working Group Leadership team. No working group members should request information directly without Leadership’s review. Leadership reviews all outstanding action items, including requests for information, and makes a decision on what is necessary and what is feasible. We consider all of these requests seriously and weigh the pros and cons of getting that data, including time, resources and cost.
Thanks for your cooperation and let us know if you have any comments or questions.
*Jeff Neuman*
Senior Vice President
**
*Com Laude | Valideus *1751 Pinnacle Drive
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