Is it just me, or has our entire workplan and subteam effort been
short-circuited?
gTLDs are important to me, but with the volume of e-mail we are seeing,
this is requiring too much of my day.
Alan
At 17/05/2017 08:14 PM, Rob Hall wrote:
Greg,
Do you think I was suggesting FCFS inside a round ????
That’s not the case at all. I am suggesting do a round,
where everyone who applies during the round window is equal.
Then, the second the round end, applications are available on a FCFS
basis. Of course, if a string was applied for IN the round,
it would take precedence over any other application filled following the
round.
And all applications in the round would be treated as equals in terms of
filing times.
Rob
From: <gnso-newgtld-wg-bounces@icann.org> on behalf of Greg
Shatan <gregshatanipc@gmail.com>
Date: Wednesday, May 17, 2017 at 6:48 PM
To: Rubens Kuhl <rubensk@nic.br>
Cc: "gnso-newgtld-wg@icann.org"
<gnso-newgtld-wg@icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
I would say that current GNSO Policy has FCFS outside the
round -- i.e., every application in the round is ahead of any (not yet
applied for) application outside the round , but every application in the
round is treated equally (with the exception of community applications,
which are more equal than other applications).
Rubens' third point is substantially similar to the proposition in my
email. Great minds, etc.
Greg
Greg
Shatan
C: 917-816-6428
S: gsshatan
gregshatanipc@gmail.com
On Wed, May 17, 2017 at 6:41 PM, Rubens Kuhl
<rubensk@nic.br> wrote:
-
- I would like to comment generically in this thread, so please don't
see the below content as what I'm replying to.
-
- - Current GNSO Policy foresees rounds, but FCFS inside the round. So
if we don't like that, we need to change the policy, even if AGB said
something different.
- - The round x continuous discussion is between alternatives that are
more similar than people seem to believe
- - One real question is whether application submission time is
factored into a contention set decision (if in so-called rounds) or
preclusive of future applications for the same string (if in so-called
continuous mode). Which can develop into a follow-up question of whether
after an application is published, does it allow new applications to be
submitted to compete with that application ?
-
- I believe that if we answer those questions, whatever comes after are
just implementation decisions.
-
-
- Rubens
-
- Em 17 de mai de 2017, Ă (s) 18:40:000, Rob Hall
<rob@momentous.com>
escreveu:
-
- Greg,
-
- What would roundless continuous applications look like if not FCFS
? Perhaps it is the FCFS term that is causing
irritation.
-
- Here is what I mean when I use it.
-
- The TLD is NOT taken.
- The TLD has no previous application in process.
- An application is received for the TLD.
- ICANN starts its evaluation process and starts running down the
agreed upon path we have now (or will have for the next round).
- If the application passes all the tests, objections etc, then the
applicant enters into a contract with ICANN and the TLD is
delegated.
-
- I am NOT suggesting any different process than if a TLD in a round
had only one applicant. It would be identical.
-
- Rob
-
- From:
<
gnso-newgtld-wg-bounces@icann.org> on behalf of Greg Shatan
<gregshatanipc@gmail.com
>
- Date: Wednesday, May 17, 2017 at 5:33 PM
- To: Phil Corwin
<psc@vlaw-dc.com>
- Cc:
"
gnso-newgtld-wg@icann.org"
<
gnso-newgtld-wg@icann.org>
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- I never said never to FCFS. I said that it could not be called
"our goal" now, and that there are significant issues raised by
FCFS. Even "roundless" New gTLDs are not necessarily
FCFS. (I would be very interested in looking at continuous
applications that were not FCFS.)
-
- As for Dawn Donut, I was thinking more of the case than the rule (so
my bad, there) -- my point was that the plaintiff's status as the first
to use, first to file (and only one to file) and trademark registrant did
not give it priority over the defendant under the circumstances of the
case.
-
- This is but one example to show that classifying trademark law (at
least in the US, no time for a 170 country survey) as a "first come
first served" regime is too simplistic to be correct.
-
- Maybe the Tea Rose-Rectanus Doctrine would be more on point?
:-)
- Greg
Shatan
- C: 917-816-6428
- S: gsshatan
- gregshatanipc@gmail.com
-
- On Wed, May 17, 2017 at 2:50 PM, Phil Corwin
<psc@vlaw-dc.com> wrote:
- Shouldn’t that be Sunrise Donut? ;-)
-
- Philip S. Corwin, Founding Principal
- Virtualaw LLC
- 1155 F Street, NW
- Suite 1050
- Washington, DC 20004
- 202-559-8597/Direct
- 202-559-8750/Fax
- 202-255-6172/Cell
-
- Twitter: @VlawDC
-
- "Luck is the residue of design" -- Branch Rickey
-
- From:
gnso-newgtld-wg-bounces@icann.org
[mailto:
gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett
- Sent: Wednesday, May 17, 2017 2:16 PM
- To: Aikman-Scalese, Anne
- Cc:
gnso-newgtld-wg@icann.org
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- I don't know the Dawn Donut concept, but love the name!
-
-
-
- On May 17, 2017, at 2:10 PM, Aikman-Scalese, Anne
<AAikman@lrrc.com>
wrote:
-
- Greg, I am very familiar with Dawn Donut and it is really about the
first user in a U.S. geographic location and whether or not damages are
available or merely injunctive relief.
-
- I understand “Seniority” as a term of art related to EU national
filings in particular where Seniority claims can be recorded against a
subsequently registered EUTM so you can let the national registration go
and not have to pay to renew the national filings. (pros and cons
there)
-
- “Priority” is about dates established in relation to Paris
Convention and Madrid Protocol filings.
-
- I am only talking about first to use under the common law and
Intent-To-Use under U.S. TM applications. These establish prior
claims as to that list of goods or services which are either in use or in
the Intent-To-Use application (as long as the intent is bona fide).
-
- Forbidding FCFS forever in new gTLD applications SIGNIFICANTLY
disadvantages the little guy. That would be the net effect if
“rounds” are the established method forever. We would thus
establish a dichotomy – a Great Divide of registries thatt are either
“too big to fail” or else “too small to succeed”.
-
- Anne
-
- Anne E. Aikman-Scalese
- Of Counsel
- 520.629.4428 office
- 520.879.4725 fax
- AAikman@lrrc.com
- _____________________________
- <image006.png>
- Lewis Roca Rothgerber Christie LLP
- One South Church Avenue, Suite 700
- Tucson, Arizona 85701-1611
- lrrc.com
-
- From: Greg Shatan
[
mailto:gregshatanipc@gmail.com]
- Sent: Wednesday, May 17, 2017 10:49 AM
- To: Aikman-Scalese, Anne
- Cc: Rob Hall; Jeff Neuman; Alan Greenberg; Christa Taylor; Volker
Greimann;
gnso-newgtld-wg@icann.org
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- Anne,
-
- Seniority is a bedrock concept of trademark law, but that does
not translate to "first come, first served." Application
date is only of many competing issues considered with regard to
seniority. In some cases, the app date is dispositive; in others,
it's not even relevant. T here are so many additional concepts involved
that ultimately it's incorrect to say that US TM law is FCFS with regard
to filing of a trademark application.
-
- A full discussion of this is way out scope for this group. I
don't want to start a discussion of the Dawn Donut rule....
- Greg Shatan
- C: 917-816-6428
- S: gsshatan
- gregshatanipc@gmail.com
-
- On Wed, May 17, 2017 at 12:41 PM, Aikman-Scalese, Anne
<AAikman@lrrc.com>
wrote:
- Greg,
- Isn’t trademark law itself an FCFS system in the U.S? You
either use the mark first, or you file Intent-to-Use so everyone
is on notice as to the goods or services you list.
-
- Extreme example in relation to TLDs that are not FCFS: an
entrepreneur with a creative business model wants to file for an .iwatch
TLD for a service that rates movies and TV programs by demographics –
age, gender, interest, etc. (Of courrse he or she may sell
ads.) But then a big company that makes or sells watches says,
“hey wait, I don’t want that one to go to someone else – I’m going
to appply for .iwatch too and we’ll see who wins.”
Or a big company that just competes with this sort of rating service just
says, “hey, we can outbid this possible new entrant – let’s apply and
shut themm down.” This is a system that thwarts creativity.
-
- It’s just a big string contention mess and makes operating a TLD
more expensive. AND the little guy NEVER wins. You
can’t base an LRO on an Intent—To-Usee application so as the little
guy, you are TOAST. (Your investors know this so they won’t
front the application fee for the TLD or co-sign your start-up bank
loan.)
- Anne
-
- Anne E. Aikman-Scalese
- Of Counsel
- 520.629.4428 office
- 520.879.4725 fax
- AAikman@lrrc.com
- _____________________________
- <image003.png>
- Lewis Roca Rothgerber Christie LLP
- One South Church Avenue, Suite 700
- Tucson, Arizona 85701-1611
- lrrc.com
-
- From: Greg Shatan
[
mailto:gregshatanipc@gmail.com]
- Sent: Wednesday, May 17, 2017 9:28 AM
- To: Rob Hall
- Cc: Aikman-Scalese, Anne; Jeff Neuman; Alan Greenberg; Christa
Taylor; Volker Greimann;
gnso-newgtld-wg@icann.org
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- What we have now is not a land rush. FCFS would not precisely
be a land rush, but it would share the emblematic concept of whoever gets
to the [plot of land/TLD] first claims it. In a sense it would be
worse than the land rush of the 19th Century, since at least there was
the same starting line for everyone and everyone with an interest in the
land was well aware of what was going on.
-
- At precisely high noon, thousands of would-be settlers make a mad
dash into the newly opened Oklahoma Territory to claim cheap land.
-
- On March 3, 1889, Harrison announced the government would open the
1.9 million-acre tract of Indian Territory for settlement precisely at
noon on April 22. Anyone could join the race for the land, but no one was
supposed to jump the gun. With only seven weeks to prepare, land-hungry
Americans quickly began to gather around the borders of the irregular
rectangle of territory. Referred to as “Boomers,” by the appointed
day more than 50,000 hopefuls were living in tent cities on all four
sides of the territory.
-
- The events that day at Fort Reno on the western border were typical.
At 11:50 a.m., soldiers called for everyone to form a line. When the
hands of the clock reached noon, the cannon of the fort boomed, and the
soldiers signaled the settlers to start. With the crack of hundreds of
whips, thousands of Boomers streamed into the territory in wagons, on
horseback, and on foot. All told, from 50,000 to 60,000 settlers
entered the territory that day. By nightfall, they had staked thousands
of claims either on town lots or quarter section farm plots. Towns like
Norman, Oklahoma City, Kingfisher, and Guthrie sprang into being almost
overnight.
-
- An extraordinary display of both the pioneer spirit and the American
lust for land, the first Oklahoma land rush was also plagued by greed and
fraud. Cases involving “Sooners”–people who had entered the territory
before the legall date and time–overloaded courts for years to come. Thee
government attempted to operate subsequent runs with more controls,
eventually adopting a lottery system to designate claims.
-
- <image004.png>
-
- P.S. In reading a bit about the 19th century land rushes of the
American West, I realized the insensitivity inherent in using the
term. In most if not all cases, the land rushes were into
"Indian Territory" and were open only to white Americans.
Of course, the land in many cases was not truly unoccupied or unowned,
the claims of Native Americans were simply not recognized, trampled on or
revoked in order to "open" the West.
-
- Greg Shatan
- C: 917-816-6428
- S: gsshatan
- gregshatanipc@gmail.com
-
- On Wed, May 17, 2017 at 12:03 PM, Rob Hall
<rob@momentous.com>
wrote:
- Greg,
-
- We have a land rush for TLD’s. That’s a fact of life.
There is demand.
-
- We are artificially creating many such rushes, by using
rounds. We let demand build up and then release it, then
start over again.
-
- Rob.
-
- From: Greg Shatan
<gregshatanipc@gmail.com
>
- Date: Wednesday, May 17, 2017 at 11:55 AM
- To: "Aikman-Scalese, Anne"
<AAikman@lrrc.com>
- Cc: Jeff Neuman
<jeff.neuman@comlaude.com
>, Rob Hall
<rob@momentous.com>, Alan
Greenberg
<alan.greenberg@mcgill.ca
>, Christa Taylor
<christa@dottba.com>,
Volker Greimann
<
vgreimann@key-systems.net>,
"
gnso-newgtld-wg@icann.org"
<
gnso-newgtld-wg@icann.org>
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- Rob,
-
- Perhaps I wasn't clear enough. I think a land rush for TLDs is
a terrible idea, and I can't think of any public interest justification
for it.
-
- Greg
- Greg Shatan
- C: 917-816-6428
- S: gsshatan
- gregshatanipc@gmail.com
-
- On Wed, May 17, 2017 at 11:43 AM, Aikman-Scalese, Anne
<AAikman@lrrc.com>
wrote:
- Greg,
- I think this may create a disadvantage for the first to apply.
So a registry gets a great, unique idea and makes an application.
Competitors then see that and say “hey I want a piece of that
action.” Whether they win or sell their rights at private
auction, it just makes developing a unique idea more expensive. I
think that, in itself, is a type of “gaming”.
-
- Anne
-
- Anne E. Aikman-Scalese
- Of Counsel
- 520.629.4428 office
- 520.879.4725 fax
- AAikman@lrrc.com
- _____________________________
- <image005.png>
- Lewis Roca Rothgerber Christie LLP
- One South Church Avenue, Suite 700
- Tucson, Arizona 85701-1611
- lrrc.com
-
- From: Greg Shatan
[
mailto:gregshatanipc@gmail.com]
- Sent: Tuesday, May 16, 2017 10:29 PM
- To: Jeff Neuman
- Cc: Rob Hall; Alan Greenberg; Aikman-Scalese, Anne; Christa
Taylor; Volker Greimann;
gnso-newgtld-wg@icann.org
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- I would suggest that TLDs should not be sold on a true FCFS basis --
TLDs are simply too valuable and unique. We don't need to have
"rounds" in order to have all of the various protections (RPMs,
Objections, GAC advice, etc.) remain -- we simply need to hold each
application for evaluation and for the creation of contention sets if
others want to join in and apply for the string. In essence, each
string becomes a "round" -- disaggregated from every other
application but going through the same process as applications currently
do. This eliminates the pent up demand problem, without succumbing
to a "wild west" approach to TLDs.
-
- Greg
- Greg
Shatan
- C: 917-816-6428
- S: gsshatan
- gregshatanipc@gmail.com
-
- On Tue, May 16, 2017 at 10:56 PM, Jeff Neuman
<jeff.neuman@comlaude.com
> wrote:
- Rob,
-
- To clarify, and I think this is consistent with some other proposals
as well:
-
- 1. ICANN conducts a “round 2” which deals with the pent up
demand. We would have to work out contention resolution rules and
whether priority is offered to any category, etc.
- 2. After some up-front stated time period (which we would need
to provide advice on). ICANN opens up permanents to receive TLD
applications and processes/evaluates and awards TLDs on a First-come,
First-served basis. However, to ease the tracking problem that
would come if applications were posted every day, ICANN would commit to
posting all of its proposals Quarterly (for example) so that anyone that
wanted to file objections, public comments, etc. would have to only check
4X per year (as an example). This would eliminate all contention
resolution, unless of course the application is unsuccessful (in which
case someone will develop a wait list service for TLDs ;)).
-
- Other than that last part, do I have that right? If so, it
presents an interesting combination of a few proposals we have on the
table and a new option for the group to consider.
- Thanks!
-
- Jeffrey J. Neuman
- Senior Vice President |Valideus USA | Com Laude USA
- 1751 Pinnacle Drive, Suite 600
- Mclean, VA 22102, United States
- E:
jeff.neuman@valideus.com or
jeff.neuman@comlaude.com
- T: +1.703.635.7514
- M: +1.202.549.5079
- @Jintlaw
-
-
- From:
gnso-newgtld-wg-bounces@icann.org
[mailto:
gnso-newgtld-wg-bounces@icann.org] On Behalf Of Rob Hall
- Sent: Tuesday, May 16, 2017 10:33 PM
- To: Alan Greenberg
<alan.greenberg@mcgill.ca
>; Aikman-Scalese, Anne
<AAikman@lrrc.com>; 'Christa
Taylor'
<christa@dottba.com>;
'Volker Greimann'
<
vgreimann@key-systems.net>;
gnso-newgtld-wg@icann.org
- Subject: Re: [Gnso-newgtld-wg] Proposed Agenda: New gTLD
Subsequent Procedures Working Group, 15 May 2017 at 15:00 UTC
-
- OK .. didn’t mean to step on anyones toes that was not part of this
current string.
-
- I don’t think anyone on this string has advocated FCFS as an
initial solution. I wanted to be clear that FCFS only was NOT what
I was suggesting or advocating for.
-
- The more I think about it, the more I actually think that if we were
to concentrate on what a FCFS world would look like (post contention
round) that a lot of the policy would become much simpler and more
clear.
-
- As an example, would we need categories ?
-
- Perhaps for what was in or out of the contract. Ie: It becomes
just a means of a checkbox as to which one you are so we know what
contract terms apply.
-
- But for priority ? Can’t see why a category would be
needed at all in a FCFS world.
-
- So then the question becomes are they really relevant during what I
will call the “Contention landrush period”, or perhaps “Contention
Sunrise”. Because that seems to be where most of the debate
is focused.
-