Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ 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. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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> On Behalf Of Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter <http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport <http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: * .twitter * .facebook * .snap * .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca>; Mike Rodenbaugh <mike@rodenbaugh.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] _____ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
_______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _____ 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. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy> ) and the website Terms of Service ( https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos> ). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com>
I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin> wrote:
Jeff,
I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision.
Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter instead of the longish www.twitter.com/dotairport - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?).
Actually this would apply to all social media that are based on generic terms:
· .snap
· .telegram
Just as examples.
Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling?
Thanks,
Alexander
*From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] *On Behalf Of *Jeff Neuman *Sent:* Mittwoch, 26. Februar 2020 12:40 *To:* Alan Greenberg <alan.greenberg@mcgill.ca>; Mike Rodenbaugh < mike@rodenbaugh.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Alan,
Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD.
Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal."
Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions…..
I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal?
Thanks.
*Jeff Neuman*
Senior Vice President
*Com Laude | Valideus*
D: +1.703.635.7514
E: *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Alan Greenberg *Sent:* Tuesday, February 25, 2020 5:49 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics.
Alan
At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote:
i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway?
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law
On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca
wrote:
I had this in my original proposal but based on individual discussions I have had I know that some people missed it.
To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment.
Alan
At 24/02/2020 09:46 PM, Phil Buckingham wrote:
Hi Justine , Alan , Anne,
Justine , that̢۪s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round .
I very much support Alan̢۪s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let̢۪s call it a Public Ic Interest TLD .
I am working on a proposal ( for Friday̢۪ deadline) .) . It will incorporate the evaluation and implementation issues too.
Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution.
Your thoughts ?
Phil
Phil Buckingham
Sent from my iPhone
On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com > wrote:
Perhaps this is something we could pick up under the Contractual Compliance topic.
Justine
-----
On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts.
Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation.
Anne
From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org> On Behalf Of Justine Chew
Sent: Thursday, February 20, 2020 12:28 AM
To: gnso-newgtld-wg@icann.org
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics
[EXTERNAL] ------------------------------
While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following:
Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions:
(1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest;
(2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry);
(3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and
(4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA.
the breach of one or more of which will constitute cause for termination of the RA.
Justine
-----
On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca > wrote:
While talking to a colleague today, I realized a problem with my
proposal. I was thinking that there would (or could ) only be a small
number of applications that could be deemed to be for closed TLDs
that are generic words and in the public interest. That may indeed be
true. However, there may well be MANY such applications twhere the
applicant beleives their use will be in the public interest, and a
large load of such cases going to the Board will not work.
The change is to restrict applicants to not-for-profit entities only.
This is in keeping with the nature of the one example that has been raised.
Note that due to the unfortunate timing of the SubPro meeting being
scheduled in conflict with the EPDP, I will likely not be on the SubPro call.
To make my position clear, other than this special case I am
proposing, I would NOT support the delegation of closed generics.
Alan
At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
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The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org> wrote:
I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment.
On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin> wrote:
Jeff,
I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision.
Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter instead of the longish www.twitter.com/dotairport - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?).
Actually this would apply to all social media that are based on generic terms:
· .snap
· .telegram
Just as examples.
Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling?
Thanks,
Alexander
*From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] *On Behalf Of *Jeff Neuman *Sent:* Mittwoch, 26. Februar 2020 12:40 *To:* Alan Greenberg <alan.greenberg@mcgill.ca>; Mike Rodenbaugh < mike@rodenbaugh.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Alan,
Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD.
Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal."
Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions…..
I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal?
Thanks.
*Jeff Neuman*
Senior Vice President
*Com Laude | Valideus*
D: +1.703.635.7514
E: *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Alan Greenberg *Sent:* Tuesday, February 25, 2020 5:49 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics.
Alan
At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote:
i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway?
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law
On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca
wrote:
I had this in my original proposal but based on individual discussions I have had I know that some people missed it.
To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment.
Alan
At 24/02/2020 09:46 PM, Phil Buckingham wrote:
Hi Justine , Alan , Anne,
Justine , that̢۪s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round .
I very much support Alan̢۪s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let̢۪s call it a Public Ic Interest TLD .
I am working on a proposal ( for Friday̢۪ deadline) .) . It will incorporate the evaluation and implementation issues too.
Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution.
Your thoughts ?
Phil
Phil Buckingham
Sent from my iPhone
On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com > wrote:
Perhaps this is something we could pick up under the Contractual Compliance topic.
Justine
-----
On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts.
Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation.
Anne
From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org> On Behalf Of Justine Chew
Sent: Thursday, February 20, 2020 12:28 AM
To: gnso-newgtld-wg@icann.org
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics
[EXTERNAL] ------------------------------
While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following:
Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions:
(1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest;
(2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry);
(3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and
(4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA.
the breach of one or more of which will constitute cause for termination of the RA.
Justine
-----
On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca > wrote:
While talking to a colleague today, I realized a problem with my
proposal. I was thinking that there would (or could ) only be a small
number of applications that could be deemed to be for closed TLDs
that are generic words and in the public interest. That may indeed be
true. However, there may well be MANY such applications twhere the
applicant beleives their use will be in the public interest, and a
large load of such cases going to the Board will not work.
The change is to restrict applicants to not-for-profit entities only.
This is in keeping with the nature of the one example that has been raised.
Note that due to the unfortunate timing of the SubPro meeting being
scheduled in conflict with the EPDP, I will likely not be on the SubPro call.
To make my position clear, other than this special case I am
proposing, I would NOT support the delegation of closed generics.
Alan
At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
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What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org> Cc: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport<http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<http://match.com> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ 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. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). 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In a closed generic the operator is the only registrant. (“Operator” may include subsidiaries and affiliates.) Greg On Thu, Feb 27, 2020 at 11:53 AM Pruis, Elaine via Gnso-newgtld-wg < gnso-newgtld-wg@icann.org> wrote:
What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing?
Elaine
*From: *Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> *Date: *Wednesday, February 26, 2020 at 6:02 PM *To: *Becky Burr <becky.burr@board.icann.org> *Cc: *"gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> *Subject: *[EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics
I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure.
I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way.
I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org> wrote:
I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment.
On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin> wrote:
Jeff,
I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision.
Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter instead of the longish www.twitter.com/dotairport - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?).
Actually this would apply to all social media that are based on generic terms:
· .snap
· .telegram
Just as examples.
Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling?
Thanks,
Alexander
*From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] *On Behalf Of *Jeff Neuman *Sent:* Mittwoch, 26. Februar 2020 12:40 *To:* Alan Greenberg <alan.greenberg@mcgill.ca>; Mike Rodenbaugh < mike@rodenbaugh.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Alan,
Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD.
Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal."
Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions…..
I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal?
Thanks.
*Jeff Neuman*
Senior Vice President
*Com Laude | Valideus*
D: +1.703.635.7514
E: *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Alan Greenberg *Sent:* Tuesday, February 25, 2020 5:49 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Proposal re Closed Generics
Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics.
Alan
At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote:
i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway?
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law
On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca
wrote:
I had this in my original proposal but based on individual discussions I have had I know that some people missed it.
To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment.
Alan
At 24/02/2020 09:46 PM, Phil Buckingham wrote:
Hi Justine , Alan , Anne,
Justine , that̢۪s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round .
I very much support Alan̢۪s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let̢۪s call it a Public Ic Interest TLD .
I am working on a proposal ( for Friday̢۪ deadline) .) . It will incorporate the evaluation and implementation issues too.
Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution.
Your thoughts ?
Phil
Phil Buckingham
Sent from my iPhone
On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com > wrote:
Perhaps this is something we could pick up under the Contractual Compliance topic.
Justine
-----
On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts.
Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation.
Anne
From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org> On Behalf Of Justine Chew
Sent: Thursday, February 20, 2020 12:28 AM
To: gnso-newgtld-wg@icann.org
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics
[EXTERNAL] ------------------------------
While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following:
Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions:
(1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest;
(2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry);
(3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and
(4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA.
the breach of one or more of which will constitute cause for termination of the RA.
Justine
-----
On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca > wrote:
While talking to a colleague today, I realized a problem with my
proposal. I was thinking that there would (or could ) only be a small
number of applications that could be deemed to be for closed TLDs
that are generic words and in the public interest. That may indeed be
true. However, there may well be MANY such applications twhere the
applicant beleives their use will be in the public interest, and a
large load of such cases going to the Board will not work.
The change is to restrict applicants to not-for-profit entities only.
This is in keeping with the nature of the one example that has been raised.
Note that due to the unfortunate timing of the SubPro meeting being
scheduled in conflict with the EPDP, I will likely not be on the SubPro call.
To make my position clear, other than this special case I am
proposing, I would NOT support the delegation of closed generics.
Alan
At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
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Greg, I don’t with that definition. Seems like you are taking the Spec 13 definition and applying it here. I think a closed generic would be where the RO has the ability to pick and choose who can register domain names at its discretion. It could be the RO or its affiliates and subsidiaries – or it could be partners or customers. I think that a restricted TLD is one where there are specific and clear requirements for registration so not everyone can register, but everyone who meets the requirements can and the RO cannot just arbitrarily deny registrations from those who qualify. 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> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Thursday, February 27, 2020 11:01 AM To: Pruis, Elaine <epruis@verisign.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics *EXTERNAL TO GT* In a closed generic the operator is the only registrant. (“Operator” may include subsidiaries and affiliates.) Greg On Thu, Feb 27, 2020 at 11:53 AM Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> wrote: What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 https://urldefense.com/v3/__http://rodenbaugh.law__;!!DUT_TFPxUQ!UkhV6N5dG4h... <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!QP4LtKCaNfxJ...> On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<https://urldefense.com/v3/__http:/www.dotairport.twitter__;!!DUT_TFPxUQ!QP4L...> instead of the longish https://urldefense.com/v3/__http://www.twitter.com/dotairport__;!!DUT_TFPxUQ... <https://urldefense.com/v3/__http:/www.twitter.com/dotairport__;!!DUT_TFPxUQ!...> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for https://urldefense.com/v3/__http://match.com__;!!DUT_TFPxUQ!UkhV6N5dG4hXRufV... <https://urldefense.com/v3/__http:/match.com__;!!DUT_TFPxUQ!QP4LtKCaNfxJOixXk...> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 https://urldefense.com/v3/__http://rodenbaugh.law__;!!DUT_TFPxUQ!UkhV6N5dG4h... <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!QP4LtKCaNfxJ...> On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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Dear Marc, Yes, I agree with your assentation. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Donnerstag, 27. Februar 2020 12:07 To: gregshatanipc@gmail.com; epruis@verisign.com Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Greg, I don’t with that definition. Seems like you are taking the Spec 13 definition and applying it here. I think a closed generic would be where the RO has the ability to pick and choose who can register domain names at its discretion. It could be the RO or its affiliates and subsidiaries – or it could be partners or customers. I think that a restricted TLD is one where there are specific and clear requirements for registration so not everyone can register, but everyone who meets the requirements can and the RO cannot just arbitrarily deny registrations from those who qualify. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 <mailto:trac@gtlaw.com> trac@gtlaw.com | <http://www.gtlaw.com/> www.gtlaw.com From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Thursday, February 27, 2020 11:01 AM To: Pruis, Elaine <epruis@verisign.com <mailto:epruis@verisign.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics *EXTERNAL TO GT* In a closed generic the operator is the only registrant. (“Operator” may include subsidiaries and affiliates.) Greg On Thu, Feb 27, 2020 at 11:53 AM Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > wrote: What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces@icann.org> on behalf of Mike Rodenbaugh < <mailto:mike@rodenbaugh.com> mike@rodenbaugh.com> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr < <mailto:becky.burr@board.icann.org> becky.burr@board.icann.org> Cc: " <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org" < <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!QP4LtKCaNfxJ...> http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org <mailto:becky.burr@board.icann.org> > wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin <mailto:alexander@schubert.berlin> > wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter <https://urldefense.com/v3/__http:/www.dotairport.twitter__;!!DUT_TFPxUQ!QP4L...> instead of the longish www.twitter.com/dotairport <https://urldefense.com/v3/__http:/www.twitter.com/dotairport__;!!DUT_TFPxUQ!...> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: * .twitter * .facebook * .snap * .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com <https://urldefense.com/v3/__http:/match.com__;!!DUT_TFPxUQ!QP4LtKCaNfxJOixXk...> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> ] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> >; Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? Thanks. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!QP4LtKCaNfxJ...> On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] _____ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
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Somehow I accidentally only replied to Elaine, apologies! From: Dorrain, Kristine Sent: Thursday, February 27, 2020 9:02 AM To: 'Pruis, Elaine' <epruis@verisign.com> Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA). A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 8:53 AM Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport<http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<http://match.com> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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Thanks for the response. I don’t see why a TLD would have to be a generic word to support any of the innovative concepts put forward. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg@icann.org> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com> Date: Thursday, February 27, 2020 at 12:06 PM To: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] [Gnso-newgtld-wg] FW: Proposal re Closed Generics Somehow I accidentally only replied to Elaine, apologies! From: Dorrain, Kristine Sent: Thursday, February 27, 2020 9:02 AM To: 'Pruis, Elaine' <epruis@verisign.com> Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA). A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 8:53 AM Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport<http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<http://match.com> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ 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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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. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). 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The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). 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Dear all, We generally support the current status quo with respect to treatment of “closed generic” gTLDs, namely that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD. While we appreciate that there may be some innovative uses of closed generic gTLDs in the public interest, given the potential for abuse of closed generic gTLDs (e.g. anti-competitive uses), we support prohibition as the default (again, subject to a public interest exception, for which the applicant would bear the burden of proof). Accordingly, we would support formalizing this approach in a future iteration of the AGB. To that end, we also agree that clear criteria for what might constitute a public interest exception should be enumerated in such text (to be developed in implementation), and that any determinations on this subject would be appealable through the existing ICANN accountability mechanisms. Hope this input is helpful. Sincerely, Brian and Griffin ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Brian J. Winterfeldt Principal Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> brian@winterfeldt.law<mailto:brian@winterfeldt.law> +1 202 903 4422 ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Griffin M. Barnett Associate Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> griffin@winterfeldt.law<mailto:griffin@winterfeldt.law> +1 202 759 5836 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 2:22 PM To: dorraink@amazon.com; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Thanks for the response. I don’t see why a TLD would have to be a generic word to support any of the innovative concepts put forward. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com<mailto:dorraink@amazon.com>> Date: Thursday, February 27, 2020 at 12:06 PM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] [Gnso-newgtld-wg] FW: Proposal re Closed Generics Somehow I accidentally only replied to Elaine, apologies! From: Dorrain, Kristine Sent: Thursday, February 27, 2020 9:02 AM To: 'Pruis, Elaine' <epruis@verisign.com<mailto:epruis@verisign.com>> Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA). A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 8:53 AM Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport<http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<http://match.com> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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Thanks Brian and Griffin, Two questions where your input would be helpful – First Question: Do you think that the approval of a public interest Closed Generic should be determined by the Board or by an independent Panel (as are Community Priority Evaluations)? The reason I ask is due to possible Board concerns over making content determinations. Second Question: If there are identical applications for the same string, one “Open Generic” and one “Closed Generic”, would you assign priority to the Open Generic application? Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Brian Winterfeldt Sent: Thursday, February 27, 2020 2:16 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics [EXTERNAL] ________________________________ Dear all, We generally support the current status quo with respect to treatment of “closed generic” gTLDs, namely that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD. While we appreciate that there may be some innovative uses of closed generic gTLDs in the public interest, given the potential for abuse of closed generic gTLDs (e.g. anti-competitive uses), we support prohibition as the default (again, subject to a public interest exception, for which the applicant would bear the burden of proof). Accordingly, we would support formalizing this approach in a future iteration of the AGB. To that end, we also agree that clear criteria for what might constitute a public interest exception should be enumerated in such text (to be developed in implementation), and that any determinations on this subject would be appealable through the existing ICANN accountability mechanisms. Hope this input is helpful. Sincerely, Brian and Griffin ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Brian J. Winterfeldt Principal Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> brian@winterfeldt.law<mailto:brian@winterfeldt.law> +1 202 903 4422 ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Griffin M. Barnett Associate Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> griffin@winterfeldt.law<mailto:griffin@winterfeldt.law> +1 202 759 5836 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 2:22 PM To: dorraink@amazon.com<mailto:dorraink@amazon.com>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Thanks for the response. I don’t see why a TLD would have to be a generic word to support any of the innovative concepts put forward. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com<mailto:dorraink@amazon.com>> Date: Thursday, February 27, 2020 at 12:06 PM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] [Gnso-newgtld-wg] FW: Proposal re Closed Generics Somehow I accidentally only replied to Elaine, apologies! From: Dorrain, Kristine Sent: Thursday, February 27, 2020 9:02 AM To: 'Pruis, Elaine' <epruis@verisign.com<mailto:epruis@verisign.com>> Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA). A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 8:53 AM Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport<http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<http://match.com> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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There is a meeting scheduled tomorrow (https://community.icann.org/x/PwVxBw) but there is no proposed agenda. Is the meeting on or cancelled? Alan
i don't seem to have an invite for this meeting On Sun, Mar 1, 2020 at 7:15 PM Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
There is a meeting scheduled tomorrow (https://community.icann.org/x/PwVxBw) but there is no proposed agenda.
Is the meeting on or cancelled?
Alan
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Dear Anne, Thanks for the follow-up questions. To your first question, the Board should not be making determinations regarding whether an applied-for closed generic gTLD is in the public interest; rather, an independent evaluation panel should be making those determinations, again based on pre-defined criteria that should be spelled out in the AGB. There should be appeals mechanisms for such determinations, just as with other application evaluation decisions. Of course, in the event there were GAC Advice, for example, weighing in on a particular application for a proposed closed generic, the Board would still need to respond appropriately to such Advice, per the Bylaws (even if the response is simply to channel the GAC Advice to the review panel or appeal body etc.). Under our preferred approach to treatment of closed generics, if there are identical applications for the same string, where one is applied for as an open generic and the other as a closed generic, if the closed generic were able to satisfy the public interest exception such that it is not rejected outright, then it would seem more logical to assign priority status to the closed generic or, at a minimum, not assign either any kind of priority based solely on the open or closed nature of the TLD (there might be other factors weighing in favor of priority status one way or another). Admittedly, though, this particular scenario is not one that we have given a great deal of thought to so we would not take this particular response as our firm and final position on the question. Hope these further thoughts are helpful. Best regards, Brian and Griffin ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Brian J. Winterfeldt Principal Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> brian@winterfeldt.law<mailto:brian@winterfeldt.law> +1 202 903 4422 ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Griffin M. Barnett Associate Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> griffin@winterfeldt.law<mailto:griffin@winterfeldt.law> +1 202 759 5836 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Friday, February 28, 2020 12:44 PM To: Brian Winterfeldt <Brian@Winterfeldt.law>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Thanks Brian and Griffin, Two questions where your input would be helpful – First Question: Do you think that the approval of a public interest Closed Generic should be determined by the Board or by an independent Panel (as are Community Priority Evaluations)? The reason I ask is due to possible Board concerns over making content determinations. Second Question: If there are identical applications for the same string, one “Open Generic” and one “Closed Generic”, would you assign priority to the Open Generic application? Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Brian Winterfeldt Sent: Thursday, February 27, 2020 2:16 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics [EXTERNAL] ________________________________ Dear all, We generally support the current status quo with respect to treatment of “closed generic” gTLDs, namely that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD. While we appreciate that there may be some innovative uses of closed generic gTLDs in the public interest, given the potential for abuse of closed generic gTLDs (e.g. anti-competitive uses), we support prohibition as the default (again, subject to a public interest exception, for which the applicant would bear the burden of proof). Accordingly, we would support formalizing this approach in a future iteration of the AGB. To that end, we also agree that clear criteria for what might constitute a public interest exception should be enumerated in such text (to be developed in implementation), and that any determinations on this subject would be appealable through the existing ICANN accountability mechanisms. Hope this input is helpful. Sincerely, Brian and Griffin ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Brian J. Winterfeldt Principal Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> brian@winterfeldt.law<mailto:brian@winterfeldt.law> +1 202 903 4422 ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Griffin M. Barnett Associate Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<x-apple-data-detectors://12/1> griffin@winterfeldt.law<mailto:griffin@winterfeldt.law> +1 202 759 5836 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 2:22 PM To: dorraink@amazon.com<mailto:dorraink@amazon.com>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Thanks for the response. I don’t see why a TLD would have to be a generic word to support any of the innovative concepts put forward. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com<mailto:dorraink@amazon.com>> Date: Thursday, February 27, 2020 at 12:06 PM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] [Gnso-newgtld-wg] FW: Proposal re Closed Generics Somehow I accidentally only replied to Elaine, apologies! From: Dorrain, Kristine Sent: Thursday, February 27, 2020 9:02 AM To: 'Pruis, Elaine' <epruis@verisign.com<mailto:epruis@verisign.com>> Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA). A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 8:53 AM Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<http://www.dotairport.twitter> instead of the longish www.twitter.com/dotairport<http://www.twitter.com/dotairport> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<http://match.com> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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Brian, Respectfully I disagree that the status quo with respect to treatment of “closed generic” gTLDs, is that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD. As I and some others have pointed out in numerous other emails on this thread, the public interest requirement was merely GAC advice and has become the “status quo” only as a result of it being inaccurately referred to that so many times that people accept it as fact. In my view, if anything, the status quo is one of the following: 1. Closed generics are permitted because they were not prohibited in the AGB and the Board only prohibited them in the first round and directed the GNSO to make policy to address their treatment in subsequent rounds; or 2. Closed generics are not permitted because the Board prohibited them in the first round Personally, I think it is #1 based on the Board making specifying that the prohibition just applied to the current round and directed the GNSO to make it policy if the ban were to apply to future rounds, but reasonable minds can differ on that. I don’t think it is reasonable to keep saying though that the status quo is that closed generics can only exist if it is demonstrable that their existence is in the public interest based on the record. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 T +1 312.456.1020 trac@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> | View GT Biography <https://www.gtlaw.com/en/professionals/t/trachtenberg-marc-h> [Greenberg Traurig] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Brian Winterfeldt Sent: Thursday, February 27, 2020 3:16 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics *EXTERNAL TO GT* Dear all, We generally support the current status quo with respect to treatment of “closed generic” gTLDs, namely that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD. While we appreciate that there may be some innovative uses of closed generic gTLDs in the public interest, given the potential for abuse of closed generic gTLDs (e.g. anti-competitive uses), we support prohibition as the default (again, subject to a public interest exception, for which the applicant would bear the burden of proof). Accordingly, we would support formalizing this approach in a future iteration of the AGB. To that end, we also agree that clear criteria for what might constitute a public interest exception should be enumerated in such text (to be developed in implementation), and that any determinations on this subject would be appealable through the existing ICANN accountability mechanisms. Hope this input is helpful. Sincerely, Brian and Griffin ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf73... ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Q_YjE...> Brian J. Winterfeldt Principal Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<https://urldefense.com/v3/__http:/x-apple-data-detectors:/*12/1__;Lw!!DUT_TF...> brian@winterfeldt.law<mailto:brian@winterfeldt.law> +1 202 903 4422 ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf73... ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Q_YjE...> Griffin M. Barnett Associate Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC 20006<https://urldefense.com/v3/__http:/x-apple-data-detectors:/*12/1__;Lw!!DUT_TF...> griffin@winterfeldt.law<mailto:griffin@winterfeldt.law> +1 202 759 5836 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 2:22 PM To: dorraink@amazon.com<mailto:dorraink@amazon.com>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Thanks for the response. I don’t see why a TLD would have to be a generic word to support any of the innovative concepts put forward. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com<mailto:dorraink@amazon.com>> Date: Thursday, February 27, 2020 at 12:06 PM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] [Gnso-newgtld-wg] FW: Proposal re Closed Generics Somehow I accidentally only replied to Elaine, apologies! From: Dorrain, Kristine Sent: Thursday, February 27, 2020 9:02 AM To: 'Pruis, Elaine' <epruis@verisign.com<mailto:epruis@verisign.com>> Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA). A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Thursday, February 27, 2020 8:53 AM Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile? What am I missing? Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, February 26, 2020 at 6:02 PM To: Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposal re Closed Generics I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure. I disagree with Alan that means "no closed generics" is the current policy. The AGB clearly allowed them, as they were not prohibited or restricted in any way. I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance. But I don't think the Board should be deciding those things, at all. The entire program was designed for the Board NOT to make such decisions. Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 https://urldefense.com/v3/__http://rodenbaugh.law__;!!DUT_TFPxUQ!XOYqOqchd5H... <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!Q_YjEVU8CSS0...> On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>> wrote: I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable. That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear. Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment. On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander@schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Jeff, I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision. Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<https://urldefense.com/v3/__http:/www.dotairport.twitter__;!!DUT_TFPxUQ!Q_Yj...> instead of the longish https://urldefense.com/v3/__http://www.twitter.com/dotairport__;!!DUT_TFPxUQ... <https://urldefense.com/v3/__http:/www.twitter.com/dotairport__;!!DUT_TFPxUQ!...> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?). Actually this would apply to all social media that are based on generic terms: • .twitter • .facebook • .snap • .telegram Just as examples. Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for https://urldefense.com/v3/__http://match.com__;!!DUT_TFPxUQ!XOYqOqchd5HDmfLc... <https://urldefense.com/v3/__http:/match.com__;!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFs...> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling? Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Mittwoch, 26. Februar 2020 12:40 To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 https://urldefense.com/v3/__http://rodenbaugh.law__;!!DUT_TFPxUQ!XOYqOqchd5H... <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!Q_YjEVU8CSS0...> On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] ________________________________ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to closed generics in the general case, I did support the concept that a closed generic could be in the public interest, with the example of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the decision on whether a particular application would move forward or not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at least 90% of sitting, non-conflicted, Board members) that the TLD would be in the public interest.
The decision would be final and not appealable through the ICANN Reconsideration or IRP processes. This latter condition would require an amendment to the ICANN Bylaws to exempt such decision from the accountability measures, but this is identical to an amendment being recommended by the CCWG-Auction Proceeds, so there is a current precedent.
If, despite the fact that the decision would have to be near unanimous, there is still distrust of the ICANN Board in this matter, the approval of such TLDs could be subject to the Empowered Community Approval or Rejection Actions (also requiring a Bylaw change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in the view of the Board) in the Public Interest.
Alan
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Quick questions for the group that I put in chat a few calls back: Is there global consensus on what is considered a “non-profit,” or is the accreditation and acknowledgement system for this “title” vary nation by nation? Will dependence on the term “non-profit” as the threshold advantage/disadvantage some based on where the applicant is based? This may not be a concern, but I think it warrants full understanding. Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Jeff Neuman <jeff.neuman@comlaude.com> Date: Wednesday, February 26, 2020 at 12:40 PM To: Alan Greenberg <alan.greenberg@mcgill.ca>, Mike Rodenbaugh <mike@rodenbaugh.com> Cc: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? Thanks. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org> On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
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Jamie brings up a good point: We are trying to “weed out” entities who are trying to “game” the process. Most of us think about the relatively strict U.S. 501(c)(3) designations by the U.S. IRS (Federal Tax Office). But tricksters are most likely incorporating in tax havens – and these are “tax free” by definition. They likely have zero obligations and requirements on “non-profit” delegations – why should they? Just for fun, Google: “Panama Offshore Charitable Foundation”: “There is virtually no oversight by the Panamanian authorities so long as all contributions are derived from outside of Panama.” So in my mind a “non-profit” per se is not a guarantor for anything. Not in tax havens like Panama. And remember the avalanche of registries with tax haven headquarters in the 2012 round. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jamie Baxter Sent: Mittwoch, 26. Februar 2020 13:38 To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Quick questions for the group that I put in chat a few calls back: Is there global consensus on what is considered a “non-profit,” or is the accreditation and acknowledgement system for this “title” vary nation by nation? Will dependence on the term “non-profit” as the threshold advantage/disadvantage some based on where the applicant is based? This may not be a concern, but I think it warrants full understanding. Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > on behalf of Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > Date: Wednesday, February 26, 2020 at 12:40 PM To: Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> >, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > Cc: "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> " <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Alan, Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD. Remember, GAC Advice was fairly clear on this. It didn’t say that there should never be closed generic TLDs. It said “For strings representing generic terms, exclusive registry access should serve a public interest goal." Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with. Must be a non-profit entity, must have a vote by Board Supermajority, etc. Justine has recommended some additional elements on top of that with strong contractual compliance provisions….. I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal? 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 Alan Greenberg Sent: Tuesday, February 25, 2020 5:49 PM To: Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics. Alan At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote: i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP. If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim. This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> > wrote: I had this in my original proposal but based on individual discussions I have had I know that some people missed it. To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment. Alan At 24/02/2020 09:46 PM, Phil Buckingham wrote: Hi Justine , Alan , Anne, Justine , that’s a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round . I very much support Alan’s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case , New TLD application category . Let’s call it a Public Ic Interest TLD . I am working on a proposal ( for Friday’ deadline) .) . It will incorporate the evaluation and implementation issues too. Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation. ICANN will need to employ & train “ evaluation experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution. Your thoughts ? Phil Phil Buckingham Sent from my iPhone On 25 Feb 2020, at 01:30, Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com> > wrote: Perhaps this is something we could pick up under the Contractual Compliance topic. Justine ----- On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote: Thank you Justine. This is very constructive. We would then need to think about enforcement mechanisms. Private dispute resolution process? Filing a complaint with ICANN? Positive obligation by ICANN Compliance to monitor? Accomplish the goals below via PICs and eligibility requirements? Would appreciate your further thoughts. Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation. Anne From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Justine Chew Sent: Thursday, February 20, 2020 12:28 AM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics [EXTERNAL] _____ While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following: Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions: (1) to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest; (2) which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry); (3) which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and (4) to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA. the breach of one or more of which will constitute cause for termination of the RA. Justine ----- On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> > wrote: While talking to a colleague today, I realized a problem with my proposal. I was thinking that there would (or could ) only be a small number of applications that could be deemed to be for closed TLDs that are generic words and in the public interest. That may indeed be true. However, there may well be MANY such applications twhere the applicant beleives their use will be in the public interest, and a large load of such cases going to the Board will not work. The change is to restrict applicants to not-for-profit entities only. This is in keeping with the nature of the one example that has been raised. Note that due to the unfortunate timing of the SubPro meeting being scheduled in conflict with the EPDP, I will likely not be on the SubPro call. To make my position clear, other than this special case I am proposing, I would NOT support the delegation of closed generics. Alan At 18/02/2020 07:43 PM, Alan Greenberg wrote:
The SubPro meeting today began discussing Closed Generics.
One of my interventions was that although I was strongly opposed to
closed generics in the general case, I did support the concept that
a closed generic could be in the public interest, with the example
of .disaster operating by the International Red Cross as the example.
I proposed that we allow closed generic applications, but the
decision on whether a particular application would move forward or
not would rest with the ICANN Board.
The Board would have to agree, by an overwhelming majority (say at
least 90% of sitting, non-conflicted, Board members) that the TLD
would be in the public interest.
The decision would be final and not appealable through the ICANN
Reconsideration or IRP processes. This latter condition would
require an amendment to the ICANN Bylaws to exempt such decision
from the accountability measures, but this is identical to an
amendment being recommended by the CCWG-Auction Proceeds, so there
is a current precedent.
If, despite the fact that the decision would have to be near
unanimous, there is still distrust of the ICANN Board in this
matter, the approval of such TLDs could be subject to the Empowered
Community Approval or Rejection Actions (also requiring a Bylaw
change). However, in my mind, such caution would be overkill.
This proposal would allow a closed generic when it is clearly (in
the view of the Board) in the Public Interest.
Alan
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participants (12)
-
Aikman-Scalese, Anne -
Alan Greenberg -
Alexander Schubert -
Becky Burr -
Brian Winterfeldt -
Dorrain, Kristine -
Greg Shatan -
Jamie Baxter -
Jeff Neuman -
Mike Rodenbaugh -
Pruis, Elaine -
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