Jorge, I would offer this quick observation. With a virtually unlimited number of TLDs available for operation, the difference between new gTLDs second level domains in existing TLDs erodes or completely disappears and ICANN becomes a TLD registrar Right now almost every conceivable generic term in every language is registered in .com, inarguably the most dominant TLD. The owner of each of these generic terms SLDs is in sole control of it and can either permit third parties to “register” third level subdomains in his/her SLD or set up as many third level subdomains on the SLD (or none) has he/she wants. Yet no one complains about this “monopolization” of generic terms in SLDs and how it is against the public interest. The .swiss limitation on registration of generic SLDs is the first I have heard of such. Is there any evidence anywhere of harm to competition or other public interests from this scenario? I have not seen it but if it exist please someone send it to me. If this is so harmful then we should ban all generic second level registrations in all TLDs that are not in the public interest. Best regards, 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 Jorge.Cancio@bakom.admin.ch Sent: Friday, March 6, 2020 5:25 AM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear all Please allow me to chime in on this discussion at this stage, and share some comments… In fact, the harder I think about this issue and how to equate “closed” (i.e. exclusive) registration of SLDs with “public interest”, the harder it is for me to find any possible example – as “public interest” as core of a “generic term” in the end always leads to a function that can be performed by a multiplicity of institutions or organizations and cannot be circumscribed to one single entity. I’ve seen in the materials and discussions the example of “.disaster” as one potential closed generic. But I think that this TLD would actually best work as a generic with a restrictive eligibility policy for SLDs: all entities complying with a set of objective criteria (e.g. being disaster relief organizations) should be allowed in. I cannot see any reason why such a TLD would be restricted to only one organization, even if that one is the ICRC ;P The argument that otherwise anyone could get a SLD under that TLD is IMO not precise, as, as we know, the “control” ensuring that only the right people get the SLDs can be obtained through precise, objective and non-discriminatory eligibility criteria (hence a “closed” generic is not necessary). Kind regards Jorge p.s.: under Swiss regulations for «.swiss» a generic term registration (as SLD) is subject to quite exhaustive rules, including the “non-discrimination” obligation, which excludes a “closed” approach… Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> Im Auftrag von Marc Trachtenberg via Gnso-newgtld-wg Gesendet: Dienstag, 3. März 2020 06:02 An: Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Betreff: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Brian, Thank you for looking into this. It gave me the opportunity to review the Board resolution again as well. While you are correct to point out that the Board resolution references serving a public interest goal, I think the Board is clear that it is doing so to address the GAC advice and not taking a position on the issue. Specifically the Board states: Resolved (2015.06.21.NG02), to address the GAC's Category 2.2 Safeguard Advice, the NGPC requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. Interestingly, the Board also notes in its rationale for the resolution that when the NGPC requested the GNSO to provide guidance on the issue of closed generics the GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not." The Board also notes in its rationale that: “The comments from the community express a diversity of views on how, and whether the NGPC should implement the GAC's advice. Some of the significant themes raised by community comments, and considered by the NGPC in taking this action, are as follows: § A Policy Development Process with respect to operating exclusive generic strings in the "public interest" should be undertaken by the community. Policy issues on "closed generic" TLDs should be resolved through the multistakeholder process. § The public interest goal requirement as stated is too general and requires greater specificity for enforceability. The NGPC should add relevant meaning to the "public interest" concept by applying the GNSO rationales regarding the promotion of competition, consumer choice, market differentiation, and geographical and service provider diversity as standards for such affirmative objective showings and findings. § Safeguards are important when applicants have chosen to apply for closed control of a generic term designating a particular industry where the applicant is engaged in the conduct of business activities in that industry. § Requiring applicants to demonstrate some additional public interest goal in the context of exclusive registry access for generic strings would reverse the deliberate choices made by the ICANN community in its bottom-up process and impose new evaluation criteria. § The status quo as set out in the Applicant Guidebook should apply so that both "open" and "closed" registry access for generic strings should continue to be allowed in this first application round, but both should be subject to significant scrutiny after launch by ICANN to ensure that the interests of rights owners and consumers are protected.” If anything is clear it is that this issue is complicated and that there are strong opinions on both sides of it. Accordingly, whatever the final decision is, I hope it is based on facts, evidence, and reason, and not reliance on whatever the person thinks the status quo is. Best regards, 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: Brian Winterfeldt [mailto:Brian@Winterfeldt.law] Sent: Monday, March 2, 2020 9:01 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc, Re-reading the particular Board resolution on the subject from June 21, 2015, the Board resolved “that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program” and “For the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants") … they must elect within a reasonably limited time to either: submit a change request to no longer be an exclusive generic TLD, and sign the current form of the New gTLD Registry Agreement; maintain their plan to operate an exclusive generic TLD. As a result, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs; or withdraw their application for a refund consistent with the refund schedule in the Applicant Guidebook.” See https://urldefense.com/v3/__https://www.icann.org/resources/board-material/r... <https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/re...>. I suppose, then, you are right that it would perhaps be more accurate to say that the current status quo is merely that closed generics have to date been prohibited, but could be permitted in future pending a change in rules through policy recommendations of this PDP (even though the resolution of course references serving a public interest goal). In any case, our position is still that closed generics should (continue to) be prohibited in future new gTLD rounds, unless the applicant can demonstrate that operating a generic gTLD in a closed manner would serve a public interest goal (outweighing anti-competition concerns). Best regards, Brian ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf73... ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Xkyuq...> 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 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Friday, February 28, 2020 1:59 PM To: Brian Winterfeldt <Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics 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<mailto: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<mailto: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!QmLd59T71Eh... <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!QmLd59T71EhauE_k... <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!QmLd59T71Eh... <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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Jorge, I understand that we are talking about closed generics, which is why I think the analogy is so apt. Every generic SLD is closed by default. Best regards, 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: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Friday, March 6, 2020 10:17 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>; gnso-newgtld-wg@icann.org Subject: AW: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Let me also briefly respond… we are talking about closed generics… not about generics in general. I think I made my point clear on closed generic, i.e. generics restricted to a single entity, and why I feel they do not fit well with the public interest requirement… As to TLDs and their difference to SLDs: this potentially long discussion would IMO only distract us… The “.swiss” regulations on generics (which I mentioned only in a “p.s.”) is interesting inasmuch it does allow generics in the public interest, but those same public interest requirements do not allow a “closed” generic (in the SLD space). Kind regards Jorge Von: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Gesendet: Freitag, 6. März 2020 17:01 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I would offer this quick observation. With a virtually unlimited number of TLDs available for operation, the difference between new gTLDs second level domains in existing TLDs erodes or completely disappears and ICANN becomes a TLD registrar Right now almost every conceivable generic term in every language is registered in .com, inarguably the most dominant TLD. The owner of each of these generic terms SLDs is in sole control of it and can either permit third parties to “register” third level subdomains in his/her SLD or set up as many third level subdomains on the SLD (or none) has he/she wants. Yet no one complains about this “monopolization” of generic terms in SLDs and how it is against the public interest. The .swiss limitation on registration of generic SLDs is the first I have heard of such. Is there any evidence anywhere of harm to competition or other public interests from this scenario? I have not seen it but if it exist please someone send it to me. If this is so harmful then we should ban all generic second level registrations in all TLDs that are not in the public interest. Best regards, 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 Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Friday, March 6, 2020 5:25 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear all Please allow me to chime in on this discussion at this stage, and share some comments… In fact, the harder I think about this issue and how to equate “closed” (i.e. exclusive) registration of SLDs with “public interest”, the harder it is for me to find any possible example – as “public interest” as core of a “generic term” in the end always leads to a function that can be performed by a multiplicity of institutions or organizations and cannot be circumscribed to one single entity. I’ve seen in the materials and discussions the example of “.disaster” as one potential closed generic. But I think that this TLD would actually best work as a generic with a restrictive eligibility policy for SLDs: all entities complying with a set of objective criteria (e.g. being disaster relief organizations) should be allowed in. I cannot see any reason why such a TLD would be restricted to only one organization, even if that one is the ICRC ;P The argument that otherwise anyone could get a SLD under that TLD is IMO not precise, as, as we know, the “control” ensuring that only the right people get the SLDs can be obtained through precise, objective and non-discriminatory eligibility criteria (hence a “closed” generic is not necessary). Kind regards Jorge p.s.: under Swiss regulations for «.swiss» a generic term registration (as SLD) is subject to quite exhaustive rules, including the “non-discrimination” obligation, which excludes a “closed” approach… Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> Im Auftrag von Marc Trachtenberg via Gnso-newgtld-wg Gesendet: Dienstag, 3. März 2020 06:02 An: Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Betreff: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Brian, Thank you for looking into this. It gave me the opportunity to review the Board resolution again as well. While you are correct to point out that the Board resolution references serving a public interest goal, I think the Board is clear that it is doing so to address the GAC advice and not taking a position on the issue. Specifically the Board states: Resolved (2015.06.21.NG02), to address the GAC's Category 2.2 Safeguard Advice, the NGPC requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. Interestingly, the Board also notes in its rationale for the resolution that when the NGPC requested the GNSO to provide guidance on the issue of closed generics the GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not." The Board also notes in its rationale that: “The comments from the community express a diversity of views on how, and whether the NGPC should implement the GAC's advice. Some of the significant themes raised by community comments, and considered by the NGPC in taking this action, are as follows: § A Policy Development Process with respect to operating exclusive generic strings in the "public interest" should be undertaken by the community. Policy issues on "closed generic" TLDs should be resolved through the multistakeholder process. § The public interest goal requirement as stated is too general and requires greater specificity for enforceability. The NGPC should add relevant meaning to the "public interest" concept by applying the GNSO rationales regarding the promotion of competition, consumer choice, market differentiation, and geographical and service provider diversity as standards for such affirmative objective showings and findings. § Safeguards are important when applicants have chosen to apply for closed control of a generic term designating a particular industry where the applicant is engaged in the conduct of business activities in that industry. § Requiring applicants to demonstrate some additional public interest goal in the context of exclusive registry access for generic strings would reverse the deliberate choices made by the ICANN community in its bottom-up process and impose new evaluation criteria. § The status quo as set out in the Applicant Guidebook should apply so that both "open" and "closed" registry access for generic strings should continue to be allowed in this first application round, but both should be subject to significant scrutiny after launch by ICANN to ensure that the interests of rights owners and consumers are protected.” If anything is clear it is that this issue is complicated and that there are strong opinions on both sides of it. Accordingly, whatever the final decision is, I hope it is based on facts, evidence, and reason, and not reliance on whatever the person thinks the status quo is. Best regards, 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: Brian Winterfeldt [mailto:Brian@Winterfeldt.law] Sent: Monday, March 2, 2020 9:01 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc, Re-reading the particular Board resolution on the subject from June 21, 2015, the Board resolved “that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program” and “For the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants") … they must elect within a reasonably limited time to either: submit a change request to no longer be an exclusive generic TLD, and sign the current form of the New gTLD Registry Agreement; maintain their plan to operate an exclusive generic TLD. As a result, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs; or withdraw their application for a refund consistent with the refund schedule in the Applicant Guidebook.” See https://urldefense.com/v3/__https://www.icann.org/resources/board-material/r... <https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/re...>. I suppose, then, you are right that it would perhaps be more accurate to say that the current status quo is merely that closed generics have to date been prohibited, but could be permitted in future pending a change in rules through policy recommendations of this PDP (even though the resolution of course references serving a public interest goal). In any case, our position is still that closed generics should (continue to) be prohibited in future new gTLD rounds, unless the applicant can demonstrate that operating a generic gTLD in a closed manner would serve a public interest goal (outweighing anti-competition concerns). Best regards, Brian ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf73... ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Xkyuq...> 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 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Friday, February 28, 2020 1:59 PM To: Brian Winterfeldt <Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics 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<mailto: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<mailto: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!R76s3Tlpaj9... <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!R76s3Tlpaj9i3EIY... <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!R76s3Tlpaj9... <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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I think they will become more similar if there is an unlimited number of TLDs that can be operated. Regardless, I think the analogy is valid and this is the only actual relevant evidence available to us to consider since the Board punted on this issue in the first round and didn't permit closed generics, in which case we would have more direct evidence to consider. Accordingly, I reiterate my ask that those with evidence of competitive harm or other effects against the public interest resulting from generic SLDs proffer it up so that the decision of whether or not to permit closed generics in the next round, and if so , under what conditions, can be made based on more than just working group participants' commercial or philosophical interests.. Best regards, 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 | www.gtlaw.com -----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Friday, March 6, 2020 10:40 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Which leads us to the TLD-SLD distinction. If they were so similar as you imply we wouldn’t be here since 2016... best Jorge ________________________________ Von: trachtenbergm@gtlaw.com <trachtenbergm@gtlaw.com> Datum: 6. März 2020 um 17:35:51 MEZ An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>, gnso-newgtld-wg@icann.org <gnso-newgtld-wg@icann.org> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I understand that we are talking about closed generics, which is why I think the analogy is so apt. Every generic SLD is closed by default. Best regards, 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: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Friday, March 6, 2020 10:17 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>; gnso-newgtld-wg@icann.org Subject: AW: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Let me also briefly respond… we are talking about closed generics… not about generics in general. I think I made my point clear on closed generic, i.e. generics restricted to a single entity, and why I feel they do not fit well with the public interest requirement… As to TLDs and their difference to SLDs: this potentially long discussion would IMO only distract us… The “.swiss” regulations on generics (which I mentioned only in a “p.s.”) is interesting inasmuch it does allow generics in the public interest, but those same public interest requirements do not allow a “closed” generic (in the SLD space). Kind regards Jorge Von: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Gesendet: Freitag, 6. März 2020 17:01 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I would offer this quick observation. With a virtually unlimited number of TLDs available for operation, the difference between new gTLDs second level domains in existing TLDs erodes or completely disappears and ICANN becomes a TLD registrar Right now almost every conceivable generic term in every language is registered in .com, inarguably the most dominant TLD. The owner of each of these generic terms SLDs is in sole control of it and can either permit third parties to “register” third level subdomains in his/her SLD or set up as many third level subdomains on the SLD (or none) has he/she wants. Yet no one complains about this “monopolization” of generic terms in SLDs and how it is against the public interest. The .swiss limitation on registration of generic SLDs is the first I have heard of such. Is there any evidence anywhere of harm to competition or other public interests from this scenario? I have not seen it but if it exist please someone send it to me. If this is so harmful then we should ban all generic second level registrations in all TLDs that are not in the public interest. Best regards, 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 Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Friday, March 6, 2020 5:25 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear all Please allow me to chime in on this discussion at this stage, and share some comments… In fact, the harder I think about this issue and how to equate “closed” (i.e. exclusive) registration of SLDs with “public interest”, the harder it is for me to find any possible example – as “public interest” as core of a “generic term” in the end always leads to a function that can be performed by a multiplicity of institutions or organizations and cannot be circumscribed to one single entity. I’ve seen in the materials and discussions the example of “.disaster” as one potential closed generic. But I think that this TLD would actually best work as a generic with a restrictive eligibility policy for SLDs: all entities complying with a set of objective criteria (e.g. being disaster relief organizations) should be allowed in. I cannot see any reason why such a TLD would be restricted to only one organization, even if that one is the ICRC ;P The argument that otherwise anyone could get a SLD under that TLD is IMO not precise, as, as we know, the “control” ensuring that only the right people get the SLDs can be obtained through precise, objective and non-discriminatory eligibility criteria (hence a “closed” generic is not necessary). Kind regards Jorge p.s.: under Swiss regulations for «.swiss» a generic term registration (as SLD) is subject to quite exhaustive rules, including the “non-discrimination” obligation, which excludes a “closed” approach… Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> Im Auftrag von Marc Trachtenberg via Gnso-newgtld-wg Gesendet: Dienstag, 3. März 2020 06:02 An: Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Betreff: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Brian, Thank you for looking into this. It gave me the opportunity to review the Board resolution again as well. While you are correct to point out that the Board resolution references serving a public interest goal, I think the Board is clear that it is doing so to address the GAC advice and not taking a position on the issue. Specifically the Board states: Resolved (2015.06.21.NG02), to address the GAC's Category 2.2 Safeguard Advice, the NGPC requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. Interestingly, the Board also notes in its rationale for the resolution that when the NGPC requested the GNSO to provide guidance on the issue of closed generics the GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not." The Board also notes in its rationale that: “The comments from the community express a diversity of views on how, and whether the NGPC should implement the GAC's advice. Some of the significant themes raised by community comments, and considered by the NGPC in taking this action, are as follows: § A Policy Development Process with respect to operating exclusive generic strings in the "public interest" should be undertaken by the community. Policy issues on "closed generic" TLDs should be resolved through the multistakeholder process. § The public interest goal requirement as stated is too general and requires greater specificity for enforceability. The NGPC should add relevant meaning to the "public interest" concept by applying the GNSO rationales regarding the promotion of competition, consumer choice, market differentiation, and geographical and service provider diversity as standards for such affirmative objective showings and findings. § Safeguards are important when applicants have chosen to apply for closed control of a generic term designating a particular industry where the applicant is engaged in the conduct of business activities in that industry. § Requiring applicants to demonstrate some additional public interest goal in the context of exclusive registry access for generic strings would reverse the deliberate choices made by the ICANN community in its bottom-up process and impose new evaluation criteria. § The status quo as set out in the Applicant Guidebook should apply so that both "open" and "closed" registry access for generic strings should continue to be allowed in this first application round, but both should be subject to significant scrutiny after launch by ICANN to ensure that the interests of rights owners and consumers are protected.” If anything is clear it is that this issue is complicated and that there are strong opinions on both sides of it. Accordingly, whatever the final decision is, I hope it is based on facts, evidence, and reason, and not reliance on whatever the person thinks the status quo is. Best regards, 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: Brian Winterfeldt [mailto:Brian@Winterfeldt.law] Sent: Monday, March 2, 2020 9:01 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc, Re-reading the particular Board resolution on the subject from June 21, 2015, the Board resolved “that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program” and “For the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants") … they must elect within a reasonably limited time to either: submit a change request to no longer be an exclusive generic TLD, and sign the current form of the New gTLD Registry Agreement; maintain their plan to operate an exclusive generic TLD. As a result, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs; or withdraw their application for a refund consistent with the refund schedule in the Applicant Guidebook.” See https://urldefense.com/v3/__https://www.icann.org/resources/board-material/r... <https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/re...>. I suppose, then, you are right that it would perhaps be more accurate to say that the current status quo is merely that closed generics have to date been prohibited, but could be permitted in future pending a change in rules through policy recommendations of this PDP (even though the resolution of course references serving a public interest goal). In any case, our position is still that closed generics should (continue to) be prohibited in future new gTLD rounds, unless the applicant can demonstrate that operating a generic gTLD in a closed manner would serve a public interest goal (outweighing anti-competition concerns). Best regards, Brian ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf73... ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Xkyuq...> 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 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Friday, February 28, 2020 1:59 PM To: Brian Winterfeldt <Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics 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<mailto: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<mailto: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!S56UmcGzyJE... <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!S56UmcGzyJEfOdX2... <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!S56UmcGzyJE... <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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Sorry, with the preparation for ICANN67 I am a little behind on all of these email, but now caught up. We just want to please remind everyone to be more civil in our communications and not use aggressive language against any individual, organization or group. We understand that this is a difficult, controversial issue where passions and emotions can run high, but lets remember that everyone participating in this group comes to this group from a different perspective. At the end of the day we are all acting in good faith trying to do what we believe is best for our respective interests. Thank you and lets keep this conversation going. Best regards, 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 Mike Rodenbaugh Sent: Friday, March 6, 2020 12:39 PM To: Marc H. Trachtenberg <trachtenbergm@gtlaw.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, you may not have been there, but this debate goes back to 2006-2012 and was exhaustively argued and documented. That resulted in the GNSO community -- indeed a unanimous GNSO Council -- allowing closed generics in the 2012 round. The will of the community was thwarted only by unsubstantiated action of the GAC (no reasoning whatsoever) and a kowtowing Board (again, with no reasoning whatsoever). Now, with no reasoning whatsoever, we are hearing the same arguments. So I echo Marc's call for any sort of substantiation of potential harm, other than "we think it's unfair." Unfairness has existed in the DNS since day one, both in the SLD and TLD space. The analogy to SLDs is the best we have, and is quite legitimate given that many .com SLDs are worth far more than almost all new TLDs -- on the open market, to the public interest and by any other metric. We did have some dabbling as to closed generics despite the Board action, with L'Oreal's fashion/makeup etc. TLDs. That company essentially closed those TLDs off as I recall. Was anyone harmed, anywhere, in any way? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Fri, Mar 6, 2020 at 9:16 AM Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> wrote: I think they will become more similar if there is an unlimited number of TLDs that can be operated. Regardless, I think the analogy is valid and this is the only actual relevant evidence available to us to consider since the Board punted on this issue in the first round and didn't permit closed generics, in which case we would have more direct evidence to consider. Accordingly, I reiterate my ask that those with evidence of competitive harm or other effects against the public interest resulting from generic SLDs proffer it up so that the decision of whether or not to permit closed generics in the next round, and if so , under what conditions, can be made based on more than just working group participants' commercial or philosophical interests.. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com> -----Original Message----- From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>] Sent: Friday, March 6, 2020 10:40 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Which leads us to the TLD-SLD distinction. If they were so similar as you imply we wouldn’t be here since 2016... best Jorge ________________________________ Von: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Datum: 6. März 2020 um 17:35:51 MEZ An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>, gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I understand that we are talking about closed generics, which is why I think the analogy is so apt. Every generic SLD is closed by default. Best regards, 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><mailto:trac@gtlaw.com<mailto:trac@gtlaw.com>> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>] Sent: Friday, March 6, 2020 10:17 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: AW: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Let me also briefly respond… we are talking about closed generics… not about generics in general. I think I made my point clear on closed generic, i.e. generics restricted to a single entity, and why I feel they do not fit well with the public interest requirement… As to TLDs and their difference to SLDs: this potentially long discussion would IMO only distract us… The “.swiss” regulations on generics (which I mentioned only in a “p.s.”) is interesting inasmuch it does allow generics in the public interest, but those same public interest requirements do not allow a “closed” generic (in the SLD space). Kind regards Jorge Von: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com><mailto:trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com><mailto:trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>> Gesendet: Freitag, 6. März 2020 17:01 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I would offer this quick observation. With a virtually unlimited number of TLDs available for operation, the difference between new gTLDs second level domains in existing TLDs erodes or completely disappears and ICANN becomes a TLD registrar Right now almost every conceivable generic term in every language is registered in .com, inarguably the most dominant TLD. The owner of each of these generic terms SLDs is in sole control of it and can either permit third parties to “register” third level subdomains in his/her SLD or set up as many third level subdomains on the SLD (or none) has he/she wants. Yet no one complains about this “monopolization” of generic terms in SLDs and how it is against the public interest. The .swiss limitation on registration of generic SLDs is the first I have heard of such. Is there any evidence anywhere of harm to competition or other public interests from this scenario? I have not seen it but if it exist please someone send it to me. If this is so harmful then we should ban all generic second level registrations in all TLDs that are not in the public interest. Best regards, 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><mailto: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<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Sent: Friday, March 6, 2020 5:25 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear all Please allow me to chime in on this discussion at this stage, and share some comments… In fact, the harder I think about this issue and how to equate “closed” (i.e. exclusive) registration of SLDs with “public interest”, the harder it is for me to find any possible example – as “public interest” as core of a “generic term” in the end always leads to a function that can be performed by a multiplicity of institutions or organizations and cannot be circumscribed to one single entity. I’ve seen in the materials and discussions the example of “.disaster” as one potential closed generic. But I think that this TLD would actually best work as a generic with a restrictive eligibility policy for SLDs: all entities complying with a set of objective criteria (e.g. being disaster relief organizations) should be allowed in. I cannot see any reason why such a TLD would be restricted to only one organization, even if that one is the ICRC ;P The argument that otherwise anyone could get a SLD under that TLD is IMO not precise, as, as we know, the “control” ensuring that only the right people get the SLDs can be obtained through precise, objective and non-discriminatory eligibility criteria (hence a “closed” generic is not necessary). Kind regards Jorge p.s.: under Swiss regulations for «.swiss» a generic term registration (as SLD) is subject to quite exhaustive rules, including the “non-discrimination” obligation, which excludes a “closed” approach… Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org><mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>>> Im Auftrag von Marc Trachtenberg via Gnso-newgtld-wg Gesendet: Dienstag, 3. März 2020 06:02 An: Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Betreff: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Brian, Thank you for looking into this. It gave me the opportunity to review the Board resolution again as well. While you are correct to point out that the Board resolution references serving a public interest goal, I think the Board is clear that it is doing so to address the GAC advice and not taking a position on the issue. Specifically the Board states: Resolved (2015.06.21.NG02), to address the GAC's Category 2.2 Safeguard Advice, the NGPC requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. Interestingly, the Board also notes in its rationale for the resolution that when the NGPC requested the GNSO to provide guidance on the issue of closed generics the GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not." The Board also notes in its rationale that: “The comments from the community express a diversity of views on how, and whether the NGPC should implement the GAC's advice. Some of the significant themes raised by community comments, and considered by the NGPC in taking this action, are as follows: § A Policy Development Process with respect to operating exclusive generic strings in the "public interest" should be undertaken by the community. Policy issues on "closed generic" TLDs should be resolved through the multistakeholder process. § The public interest goal requirement as stated is too general and requires greater specificity for enforceability. The NGPC should add relevant meaning to the "public interest" concept by applying the GNSO rationales regarding the promotion of competition, consumer choice, market differentiation, and geographical and service provider diversity as standards for such affirmative objective showings and findings. § Safeguards are important when applicants have chosen to apply for closed control of a generic term designating a particular industry where the applicant is engaged in the conduct of business activities in that industry. § Requiring applicants to demonstrate some additional public interest goal in the context of exclusive registry access for generic strings would reverse the deliberate choices made by the ICANN community in its bottom-up process and impose new evaluation criteria. § The status quo as set out in the Applicant Guidebook should apply so that both "open" and "closed" registry access for generic strings should continue to be allowed in this first application round, but both should be subject to significant scrutiny after launch by ICANN to ensure that the interests of rights owners and consumers are protected.” If anything is clear it is that this issue is complicated and that there are strong opinions on both sides of it. Accordingly, whatever the final decision is, I hope it is based on facts, evidence, and reason, and not reliance on whatever the person thinks the status quo is. Best regards, 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><mailto:trac@gtlaw.com<mailto:trac@gtlaw.com>> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Brian Winterfeldt [mailto:Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>] Sent: Monday, March 2, 2020 9:01 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com><mailto:trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc, Re-reading the particular Board resolution on the subject from June 21, 2015, the Board resolved “that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program” and “For the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants") … they must elect within a reasonably limited time to either: submit a change request to no longer be an exclusive generic TLD, and sign the current form of the New gTLD Registry Agreement; maintain their plan to operate an exclusive generic TLD. As a result, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs; or withdraw their application for a refund consistent with the refund schedule in the Applicant Guidebook.” See https://urldefense.com/v3/__https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YPj8A5Oc$<https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YPj8A5Oc$> <https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/re...>. I suppose, then, you are right that it would perhaps be more accurate to say that the current status quo is merely that closed generics have to date been prohibited, but could be permitted in future pending a change in rules through policy recommendations of this PDP (even though the resolution of course references serving a public interest goal). In any case, our position is still that closed generics should (continue to) be prohibited in future new gTLD rounds, unless the applicant can demonstrate that operating a generic gTLD in a closed manner would serve a public interest goal (outweighing anti-competition concerns). Best regards, Brian ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$<https://urldefense.com/v3/__https:/daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$> ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Xkyuq...> 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<mailto:brian@winterfeldt.law>> +1 202 903 4422 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Friday, February 28, 2020 1:59 PM To: Brian Winterfeldt <Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics 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:trac@gtlaw.com><mailto:trachtenbergm@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<mailto:gnso-newgtld-wg-bounces@icann.org><mailto:gnso-newgtld-wg-bounces@icann.org<mailto: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<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto: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/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$<https://urldefense.com/v3/__https:/daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$> ]<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<mailto:brian@winterfeldt.law>> +1 202 903 4422 ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$<https://urldefense.com/v3/__https:/daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$> ]<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<mailto:griffin@winterfeldt.law>> +1 202 759 5836 From: Gnso-newgtld-wg [mailto: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 2:22 PM To: dorraink@amazon.com<mailto:dorraink@amazon.com><mailto:dorraink@amazon.com<mailto:dorraink@amazon.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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><mailto: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><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>>> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com<mailto:dorraink@amazon.com><mailto: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><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto:becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$<https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$> <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><mailto: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<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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9Ga23LI$<https://urldefense.com/v3/__http:/www.twitter.com/dotairport__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9Ga23LI$> <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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Yr-mQsAo$<https://urldefense.com/v3/__http:/match.com__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Yr-mQsAo$> <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><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><mailto:alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com><mailto:mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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><mailto: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><mailto: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><mailto:mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$<https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$> <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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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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As I understand it, L’Oreal’s .makeup was NOT closed per the RA definition. See Specs 9 and 11. As I recall, .makeup was restricted (like some other TLDs) but anyone who met the (admittedly limiting) criteria could apply and get a domain name. By the RA definition, a closed generic is where the RO (or their Affiliates) is the exclusive registrant. But that brings me to some of the sub-points in my proposal. In the call yesterday, folks didn’t like my .heart example because “any other word would do, including a .BRAND, especially if the use case didn’t require the public to visit the domain name so it didn’t need any semantic meaning.” I disagree, but will let that go for now. I also highlighted other uses no one has addressed – several of them limited in time and scope for experimentation or beta testing, or where it doesn’t make sense for the registrant to “own” the domain name. Let’s apply that to .heart. What if the idea could be to build the DNS-based system, but then, after all the testing and FDA and other regulatory approvals, any other mfr could get in on the technology? But the RY would need to run it closed for a while until it was allowed to open it up. Currently, this is hard to do. Jeff has asked if there is any scenario in which folks would be willing to move off their positions. I’ve presented three scenarios that would use appropriate guardrails, move the conversation away from the binary, reflect a balance between Consumer Trust AND Consumer Choice, and address actual issues faced by registry operators when developing business plans. When can we talk about using a “category word” to do something besides/more than selling domain names to end users (for domaining or websites)? Thanks, Kristine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Tuesday, March 10, 2020 5:58 AM To: Mike Rodenbaugh <mike@rodenbaugh.com>; Marc H. Trachtenberg <trachtenbergm@gtlaw.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: [EXTERNAL][Gnso-newgtld-wg] FW: Proposal re Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Sorry, with the preparation for ICANN67 I am a little behind on all of these email, but now caught up. We just want to please remind everyone to be more civil in our communications and not use aggressive language against any individual, organization or group. We understand that this is a difficult, controversial issue where passions and emotions can run high, but lets remember that everyone participating in this group comes to this group from a different perspective. At the end of the day we are all acting in good faith trying to do what we believe is best for our respective interests. Thank you and lets keep this conversation going. Best regards, 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 Mike Rodenbaugh Sent: Friday, March 6, 2020 12:39 PM To: Marc H. Trachtenberg <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, you may not have been there, but this debate goes back to 2006-2012 and was exhaustively argued and documented. That resulted in the GNSO community -- indeed a unanimous GNSO Council -- allowing closed generics in the 2012 round. The will of the community was thwarted only by unsubstantiated action of the GAC (no reasoning whatsoever) and a kowtowing Board (again, with no reasoning whatsoever). Now, with no reasoning whatsoever, we are hearing the same arguments. So I echo Marc's call for any sort of substantiation of potential harm, other than "we think it's unfair." Unfairness has existed in the DNS since day one, both in the SLD and TLD space. The analogy to SLDs is the best we have, and is quite legitimate given that many .com SLDs are worth far more than almost all new TLDs -- on the open market, to the public interest and by any other metric. We did have some dabbling as to closed generics despite the Board action, with L'Oreal's fashion/makeup etc. TLDs. That company essentially closed those TLDs off as I recall. Was anyone harmed, anywhere, in any way? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.law On Fri, Mar 6, 2020 at 9:16 AM Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> wrote: I think they will become more similar if there is an unlimited number of TLDs that can be operated. Regardless, I think the analogy is valid and this is the only actual relevant evidence available to us to consider since the Board punted on this issue in the first round and didn't permit closed generics, in which case we would have more direct evidence to consider. Accordingly, I reiterate my ask that those with evidence of competitive harm or other effects against the public interest resulting from generic SLDs proffer it up so that the decision of whether or not to permit closed generics in the next round, and if so , under what conditions, can be made based on more than just working group participants' commercial or philosophical interests.. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com> -----Original Message----- From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>] Sent: Friday, March 6, 2020 10:40 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Which leads us to the TLD-SLD distinction. If they were so similar as you imply we wouldn’t be here since 2016... best Jorge ________________________________ Von: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Datum: 6. März 2020 um 17:35:51 MEZ An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>, gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I understand that we are talking about closed generics, which is why I think the analogy is so apt. Every generic SLD is closed by default. Best regards, 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><mailto:trac@gtlaw.com<mailto:trac@gtlaw.com>> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>] Sent: Friday, March 6, 2020 10:17 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: AW: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc Let me also briefly respond… we are talking about closed generics… not about generics in general. I think I made my point clear on closed generic, i.e. generics restricted to a single entity, and why I feel they do not fit well with the public interest requirement… As to TLDs and their difference to SLDs: this potentially long discussion would IMO only distract us… The “.swiss” regulations on generics (which I mentioned only in a “p.s.”) is interesting inasmuch it does allow generics in the public interest, but those same public interest requirements do not allow a “closed” generic (in the SLD space). Kind regards Jorge Von: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com><mailto:trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com><mailto:trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>> Gesendet: Freitag, 6. März 2020 17:01 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Betreff: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Jorge, I would offer this quick observation. With a virtually unlimited number of TLDs available for operation, the difference between new gTLDs second level domains in existing TLDs erodes or completely disappears and ICANN becomes a TLD registrar Right now almost every conceivable generic term in every language is registered in .com, inarguably the most dominant TLD. The owner of each of these generic terms SLDs is in sole control of it and can either permit third parties to “register” third level subdomains in his/her SLD or set up as many third level subdomains on the SLD (or none) has he/she wants. Yet no one complains about this “monopolization” of generic terms in SLDs and how it is against the public interest. The .swiss limitation on registration of generic SLDs is the first I have heard of such. Is there any evidence anywhere of harm to competition or other public interests from this scenario? I have not seen it but if it exist please someone send it to me. If this is so harmful then we should ban all generic second level registrations in all TLDs that are not in the public interest. Best regards, 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><mailto: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<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Sent: Friday, March 6, 2020 5:25 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear all Please allow me to chime in on this discussion at this stage, and share some comments… In fact, the harder I think about this issue and how to equate “closed” (i.e. exclusive) registration of SLDs with “public interest”, the harder it is for me to find any possible example – as “public interest” as core of a “generic term” in the end always leads to a function that can be performed by a multiplicity of institutions or organizations and cannot be circumscribed to one single entity. I’ve seen in the materials and discussions the example of “.disaster” as one potential closed generic. But I think that this TLD would actually best work as a generic with a restrictive eligibility policy for SLDs: all entities complying with a set of objective criteria (e.g. being disaster relief organizations) should be allowed in. I cannot see any reason why such a TLD would be restricted to only one organization, even if that one is the ICRC ;P The argument that otherwise anyone could get a SLD under that TLD is IMO not precise, as, as we know, the “control” ensuring that only the right people get the SLDs can be obtained through precise, objective and non-discriminatory eligibility criteria (hence a “closed” generic is not necessary). Kind regards Jorge p.s.: under Swiss regulations for «.swiss» a generic term registration (as SLD) is subject to quite exhaustive rules, including the “non-discrimination” obligation, which excludes a “closed” approach… Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org><mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>>> Im Auftrag von Marc Trachtenberg via Gnso-newgtld-wg Gesendet: Dienstag, 3. März 2020 06:02 An: Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Betreff: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Brian, Thank you for looking into this. It gave me the opportunity to review the Board resolution again as well. While you are correct to point out that the Board resolution references serving a public interest goal, I think the Board is clear that it is doing so to address the GAC advice and not taking a position on the issue. Specifically the Board states: Resolved (2015.06.21.NG02), to address the GAC's Category 2.2 Safeguard Advice, the NGPC requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. Interestingly, the Board also notes in its rationale for the resolution that when the NGPC requested the GNSO to provide guidance on the issue of closed generics the GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not." The Board also notes in its rationale that: “The comments from the community express a diversity of views on how, and whether the NGPC should implement the GAC's advice. Some of the significant themes raised by community comments, and considered by the NGPC in taking this action, are as follows: § A Policy Development Process with respect to operating exclusive generic strings in the "public interest" should be undertaken by the community. Policy issues on "closed generic" TLDs should be resolved through the multistakeholder process. § The public interest goal requirement as stated is too general and requires greater specificity for enforceability. The NGPC should add relevant meaning to the "public interest" concept by applying the GNSO rationales regarding the promotion of competition, consumer choice, market differentiation, and geographical and service provider diversity as standards for such affirmative objective showings and findings. § Safeguards are important when applicants have chosen to apply for closed control of a generic term designating a particular industry where the applicant is engaged in the conduct of business activities in that industry. § Requiring applicants to demonstrate some additional public interest goal in the context of exclusive registry access for generic strings would reverse the deliberate choices made by the ICANN community in its bottom-up process and impose new evaluation criteria. § The status quo as set out in the Applicant Guidebook should apply so that both "open" and "closed" registry access for generic strings should continue to be allowed in this first application round, but both should be subject to significant scrutiny after launch by ICANN to ensure that the interests of rights owners and consumers are protected.” If anything is clear it is that this issue is complicated and that there are strong opinions on both sides of it. Accordingly, whatever the final decision is, I hope it is based on facts, evidence, and reason, and not reliance on whatever the person thinks the status quo is. Best regards, 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><mailto:trac@gtlaw.com<mailto:trac@gtlaw.com>> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Brian Winterfeldt [mailto:Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>] Sent: Monday, March 2, 2020 9:01 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com><mailto:trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] FW: Proposal re Closed Generics Dear Marc, Re-reading the particular Board resolution on the subject from June 21, 2015, the Board resolved “that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program” and “For the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants") … they must elect within a reasonably limited time to either: submit a change request to no longer be an exclusive generic TLD, and sign the current form of the New gTLD Registry Agreement; maintain their plan to operate an exclusive generic TLD. As a result, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs; or withdraw their application for a refund consistent with the refund schedule in the Applicant Guidebook.” See https://urldefense.com/v3/__https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YPj8A5Oc$<https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YPj8A5Oc$> <https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/re...>. I suppose, then, you are right that it would perhaps be more accurate to say that the current status quo is merely that closed generics have to date been prohibited, but could be permitted in future pending a change in rules through policy recommendations of this PDP (even though the resolution of course references serving a public interest goal). In any case, our position is still that closed generics should (continue to) be prohibited in future new gTLD rounds, unless the applicant can demonstrate that operating a generic gTLD in a closed manner would serve a public interest goal (outweighing anti-competition concerns). Best regards, Brian ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$<https://urldefense.com/v3/__https:/daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$> ]<https://urldefense.com/v3/__https:/www.winterfeldt.law/__;!!DUT_TFPxUQ!Xkyuq...> 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<mailto:brian@winterfeldt.law>> +1 202 903 4422 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Friday, February 28, 2020 1:59 PM To: Brian Winterfeldt <Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law<mailto:Brian@Winterfeldt.law>>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics 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:trac@gtlaw.com><mailto:trachtenbergm@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<mailto:gnso-newgtld-wg-bounces@icann.org><mailto:gnso-newgtld-wg-bounces@icann.org<mailto: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<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto: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/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$<https://urldefense.com/v3/__https:/daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$> ]<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<mailto:brian@winterfeldt.law>> +1 202 903 4422 ________________________________ [https://urldefense.com/v3/__https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$<https://urldefense.com/v3/__https:/daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3YNi5ULMk$> ]<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<mailto:griffin@winterfeldt.law>> +1 202 759 5836 From: Gnso-newgtld-wg [mailto: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 2:22 PM To: dorraink@amazon.com<mailto:dorraink@amazon.com><mailto:dorraink@amazon.com<mailto:dorraink@amazon.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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><mailto: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><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>>> Reply-To: "Dorrain, Kristine" <dorraink@amazon.com<mailto:dorraink@amazon.com><mailto: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><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto:becky.burr@board.icann.org<mailto:becky.burr@board.icann.org>>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto:gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$<https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$> <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><mailto: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<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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9Ga23LI$<https://urldefense.com/v3/__http:/www.twitter.com/dotairport__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9Ga23LI$> <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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Yr-mQsAo$<https://urldefense.com/v3/__http:/match.com__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Yr-mQsAo$> <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><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><mailto:alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>>; Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com><mailto:mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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><mailto: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><mailto: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><mailto:mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org><mailto: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!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$<https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!S56UmcGzyJEfOdX2Uls-BXDG8GKSscIyq7yPCSdP7CJz_9cks_vXURn8XW3Y9UbpSWc$> <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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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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