Dear Working Group members, Please see below the notes from the working sessions on 02 November at 20:00 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2020-11-02+New+gTLD+Subsequent+Pro.... Kind regards, Julie == Notes and Action Items: Action Items: a. Topic 20: Application Change Requests<https://docs.google.com/spreadsheets/d/1jS1m66MxbJRWhhQQTZBpyZnIuWm4ncpJFkiW...> Row 10 – IPC/ Row 11 – INTA/Row 12 – GBOC/Row 19 -- Brand Registry Group, Inc Re: .Brand TLD meeting criteria qualifies as .Brand TLD ACTION ITEM: Make it clear in the recommendation that changing the string to a descriptor word that is not in the trademark could qualify for Spec 13. Row 21 – ICANN Org Re: Terminology of Public Comment period; scope for changes; processing delays; other questions ACTION ITEM: Revise the term “comment period” to a term that is not associated with a public policy comment period. Re: The .Brand evaluation would need to occur during the application phase in order to allow .brands to change their strings. (a) Should ICANN just do them for the .brands that want to change their strings or (b) should there be a check box on the application to be considered to be a .brand during the actual initial evaluation? If (b), we would need to work in. ACTION ITEM: Clarify that .brands that want to change their strings will need to be evaluated. Row 21: RrSG Re: Only registries are responsible for complying with the PIC. ACTION ITEM: Move the RrSG comment to PICs. b. Topic 24: String Similarity Evaluations<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8QS...> Row 13 – RySG/Row 14 – GoDaddy Registry/ Row 15 -- GMO Brights Consulting Inc./Row 24 – ICANN Board. Re: Opposes rules relying on "intended use" ; Supports allowing singular and plural versions for .Brands only/ Opposes rules relying on "intended use" Re: Opposes rules relying on "intended use" ACTION ITEM: Leadership will put the options on singulars and plurals into questions to the WG and post on the list. Row 24 -- ICANN Board Re: Include Recommendations and IG for objective evaluation criteria to determine "different intended uses", concerns about PICs and compliance with Bylaws. ACTION ITEM: Schedule call with Board liaisons and Co-Chairs. Come back to this one. c. Topic 35: Auctions<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw3...> ACTION ITEM: Leadership sent a call for Volunteers for Small Team. Notes: 1. Updates to Statements of Interest: None provided. 2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at:https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments: a. Topic 20: Application Change Requests<https://docs.google.com/spreadsheets/d/1jS1m66MxbJRWhhQQTZBpyZnIuWm4ncpJFkiW...> Row 10 – IPC/ Row 11 – INTA/Row 12 – GBOC/Row 19 -- Brand Registry Group, Inc Re: .Brand TLD meeting criteria qualifies as .Brand TLD Leadership Comments: JJN: I believe this was the intent of the recommendation, so if WG concurs, this is just to add clarity. Discussion: -- Question: If the .brand applicant decided to change the string, it would not have to be trademark? Answer: We said it had to be a trademark and descriptive word that matched their TM registration. Question: With the descriptor it would still qualify for Spec 13, even if it’s not the trademark. -- 'Trademarked term AND a descriptor word that is not in itself necessarily part of a Trade mark
That is the proposed intention Yes @Jim
an edge case of course. -- Kinda. The term would be taken from a statement of goods or services for a registration that they do have. -- So for example, .DELTA could be given to the airline and the faucet company could change its string to .DELTAFAUCETS but not .DELTACELLPHONE. -- Well that was the agreed intent (as is clear from the rationale), the point is that this should be expressed in the recommendation (or at a minimum in the implementation guidance) any not just in the rationale, where it might be overlooked years down the line. ACTION ITEM: Make it clear in the recommendation that a changing the string to a descriptor word that is not in the trademark could qualify for Spec 13. Row 14 – Thomas Barrett (Individual) Re: Allow applicants to revise string Row 15 – Swiss Government OFCOM Re: Existing criteria too vague Leadership Comments: Already resolved. Row 16 -- dotBERLIN GmbH & Co. KG and Hamburg Top-Level-Domain GmbH Re: Don't allow applicant to revise string Leadership Comments: Noted as only comment opposing .brands being allowed to change string. Row 17 -- InfoNetworks LLC Re: Concerns about impact of application changes on GAC early warning/third party objections Leadership Comments: Noted. No need to discuss. Row 20 – ICANN Board Re: Could increase cost and complexity. Leadership Comments: Noted. Row 21 – ICANN Org Re: Terminology of Public Comment period; scope for changes; processing delays; other questions Leadership Comments: -- Change "comment period' to something that is not associated with policy public comment period ACTION ITEM: Revise the term “comment period” to a term that is not associated with a public policy comment period. -- Re: Are there certain areas of application that should not be able to be changed (eg., answers relating to CPE) -- The .Brand evaluation would need to occur during the application phase in order to allow .brands to change their strings. (a) Should ICANN just do them for the .brands that want to change their strings or (b) should there be a check box on the application to be considered to be a .brand during the actual initial evaluation? If (b), we would need to work in process. Discussion: -- It does seem that there is momentum to identify .brands up front. -- Could just identify only the ones that are in contention, but could be useful to have them all identified up front. -- Question: Are there any other exceptions or privileges for .brands beside this? -- It is clear that .brands that want to change their strings will need to be evaluated that they qualify for Spec 13. This could be figured out in the IRT. -- We could just recognize that .brands that want to change their strings will need to be evaluated. How this will be done could be in the IRT. ACTION ITEM: Clarify that .brands that want to change their strings will need to be evaluated. -- Re: .brand string change must be in same language/script as the TLD string and in Trademark Registration provided. Re: 3. Criterion (e) states that a change to an applied-for string as a result of a contention set must “[comply] with all New gTLD Program requirements.” ICANN org understands this to mean that the new applied-for string would need to pass evaluation and objection phases as did the original applied-for string. Is this a correct understanding? -- Re: #3 - yes - change to the ICANN wording? -- #4 - Understood, but this is an exception to the exact textual match and will only be used in rare occasions. This is no more complex than or controversial than TM+ 50 rule, so there is experience in applying this. b. Topic 24: String Similarity Evaluations<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8QS...> Row 10 – Dotzon/Row 11 -- PETILLION Law Firm Re: Supports allowing singular/plural Leadership Comments: Discussed previously and resolved. Row 12 -- ZHOU, LiGuo (Individual) Re: Supports allowing singular and plural versions for .Brands Leadership Comments: We covered this already. Row 13 – RySG/Row 14 – GoDaddy Registry Re: Opposes rules relying on "intended use" ; Supports allowing singular and plural versions for .Brands only/ Opposes rules relying on "intended use" Leadership Comments: Registries support plural/singular prohibition, but only exception would be for brands and Code of conduct Exemptees, not for other applications. Does not support "intended use". Does WG want to revisit? Row 15 -- GMO Brights Consulting Inc. Re: Opposes rules relying on "intended use" Leadership Comments: Opposes any exemptions from plural/singular. Discussion: -- There are also some comments that do raise concerns about the “intended use” elements. Maybe consider them too? -- Given that this was only held by one group and some members in that group, we may decide not to consider it. But it may be worth discussion as it relates to the “intended use” elements. -- We are saying that plurals/singulars should not be allowed unless the applicant can show that they have different intended uses for the strings. But some commenters noted that it is difficult to enforce on intended use and may introduce unpredictability. -- SSAC did say that they had concerns about trying to figure out intended use and it is subjective. -- The three options are: 1) no plurals or singulars; 2) no plurals/singulars except .brand; 3) no plurals/singulars except with intended us. -- What harm are we trying to avoid and which of these is best tailors to avoid that harm without unintended consequences. -- The fact that intended use has popped up as an issue in comments throughout the draft recommendations means it’s probably something we need to address. -- Exemption for .brand make sense, as per the RySG. -- It’s hard to tell what harm there is because the 2012 round singulars and plurals are held by the same entities. -- Intended use can be enforced by contract/compliance. -- Almost comes back to contention set resolution. If they have the same intended purpose and they are in the same round, then they are in the same contention set. -- They don't have to be restricted per se, they simply have to require the registrants to abide by the intent, at risk of cancellation of the domain if they don't. -- Should intended use be in the voluntary commitments section given concerns about enforcing content regulation. -- Question: What happens if one applicant wants to stick to intended use and the other applicant wants to get in contention? which route is taken? Answer: The plural will go into contention regardless of what the singular wants to do – it depends on what it is in contention with. -- We could say that only .brands are allowed to have plurals and singulars – no intended use; or we can say no plurals and singulars. ACTION ITEM: Leadership will put the options on singulars and plurals into questions to the WG and post on the list. Row 17 -- Anthony Lee (Individual) Re: Consider complicated situation for ideograph character. Leadership Comments: May need to refer this to IDN PDP? Row 18: Dotzon Re: Study whether consumers are confused. Leadership Comments: Noted. But these studies can be overly expensive and not produce useful results as they are normally on a case-by-base basis. Row 19: PETILLION Law Firm Re: Consider possibility for single applicant to apply for singular and plural of same word. Leadership Comments: New issue? Row 20: ccNSO Council Re: Develop common approach between ccTLD and gTLD practice. Leadership Comments: We discussed and disagreed because of the fact that there are a number of other elements present in gTLD evaluations not in ccTLDs. Row 21: RrSG Re: Only registries are responsible for complying with the PIC. Leadership Comments: Move to PICs. ACTION ITEM: Move the RrSG comment to PICs. Row 24: ICANN Board Re: Include Recommendations and IG for objective evaluation criteria to determine "different intended uses", concerns about PICs and compliance with Bylaws. Leadership Comments: Relates to overarching issue of whether according to the Bylaws whether they can enforce compliance on intended use. ACTION ITEM: Schedule call with Board liaisons and Co-Chairs. Come back to this one. Row 25: ALAC Re: Concerns about conflicts with strings applied for in 2012 but unresolved/not delegated. Leadership Comments: If found to be similar they should be on hold until resolved. Raise with the WG. Row 26: ICANN Org Re: Multiple Issues Leadership Comments: -- First item -- noted. -- Re: Rec 24.3 -- check with the WG on plurals of acronym; if it is not in the dictionary then it would fall outside the rule, and therefore be allowed. -- On languages - we said it was singulars and plurals in the same language. -- On inflections -- considered and not covered intentionally. -- On intended use -- discussed that. -- On PICs -- this is noted. c. Topic 35: Auctions<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw3...> -- There are very few commenters who support this as is. -- There are diverse responses from those who don’t support. ACTION ITEM: Leadership sent a call for Volunteers for Small Team: We would like to put together a small group to work on seeing if there is a way to take into consideration all of the comments to come up with a proposed solution that could address most of the comments while also keeping in mind the questions posed by the Board. We would like to give 14 days for this group to see if they can come up with improvements to the recommendations. If they can come up with a proposal, that will then be brought back to the full WG at that point in time. Volunteers on the Call: Paul McGrady, Donna Austin, Jim Prendergast. From Jeff Neuman’s email: http://mm.icann.org/pipermail/gnso-newgtld-wg/2020-November/003565.html: GENERAL OBSERVATIONS FROM COMMENTS Some observations are as follows: 1. The only complete support was voiced by a few individuals. 2. The IPC viewed the recommendations as not ideal, but could in theory accept. But that said they are not in favor of using sealed bids for brands (See Below). 3. A number of groups has no opinion, some of whom however, stated that that was because their own members had differing opinions. 1. ICANN Board Comments: * The Board encourages the PDP WG to provide a rationale why the resolution of contention sets should not be conducted in a way such that any net proceeds would benefit the global Internet community rather than other competing applicants. * If private resolution is allowed, they would like to know why we only bring some of the aspects of the private resolution into the program (i.e., some transparency requirements, intent, etc.). * Wants to know if promises/statements in support of the notion of “bona fide” intent can be changed at a later time or is it just a promise/statement that covers that specific moment and time. * Concerned about subjectively trying to determine the state of mind of applicants – Wants the WG “to provide a clear problem statement of what types of behavior or abuse the requirement of bona fide applications is meant to address; then could then use such a statement to provide objective criteria for assessing the bona fide nature of an application. * Wants us to confirm that a statement of bona fide intent is required of ALL applications as opposed to just those in auctions. – Leadership believes intent was for ALL applications. * Board provides a hypothetical of an applicant that applies for 20 TLDs, but only intends on operating 5 of them. i. Does that mean that for the 15 they don’t take that they were not made with a bona fide intent? ii. Does ICANN need to get all investors and those with controlling interests in every application to certify intent. * To SUM UP: Wants more Objectivity. 1. After those comments, the rest of the comments are all over the place. I don’t mean that in a negative way, its just that they cover the wide range of the spectrum from: * Private Resolution of Contention Sets i. NCSG does not believe that parties should be able to pay each other for withdrawing apps – Not in Favor of Private Auctions ii. Galway Strategy Group – cites Board comments and believes private auctions will cause reputational harm to ICANN. iii. Article 19 does not support private auctions iv. ALAC concerned about gaming the process through private auctions and thus does not support them. v. GoDaddy not concerned with issues raised on private auction * Mechanism of the Last Resort Auction i. BRG (Brand Registry Group), BC and IPC do not supporting sealed bids ii. BC and ALAC prefer Vickrey Auction iii. Commercial and Noncommercial entities should not be in auction with each other – GAC iv. Concerned that the only way to change or withdraw their bid is to withdraw the entire application - RySG * “Bona Fide” Intentions i. Standard too vague – Article 19 ii. Criteria provided are subjective and can be gamed (thus not predictable) – BC iii. Wants both ICANN and Evaluators to ask CQs on Bona Fide intentions – GoDaddy iv. Not sufficiently defined; neither are the punitive measures; Does not believe this addresses Board concerns - GAC v. Does not believe that bona fide intent is incredibly difficult to quantify – RySG vi. Bona Fide requirements are completely unenforceable – Galway Strategy Group vii. Too Subjective – ALAC **I have not included ICANN Org comments in this summary because in general they do not take a view on these issues, but rather ask detailed questions on implementing the bona fide intention aspect and whether this needs a specific evaluation, etc. In other words, if we continue down the ‘Bona Fide” Intention path, then we will need to address these questions (or refer them to the IRT_).