[bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Deutsch, Sarah B sarah.b.deutsch at verizon.com
Thu May 23 20:32:31 UTC 2013


I'm not sure how you're defining all the various categories of your clients (niche, exclusive, restricted etc.), but perhaps include those 3 categories or just exclude anyone who is applying for a .brand or an open gTLD.   Since replying to your questions below requires delving into concerns about specific closed gTLDs, members would benefit from knowing which ones you are representing.  Full disclosure should be required regardless since BC members wear different hats and everyone would benefit from greater transparency when discussing contentious topics on the list.

From: Mike Rodenbaugh [mailto:mike at rodenbaugh.com] On Behalf Of icann at rodenbaugh.com
Sent: Thursday, May 23, 2013 4:21 PM
To: Deutsch, Sarah B; 'Laura Covington'; svg at stephanevangelder.com
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso at icann.org
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

I don't know how you define 'closed generic'.  All of my clients intending to operate single registrant TLDs have relevant trademark registrations.  I also don't see how your question is relevant to this discussion.

Mike Rodenbaugh
RODENBAUGH LAW
Tel/Fax: +1.415.738.8087
http://rodenbaugh.com

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Deutsch, Sarah B
Sent: Thursday, May 23, 2013 12:40 PM
To: mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>; 'Laura Covington'; svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Can you tell us which clients are you representing for which closed generics?

From: Mike Rodenbaugh [mailto:mike at rodenbaugh.com] On Behalf Of icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>
Sent: Thursday, May 23, 2013 3:22 PM
To: Deutsch, Sarah B; 'Laura Covington'; svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

I represent various TLD applicants for all types of models -- brand, niche, restricted, single-registrant, open.  I advocate on behalf of the principles involved, namely that closed TLD business models are inherently no different (or at least no more likely harmful) than sole ownership of second-level domain names.  Moreover such models were always discussed, accepted and even encouraged throughout the 6-year PDP... right up until it was revealed that Google and Amazon had applied for 175 of them combined.

You do not cite any evidence of any potential harm.  Nor did the GAC, which merely tracked the "public interest" language already in the AGB Spec 9.  Nor did Australia, which is but one government which cited no evidence or anything remotely "specific" as to potential harm.  Nor have I seen any evidence from anyone who has objected to any so-called closed generic application.  They complain because their competitor would control the string, but this is much like their competitor (or they themselves, or someone else) controls the relevant .com, .net, .org and important ccTLD domains in their industry today.

As for the five factors you cite, I have questions and comments:


1)      address antitrust and other anti-competition concerns; --  Are you aware of any evidence of likely harm, or of harm caused by second-level generic domain registrations?  How could an applicant address these concerns to your satisfaction?  How is this within ICANN's remit?



2)      minimize the risk of potential consumer confusion for users, who may not realize that the information, products or services promoted is provided via a closed or restricted registry; -- Why is this a concern?  Why would any consumers care about this?  Has there been such confusion or concern in .museum, .aero, .travel, .jobs?  Or with respect to generic second level names?



3)      appropriately and fairly define the class of potential second level domain name registrants; -- Single registrant models mean there is one registrant.



4)      prevent onerous and potentially anticompetitive registration fees; -- Inapplicable in single registrant models.



5)      explore any necessary security and operational safeguards to minimize fraud, abuse and consumer complaints. -  These concerns are already explored in response to Q28 and 29 and in other areas of the TLD application, with requirements contained in the Registry Agreement.  Also it seems inherently unlikely to have such problems in a single registrant model since the registrant is legally responsible for all activity within the TLD.



Mike Rodenbaugh
RODENBAUGH LAW
Tel/Fax: +1.415.738.8087
http://rodenbaugh.com

From: Deutsch, Sarah B [mailto:sarah.b.deutsch at verizon.com]
Sent: Thursday, May 23, 2013 11:46 AM
To: mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>; 'Laura Covington'; svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs


In the interests of transparency and to avoid any actual or perceived conflicts of interest, I'd ask everyone who has or will comment on this string to disclose whether you are applying for or representing applicants for closed generics and which closed generics you are advocating on behalf of.

To address the assertion that closed generics are somehow necessarily better than open gTLDs, my position is that both have their risks and problems.  We certainly don't like many of the open applications, which we believe will become havens for cybersquatting, fraud and abuse.  But, as evidenced by the GAC language, Australia's specific red flags, and the many industry objections filed at ICANN and at the ICC, closed generics can carry their own risk of potential abuses.  We wrote up what we think it means for responsible closed spaces to operate in the "public interest" and this included the following:


1)      address antitrust and other anti-competition concerns; (2) minimize the risk of potential consumer confusion for users, who may not realize that the information, products or services promoted is provided via a closed or restricted registry; (3) appropriately and fairly define the class of potential second level domain name registrants; (4) prevent onerous and potentially anticompetitive registration fees; and (5) explore any necessary security and operational safeguards to minimize fraud, abuse and consumer complaints.



Sarah

From: Mike Rodenbaugh [mailto:mike at rodenbaugh.com] On Behalf Of icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>
Sent: Thursday, May 23, 2013 2:13 PM
To: 'Laura Covington'; svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>; Deutsch, Sarah B
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

It seems that every dictionary word is a 'pre-existing trademark' at least insofar as it is registered as such somewhere (e.g. Benelux, in advance of the EU land rush).  My examples are all registered at the USPTO.  Any of those registrations could be purchased or even be previously registered by any so-called 'closed generic' TLD applicant.

Why is it legitimate for Apple to operate .apple to the exclusion of everyone else in the world that may have a legitimate use for a .apple domain name?  (Maybe better examples are other new TLD applicants Abbott, Active, AFamilyCompany, Amazon, AmericanFamily...  and the list goes on past Apple....)  Yet it would not be legitimate for Weather.com to operate .weather that way?

Mike Rodenbaugh
RODENBAUGH LAW
Tel/Fax: +1.415.738.8087
http://rodenbaugh.com

From: Laura Covington [mailto:lhc at yahoo-inc.com]
Sent: Thursday, May 23, 2013 10:54 AM
To: Mike Rodenbaugh; svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>; Deutsch, Sarah B
Cc: Elisa Cooper; Steve DelBianco; bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Sticking with the definition piece first, doesn't second bullet cover your question?  Pre-existing trademark?



Laura Covington
VP, Intellectual Property Policy
Yahoo! Inc.
lhc at yahoo-inc.com<mailto:lhc at yahoo-inc.com>
408.349.5187

From: Mike Rodenbaugh <icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>>
Reply-To: Mike Rodenbaugh <icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>>
Date: Thursday, May 23, 2013 10:42 AM
To: "Yahoo! Inc." <lhc at yahoo-inc.com<mailto:lhc at yahoo-inc.com>>, "svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>" <svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>>, "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com<mailto:sarah.b.deutsch at verizon.com>>
Cc: Elisa Cooper <Elisa.Cooper at markmonitor.com<mailto:Elisa.Cooper at markmonitor.com>>, Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>, "bc-gnso at icann.org<mailto:bc-gnso at icann.org>" <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Hi Laura,

Then what about all the trademarks that exist for 'generic words'.  Not just Apple, but also Sex, Drugs and even Rock 'n Roll (all registered at the USPTO)?

Beyond that, what about the broader notion that closed generic business models are more in the public interest than open copycat business models?  The BC is on record with the position that restricted registries are preferred over open registries, because abuse and consumer harm are far less likely.

Best,
Mike

________________________________
From: Laura Covington <lhc at yahoo-inc.com<mailto:lhc at yahoo-inc.com>>
To: "svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>" <svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>>; "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com<mailto:sarah.b.deutsch at verizon.com>>
Cc: Elisa Cooper <Elisa.Cooper at markmonitor.com<mailto:Elisa.Cooper at markmonitor.com>>; Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>; "bc-gnso at icann.org<mailto:bc-gnso at icann.org>" <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Sent: Thursday, May 23, 2013 10:23 AM
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

I don't know of any official definition of a closed generic TLD, but perhaps a starting place would be to say that it is a TLD that:


 *   Consists of a generic term/phrase which
 *   Is not intended to represent a pre-existing trademark, and
 *   The registry operator does not intend to sell/grant/give second level domains to the (general?) public

Laura Covington
VP, Intellectual Property Policy
Yahoo! Inc.
lhc at yahoo-inc.com<mailto:lhc at yahoo-inc.com>
408.349.5187

From: "svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>" <svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>>
Date: Thursday, May 23, 2013 12:49 AM
To: "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com<mailto:sarah.b.deutsch at verizon.com>>
Cc: Elisa Cooper <Elisa.Cooper at markmonitor.com<mailto:Elisa.Cooper at markmonitor.com>>, Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>, "bc-gnso at icann.org<mailto:bc-gnso at icann.org>" <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Thanks Sarah, J. Scott and Laura for this work.

I am wondering if there is a clear definition of what constitutes a closed generic TLD somewhere?

Failing that, what is to stop the criteria suggested in this text being imposed on, say, a brand that has a term resembling a generic term as its brand name and that would understandably like to operate it for its own exclusive use?

Thanks,

Stéphane Van Gelder
Chairman and Managing Director/Fondateur
STEPHANE VAN GELDER CONSULTING

T (UK): +44 (0)7583 457053
T (FR): +33 (0)6 20 40 55 89
Skype: SVANGELDER
www.StephaneVanGelder.com<http://www.stephanevangelder.com/>
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Le 22 mai 2013 à 22:58, "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com<mailto:sarah.b.deutsch at verizon.com>> a écrit :

All,

To follow up on our BC call this morning,  we discussed why the existing draft asking ICANN to develop a non-specific public policy exemption in the Registry Code of Conduct for closed generics was not a good idea.  Steve had encouraged me, J. Scott Evans and Laura Covington from Yahoo to put pen to paper and propose specific ideas (building on the Australia's earlier GAC recommendations on closed generics) rather than for the BC to remain silent on this issue.

Our proposed language is attached for Members' consideration.


Sarah



Sarah B. Deutsch
Vice President & Deputy General Counsel
Verizon Communications
Phone: 703-351-3044
Fax: 703-351-3670


From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org<mailto:bc-gnso at icann.org>] On Behalf Of Elisa Cooper
Sent: Monday, May 20, 2013 3:34 PM
To: Steve DelBianco
Cc: bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Steve,

Thank you so much for all of your work on this.

Please find attached my edits to Sarah's draft.

As previously stated, I will recuse myself from comments related to Closed Generics. That said, I am concerned that the proposed comments in this draft may be at odds with our earlier position:http://www.bizconst.org/Positions-Statements/BC%20Comment%20on%20Closed%20Generic%20TLDs.pdf.

Thank you again.

Best,
Elisa

Elisa Cooper
Director of Product Marketing
MarkMonitor

Elisa Cooper
Chair
ICANN Business Constituency

208 389-5779 PH

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Deutsch, Sarah B
Sent: Monday, May 20, 2013 12:29 PM
To: Steve DelBianco; bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

Steve, All,

Thanks for your work on this draft. My comments are attached.   One big issue I would flag for members is the paragraph dealing with closed generics.   Various BC members have grave concerns about certain closed generics and formal objections have been filed.  The focus on applying for an exemption in the Final Guidebook does not fix these fundamental concerns for the reasons outlined in the attached.

I'd suggest that the BC either (a) refrain from taking a position on the closed generic issue altogether or (b) support the GAC's concerns about closed generics and the need to show that an award of an exclusive right in a generic term is in the larger public interest.

Sarah

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Wednesday, May 15, 2013 4:40 PM
To: bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: [bc-gnso] FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

ICANN's new gTLD Board Committee has requested public comment on how it should address GAC advice to establish safeguards for categories of new gTLDs. (link<http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm>)

The BC has have held 3 conference calls on this topic (see minutes and transcripts on the BC Wiki<https://community.icann.org/display/gnsobc/Home>).  Several BC members provided input, including text from Ron Andruff, Marilyn Cade, and Andrew Mack.

Comment period closes 4-Jun.   That allows our regular 14-day review and approval period.  So, please REPLY ALL with your suggested edits and comments regarding this draft, before 29-May-2013.

Steve DelBianco
Vice chair for policy coordination
Business Constituency



<BC Comment on GAC Advice for new gTLDs DRAFT v1sd2 (2).docx>


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