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

Smith, Bill bill.smith at paypal-inc.com
Thu May 23 23:10:18 UTC 2013 

+1

On May 23, 2013, at 4:35 PM, Andy Abrams <abrams at google.com<mailto:abrams at google.com>> wrote:

Dear All,

Thanks to all who have worked on these comments.  For disclosure purposes, we no longer have strings that are the subject of GAC advice on exclusive generics, but we still believe in the principle that such registries are not inherently problematic and can improve the gTLD program by allowing for innovative business models.

My vote would be to go back to Steve's original language, which strikes a balance between the BC's existing non-position on this issue and respecting the GAC's advice by asking the Board to consider the meaning of "public interest."  However, if enough members feel strongly about giving some substantive guidance to the Board on this interpretation (and some clearly do), I would not be opposed to adding our varied viewpoints in the document.  I appreciate that Sarah, J.Scott and Laura have already given their written input, and would be interested in others' opinions on the specific conditions where exclusive generics should be allowed.  For our part, we respectfully believe that the GAC envisions at least some subset of exclusive generics being permitted, as otherwise, requiring a registry to open up to all competitors in the industry would no longer render the registry "exclusive."

Best,

Andy


On Thu, May 23, 2013 at 1:20 PM, <icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>> wrote:
All of my clients, and my law firm, have business interests much  broader than the domain industry.

Who are these people expressing grave concerns?  Because I am only hearing competitors to so-called closed generic TLD applicants expressing concerns (including indirectly through their ICANN-connected government reps), with no evidence or any real specifics as to the parade of horribles they seem to envision.  And certainly no counter-argument to the points I am raising.  Do you or anyone else have any substantive response to any of those points?

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

From: jscottevans at yahoo.com<mailto:jscottevans at yahoo.com> [mailto:jscottevans at yahoo.com<mailto:jscottevans at yahoo.com>]
Sent: Thursday, May 23, 2013 1:10 PM
To: icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>; lhc at yahoo-inc.com<mailto:lhc at yahoo-inc.com>; svg at stephanevangelder.com<mailto:svg at stephanevangelder.com>; sarah.b.deutsch at verizon.com<mailto:sarah.b.deutsch at verizon.com>
Cc: Elisa.Cooper at markmonitor.com<mailto:Elisa.Cooper at markmonitor.com>; sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.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


Mike:

We appreciate your pov. However, there are many of us in this constituency that have business interests broader than the domain industry. In my discussions with these non-ICANNers, they have voiced grave concerns and want assurances similar to those put forward by Sarah and Laura in the latest draft. Do others gave perspective here?


Sent from Yahoo! Mail for iPhone


________________________________
From: icann at rodenbaugh.com<mailto:icann at rodenbaugh.com> <icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>>;
To: 'Laura Covington' <lhc at yahoo-inc.com<mailto:lhc at yahoo-inc.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>>;
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs
Sent: Thu, May 23, 2013 7:21:46 PM

We went through exercise of trying to define categories like this, in 2006.  Then in the Vertical Integration WG.  Then again recently in the IPC.  It can’t be done, as far as I know.

The GAC didn’t bother to provide a definition either.  Making any response problematic as we don’t really know what we are responding to.

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

From: Laura Covington [mailto:lhc at yahoo-inc.com]
Sent: Thursday, May 23, 2013 12:05 PM
To: mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>; 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

Hey, Mike,
I'm totally open to considering other definitions/terminology for "closed generics" if you have ideas to propose.

As to the separate issue of responding to the GAC's advice, participants on the call the other day seemed interested in including – or at least considering - language on closed generics rather than being silent.  It seems clear – and understandable - what your point of view is.  Anybody else?

Laura


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

From: "icann at rodenbaugh.com" <icann at rodenbaugh.com>
Organization: Rodenbaugh Law
Reply-To: "mike at rodenbaugh.com" <mike at rodenbaugh.com>
Date: Thursday, May 23, 2013 11:13 AM
To: "Yahoo! Inc." <lhc at yahoo-inc.com>, "svg at stephanevangelder.com" <svg at stephanevangelder.com>, "'Deutsch, Sarah B'" <sarah.b.deutsch at verizon.com>
Cc: 'Elisa Cooper' <Elisa.Cooper at markmonitor.com>, 'Steve DelBianco' <sdelbianco at netchoice.org>, "bc-gnso at icann.org" <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<http://Weather.com> to operate .weather that way?

Mike Rodenbaugh
RODENBAUGH LAW
Tel/Fax: +1.415.738.8087
http://rodenbaugh.com<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; Deutsch, Sarah B
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

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
408.349.5187

From: Mike Rodenbaugh <icann at rodenbaugh.com>
Reply-To: Mike Rodenbaugh <icann at rodenbaugh.com>
Date: Thursday, May 23, 2013 10:42 AM
To: "Yahoo! Inc." <lhc at yahoo-inc.com>, "svg at stephanevangelder.com" <svg at stephanevangelder.com>, "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com>
Cc: Elisa Cooper <Elisa.Cooper at markmonitor.com>, Steve DelBianco <sdelbianco at netchoice.org>, "bc-gnso at icann.org" <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>
To: "svg at stephanevangelder.com" <svg at stephanevangelder.com>; "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com>
Cc: Elisa Cooper <Elisa.Cooper at markmonitor.com>; Steve DelBianco <sdelbianco at netchoice.org>; "bc-gnso at icann.org" <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
408.349.5187

From: "svg at stephanevangelder.com" <svg at stephanevangelder.com>
Date: Thursday, May 23, 2013 12:49 AM
To: "Deutsch, Sarah B" <sarah.b.deutsch at verizon.com>
Cc: Elisa Cooper <Elisa.Cooper at markmonitor.com>, Steve DelBianco <sdelbianco at netchoice.org>, "bc-gnso at icann.org" <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> 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] On Behalf Of Elisa Cooper
Sent: Monday, May 20, 2013 3:34 PM
To: Steve DelBianco
Cc: 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] On Behalf Of Deutsch, Sarah B
Sent: Monday, May 20, 2013 12:29 PM
To: Steve DelBianco; 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] On Behalf Of Steve DelBianco
Sent: Wednesday, May 15, 2013 4:40 PM
To: 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>







--
Andy Abrams | Trademark Counsel
Google | 1600 Amphitheatre Parkway, Mountain View, CA 94043
(650) 669-8752<https://www.google.com/voice#phones>

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