[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 SubTeam Meeting 30 March

Thu Mar 30 22:07:31 UTC 2017

Dear Sub Team Members,

Please see below the action items and discussion notes captured by staff from the meeting on 30 March.  These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording.   See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. 

Please also see the attached slides and PDF referenced below.  Excerpts from the chat room are included below for ease of reference.

Best regards,

Julie

Julie Hedlund, Policy Director

Action Items/Discussion Notes 30 March

1. Recap for ICANN58

-- Focused on polishing questions for CC2.

-- Added new questions.

-- CC2 published and out for public comment.

-- No comments that would result in a new focus.

2.  Closed Generics

Recap of what was discussed:

Closed Generics -- Background Information (slide 4)

-- "Closed Generic" is referred to in the community as a "TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit.

What's in writing? (slide 5)

-- No reference in the AGB.

-- Registry Agreement has Spec. 11.3.d. "defined as a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services groups, organizationor things from things of others."

Exceptions to the RA that allow for "Exclusive Use" (slide 6)

-- Granted to Code of Conduct.

-- Registry qualifies as a "Brand TLD" as defined in Sepc 13 as a string where...

Closed Generics --- Pros and Cons (slide 8)

-- From the public comment forum on closed generics.

-- Find if there is or not potential harm in allowing closed generics as well as any other notable findings from the public comments.

Summary of public comments available here: https://www.icann.org/en/system/files/files/report-comments-closed-generic-08jul13-en.pdf

Pros: Allow Closed Generics (reading from the PDF)

-- There definitely seems to be a different definition of a user depending if you are in favor or against.  Those in favor of not having them define the user as the registrant -- the registrant's right to register those names.  Those who favor having Closed Generics look at the user as the end user who goes to the web site, as opposed to the registrant.  We need to be definitive on competition -- is it registrants or end users?

-- When we look at the end user it could be described as the customer of the registry offering closed generics. End users are the individuals looking at the web site in a closed generic TLD.

-- At the time the Closed Generics came into play the applications were already submitted for operating Closed Generics.  Example was .search.  There were a number of complaints saying the Google and other companies should not be able to take a generic name and use it for their own purposes internally as that would harm consumers.  A lot of people who filed comments said that ICANN shouldn't change the requirements midway.

-- On the consumer argument: If you look at one of the cons says [third on the PDF list] "closed generics favor large industry players..."  You are talking about big registrars, but people will want to buy produces at the second level web site.

-- Is ICANN supposed to protect registrants as users or the end users as users (those who use the web site)?  Not sure that ICANN made that determination.

-- Part of ICANN's mission is to act in the public interest and it is public interest to limit closed generics because it limits consumer choice.  Is it ICANN's public interest to protect registrant's rights to register a name or to get new and innovative content supplied by the registry who is also the registrant.

-- The term "public interest" can be confusing in a general context and especially the ICANN content.  If we start to look at what types of content people can put online we have stepped out of bounds.  But it seems that this is what ICANN did in this case.  The public interest weighed in favor of registrants being able to register a generic string, rather than a registries innovative model operated for end users.

-- Take a step back and not assume the ICANN got it right.  If we believe ICANN shouldn't be involved in that kind of regulation wouldn't that overturn what ICANN did and allow Closed Generics.

-- Also seems to apply to reguirements for monitoring abuse -- Spec 11.b.  Applies in safeguards and the definition can change depending on the topic.

-- Need kind of common definition -- registrant or consumers/end users.

Cons: Restrict Closed Generics (reading from PDF):

-- The rule was that if you are a generic ICANN covers its tracks -- it still has the right if it determines your string is generic (Spec 11.3.d.)  Don't think it was meant to be on a case-by-case basis, but that ICANN wanted a rule.

-- There is a problem in the implementation itself because it is not being implemented for certain strings -- registration policies for some strings.

>From the chat:

Jeff Neuman: So in theory, although a closed generic may harm a registrant's ability to get a domain name in that TLD, but at the end of the day, the use of the TLD in a closed generic may actually be more beneficial for the end user (the closed TLD's customer)

Steve Coates: I don't understand this one.

Phil Buckingham: Jeff , I am confused !   These are CLOSED  generics - so the end users are not customers - there is no arms length transaction.  

Steve Coates: Who the domain owner is, if it's a closed generic.

Emily Barabas: Steve -- I will see if I can find the original comment that this came from.  If ICANN regulates the right of domain name registrants to operate closed generics, ICANNwould actually limit free expression by imposing collective obligations and top-down regulations on domain owners. NCSG Members (4 Mar. 2013); M. Rodenbaugh (6 Mar. 2013)

Gg Levine (NABP): Wouldn't a closed generic be operated as a .brand?

Steve Coates: If registrants are barred from a closed generic, then I don't see how the collective obligations/top down regulations come into play.  That seems much clearer to me, Jeff.  Perhaps "domain owners" then should be "TLD applicants." 

Samantha Demetriou: It seems to me that if ICANN wades into making decisions on behalf of a "consumer" in this context it gets into content regulation, which is outside its remit

Phil Buckingham: There fore there is  a direct relationship between the top level ( the owner )  and the end user .  Therefore  the owner (can )  CONTROLS  who their end users  are.  Surely this  is anti competitive , limit consumer choice.

Karen Day: @Phil - how is it anti competitive? You aren't limiting who can offer similar services?  Just like with a trademark,  to companies can offer identical services, but can't use the same name.  Why can't 1 compnay have a TLD and not another?

Steve Coates: What does the CCT say about public interest?  Anyone?

Jeff Neuman: They have not addressed this topic.

Kurt Pritz: @ Jeff - The rules were set out in advance - "closed generics" were allowed

Gg Levine (NABP): Don't the safeguards, which the board requires, address the interests of end users?

Steve Coates: I'd love to see some metrics on this for Round 1.  How many traditional domain industry insiders filed for closed generics, versus new players to the industry.

Jeff Neuman: I would think industry insiders applied for open generic TLDs because that was the model they were used to and that is how they make money (selling registrations).  I cant think of any industry insider that applied for a closed generic.

Steve Coates: Do we have a list of closed generics?

Jeff Neuman: @Steve - you mean the list of those that initially applied as closed generics, because there are no closed generics now.

Kurt Pritz: Two comments: (1) Isn’t the world’s largest book seller operating .book the wet dream of the new gTLD program? We would have already seen innovation, not to mention the attention it would have brought to the new gTLD program (which is sorely lacking in public recognition); why should that be stifled? (2) at the end of the day, these are just domain names. What is the difference between .book and book.com? Everything is temporary. One party might have control for a while but resources always flow to the parties that value them most highly. 

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