[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 Sub Team Meeting 14 September

Thu Sep 14 06:26:05 UTC 2017

Dear Work Track members,

Please find below the action items and discussion notes from the call on 14 September.  These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/9hkhB.

Best,

Steve

--------------------------------------------------------------------------

Action Items and Discussion Notes: 14 September 2017

2. SOI Updates

-- None

-- Next plenary call on the 25 September. Note sent by Jeff re: replacement for Avri as she moves to the ICANN Board. Nominations needed by end of the next call. Description and suggested qualifications for co-chair versus vice-chair provided.

3. CC2 Comments: Closed Generics

Slide 2 (Intro)

-- Will discuss closed generics on 21 Sept meeting as well.

Slide 4 (Recap)

-- Recap of where we are now

-- Requested to be discussed by NGPC. Unless consensus received to change, status quo remains.

-- Support: business model innovation, consumer choice, free expression, avoids ICANN regulating business models, competition, word classification

-- Against: harms competition, favors industry players, hunders free expression for potentional registrants

-- There is no clear definition of who we are trying to protect (end-users, registrants, registrars, etc.)

-- If path forward for some closed generics, circumstances will need to be defined while addressing public interest concerns

Slide 5

-- Text of question

Slide 6 (CC2 2.4.1)

-- Hard to define generic. Change policy should prevent switching to open later (Jannik Skou)

-- Too hard to define generics and ICANN should not be deciding what is a generic string (INTA)

Slide 7 (CC2 2.4.1)

-- Should not be blanket rule preventing, partly b/c difficult to define. Certain closed "generics" could be problematic and could be guarded against by objections measures (BC)

-- Should be lifted to allow innovation (Afilias)

Slide 8 (CC2 2.4.1)

-- Unrestricted process migh allow for more utility. A more structured model could enhance security (Google)

-- Objection measures provide adequate protections. Not a security or stability concern. Solidying the classic use case of selling domain names (RySG)

-- Jim: Lots of cases of GAC concentrating on content and use (referencing Afilias comment). Maybe difficult to adhere to. Jeff: At least reducing focus on content and use could be helpful.

Justine Chew: Do we know if Jannik Skou represents any stakeholder group? Is his (potentially) the only comment from a non-commercial group? Jeff: Some in the non-commercial support lifting (e.g., Milton Mueller) Avri: NC community split on issue.

Emily Barabas: Jannik Skou SOI: https://community.icann.org/display/gnsosoi/Jannik+Skou+SOI[community.icann.org]

Slide 9 (CC2 2.4.1) Support restricting closed generics

-- Exclusive use should serve a public interest (GAC). Jeff: could be construed as allowing exclusive use if there is a public interest goal. Direct outreach to GAC might be needed.

-- "True" generics should not be restricted for exclusive use. These words would not be accepted as a brand and received TM protection. Jeff: generic words can be trademarked if not used in their generic sense (e.g., apple). 

Heather Forrest: International law requires that jurisdictions protect signs 9including generic terms) that have acquired distinctiveness. 

-- Looking for triangular relationship. Connect term to a trader and to a good or service. Applicable to words that have more than one meeting. International law requires that this be recognized. Jeff: in TM law, context matters.

Justine Chew: Yes, TM protection also based on classes of goods/service.

Trang Nguyen: Implementation of GAC Category 2 Advice (exclusive access) can be viewed at: https://newgtlds.icann.org/en/applicants/advisories/gac-cat2-advice-19mar14-en[newgtlds.icann.org]

Trang Nguyen: There were 12 applicants that stated that it was their intent to operate exclusive access registries. ICANN asked those applicants to provide a response for how the proposed exclusive registry access serves a public interest goal.

-- Jeff: applicants were allowed to provide response. Were any accepted? 

ACTION ITEM (Trang): will research to determine how many decided to stay exclusive and how many were allowed.

Slide 10

-- Process was messy and open to improvement. Ban on closed generics should be maintained (Jim). Question of fairness of process for last round and going forward. There were those in 2012 round that had to withdraw or change their business plans. Need this backward looking component as future applicants could be advantaged. 

  -- Jeff: Fairness argument is strong. If that could be addressed, is there an argument against closed generics otherwise? 

  -- Avri: Not in scope to make decisions made in the past. If it's determined that rules should be changed, there is history of those changes being applied to the old. Focus should be on fair decisions going forward. Jeff: policy based on lessons learned. if, say starting from scratch, the WG would do it a certain way, but could acknowledge problems of fairness or other challenges.

  -- Impacts consumer choice and consumer confusion (ALAC)

ACTION ITEM: get context of ALAC comment.

-- Supports ban on closed generics for the foreseeable future (Nominet)

Slide 11 (2.4.2) 

-- Text of question

-- Michael: Is the current standard to restrict? Jeff: NGPC stated that exclusion was for the 2012 round, but did not specify about the future. There might not be a status quo in this case. Best case would be to get to a recommendation, but in absence of that, status quo could include policy and the way things were implemented.

ACTION ITEM: Keep as an discussion topic if consensus recommendations are unachievable.

Slide 12

-- If closed generics are retained, definition makes sense (NORID, RySG, ALAC)

Slide 13

-- Not necessary to define if restriction lifted. (BC, Afilias, RySG)

Slide 14

-- Restriction against closed generics should be maintained but exception to rule against closed generics.Some may qualify for Spec 9, but not Spec 13. 

-- Collisions, UA, TMs, service marks (John Poole)

Slide 15

-- Brands are not "generic terms" or geo names. "True" generics should not be allowed to be closed (NORID)

Trang Nguyen: Of the 12 that initially indicated they will operate as exclusive registries, 7 withdrew, 1 obtained a Spec 13 (FOOD), the remaining 4 signed the RA, which includes Spec 11. Spec 11 has a provision that says: "Registry Operator of a “Generic String” TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person’s or entity’s “Affiliates” (as defined in Section 2.9(c) of the Registry Agreement). “Generic String” means 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, organizations or things from those of others."

Trang Nguyen: The 4 are .GROCERY, .DVR, .DATA, .PHONE

ACTION ITEM: Examine how these 4 TLDs are being used.

Slide 16

-- Questions for discussion on next call.

-- Re: question 2. Spec 13 requires adherence to element of Spec 11. Is there a contradiction? Will review Spec 13 and 11 on the next call.

>From the chat:

Michelle DeSmyter: Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 Legal/Regulatory Issues call on Thursday, 14 September 2017 at 03:00 UTC for 60 minutes.

Michelle DeSmyter: Agenda wiki page: https://community.icann.org/x/9hkhB[community.icann.org]

Jeff Neuman: Will we get to 15 participants?

Michael Flemming: I'm only logged in on my phone so that must be an imposter me

clo: sorry I am on my mobile phone we have lost landline phone lines it seems

Michael Flemming: closed generics

Michael Flemming: not registrant protection 

Justine Chew: Do we know if Jannik Skou represents any stakeholder group? Is his (potentially) the only comment from a non-commercial group?

Kristina Rosette (Amazon Registry): https://www.linkedin.com/in/jannikskou[linkedin.com]/

Emily Barabas: Jannik Skou SOI: https://community.icann.org/display/gnsosoi/Jannik+Skou+SOI[community.icann.org]

Justine Chew: Right, thanks. Then his is not a "community" comment. 

Justine Chew: @Jeff, yes that's what I wanted to get at. Thanks.

Justine Chew: @Avri, thanks for the clarification.

Heather Forrest: Norway

Jim Prendergast: I agree we need to ask the GAC to clarify. I don't think anyone wants to try and interpret what the GAC says

Heather Forrest: International law requires that jurisdictions protect signs 9including generic terms) that have acquired distinctiveness.

Justine Chew: Yes, TM protection also based on classes of goods/service.

Michael Flemming: yes distinctiveness

Trang Nguyen: Implementation of GAC Category 2 Advice (exclusive access) can be viewed at: https://newgtlds.icann.org/en/applicants/advisories/gac-cat2-advice-19mar14-en[newgtlds.icann.org]

Heather Forrest: Yes - context is a significant part of consumer recognition

Trang Nguyen: There were 12 applicants that stated that it was their intent to operate exclusive access registries. ICANN asked those applicants to provide a response for how the proposed exclusive registry access serves a public interest goal.

Trang Nguyen: I can't recall how many of the 12 ultimately decided to stay exclusive access. Let me do some checking.

Justine Chew: Fine balance between "changing goal-posts" and "moving forward with the times".

Kristina Rosette (Amazon Registry): did everyone else just lose audio or just me?

Michelle DeSmyter: Jeff, we are not able to hear you

Justine Chew: Lost audio

Jim Prendergast: hung up instead of unmuting 

Jim Prendergast: dialing back 

Jeff Neuman: Thanks Jim.  Let us know when you are back in

Michael Flemming 2: Our decisions can allow for paths that back track to 2012 applicants 

Cheryl Langdon-Orr (CLO): no audio in

Cheryl Langdon-Orr (CLO): sorry Aug winds playing havock....  

Cheryl Langdon-Orr (CLO): Hard to hear

Michael Flemming 2: Thanks Jeff, gotta drop

Trang Nguyen: Of the 12 that initially indicated they will operate as exclusive registries, 7 withdrew, 1 obtained a Spec 13 (FOOD), the remaining 5 signed the RA, which includes Spec 11. Spec 11 has a provision that says: "Registry Operator of a “Generic String” TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person’s or entity’s “Affiliates” (as defined in Section 2.9(c) of the Registry Agreement). “Generic String” means 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, organizations or things from those of others."

Trang Nguyen: sorry about that copy/paste

Trang Nguyen: Of the 12 that initially indicated they will operate as exclusive registries, 7 withdrew, 1 obtained a Spec 13 (FOOD), the remaining 5 signed the RA, which includes Spec 11. Spec 11 has a provision that says: "Registry Operator of a “Generic String” TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person’s or entity’s “Affiliates” (as defined in Section 2.9(c) of the Registry Agreement). “Generic String” means 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, organizations or things from those of others."

Trang Nguyen: Sorry, that should say remaining "4"

Trang Nguyen: The 4 are .GROCERY, .DVR, .DATA, .PHONE

Justine Chew: @Trang, thanks, useful info.

Emily Barabas: Full comment from NORID is available here: https://docs.google.com/spreadsheets/d/1tcWZt1bdoYH7vJl2Yi9G0jah7QzyhqU99tXnl3qV0rc/edit#gid=1963024039[docs.google.com]

Trang Nguyen: Safeway's GROCERY was withdrawn. The one that was delegated is from Wal-Mart.

Heather Forrest: None, thank you Jeff

Kristina Rosette (Amazon Registry): Good night.

Justine Chew: Thanks!

avri doria: bye

Steven Chan

Policy Director, GNSO Support

ICANN

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

steve.chan at icann.org

mobile: +1.310.339.4410

office tel: +1.310.301.5800

office fax: +1.310.823.8649

Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages.

Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO

Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/

http://gnso.icann.org/en/

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2/attachments/20170914/bacb5deb/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: smime.p7s
Type: application/pkcs7-signature
Size: 2018 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2/attachments/20170914/bacb5deb/smime-0001.p7s>