[Gnso-newgtld-wg-wt2] Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 - 01 February 2018

Thu Feb 1 16:15:47 UTC 2018

Dear Work Track members,

Please find below the action items and discussion notes from today’s call.  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 recording.

Please see the attached slides and excerpts from the chat room below.

Best,

Julie

Julie Hedlund, Policy Director

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Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 – 01 February 2017 

1. SOI Updates: None.

2. Closed Generics

Slide 3: Closed Generics -- Recap

-- Discussed what a Closed Generic is and currently defined in the RAA.

-- Why we are talking about this.

-- Exceptions to Closed Generic Rule (Spec 13, strict criteria for registering a domain in an open TLD).

-- Analyzed pros and cons.

Slide 4 -- Closed Generics -- Recap, continued

-- Addressed key aspects that contribute to possible paths forward.

-- Found it difficult to address potential harms or merits without documented evidence.

-- Found that if a Closed Generic could be considered in the public interest then it may be beneficial to allow for this to occur.

-- Discussed the possiblity of allowing for a Closed Generic if we could allow for objections to an application or if we could keep the applicant in check.

Slide 5: Closed Generics -- Path Forward -- Possible paths forward at this point. The extremes and in betweens.
Bring policy up to date with the existing Registry Agreement that Closed Generics should not be allowed.
Allow Closed Generics but require that applicants clearly demonstrate the Closed Generic serving a public interest in the application. This would require the applicant to reveal details about the goals of the registry. Establish an objections process for Closed Generics that is modelled on community objections.
Allow Closed Generics but require the applicant to commit to a code of conduct. This would not require the applicant to reveal details about the goals of the registry but commit to annual self-audits that fall in line with the code of conduct in regards to Closed Generics. Establish an objections process for Closed Generics that is modelled on community objections.
Allow Closed Generics with no regulation but establish an objections process for Closed Generics that is modelled on community objections.

Discussion:

-- If there is more than one applicant proposing a closed generic in the public interest then ICANN would have to determine who is the better applicant (proposal #2).

-- Suggestion to combine #2 and #3.

-- Taken competition off the table -- figured that ICANN doesn't want to decide what is competition, meaning we have not come to agreement on the harms or the merits.  If we could find a way for a Closed Generic in the public interest then we could find a way to allow it.

-- Distinguish between classes of cases.  A non-community TLD can have registration eligibility restrictions.  .BANK as an example -- not a closed generic in the sense that names are available to third parties, but there are stringent eligibility criteria.

-- Restricted TLDs are not closed; a closed TLD is utilized only by the operator and its affiliates.  Need to stick to our category and avoid scope creep/leap.  Discuss really closed generics as our only remit.  Try to settle in between #2 and #3.

-- #2 -- require an applicant to reveal details about the goals of the registry.  How can we phrase this to satisfied the need to offer details in the application so a third party can judge whether they need to file an objection.

-- Question 18: Mission and purpose of the TDL -- could that be used for the details?

-- There are passionate arguments on multiple sides of this issue and we have no consensus on a common path forward: We should put out possible options on which we would like comments from the community.  Show how we have considered all the options.  Goal for the initial report is to show that we have thought about all of the models without expressing a view so the public can provide feedback or new models/combinations.  Make sure we cover all of the scenarios.

-- Suggestion for #3 -- create 3a and 3b: would require the applicant to reveal details about the goals of the registry.  Notice of intent and #2 and #3.  A no-objection.  Some kind of clear and substantive form -- missing a suggestion of the proof of notice to the community of competitors.  Not ICANN's job.  The registry is in the best position to provide the notice to their competitors.  To #2 and #3 - clear disclosure of intent and proof of notification to competitors around the world to allow them to raise their concerns. 

Kristina Rosette (Amazon Registry): @Julie:  I object to that proposed change.

-- Question 18 did an adequate job.  Object to a particular category of applicant having to give notice.  Concerns about how to implement it and expectations.

-- Might be more productive to set out all the options separately, but ask in the Public Comment.

-- Another option is the PICDRP.  If we have the objection we will have a dispute resolution procedure.

>From the chat:

Alan Greenberg: Does 2 imply a panel to judge whether the proposal is indeed in the PI?

christine farley: Have you considered an additional option that combines the requirements of #2 & #3?

Jim Prendergast: not a comment speciifc to the possible paths forward but a larger one.  My sense is if the broader community knew that this WT was charged with responding to to the NGPC on closed generics (among the many other topics we are working on as part of the PDP), we'd have a lot more participation.  A lot more

Jim Prendergast: Do we have any indication that the GAC objection to closed Generics has changed or softened?

Michael Flemming: I do not believe we do

Michael Flemming: Greg, I believe it wasn't .redcross but a different term. I can't recall at the current time what Jeff's example was.

Greg Shatan: Restricted registries are not closed registries. End of discussion?

Steve Chan: For reference, here is the Beijing communique: http://www.icann.org/en/news/correspondence/gac-to-board-18apr13-en.pdf

christine farley: Seems like there might be another option in Kathy's last comments. That is, allow closed generics only where the "generic" term does not describe applicant's goods or services. 

Steve Chan: In short, the GAC Communique states: "For strings representing generic terms, exclusive registry access should serve a public interest goal."

Greg Shatan: Christine, I think at that point it is not a “generic” at all.

Greg Shatan: Also, I believe that would not fall into the current definition of a “closed generic.”

Kristina Rosette (Amazon Registry): I think we're skipping the threshold question:  Does anyone on the call believe that Q18 was insufficient and, if so, why and how should it be changed?

Michael Flemming: Thats a good question Kristina

Kathy Kleiman: +1 Christine - which seems to build on Greg's .BEAUTY example. How can they show it is not going to be a Closed Garden? 

Michael Flemming: It is, but can be considered in line with this.

Kristina Rosette (Amazon Registry): @Alexander: It seems to me that, if the opposition to closed generics is on competition grounds, then it seems likely that the potential objectors would be competitors.  I must be misunderstanding your question.

Jim Prendergast: on Q18 - (and20) I do think the arbitrary character limits placed upon those responses may have hurt applicants ability to fully describe their intentions/applications but no to the substance of the question

Jeff Neuman: All we are trying to do now is list the potential options and put those out for public comment.  Talking about the merits of these possible paths is fine, but lets make sure all of the options are listed to go out for comment

christine farley: Greg, correct me if I'm wrong, but I thought the definition of a closed generic is that the term is a generic term and the registry is closed. Your point goes to what is a generic term. Is it generic in a lay sense, i.e., a dictionary term, or is it generic under trademark law, i.e. is it a term that functionally describes the applicant's business. 

Steve Chan: To Jeff's point, it might be useful to see if the number of options can be reduced?

Kristina Rosette (Amazon Registry): @Julie:  I object to that proposed change.

Julie Hedlund: @Kristina: Captured, thanks.

Alexander Schubert: Instead of a formal "objection" we should rather have a public comment period!

Julie Hedlund: Also, noted as a suggestion.

Kristina Rosette (Amazon Registry): So, if the applicant isn't in the industry, it doesn't have any competitors, right?

Kathy Kleiman: Great, tx Jeff.

Kathy Kleiman: Can you give an example, Kristina?

Kristina Rosette (Amazon Registry): I don't have one.  The discussion has been focused on the applicant's competitors in the industry.  it logically follows that if the applicant isn't currently a participant in whatever the industry is, it can't have any competitors.

Kathy Kleiman: To #2 and #3 - clear disclosure of intent and proof of notification to competitors around the world to alow them to raise their concerns.

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