[Gnso-newgtld-wg-wt5] AGB 2.2.1.4.4 seemingly doesn't cover when just one applicant for the identical string has government support

Thu Aug 9 15:00:15 UTC 2018

A word of caution:

We use the 2012 AGB as  base for our change recommendations. And unconsciously (a treat of human nature) we kind of assume that the way the future AGB will be “used” will be probably very similar to the 2012 round.

And I agree; if we would make that assumption the we could say:

*        in 2012 city applications faced no overly large burdens for city name applicants

*        no applicant using a city-name based gTLD string referenced to the “non-geo use” provision (they all had to acquiring city government support because they indicated geo-use).

*        so there hasn’t been a SINGLE case where the “non-geo use” provision was “abused”; neither on purpose nor accidentally

I think it would be naïve and premature to assume that the 2020/2021 round would follow the same patterns. In the 2012 round those who used the new gTLD program as “investment vehicle” had the ENTIRE generic term based gTLD namespace untouched and open for application. By now all premium generic terms and most of the otherwise “good” generic terms are already taken as we know. In the 2012 round nobody really assumed that city applications would be a “hit”; that they would fetch many registrations, that they might be a “financial success”. In fact I remember when in the years 2006/2007 Dirk and me were openly laughed at, and called not very nice names for being “so stupid” to assume a city based gTLD could even “survive”. I think by 2020 a plethora of wanna-be gTLD operators will have changed their minds. There will be MANY which try to target city names. And the applicants will not necessarily anymore mostly come from within our own brethren here at “core-ICANN”; by 2020 applying for a gTLD incl. contracting with ICANN, registrar onboarding and launch will be super simple: one-stop agencies will offer to do ALL the work, you just give them the gTLD string and a one-time lump sum. And once “investors”  learn that with a little trick they can go for a bunch of cities: they will do. Here how it works (playing devil’s advocate):

*        Apply for a bunch of cities that you think “make sense”. E.g. 10 cities! Obviously SIZEABLE cities in DEVELOPED countries as only those promise potential financial success!

*        Be in contention for maybe 6 of them: offer “private contention resolution” right after ICANN announces the batch of applied for gTLD strings! Cash in a couple of hundred thousand dollars each, get your 85% application withdrawal refund, make HUGE cash in average. Maybe lose 2 applications. Doesn’t matter: you still make lots of cash.

*        Have some 4 cities just for yourself – because nobody applied for them! Yeah! Start sunrise, and sell the premium domains; then find a local media mogul: and sell the shares of the registry entity to him (every application would have of course a unique applicant entity). Help that buyer to get a late “City Government Approval” – apply at ICANN to become “a legit city name operator”.

*        In any way: It is registrars who sell domains. And registrars are not bound to the non-geo use provision! Have one “pet registrar” whom you pay a big marketing budget, let HIM do all your city related marketing. And the REGISTRANTS won’t even KNOW about the “no-geo use” provision.

I say we need to cancel the “non-geo use provision” COPLETELY. It’s a HUGE loophole that just by sheer luck and the other circumstances of the 2012 round has not been utilized for abuse.  Numerous efforts by several here to restrict the “non-geo use provision” to only smaller city entities (aka: having sizeable cities which are attractive for shady applicants protected the same way as capitals: no “non-geo use provision”) remained fruitless. So then: Just slash the “non-geo use provision” altogether. Who is in support to close the loophole?

In any way: We have only ONE more call to “agree” on the way cities are treated. We haven’t even found a real definition for “cities”.  We have a GLARING loophole that needs to stuffed. We are exposing mega entities like “Shanghai” (24 Million people; if a country 80% of all other countries would be SMALLER) to being kidnapped by people who couldn’t care less about the top-level namespace for that great city, but who just want to make big bucks.

AGB 2.2.1.4.4  seemingly doesn't cover when just one applicant for the identical string has government support:
Plus: What if the good people of Shanghai had an application that was financed and backed by city constituencies, complete with city approval; but someone else applies with the “non-geo use” provision? Per the current AGB 2.2.1.4.4 (Review Procedure for Geographic Names, look at the very end shortly before 2.2.2) if one applicant had Government support and geo-use intent, but the other has no geo-use intent; they would be STILL placed in contention. The language is a bit vague here; it just talks about “similar string” not “identical string”. Seemingly this targets cases like “.toronto” and “.torronto”! Please correct me; but there seems no solution for two identical strings where only one has Government support! Do we really want to expose them to the “normal string contention resolution” (aka: “bigger wallet wins usually”; at least that’s what happened in the 2012 round)?

There is SO MUCH to clarify around city applications, I really can’t see that we finalize all of that by early Sep. We are rushing. 

Thanks,

Alexander

From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] On Behalf Of Carlos Raul Gutierrez
Sent: Donnerstag, 9. August 2018 03:46
To: gnso-newgtld-wg-wt5 at icann.org
Subject: Re: [Gnso-newgtld-wg-wt5] WT5 Agenda, Work Plan & Consensus Call on Country & Territory Names - Please review before our call.

Dear Marita,

please think about it as a half-full glass: if .cities worked in the 2012 expansion, why not think big and try to make an analogy to other well defined geographic areas (excluding watersheds o course) :)

---

Carlos Raúl Gutiérrez

carlosraul at gutierrez.se <mailto:carlosraul at gutierrez.se> 

+506 8837 7176

Aparatado 1571-1000

COSTA RICA

El 2018-08-08 15:08, Marita Moll escribió:

I think ICANN would be dealing with a whole lot of .amazon type disputes. I thought our role was to try to avoid that.

Mariat

On 8/8/2018 2:23 PM, Javier Rua wrote:

Sure! 

"Thanks Robin! 

To continue this interesting conversation, a question (anyone can of course chip in) how could this hypothetical be solved preemptively or curatively (a posteriori): What if 1) an "Apache Helicopter Corp.", a company that incidentally has registered US trademarks for the name "Apache Helicopter", applied for a ".apache" string; 2) the US government never objected (or paid any attention) to said application, and the string was delegated, 3) yet a representative of the several federally recognized Apache Tribes, a few months later found about this and objected to this "appropriation of their cultural identity-the name of their people"?  

PS: My heart wants the Apaches to prevail... "

Javier Rúa-Jovet 

+1-787-396-6511

twitter: @javrua

skype: javier.rua1

https://www.linkedin.com/in/javrua 

On Aug 8, 2018, at 8:14 AM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> > wrote:

Javier,

Can you please refresh my (our) recollection of that fact pattern? Thanks!

Greg

On Wed, Aug 8, 2018 at 7:15 AM Javier Rua <javrua at gmail.com <mailto:javrua at gmail.com> > wrote:

Thx Greg! 

What would you say to my "Apache Helicopter" fact pattern?

Javier Rúa-Jovet 

+1-787-396-6511

twitter: @javrua

skype: javier.rua1

https://www.linkedin.com/in/javrua 

On Aug 8, 2018, at 1:33 AM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> > wrote:

Alexander,

Your anger and hurt are heard. Thanks for expressing your feelings so directly. 

Let's turn to the facts.

There's no "infringement" here. Overheated rhetoric won't make it so.  Words can have more than one meaning.  If a registry sets up a .brick TLD for use by the brick industry, it does not "infringe" on any right that Brick, New Jersey has.  There is simply no general principle that supports the idea that a "geo use" is a "better" use of a string with multiple meanings than a "non geo use."  

There are no "vultures" to be protected from.  They are no more real than Bigfoot, the Loch Ness monster or the monster under the bed when you were 6 years old.

Challenge processes (I don't want to use the "C___ R_____" term you have a knee-jerk reaction to) are a well-accepted method, in ICANN and everywhere else. Access to a form of due process does not translate to "anything goes" or "big money wins."  Quite the opposite -- it is a way to arrive at a fair result.  It may translate to "Geos don't always win" -- but that's completely appropriate.

I can't speak for NCSG or for ALAC, but in my view from an end-user perspective, a "geo use" is only one possible use of a multi-meaning string.  Many more end-users may be interested in a .coupon that is used for getting and using coupons that a .coupon that is used for Coupon, Pennsylvania.  There is no inherent preference for "geo uses."  "City constituencies" have the right to apply for appropriate gTLD strings, whether it's .Budapest or .Bucharest or .Bridgeport.  Nothing we do here will change that.  

As we move toward a series of consensus calls, it is particularly concerning to see Challenge Processes rejected out of hand and with such divisive rhetoric.  But it's better to know now if challenge processes can be part of a consensus recommendation from this group.  I would hope the answer would be "yes" But, if the answer is "no" -- as this "call to arms" suggests -- then we will have to move forward under those circumstances.  I don't think that will be helpful in reaching consensus on any recommendation, even some of the so-called "easy" ones.

Best regards,

Greg

On Tue, Aug 7, 2018 at 7:14 PM Alexander Schubert <alexander at schubert.berlin <mailto:alexander at schubert.berlin> > wrote:

"Curative Rights"? 

Geo communities won't even know that vultures and brands are infringing on their identities. Especially not once we go into continuous application mode in a few years.

GAC members should be VERY ALARMED. "Curative Rights" is a thinly veiled eulogy for "anything goes" and "big money wins". The rights of geo communities and their constituents will be TRAMPLED on.

In the 1600s and 1700s Europeans set out to stake claims in every corner of the world. Unchallenged. Their prey being vulnerable and without defense. Colonialism! It wiped out populations of ENTIRE CONTINENTS  (e.g. North America). 

What is being peddled here is just the same in the age of claiming DNS land on top level:

Venture Capital will marry Vulture Culture - together they will colonize the geo-TLD world. To make big bucks - on the back of vulnerable communities.

Europe, Asia, South America and Africa should stand up to cyber colonialism. It cannot be that "their lands" are brute-force taken AGAIN. 

Sizeable cities are as important (and their geo gTLDs as impacting for their city constituents) as small countries. I would wish we collectively mature up and recognize that truth. "Curative Rights" ain't enough. Where are ALAC or the NCSG? It would be THEIR job to defend city constituencies. Do they even know what's playing out here? 

Btw: I wish we could stop calling it "governmental support". For many that sounds like FEDERAL GOVERNMENT. Nothing could be more wrong. It's the CITY'S representatives who are tasked to provide support. They know the needs of their city best - they have been ELECTED to represent the city's constituent's interests. 

Thanks,

Alexander 

Sent from my Samsung device

-------- Original message --------
From: Robin Gross <robin at ipjustice.org <mailto:robin at ipjustice.org> > 
Date: 8/7/18 20:02 (GMT+02:00) 
To: Icann Gnso Newgtld Wg Wt5 <gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> > 
Subject: Re: [Gnso-newgtld-wg-wt5] WT5 Agenda, Work Plan & Consensus Call on Country & Territory Names - Please review before our call. 

I agree with Greg and would add that many of us would be far less resistant to the concept of "geo names" if the underlying right/privilege provided was a curative right (rather than preventative).  For some, the biggest problem we have with "geo names" is the presumption of restrictions (in this case a "veto power" to a single actor) so moving discussion towards curative rights could be a very useful way of working toward an ultimate consensus. 

Thanks,

Robin

On Aug 7, 2018, at 9:53 AM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> > wrote:

Christopher,

You can't just throw the word "politically" into the middle of an unsupported claim and expect to be persuasive (or even understood).  I don't see any reason or reasoning where would find "all geographic names" to be subject to any rules, much less preventative rules.  Quite the contrary.  Can you explain your use of "politically" and what that implies?  Where do you see politics coming into the ICANN policy-making process, and which politics are you referring to?

Curative procedures have been successfully invoked since the dawn of ICANN (and long, long before, in a multitude of settings) to allow someone to assert a claim against another party's actions on the basis of agreed-upon standards.  To write off the entire concept as "unsuitable," again without support, seems both extreme and premature.  New curative procedures were created for the 2012 round, and we could adapt those or create something different if we wanted to.  On a policy level, there's absolutely no reason for curative procedures to be "unsuitable."  Indeed, for reasons I very recently stated, they are far more suitable than preventative rights for the vast majority of terms with geographic meanings.  Helping them work appropriately is an implementation-level concern that should not impede good policy-making.

As a group trying to reach consensus, we should not put all of our eggs into the one basket of preventative measures — no matter how much some participants want us to do so.  I understand the allure of preventative processes over curative processes — you don't need to watch anything, you don't need to initiate anything, you don't need to prove anything, and you don't even need to explain anything.  It's a completely one-sided approach — which is good for one-sided, slam-dunk situations.  Conversely, they are not particularly good where there are two sides to the story.  Perhaps there is a concern that in a "curative" process over terms with geographic meanings, the "objectors" will not be able to succeed very often — that often there really is no basis for a claim.  If that is the case, it is even more critical that we identify and agree upon the bases for these claims — whether they are exercised preventatively or curatively.  We can't put (or keep) a preventative privilege in place without clear-cut reasons that this privilege exists, and clear-cut reasons that the claim must be granted preventative status.

Preventative rights are equivalent to "guilty until proven innocent," except that there's no forum for such proof — it is entirely at the discretion of the privilege-holder.  Curative rights, on the other hand, are "innocent until proven guilty," with a forum and a process for that determination to be made by an uninterested entity/person(s).  I tend to prefer "innocent until proven guilty" as a general concept.

Best regards,

Greg

On Tue, Aug 7, 2018 at 7:22 AM lists at christopherwilkinson.eu <mailto:lists at christopherwilkinson.eu>  Wilkinson <lists at christopherwilkinson.eu <mailto:lists at christopherwilkinson.eu> > wrote:

Dear Greg:

I expect that we shall find that, politically, all geographical names will be subject to preventative rules, at least in the first instance.

The existing 'curative' procedures appear to me to be quite unsuitable for global application at the level of disagregation that we are currently considering.

Regards

Christopher

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