[Gnso-newgtld-wg-wt5] WT5 Agenda, Work Plan & Consensus Call on Country & Territory Names - Please review before our call.

Alexander Schubert alexander at schubert.berlin
Mon Aug 20 21:21:28 UTC 2018


    

Dear Paul;
You suggest that a city supported applicant applies as community priority applicant - with all its restrains. 
That's not a curative right - that's a possibility for the "real" city applicant; BUT ONLY IN THE SAME GTLD APPLICATION ROUND. Also once we go into continuous mode there won't be community priority applications anymore.
And just btw: A city supported applicant is ALREADY weaker as they need to keep the city happy. When you force them to be community priority applicants - then additionally all domain registrations need to be authenticated. That makes the business plan even more complicated. A shady applicant who simply uses the non-geo use loophole (in this case it WOULD become a loophole) could EASILY outbid such a community priority city supported applicant in the last resort auction.
No: what cities need is the possibility to object after they detect an application - or much better: being looped in via letter of non-objection in the first place.
And there seems to be NOTHING a city could do right now: if anybody (e.g. brand; or somebody the city doesn't want to entrust their name space to) applies for the city name and is singular applicant: game over. Or if in contention: last resort auction.

Alexander



Sent from my Samsung device

-------- Original message --------
From: "McGrady, Paul D." <PMcGrady at winston.com> 
Date: 8/20/18  18:15  (GMT+02:00) 
To: alexander at schubert.berlin, 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. 





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Hi Alexander,
 
AGB Section 4.2.3
 
“It should be noted that a qualified community application eliminates all directly contending standard applications, regardless of how well qualified the latter may be.”
 
Best,
Paul
 
 
 


From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org>
On Behalf Of Alexander Schubert

Sent: Monday, August 20, 2018 8:04 AM

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 Paul,
 
So my question was:
   
 “…..other than outbidding traditionally financial potent brands (which usually have big marketing budgets) – how else could city constituents
 of a sizeable city defend their identity on top-level?”
 
And you kind of answered it already: There seems to be NOTHING a city can really do! I asked before, and I do again:
A brand applied for the name of a sizeable non-capital city (let’s say with a population of a Million plus people) – and the city provided support for another applicant; how
 does contention resolution work? In my opinion this would go straight to the last resort auction, right (because of the “non-geo use provision”)? There would be no possibility for the city to file “objection”. Or is there? Imagine a U.S. based 5 Million people
 city filed objection to an Italian brand over the application: Do you see ANY chance for the city to prevail, and if so. On what premises?
 
Regarding the “solution” to “pass a law”: be careful what you wish for. So you tell me that if a city of 10,000 people in India, Russia or Congo created a local ordinance that
 forbids ICANN to use their city name as gTLD: then an American  brand with the same name could not anymore apply for the string? How so? Which part of the AGB specifies the process that would enable the city to stop the application?

 
Thanks,
 
Alexander
 
 
 
 
 


From: McGrady, Paul D. [mailto:PMcGrady at winston.com]


Sent: Friday, August 17, 2018 7:59 PM

To: alexander at schubert.berlin; 'leonard obonyo via Gnso-newgtld-wg-wt5' <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.


 
Thanks Alexander.  I don’t think any brand felt attacked – the point was that by creating the false government v. brand narrative, we are ignoring the voice of those who think they
 should speak for themselves rather than seeking permission from their government first.  That is an important perspective and one that we should keep in mind.
 
To answer your specific question  “other than outbidding traditionally financial potent brands (which usually have big marketing budgets) – how else could city constituents of a
 sizeable city defend their identity on top-level?”
 
Answer:  If it is legal in their jurisdiction to pass a law prohibiting the use of a top level domain name which corresponds to their city, then pass that law.  ICANN can then decide
 how it wants to act on that law.  ICANN, however, is not a supranational legislator with the remit to pass such a law on behalf of these theoretically aggrieved cities and, even if it was in ICANN’s remit, it would be overkill since not all cities have the
 right to pass law which serves as a prior restraint on speech (for example, every single city within the US can’t do that). 

 
Best,
Paul
 
 


From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org>
On Behalf Of Alexander Schubert

Sent: Friday, August 17, 2018 9:55 AM

To: 'leonard obonyo via Gnso-newgtld-wg-wt5' <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 Paul,
 
Apologies if any brand feels attacked.




To keep this more general: There are natural geo-communities with millions of individuals and a wide array of community relevant stakeholders and constituents (among them Government operated ones). They have interests and these need to be protected. That function
 is by definition delegated to their (city or national) Governments. 



The main question is:
If non-geo use applications are equal in rights to for example city designated applications; doesn’t that in the current AGB mean that “big bucks” win (because
 it ends up in the last resort auction)? With “vultures” I do not address “brands” – but applicants that try shady tricks. Smth we haven’t really see in 2012 – but which we know exist in the .com space; and these entities will try to do their “dark magic” in
 the top level space as well. 



So the question at hand: other than outbidding traditionally financial potent brands (which usually have big marketing budgets) – how else could city constituents of a sizeable city defend their identity on top-level? If we keep the non-geo use clause in place
 even for sizeable cities; what else can safe city populations and their constituents? In your opinion: would a community objection against a brand application work? How would YOU counter argue?  Would you simply rest your case?



Brands vs. city seems to me heavily stacked towards the “brand”. Hence the request to protect “sizeable cities” as well as country subdivisions (3166 Alpha-2). Brands would keep their non-geo use for most of the city names. And the few really large cities that
 enjoy the protection likely wouldn’t collide with any brand. If so: in my book a Million people community tops a brand. A question of “culture”. And that’s what the PDP actually is all about: defining a culture how applications are treated.

 
Thanks,
 
Alexander
 
 
 


From: McGrady, Paul D. [mailto:PMcGrady at winston.com]


Sent: Freitag, 17. August 2018 16:56

To: alexander at schubert.berlin; 'leonard obonyo via Gnso-newgtld-wg-wt5' <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.


 
Thanks Alexander.  There are a lot of heated words in this post – “attack”, “pollute”, “enemy”, “shame”, “vulture”,etc.  I wonder if you might try again and distill the arguments
 you are trying to make down to their essence.  I’m afraid whatever point you are trying to make is getting lost in the rhetoric.  I’d truly like to understand.  Also, if you are willing, is it possible to dispense with the false dichotomy of governments and
 brand owners?  There are lots of non-brand owners who value speech free from governmental control and their voice needs to be heard here as well; otherwise, we are just having 2/3rds of the conversation we need to have.
 
Best,
Paul
 
 
 


From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org>
On Behalf Of Alexander Schubert

Sent: Friday, August 17, 2018 7:10 AM

To: 'leonard obonyo via Gnso-newgtld-wg-wt5' <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 WT,
 
Mike and Farzaneh have a point when they claim “Governments don’t OWN any of these codes”. And I concur with them: Governments do not “own” these codes. These
 codes identify a “national subdivision” (IS0 3166-Alpha-2) or a “country”; hence they are identifiers. Not “owned” by nobody – like the air or the water isn’t “owned” by anybody. Yet we still strive to PROTECT the air and the water, right? So it is clean and
 everybody can use it – and not one big company can pollute it just to make more money.



And that is probably Kavouss’ narrative (a very valuable one!): 

That these codes and names (ISO 3166 Alpha-2 & 3 and the country names) are important and of utter relevance for the people of the respective countries and subdivisions; and can’t simply be “taken” by some brand.
 
Seemingly some in this group see “Governments” as kleptomaniac entities that try to pry as much “public land” out of this gTLD application process as possible.
 But try to look at this from another perspective:



People are organized in hyper large “tribes” – the largest organizational entities probably being their countries, but also states and cities (hence we are protecting exactly these three silos right now). When I lived in Germany I felt first and foremost as
 “Berliner”. As opposed to for example to “Bavarian” (who are the natural “enemy” of Berliners). I also felt being German of course. And European. Berlin, Germany and Europe are extremely important identifiers for me and my identity. These three geo-entities
 obviously need to be governed by the people, for the people. By a Government of the people. And usually in Europe that’s how things are set up (sadly outside of Europe sometimes minorities dictate the majority what to do – but that’s another issue).



I expect from the Berlin Government (the capital of Germany, a German State and on the 3166-2 country subdivision list), from the German Government and from the European Commission to make sure that the important identifiers “.berlin”, “.de”, “.deutschland”,
 “.germany”, “.eu” and “.europe” are safeguarded from abuse or exclusive use by some “brand”! That the respective authorities make sure that these strings are readily available for ME as citizen and business owner (not for the Governments) to aid me in creating
 domain names that help identifying my tribe(s). 



I EXPECT that Governments “protect” these strings – ON BEHALF OF ME and all of the other citizens. This is all about the needs of THE PEOPLE, Governments are merely identifying such needs, and aid in protecting them.



And the Governments are delivering! They do guard these identifiers – and I shall be thankful for it. Hence it bewilders me when “brand owners” are attempting to shame my elected representatives for protecting MY identifiers. By attacking the “Governments”
 – in reality you attack the citizens these Governments have been elected by – and who they are govern.

 
But I do agree that we ought to reign in the SCOPE of identifiers; and the degree of protection. By completely BANNING all country names and 3166 Alpha-3 codes
 – even if the relevant Government would happily support such application – we at ICANN overprotect. It is then not anymore Governments who stop applications – it is ICANN that does. ICANN denies Governments to allow entities to apply. And does that even make
 sense? Give Governments some authority – don’t decide ON THEIR BEHALF.



Which leads me to the one item we still haven’t solved:

What about contention between a SIZEABLE geo-entity (with a LOT of citizens that want to use such string as identifier) and a generic term based application or a brand, or a small geo entity. Examples:
·       
A city constituent funded and owned .shanghai (24 Million people city) application vs. a brand “SHANGHAI” that claims “non-geo use”?


o  
Right now this would go into normal contention resolution; aka: either the city constituents raise a lot of money to buy the brand out; or they go into
 last resort auction and like the brand can easily outbid them.
·       
A Dallas, TX (7 Million people metro) city constituent funded and owned .dallas application vs. a “pseudo city application” for the city of Texas, Georgia,
 USA (a real U.S.  city, even if small). Say their Major has been “bribed” in some way into signing a letter of support! Such application wouldn’t come from the tiny city itself – likely some “vulture” would use a loophole here!

o  
As per the current contention set rules as TWO DIFFERENT entities provided Government support BOTH applications would be put on hold – if there was
 no contention resolution BOTH applicants would get their application fees reimbursed. So there is zero risk for the “vulture” – they can lean back and wait for the offers for a “buy out” rolling in! These applications would NOT be subjected to the last resort
 auction! A LOOPHOLE!
 
City names in contention is a conglomerate of glaring loopholes. Brands and vultures can declare “non-geo use” – and outbid the city constituents! A city community
 owned and funded application is always financially “weak” – as they have to make all kinds of concessions to the city usually. The worst case is somebody coercing a small city major into signing a letter of support – and forcing the applicants for a large
 city to buy them out. If such applicant is lucky, nobody applied for the large city – and he has a city designated gTLD – and would be allowed to MARKET it as city TLD! GREAT. The citizens of the large city are wholly unprotected from exploitation. If both
 cities are in ONE country – maybe national law can help. But if they are in different countries?



We need to better protect the larger city-populations (people who live in sizable cities). We create all kinds of protections for 3-lettercodes or country subdivisions – but we do not protect these very large geo-communities very good. Why? Inconsistent. It
 is OK that we have the “non-geo use provision in place for small cities”. But SIZEABLE cities need a protection equal to country subdivisions (elimination of non-geo use). Even  if we were to define “sizable” at a real high number. Million people cities mean:
 at least a million people that identify with the name! At least a million people who are robbed of their possibility to use city-based gTLD domains. A city robbed of their possibility to conduct city destination marketing, eGovernment and similar things under
 one nice identifier (usually cities reserve strings for official use, such as 911.city, townhall.city, visit.city, etc).



Question: If a “brand” (whatever the definition is – probably a simple TM registration for US $250 does the trick) claims a string; and is in contention with a sizeable city:

If we keep the “non-geo use” loophole alive; what can the citizens of such city do? Does the current AGB provide for a successful path in “objection” (so called “curative rights”)? Or wouldn’t the brand simply declare that they have “TM rights” – thus the objection
 would be unsubstantiated? Lawyers here: Would a city objection against a brand application have ANY chance of success? Please be honest! I know you are fiercely defending your position – but I also know that you are honest: how would you defend a brand against
 such objection? Would you simply cave in?



We have soon the “consensus call” on city applications – but I don’t see that we have a clear understanding of the implications of contentions. Yes: in the 2012 round there were no problems. But then only a small percentage of brands claimed their strings,
 and only a few cities (of which many were capitals) did so. The next wave will contain more brands and less capitals but WAY more cities – plus “tricksters” will try to make a buck: We need to pay more attention.





Thanks,
 
Alexander
 
 
 
 
 


From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org]
On Behalf Of Arasteh

Sent: Freitag, 17. August 2018 08:35

To: Mike Rodenbaugh <mike at rodenbaugh.com>

Cc: Edmon <edmon at dot.asia>; leonard obonyo via Gnso-newgtld-wg-wt5 <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 All

Yes they are valuable for those countries too


There should be a fair treatment of these TLDs but not over warehousing for merely commercial and brand purposes


Alexander’s suggestion may be a middle ground solution 


Regards


Kavouss .


 

Sent from my iPhone




On 17 Aug 2018, at 03:08, Mike Rodenbaugh <mike at rodenbaugh.com> wrote:




That over 600 very valuable 2- and 3-letter combos that could be TLDs, and yet are reserved for no legitimate reason.  Countries certainly don't own LL codes that don't correspond to current countries.  And they also don't "own" the 3-letter
 codes that do show up on an ISO list, merely because they are on that list.  

 


It seems to me that many in this group are reopening the discussion as to all other 'geo' terms, and so these valuable names need to be thrown back into the mix as well.


 










Mike Rodenbaugh


RODENBAUGH LAW


tel/fax:  +1.415.738.8087


http://rodenbaugh.com 




 

On Thu, Aug 9, 2018 at 8:22 PM, Nick Wenban-Smith <Nick.Wenban-Smith at nominet.uk> wrote:



Hi Mike
 
Just to take the point here, the LL (all combinations 26 x 26 = 676 in total, of which approaching half are already in use as ccTLDs) plus the ISO 3166 alpha
 3 LLL combinations which correspond to existing country and territory names (less than 300 of the 17,500 odd LLL combinations) can’t in any reasonable context be framed as ‘a large subset … reserved for no reasons whatsoever’.
 
Up until now there seems to be a strong consensus for the long and short form country and territory names plus all the LL combinations and LLL combinations which
 correspond to ISO 3166 to continue to be excluded from any gTLD processes – for the reasons expressed on many threads up to this point about sovereignty over national assets and whether these could fall under domestic internet community policies (subsidiarity)
 or ICANN GNSO policies. 
 
If we can’t settle on that as for the 2012 AGB round then there will be a substantial opposition to any new gTLDs whatsoever so let’s not go there.
 
I’ve said my piece on geo names falling below the hierarchy of capital cities; I think those are fair game for legit non geo uses.
 
Best wishes
Nick
 
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org>
On Behalf Of Mike Rodenbaugh

Sent: 10 August 2018 03:35

To: Edmon <edmon at dot.asia>

Cc: leonard obonyo via Gnso-newgtld-wg-wt5 <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.
 

Note the first sentence in the RFC that Alexander cites:  "This memo provides information for the Internet community. This memo
   does not specify an Internet standard of any kind."

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