[Gnso-newgtld-wg-wt5] New gTLD Subsequent Procedures PDP: Work Track 5 Comments

[Greg Shatan]

Joe,

Thanks for weighing.  I agree with a great deal of what you say.  On your
first point, I and a number of others have addressed the rights and
concerns regarding trademark rights, the rights of businesses and
individuals who are brandowners, and the rights of consumers and other
end-users; who rely on trademarks as signifiers of origin, quality and
unique characteristics of the underlying businesses, products, goods and
services.  I’ve been consumed by other matters the last couple of weeks and
I haven’t been as active on the list as I would like, but I’ll rectify that.

I share your concerns about the idea that we could create hierarchies or
preferences that would elevate one type of legitimate rights over another,
whether it is between two applicants or between an applicant and a
non-applicant.

However, you group letters of non-objection/consent with curative rights,
and state a preference for these over preventive rights.  I would submit
that letters of non-objection/consent ARE preventive rights and must be
categorized as such. They certainly fit the criteria: they stand in the way
of an application or potential application, they require permission to be
granted before the applicant can proceed, and the failure to grant (or
decision not to grant) the consent/non-objection prevents the applicant
from moving forward.  They also grant automatic preventive powers to ALL
geonames (unless narrowed by this group), such that an applicant might have
to get dozens of letters before they can move forward.

Requiring applicants to run a gantlet of governmental bodies who have been
granted not only a right merely for existing but a remedy that is already
invoked unless they actively move out of the way is distressing,
inconsistent with larger legal principles, inconsistent with permissionless
innovation, and creates a hierarchy without basis in fact or law.

Curative rights, on the other hand, don’t have any effect until they are
invoked by a challenger, and each challenger only represents their own
interests.  When invoked, there is no presumption in favor of the
challenger. The rights of the challenger vs. the applicant are evaluated on
a case-by-case basis.

I share your preference for curative methods.  However, there’s no basis
for grouping letters of non-objection with curative rights when they
function as preventive rights.

Best regards,

Greg

On Sat, Jun 23, 2018 at 6:39 AM Annebeth Lange <annebeth.lange at norid.no>
wrote:

> Hi Joe
>
> Thanks for your thoughtful comments. As I told you when you introduced
> them during my presentation at the LacTLD workshop yesterday, I think it is
> important that all view are put on the table. I do hope that you - and as
> many as possible - will participate in the special sessions where WT5
> issues will be discussed, including the cross community workshop on
> geonames.
>
> Kindly
> Annebeth
>
>
> Annebeth B Lange
> Special Adviser International Policy
> UNINETT Norid AS
> Phone: +47 959 11 559
> Mail: annebeth.lange at norid.no
>
>
>
> 22. jun. 2018 kl. 13:12 skrev Joe Alagna <jalagna at afilias.info>:
>
> Hi All,
>
>
> Although, because of time obligations, I have not commented, I have been
> an observer of this track since the beginning and recently converted to
> member so I could make a comment.
>
>
> I would like to pose several questions and considerations.  Please accept
> my apologies if some of my comments have already been discussed since I
> have been unable to join the telephonic discussions.  I have perused the
> ongoing document you are developing within the limits of my time.
>
>
> These questions and considerations are meant in the spirit of contributing
> and stimulating discussion, not necessarily advocating a position.  The
> work you are doing is important.  Please note that these are my own
> observations and comments, not necessarily reflective of the company I work
> for:
>
> 1.      Some members are advocating to reserve city and territory names
> as rights or even as owned by the cities or territories.  I’ve always
> understood city and territory names as tools to be used by the public for
> geographic purposes. In fact, unless I missed it (I may have), the
> discussions seem to have only mildly addressed the thousands of business
> names around the world that are trademarked, that already contain
> geographic names, cities and territories.  You can look at any database
> of trademarks from any jurisdiction around the world and likely find
> hundreds of existing trademarks that contain geographic strings.  Strings
> like this are highly important as parts of business names, identifying the
> locations of service areas for example.  These include names like Swiss
> Air and American Telephone and Telegraph.  I use that second example to
> show how long-standing this tradition is.  This fact seems unacknowledged
> so far in our discussions.  I fear that we are ignoring a hundred years +
> of tradition and precedence. It may be an important exercise to see how
> many trademarks already exist in various places that contain geo-type
> strings.
>
> The history of registries suggests that they may either be public or
> private, so it seems that the principal of neutrality is important when
> considering the type of entity applying for a string.
>
> 2.      There is a theme of debate about who gets preference regarding
> geographic indicators in new strings, government entities or private
> entities.  My experience, at least in the United States is that many
> government entities do not care about their geographic names (and for that
> matter, their email addresses). They seem to be perfectly happy using what
> I would consider seriously outdated URLs and email addresses.
>
> These government entities already have the right to use a .gov (or a .edu)
> domain name and email address, a right that any private citizen or public
> company does not have.  Yet they prefer not to use them.
>
> The example I have in mind is the several thousand public schools across
> the United States who prefer to continue using long URLS and email
> addresses in the .edu or .us space.  A very typical teacher or
> administrative email address looks like this:
>
> *MyKidTeachersFirstName.LastName at LaUnifiedSchoolDistrict.k12.ca.us
> <MyKidTeachersFirstName.LastName at LaUnifiedSchoolDistrict.k12.ca.us>*
>
> They don’t seem to want to change this.  Wouldn’t it be better and more
> convenient for them to use something like:
>
> *MyKidsTeachersName at LAUnified.gov <MyKidsTeachersName at LAUnified.gov>* (or
> .edu) anything less than a fourth level domain name?  So…
>
> 3.      Should not ICANN remain completely unbiased as to who gets the
> ability to apply for specific strings related to names in the DNS?
>
>
> a.      Since many government, city, and territorial entities are not
> engaged nor involved in this process,
>
> b.      Since both private and public entities can be good or evil, and
>
> c.      Since ICANN has a charter of a bottom up, community driven,
> process, not the creation of laws or rights
>
> Why should ICANN, in any way confer a preference to either type of entity?
> In fact, some in this discussion seem to be suggesting an assumed
> “ownership” of TLD strings, a right that I think can only be conferred on a
> hyper local level by the proper legal entities, certainly not ICANN,
> therefore,
>
> 4.      Shouldn’t we be careful not to try to confer preferences or
> “rights” at all?  In fact, shouldn’t we not even try that?  It seems that
> we do not, and probably should not have that power.
>
> 5.      There has been discussion that any applicant should comply with
> local laws in areas, cities, or territories where a string name where they
> would like to do work is relevant.  *I would agree with that general
> principal* since it respects local laws, makes sense, and doesn’t try to
> rule the world.
>
> 6.      Shouldn’t we *not* assume that every government entity around the
> world cares about what we are doing here.  In fact, I am sure that most
> don’t care – at least as much as we do.  If they did care, they would be
> involved.
>
> We know that TLDs are important and we should care about and anticipate
> how geographic names affect cities and territories around the world. We
> should also care about how a country, city, or territory’s rights will
> affect any applicant in the future. But we should not show a preference in
> our policy, therefore, four suggestions:
>
> a.      A general preference for non-objection from geo-entities and
> curative solutions in policy over preventive solutions for potential
> geographic strings; not assuming preferences that more often than not,
> don't exist
>
> b.      A more conservative approach to our scope in terms of the places
> we define
>
> c.      Recognizing that our contracts are time limited – We should
> recognize that our contracts are for a specified period, at the end of
> which, a government entity may have the option of becoming engaged and
> maybe add something to the contract that specifies this rather than an
> assumption of renewal for applicants.  This would allow for worthwhile
> private investment (maybe a five or ten-year period) and allow review by
> any public entity after a period of time, to become involved if they then
> care to.
>
> d.      There should be no limits on how many applications may be filed
> on behalf of a single entity (private, corporate, or government).  If we
> do this, here also, we limit the capital involved in the process and we
> limit the chances for success of applicants and of this program in general.
>
> Finally, thank you to all of you, on all sides, for your discussion and
> participation.  I believe this discussion is an important one and I know
> the sacrifice you are making in terms of your time.  I only wish I was
> able to contribute near as much time as all of you have.  Thank you!
>
> Joe Alagna
>
> <worktrack5-alagna.pdf>
>
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