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

Marita Moll mmoll at ca.inter.net
Tue Jun 26 13:46:58 UTC 2018


Hi Greg. I object to your painting all the positions you disagree with 
as positions held by Alexander.  That's not just misleading, it's false. 
The positions you disagree are supported by quite a few people. Throwing 
them all into one box labeled "Alexander says" (you used the name at 
least 10 times) is a way of discrediting ideas by pinning them on a 
single individual. It is a well known technique in political discourse 
when you are trying to discredit someone.

Let's not do that here.

Marita


On 6/25/2018 7:30 PM, Greg Shatan wrote:
> Joe,
>
> I want to clarify some areas where Alexander's characterizations of 
> the group's work to date don't appear correct.  In particular:
>
>   * We have *not* spent our time discussing practically nothing else
>     than trademark-related issues specifically.  We *have* spent a
>     great deal of time discussing a more general topic -- are
>     place-name meanings somehow superior to ALL other meanings?  This
>     includes trademark meanings, surnames, nouns that are not proper
>     nouns (BAR, SPA, ROCK), communities (aside from the community of
>     the place(s) with that name.  Casting this as a trademark
>     discussion misses the point entirely.
>
>   * It is not an accepted concept that the 2012 AGB is the starting
>     point of our work (vs. the policy recommendations that preceded
>     it; after all, this is a "policy development process."  It is
>     *certainly *not a base in the sense of a "floor" changes to the
>     2012 AGB could go in any direction – and in many cases, there's no
>     agreement on whether any particular change would be an "improvement."
>
> ·Alexander says the 2012 AGB protected "very few geo names."  ISO 
> 3166-2 protected nearly 6,000 names.  Capital cities protected roughly 
> 250 names.  The UNESCO regions and subregions (ignored by Alexander) 
> add another 35 names (only 2 of which are registered TLDs, contrary to 
> Alexander's email).  That's a "protect list" of roughly*6,285* names.  
> I would not call that "very few."
>
> Each of these was blocked unless the relevant governmental authorities 
> granted a letter of consent/non-objection (at their sole 
> discretion).  Alexander claims "And so far nobody has really much 
> challenged these rules." *_Nothing could be further from the truth._*  
>  There have been repeated challenges to continued blocking based on 
> the ISO-3166-2 list.  To the extent capital cities have not been 
> challenged, I believe that has been based on the hopeful idea of 
> compromise to reach consensus.  Subregion names have not really been 
> discussed one way or the other.
>
> Of course, non-capital cities are also protected -- this adds 
> *4,400-50,000* more places, yielding a total between approximately 
> *11,000* names and more than *56,000* names.  That certainly cannot be 
> "very few."
>
> All of these issues are still open items.  So, it's incorrect to say 
> that "The ONLY remaining 2012 AGB geo-name category was “city names.”" 
> There has been a tendency by some to try and close discussions with 
> premature declarations of victory (somehow it never works the other 
> way...).  This should be seen in that context.
>
> This really has nothing to do with free speech rights of citizens -- 
> if they want a second level domain, they can get one.  If their city 
> wants a TLD, they can get one.  This is about blocking names from use 
> and giving one or more governments the power to decide what speech 
> will be allowed.  This is the opposite of free speech.
>
> The idea of giving reservation/blocking rights to governments based 
> on "potentially hundreds of thousands qualifying “city names”" seems 
> like a terrible blow to free speech, a form of "prior restraint" on 
> speech, which is particularly disfavored.  Of course, nothing 
> will stop any city from getting a TLD related to their name now, or in 
> the future (even if their first choice is not available).
>
> Since this isn't really about "free speech rights for cities" at all, 
> I'll skip responding to those items, except to note that the so-called 
> "free speech" here is a peculiar invention: the ability of 
> citizens "to express themselves through a domain name based on their 
> city name."  Since the TLD will not exist because of this rule, the 
> ability to use such a domain name doesn't exist.
>
> Similarly, hypotheticals that are full of false assumptions and one 
> sided presumptions intended to paint a David vs. Goliath picture don't 
> need further response, since they do not illustrate any general 
> principle.  (As for the good people of Tel Aviv, they would likely 
> prefer "Tel Aviv" in Hebrew.)But it is good to know that Alexander 
> thinks the 2012 rules are "horrible."
>
> Alexander dismisses the whole complex issue of "intent" based on a 
> false premise -- that because the registrars will sell the domain 
> names, that the registry's intent regarding the domain name doesn't 
> matter.  First, this obviously ignores .brands, who will not be 
> selling domain names at all. Second, there are many cases where TLDs 
> are restricted as to the type and scope of use by registrants -- not 
> least, many .cityname TLDs!
>
> Whether brands have rights (which of course they do) is really not an 
> issue here.  Brands are not looking to exercise any rights here to 
> stop other applications, nor have brands asserted superior privileges 
> over other legitimate applicants. Again, I won't pick through all of 
> the baseless assumptions and pejorative terms used to cobble together 
> an argument....   But I will say the idea that this is a "culture war" 
> doesn't hold water (and certainly is not how this has been framed 
> generally, if you are looking to catch up on the work of the group.
>
> As for the proposed "compromise" -- it's no compromise at all, since 
> it starts with a false premise -- that this is a "free speech" 
> question for "citizens."  The idea that the has been "broad support" 
> for the "solution" proposed is similarly incorrect.  This is certainly 
> the solution Alexander has repeatedly brought up, but there is no 
> basis to say there is broad support for it (though there is some 
> support).  Getting rid of intent limitations without getting rid of 
> blocking privileges is no compromise at all.
>
> Once again, this proposal is supported by inaccurate and unsupported 
> statements.
>
> Close to zero burden? Applicants would have a higher burden than 
> before -- the requirement to bargain for the blessing of a government 
> even where their intended use is not associated with that place.
>
> The assumption that a brand that shares a name with a big city 
> "deliberately chose it" to "profit from the image" of the city and 
> that it's living off of it or "piggybacking' on it is phrased 
> pejoratively, but not in any way proven.  Building on this concept, we 
> get into invented concepts without any basis in law or facts: that 
> there are "certain obligations" a brand has to a city it shares a name 
> with; that the brand is some sort of “co-brand"; that the “real brand” 
> is the city brand.  These are incredibly fact specific assumptions, 
> and even if the facts are as stated, that creates no obligations or 
> privileges.  Furthermore this ignores the issue of generics and other 
> applicants with other issues. I guess there's no pejorative fable to 
> tell about these applicants...
>
> The so-called  "current WT5 suggestion" is being "floated" largely by 
> Alexander.  In reality, it's a lead balloon and NOT workable.  I would 
> "float" a different "WT5 suggestion" as a compromise:
>
>   * The status quo did not work and it is not fine.  (Perhaps it
>     worked well for the public authorities; there are numerous
>     applicants that had nightmare scenarios (e.g., TATA)
>   * Continue the "intent" limitation in the category “city” and apply
>     the same limitation to subnational regions. (This is a big
>     compromise, since it would really be much more appropriate to deal
>     with these issues on an objection or "after-the-fact" basis)
>
> That is my "reach across the aisle" on this point. I am also 
> passionate about the rights of people and public benefit  -- but 
> "geo-uses" does not have a monopoly on either point.
>
> As for looking at "geo-names not previously protected" -- I think it 
> would be far more fruitful to start looking at "after-the-fact" 
> solutions for public authorities that feel they actually have been 
> harmed rather than continuing to try to use blocking privileges as a 
> solution.
>
>
> Greg
>
>
>
> On Mon, Jun 25, 2018 at 4:05 AM, Alexander Schubert 
> <alexander at schubert.berlin <mailto:alexander at schubert.berlin>> wrote:
>
>     Dear Joe,
>
>     thanks for your contribution! You are stating that you haven’t
>     been actively involved in the past but observed. Have you read all
>     emails and been in all calls? I am asking because you also state:
>
>     */“……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….”/*
>
>     Well: For MONTH on end we did practically nothing else than
>     discussing precisely that topic. In endless email exchanges
>     (probably a thousand) and phone conferences. This topic has been
>     THE priority so far. Let me summarize from my view:
>
>     ·We work off the 2012 AGB as a base – and try to identify areas of
>     improvement
>
>     ·In the 2012 AGB very few geo names have been protected, namely:
>
>     oUnesco regions (irrelevant as all are assigned as gTLD but “.europe”)
>
>     oISO 3166 Alpha-2 national sub regions (which is why .tata wasn’t
>     granted to the Indian TATA and why .bar needed an OK from the
>     region BAR in ME - https://en.wikipedia.org/wiki/ISO_3166-2:ME
>     <https://en.wikipedia.org/wiki/ISO_3166-2:ME>)
>
>     oCapital cities
>
>     ·All of the above require a letter if non-objection by the
>     responsible Government authority – independent whether or not the
>     applicant claims geo-use intent or not! And so far nobody has
>     really much challenged these rules.
>
>     ·The ONLY remaining 2012 AGB geo-name category was “city names” –
>     with “city” not really very precisely defined. In the 2012 AGB
>     applicants for strings identical to a city name needed Government
>     approval (letter if non-objection). The only exception was a
>     declaration of “non-geo name use”. That could be a brand, a
>     generic term, or some “.xyz”-like fun theme: “.heyyou” - which
>     might be an industrial center in China (I made that up).
>
>     There are now two main concerns (those of brands vs.  those who
>     want to protect the free expression rights of city populations):
>
>     ·There are potentially hundreds of thousands qualifying “city
>     names” – and there is (as you mentioned) a sizeable overlap with
>     so called “brands and generic terms!
>
>     ·In the same time the citizens of sizeable and or important cities
>     should have their free speech rights preserved: that is being able
>     to express themselves through a domain name based on their city
>     name – just like in the future most if not all big metropolises
>     will offer that possibility!
>
>     ·So if somebody would apply for “.telaviv” (officially Jerusalem
>     is the capital of Israel) – but claim “non-geo use” (which might
>     be a ruse) – then according to the 2012 AGB they would be assigned
>     the TLD if there was no competition – OR they could drive up the
>     public auction price in a bidding war against a potential city
>     based non-profit that represents the city’s constituents but has
>     no VC cash! Or worse: a financially strong BRAND could simply
>     outbid the city based application and hijack the TLD! I am quite
>     sure that the good people of Tel Aviv would be very unhappy – and
>     I wonder how you would defend the horrible 2012 AGB rules to them?
>
>     ·Plus: It doesn’t really matters what the registry “intents” – the
>     registry is not offering domain names to the public, nor is it the
>     registrant. It is the registrars who will offer it is a city gTLD
>     – and it is registrants who will use it for that purpose – and
>     there won’t be any obligation by ICANN to prevent such use!
>
>     ·Some here claim that “brands” have “rights” – while citizens of
>     cities have none. Others claim that this constitutes a travesty –
>     as most city name based brands are BASED on the connotation with
>     the city – and ICANN’s mission is to foster PUBLIC BENEFIT (as in
>     helping citizens executing their right of free expression) and NOT
>     helping “brands” to squat on city resources! What is more
>     important: the “right” of a small brand – or the rights of
>     hundreds of thousands of citizens in a city?
>
>     ·The entire thing is a question of “culture” – and like in any
>     OTHER culture war both sides are very divided and each is
>     steadfast convinced to have possession of endless wisdom (me
>     included).
>
>     ·As this is not an “election” where a “majority” decides what the
>     future culture shall be (essentially picking a “winner” – and
>     creating a big pool of “losers”)  – we will need to find an
>     agreeable compromise!
>
>     ·The compromise needs to:
>
>     oProtect as many citizens in as many cities as possible from
>     losing their right of free expression by using city name based
>     domains!
>
>     oBut to not overprotect that category – because it would put too
>     many burdens on brands and generic term based applicants!
>
>     ·I am lobbying for a certain workable solution – and it seems
>     there has been broad support for it:
>
>     oIn order to prevent citizens from losing their free speech and
>     free expression rights permanently we do strike the “non-geo use”
>     clause without replacement! (Don’t get a cardiac arrest – read on).
>
>     oSo if somebody applies for “.telaviv” and claims it would be a
>     new social network like TWITTER or a “.xyz” clone – they would
>     need to get the city’s approval first – to PROTECT the citizens
>     free speech and free expression rights which are very important!
>
>     oTo reduce this new burden there should be a “cutoff” implemented:
>     only if the city meets a certain requirement (e.g. in population
>     size) the “non-geo use” would be replaced. In other words: if a
>     tiny city of no special relevance has a name identical to a
>     generic term – applicants for such generic term do NOT have to
>     approach the city government IF there is no intent for geo use!
>     (The Government of such smaller city will STILL have to be
>     approached if the gTLD is intended to serve the city).
>
>     oSuch cutoff could be a population size – the exact measures would
>     have to be determined! Numbers between 100,000 and 500,000 have
>     been floated, and/or percentages of country size! Once we agree on
>     the cutoff rule; the exact measures could be defined later! First
>     qualifying, then quantifying!
>
>     ·The outcome would be that brands and generic term based
>     applications have close to zero extra burden to carry; while in
>     the same time the free speech rights and rights of expression for
>     hundreds of Millions of people would be preserved in accordance
>     with ICANN’s mission! In the very rare cases of a brand having
>     deliberately chosen a “big city” name (because they want to profit
>     from the image the citizens of that city have worked hard to
>     create over time) – then sorry: but nobody forced you to piggyback
>     on the city’s fame: your own decision; all legal; but you will
>     still need to meet certain obligations. You are just a “co-brand”;
>     the “real brand” is the city brand; and you are living “off” it.
>     Then go and get their permission! But honestly: if we require only
>     cities with more than e.g. 500k people to be specially extra
>     protected (no “non-geo use clause”) – what is the number of brands
>     impacted? Could somebody run a brand name database against a big
>     city database? And not every single US $200 TM  registration is a
>     “brand”!
>
>     *So if the 2012 AGB is the base; the current WT5 suggestion is
>     being floated:*
>
>     ·*Keep everything like it is! It worked and it is fine!*
>
>     ·*In the category “city”: elevate cities that meet a certain
>     requirement into the same status as subnational regions or capital
>     cities! (Meaning: no non-geo-use clause)*
>
>     ·*And indeed: a city with 500,000 people should be AS MINIUM as
>     important as the average capital or a subnational region! Why
>     should it be LESS protected, makes no sense!*
>
>     The disciples of both faiths are requested to reach over the isle
>     and compromise. It doesn’t work in politics in many countries (I
>     am not singling any particular country out) – it doesn’t work in
>     Religions most of the times.  We at ICANN could proof that WE can
>     do it. So let’s simply do it. Both sides have ENDLESSLY often
>     explained their views (and I am guilty of having done so one too
>     often: apologies! I am passionate when it comes to rights of
>     people and public benefit!).
>     Now it is time to form the compromise.
>
>
>
>     A simple to implement suggestion has been made. Is it workable?
>
>     Anyone in?
>
>     Btw: we are talking CITY names. Once we have a solution for that
>     specific category we can look at geo name categories previously
>     not protected. But that will be a SEPARATE category – and should
>     not be conflated with the city name category!
>
>     Thanks,
>
>     Alexander
>
>
>
>     *From:*Gnso-newgtld-wg-wt5
>     [mailto:gnso-newgtld-wg-wt5-bounces at icann.org
>     <mailto:gnso-newgtld-wg-wt5-bounces at icann.org>] *On Behalf Of *Joe
>     Alagna
>     *Sent:* Friday, June 22, 2018 9:12 PM
>     *To:* gnso-newgtld-wg-wt5 at icann.org
>     <mailto:gnso-newgtld-wg-wt5 at icann.org> Work Track 5
>     <gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org>>
>     *Subject:* Re: [Gnso-newgtld-wg-wt5] New gTLD Subsequent
>     Procedures PDP: Work Track 5 Comments
>
>     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
>     <mailto: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
>     <mailto: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
>
>
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>
>
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