[Gnso-newgtld-wg-wt5] Notes and Action Items - New gTLD Subsequent Procedures PDP Work Track 5 - 09 May 2018

[Jorge.Cancio at bakom.admin.ch]

Dear all,

For the record I would again like to request that slides 4 and 5 are updated to the discussions had so far on the list, as they seem to reflect summaries of discussions had in Joburg last year.

In this respect, I would like to refer to the statement I made yesterday on the call as to the different points if view we have seen on the list, with around 25 people from all SO/ACs expressing their views, with many voices coming from all SO/ACs sharing, complementing and refining the „summary of the issue“ about city names I circulated last week.

I feel that these voices and opinions expressed on list have to be the basis for the summary of positions and options and not a summary done months ago after the Joburg debates.

Also others asked for the slides to be updated as they did not see their inputs onlist properly reflected.

I kindly request therefore the co-leads will take this request into account and direct staff to update the summary accordingly.

best regards

Jorge



________________________________

Von: Julie Hedlund <julie.hedlund at icann.org>
Datum: 9. Mai 2018 um 17:18:41 MESZ
An: gnso-newgtld-wg-wt5 at icann.org <gnso-newgtld-wg-wt5 at icann.org>
Betreff: [Gnso-newgtld-wg-wt5] Notes and Action Items - New gTLD Subsequent Procedures PDP Work Track 5 - 09 May 2018


Dear Work Track 5 members,



Please see below the action items and notes from the meeting today (09 May).  These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2018-02-07+New+gTLD+Subsequent+Procedures+PDP+Work+Track+5.


See also the attached slides.



Kind regards,

Julie

Julie Hedlund, Policy Director



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Notes/Action Items:



Action Items:  WT5 member should continue the discussion on the list.


Notes:


1. Review Agenda/Update SOIs: No SOI Updates



2. Continue Discussion on City Names (Non-Capitol City Names):



Slide 4: Reviewing the Email List Discussion:



  *   There has been significant volume on the mailing list with strong advocacy for different positions with respect to the treatment of city names and geographic names more broadly.
  *   Key area of disagreement – who has rights in determining which applications with a connection to city name can go forward?
     *   From one perspective, any rights granted through the application process should be based on international law. If no international law exists granting special rights to governments or other parties, no corresponding rights should exist through mechanisms in New gTLD Program.
     *   From another perspective, national law, public policy, history, and public interest considerations provide a basis for granting rights to governments through mechanisms in the New gTLD Program.
     *   There are also different perspectives on the scope and applicability of trademark law in this discussion relative to and in the context of other laws.
  *   The co-leaders acknowledge these different views but debate about these positions will not be the focus of the call today.



Slide 5: Objectives and Interests:



During the Geographic Names Session at ICANN59, facilitators identified key interests for different groups. Are these still accurate?



Governments:

  *   Protect national identity + important subnational places

  *   Avoid confusion between government/national TLDs and gTLDs
  *   Maintain consent/non-objection authority on important strings

ccNSO:

  *   Avoid confusion between ccTLDs and gTLDs and maintain market for ccTLDs

New gTLD applicants:

  *   Expand range of potentially available strings
  *   Ensure a clear, fair, predictable + timely decision making process

Brand Applicants:

  *   Enable, protect and use strings that support brand identity, including those that coincidentally match geographically significant terms



Slide 7: Proposals City Names (Non-Capital Cities):



Examples of proposals made by Work Track members so far:

  *   Require government support/non-objection only when used in the geographic context (current AGB)
  *   Require government support/non-objection even when intended use is not related to geography
  *   Create a list of cities greater than a certain size and reserve those cities for use by the people of that city (variant: require consent non/objection for top x cities in a country, by population)
  *   Handle all third-party concerns with an application using objections processes. Objections processes must refer to international law, domestic law, ISO standards or other objective measures.
  *   Create incentives to bring all parties “to the table” when intended use is non-geographic, for example agreements to allow the use of second- level strings (or the reservation of second level strings) where there is an inherent association with the government / local community.

How can we expand on these proposals? Use elements of them in combination? Other ideas?



Discussion:

-- Concerning the question of whether the key interests for different groups are still accurate.  Probably too narrow with respect to the Brand applicants.

-- Avoid confusion for the end users.

-- Good start, but seems to be missing key components – non-commercial users’ concerns: ever expanding government control over the Internet and freedom of expression rights.

-- Framework for 2012 round was a good compromise, although there could be improvements.  Need to look forward and consider how this framework worked.

-- Doesn’t seem to be general agreement on the principle that if an applicant desires to use a string that has geographic significance (whether on a list or not) in a manner that corresponds to the geographic significance, then they need a letter of non-objection or consent.  Need to think outside the box for solutions.

-- Need to define what government means.

-- Letter of non-objection lets the applicant get in touch with the relevant public authorities.

-- It is very important to keep in mind the context or proposed use of a new gTLD.  If the gTLD is proposed to be used or a context unrelated to a geographic name or a term of geographic significance then file for a gTLD.  But if it is completely unrelated – such as Berlin for Shoes – then it is no longer a geographic term or one of geographic significance.  A proposed term for a gTLD that may be identical to a geographic term may not have a geographic significance.

-- Think about creative ways to get everyone to the table early, if not the letter of non-objection.

-- Are there ways we can bring everyone to the table without it becoming a veto right – such as a true consultation?

-- Also how to avoid this becoming a tip off to an entity that wasn’t planning to apply for the name, but now might?

-- Need a solution that is not narrow, but will be flexible for the future.



From the chat:

-- from Robin Gross to All Participants: I would add to the list the concern for freedom of expression rights relative to other laws.

-- from Robin Gross to All Participants: There is also the perspective of consumers who care about expanding govt power over the Internet are mainly concerned about free expression.  They don't fit neatly into any of the three interests listed.

-- from Ali Kassim to All Participants: Should a Multi-Stakeholder Model be something that is embeded into these applications? Or it already a factor in these applications. Because of the fact that applications and maintaining of registries is not a cheap exercise could we consider this model?

-- from Alexander Schubert to All Participants: We also have community / constituent groups in the city - and they want to create the city gTLD! So neither a registry operator nor a city Government - but a stakeholder group in the city! Which is the IDEAL case as they can FUND and MARKET the gTLD much better than anybody else!

--- - from Ashley Heineman to All Participants: Just to be clear, these are views of *some* governments.  Not all governments have these concerns.

from Ashley Heineman to All Participants: Also - not all governments are wanting to maintain consent/non-objection authority on important strings.

-- from Taylor Bentley to All Participants: +1 Ashley, the possibility for a government to support, and view an expansion as a positive contribution to national identity and economic activity (via tourism, local branding etc.)

-- from Nick Wenban-Smith to All Participants: I think the point about freedom of expression is a good one to add to the record. Of course once a particular term is registered as a gTLD by a private body for it's exclusive use then it will be blocked in perpetuity for use by any communities to which it might relate. Difficult balancing required!

-- from jeff neuman to All Participants: @Jorge - for terms not in the AGB, and not intended to be used in conjunction with the potential geographic significance of the term, that there is agreement that a letter of non-objection is needed

-- from Katrin Ohlmer to All Participants: Also, end users might be confused if some geo names are "real" geoTLDs and some are not.; e.g. .berlin is a GeoTLD where they are able to participate in, and .munic is a BrandTLD where only the Munic LLC Company can register domain names.

-- from jeff neuman to All Participants: +1 to @Jorge on how great participation has been on the list

-- from Ann-Cathrin Marcussen to All Participants: Support to Jorge from me.

-- from Justine Chew to All Participants: agree with the jorge. I found the conversations in the lists useful. I am now somewhat persuaded with on the need for non-objection letters.

-- from Robin Gross to All Participants: Important to remember that people have a legal right to use a word that refers to a geographic term.  We can comment on and say things about geo terms.  We just don't have the right to misrepresent our connection to that term.

-- from jeff neuman to All Participants: Can we establish whether there is general agreement on the principle that if an applicant desires to use a string that has geographic significance (whether on a list or not) in a manner that corresponds to the geographic significance, then they need a letter of non-objection or consent.

-- from Susan Payne to All Participants: I don't think there is any agreement on the notion of letter of non-objection as proposed by Jorge.  But in any event, I  question how this could be in any event be practical - what about multiple different towns/cities of the same name?  which gets priority?  what about some village/town/city in a county that you aren't aware of - how do you even know about it, let alone get non-objection?   what about names that have multiple meanings - why does Bar (the place) get some priority/veto over use of that term to identify a drinking establishment?

-- from Robin Gross to All Participants: Yes, we shouldn't be able to use such terms in a way that is misleading or that causes consumer confusion.  But a blanket requirement of always requiring such a letter goes too far.  Thanks.

-- from Robin Gross to All Participants: But I would also agree with Susan that the letter isn't agreed to as a concept (ever was).  It was just imposed on the community after the fact.

-- from Robin Gross to All Participants: Jeff, to your good question about how to determine confusion, I think it is similar to how the legal concept of fair use is determined - by weighing a series of factors and always circumstance dependent.  So panelists could look at the specific facts of the situation and weigh the competing legitimate interests.  But a bright line rule would fail to capture it adequately.  Like fair use in copyright.