[Gnso-newgtld-wg-wt5] Post call | New gTLD Subsequent Procedures Sub Team – Track 5 – Geographic Names at the Top Level - call | Wednesday, 21 August 2019 at 05:00 UTC
Marita Moll
mmoll at ca.inter.net
Sun Aug 25 16:45:38 UTC 2019
Hi Alexander. Thanks for taking the time to provide these very well laid
out examples. As you explain it, it is clear that the suggested wording
could have very undesirable consequences for some cities. I would oppose
the suggested wording and stick with the currant AGB wording.
Marita Moll
On 8/25/2019 8:42 AM, Alexander Schubert wrote:
>
> Hi,
>
> Thanks for the observation. Let’s speak “openly”:
>
> Obviously the “brand consultants” fear that an application for a brand
> name that is identical to a city name could be seen as intended “use
> (of) the TLD primarily for purposes associated with the city name”
> ……. because after all the brand name and city name are IDENTICAL.
>
> And I think herein we find the ingenuity of the current policy
> version! Let me explain with an example (an example that hinges as
> Paris is a CAPITAL, AND already delegated, but I think it may serve as
> example anyways):
>
> Paris in France has invested an INSANE amount of time (over two
> millennia to be exact), energy, dedication and over one hundred of
> generation’s hard work (after all the beautiful Paris had to be BUILT
> by somebody) to create one of the most iconic brands of all times:
> PARIS. The city branding of Paris has yielded to the number THREE of
> most visited cities on the planet: Only Bangkok and London receive
> more visitors annually (per 2018 statistics).
>
>
> Obviously this invited entities all over the world to piggyback on the
> fame of the city brand: which generally in most of the cases is GOOD
> for the city: as it makes it even MORE famous. You will only get
> copied if you are really special.
>
> One example being “*PARIS*” (LAS VEGAS).
> See their logo here:
> en.wikipedia.org/wiki/Paris_Las_Vegas#/media/File:Paris_Las_Vegas_Logo.svg
>
> Again: this is a rough example, please do not throw around with your
> expertise and tell me (“uhh, but their TM is PARIS LAS VEGAS” and not
> “PARIS”. Yeah, I know: I did an USPTO search of course).
>
> The parent company of PARIS (Las Vegas) (CAESARS) is literally
> DROWNING in cash. They have US $25 BILLION in assets. If we go down to
> a meekly US $25k application fee: they would be almost FORCED to try
> trademarking “paris” (again: I know that .paris is delegated AND a
> capital – this is an EXAMPLE).
>
> So IF the Las Vegas “PARIS” casino would apply for “.paris” – it would
> be OBVIOUS that they would use their domain names in connection with
> their brand; and their brand is 100% based on ( and aimed at) the city
> of Paris in France! The logo even contains the Tour Eiffel, and most
> of us will have been in the Paris casino in person: The casino sports
> a HUGE copy of the Tour Eiffel.
>
> Now in THAT case it would be literally IMPOSSIBLE to claim that the
> intended use is NOT primarily connected for purposes associated with
> the city name – because that’s all the brand DOES: Creating as much
> association with Paris (France) as possible! “Free-riding” doesn’t
> even START to describe what they do. Legal! Even partly helpful for
> the City of Paris as it shows the might of their brand that they have
> established within 200 generations – but FREE-RIDING nonetheless.
>
> And I am so terrible sorry: But if “.paris” wasn’t already delegated
> and not protected through the “capital city provisions” of the AGB:
> THIS would be EXACTLY a case where the brand would use the TLD for
> purposes associated with the CITY NAME (Paris, France). Hence it
> SHOULD go and get the approval of the Paris city government. And guess
> what their answer would be? Well. Think “Greenland”.
>
> To also provide an opposite example (and in reality most if not ALL
> real life cases will be like this one):
> Imagine a brand “IBM”. Imagine a city “Ibm” somewhere in the Middle
> East. Small city of 25,000 people – no industry, city-GDP of almost
> zero. In SUCH a case “International Business Machines Corporation”
> (IBM) clearly has NOT “targeted” the city, or is trying to piggy-back
> (free-ride) on its reputation. So in such case they would NOT have to
> acquire a letter of non-objection.
>
> So the current wording of AGB §2.2.1.4.2. is very much in the spirit
> of ICANN’S mission. If we were to add the suggested language we would
> create loopholes, extra rights that weren’t existing, and generally
> violate the spirit of the application process. The circumstance that
> you are a “brand” doesn’t justify the establishment of any
> broad-sweeping exonerations. I can imagine why the brand-lobby would
> LOVE this extra provision: but outside of the brand cloud nobody
> profits from it.
>
> Thank you,
>
> Alexander
>
>
> *From:*Gnso-newgtld-wg-wt5
> [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] *On Behalf Of *Justine Chew
> *Sent:* Samstag, 24. August 2019 10:44
> *To:* gnso-newgtld-wg-wt5 at icann.org
> *Subject:* Re: [Gnso-newgtld-wg-wt5] Post call | New gTLD Subsequent
> Procedures Sub Team – Track 5 – Geographic Names at the Top Level -
> call | Wednesday, 21 August 2019 at 05:00 UTC
>
> The "loophole" which Alexander brings up aside and focusing squarely
> on Sophie's amended proposed text ....
>
> I still don't see the usefulness in adding the amended proposed text.
> It may be only me perhaps, but I am concerned by implications to the
> notion of excluding a key conditional requirement on applicants for
> strings matching non-capital city names *_by mere inference_*. Simply
> put, is it really that difficult for an applicant to declare outright
> in their application that they intend to operate the TLD exclusively
> as a dotBrand *_and that they will not use the TLD primarily for
> purposes associated with the city name_*?
>
> Opened to further enlightenment on this point,
> Justine
> -----
>
> On Sat, 24 Aug 2019 at 07:24, Alexander Schubert
> <alexander at schubert.berlin <mailto:alexander at schubert.berlin>> wrote:
>
> Dear Sophie,
>
> You are asking me:
>
> */“I am unclear on what additional rights or /**/loopholes
> /**/would arise under this /**/proposed language/**/…..”/*
>
>
> First let me please remark that the 2012 official AGB language was:
>
> */“2.2.1.4.2 Geographic Names Requiring Government Support:/*
>
> */………..
> An application for a city name will be subject to the/*
>
> */geographic names requirements ……… if:/*
>
> */(a) It is clear from applicant statements within the/*
>
> */application that the applicant will use the TLD/*
>
> */primarily/**/for purposes associated with the city/*
>
> */name…”/*
>
> *PRIMARELY! *
>
> So if you apply for a “real brand” (one that is existing since a
> long time, is well known and in broad use in commerce) and declare
> the “intended use” to be associated WITH SAID BRAND – then it is
> BY DEFINITION NOT “primarily for purposes associated with the city
> name”. YOU AS APPLICANT HAVE THAT UNDER CONTROL! You need to make
> a STATEMENT in your application: Do you wish to associate the use
> of the gTLD with your BRAND NAME – or with the CITY NAME? It’s
> written right there in 2.2.1.4.2 – there is no room for any
> interpretation. YOU have to tell the geo panel what YOU intend. So
> do it and all will be fine. The geo-panel is the judge; they are
> not biased! They listen to YOUR statement!
>
> But let me answering your question and explaining the loophole
> that your language would (in my mind) create:
>
> We have to stop assuming that the next round(s) will be as
> disciplined as the 2012 round. By start of the next round a DECADE
> has gone by since the 1^st round: and all kinds of shady fortune
> hunters will try to make “quick bucks” in coming rounds. So here
> an example how the loophole that your language would
> (accidentally) create could be exploited (everybody please
> remember: we are talking about non-capital city names here):
>
> ·Some (shady) applicants for non-capital city names will want to
> avoid acquiring the requisite letter of non-objection from the
> relevant city Government (e.g. to avoid participation in a public
> call for tender by said city: and ALL cities will have public
> tenders in 2021/2022 if there is any potential applicant)
>
> ·The (shady) applicant applies for a quick and cheap trade mark
> (e.g. in the Benelux; where expedited TMs are REGISTERED within
> DAYS – the opposition period starts THEREAFTER; but the TM is
> valid already! The TMCH is accepting it, too!) Thus ALL
> requirements for a Spec 13 designation are met.
>
> ·Then the shady applicant EXPLOITS your loophole: Because per your
> policy addition their application (if Spec 13 is invoked) would be
> EXCEMPTED from any scrutiny regarding the “intends to use the gTLD
> for purposes primarily associated with the city name.” (note that
> “primarily” is part of 2.2.1.4.2 but not reflected in your language).
>
> How would the shady applicant profit from it: why going this
> route? Just ONE potential scam scheme:
> Apply for a couple of large metropolises as (pseudo) “Spec 13
> brand”. Do that for cities where you know the city has a public
> call for tender (an indicator that there are applicants in wait;
> “public tenders” are by definition “public”! Easy to spot!). Wait
> for the reveal day: and offer the city applicant to withdraw your
> (Spec 13) application if he “pays up”: or else threaten to block
> their application indefinitely (how long “indefinitely” might be:
> ask the community applicants for .hotel: THEY WON CPE – and are
> still blocked! In 2019!). Most city applicants would rather
> quickly shell out US$200k instead waiting 5 or more years. If the
> application floor goes down to US $50,000 – and we maintain 80%
> refund: your “cost” (as scammer) would be just a mere US 10k per
> pop! So scammers “risk” US $10k to likely earn US $200k? Hey: We
> are INVITING these scams to happen! And I thought about it just
> for a few minutes.
>
>
> I say:
>
> ·Generally Spec 13 should be GENERALLY INELIGIBLE for strings that
> match large cities (e.g. larger 250,000 people – the exact number
> subject to discussion)
>
> ·Exception: the “brand” manages to get a letter of non-objection
> from the city government (permission for blocking the string to
> the general public!)
>
> I want to be on record that city-communities are in the cross
> hairs of profiteers – that they are very vulnerable because the
> circumstance that a certain city name is being applied for is (via
> public tender) very visible. And any and all loopholes that
> circumvent the necessity to acquire “letters of non-objection” are
> unnecessarily dangerous. City applicants are “sitting ducks”.
>
> Please excuse my fixation on “exploits” – but we already had
> exploits in the 2012 round: e.g. a number of applicants applied
> for the same string TWICE – one time as community priority
> application, one time as standard application! A gross LOOPHOLE
> nobody thought about (and one that completely went against the
> policy spirit).
>
> Thanks,
>
> Alexander
>
> *From:*Sophie Hey [mailto:sophie.hey at valideus.com
> <mailto:sophie.hey at valideus.com>]
> *Sent:* Friday, August 23, 2019 1:11 PM
> *To:* alexander at schubert.berlin
> <mailto:alexander at schubert.berlin>; gnso-newgtld-wg-wt5 at icann.org
> <mailto:gnso-newgtld-wg-wt5 at icann.org>
> *Subject:* RE: [Gnso-newgtld-wg-wt5] Post call | New gTLD
> Subsequent Procedures Sub Team – Track 5 – Geographic Names at the
> Top Level - call | Wednesday, 21 August 2019 at 05:00 UTC
>
> Dear Alexander,
>
> I am proposing this language to improve the clarity of the
> provision for all potential applicants. I agree that “purposes
> associated with the city name” does not include dotBrand
> applicants. However, in the public comment period, the United
> States Government, NCSG, and part of the ALAC, all expressed
> concerns about the wording in this provision. I am not looking to
> re-open the intended use debate, rather highlight that there were
> concerns raised in the public comment period about the wording of
> this provision.
>
> I am unclear on what additional rights or loopholes would arise
> under this proposed language, which only identifies one clear
> purpose that would not be “a purpose associated with the city name”.
>
> Hope this helps,
>
> Sophie
>
> *Sophie Hey
> *Policy Advisor
> *Valideus*
> D: +44 (0) 20 7421 8252
> E: sophie.hey at valideus.com <mailto:sophie.hey at valideus.com>
>
> *Com Laude, Demys and Valideus August Bank Holiday Opening Hours*
>
> The UK offices of Com Laude Group will be closed for a UK public
> holiday on Monday 26 August 2019, reopening on Tuesday 27 August
> 2019. If you have an urgent matter for the Valideus team, please
> email jeff.neuman at valideus.com <mailto:jeff.neuman at valideus.com>,
> and cc your client manager.
>
> *From:*Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org
> <mailto:gnso-newgtld-wg-wt5-bounces at icann.org>> *On Behalf Of
> *Alexander Schubert
> *Sent:* 22 August 2019 15:05
> *To:* gnso-newgtld-wg-wt5 at icann.org
> <mailto:gnso-newgtld-wg-wt5 at icann.org>
> *Subject:* Re: [Gnso-newgtld-wg-wt5] Post call | New gTLD
> Subsequent Procedures Sub Team – Track 5 – Geographic Names at the
> Top Level - call | Wednesday, 21 August 2019 at 05:00 UTC
>
> Dear Sophie,
>
> The question arises: If a “real brand” is qualifying for Spec 13
> on its own merits – why having to add such “general clause”? Could
> you provide an example of “harm” for “brands” if such clause would
> not exist? What do you try to “fix”? Each “fix” that creates an
> “automatic right” will be source for a “loophole”.
>
> Long story short:
> Your suggestion makes sense for real brands – but real brands
> qualify anyway by virtue of intended use – so your rule will only
> serve as loophole for tricksters; which we did ONLY not see in
> 2012 because nobody foresaw the success of city gTLDs (or rather:
> just a few where believers).
>
>
> Thanks,
>
>
> Alexander
>
> *From:*Gnso-newgtld-wg-wt5
> [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] *On Behalf Of
> *Sophie Hey
> *Sent:* Mittwoch, 21. August 2019 14:52
> *To:* Andrea Glandon <andrea.glandon at icann.org
> <mailto:andrea.glandon at icann.org>>; gnso-newgtld-wg-wt5 at icann.org
> <mailto:gnso-newgtld-wg-wt5 at icann.org>
> *Cc:* gnso-secs at icann.org <mailto:gnso-secs at icann.org>
> *Subject:* Re: [Gnso-newgtld-wg-wt5] Post call | New gTLD
> Subsequent Procedures Sub Team – Track 5 – Geographic Names at the
> Top Level - call | Wednesday, 21 August 2019 at 05:00 UTC
>
> Dear all,
>
> Following the discussion on non-capital city names on this call
> and the support and concerns expressed on additional language, I
> would like to suggest the following as alternative text to AGB
> 2.2.1.4.2 part 2. I have also included the entirety of part 2 for
> greater clarity. The blue text is the proposed addition, the black
> is what is currently in the AGB:
>
> 2. An application for a city name, where the applicant declares
> that it intends to use the gTLD for purposes associated with the
> city name.
>
> City names present challenges because city names may also be
> generic terms or brand names, and in many cases city names are not
> unique. Unlike other types of geographic names, there are no
> established lists that can be used as objective references in the
> evaluation process. Thus, city names are not universally
> protected. However, the process does provide a means for cities
> and applicants to work together where desired.
>
> An application for a city name will be subject to the geographic
> names requirements (i.e., will require documentation of support or
> non-objection from the relevant governments or public authorities) if:
>
> (a)It is clear from applicant statements within the application
> that the applicant will use the TLD primarily for purposes
> associated with the city name. For the avoidance of doubt, if an
> applicant declares in their application that they will operate the
> TLD as a dotBrand, then this is not a use of the TLD for “purposes
> associated with the city name”;
>
> (b)The applied-for string is a city name as listed on official
> city documents.
>
> The previous blue language read as follows: For the avoidance of
> doubt, where the applicant states in their application that they
> intend to use the TLD as a .Brand (intend to have Specification 13
> in their Registry Agreement) it will be taken that the TLD will
> not be used primarily for purposes associated with the city name.
>
> Looking forward to hearing everyone’s thoughts on this.
>
> Kind regards,
>
> *Sophie Hey
> *Policy Advisor
> *Valideus*
> D: +44 (0) 20 7421 8252
> E: sophie.hey at valideus.com <mailto:sophie.hey at valideus.com>
>
> *Com Laude, Demys and Valideus August Bank Holiday Opening Hours*
>
> The UK offices of Com Laude Group will be closed for a UK public
> holiday on Monday 26 August 2019, reopening on Tuesday 27 August
> 2019. If you have an urgent matter for the Valideus team, please
> email jeff.neuman at valideus.com <mailto:jeff.neuman at valideus.com>,
> and cc your client manager.
>
> *From:*Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org
> <mailto:gnso-newgtld-wg-wt5-bounces at icann.org>> *On Behalf Of
> *Andrea Glandon
> *Sent:* 21 August 2019 07:28
> *To:* gnso-newgtld-wg-wt5 at icann.org
> <mailto:gnso-newgtld-wg-wt5 at icann.org>
> *Cc:* gnso-secs at icann.org <mailto:gnso-secs at icann.org>
> *Subject:* [Gnso-newgtld-wg-wt5] Post call | New gTLD Subsequent
> Procedures Sub Team – Track 5 – Geographic Names at the Top Level
> - call | Wednesday, 21 August 2019 at 05:00 UTC
>
> Dear all,
>
> All recordings for theNewgTLDSubsequent Procedures Sub Team –
> Track 5 – Geographic Names at the Top Level - call
> heldonWednesday,21 August 2019 at 14:00 UTCcan be foundon
> theagenda wiki page
> <https://community.icann.org/x/faujBg>(attendanceincluded)and
> theGNSO Master
> calendar<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group-2Dactivities_calendar&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=PDd_FX3f4MVgkEIi9GHvVoUhbecsvLhgsyXrxgtbL10DTBs0i1jYiBM_uTSDzgqG&m=lhHF0M6JaIYeLBnC3Q9bqu2sZWPv1nLAgZnVMGCKrHU&s=Tzxf9LTtBSdrMY8pcfoDex94Y46jW4hgjQNgWe51VqU&e=>.
>
> These include:
>
> * Attendance (please let me know if your name has been left off
> theattendance list)
> * Audiorecording
> * Zoom chat archive
> * Zoom recording (including audio, visual, rough transcript)
> * Transcript
>
> As a reminder only members can join thecall, observers can listen
> to the recordings and read the transcript afterwards. Please email
> gnso-secs at icann.org <mailto:gnso-secs at icann.org> if you would like
> to change your status from observer to member.
>
> For additional information, you may consult themailing list
> archives <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt5/>and
> themain wiki page <https://community.icann.org/x/YASbAw>.
>
> Thank you.
>
> Kind regards,
>
> Andrea
>
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> Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176,
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