[council] A way forward on the Specification 13 question

Mon Apr 28 21:53:20 UTC 2014

Dear James and Volker:

Please let me know if I understand correctly the RrSG position based your comments below:

·         The proposed amendment to Specification 13 is inconsistent with policy recommendation 19 because no discrimination between registrars should be permitted;

·         Dot Brands possess the sole ability to execute bulk transfers;

·         Dot Brands, as registrants, are able to choose their own preferred registrars; and

·         Dot Brands can implement registration policies and requirements to limit the services provided by registrars to only eligible registrants.

Forgive me if my encapsulation is wrong, but if I understand the RrSG position correctly, then I am concerned that it may gloss over some important nuances.

First, the RrSG position seems based on an assumption that dot Brand registries will be the sole registrant for bulk transfer and registrar selection purposes, whereas Specification Thirteen clearly permits Affiliates and Trademark Licensees to register names as well, thus complicating matters a bit.  Second, the RrSG position seems to encourage dot brand registries to discriminate among registrars using registration policies, or perhaps other restrictions or side agreements among Affiliates and Trademark Licensees, at their own peril.  Absent any assurances from ICANN legal regarding the propriety of these indirect work-around suggestions, I imagine that dot Brands would be much more comfortable with the direct and formal provision in the Registry Agreement that is presently under consideration by the Council.  As I understand it, that is why the provision is necessary in the first place—so dot Brands cannot be alleged to violate the Registry Agreement in accrediting only one or two preferred corporate registrars.

I look forward to your responsive feedback.

Thank you,

Brian

Brian J. Winterfeldt
Head of Internet Practice
Katten Muchin Rosenman LLP
2900 K Street NW, North Tower - Suite 200 / Washington, DC 20007-5118
p / (202) 625-3562 f / (202) 339-8244
brian.winterfeldt at kattenlaw.com<mailto:brian.winterfeldt at kattenlaw.com> / www.kattenlaw.com<http://www.kattenlaw.com/>

Re: [council] A way forward on the Specification 13 question

  *   To: Volker Greimann <vgreimann at xxxxxxxxxxxxxxx>, Bret Fausett <bret at xxxxxxxx>, GNSO Council List <council at xxxxxxxxxxxxxx>
  *   Subject: Re: [council] A way forward on the Specification 13 question
  *   From: "James M. Bladel" <jbladel at xxxxxxxxxxx>
  *   Date: Mon, 28 Apr 2014 16:12:52 +0000
  *   Accept-language: en-US
  *   In-reply-to: <535E1AA3.6090807 at key-systems.net<http://gnso.icann.org/mailing-lists/archives/council/msg16070.html>>
  *   List-id: council at xxxxxxxxxxxxxx
  *   Sender: owner-council at xxxxxxxxxxxxxx
  *   Thread-index: Ac9U37pVNGMfDV+cTSyNSj0xaeNagAJSGHAAAKWMf0oAGtHogAAH4hAAAAWYJ4AAWH6IgAAEVA2A
  *   Thread-topic: [council] A way forward on the Specification 13 question

________________________________

Just to add to Volker¹s comments:

Registrars have had a vigorous discussion on this topic, and provided

feedback from diverse viewpoints.  But on the narrow question--whether

Spec 13 is compatible with Rec 19‹we generally believe it is not.

We recognize that dot-BRAND applicants and TLDs are a new part of the

domain name ecosystem, and will have unique interests not shared by other

TLDs.  For example, we whole-heartedly agree with the proposed

restrictions in Spec 13 on ICANN¹s ability to re-delegate a string that

was formerly part of a dot-BRAND.  However, we do not agree with the

assertion that these TLDs must be formally allowed to discriminate among

ICANN-accredited registrars.

In response to the concerns raised by proponents of Spec 13, about being

beholden to a single registrar/service provider, we would point out that,

as the Registry and Registrant, they would possess sole authority to

execute a bulk transfer to a new exclusive registrar/service provider

under existing ICANN policy.  Additionally, to address concerns about

³trusted² vs. ³untrusted² registrar/service providers, we would note that,

as the Registrant, they would be able to choose the services of any

registrar (or group of registrars) of their choosing, without the need to

include this language in the Registry Agreement.  In fact, this concern is

only legitimate in the scenario where the dot-BRAND TLD later extends

registrations to unaffiliated third parties.

In summary, Registrars do not believe that this component of Spec 13 is

compatible with Recommendation 19 of the original new gTLD policy, and

that while dot-Brand are likely to encounter concerns unique to their new

category of TLD, these issues can be addressed under existing policy.

Thanks‹

J.

From:  Volker Greimann <vgreimann at xxxxxxxxxxxxxxx>

Date:  Monday, April 28, 2014 at 4:08

To:  Bret Fausett <bret at xxxxxxxx>, GNSO Council List

<council at xxxxxxxxxxxxxx>

Subject:  Re: [council] A way forward on the Specification 13 question

Dear council-members,

after extensive discussion of the question put before us, the RrSG has

likewise found this excemption to be inconsistent with both the language

as well as with the spirit of the recommendation.

The question we have been asked is not whether we like the proposed

exemption or can live with it, but rather a very simple one: Is the

proposed incorporation of an ability to restrict nondiscriminatory

registrar access to dotBrand TLDs is not consistent with

 the intent and wording of Recommendation 19, or is it not. The

recommendation explicitly states that "Registries  (...) may not

discriminate among (ICANN) accredited registrars". In other words, the

language of the Recommendation 19 contradicts the proposed

 exemption.

Therefore, to find the additional language to be consistent with the

recommendation requires substantial arguments to that effect that would

allow such an interpretation. To find it consistent because one likes the

result or can live with the result does not

 fulfill this requirement. For such cases where implementation would

conflict with existing policy, further policy work adjusting or confirming

the Policy Recommendation is required. The GNSO Council should take the

lead in initiating this policy work.

Beyond the grammatical inconsistency of the Recommendation, the intent of

the Recommendation also indicates inconsistency.

As detailed in the final report on the Introduction of New Generic Top

Level Domains, the recommendation was supported by all GNSO Constituencies

and Mrs Doria. According to the recollections of members of the new gTLD

policy committee at the time the Recommendation

 was agreed upon, the concept of restricting registrar access was

discussed in the context of community TLDs, which are in many ways similar

to dotBrands. As registries have the ability under the Registry Agreement

to restrict registrar access to their TLDs

 by establishing reasonable, nondiscriminatory accreditation criteria, it

was ultimately agreed that discrimintation between registrars should not

be permitted.

In fact, the only public comment with regard to this recommendation came

from the RyC, which was concerned that small, specialized registries may

not be able to find a registrar to carry them. Note that this concern

deals with a completely different problem.

 This concern led to the Vertical Integration Working group and the

subsequent board decision allowing vertical integration. The idea of

allowing only a few registrars does not appear in the Final Report.

Finally, as registrants, dotBrands are perfectly free to discriminate

between registrars. The Recommendation only deals with registries. By

establishing certain registration requirements and policies, registries

can further eliminate the ability of registrars

 to provide registry services beyond the eligible circle of registrants.

Best regards,

Volker Greimann

Am 26.04.2014 16:54, schrieb Bret Fausett:

Feedback:

What we have been asked by the Board is to "advise ICANN as to whether the

GNSO Council believes that this additional provision is inconsistent with

the letter and intent of GNSO Policy Recommendation 19 on the Introduction

of New Generic Top-Level Domains.²

Policy Recommendation 19 reads: "Registries must use only ICANN accredited

registrars in registering domain names and may not discriminate among such

accredited registrars.²

http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm

 The discussion section of this policy recommendation does not make for

any exceptions for brands.

Plainly, as I read the provisions of the .BRAND Specification 13, it is

³inconsistent with the letter and intent of GNSO Policy Recommendation

19.²

Now, I personally happen to think that the draft Specification 13 for

.BRAND TLDs is a tightly drafted, well-considered exception for a

specialized type of TLD that was not being considered carefully when

Recommendation 19 was prepared. BUT, it is definitely

 inconsistent with the policy recommendation we made in August, 2007.

Let¹s think about what this means.

--

Bret Fausett, Esq. € General Counsel, Uniregistry, Inc.

12025 Waterfront Drive, Suite 200 € Playa Vista, CA 90094-2536

310-496-5755 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-496-5755 FREE  end_of_the_skype_highlighting (T) € 310-985-1351 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-985-1351 FREE  end_of_the_skype_highlighting (M) € bret at xxxxxxxxxxxxxxx

‹ ‹ ‹ ‹ ‹

On Apr 26, 2014, at 5:14 AM, Thomas Rickert <rickert at xxxxxxxxxxx> wrote:

Jonathan,

I do hope to get more feedback. So far, I do not really have information

to act on, but I am standing by to do what is necessary to meet the

deadline.

Thanks,

Thomas

Am 26.04.2014 um 10:29 schrieb Jonathan Robinson <jrobinson at xxxxxxxxxxxx>:

Thanks Thomas,

You will have seen that the motion deadline is Monday 28th 23h59

 UTC so, assuming we will meet the 45 day deadline, we will need a motion

on Monday.

Let¹s hope we can do that in such a way as to reflect the feedback you

have and retain flexibility to modify

 (if necessary) as we receive further feedback.

Let¹s you and I talk on Monday.

Jonathan

From: Thomas

 Rickert [mailto:rickert at xxxxxxxxxxx]

Sent: 25 April 2014 20:38

To: GNSO Council List

Subject: Fwd: [council] A way forward on the Specification 13 question

All,

this is a gentle reminder to provide me with preliminary feedback. The

motions and documents deadline is approaching rapidly and I have only

received one response from the registrars so far.

Also, I have reached out to Marilyn Cade (CBUC), Tony Holmes (ISPC),

Kristina Rosette (IPC), Robin Gross (NCUC), Bruce Tonkin (Registrars) and

Ken Stubbs (Registries) as they were listed in the final report of the PDP

to cover their respective groups and since

 they hopefully have first-hand information on the discussions at the

time. More people such as Avri, Bret and Alan are still here - please to

chime in and respond.

Thanks and kind regards,

Thomas

Anfang der weitergeleiteten Nachricht:

Von: Thomas Rickert <rickert at xxxxxxxxxxx>

Betreff: Aw: [council] A way forward on the Specification 13 question

Datum: 22. April 2014 14:40:58

 MESZ

An: jrobinson at xxxxxxxxxxxx

Kopie: GNSO Council List <council at xxxxxxxxxxxxxx>

All,

thanks to Jonathan for putting together and sending out the below message.

I am more than happy to assist with making sure we get an answer prepared

in time.

Can I ask Councillors to get back to me offlist (in order not to swamp the

list) with a status of the discussions with your respective groups?

Certainly, one response per group is sufficient.

If there is anything I can help with to facilitate your discussions,

please let me know.

The earlier I am provided with information on what direction your answers

will take, the sooner I will be able to draft a motion and a letter to the

NGPC for your review.

Thanks,

Thomas

Am 10.04.2014 um 19:10 schrieb Jonathan Robinson <jrobinson at xxxxxxxxxxxx>:

All,

Following on from previous dialogue and the Council meeting today, it

seems to me that the way forward is to focus

 as closely as possible on the question being asked and to make every

attempt to respond in a timely and effective manner.

This means that, assuming it is required, a motion to be voted on needs to

be submitted to the Council by 28 April

 for consideration at the 8 May 2014 meeting.

We are being asked  (full letter attached for reference) to

1.       Š

 advise ICANN as to whether the GNSO Council believes that this additional

provision is inconsistent with the letter and intent of GNSO Policy

Recommendation 19 on the Introduction of New Generic Top-Level Domains;

or

2.       advise

 ICANN that the GNSO Council needs additional time for review, including

an explanation as to why additional time is required.

I believe that the question to take to your respective stakeholder groups

/ constituencies  is therefore:

Is this additional provision inconsistent with the letter and intent of

GNSO Policy Recommendation 19?

It will be helpful to have as clear as possible an answer as soon as

possible along the following lines:

·         No.

 It is not inconsistent (Š with the letter and intent Š).

and

·         Possibly,

 an explanation as to why it is not inconsistent.

and

·         Are

 there any other qualifying points that the Council should make in its

response to the NGPC?

OR

·         Yes.

 It is inconsistent ( Š with the letter and intent Š ).

and

·         Possibly,

 an explanation as to why it is inconsistent.

and

·         Is

 there a process by which the Council could assist the NGPC in resolving

this issue and in what time frame?

Please can you all act as quickly as possible to provide an answer to the

above.  The timing is

 very tight.

We already have an indication of where the BC & the IPC stand on this i.e.

no, it is not inconsistent.

Someone will need to lead on drafting a motion (for submission to the

Council on or before 28 April) and an associated

 letter to the NGPC.

Given the time constraints, this should probably take place in parallel

with the consultation work.

Can we please have a volunteer to lead this effort and ensure it gets

done?  Thomas?

I have tried to simplify and focus the problem here in the interest of

providing a representative, timely and

 effective response.

I trust that in doing so I have not discounted any material points in the

discussion to date.  Please correct

 me if I have.

Jonathan

--

Bret Fausett, Esq. € General Counsel, Uniregistry, Inc.

12025 Waterfront Drive, Suite 200 € Playa Vista, CA 90094-2536

310-496-5755 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-496-5755 FREE  end_of_the_skype_highlighting (T) € 310-985-1351 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-985-1351 FREE  end_of_the_skype_highlighting (M) € bret at xxxxxxxxxxxxxxx

‹ ‹ ‹ ‹ ‹

--

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  *   References:
     *   Re: [council] A way forward on the Specification 13 question<http://gnso.icann.org/mailing-lists/archives/council/msg16070.html>
        *   From: Volker Greimann

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