[gnso-gac-closed-generics] For feedback - non anti-competitive behaviour language

Fri Apr 14 08:55:58 UTC 2023

Hi all,

I wanted to float some suggestions for feedback for dealing with the language we discussed on Wednesday's call. For clarity, the purple highlighted text is where I am proposing edits.

Demonstrate the requirement of representativeness OR of non anti-competitive behaviour.

  1.  For "representativeness",  applicants must demonstrate that the applicant represents all or a significant part of the businesses (or has their agreement) in the industry or grouping related to the closed generic term.
  2.  For "non anti-competitive behaviour", applicants must commit that its use of this closed generic gTLD will be consistent with principles of competitive neutrality, non-discrimination and transparency.

To be clear, I am not objecting to the concept, and I am very much on board with applicants committing they will not use the TLD in a non anti-competitive manner. My concern is the phrasing of "principles of competitive neutrality". It is too nebulous to have any real meaning for applicants. I am also nervous about using the phrase competitive advantage, as this is a term that does not always indicate anti-competitive behaviour. I have set out some alternative suggestions to the highlighted purple:

  1.  Will not be used to engage in: exclusive dealing, collusion, preventing third parties from supplying or offering to supply goods or services, or otherwise controlling, limiting, or restricting the supply of goods or services.
  2.  Substitute the purple section with the principles of competitive neutrality. If this is an option to explore, could GAC participants please share the principles they have in mind?

For the non-discrimination and transparency language, I likewise have two suggestions.

  1.  Strike the language completely as it is redundant. The concepts are already in the Base Registry Agreement<https://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-31jul17-en.pdf> in Specification 11 3(c) (see page 98).
  2.  Move non-discrimination and transparency somewhere in the Contracting & Post-Delegation element.
My personal preference is for option 1.

Sophie

Sophie Hey
she/her
Policy Advisor

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