[gnso-gac-closed-generics] For feedback - non anti-competitive behaviour language
Kathy Kleiman
Kathy at KathyKleiman.com
Mon Apr 17 15:47:44 UTC 2023
Sophie,
Tx for the drafting! I look forward to diving in...
Best, Kathy
On 4/17/2023 8:43 AM, Sophie Hey wrote:
>
> Happy Monday all!
>
> I have transferred my proposed redlines into a word document attached.
>
> At the moment, I am not suggesting edits to any other section of the
> document. My suggestion to /Move non-discrimination and transparency
> somewhere in the Contracting & Post-Delegation element/, is intended
> as an alternative if the group is not comfortable with striking
> “non-discrimination and transparency” from III.2.g.2.
> Non-discrimination and transparency are already standard obligations
> in the RA, so if the group does feel strongly about keeping the
> phrases, then Contracting & Post-Delegation feels a more appropriate
> place than Application. Given that I personally think that the phrases
> are redundant, I have not suggested a specific location for them
> within Contracting & Post-Delegation. If the group decides that this
> is the approach they would like, I would be happy to draft language or
> defer to Staff.
>
> Sophie
>
> Sophie Hey
> she/her
> Policy Advisor
> Com Laude
> *T*+44 (0) 20 7421 8250
> *Ext* 252
>
> <https://comlaude.com/>
>
> *From:*Nigel Hickson <nigel.hickson at dcms.gov.uk>
> *Sent:* Monday, April 17, 2023 9:17 AM
> *To:* Kathy Kleiman <Kathy at kathykleiman.com>
> *Cc:* gnso-gac-closed-generics at icann.org; Sophie Hey
> <sophie.hey at comlaude.com>; Melissa Peters Allgood
> <melissa.allgood at icann.org>
> *Subject:* Re: [gnso-gac-closed-generics] For feedback - non
> anti-competitive behaviour language
>
> Good morning
>
> Personally, would really find it useful discussing these important
> points on ca Call rather than just exchanging views on mailing list;
>
> best
>
> Nigel
>
> On Sun, 16 Apr 2023 at 18:39, Kathy Kleiman <Kathy at kathykleiman.com>
> wrote:
>
> Hi Sophie,
>
> I'm not sure I am following all of your edits, and I would
> certainly like to, especially as Melissa is now asking for an up
> or down vote.
>
> Could you kindly share with us your version of III(2)(g) as it
> would exist with all of the edits you propose below? I provide a
> clean version of our current version below.
>
> Also, are you proposing edits to any other section than the
> current III(2)(g)? If so, could you show us exactly where those
> edits would be and how the section would read?
>
> Best and many tx!!
>
> Kathy
>
> ---------------- Current Framework v.2 - Application III(2)(g)
> -----------------------
>
> a.[UNDER DISCUSSION] *Demonstrate the requirement of
> representativeness OR of non anti-competitive behavior. *
>
> 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 behavior”, applicants must commit
> that its use of this closed generic gTLD will be consistent with
> principles of competitive neutrality, non-discrimination and
> transparency. [Now deleted:*
>
> o "Representativeness" may be demonstrated by showing support
> from a significant part OR the whole of that group that
> considers itself described by the closed generic term. (This
> criterion can be fulfilled, for example, by the applicant being
> an umbrella organization of the industry in question.)
>
> oThe application must show that significantly "interested
> parties," including competitors, have been consulted and engaged
> for input prior to submission of the application.
>
> oShould an applicant need to demonstrate that it has the support
> of its peers/competitors to operate the closed generic gTLD?
>
> ---------------------------------------------------------------------------------------------
>
> On 4/14/2023 4:55 AM, Sophie Hey wrote:
>
> 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
>
> <https://comlaude.com/>
>
> 28-30 Little Russell Street,
> London WC1A 2HN, UK
> *T* +44 (0) 20 7421 8250
> *Ext* 252
>
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> intended recipient. They may not be disclosed, used by or copied in
> any way by anyone other than the intended recipient. If you have
> received this message in error, please return it to the sender
> (deleting the body of the email and attachments in your reply) and
> immediately and permanently delete it. Please note that Com Laude
> Group Limited (the “Com Laude Group”) does not accept any
> responsibility for viruses and it is your responsibility to scan or
> otherwise check this email and any attachments. The Com Laude Group
> does not accept liability for statements which are clearly the
> sender's own and not made on behalf of the group or one of its member
> entities. The Com Laude Group is a limited company registered in
> England and Wales with company number 10689074 and registered office
> at 28-30 Little Russell Street, London, WC1A 2HN England. The Com
> Laude Group includes Nom-IQ Limited t/a Com Laude, a company
> registered in England and Wales with company number 5047655 and
> registered office at 28-30 Little Russell Street, London, WC1A 2HN
> England; Valideus Limited, a company registered in England and Wales
> with company number 6181291 and registered office at 28-30 Little
> Russell Street, London, WC1A 2HN England; Demys Limited, a company
> registered in Scotland with company number SC197176 and registered
> office at 15 William Street, South West Lane, Edinburgh, EH3 7LL
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, a
> corporation incorporated in the State of Washington and principal
> office address at Suite 332, Securities Building, 1904 Third Ave,
> Seattle, WA 98101; Com Laude (Japan) Corporation, a company registered
> in Japan with company number 0100-01-190853 and registered office at
> 1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan; Com Laude Domain ESP
> S.L.U., a company registered in Spain and registered office address at
> Calle Barcas 2, 2, Valencia, 46002, Spain. For further information see
> www.comlaude.com <https://comlaude.com/>
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