[gnso-gac-closed-generics] For feedback - non anti-competitive behaviour language
Kathy Kleiman
Kathy at KathyKleiman.com
Tue Apr 18 15:06:47 UTC 2023
Hi Sophie,
The language you have proposed to replace in III(2)(g)/is this: #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/.
But this #2 is language that many people have worked on: Jorge, Jason,
Nigel, Ian, Greg, me, others. People with competition backgrounds and
concerns. It is language grounded in the .SWISS principles which we have
discussed through the entire length of our work in this Small Group.
As we discussed when you first raised this language, soon after our DC
meeting, (I think you said it came from an Australian competition
statute, but we never saw a citation for checking and understanding its
context, legislative history, etc), the competitive bad behavior of the
language is not particularly relevant to Top Level Domains and second
level domains. Specifically, ICANN is not overseeing issues of
competition in the field, certainly not collusion (secret agreements) or
exclusive dealing (e.g, forcing someone to sell all of their
goods/services to one company, but not to others competing in the field).
As I shared at the time, our issue of competition in TLDs is one of
words and Trademark Law provides a much closer guide. Trademark law is
concerned with preventing the monopolization of basic words of a
business or industry by one competitor. Thus, national trademark laws
around the world prevent prevent registration of the generic words of a
business or industry as trademarks by one competitor to the exclusion of
others.
Thus, I would respectfully submit that the wording for #2
Non-Anti-Competitive Behavior in Framework v.2 -- now edited over time
(you can see an evolution of edits in the document) /is carefully
thought out and worked through text - /and should remain/.//
/
Of course, if you want to add more definitions or clarifications - as
sub-bullets - I would warmly appreciate it.
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
>
> *comlaude.com <http://comlaude.com/>*
>
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> <https://twitter.com/comlaude?lang=en>****
> <https://www.facebook.com/ComLaude/>****
> <https://www.youtube.com/@comlaude>
>
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> The contents of this email and any attachments are confidential to the
> 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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