[gnso-gac-closed-generics] Closed Generics Updates - 14 April 2023

Tue Apr 18 15:32:55 UTC 2023

Jorge, et al.

Thank you for taking the time and effort (again) to further explain and provide examples. I appreciate Sophie’s effort to craft some language to find a way forward, but I support the existing text as a baseline for further discussion (if necessary).

I propose that we leave the text as is and move on through the document.

I’m not a competition law expert, but these terms are widely known and applied in a global context. Because of the broad familiarity of these concepts, in my mind they seem absolutely suitable for this ‘framework’. Ultimately, these are fundamental framework concepts applicants will have to abide by, and ICANN will have to enforce. The details on the ‘how’ seem like a policy issue.

Jason

From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org> On Behalf Of Jorge.Cancio--- via gnso-gac-closed-generics
Sent: April 18, 2023 10:37 AM
To: melissa.allgood at icann.org; gnso-gac-closed-generics at icann.org
Subject: Re: [gnso-gac-closed-generics] Closed Generics Updates - 14 April 2023

Dear Melissa and all

Thanks for your email.

Let me first raise a procedural issue. The language on representativity and anti-competitive behavior has been proposed and supported by a majority of members in this facilitated WG. Hence, I feel that that text should remain the basis of our discussions during the next call.

As to the substance:

The notions of competitive neutrality, non-discrimination and transparency, supported by a majority in this effort, stem from the “.swiss” framework for generic SLDs, which we have discussed in various occasions.

Here are some further explanations on how such concepts are understood under the “.swiss”:

In general, the rules on generic SLDs names aim to protect generic names against any appropriation or monopolization by market players who would use these generic names for purely private purposes, thereby gaining a competitive advantage (competitive advantage, inter alia, due to the generic name itself, which is known by its sole meaning resp. which generates traffic and/or spontaneous requests, which clearly positions the actor on a market, which offers him an entry point known without any other by everyone on the Internet, etc....).

This implies that those who apply for and use generic names must respect the following guarantees:

-           Competitive neutrality: this is the main criterion that "replaces" the fact that an applicant/agent does not represent all or part of the community concerned, i.e. who does not fulfill the first prong of representativeness (attention: under .swiss framework also an applicant who represents the community concerned must guarantee competitive neutrality insofar as he must be at the service of the whole of the respective branch that is represented). In concrete terms, this means that the person who operates a generic SLD must be a neutral player in the market, i.e. a player who does not participate directly in the market concerned (= who does not offer services or products directly related to the category designated by the generic name concerned).

-           Non-discrimination: any conditions of participation or use of the generic domain name(s) concerned that are set by the applicant must be open to any actor in the sector or market concerned (in some sense of the branch of activity concerned) on objectively reasonable terms, including the financial cost required for participation or use (which must not be "exclusionary" for small market players or for those who are not members of the association/union/foundation representing the sector that operates the domain name concerned)

-           Transparency: any conditions of participation or use of the generic domain name(s) concerned must be published and easily accessible to all players in the market concerned

I feel that the above is a solid (and tested) basis for further discussions.

We may of course adapt the conditions to the context of a generic TLD. Yet the provisions have to be meaningful and avoid conveying any competitive advantage to the operator of a closed generic TLD.  And what would IMO be unacceptable to me is to water them down to a “least common denominator” at the demand of a minority of participants.

Kindly

Jorge

Von: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org<mailto:gnso-gac-closed-generics-bounces at icann.org>> Im Auftrag von Melissa Peters Allgood
Gesendet: Freitag, 14. April 2023 20:34
An: gnso-gac-closed-generics at icann.org<mailto:gnso-gac-closed-generics at icann.org>
Betreff: [gnso-gac-closed-generics] Closed Generics Updates - 14 April 2023

Hi all –

I want to share a bit of the work that staff has done to support your efforts and provide more detail about the approach to our upcoming calls.

Discussion Draft v2.1<https://docs.google.com/document/d/1wtLVcyWhyrCaYl1iqlAncaIyrqpS--0aPCTjpwMue7I/edit>
We will continue to work our way through all your inputs into this document. It has been cleaned up slightly, hence the v2.1, but nothing of substance has been altered. We will move through this document in the following manner:

  *   Section III.  Applying for a Closed Generic gTLD
  *   Section IV. Evaluating a Closed Generic gTLD Application
  *   Section V. Contracting & Post-Delegation Review
  *   Definitions
  *   Policy questions and possible implementation questions based on group discussions to date
     *   I don’t anticipate getting into the substance of these and will simply ask if the areas detailed properly encapsulate other conversations had by this group

In comments, staff have identified possible areas of duplication in upcoming points under discussion. When such areas arise, I will ask for the temperature of the room on the duplication issue before possibly moving onto the substance of the framework element.

Closed Generics Framework v3<https://docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit>
This is a clean copy of framework elements from Discussion Draft v2.1 where the group has demonstrated broad agreement. This document will continue to evolve as you work through the remaining sections of Discussion Draft v2.1. Please keep this document clean. We will consider this document as a whole after we complete the remaining work found in Discussion Draft v2.1.

Proposed Edits to Representativeness or Non Anti-Competitiveness
Sophie has shared proposed edits to this element on the mailing list. Please respond on the mailing list if:

  1.  You disagree and this a red line for you
  2.  You wish to state a preference between the options presented
Staff will incorporate your feedback on this element into Discussion Draft v2.1.

Upcoming Discussions
As we continue to work through Discussion Draft v2.1, I’d remind you that this is not the time to rehash previous positions. We all understand that many elements under discussion may not be the preference of a given individual while also not rising to the level of personal red line. Accordingly, I ask you limit interventions to clarifying questions and/or indications that the text under discussion is a personal red line.

Finally, at this point in the work I ask you focus your energy on the spirit and intention of each framework element under discussion rather than details of the text. I recognize this is far easier said than done, but I ask we all try.

As always, my sincere thanks for your continued hard work. We are getting there!

Wishing you all a lovely weekend,
Melissa
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