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

Tue Apr 18 20:02:18 UTC 2023

Thanks John.  I can live with your number 2 If all of those acts are predicated in violation of national laws.

In other words, if I were to rewrite your #2 as I am ok with it being interpreted, it would be:

.            For “non anti-competitive behaviour”, applicants must commit that its use of this closed generic gTLD will not be used to violate applicable national laws prohibiting unfair methods of competition.  This includes, but is not limited to, , such as collusion, restraints of trade that prohibit third parties from supplying or offering to supply goods or services, or otherwise monopolistically controlling, limiting, or restricting the supply of goods or services.

In other words, it would not be for ICANN to determine what is “anti-competitive”, but rather such determinations would be made by courts of national jurisdiction.  If they found a violation of law, then ICANN would have to ensure the registry takes remedial actions.  ICANN Compliance should never be in the position of having to determine whether an action is ”anti-competitive” in any jurisdiction.

Hopefully this is what you meant John.  If so, I can support.  If not, it is a red line for me to have ICANN compliance act as a substitute for regulator of national laws.

Sincerely,

Jeff

[cid:image001.png at 01D9720F.2492B2D0]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com

From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org> On Behalf Of John McElwaine
Sent: Tuesday, April 18, 2023 11:59 AM
To: Melissa Peters Allgood <melissa.allgood at icann.org>; gnso-gac-closed-generics at icann.org
Subject: Re: [gnso-gac-closed-generics] Closed Generics Updates - 14 April 2023

With respect “representativeness”, I must respectfully state that the following is a redline for me:

  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.

The revisions would only allow for a closed generic applicant that was an international trade association of businesses.  This is far afield from what we have discussed and would fall into the category of an impermissible Policy determination.

I agree with the concept of  “Non Anti-Competitiveness” as a part of the Framework process as a part of the delegation section, which is Section IV.  However, we are discussing this mostly in a double-negative way.  Moreover, this is an area of law that I fear we are trying to define and which is outside of our knowledge.  I prefer something like Proposed Alternative #1, which I would suggest is revised as follows:

2.            For “non anti-competitive behaviour”, applicants must commit that its use of this closed generic gTLD will not be used to violate national laws prohibiting unfair methods of competition, such as collusion, restraints of trade that prohibit third parties from supplying or offering to supply goods or services, or otherwise monopolistically controlling, limiting, or restricting the supply of goods or services

Thanks,

John

From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org<mailto:gnso-gac-closed-generics-bounces at icann.org>> On Behalf Of Melissa Peters Allgood
Sent: Friday, April 14, 2023 2:34 PM
To: gnso-gac-closed-generics at icann.org<mailto:gnso-gac-closed-generics at icann.org>
Subject: [gnso-gac-closed-generics] Closed Generics Updates - 14 April 2023

◄External Email► - From: gnso-gac-closed-generics-bounces at icann.org<mailto:gnso-gac-closed-generics-bounces at icann.org>

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://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1wtLVcyWhyrCaYl1iqlAncaIyrqpS-2D-2D0aPCTjpwMue7I_edit&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAm5U0rBXiZs3BfB3GfKU2uR&m=ODO8endu2yFS9Q7WIZvDyDo1jWyvQo0fVRf64r8ZyBJHmS1kTm2DEU42C8rV4FGM&s=n6Zv8I5X6-mQu2qIZs8CpuYTk5kqq3ZsvNMfiqiSDUM&e=>
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://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1u0Nb9-5FCJ-2D6R-5FZF4bt9wbkzxLhMKu64aKY-5FvzS3QixgQ_edit&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAm5U0rBXiZs3BfB3GfKU2uR&m=ODO8endu2yFS9Q7WIZvDyDo1jWyvQo0fVRf64r8ZyBJHmS1kTm2DEU42C8rV4FGM&s=k27Asp9yNGvBNSgyJY2Pi8f1F7M5gBtFQCRbjkgfgm0&e=>
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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