[gnso-gac-closed-generics] FOR REVIEW: Proposed Update to "Non Anti-Competitive Behavior" Discussion Draft v2 text

[Christian Wheeler]

Hello all,

Following your robust discussion yesterday, staff has prepared updated text for Section III.2.g.2 of the Discussion Draft v2<https://docs.google.com/document/d/1wtLVcyWhyrCaYl1iqlAncaIyrqpS--0aPCTjpwMue7I/edit?usp=sharing> document. We recognize your discussion on this topic is ongoing; this proposed update is intended to capture your discussions to date and provide a potential basis for final agreement.

Please review the proposed update below and respond on the mailing list with your questions, red lines, or other needs. Thank you.

Kind regards,
Christian (on behalf of Melissa Allgood and the staff team supporting this Facilitated Dialogue)


Current text:
III.2.g. ​​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”, an applicant must commit that its use of this closed generic gTLD will be consistent with principles of competitive neutrality, non-discrimination and transparency.

Proposed Update:

  1.  For “non anti-competitive behavior”, an applicant must commit that its use of this closed generic gTLD will be consistent with principles of competitive neutrality, non-discrimination and transparency. This commitment must be reflected in the registry operator’s contract with ICANN, which may be in the form of a Code of Conduct or as part of a specification to the extent that one is developed to govern a registry operator’s use of a closed generic gTLD.
·         Explanatory Note:
o    This criterion builds on the requirements that applicants of closed generic gTLDs must state their public interest goal(s) and intended purpose for the gTLD, and the intended purpose(s) must not be to solely exclude other parties from using the gTLD or to serve the applicant’s own commercial interests.
o    In addition, the group recognizes that the nature of a closed generic gTLD involves exclusive registry access to second-level domains under that gTLD string. The group affirms that this criterion is intended to ensure that an applicant does not misuse its control of a closed generic gTLD to undermine the public interest.
o    The group also affirms that exclusive registry access and single entity control of a closed generic gTLD does not, in and of itself, violate the principles of competitive neutrality, non-discrimination or transparency.
o    In light of the above:
§  “Competitive neutrality” in this regard means that the applicant will not use its control of the closed generic gTLD to gain an advantage in the market or segment of the public toward which its use of the gTLD is directed, to the detriment of its competitors and other entities also operating in that market or sector.
§  “Non-discrimination” in this regard means that the applicant will act fairly in respect of all third parties that also provide the same goods, information or services to the same target market or segment of the public, [and will not exclude access to its goods, information or services on the basis of race, color, religion, sex, age, or other attribute generally recognized as protected categories or classes of people].
§  “Transparency” in this regard means that the applicant will operate its closed generic gTLD in a manner consistent with these principles by establishing, publishing, and adhering to policies governing its provision of goods, services or information through the gTLD.

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