[gnso-gac-closed-generics] Kathy's Use Cases

[Kathy Kleiman]

Hi Jeff,

Tx you for the close and rapid reading of my materials. Much 
appreciated! As you know, the criteria for Community Objection (an 
objection procedure) and Community Priority Evaluation (a category of 
applicant in the first round) are close but not identical. And we are 
working to create a new category of applicant: closed generic. I think 
earlier work can be useful.

You are right to point out .POLO could be an issue if only the US Polo 
Association brought the proceeding.  As with .mobile (CTIA joined with 
GSMA), the US Polo Association (which brought this Community Objection 
against Ralph Lauren Corporation with its men's, women's and children's 
clothing line under the "Polo" name) joined with related groups.  The 
Expert who decided this proceeding wrote in his decision: "USPA is a 
full member of the Federation of International Polo ("FIP"), which has 
been recognized as the worldwide body of the sport of polo, representing 
the interests of over 85 polo associations around the globe... According 
to the Objector, FIP and seven other polo clubs (Austrian Polo 
Association, Dutch Polo Association, Federacion Mexicana de Polo, Monte 
Carlo Polo Club, Northern Ireland Polo Club, Polo de Paris, and Quito 
Polo Club) as well as ten U.S.A. polo clubs join the Objection as 
"related parties.""

But you have identified a key question before us:  You wrote below=> 
"Stated another way, operating as closed generic does not benefit the 
community necessarily, but rather benefits the organization and its 
users (which may be some of the community, but not all)."  I'm not sure 
this is true, but it is certainly an important issue for us to figure out.

In other words, Should a company/organization/association who chooses to 
register a future closed generic gTLD represent a /significant portion 
of the community to which the string may be explicitly or implicitly 
targeted/(drawing from language of the US Polo Association proceeding, 
among others)?  This seems to be a key question for us to resolve.

Best regards, Kathy

On 1/12/2023 11:00 PM, Jeff Neuman wrote:
> Thank you for this Kathy.  But the criteria you have given are for 
> "Community TLDs" which is not synonymous with a closed generic.    If 
> a community wanted to operate for the benefit of that community, it 
> would not need this new "closed generic" category.  It would simply 
> apply as a community.
>
> If your use case is that the US Polo Association that applied as a 
> community for .polo said it represents the entire polo community, but 
> it will only allow registrations by the US Polo Association members 
> and no one else, then that in theory could be a "Closed Generic", but 
> by definition it would fail a community analysis because the 
> eligibility requirements for a string are not reasonably related to 
> the community (which is polo in general). Stated another way, 
> operating as closed generic does not benefit the community 
> necessarily, but rather benefits the organization and its users (which 
> may be some of the community, but not all).
>
> My point is that we should not be using the community criteria in the 
> closed generic discussion.  They are two separate concepts that need 
> to be destinct.
>
> I would encourage us to look more at the proposed use of the TLD and 
> how a closed generic can be used in a manner that can serve a public 
> interest goal.  Focusing on the WHO I believe takes us down a rabbit 
> hole in my view.
>
> In that vein it occurred to me that we have spent a lot of time on the 
> who because our examples were all established institutions, 
> associations, IGOs, etc.  But today I came up with a cool Closed 
> Generic idea which I have much more flushed out.  But the short 
> version is this:
>
> I start a company to compete with ancestry.com and I want a TLD for 
> .familytree.  I set up a portal that is able to aggregate data from 
> each of the DNA/genealogy services, census data, newspapers, 
> cemeteries, etc. when a user signs up for my service and consents to 
> link their accounts to those other services.  I set up my family tree 
> on neuman.familytree and I grant access to whomever I want to be able 
> to see my data, but also where applicable to import portions of my 
> family tree into theirs and I can export their family tree data into 
> mine.   So my aunt/uncle/cousins whose last name is Lynn has 
> Lynn.familytree where I can find their data and import the potions 
> that relate to my family tree.  Domain Names are only owned by my 
> company that licenses the use of the .familytree domain names to paid 
> subscribers of my service.
>
> This example has some unique aspects that we previously have not 
> really focused on:
>
>  1.  The benefit to the registry is purely commercial
>  2. I am a new start up business and not an association or large
>     commercial player
>  3. Benefits are accrued to my members because they are satisfied
>     customers and can easily enable others to find them (when they
>     want to be found).
>
>
>  Sincerely,
>
> Jeffrey J. Neuman
> Founder & CEO
> JJN Solutions, LLC
> Jeff at JJNSolutions.com
> +1.202.549.5079
> Http://www.jjnsolutions.com
>
>
> ------------------------------------------------------------------------
> *From:* gnso-gac-closed-generics 
> <gnso-gac-closed-generics-bounces at icann.org> on behalf of Kathy 
> Kleiman <Kathy at KathyKleiman.com>
> *Sent:* Thursday, January 12, 2023 10:31 PM
> *To:* gnso-gac-closed-generics at icann.org 
> <gnso-gac-closed-generics at icann.org>
> *Subject:* [gnso-gac-closed-generics] Kathy's Use Cases
>
> Hi All,
>
> I presented what sounded like a rather complex use case on Monday, and 
> it’s much simpler than it sounds! The ICANN Community has already 
> discussed many of terms and concepts we are pondering in our Small 
> Group via a process called the /Community Objection/ to new gTLD 
> applications. Let me share more details in writing/./
>
> Lawyers love “precedent” and there is a lot of valuable precedent in 
> how the ICANN Community created rules to allow Communities to stop 
> applications for new gTLD strings they felt involved words or terms 
> /strongly associated/ with which a group, association, set of 
> companies, or set of organizations. Specifically, our ICANN rules 
> allowed (and will continue to allow in future gTLD rounds) the filing 
> of a Community Objection defined as follows:
>
> “*Community Objection* – There is substantial opposition to the gTLD 
> application from a significant portion of the community to which the 
> gTLD string may be explicitly or implicitly targeted.” /Applicant 
> Guidebook 3.2.1/ [1] <#_edn1>
>
> To challenge an Applicant’s choice of a proposed new gTLD, the 
> group/association/company/organization had to show its qualifications 
> as an /established institution and level of global recognition/ and 
> /ongoing relationship with a clearly delineated community/, and 
> /strong association between the applied-for gTLD string and the 
> community/, and /a likelihood of material detriment to the rights or 
> legitimate interests of a significant portion of the community/ if the 
> applied-for gTLD string was delegated to the applicant(s) as registry.
>
>  The International Centre for Expertise of the International Chamber 
> of Commerce (chosen by ICANN to run these proceedings) picked an 
> Expert who then decided whether the group/ 
> association/company/organization could stop the new gTLD application.
>
>  Of the Community Objections filed in the first round, the 
> groups/associations/companies/ organizations below prevailedand these 
> are the “Use Cases” I shared on Monday:[ii] <#_edn2>
>
> .architect
>
> 	
>
> International Union of Architects
>
> .banking
>
> 	
>
> International Banking Federation
>
> .mobile
>
> 	
>
> CTIA The Wireless Assoc. joined by GSMA
>
> .polo
>
> 	
>
> US Polo Association
>
> .rugby
>
> 	
>
> International Rugby Board (now World Rugby)
>
> .ski
>
> 	
>
> Federation International de Ski
>
> .sport
>
> 	
>
> SportAccord
>
> .sports
>
> 	
>
> SportAccord
>
> //
>
> For future closed generic gTLDs, this process gives us a good model, 
> namely that the group/association/company/organization filing for a 
> closed generic gTLD should show that it is:
>
> -an */established institution with global recognition/*, and **
>
> -an */ongoing relationship with the clearly delineated community/*, and
>
> -a */strong association with the applied-for gTLD string, /*and*//*
>
> -a clear proposal to use the gTLD for the benefit */of a significant 
> portion of the community to which the string may be explicitly or 
> implicitly targeted./*
>
> (Quick note that the burden of proof must be with the group, 
> association, company, or organization applying for a new gTLD closed 
> generic application and they must show this proof clearly in the 
> public portion of their application to ICANN and the Community.)
>
> I look forward to discussing with you!
>
> Kathy
>
> *Background information:*
>
> *New gTLD Applicant Guidebook Rules for Community Objections*
>
> *(New gTLD Applicant Guidebook 2012)*
>
> *Key Terms and Criteria for Proving Them*[iii]* <#_edn3>***
>
> Below are the key terms that the 
> group/association/companies/organizations in the table above use in 
> their proceedings before The International Centre for Expertise of the 
> International Chamber of Commerce to stop a proposed gTLD string and 
> application.
>
> “*/It is an established institution/* – Factors that may be considered 
> in making this determination include, but are not limited to:
>
> • Level of global recognition of the institution;
>
> • Length of time the institution has been in existence; and
>
> • Public historical evidence of its existence, such as the presence of 
> a formal charter or national or international registration, or 
> validation by a
>
> government, inter-governmental organization, or treaty. The 
> institution must not have been established solely in conjunction with 
> the gTLD
>
> application process.” /Applicant Guidebook 3.2.2.4///
>
> */It has an ongoing relationship/*/*with a clearly delineated 
> community *– /Factors that may be considered in making this 
> determination include, but are not limited to:
>
> • The presence of mechanisms for participation in activities, 
> membership, and leadership;
>
> • Institutional purpose related to the benefit of the associated 
> community;
>
> • Performance of regular activities that benefit the associated 
> community; and
>
> • The level of formal boundaries around the community.//
>
> /Applicant Guidebook 3.2.2.4/
>
> If the group met this “standing” requirement, the Expert would hear 
> the rest of their arguments, and the Community had to show:
>
> */Substantial Opposition/*– The objector must prove substantial 
> opposition within the community it has identified itself as 
> representing. A panel could balance a number of factors to determine 
> whether there is substantial opposition, including but not limited to:
>
> • Number of expressions of opposition relative to the composition of 
> the community;
>
> • The representative nature of entities expressing opposition;
>
> • Level of recognized stature or weight among sources of opposition;
>
> • Distribution or diversity among sources of expressions of 
> opposition, including:
>
> §Regional
>
> §Subsectors of community
>
> §Leadership of community
>
> §Membership of community
>
> • Historical defense of the community in other contexts; and
>
> • Costs incurred by objector in expressing opposition, including other 
> channels the objector may have used to convey opposition.
>
> If some opposition within the community is determined, but it does not 
> meet the standard of substantial opposition, the objection will fail.
>
> /Applicant Guidebook 3.5.4/
>
> And
>
> */Targeting/*/– /The objector must prove a strong association between 
> the applied-for gTLD string and the community represented by the 
> objector. Factors that could be balanced by a panel to determine this 
> include but are not limited to:
>
> • Statements contained in application;
>
> • Other public statements by the applicant;
>
> • Associations by the public. /Applicant Guidebook 3.5.4/
>
> And
>
> */Detriment/*/– /The objector must prove that the application creates 
> a likelihood of material detriment to the rights or legitimate 
> interests of a significant portion of the community to which the 
> string may be explicitly or implicitly targeted. An allegation of 
> detriment that consists only of the applicant being delegated the 
> string instead of the objector will not be sufficient for a finding of 
> material detriment. Factors that could be used by a panel in making 
> this determination include but are not limited to:
>
> • Nature and extent of damage to the reputation of the community 
> represented by the objector that would result from the applicant’s 
> operation of the applied-for gTLD string;
>
> • Evidence that the applicant is not acting or does not intend to act 
> in accordance with the interests of the community or of users more 
> widely, including evidence that the applicant has not proposed or does 
> not intend to institute effective security protection for user interests;
>
> • Interference with the core activities of the community that would 
> result from the applicant’s operation of the applied-for gTLD string;
>
> • Dependence of the community represented by the objector on the DNS 
> for its core activities;
>
> • Nature and extent of concrete or economic damage to the community 
> represented by the objector that would result from the applicant’s 
> operation of the applied-for gTLD string; and
>
> • Level of certainty that alleged detrimental outcomes would occur.
>
> /Applicant Guidebook 3.5.4/
>
> (text also attached as Word doc)
> ------------------------------------------------------------------------
>
> [1] <#_ednref1>3.2.1 Grounds for Objection, gTLD Applicant Guidebook, 
> Module 3, 
> https://newgtlds.icann.org/sites/default/files/objection-procedures-04jun12-en.pdf
>
> [ii] <#_ednref2> ICC: ICANN New gTLD Dispute Resolution, 
> https://iccwbo.org/dispute-resolution-services/icann-gtld-process/expert-determinations/ 
>
>
> [iii] <#_ednref3> New gTLD Applicant Guidebook 4 June 2012, Module 3 
> Objection Procedures, https://newgtlds.icann.org/en/applicants/agb
>
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