[Gnso-newgtld-wg] Closed Generics and the 2012 Round
Kathy Kleiman
kathy at kathykleiman.com
Thu Aug 29 11:15:47 UTC 2019
Ditto for Open Generics, Martin. It's all part-and-parcel of the
post-reveal process. The reason many people were able to support closed
Brands is that we had clearly banned Closed Generics.
Best, Kathy
On 8/29/2019 5:29 AM, Martin Sutton wrote:
> Hi Kathy,
>
> You may not have been participating at the time but the WG reviewed
> TLD types earlier this year which covered .brands/spec 13. These are
> well-defined and as you note, took considerable time to develop
> Specification 13, which had substantive debate and public comment
> periods before being approved by the Board. These are different to
> closed generics and this topic should not be extended to .brands
> otherwise we will repeat discussions already undertaken by the WG.
>
> Kind regards,
>
> Martin
>
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>> On 29 Aug 2019, at 00:15, Kathy Kleiman <kathy at kathykleiman.com
>> <mailto:kathy at kathykleiman.com>> wrote:
>>
>> Hi All,
>>
>> To borrow and modify a phrase from Anne -- please keep in mind that
>> that was absolutely nothing in the 2012 AGB that provided for .BRAND
>> protection (Specification 13 dates back to special action by the
>> Board in 2014).
>>
>> In response to widespread calls, we clarified that Closed Generics
>> would be banned and created a balance in allowing .BRANDS to be
>> closed. I am assuming that all of this post-2012 work is being put
>> up for review and re-evalaution...
>>
>> Best, Kathy
>>
>> On 8/28/2019 3:51 PM, Aikman-Scalese, Anne wrote:
>>
>>> Hi Heather,
>>> There is no prohibition on a registry seeking a reasonable contract
>>> modification from ICANN in light of all circumstances. It’s
>>> codified in Consensus Policy as the*RSEP*process. An unreasonable
>>> denial of that RSEP request for contract modification is fertile
>>> ground for a Request for Reconsideration, Independent Review
>>> Process, all the way up to and including a lawsuit.
>>> See https://www.icann.org/resources/pages/rsep-2014-02-19-en and
>>> note the legitimate purpose to “modify” or “remove” an existing
>>> Registry service.
>>> Let’s take the real life example of .BEAUTY – originally proposed as
>>> closed –now delegated as “open” and NOT launched (at least according
>>> to ICANN Sunrise records at the link provided by Rubens and I don’t
>>> see anything atwww.nic.beauty <http://www.nic.beauty/>. Are we
>>> really saying that if L’Oreal’s competitor applies for and gets
>>> .PRETTY as a Closed Generic based on a 2022 application, it doesn’t
>>> matter and L’Oreal is stuck with remaining an open generic even if
>>> they have not launched? (I don’t represent L’Oreal or any other
>>> beauty industry client.) Keep in mind that there was absolutely
>>> nothing in the 2012 AGB that prohibited an application for a Closed
>>> Generic. (Sounds vaguely familiar to another IRP proceeding.)
>>> Maybe out of scope for Sub Pro, but GNSO Council will have to deal
>>> with this if they don’t want a “logjam” at the Board level as to any
>>> new Closed Generic policy that may be developed.
>>> Anne
>>> *From:*Heather Forrest <haforrestesq at gmail.com
>>> <mailto:haforrestesq at gmail.com>>
>>> *Sent:*Tuesday, August 27, 2019 8:44 PM
>>> *To:*Maxim Alzoba <m.alzoba at gmail.com <mailto:m.alzoba at gmail.com>>
>>> *Cc:*Aikman-Scalese, Anne <AAikman at lrrc.com
>>> <mailto:AAikman at lrrc.com>>;gnso-newgtld-wg at icann.org
>>> <mailto:gnso-newgtld-wg at icann.org>
>>> *Subject:*Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round
>>> *[EXTERNAL]*
>>> ------------------------------------------------------------------------
>>> Thanks, Maxim - I understand that, but amendments to an in-force
>>> contract are not the same as repudiating a contract and asking for a
>>> new contract to apply. The terms of the RA (clause 7.6(a) re
>>> "Special Amendment") and the AGB expressly provided for amendments
>>> to both.
>>> AGB Module 6, cl 14: "ICANN reserves the right to make reasonable
>>> updates and changes to this applicant guidebook and to the
>>> application process, including the process for withdrawal of
>>> applications, at any time by posting notice of such updates and
>>> changes to the ICANN website, including as the possible result of
>>> new policies that might be adopted or advice to ICANN from ICANN
>>> advisory committees during the course of the application process.
>>> Applicant acknowledges that ICANN may make such updates and changes
>>> and agrees that its application will be subject to any such updates
>>> and changes. In the event that Applicant has completed and submitted
>>> its application prior to such updates or changes and Applicant can
>>> demonstrate to ICANN that compliance with such updates or changes
>>> would present a material hardship to Applicant, then ICANN will work
>>> with Applicant in good faith to attempt to make reasonable
>>> accommodations in order to mitigate any negative consequences for
>>> Applicant to the extent possible consistent with ICANN's mission to
>>> ensure the stable and secure operation of the Internet's unique
>>> identifier systems."
>>> I can anticipate here that someone will say: "But Module 6 cl 14
>>> expressly anticipates changes to the AGB and gives the 2012
>>> applicant a right to demonstrate material hardship caused by the
>>> 'new' AGB being on more favourable terms!" I don't think that will
>>> be consistent with standard contract law interpretation in US
>>> courts, as only the 2012 applicants agreed to be contractually bound
>>> by the 2012 AGB, while new round applicants will only have the
>>> option of agreeing to whatever the AGB (or whatever name it has) is
>>> at that time, not a choice between old AGB or new AGB. A strict
>>> interpretation of "changes to/this applicant guidebook/" logically
>>> suggests that the 2012 AGB binds applicants who applied in 2012,
>>> because by applying, they consented to the application of the 2012
>>> AGB. A new AGB, even if technically an amended version of the prior
>>> document, would apply to new applicants in the "next" round,
>>> whenever that is. Articulated another way, I think Jeff's point to
>>> now is that the charter of SubPro PDP instructs us to develop the
>>> rules that will apply to applicants in this "next" round, not to
>>> unsuccessful or any other applicants of the 2012 round (who already
>>> contractually agreed to a set of rules when they submitted their
>>> application to the TAS). The question of whether the new AGB/RA that
>>> results from SubPro PDP, RPM PDP, CCT Review, etc is to be applied
>>> to 2012 applicants is not within our PDP's scope. That's the
>>> question that would have to go to Council.
>>> Best wishes,
>>> Heather
>>> .
>>> Best wishes,
>>> Heather
>>> On Wed, Aug 28, 2019 at 11:51 AM Maxim Alzoba <m.alzoba at gmail.com
>>> <mailto:m.alzoba at gmail.com>> wrote:
>>>
>>> Heather,
>>>
>>> Formally ICANN changed AGB and RAin 2012 (Pic spec, for
>>> example), after the fees were paid.
>>>
>>> But anyway, we should not mix rules from the different sets.
>>>
>>> Maxim Alzoba
>>> On 28 Aug 2019, at 08:35, Heather Forrest
>>> <haforrestesq at gmail.com <mailto:haforrestesq at gmail.com>> wrote:
>>>
>>> Anne, all,
>>> It seems to me that basic principles of contract law apply
>>> here to keep us out of the weeds. ICANN's legal framework
>>> depends, in its entirety, on contract after all. Applicants
>>> who applied in 2012 under the AGB contractually agreed, by
>>> submitting an application, to the AGB and the base RA that
>>> was incorporated in it. Those applicants did not apply under
>>> a future AGB, or a future RA to reflect that future AGB.
>>> Whether a party on a 2012-era contract can adopt (in the
>>> case of those not yet contracted) the new RA or rescind
>>> current RA and adopt new RA (for those already completed
>>> contracting) is a separate question. I agree with Jeff that
>>> this separate question is not within the scope of the SubPro
>>> charter.
>>> Best wishes,
>>> Heather
>>> On Tue, Aug 27, 2019 at 5:50 AM Aikman-Scalese, Anne
>>> <AAikman at lrrc.com <mailto:AAikman at lrrc.com>> wrote:
>>>
>>> Hi Jeff – Do we have Susan’s draft language on your
>>> first point yet? (You may recall that there were even
>>> discussions about PROHIBITING new applications for the
>>> same string as some still pending from 2012 –that was
>>> not agreed so Susan is working on a statement that 2012
>>> string application processing must be complete before
>>> any new application for that string would be
>>> considered. HOWEVER – again here is the “rub” – When
>>> you say 2012 string applications have to be “completed”,
>>> what are you saying about the policy that applies to
>>> those? What if the pending strings from 2012 don’t
>>> meet current new gTLD policy but they did not violate
>>> that policy as of the time of application? We can only
>>> skirt this issue for so long. Are 2012 strings going to
>>> be allowed to update to current gTLD policy in order to
>>> get authorization to proceed or not? Or are you saying
>>> GNSO Council will have to launch another PDP for that
>>> purpose?
>>> *From:*Jeff Neuman <jeff.neuman at comlaude.com
>>> <mailto:jeff.neuman at comlaude.com>>
>>> *Sent:*Monday, August 26, 2019 12:43 PM
>>> *To:*Aikman-Scalese, Anne <AAikman at lrrc.com
>>> <mailto:AAikman at lrrc.com>>;gnso-newgtld-wg at icann.org
>>> <mailto:gnso-newgtld-wg at icann.org>
>>> *Subject:*RE: Closed Generics and the 2012 Round
>>> *[EXTERNAL]*
>>> ------------------------------------------------------------------------
>>> Anne,
>>> Where has it been proposed that applications from 2012
>>> get priority? I am not aware of any recommendation that
>>> we have made that gives “priority” to any applicants
>>> from 2012. We did recommend that any applications that
>>> were still outstanding for a string that is applied from
>>> in a subsequent round be completed.
>>> With respect to Exclusive Generics, the Board resolution
>>> on this matter stated that any applications that wanted
>>> to maintain their “exclusive generic” status would be
>>> “deferred to the next round of the New gTLD Program,
>>> subject to rules developed for the next round…” They
>>> did not state that any of those applications would get
>>> priority. However, there were no applications that were
>>> deferred from the last round.
>>> If we did allow some form of Exclusive Generic in the
>>> next round, then those rules would only apply to new
>>> applicants for TLDs. Discussing what happens to TLDs
>>> from 2012 that wanted to be Exclusive Generics, but
>>> ended up opening their TLDs because of the Board
>>> Resolution is not within the topics contained within our
>>> Charter. So yes if we wanted to discuss that issue we
>>> would need an amendment to our charter to allow us to
>>> tackle that subject. The GNSO could then either grant
>>> our request or farm that issue out to a separate group.
>>> That is within their discretion.
>>> This is no different than any other changes we recommend
>>> where applicants from the past round would want the same
>>> things. For example, if we accept changes to the code
>>> of conduct, the COI, reserved names, agreement, etc.,
>>> the existing registries would not get the benefit of
>>> those changes unless the changes go through a PDP that
>>> has jurisdiction over those issues. All Applications /
>>> TLDs are treated according the to rules for the round in
>>> which they applied. This is true regardless of whether
>>> they have launched yet or not.
>>> I hope this clears things up.
>>> *Jeff Neuman*
>>> Senior Vice President
>>> *Com Laude | Valideus*
>>> D: +1.703.635.7514
>>> E:jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>
>>> *From:*Aikman-Scalese, Anne <AAikman at lrrc.com
>>> <mailto:AAikman at lrrc.com>>
>>> *Sent:*Monday, August 26, 2019 2:55 PM
>>> *To:*Jeff Neuman <jeff.neuman at comlaude.com
>>> <mailto:jeff.neuman at comlaude.com>>;gnso-newgtld-wg at icann.org
>>> <mailto:gnso-newgtld-wg at icann.org>
>>> *Subject:*RE: Closed Generics and the 2012 Round
>>> Thanks Jeff. Your reasoning below is not consistent with
>>> what has been proposed in relation to giving priority to
>>> applications from the 2012 round that have not been
>>> withdrawn. (How is it that this “priority” is in scope
>>> for our WG but nothing else re 2012 applicants is in
>>> scope? AND if I applied for a Closed Generic and
>>> didn’t get it in 2012, why should I have to require
>>> another PDP authorization from GNSO Council in order to
>>> be treated similarly to new applicants and convert to a
>>> Closed Generic? (I believe some open registries that
>>> won contention sets in 2012 may not have not have
>>> actually launched yet. Why would we say that whether or
>>> not they can launch as a Closed Generic is up to GNSO
>>> Council?)
>>> Thank you,
>>> Anne
>>> *From:*Gnso-newgtld-wg
>>> <gnso-newgtld-wg-bounces at icann.org
>>> <mailto:gnso-newgtld-wg-bounces at icann.org>>*On Behalf
>>> Of*Jeff Neuman
>>> *Sent:*Monday, August 26, 2019 5:27 AM
>>> *To:*Jeff Neuman <jeff.neuman at comlaude.com
>>> <mailto:jeff.neuman at comlaude.com>>;gnso-newgtld-wg at icann.org
>>> <mailto:gnso-newgtld-wg at icann.org>
>>> *Subject:*Re: [Gnso-newgtld-wg] Closed Generics and the
>>> 2012 Round
>>> *[EXTERNAL]*
>>> ------------------------------------------------------------------------
>>> Thanks all. We have already got a number of people
>>> signed up for the group. I expect substantive
>>> discussions on this topic to start this week. So, it is
>>> not too late to join. But remember that if you join,
>>> the expectation is that we will attempt to find a
>>> compromise solution that we all can live with (if possible).
>>> You can view the member list for the small group here:
>>> https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Closed+Generics
>>> Please allow a day or two to pass before seeing your
>>> name on the list if you just volunteered over the
>>> weekend or today.
>>> We will not be talking about Closed Generics in our next
>>> meeting tomorrow (late tonight for some of us).
>>> *Jeff Neuman*
>>> Senior Vice President
>>> *Com Laude | Valideus*
>>> D: +1.703.635.7514
>>> E:jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>
>>> *From:*Gnso-newgtld-wg
>>> <gnso-newgtld-wg-bounces at icann.org
>>> <mailto:gnso-newgtld-wg-bounces at icann.org>>*On Behalf
>>> Of*Jeff Neuman
>>> *Sent:*Friday, August 23, 2019 11:01 AM
>>> *To:*gnso-newgtld-wg at icann.org
>>> <mailto:gnso-newgtld-wg at icann.org>
>>> *Subject:*[Gnso-newgtld-wg] Closed Generics and the 2012
>>> Round
>>> All,
>>>
>>> There has been a lot of discussion in the past 24 hours
>>> or so on the applicability of our work on the 2012
>>> applications. Some have expressed concerns about the
>>> “fairness” of establishing a policy or new procedures
>>> for subsequent rounds when Closed Generics were not
>>> allowed in 2012.
>>> The applicable Board Resolution covering Closed Generics
>>> required the 2012 applicants for Closed Generics to do
>>> one of three things. Applicants could have withdrawn
>>> their applications completely, signed the then-current
>>> Registry Agreement which did not allow Closed Generics,
>>> or could have deferred their applications for
>>> consideration in a subsequent round. As we covered on
>>> the call on Thursday, all of the applicants chose either
>>> to convert their applications to open TLDs or withdraw
>>> their applications completely. There were NO applicants
>>> that elected to defer their applications to any future
>>> round.
>>> Therefore, although in theory we could have had some
>>> issues that we needed to address involving applicants in
>>> the 2012 round, the reality is that we do not have any
>>> such issues. To address the arguments about fairness of
>>> any new policy recommendations on applicants from the
>>> previous round, all we can say is that we need to focus
>>> on what the right policy should be first without the
>>> consideration of the fairness or unfairness to previous
>>> applicants from having different rules. If we as a
>>> group determine that the right policy is something other
>>> than what happened in 2012, then it will by up to the
>>> GNSO Council to either set up a new group to deal with
>>> that issue or to refer the issue to this group at a
>>> later date. But for now, as some have stated, that
>>> issue is out of scope for our group.
>>> The reality is that there are many things that this
>>> group is considering which could produce results that
>>> may treat new applicants differently than previous round
>>> applicants. Some of those changes may be favorable to
>>> the new applicants and some less favorable. The same is
>>> true with respect to previous applicants. If we did not
>>> make any changes to policy or implementation for fear of
>>> the impact on previous or new applicants, no changes
>>> would ever be made. The point is that we need to decide
>>> what is the right thing to do, point out to the GNSO
>>> Council the potential impacts, and then leave it to the
>>> Council on what the next steps should be.
>>> Finally, all requests for data or information from ICANN
>>> staff or any outside third party should go through the
>>> Working Group Leadership team. No working group members
>>> should request information directly without Leadership’s
>>> review. Leadership reviews all outstanding action items,
>>> including requests for information, and makes a decision
>>> on what is necessary and what is feasible. We consider
>>> all of these requests seriously and weigh the pros and
>>> cons of getting that data, including time, resources and
>>> cost.
>>>
>>> Thanks for your cooperation and let us know if you have
>>> any comments or questions.
>>> *Jeff Neuman*
>>> Senior Vice President
>>> **
>>> *Com Laude | Valideus
>>> *1751 Pinnacle Drive
>>> Suite 600, McLean
>>> VA 22102, USA
>>>
>>> M: +1.202.549.5079
>>> D: +1.703.635.7514
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>>> www.comlaude.com <http://www.comlaude.com/>
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