[Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs

Kathy Kleiman kathy at kathykleiman.com
Fri Nov 22 17:05:55 UTC 2019

Hi Marc, If you are going to quote me, I would ask that you please do it 

As regards your point below, it sounds like the gTLD operator IS using 
the gTLD space, as another commenter pointed out.


On 11/21/2019 2:28 PM, trachtenbergm at gtlaw.com wrote:
> Kathy,
> I  don’t think that this proposal is fundamental, basic, or 
> incontrovertible and you should be careful about using words like 
> “incontrovertible” to describe things that are your opinion.  First, 
> why should someone lose their gTLD if they are still figuring out 
> their business model or facing some challenges in implementation?
> Second, what does “use” mean?  What if a gTLD operator wanted to 
> operate a business model that was not based on selling domain names – 
> for example a social network or other platform providing services – 
> and wanted the gTLD to be able to operate this platform in a secure 
> space and just used one promotional second level name so that users 
> could access the platform but would not offer second levels to third 
> parties?  That would be quite innovative, and it has been stated 
> innumerable times that one of the purposes of the new gTLD program was 
> to foster innovation in the domain name space.  While there hasn’t 
> been much innovation in new gTLDs, Alex’s proposal will ensure that 
> there never will be and the only business model allowed for gTLDs 
> other than .brands will be selling names.  There is no innate 
> incontrovertible human right to be able to register any domain name in 
> any gTLD and as Kristine pointed out, Alex’s proposal attempts to 
> solve a problem that doesn’t exist.
> Best regards,
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, 
> IL 60601
> Tel 312.456.1020
> Mobile 773.677.3305
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> Greenberg Traurig
> *From:*Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] *On 
> Behalf Of *Kathy Kleiman
> *Sent:* Thursday, November 21, 2019 12:42 PM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
> Alexander's proposal below seems fundamental and basic, and almost 
> incontrovertible. If you are going to ask for a gTLD space, use it.  
> That makes sense and is a underlying premise of much of the Applicant 
> Guidebook with its roll-out provisions.
> I support.
> Best, Kathy
> On 11/20/2019 11:49 AM, Alexander Schubert wrote:
>     Dear Jeff,
>     As discussed on the call yesterday here a brief suggestion
>     regarding a “use requirement”. First a summary of my suggestion:
>     *The new RA (Registry Agreement) should contain a clause that
>     denies contract renewal if registries have not had a Sunrise
>     registration phase (Spec-13 Brand Registries would be exempted
>     from this clause).*
>     Here my rationale for this:
>     Obviously the 2007 PDP demanded a use requirement. Hence currently
>     registries face steep penalties for not contracting (application
>     will be withdrawn) and not testing/entering the root (cancelation
>     of the contract).
>     Let’s be cognizant of the 3 gTLD categories that emerged in 2012:
>     1.Spec 13 gTLDs (Brands)
>     2.Geo gTLDs (mainly cities)
>     3.All others
>     We can’t always find “one size fits all” solutions – and claim
>     that  in absence of a global solution we will not create ANY
>     solution at all. That said: I can’t speak for the category 1. And
>     as Martin Sutton said on the Monday GNSO call: if “use” was
>     defined by “number of domains”: nothing more easy than registering
>     a number of domains. So yes: for brand gTLDs it’s nifty to
>     “define” a “use requirement” – maybe someone else can come up with
>     a solution for Spec-13 registries.
>     BUT: For categories 2 and 3 I think the solution is simple! We
>     already steeply penalize if the prospective registry doesn’t
>     contract or engage in testing. There are grace periods to do so (I
>     think 9 month). We could use the same grace period for “startup” –
>     which is opening the string up for registrations in Sunrise!
>     At BARE minimum we should put into the new RA (Registry Agreement)
>     that failure for categories 2 and 3 (non-Spec-13 registries) to
>     startup (start sunrise) WILL be a reason to deny contract renewal!
>     A DECADE of not starting up should be a clear sign of failure.
>     This solution is NOT impacting Spec 13 applicants. We can discuss
>     separately whether or not we wish to add a “use requirement” for
>     them as well. This solution would also NOT impact 2012 round new
>     gTLDs.
>     Thanks,
>     Alexander.berlin
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