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

Tue Nov 26 06:00:48 UTC 2019

Sunrise is a fairly arbitrary and low-quality proxy for "use," and 10 years
is a fairly arbitrary yardstick (meterstick?) for when "use" should occur.
Using Sunrise in this way would stifle innovation and hamper the
development of different uses and models for TLD ownership.  By the ten
year mark, how much money has a registry owner put into the gTLD, even if
it has not been used? What if millions more have been spent on developing
an implementation that isn't ready to launch after 10 years, in spite of
good intentions (as Rubens indicates, all sorts of externalities can get in
the way of even a fairly straightforward business model)?  We would
consider just taking all that away, based on an arbitrary marker at an
arbitrary time?  That's a great way to scare businesses and organizations
(and geographic entities) away from this space.  It's also a great way to
inspire more litigation and dispute resolution, RfR, and IRP practice
(lucrative though that might be for some -- none of whom seem to be
supporting this anyway).

A draconian "use it or lose it" model might make sense in spectrum (they're
not making any more of it), but this is not that.

It's the wrong milestone with the wrong measure for a problem we have not
defined, and can't even agree exists.

It might be interesting to discuss a ban on holding TLDs solely for the
purpose of resale, and to consider how to enforce that.  At least it's a
narrower (though perhaps still hypothetical) problem.  While we're at it,
we could consider having the same sort of ban at the second level, but
that's a different discussion (and probably one for a different Working
Group)....

To clarify (if needed), count me in the "not in favor of the proposal"
column.

Thanks!

Greg

On Mon, Nov 25, 2019 at 6:11 PM Austin, Donna via Gnso-newgtld-wg <
gnso-newgtld-wg at icann.org> wrote:

> Neustar is in the ‘not in favor of the proposal’ camp.
>
>
>
>
>
> *Donna Austin*
> *Neustar, Inc.* / Senior Policy Manager, Registry Solutions
> *Mobile:* +1 310 890 9655
> *donna.austin at team.neustar <donna.austin at team.neustar>* / *Website:*
> home.neustar <http://www.home.neustar/>
>
>
>
> *Follow Neustar:* LinkedIn <http://www.linkedin.com/company/5349> */*
> Twitter <http://www.twitter.com/neustar>
> Reduce your environmental footprint. Print only if necessary.
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> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] *On
> Behalf Of *Jeff Neuman
> *Sent:* Monday, November 25, 2019 7:31 AM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
> Summary
>
>
>
>
>
> All,
>
>
>
> This conversation demonstrates exactly why it is so difficult to put into
> place restrictions like a “use” requirement.  In trying to sum up where we
> are:
>
>
>
> *Proposal:*
>
> Unless exempt, you must complete a Sunrise phase prior to contract renewal
> (10 years).  Spec 13 Registries would be exempt from this requirement.
>
>
>
> *What is the problem we are trying to Solve?*
>
>    - From Alex’s e-mails, it seems like the argument is that not “using”
>    a TLD for an extended amount of time essentially takes that TLD out of
>    circulation and that “someone else might be able” to use it; “All
>    kinds of big corps will be talked into “secure your killer keyword – before
>    your competition does.”
>    - From Kathy K.: “If you are going to ask for a gTLD space, use it”
>    and this “is a underlying premise of much of the Applicant Guidebook with
>    its roll-out provisions.”
>    - From Christopher:  “to s to strongly discourage, indeed penalise,
>    the warehousing of un-used strings.
>    - Supported by Jorge
>
>
>
> *From those not in favor of the Proposal*
>
>    - Kristine:  No one has agreed this is even an issue or problem; This
>    forces everyone into a singular model (namely always selling domain names
>    to third parties.”; ICANN already has a number of restrictions that stand
>    in the way of innovation; “Let’s stop accusing businesses of bad faith
>    (claims that the intent was to “shut down a vertical” are just that) just
>    because they haven’t found the right niche given all the ICANN business
>    restrictions.”
>    - Marc:  What does “use” mean?; This would not foster innovation; This
>    would only ensure one business model; “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.”; No evidence that corporations are trying to
>    shut down a vertical
>    - Maxim:  What is the problem we are trying to solve?; There were a
>    number of things that happened in 2012 round which impacted Registries
>    plans for launch
>    - Supported by Martin
>    - Rubens:  The fact that ICANN changed a number of things made it more
>    difficult to launch the TLD in Latin America; this will discriminate
>    against the Global South
>
>
>
> We need to hear from the rest of the group as to what their thoughts are.
> Also, if there is a real issue, we need to have evidence to show the
> problem.  Otherwise we are developing a solution to something that many do
> not agree is a problem?  What is the harm caused by not having this rule in
> place?
>
>
>
> Thanks.
>
>
>
> *Jeff Neuman*
>
> Senior Vice President
>
> *Com Laude | Valideus*
>
> D: +1.703.635.7514
>
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Marc Trachtenberg via Gnso-newgtld-wg
> *Sent:* Friday, November 22, 2019 4:47 PM
> *To:* alexander at schubert.berlin; gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
>
>
>
> Correct.  Apple has no inherent right for .Apple.  That’s why they had to
> apply for it along with anyone else who wanted it.  And if someone else was
> willing to pay more in a public or private auction that other company would
> be the RO for .apple and Apple could apply for something else in the next
> or subsequent rounds.  Of course Apple has a right to stop infringing and
> abusive uses of .Apple but that is a different question.
>
>
>
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL
> 60601
> Tel 312.456.1020
>
> Mobile 773.677.3305
>
> trac at gtlaw.com | www.gtlaw.com
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>
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
> <gnso-newgtld-wg-bounces at icann.org>] *On Behalf Of *Alexander Schubert
> *Sent:* Friday, November 22, 2019 2:53 PM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
>
>
>
> Marc,
>
>
>
> So APPLE has no inherent right or need for .apple? Is it that what you are
> saying? They could apply for .appleinc for example, right?
>
>
>
> Thanks,
>
>
>
> Alexander
>
>
>
>
>
>
>
> *From:* trachtenbergm at gtlaw.com [mailto:trachtenbergm at gtlaw.com
> <trachtenbergm at gtlaw.com>]
> *Sent:* Freitag, 22. November 2019 15:10
> *To:* alexander at schubert.berlin; gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
>
>
>
> He should be able to wait as long as he wants or needs to.  What is the
> worst case scenario – there are only 999,998 TLDs instead of 1,000,000?
> Again, there is no inherent right (or need) to have every possible
> combination of letters and numbers be a TLD and be able to register domains
> in it.
>
>
>
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL
> 60601
> Tel 312.456.1020
>
> Mobile 773.677.3305
>
> trac at gtlaw.com | www.gtlaw.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.gtlaw.com_&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=CwipU91YB6EkpFXK9ynnT_QUef4yC5p7jpsDm8cU97g&m=Xt3SBBuP_dMH8NkZ97Q9c_O9xRKlCtiJCWRICLqXsgg&s=-A0yZTGz0x--Zxmjhu-2UfGKOPR9BkCRO9pfceXC5hQ&e=>
>
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
> <gnso-newgtld-wg-bounces at icann.org>] *On Behalf Of *Alexander Schubert
> *Sent:* Friday, November 22, 2019 1:55 PM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
>
>
>
> **EXTERNAL TO GT**
>
> Hi Rubens,
>
>
>
> I understand you. But how long more do you want to wait? 10 years? 25
> years? If you can’t launch the string: someone else might be able. Create a
> white label registrar for example. There are many countries that do NOT
> have ICANN registrars. Latvia for example. Does that mean there should
> never be a .riga?
>
>
>
> Thanks,
>
>
>
> Alexander
>
>
>
>
>
>
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
> <gnso-newgtld-wg-bounces at icann.org>] *On Behalf Of *Rubens Kuhl
> *Sent:* Freitag, 22. November 2019 12:26
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Use Requirement for 2nd round new gTLDs
>
>
>
>
>
> Alexander,
>
>
>
> I happen to be from an organisation that applied to 2 gTLDs in 2012 and
> still have launched them. What I need to point out is that bring this
> requirement on registries would also need requirements on ICANN.
>
>
>
> At the time we applied, it was said that vertical integration would not
> require two different legal entities; this was added in an AGB version
> after applications have been submitted.
>
>
>
> At the time we applied, there was no indication that then current
> registrars with RAA 2009 wouldn't be able to sell 2012 gTLDs; when the RA
> was finalised, this suddenly appeared. And since we had only 2009
> Registrars in our country, that meant no registrars.
>
>
>
> But as RAAs start expiring, we were hopeful that some registrars would
> become RAA 2013... what happened though is that all Brazilian registrars
> preferred dropping their accreditations instead of on boarding new,
> cumbersome requirements that were added to RAA mostly due to pressures from
> developed countries.
>
>
>
> So, ICANN Org failed us miserably in a lot of ways, and you are suggesting
> that even in that condition we would be obliged to launch expeditiously ?
>
>
>
> No, thanks. And if your intention is to widen the gap from "Global North"
> to "Global South", that's a sure way to do it. There is more to the world
> than Western Europe and North America.
>
>
>
>
>
> Rubens
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> Em 20 de nov de 2019, à(s) 13:49:000, Alexander Schubert <
> alexander at schubert.berlin> escreveu:
>
>
>
> 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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