[Gnso-newgtld-wg] Very High Level Proposal on Closed Generics - PERSONAL PROPOSAL

trachtenbergm at gtlaw.com trachtenbergm at gtlaw.com
Mon Aug 3 22:38:27 UTC 2020


While I appreciate your effort I cannot support a proposal that is complex, creates more ICANN bureaucracy. and will undoubtedly result in more disputes because it does not rely on any objective criteria.   I also don't see any reason why if there is more than one other application for the same or a confusingly similar string (eg., there is a contention set for the string), then none of those applications will be allowed to be a Closed Generic.  That is like saying if there is a contention set that no Community Applications are permitted.

As it is obvious by now, I strongly believe that closed generics should be permitted and that there is no reasonable justification to exclude them or put a public interest or other restriction on them and will advocate for this outcome as best I can.  However, if that does not come to pass I think it would be better to have no closed generics than an public interest restriction that cannot be implemented and will only result in disputes, uncertainty, and delay in the next round.

Generally and overall, I believe that if we want to have any hope that the next round will be successful in any way, that we should be seeking simpler solutions that are easier and more realistic to implement and are based on objective criteria and avoiding more complex and subjective solutions, especially those that require the creation of new panels and other structures, at all costs.

Best regards,

Marc H. Trachtenberg
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020
Mobile 773.677.3305
trac at gtlaw.com<mailto:trac at gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/>

[Greenberg Traurig]

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Monday, August 3, 2020 3:51 PM
To: gnso-newgtld-wg at icann.org
Subject: [Gnso-newgtld-wg] Very High Level Proposal on Closed Generics - PERSONAL PROPOSAL

This proposal is being sent out by me personally and NOT the Leadership Team (who hasn't even seen this yet).  It is not an indication of where I think we are, but just a VERY HIGH LEVEL approach to solicit comments.

I appreciate all of the proposals that have come in recently on how to deal with Closed Generics, but I wanted to try a much higher level proposal that attempts to take points from a number of previous proposals and extract some of the points where I thought we had some agreement.  The more in the weeds we get, the more it appears we get stuck.  I, at one time, also had a lot of details in my original proposal, but I stripped them all out.

We need to recognize that there is no definition of public interest.  The only real viable ones you can find in legal dictionaries or other treatises and other documents is usually circular - namely public interest is that which the public deems it to be.

So, I tried to go back to the basics:



The GAC issued advice to the Board on the New gTLD Program through its Beijing<https://urldefense.com/v3/__https:/gacweb.icann.org/download/attachments/27132037/Final_GAC_Communique_Durban_20130718.pdf?version=1&modificationDate=1375787122000&api=v2__;!!DUT_TFPxUQ!XV0iOUDqkkSOegcgoPRsTpHbRhD8Z1dp-rXGubkkrNlzuVps9GMxf94N-l1sSMqLlXw$> Communiqué dated 11 April 2013. In the Beijing Communiqué, the GAC advised the Board that, "For strings representing generic terms, exclusive registry access should serve a public interest goal".

As part of its response to the GAC Advice, ICANN solicited comments from the community on this issue.  Comments from the community expressed a diversity of views on how, and whether the Board should implement the GAC advice.

Ultimately, on 21 June 2016, the ICANN Board passed a resolution<https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!XV0iOUDqkkSOegcgoPRsTpHbRhD8Z1dp-rXGubkkrNlzuVps9GMxf94N-l1siw_bg6Y$> "requesting that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue."

Proposal for our Draft Final Report

The Implementation Review Team must create a Framework for Evaluating Closed Generic applications to determine whether those applications "serve a legitimate public interest goal."

In order to serve a legitimate public interest goal, the following criteria, at a minimum, must be satisfied:

  *   The TLD must serve a broad base of end users above and beyond the interests of the individual registry operator. For purposes of this statement, end users mean those toward which the content and use of the TLD is directed.  End Users do not mean domain name registrants.
  *   The TLD must serve a demonstrated and legitimate need of that broad base of end users.
  *   A governance council of "end users" must be established to ensure the TLD continues serving its legitimate public interest ("Governance Council").

The following factors should be used by the IRT to create such a Framework and determining whether the proposed Closed Generic application "serves a public interest goal."

·         Why is the selected string necessary for your registry / Why did you choose this string at the exclusion of others?

·         How does the proposed closed registry serve the public interest?

·         How does the proposed mission and purpose of the registry support such use and why must it be a closed model?

·         What is the likely effect on competition of awarding the proposed closed registry for the same or similar goods and/or services?

o    Are there other strings already delegated that serve the Applicant's industry which can be utilized by competitors?

o    If not, are there reasonable alternatives to the string that may be utilized by other entities in the Applicant's industry in the then-current round or if proposed during a subsequent round?

·         Who are the intended "users" or beneficiaries of the TLD?

·         What are the benefits to those users or beneficiaries of the TLD?

·         What will the governance of the TLD be and who will constitute the Governance Council?


  *    If there are more than one other application for the same or a confusingly similar string (eg., there is a contention set for the string), then none of those applications will be allowed to be a Closed Generic.
  *   A Public Interest Panel shall be appointed by the ICANN Board to evaluate whether the application and the proposed use of the Closed Generic TLD serves a legitimate public interest goal.
  *   All commitments made by the TLD Applicant in demonstrating its use will serve a public interest goal must be incorporated into the Registry Agreement as Public Interest Commitments.
  *   The Closed Registry may not modify any Public Interest Commitments unless those changes are approved by the Governance Council and the ICANN Board after a public comment period.
  *   In the event the Registry is assigned to a third party (either by Agreement or by operation of law), all of the terms and conditions imposed on the original registry must be absorbed by the new registry including the Public Interest Commitments.
  *   A Closed Generic may at any time be converted to an Open (or Open Restricted TLD) at any time, provided that at the time of such conversion, the Registry must follow all of the rules applicable to Open TLDs, including the launch of a Sunrise Process, Trademark Claims, etc.  In addition, the Registry must give up the use of all names other than the 100 names reserved under the Registry Agreement for the operation of the TLD.

[cid:image004.png at 01D669BC.E3413D40]

Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>

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