[Gnso-newgtld-wg] Closed Generics - WE HAVE THEM ALREADY

[Alan Greenberg]

I've heard that these folks call people who use only Apple products, so they must be talking about those transparent gaps in walls. 

Wonder if they do doors too...

Alan 

On August 5, 2020 11:58:41 AM EDT, Greg Shatan <gregshatanipc at gmail.com> wrote:
>I keep getting calls from people who say they are from Microsoft and
>making
>all sorts of outlandish claims about my Windows being infected and that
>I
>need to stop using my computer and send them bitcoin so they can fix
>the
>problem.  I've always thought that they were referring to my
>Windows(R) operating
>system.
>
>But Alexander now has me thinking that these helpful people are saying
>that
>the actual fenestration (a/k/a windows) in my apartment are infected! 
>I
>will pursue this line of discussion with them the next time they call
>and
>see if Microsoft is in the business of window installation and repair.
>If
>so, *this flagrant TLD abuse must stop* and we must take it up here and
>get
>ICANN Compliance involved as well.
>
>As Jeff notes, this all assumes that Microsoft are using the .windows
>TLD
>in connection with this heretofore unknown line of business.  If
>Microsoft
>is using .windows in connection with their Windows(R) operating system,
>then this is not a generic use and we can all rest easy.
>
>I shall report back.
>
>Best regards,
>
>Greg
>
>On Wed, Aug 5, 2020 at 10:04 AM Michele Neylon - Blacknight <
>michele at blacknight.com> wrote:
>
>> +1 Jeff
>>
>> While I’ve been a vocal opponent of “closed generics” I can’t argue
>> against Visa having .visa and Jeff has articulated this very clearly
>>
>>
>>
>> Regards
>>
>>
>>
>> Michele (who will now go back to lurking)
>>
>>
>>
>> --
>>
>> Mr Michele Neylon
>>
>> Blacknight Solutions
>>
>> Hosting, Colocation & Domains
>>
>> https://www.blacknight.com
>>
>> https://blacknight.blog /
>>
>> http://ceo.hosting/
>>
>> Intl. +353 (0) 59  9183072
>>
>> Direct Dial: +353 (0)59 9183090
>>
>> -------------------------------
>>
>> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,
>> Sleaty Road, Graiguecullen, Carlow, R93 X265,Ireland  Company No.:
>370845
>>
>>
>>
>> *From: *Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> on behalf
>of
>> Jeff Neuman <jeff at jjnsolutions.com>
>> *Date: *Wednesday 5 August 2020 at 13:55
>> *To: *"alexander at schubert.berlin" <alexander at schubert.berlin>, "
>> gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
>> *Subject: *Re: [Gnso-newgtld-wg] Closed Generics - WE HAVE THEM
>ALREADY
>>
>>
>>
>> Alexander,
>>
>>
>>
>> We need to move forward in these discussions and move off of the
>arguments
>> that have been made with respect to Spec   13 and Closed Generics. 
>If you
>> qualify for a Spec 13 (Brand TLD), you have already proven that you
>have an
>> existing registered trademark somewhere in the world.  There is no
>example
>> that I am aware of where a Spec 13 Brand Registry has used a TLD for
>a
>> purpose other than for something in connection with their TM
>registration.
>>
>>
>>
>> Clearly if a Spec 13 Brand Registry uses their TLD for a purpose
>other
>> than for the goods/services for which it has a TM registration, then
>that
>> is something that can go to compliance and I am sure a deep
>discussion
>> about breach would be held.  But since this has not happened, I do
>not
>> believe we should go down that path in connection with this
>discussion.
>>
>>
>>
>> If you can provide us with some actual evidence that Microsoft uses
>> .windows in the generic sense, or Visa uses .visa in the generic
>sense,
>> etc. then we can have the discussion.
>>
>>
>>
>> But unless and until that happens, as Co-chair, I would prefer us not
>go
>> down this path at this time.
>>
>>
>>
>> Sincerely,
>>
>>
>>
>> Jeff
>>
>>
>>
>> Jeffrey J. Neuman
>>
>> Founder & CEO
>>
>> JJN Solutions, LLC
>>
>> p: +1.202.549.5079
>>
>> E: jeff at jjnsolutions.com
>>
>> http://jjnsolutions.com
>>
>>
>>
>>
>>
>> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On
>Behalf Of
>> *Alexander Schubert
>> *Sent:* Wednesday, August 5, 2020 7:51 AM
>> *To:* gnso-newgtld-wg at icann.org
>> *Subject:* [Gnso-newgtld-wg] Closed Generics - WE HAVE THEM ALREADY
>>
>>
>>
>> In that regard a question, as it seems we already have a ton of
>closed
>> generics that clearly violate Spec-13 and Spec-11 (unless I
>misinterpret
>> the registry agreements):
>>
>> In the 2017 Registry Agreement (“RA”; see
>>
>https://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-31jul17-en.html#specification11)
>> it says in Spec 11 (at the very end):
>>
>>
>> *Registry Operator of a “Generic String” TLD may not impose
>eligibility
>> criteria for registering names in the TLD that limit registrations
>> exclusively to a single person or entity and/or that person’s or
>entity’s
>> “Affiliates” (as defined in Section 2.9(c) of the Registry
>Agreement).
>> “Generic String” means a string consisting of a word or term that
>> denominates or describes a general class of goods, services, groups,
>> organizations or things, as opposed to distinguishing a specific
>brand of
>> goods, services, groups, organizations or things from those of
>others.*
>>
>> Looking at the SPEC-13 registries I spot tons of these terms. A
>simple
>> test is to conduct a google picture search, and see what pops up: is
>it
>> consistently a product or the target brand? Or: Is it clearly a good,
>> service or thing – and there is no synonym existing?
>>
>>    - .windows (glas panes with a frame: there is literally no other
>term
>>    existing)
>>    - .case (typically a mobile phone protection; all pics show mobile
>>    phone cases)
>>    - .silk (you see only pictures of “silk”, there is no synonym
>existing)
>>    - .visa  (the permission to visit another country; most pics show
>VISA
>>    Cards, but quite a lot of U.S. visas, too; and the only matching
>term as
>>    generic word)
>>    - .caravan  (there is no real other word, maybe “camper”, photos
>show
>>    generic caravans)
>>    - .gmo (which all the world understands a “Genetically Modified
>>    Organism” – and that’s what pic search shows)
>>
>>
>>
>>
>>
>> Leaving aside all these (as one could argue they aren’t goods or
>services,
>> but many of them are “things” or “groups”):
>>
>> .mango, .apple, .orange, .smart, .dish, .frontier, .fox, .fire,
>.crown,
>> .duck, .sling, .total, .next, .mint, .seat, .monster, .off, .open,
>> .pioneer, .prime, .progressive, .ram, .raid, .target, .vanish,
>.brother,
>> .boots, .seek, .shell, .sharp, .active, .seven, .canon, .mini, .sky,
>> .chrome, .ice, .nexus,
>>
>>
>>
>>
>>
>> In that regard: Does this WG attempt to crack down on the abuse of
>> Spec-13/Spec-11? How do we want to avoid that a registry based on a
>“a word
>> or term that denominates or describes a general class of goods,
>services,
>> groups, organizations or things” will exclude the public from
>registering
>> domains? This is obviously something that already went south in the
>2012
>> round – and one might expect that this only gets worse in the coming
>round.
>> As “outsiders” will enter the ICANN rounds we should make it very
>clear in
>> the applicant guidebook that while brands may operate closed
>registries;
>> but they should carefully consider whether they violate Spec-11. I
>assume
>> that some “clever people” will register generic term based trademarks
>(you
>> can register a generic term based TM in almost all jurisdictions as
>long as
>> the goods and services described are far away from the generic term
>meaning
>> - or you buy an unused one: most gerneric terms are registered
>multiple
>> times in many countries); then apply for .crypto (example) as Spec-13
>> registry; then provide there “innovative services” off of a Spec-13
>closed
>> generic TLD. Likely innovative services won’t rely on name server
>> registrations – but rather provide the entire enchilada and value
>chain
>> inhouse: a domain name, registry provided name servers, registry
>provided
>> hosting, etc; nothing that would conflict with Spec-13.
>>
>>
>>
>> Thanks,
>>
>>
>>
>> Alexander
>>
>>
>>
>>
>>
>>
>>
>> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
>> <gnso-newgtld-wg-bounces at icann.org>] *On Behalf Of *Jim Prendergast
>> *Sent:* Dienstag, 4. August 2020 18:35
>> *To:* Kurt Pritz <kurt at kjpritz.com>; jeff at jjnsolutions.com
>> *Cc:* gnso-newgtld-wg at icann.org
>> *Subject:* Re: [Gnso-newgtld-wg] Very High Level Proposal on Closed
>> Generics - PERSONAL PROPOSAL
>>
>>
>>
>> On the .book example.  That was delegated 4 ½ years ago and has 1
>domain
>> registered.  Not exactly innovating.  At least not yet.  Maybe the
>operator
>> is hoping rules on closed generic would be retroactive?  But I don’t
>think
>> that’s possible under the charter of this group.  Someone correct me
>if I
>> am wrong on this.
>>
>>
>>
>> And I’m sure book publishers would argue all sorts of other issues
>they
>> see with the current RO operating it as a closed generic.  Plenty of
>> lawsuits and settlements to sift through if so inclined.
>>
>>
>>
>> Jim Prendergast
>>
>> The Galway Strategy Group
>>
>> +1 202-285-3699
>>
>>
>>
>> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On
>Behalf Of
>> *Kurt Pritz
>> *Sent:* Monday, August 3, 2020 9:45 PM
>> *To:* jeff at jjnsolutions.com
>> *Cc:* gnso-newgtld-wg at icann.org
>> *Subject:* Re: [Gnso-newgtld-wg] Very High Level Proposal on Closed
>> Generics - PERSONAL PROPOSAL
>>
>>
>>
>> Hi Jeff:
>>
>>
>>
>> As Marc has just indicated, I think we owe a duty to ICANN to provide
>them
>> with an implementable policy. I don’t think it is acceptable to leave
>very
>> difficult or intractable problems with an implementation team, or
>else we
>> will spend another extended period on what is already an
>embarrassingly
>> long duration between rounds.
>>
>>
>>
>> As you know, my original point of view was that the public interest
>test
>> is not workable.We do not have workable definitions for public
>interest, a
>> generic word, or a single-registrant TLD. To draw a parallel, the
>Community
>> Priority Examination was a failure in that it could not be applied
>evenly,
>> nor did it result in the hoped-for public benefit.  The Public
>Interest
>> test, with its additional unknown dimensions, presents multiples of
>that
>> difficulty.
>>
>>
>>
>> The model you present here confirms and heightens these concerns. As
>I
>> read each defitioniton and criteria set you propose, I wonder, “How
>do you
>> test for that,” and “what could be the scoring for that”? From
>someone who
>> spend days and days inn a conference room weighing many ersatz
>applications
>> against CPE criteria and scoring regimes, I can say that this cannot
>be
>> effectively done.
>>
>>
>>
>> To flesh out your plan into actionable criteria would take another
>> extended period, the criteria will not lead to consistent results,
>and the
>> scheme, when finally implemented will not achieve the hoped-for
>goals.
>>
>>
>>
>> All these will denigrate the reputation of the ICANN policy-making
>process
>> generally as well as the ICANN model. There were four categories inn
>the
>> previous round. All were problematic, none were as complex as this.
>>
>>
>>
>> Those who are speaking against this new, additional categorization
>are not
>> for an “anything goes” or “no strings attached” approach. I think I
>can
>> speak for others and say we want to develop a policy that will serve
>ICANN
>> and the ICANN model well.
>>
>>
>>
>> On the other side of the issue, I agree with Marc that we would be
>better
>> off banning closed-generics rather than attempting to implement this
>test.
>> However, I am more bullish on their worth and am afraid we would be
>> effectively banning innovation with such a prohibition. If we are not
>here
>> to encourage some type of innovation, why are we here?
>>
>>
>>
>> ICANN has created with its contracts an environment that restricts
>TLD
>> usage to the same, tired operating model. Closed generics would cause
>a
>> reconsideration of gTLD rules in a way that encourages innovation.
>For
>> example, closed generics would cause ICANN to reconsider the existing
>fee
>> structure and just that fee structure has been an effective ban to
>> innovation.
>>
>>
>>
>> Who has a better chance to utilize .book, an innovative firm that has
>the
>> wherewithal to experiment, present innovative approaches and improve
>upon
>> them, or some schmo that will seek to maximize domain registrations
>with
>> discounts and flash sales? I vote for innovation.
>>
>>
>>
>> In any event, I think it is important that the final report
>indicates, so
>> the GNSO Council and Board know, that we discussed these issues and
>the
>> described the potential perils of the public interest approach so
>that they
>> can take advantage of the analysis and thought product done to date.
>>
>>
>>
>> Thanks very much,
>>
>>
>>
>> Kurt
>>
>>
>>
>>
>>
>>
>>
>> On Aug 3, 2020, at 3:38 PM, Marc Trachtenberg via Gnso-newgtld-wg <
>> gnso-newgtld-wg at icann.org> wrote:
>>
>>
>>
>> Jeff,
>>
>>
>>
>> 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*
>> 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
>>
>>
>>
>> <image002.jpg>
>>
>>
>>
>> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
>> <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
>>
>>
>>
>> **EXTERNAL TO GT**
>>
>> 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:
>>
>>
>>
>> ********************************************************************
>>
>> *Background*
>>
>> 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?
>>
>>
>>
>> *Rules*
>>
>>    -  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.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> <image004.png>
>>
>> Jeffrey J. Neuman
>>
>> Founder & CEO
>>
>> JJN Solutions, LLC
>>
>> p: +1.202.549.5079
>>
>> E: jeff at jjnsolutions.com
>>
>> http://jjnsolutions.com
>>
><https://urldefense.com/v3/__http:/jjnsolutions.com__;!!DUT_TFPxUQ!Rjhvan6AehRISaVu9bzgIJ4jWV3o3qPxdCcOhBa4UXL29We0qs_wpv8icSj8l4taanNW2A$>
>>
>>
>>
>>
>> ------------------------------
>>
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