[Gnso-newgtld-wg] Closed Generics - WE HAVE THEM ALREADY
Aikman-Scalese, Anne
AAikman at lrrc.com
Tue Aug 11 20:26:39 UTC 2020
Greg – keep in mind that when Microsoft closes a window, that opens the .doors to competition, but may not be kosher if they are registering names directed at the sale of Hendrix and Morrison fan merchandise. (I guess the outcome of an Objection really DOES depend on intended use of the TLD?)
Anne
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of mail at christopherwilkinson.eu CW
Sent: Wednesday, August 5, 2020 9:43 AM
To: Greg Shatan <gregshatanipc at gmail.com>; Michele Neylon - Blacknight <michele at blacknight.com>
Cc: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Closed Generics - WE HAVE THEM ALREADY
[EXTERNAL]
________________________________
We often get calls from or on behalf of 'MS Windows'. We just hang up.
CW
El 5 de agosto de 2020 a las 17:58 Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> escribió:
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<mailto: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
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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>
Date: Wednesday 5 August 2020 at 13:55
To: "alexander at schubert.berlin<mailto:alexander at schubert.berlin>" <alexander at schubert.berlin<mailto:alexander at schubert.berlin>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto: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
[cid:image002.png at 01D66FE2.929CA600]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto: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<mailto: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] On Behalf Of Jim Prendergast
Sent: Dienstag, 4. August 2020 18:35
To: Kurt Pritz <kurt at kjpritz.com<mailto:kurt at kjpritz.com>>; jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
Cc: gnso-newgtld-wg at icann.org<mailto: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<mailto: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<mailto:jeff at jjnsolutions.com>
Cc: gnso-newgtld-wg at icann.org<mailto: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<mailto: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<mailto:trac at gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/>
<image002.jpg>
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<mailto: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<mailto:jeff at jjnsolutions.com>
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