[Gnso-newgtld-wg] Consolidated list of materials for WG Member review

McGrady, Paul D. PMcGrady at taftlaw.com
Sat Aug 15 11:46:28 UTC 2020

Hi All,

Responding now to Elaine’s comments.

I admit that I don’t fully understand what Elaine is asking for here:

Adding bullet point

Recommendation xx (Rationale 2), The non-exhaustive list of “Factors”

If ICANN isn’t privy to the material terms of settlements, some resolutions could purposely lose without any money changing hands or business combinations being made. Captures possible “paid (not necessarily in cash) to go away” settlements.

·        If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs.

Maybe Elaine can expound on the next call?  I don’t think we want to set up a bright line factor that indicates you are didn’t have a bona fide good faith intent just because you resolved contention sets by non-auction and didn’t end up continuing your applications.  Since the AGB doesn’t provide for any meaningful rights protection mechanisms for brand owners (and we haven’t really improved the situation much), there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.  Why would we want to preclude those brand owners from future rounds?  We don’t, and that is the problem with bright line factors like this one.  But, maybe I am missing Elaine’s point or maybe she can refine this in such a way that it more narrowly addresses what her concerns may be.

Also, Elaine also includes “some of” language in her comments. As below with Jim’s, I do hope that this language isn’t being introduced in order to wreck a consensus call later (for the reasons mentioned below).


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From: McGrady, Paul D.
Sent: Saturday, August 15, 2020 6:34 AM
To: 'Jim Prendergast' <jim at GALWAYSG.COM>; Steve Chan <steve.chan at icann.org>; gnso-newgtld-wg at icann.org
Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Hi All,

I thought a brief note reacting to Jim’s proposed changes make sense.  Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year).  Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call.

Jim suggests we strike:  “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable.  This will have a chilling effect on application submission and is just bad governance.  At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists.  The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences.

As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales.  I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call.  We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes.  If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well.  So, hopefully, the record keeping is the reason behind Jim’s insertions.

Best to all,

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jim Prendergast
Sent: Wednesday, August 12, 2020 1:45 PM
To: Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Attached is my feedback on the draft report on Auctions.


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 Steve Chan
Sent: Friday, August 7, 2020 11:36 AM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Dear WG Members,

As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020.

  *   For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day)
     *   Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1KgsjZc/edit
     *   Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report

  *   Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlPCS8/edit?usp=sharing. Feedback form is attached.

  *   NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#>. Again, feedback form is attached.

Please let us know if you have any questions or concerns.


Steven Chan

Policy Director, GNSO Support

Internet Corporation for Assigned Names and Numbers (ICANN)
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536

Email: steve.chan at icann.org<mailto:steve.chan at icann.org>
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