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

Mon Aug 17 14:26:03 UTC 2020

+1 Jeff to a list of factors going out for public comment.
Anne

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Jeff Neuman
Sent: Monday, August 17, 2020 7:05 AM
To: trachtenbergm at gtlaw.com
Cc: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

[EXTERNAL]
________________________________
We are going to pick up the discussion today right on this section.  And we did review your comment with the full group on the last call and you can raise again.  I think it is important to have examples that can be looked at in some way that can be used by ICANN to show evidence of a lack of good faith intent (or lack of a bona fide intent to operate a registry).  I believe not having any factors will set up the same scenario as you have laid out below where those that disagree will argue that the factors applied by ICANN were not indicative factors.

At least with some factors stated up front, if these are the factors applied by ICANN, we will have created at least SOME predictability, albeit acknowledged that it is subjective.  Without listing the examples, people will argue that the factors applied created unpredictability because they were not known in advance.  We can make arguments both ways I guess is the point.

Lets let these factors go out for public comment and see what we get back.  Perhaps even asking a question about what the community believes would be indicia of a lack of bona fide intent.

Remember at the end of the day, we are trying to get a compromise where we both allow private resolution of contention sets via auctions, but balance the Board’s (and other groups’) distrust and dislike of private resolution where applicants financially benefit from not getting the TLDs.

We MUST close this discussion today (at least for purposes of the draft final report).

Thanks.

[cid:image004.png at 01D67467.9F535360]

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 Marc Trachtenberg via Gnso-newgtld-wg
Sent: Saturday, August 15, 2020 1:29 PM
To: 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

I wasn’t able to attend the last call because I am in Colorado with my kids on vacation and was on the back of a horse so I don’t know if my objections were raised on the call so just in case I will reiterate them here.  It’s fine to want to compromise but compromise doesn’t always result in a good solution.  These factors are not good proxies for determining whether an application was submitted with a bona fide good faith intent to operate the registries.  Any one of them could occur for other reasons than a lack of bona fide good faith intent to operate the registry.  If the evaluators can take anything into account then fine, let them – but we should not be specifying factors that they “may” consider which are not good proxies for this determination.  The effect of this will be obvious – these factors will be given more weight.  If they won’t then there is no need to specify them.   Use of these factors will only result in bona fide intent becoming the new CPE and years of disputes and fights from applicants who end up on the wrong side of the bona fide intent determination or from others when applicants end up on the right side of the determination and the others don’t like it.  Please let’s move away from solutions that are not workable and certain to cause disputes later.

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/>

[Greenberg Traurig]

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg
Sent: Saturday, August 15, 2020 6:34 AM
To: PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>; jim at GALWAYSG.COM<mailto:jim at GALWAYSG.COM>; 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

*EXTERNAL TO GT*
HI Paul.
The Factors are an outcome of an attempt to compromise on private resolution. We allow for creative private resolution with the conditions that include “a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the TLDs for any and all applications that they submit.”
We have to account for the fact that some applicants will apply for TLDs without a bona fide intent to operate the TLD. Which I think you are describing when you write “there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.”
Let me provide an example that might better illustrate my concern. Savvy gambler “J” comes along and applies for lots of generic/brand TLDs “orange” is one example. He convinces the defensive brand applicant to resolve the contention not at private auction but through a deal where he gets a thousand cases of Orange’s product every year for life.
We haven’t come to agreement to require all material terms of an arrangement to be made public.
Therefore, the suggested language to add to the Factors for evaluators/ ICANN to consider if a bona fide intent to operate the TLD is If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs.
I don’t think the factors are “bright line” (savvy gambler J will win one TLD to avoid scrutiny) ….
but the “bona fide intent” is… and that might be where your issue around defensive applications needs to be addressed.

Regarding my addition of “some” here:
“By requiring all applicants to agree to the bona fide use clause, some of the Working Group believes that the Board’s primary concerns are mitigated and that private resolutions (including private auctions) as a mechanism to resolve string contention, can be permitted.”
Is meant to reflect that not everyone believes the clause actually resolves the boards concerns. It’s a compromise the WG is recommending, but it may not actually mitigate the board’s concerns that applicants will participate to profit.

Hope that helps. And congrats on the last bird leaving the nest.

Elaine Pruis
Senior Director Naming Operations and Policy
epruis at verisign.com<mailto:epruis at verisign.com>
703.948.4672
[signature_1482981386]

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of "McGrady, Paul D." <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>
Date: Saturday, August 15, 2020 at 7:47 AM
To: Jim Prendergast <jim at GALWAYSG.COM<mailto:jim at GALWAYSG.COM>>, 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>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

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).

Best,
Paul

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From: McGrady, Paul D.
Sent: Saturday, August 15, 2020 6:34 AM
To: 'Jim Prendergast' <jim at GALWAYSG.COM<mailto:jim at GALWAYSG.COM>>; 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

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,
Paul

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.

Thanks

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<https://urldefense.com/v3/__https:/docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1KgsjZc/edit__;!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubcJ9vIyRI$>
     *   Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report<https://urldefense.com/v3/__https:/secure-web.cisco.com/1-aQs02VYJdhP_82zrWTH3mxZPgVXLwPMLV5DUeHW3IKyQYKvY8BKAoH7bYc6_pVqqLyrP-awt0GP9LC2ig_-dDKzwiK_Ivr9puAFqbO-jPt7d9tg-xBEkngBwOUG5l-g2fQh3fTyM_PXGHnbSZupVdTk3jLlx4hd4Q1_Iin2Azhz0JH1trgj5fVQ5IAbLqoRo8e3f_QEEoolmsXWcHcaYhZrtgrEKip-GkFAHNbR41jeezZuX75r9lk90PYpksJ6-BiMyfeQk6OLNDSFozRkUA/https*3A*2F*2Fcommunity.icann.org*2Fdisplay*2FNGSPP*2Fg.*2BDraft*2BFinal*2BReport__;JSUlJSUlJSUl!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubccPs3zNA$>

  *   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<https://urldefense.com/v3/__https:/docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlPCS8/edit?usp=sharing__;!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubcvMIFRyg$>. 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://urldefense.com/v3/__https:/docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit__;!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubcVFuuQFY$>. Again, feedback form is attached.

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

Best,
Steve

Steven Chan

Policy Director, GNSO Support

Internet Corporation for Assigned Names and Numbers (ICANN)
12025 Waterfront Drive, Suite 300
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