[Gnso-newgtld-wg] Generic words belong to everyone in a business or industry

Mike Rodenbaugh mike at rodenbaugh.com
Tue Feb 18 21:10:03 UTC 2020

So-called Closed Generics (however anyone may define them) were allowed in
2012, as a Consensus Policy insofar they were very heavily debated by the
GNSO for many years, including the same arguments and many of the same
participants in today's debate.  And Closed Generics were neither defined
nor prohibited in the GNSO Consensus Policy adopted by the Board and then
implemented by Staff and GNSO in the AGB.  Thus, Closed Generics were
essentially, explicitly allowed -- and unsurprisingly then there was some
number of applicants for strings that the Board later unilaterally defined
as Closed Generics.

The Board then made a variance to one small part of that Consensus Policy,
only as to a specifically defined subset of 2012 applications that the GAC
and some others objected to.  The Board specifically said that resolution
had no bearing on future GNSO policy work.  That resolution was never
discussed or debated by the GNSO, until this PDP.  So, neither the GNSO nor
the Board have ever changed the 2012 Consensus Policy that allowed what
some call "Closed Generics".  To change it now will require consensus of
this WG, which seems unlikely to happen.

Mike Rodenbaugh
tel/fax:  +1.415.738.8087

On Tue, Feb 18, 2020 at 12:26 PM Alexander Schubert
<alexander at schubert.berlin> wrote:

> Anne,
> This is a contradiction. If the board denied “closed generics” (gTLD
> applications for generic keyword based strings) in 2012 then they did for a
> REASON. Unless the board specified a “conditional aspect” for that reason
> then the rationale for that decision hasn’t changed just because a decade
> went by. So the “ground rule” would be to keep the application rules as
> they were in 2012 – namely denying closed generics. UNLESS the gNSO
> develops new recommendations – which then need a new board approval.
> Some might argue that in 2012 the “problem” with closed generics wasn’t
> that bad: only a few dozen generic terms where taken by industry leaders
> (apparently mostly to just block off the entire vertical). So why bothering?
> Well: In 2012 the COST for a new gTLD was enormous! Application writing
> and submission wasn’t yet streamlined and expensive. Consulting (partly due
> to a steep “learning curve”) was expensive. Application fees alone where
> almost US $200k. By definition in 2012 there was no PRECEDENCE that
> industry leaders would snag up entire category defining killer keyword
> based gTLDs. The entire “new gTLD” issue was “murky”.
> All of this will have DRASTICALLY changed by 2022:
> ·        There will be a DECADE of public experience and exposure of the
> new gTLD program and new gTLDs
> ·        The consulting and application submission related fees will be
> DRASTICALLY lower – some consultants already offer packages lower than US
> $30k – which includes application writing, submission, contracting and
> testing!
> ·        The application fee will likely be low, too. Some already
> fabulize about US $25k fee floors – or even BELOW!
> ·        The “myth” that leading industry giants are massively hoarding
> “their” verticals (industry defining category killer generic terms) ain’t a
> “myth” anymore: it’s a viable truth – proven by the 2012 application roster.
> ·        Consultants will swarm out to big corporations who have ample
> marketing budgets and inflated egos: “If YOU are not securing
> ‘.CategoryDefiningKeyword’ then your competition will: be clever and have
> at minimum a horse in the race: let us apply for it on your behalf”. Image
> how incredibly STUPID the head of digital marketing of a Multi-Billion
> corporation looks if their smaller competitor controls  “their” category
> keyword gTLD: this could cost him his head. In comparison for the price of
> a half page New York Times ad he could play hero and showcase to his board
> how “farsighted” he is.
> So if anything then the underlying “problem” that lead the board in 2012
> to deny “closed generics” only got worse – MUCH worse: Lower “fees &
> overall cost” combined with established precedence = disaster!
> And while we have an obligation to keep harm away from the Internet
> community by continuing to deny “closed generics” that logically implies
> that we also make sure that in the 2nd round there will be no possibility
> for “effectively closed generics”: namely generic term based open
> applications that prove their “public interest” by promising launch periods
> (e.g. the Sunrise period) – but then never EXECUTE the Sunrise period – but
> rather are closed to the public and still allow the applicant to run 100
> domains.  If you have a Sunrise period in your application then you ought
> to execute that in a reasonable frame of time – or else you render the gTLD
> “closed”. I suggest we provide 12 month (extendable by another 12 month if
> reasons are provided for the delay) to launch your Sunrise (if you have one
> in your application) – but at BARE MINUMUM ICANN should be crystal clear
> that for registries that have a Sunrise in their application any “contract
> renewal expectation” will only apply if such Sunrise has been executed.
> Otherwise industry giants will simply snag up category defining keyword
> based gTLDs – and leave them inactive – just to make sure they “control the
> namespace”. Or they use their 100 domains and effectively run it as closed
> generic.
> If the general public (or Congress for that matter) would get wind of how
> sloppy we are protecting the public interest here: they would go bananas.
> Thanks,
> Alexander
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] *On
> Behalf Of *Aikman-Scalese, Anne
> *Sent:* Dienstag, 18. Februar 2020 12:16
> *To:* Kathy Kleiman <kathy at kathykleiman.com>; gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Generic words belong to everyone in a
> business or industry
> HI Kathy,
> I do think it’s important for the WG to understand what Jeff’s position is
> procedurally on this topic.  It appears to me that Paul is correct that
> there was no policy against Closed Generics in 2012 and that the Board
> resolution is limited to the 2012 round.  So if we stick with the “ground
> rules” of the PDP, it appears that the next round will be “open season” for
> Closed Generic applications.  This is especially important to consider now
> that the Working Group has taken a “rough consensus” position (with some of
> us dissenting)  that going forward, if a string is applied for in the next
> round, that application will act as a complete bar to applications for the
> same string in any subsequent round.
> I would strongly advocate for skipping this topic in the next call and
> scheduling it for the F2F meeting.
> Anne
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Kathy Kleiman
> *Sent:* Tuesday, February 18, 2020 8:36 AM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* [Gnso-newgtld-wg] Generic words belong to everyone in a
> business or industry
> ------------------------------
> As we revisit the topic of Closed Generics, I would like to share a few
> thoughts as a reminder on how this issue (of "generic words") has been
> dealt with in other forums. This is a long-established issue...
> 1) Trademark Manual of Examining Procedure, US Trademark Office:
> "Generic terms are incapable of functioning as marks denoting source, and
> are not registrable on the Principal Register under §2(f) or on the
> Supplemental Register." 807.14(e)(ii)
> 2) Our own Community Objection process reviewed and raised the same deep
> concerns for gTLDs in which the applicant (a competitor in a field)
> ICC New gTLD Community Objections determination:  "The establishment of
> unrestricted, exclusive rights to a gTLD that is strongly associated with a
> certain community or communities, particularly where those communities are,
> or are likely to be, active in the Internet sphere *seems to me
> inherently detrimental to those communities' interests."  [Note: the
> "communities" being referred to here are commercial communities.  The issue
> of a closed .MOBILE was raised by the CTIA which represents the US mobile
> wireless industry.  *1-1316-6133
> Best, Kathy
> ------------------------------
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