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

Mike Rodenbaugh mike at rodenbaugh.com
Tue Feb 18 22:27:38 UTC 2020


I feel pretty strongly that, at bare minimum, we should give Jeff the
respect of spelling his name correctly -- especially if we are going to
name a whole new capitalized Rule after him.  We owe him at least that much.

Sincerely,

Mike Rodenbaw
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.law


On Tue, Feb 18, 2020 at 2:12 PM Aikman-Scalese, Anne <AAikman at lrrc.com>
wrote:

> Marc, Kathy, et al
>
> I think it’s important for us to get a better sense of exactly what “The
> Newman Rule” is and how to apply it to the document that will go out for
> public comment.  As Jeff stated, consistency in application of the Rule is
> important.  One factor missing from the discussion on today’s call was the
> significance of action taken by Resolution of the New gTLD Program
> Committee.
> https://www.icann.org/resources/board-material/resolutions-2012-04-10-en
>
>
>
> Rationale:  I*n order to have efficient meetings and take appropriate
> actions with respect to the New gTLD Program for the current round of the
> Program and as related to the Applicant Guidebook, the Board decided to
> create the "New gTLD Program Committee" in accordance with Article XII of
> the Bylaws and has delegated decision making authority to the Committee as
> it relates to the New gTLD Program for the current round of the Program
> which commenced in January 2012 and for the related Applicant Guidebook
> that applies to this current round.*
>
>
>
> The discussion on idns this morning did not seem to follow the rule that
> the WG has been operating under for a couple of years.  This was based on
> the idea that this was a staff decision, but  I would like to know whether
> the New gTLD Program Committee endorsed this idn priority processing
> approach.
>
>
>
> Maybe the application of the Newman Rule needs to vary depending on
> various other circumstances?  This is why we need for Jeff to clarify when
> he wants to make exceptions to the Newman Rule and on what basis.  Jeff may
> be suggesting a “corollary” to the Newman Rule based on whether the Board
> (or the New gTLD Program Committee) ratified the staff’s action or not, but
> the corollary isn’t really clear based on today’s discussion.  In other
> words, Jeff seemed to say that (a) the Newman rule does not necessarily
> apply to idn priority application processing because that approach was
> developed by Staff and (b) the Newman rule does not apply to Closed
> Generics because the Board’s resolution was limited to the 2012 round
> applications.
>
>
>
> Having worked on the Policy and Implementation WG (and given what we have
> gone through in relation to the Predictability Framework), I believe that
> if we try to distinguish the exceptions based on which case presents
> “policy” versus which case presents “implementation”, we are going down a
> rabbit hole that will result in more delay to the next round opening.  On
> the other hand, we can’t really approach this as a rule that Leadership
> applies as it determines on a case-by-case basis.   (There is no
> consistency in that approach.)   And as several WG members pointed out,
> it’s quite different from the operating presumption that that been applied
> during the course of this WG’s deliberations.  The operating presumption
> was:  If no consensus, the 2012 practice stands.
>
>
>
> Maybe we should talk about how the proposed variations in the application
> of  the Newman Rule as described by Leadership on today’s call would apply
> to other issues finalized after the 2012 AGB was issued (but as to which we
> may not have Consensus).  Off the top of my head, so far I think the list
> includes at least the following:
>
>
>
> *1.  Giving application processing priority to IDNs*. Developed by staff
> but the Board endorsed?  When we say “ Staff” here, do we mean the New gTLD
> Program Committee?  Because that was a subset of Board members who were not
> conflicted and they were given full authority by the Board.
>
>
>
> *2. Closed generic applications* – Board resolution says limited to
> 2012.  GAC Advice says “only if in the Public Interest” which the ICANN
> Board is trying to define with reference to the policy process.
>
>
>
> *3. Community Priority Evaluation* – further evaluation process developed
> subsequent to the publication of the AGB.  WG has yet to agree on whether
> to adopt the point system.
>
>
>
> *4. Requiring disclosure of all proposed services in response to Question
> 18 of the application*.  (This was in the 2012 AGB but some want to
> relegate it to the RSEP process so applications can move through more
> quickly.)
>
>
>
> *5. Specification 13* – not developed through a policy process but
> endorsed by the Board.  Was there a Board Resolution?  Action by the New
> gTLD Program Committee?
>
>
>
> *6. Name Collision Framework* (Resolution passed by the New gTLD Program
> Committee.)
> https://www.icann.org/en/system/files/files/name-collision-framework-30jul14-en.pdf
>
>
>
>
>
> 7. YOUR TOPIC HERE
>
> 8. YOUR TOPIC HERE
>
>
>
> Anne
>
>
>
> *From:* trachtenbergm at gtlaw.com <trachtenbergm at gtlaw.com>
> *Sent:* Tuesday, February 18, 2020 12:30 PM
> *To:* kathy at kathykleiman.com; Aikman-Scalese, Anne <AAikman at lrrc.com>;
> gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] Generic words belong to everyone in a
> business or industry
>
>
>
> *[EXTERNAL]*
> ------------------------------
>
> Kathy,
>
>
>
> Just for clarity, after all of us have suffered through endless dissecting
> and re-arguing every other topic and issue including many where there was
> clearly no consensus and following the Newman rule would have permitted us
> to simply move on to the next topic, we are now following the Newman rule
> again when doing so would achieve the result you want?
>
>
>
> 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
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
> <gnso-newgtld-wg-bounces at icann.org>] *On Behalf Of *Kathy Kleiman
> *Sent:* Tuesday, February 18, 2020 12:53 PM
> *To:* Aikman-Scalese, Anne <AAikman at lrrc.com>; gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Generic words belong to everyone in a
> business or industry
>
>
>
> **EXTERNAL TO GT**
>
> Hi Anne,
>
> Per the discussion in the WG and on the chat, I don't agree that this is
> the right assessment at all. The Board adopted policy in 2012, and ICANN
> Org, Board and Community did followed it and dozens of closed applications
> became open in Round 1. Far more important than the order of processing of
> applications (an implementation issue), this is a fundamental policy issue.
> The Board acted, with enormous public input during a formal comment period,
> and then created the bar. The default by the Newman rule and everything
> else we follow is to keep this policy, and practice of 2012, absent some
> overwhelming reason to change it. In all these months, no overwhelming need
> or agreement has materialized.
>
> Best, Kathy
>
> On 2/18/2020 12:16 PM, Aikman-Scalese, Anne wrote:
>
> 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>
> <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
>
>
>
> *[EXTERNAL]*
> ------------------------------
>
> 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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