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

Tue Feb 18 22:43:19 UTC 2020

It also does not say that the "rules" of the last round should change.
They perhaps should just be made more explicit, though I hesitate to start
creating a list of what types of applications are acceptable.  It was the
better view then, and still now, that everything is acceptable unless its
prohibited.  That is The Rule, imho.  Of course, cynics among us will point
out that the Board can always later decide something else, as they
repeatedly did last time and probably can't help themselves from doing
next time.

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

On Tue, Feb 18, 2020 at 2:39 PM Marc Trachtenberg via Gnso-newgtld-wg <
gnso-newgtld-wg at icann.org> wrote:

> Alex,
>
>
>
> Maybe I am missing something but where in *“…. will be deferred to the
> next round of the New gTLD Program, subject to rules developed for the next
> round, to allow time for the GNSO to develop policy advice concerning
> exclusive generic TLDs ….” *does the Board clearly say that there is a
> SEVERE PROBLEM with closed generics?
>
>
>
> 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] *On
> Behalf Of *Alexander Schubert
> *Sent:* Tuesday, February 18, 2020 4:10 PM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Generic words belong to everyone in a
> business or industry
>
>
>
> **EXTERNAL TO GT**
>
> Dear Group,
>
>
>
> Here from the June 2015 board meeting resolutions (these are quotes
> directly from the ICANN.org website):
>
> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a
> <https://urldefense.com/v3/__https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!Sy8raLRqN6P013dC8fzr4Qi4kjsoh6zcCGPkzBZNSxko8Q_AiWb0bZSqH1c_lIuI3cfZeA$>
>
>
>
> *Advise Exclusive Generic Applicants for non-contended strings, or
> Exclusive Generic Applicants prevailing in contention resolution that they
> must elect within a reasonably limited time to either:*
>
>
>
> *    submit a change request to no longer be an exclusive generic TLD, and
> sign the current form of the New gTLD Registry Agreement;*
>
>
>
> *    maintain their plan to operate an exclusive generic TLD. As a result,
> their application **will be deferred to the next round of the New gTLD
> Program, subject to rules developed for the next round, to allow time for
> the GNSO to develop policy advice concerning exclusive generic TLDs**; or*
>
>
>
> *    withdraw their application for a refund consistent with the refund
> schedule in the Applicant Guidebook.*
>
>
>
> I would like to draw emphasis to:
>
>
>
> *“…. will be deferred to the next round of the New gTLD Program, subject
> to rules developed for the next round, to allow time for the GNSO to
> develop policy advice concerning exclusive generic TLDs ….”*
>
>
>
> The board clearly states that there is a SEVERE PROBLEM, that it denies
> closed generic applications, that those REMAIN ineligible UNTIL the GNSO
> has “developed advice concerning exclusive generic gTLDs”. Hairsplitters
> could argue that this is only true for the 2012 roster. But hey: come on.
>
>
>
> This is in striking contrast to the assentation that the ineligibility
> where to be restricted to the 2012 round only. The board INSTRUCTED the
> gNSO to “develop policy advice concerning exclusive generic TLD”, so in
> absence of a consensus around such policy advice it is self-evident that
> the board’s concerns aren’t addressed at all; and their “ban” stays active
> (or we force them to activate it yet again)
>
>
>
> We run the risk to look incompetent if we run into this knife yet again:
> if we (like suggested by some here) maintain that our 2007 PDP was
> “flawless” – and that we have to repeat this obvious mistake (allowing
> closed generics) again; then here what will happen:
>
>    - GAC will point out the same as it has done in the 2012 round: asking
>    the board to deny closed generics!
>    - The board will note that the gNSO has denied their explicit request
>    to develop new policy advice; and as a result will deny closed generics
>    AGAIN!
>    - This creates MASSIVE confusion for applicants; something that we
>    should allow
>
>
>
> I assume it would be best if we abide by the Board request to “develop
> policy advice concerning exclusive generic TLD”. A subgroup was initiated
> last year – I am in there; but the group was inactive so far. We simply
> should create policy advice. If there is a consensus around under what set
> of circumstances allowing closed generics: fine! Then we allow them. If
> there is no consensus: then I guess we have established just that: No
> consensus to allow closed generics.
>
> Here a bit more from the June 2015 board resolutions:
>
>
>
>
>
>     *A Policy Development Process with respect to operating exclusive
> generic strings in the "public interest" should be undertaken by the
> community. Policy issues on "closed generic" TLDs should be resolved
> through the multistakeholder process.*
>
>
>
>     *The public interest goal requirement as stated is too general and
> requires greater specificity for enforceability**. The NGPC should add
> relevant meaning to the "public interest" concept by applying the GNSO
> rationales regarding the promotion of competition, consumer choice, market
> differentiation, and geographical and service provider diversity as
> standards for such affirmative objective showings and findings.*
>
>
>
> *    Safeguards are important when applicants have chosen to apply for
> closed control of a generic term designating a particular industry where
> the applicant is engaged in the conduct of business activities in that
> industry.*
>
>
>
> *    Requiring applicants to demonstrate some additional public interest
> goal in the context of exclusive registry access for generic strings would
> reverse the deliberate choices made by the ICANN community in its bottom-up
> process and impose new evaluation criteria.*
>
>
>
> *    The status quo as set out in the Applicant Guidebook should apply so
> that **both "open" and "closed" registry access for generic strings
> should continue to be allowed in this first application round, but both
> should be subject to significant scrutiny after launch by ICANN to ensure
> that the interests of rights owners and consumers are protected**.*
>
>
>
> So to say that the board decision was only pertaining the first round –
> but the 2nd round would be “open season for anything” is ignoring the
> board’s very clear advice. Board resolutions are our “safety valve” – we
> should try to establish our policies in a way that doesn’t require the
> board to issue them.
>
>
>
> And while we are at it:
>
> Submitting a generic term based gTLD application, trying to “prove public
> interest” by implementing clear launch phases (e.g. Sunrise), then never
> living up to such commitment: Should result in the denial of contract
> renewal after 10 years – at least for the 2nd round participants. If you
> prove your public interest through public availability (via defined launch
> periods) – but do not enact any: you have failed to serve the public
> interest. Why should ICANN renew your contract? It shouldn’t! As always:
> Exceptions might apply under extraordinary circumstances (Istanbul based
> .kurds denied to launch via court order for example).
>
>
>
> Thanks,
>
>
>
> Alexander
>
>
>
>
>
>
>
> *From:* Mike Rodenbaugh [mailto:mike at rodenbaugh.com <mike at rodenbaugh.com>]
>
> *Sent:* Dienstag, 18. Februar 2020 16:10
> *To:* Alexander Schubert <alexander at schubert.berlin>
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Generic words belong to everyone in a
> business or industry
>
>
>
> 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
>
> RODENBAUGH LAW
>
> tel/fax:  +1.415.738.8087
>
> http://rodenbaugh.law
> <https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!TJdk660_rz8Q-NrHih8ba6pZ5F5q6fKh70zdCooYJrpAq7oNPAlV7GTRT0cY-3TlciA$>
>
>
>
>
>
>
> 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
>
>
>
> *[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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