[Gnso-newgtld-wg] FW: Package 6

Tue Jun 30 18:07:54 UTC 2020

For some reason, my reply all sometimes fails to copy the list.  See below.
Thank you,
Anne

From: Aikman-Scalese, Anne
Sent: Tuesday, June 30, 2020 9:56 AM
To: 'trachtenbergm at gtlaw.com' <trachtenbergm at gtlaw.com>; PMcGrady at taftlaw.com; jeff.neuman at comlaude.com; langdonorr at gmail.com
Subject: RE: Package 6

Marc,
There is no consensus on criteria for judging when a closed generic will serve the public interest and Leadership does not see the WG reaching such a Consensus at this time.  Many are dead set against Closed Generics period, the end and others have not provided convincing cases showing a demonstrated public interest.  So there is no WG Consensus.  To some, that means it’s a “free-for-all” and they may be prepared to sue ICANN to prove their Closed Generic application does, in fact, serve a public interest.  Some WG members end up saying “The Board will have to decide” while as to other issues, they say “The Board can’t make policy, only the GNSO makes policy”.

Given there is no policy consensus, I think we should affirm the three points below.  If nothing else, this would protect the Board (somewhat) from having to bear the litigation risk of our WG not having achieved consensus on a new policy.  This solution may “split the baby” but at least it doesn’t prevent the Closed Generic applications and it doesn’t force the Board to make the policy.

The Working Group affirms the Board’s action and recommends that in the event Closed Generic applications are received in the next round, then ICANN should allow applicants to

(1) make a change to non-exclusive access,
(2) maintain & defer until policy on serving a public interest is finalized, or
(3) withdraw

Anne

From: trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com> <trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com>>
Sent: Tuesday, June 30, 2020 9:47 AM
To: PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>; Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>; langdonorr at gmail.com<mailto:langdonorr at gmail.com>
Subject: RE: Package 6

[EXTERNAL]
________________________________
It doesn’t kick the can down the road – it decides now that closed generics are banned unless and until the policy on serving a public interest is created.  I disagree with this approach and believe that others do as well.

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: McGrady, Paul D. [mailto:PMcGrady at taftlaw.com]
Sent: Tuesday, June 30, 2020 11:37 AM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com>>; jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>; langdonorr at gmail.com<mailto:langdonorr at gmail.com>
Subject: RE: Package 6

Why not just solve the puzzle instead?  The recommendation you propose just kicks the can again.  I think we can do it! (but we do have to get the “ban” language out – it just isn’t what happened).

From: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Sent: Tuesday, June 30, 2020 11:29 AM
To: trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com>; McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>; jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>; langdonorr at gmail.com<mailto:langdonorr at gmail.com>
Subject: RE: Package 6

Why don’t we just affirm the Board’s action and recommend that in the event Closed Generic applications are received, then ICANN should allow applicants to

(1) make a change to non-exclusive access,
(2) maintain & defer until policy on serving a public interest is finalized, or
(3) withdraw

Then there is an actual recommendation from the WG as to the next round.
Anne

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: Monday, June 29, 2020 2:44 PM
To: PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>; jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>; langdonorr at gmail.com<mailto:langdonorr at gmail.com>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Package 6

[EXTERNAL]
________________________________
+1 to Paul.  Everyone does not agree with that position.

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 McGrady, Paul D.
Sent: Monday, June 29, 2020 4:41 PM
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Cheryl Langdon-Orr <langdonorr at gmail.com<mailto:langdonorr at gmail.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Package 6

*EXTERNAL TO GT*
Hi Jeff & Cheryl,

I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6.  Is Closed Generics not on the agenda for upcoming calls?  If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls?

Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round.  That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply.  There were three options:  (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case.

Best,
Paul

Taft /

Paul D. McGrady / Partner
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