[Gnso-newgtld-wg] FW: Proposal re Closed Generics

Brian Winterfeldt Brian at Winterfeldt.law
Mon Mar 2 15:01:12 UTC 2020


Dear Marc,

Re-reading the particular Board resolution on the subject from June 21, 2015, the Board resolved “that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program” and “For the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants") … 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.”  See https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a.

I suppose, then, you are right that it would perhaps be more accurate to say that the current status quo is merely that closed generics have to date been prohibited, but could be permitted in future pending a change in rules through policy recommendations of this PDP (even though the resolution of course references serving a public interest goal).  In any case, our position is still that closed generics should (continue to) be prohibited in future new gTLD rounds, unless the applicant can demonstrate that operating a generic gTLD in a closed manner would serve a public interest goal (outweighing anti-competition concerns).

Best regards,

Brian

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Brian J. Winterfeldt
Principal
Winterfeldt IP Group
1601 K Street NW, Ste 1050
Washington, DC  20006<x-apple-data-detectors://12/1>
brian at winterfeldt.law<mailto:brian at winterfeldt.law>
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From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg
Sent: Friday, February 28, 2020 1:59 PM
To: Brian Winterfeldt <Brian at Winterfeldt.law<mailto:Brian at Winterfeldt.law>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics

Brian,

Respectfully I disagree that the status quo with respect to treatment of “closed generic” gTLDs, is that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD.  As I and some others have pointed out in numerous other emails on this thread, the public interest requirement was merely GAC advice and has become the “status quo” only as a result of it being inaccurately referred to that so many times that people accept it as fact.  In my view, if anything, the status quo is one of the following:


  1.  Closed generics are permitted because they were not prohibited in the AGB and the Board only prohibited them in the first round and directed the GNSO to make policy to address their treatment in subsequent rounds; or
  2.  Closed generics are not permitted because the Board prohibited them in the first round

Personally, I think it is #1 based on the Board making specifying that the prohibition just applied to the current round and directed the GNSO to make it policy if the ban were to apply to future rounds, but reasonable minds can differ on that.  I don’t think it is reasonable to keep saying though that the status quo is that closed generics can only exist if it is demonstrable that their existence is in the public interest based on the record.

Best regards,

Marc H. Trachtenberg
Shareholder
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020
trac at gtlaw.com<mailto:trachtenbergm at gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/>  |  View GT Biography <https://www.gtlaw.com/en/professionals/t/trachtenberg-marc-h>

[Greenberg Traurig]

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Brian Winterfeldt
Sent: Thursday, February 27, 2020 3:16 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics

*EXTERNAL TO GT*
Dear all,

We generally support the current status quo with respect to treatment of “closed generic” gTLDs, namely that they should be prohibited unless the applicant can demonstrate a public interest reason for allowing operation as a closed generic gTLD.  While we appreciate that there may be some innovative uses of closed generic gTLDs in the public interest, given the potential for abuse of closed generic gTLDs (e.g. anti-competitive uses), we support prohibition as the default (again, subject to a public interest exception, for which the applicant would bear the burden of proof).  Accordingly, we would support formalizing this approach in a future iteration of the AGB.  To that end, we also agree that clear criteria for what might constitute a public interest exception should be enumerated in such text (to be developed in implementation), and that any determinations on this subject would be appealable through the existing ICANN accountability mechanisms.

Hope this input is helpful.

Sincerely,

Brian and Griffin

________________________________
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Brian J. Winterfeldt
Principal
Winterfeldt IP Group
1601 K Street NW, Ste 1050
Washington, DC  20006<https://urldefense.com/v3/__http:/x-apple-data-detectors:/*12/1__;Lw!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFsQE_VZOnoFx9i_X26cZfLDGEeKWVisLEWhvtOjHF-3QECuej0gk$>
brian at winterfeldt.law<mailto:brian at winterfeldt.law>
+1 202 903 4422


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Griffin M. Barnett
Associate
Winterfeldt IP Group
1601 K Street NW, Ste 1050
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+1 202 759 5836



From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg
Sent: Thursday, February 27, 2020 2:22 PM
To: dorraink at amazon.com<mailto:dorraink at amazon.com>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] FW: Proposal re Closed Generics

Thanks for the response. I don’t see why a TLD would have to be a generic word to support any of the innovative concepts put forward.

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of "Dorrain, Kristine via Gnso-newgtld-wg" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Reply-To: "Dorrain, Kristine" <dorraink at amazon.com<mailto:dorraink at amazon.com>>
Date: Thursday, February 27, 2020 at 12:06 PM
To: "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] [Gnso-newgtld-wg] FW: Proposal re Closed Generics

Somehow I accidentally only replied to Elaine, apologies!

From: Dorrain, Kristine
Sent: Thursday, February 27, 2020 9:02 AM
To: 'Pruis, Elaine' <epruis at verisign.com<mailto:epruis at verisign.com>>
Subject: RE: [Gnso-newgtld-wg] Proposal re Closed Generics

A “closed generic” is single-registrant (see Spec 9 and Spec 11 of the RA).  A restricted TLD has non-RO registrants, but those registrants may have to satisfy criteria to get in, like .BANK.

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg
Sent: Thursday, February 27, 2020 8:53 AM
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics

What’s the difference between a “restricted TLD” and a “closed generic” if the operator writes the rules to only allow registrants that fit their desired profile?
What am I missing?
Elaine

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
Date: Wednesday, February 26, 2020 at 6:02 PM
To: Becky Burr <becky.burr at board.icann.org<mailto:becky.burr at board.icann.org>>
Cc: "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] Proposal re Closed Generics

I think closed generics should be allowed, just as they were in the 2012 round... until the Board's knee-jerk reaction to unsubstantiated GAC pressure.

I disagree with Alan that means "no closed generics" is the current policy.  The AGB clearly allowed them, as they were not prohibited or restricted in any way.

I agree with Becky that any "public interest" criteria had better be crystal clear to give the Board guidance.  But I don't think the Board should be deciding those things, at all.  The entire program was designed for the Board NOT to make such decisions.  Regardless of the criteria, some disappointed applicants certainly will challenge ICANN's decisions, as is their right under the Byalws.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.law<https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFsQE_VZOnoFx9i_X26cZfLDGEeKWVisLEWhvtOjHF-3QEw0KXmtQ$>


On Wed, Feb 26, 2020 at 11:34 AM Becky Burr <becky.burr at board.icann.org<mailto:becky.burr at board.icann.org>> wrote:
I'm taking no position whatsoever on the notion of public interest closed generics and/or whether an adverse decision should be appealable.  That said, if you do provide for a public interest exception to the no closed generics rule, please make the criteria crystal clear.  Otherwise you should expect disappointed applicants to file IRPs on the basis of disparate treatment.

On Wed, Feb 26, 2020 at 1:27 PM Alexander Schubert <alexander at schubert.berlin<mailto:alexander at schubert.berlin>> wrote:
Jeff,

I agree. The board decision should be appealable – but if the board denies the “public interest” claim: I suggest that doesn’t have to lead to a denial of the entire application. The applicant could have an alternative “open gTLD” application portion as well – and upon board denial of the public interest claim the applicant could decide whether they want to withdraw; or fall back to the open registration version they submitted. Or appeal the board decision.

Also I do not see the benefit of a strict “non-profit” restriction. All my 6 next round projects are non-profit, so I obviously value the choice of non-profit applicants a lot. But I could imagine “public interest” in an exclusive access model even when the registry is a for profit entity. In most of those cases that for profit entity would likely establish a trademark around the term. Like: “.twitter” – where TWITTER, Inc. would allow Twitter users to have their own twitter-handle matching domain (e.g. www.dotairport.twitter<https://urldefense.com/v3/__http:/www.dotairport.twitter__;!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFsQE_VZOnoFx9i_X26cZfLDGEeKWVisLEWhvtOjHF-3QEvW2ELp8$> instead of the longish www.twitter.com/dotairport<https://urldefense.com/v3/__http:/www.twitter.com/dotairport__;!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFsQE_VZOnoFx9i_X26cZfLDGEeKWVisLEWhvtOjHF-3QEkpLUbtg$> - why supporting the .com gTLD brand if you have your own global brand with dozens of millions of users?). In that case (in my mind) .twitter could  not be a Spec 13 registration – because the heavy restrictions in Spec 13 would in my perspective not allow all Twitter handles to be registered as .twitter domains to be used by Twitter, Inc. clients (brand specialists: what’s your opinion on this? Do I see this too narrow?).

Actually this would apply to all social media that are based on generic terms:

•        .twitter

•        .facebook

•        .snap

•        .telegram

Just as examples.

Is an exclusive access “.twitter” of “public interest”? Given that the brand is so impacting and all domains of an open gTLD .twitter would be likely subject to confusion: seems to make a lot of sense to provide TWITTER, Inc. with exclusive access. We run into a clear “judgement call” here. Is “.match” (matches to make fire, matching items, etc.) better off as reserved for match.com<https://urldefense.com/v3/__http:/match.com__;!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFsQE_VZOnoFx9i_X26cZfLDGEeKWVisLEWhvtOjHF-3QEiLqm3HI$> (single platform) – or not? Do we require the ICANN board to make these calls? What is the rationale of their decision? Gut-feeling?

Thanks,


Alexander





From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>] On Behalf Of Jeff Neuman
Sent: Mittwoch, 26. Februar 2020 12:40
To: Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>; Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics

Alan,

Can you explain why being able to assert an accountability mechanism would destroy the notion of the public interest closed TLD.

Remember, GAC Advice was fairly clear on this.  It didn’t say that there should never be closed generic TLDs.  It said “For strings representing generic terms, exclusive registry access should serve a public interest goal."

Your initial proposal (minus the no appeals part) to have any public interest TLD closed generic exception is rather narrow to begin with.  Must be a non-profit entity, must have a vote by Board Supermajority, etc.  Justine has recommended some additional elements on top of that with strong contractual compliance provisions…..

I am not saying I support or don’t support the proposal, but I am not sure why taking away a right to use an accountability mechanism would destroy the entire proposal?

Thanks.

Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Alan Greenberg
Sent: Tuesday, February 25, 2020 5:49 PM
To: Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics

Fine with me. But in my opinion, that means the exception for public interest TLDs will not fly and we revert to the 2012 implementation of no closed generics.

Alan

At 25/02/2020 04:32 PM, Mike Rodenbaugh wrote:
i do not believe the Board should be allowed to make any decisions that are not "appealable" per the IRP.  If Claimant has proper standing and a dispute within the scope of the Bylaws definition of Dispute, then they have a valid IRP claim.  This is a very slippery slope to start to carve out Board decisions that have no chance of appeal, and why on Earth would we want to do that anyway?

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.law<https://urldefense.com/v3/__http:/rodenbaugh.law__;!!DUT_TFPxUQ!Q_YjEVU8CSS0x0AFsQE_VZOnoFx9i_X26cZfLDGEeKWVisLEWhvtOjHF-3QEw0KXmtQ$>


On Mon, Feb 24, 2020 at 7:08 PM Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca> > wrote:
I had this in my original proposal but based on individual discussions I have had I know that some people missed it.
To have the Board make a decision that is not in any way appealable will require a Bylaw change, but it is a change for which there is another precedent that will go before the Board before out report reaches them. The Auction Proceeds CCWG also will require a similar Bylaw amendment.
Alan
At 24/02/2020 09:46 PM, Phil Buckingham wrote:
Hi Justine , Alan , Anne,
Justine , that̢۪s  a great suggestion. The contrntractual compliance & monitoring needs to be much more rigorous in the next round .
I very much support Alan̢۪s suggestion of going aheadead with new ( 2020) policy recommendations for a special use case  , New TLD application category . Let̢۪s call it a Public Ic Interest TLD .
I am working on a proposal ( for Friday̢۪ deadline) .) . It will incorporate the evaluation and implementation issues too.
Ultimately my thoughts are we need to make policy that is so demanding , incorporating Alexander’s suggestion of a â₢€œ health warning “ that applications will not pt pass the evaluation.  ICANN will need to employ & train “ evaluation  experts. There will be no come backs , no second evaluation , no appeals . Once passed the evaluation The Board would need to approve ( or reject) the application by Special resolution.
Your thoughts ?
Phil
Phil Buckingham
Sent from my iPhone
On 25 Feb 2020, at 01:30, Justine Chew <justine.chew at gmail.com<mailto:justine.chew at gmail.com> > wrote:
Perhaps this is something we could pick up under the Contractual Compliance topic.
Justine
-----
On Fri, 21 Feb 2020 at 01:39, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
Thank you Justine.  This is very constructive.  We would then need to think about enforcement mechanisms.  Private dispute resolution process?  Filing a complaint with ICANN?  Positive obligation by ICANN Compliance to monitor?  Accomplish the goals below via PICs and eligibility requirements?  Would appreciate your further thoughts.
Just continuing the discussion so we can help create a complete proposal as this moves forward to formulate a WG recommendation.
Anne

From: Gnso-newgtld-wg < gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Justine Chew
Sent: Thursday, February 20, 2020 12:28 AM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposal re Closed Generics

[EXTERNAL]
________________________________
While I remain undecided on supporting either a full ban on closed generics or (what I call) a qualified ban per the special case conditions proposed by Alan, I strongly suggest that any consideration of Alan's proposal should also include the following:
Insertion as material in the relevant RA for a closed generic TLD that is a generic word, such terms and conditions:
(1)  to be derived from the applicant's submission on the use of the closed generic TLD as being in the public interest;
(2)  which prohibit any action considered as anti-competitive (eg. discriminatory registration policies in favour of certain parties or against competitors in the applicable industry);
(3)  which govern any dealings on the disposal and/or future use of the closed TLDs - that (1) and (2) must be adhered to at all times and by any party which operates or acquires the rights under the RA; and
(4)  to stipulate that launching for SLD registration for the closed generic TLD by the (first) RO must take place within 2 years of signing the RA.
the breach of one or more of which will constitute cause for termination of the RA.
Justine
-----


On Thu, 20 Feb 2020 at 13:48, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca> > wrote:
While talking to a colleague today, I realized a problem with my
proposal. I was thinking that there would (or could ) only be a small
number of applications that could be deemed to be for closed TLDs
that are generic words and in the public interest. That may indeed be
true. However, there may well be MANY such applications twhere the
applicant beleives their use will be in the public interest, and a
large load of such cases going to the Board will not work.
The change is to restrict applicants to not-for-profit entities only.
This is in keeping with the nature of the one example that has been raised.
Note that due to the unfortunate timing of the SubPro meeting being
scheduled in conflict with the EPDP, I will likely not be on the SubPro call.
To make my position clear, other than this special case I am
proposing, I would NOT support the delegation of closed generics.
Alan
At 18/02/2020 07:43 PM, Alan Greenberg wrote:
>The SubPro meeting today began discussing Closed Generics.
>
>One of my interventions was that although I was strongly opposed to
>closed generics in the general case, I did support the concept that
>a closed generic could be in the public interest, with the example
>of .disaster operating by the International Red Cross as the example.
>
>I proposed that we allow closed generic applications, but the
>decision on whether a particular application would move forward or
>not would rest with the ICANN Board.
>
>The Board would have to agree, by an overwhelming majority (say at
>least 90% of sitting, non-conflicted, Board members) that the TLD
>would be in the public interest.
>
>The decision would be final and not appealable through the ICANN
>Reconsideration or IRP processes. This latter condition would
>require an amendment to the ICANN Bylaws to exempt such decision
>from the accountability measures, but this is identical to an
>amendment being recommended by the CCWG-Auction Proceeds, so there
>is a current precedent.
>
>If, despite the fact that the decision would have to be near
>unanimous, there is still distrust of the ICANN Board in this
>matter, the approval of such TLDs could be subject to the Empowered
>Community Approval or Rejection Actions (also requiring a Bylaw
>change). However, in my mind, such caution would be overkill.
>
>This proposal would allow a closed generic when it is clearly (in
>the view of the Board) in the Public Interest.
>
>Alan
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