RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on safeguards for new gTLDs

[<icann@xxxxxxxxxxxxxx>]

All of my clients, and my law firm, have business interests much  broader
than the domain industry.

 

Who are these people expressing grave concerns?  Because I am only hearing
competitors to so-called closed generic TLD applicants expressing concerns
(including indirectly through their ICANN-connected government reps), with
no evidence or any real specifics as to the parade of horribles they seem to
envision.  And certainly no counter-argument to the points I am raising.  Do
you or anyone else have any substantive response to any of those points?

 

Mike Rodenbaugh

RODENBAUGH LAW

Tel/Fax: +1.415.738.8087

 <http://rodenbaugh.com> http://rodenbaugh.com

 

From: jscottevans@xxxxxxxxx [mailto:jscottevans@xxxxxxxxx] 
Sent: Thursday, May 23, 2013 1:10 PM
To: icann@xxxxxxxxxxxxxx; lhc@xxxxxxxxxxxxx; svg@xxxxxxxxxxxxxxxxxxxxx;
sarah.b.deutsch@xxxxxxxxxxx
Cc: Elisa.Cooper@xxxxxxxxxxxxxxx; sdelbianco@xxxxxxxxxxxxx;
bc-gnso@xxxxxxxxx
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 


Mike:

We appreciate your pov. However, there are many of us in this constituency
that have business interests broader than the domain industry. In my
discussions with these non-ICANNers, they have voiced grave concerns and
want assurances similar to those put forward by Sarah and Laura in the
latest draft. Do others gave perspective here?


Sent from Yahoo! Mail for iPhone

 

  _____  

From: icann@xxxxxxxxxxxxxx <mailto:icann@xxxxxxxxxxxxxx>
<icann@xxxxxxxxxxxxxx <mailto:icann@xxxxxxxxxxxxxx> >; 
To: 'Laura Covington' <lhc@xxxxxxxxxxxxx <mailto:lhc@xxxxxxxxxxxxx> >;
<svg@xxxxxxxxxxxxxxxxxxxxx <mailto:svg@xxxxxxxxxxxxxxxxxxxxx> >; 'Deutsch,
Sarah B' <sarah.b.deutsch@xxxxxxxxxxx <mailto:sarah.b.deutsch@xxxxxxxxxxx>
>; 
Cc: 'Elisa Cooper' <Elisa.Cooper@xxxxxxxxxxxxxxx
<mailto:Elisa.Cooper@xxxxxxxxxxxxxxx> >; 'Steve DelBianco'
<sdelbianco@xxxxxxxxxxxxx <mailto:sdelbianco@xxxxxxxxxxxxx> >;
<bc-gnso@xxxxxxxxx <mailto:bc-gnso@xxxxxxxxx> >; 
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs 
Sent: Thu, May 23, 2013 7:21:46 PM 

 


We went through exercise of trying to define categories like this, in 2006.
Then in the Vertical Integration WG.  Then again recently in the IPC.  It
can?t be done, as far as I know.

 

The GAC didn?t bother to provide a definition either.  Making any response
problematic as we don?t really know what we are responding to.

 

Mike Rodenbaugh

RODENBAUGH LAW

Tel/Fax: +1.415.738.8087

 <http://rodenbaugh.com> http://rodenbaugh.com

 

From: Laura Covington [mailto:lhc@xxxxxxxxxxxxx] 
Sent: Thursday, May 23, 2013 12:05 PM
To: mike@xxxxxxxxxxxxxx <mailto:mike@xxxxxxxxxxxxxx> ;
svg@xxxxxxxxxxxxxxxxxxxxx <mailto:svg@xxxxxxxxxxxxxxxxxxxxx> ; 'Deutsch,
Sarah B'
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso@xxxxxxxxx
<mailto:bc-gnso@xxxxxxxxx> 
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

Hey, Mike, 

I'm totally open to considering other definitions/terminology for "closed
generics" if you have ideas to propose.  

 

As to the separate issue of responding to the GAC's advice, participants on
the call the other day seemed interested in including ? or at least
considering - language on closed generics rather than being silent.  It
seems clear ? and understandable - what your point of view is.  Anybody
else? 

 

Laura

 

 

Laura Covington

VP, Intellectual Property Policy

Yahoo! Inc.

 <javascript:return> lhc@xxxxxxxxxxxxx

408.349.5187

 

From: " <javascript:return> icann@xxxxxxxxxxxxxx" < <javascript:return>
icann@xxxxxxxxxxxxxx>
Organization: Rodenbaugh Law
Reply-To: " <javascript:return> mike@xxxxxxxxxxxxxx" < <javascript:return>
mike@xxxxxxxxxxxxxx>
Date: Thursday, May 23, 2013 11:13 AM
To: "Yahoo! Inc." < <javascript:return> lhc@xxxxxxxxxxxxx>, "
<javascript:return> svg@xxxxxxxxxxxxxxxxxxxxx" < <javascript:return>
svg@xxxxxxxxxxxxxxxxxxxxx>, "'Deutsch, Sarah B'" < <javascript:return>
sarah.b.deutsch@xxxxxxxxxxx>
Cc: 'Elisa Cooper' < <javascript:return> Elisa.Cooper@xxxxxxxxxxxxxxx>,
'Steve DelBianco' < <javascript:return> sdelbianco@xxxxxxxxxxxxx>, "
<javascript:return> bc-gnso@xxxxxxxxx" < <javascript:return>
bc-gnso@xxxxxxxxx>
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

It seems that every dictionary word is a ?pre-existing trademark? at least
insofar as it is registered as such somewhere (e.g. Benelux, in advance of
the EU land rush).  My examples are all registered at the USPTO.  Any of
those registrations could be purchased or even be previously registered by
any so-called ?closed generic? TLD applicant.

 

Why is it legitimate for Apple to operate .apple to the exclusion of
everyone else in the world that may have a legitimate use for a .apple
domain name?  (Maybe better examples are other new TLD applicants Abbott,
Active, AFamilyCompany, Amazon, AmericanFamily?  and the list goes on past
Apple?.)  Yet it would not be legitimate for Weather.com to operate .weather
that way?

 

Mike Rodenbaugh

RODENBAUGH LAW

Tel/Fax: +1.415.738.8087

 <http://rodenbaugh.com> http://rodenbaugh.com

 

From: Laura Covington [ <javascript:return> mailto:lhc@xxxxxxxxxxxxx] 
Sent: Thursday, May 23, 2013 10:54 AM
To: Mike Rodenbaugh;  <javascript:return> svg@xxxxxxxxxxxxxxxxxxxxx;
Deutsch, Sarah B
Cc: Elisa Cooper; Steve DelBianco;  <javascript:return> bc-gnso@xxxxxxxxx
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

Sticking with the definition piece first, doesn't second bullet cover your
question?  Pre-existing trademark? 

 

 

 

Laura Covington

VP, Intellectual Property Policy

Yahoo! Inc.

 <javascript:return> lhc@xxxxxxxxxxxxx

408.349.5187

 

From: Mike Rodenbaugh < <javascript:return> icann@xxxxxxxxxxxxxx>
Reply-To: Mike Rodenbaugh < <javascript:return> icann@xxxxxxxxxxxxxx>
Date: Thursday, May 23, 2013 10:42 AM
To: "Yahoo! Inc." < <javascript:return> lhc@xxxxxxxxxxxxx>, "
<javascript:return> svg@xxxxxxxxxxxxxxxxxxxxx" < <javascript:return>
svg@xxxxxxxxxxxxxxxxxxxxx>, "Deutsch, Sarah B" < <javascript:return>
sarah.b.deutsch@xxxxxxxxxxx>
Cc: Elisa Cooper < <javascript:return> Elisa.Cooper@xxxxxxxxxxxxxxx>, Steve
DelBianco < <javascript:return> sdelbianco@xxxxxxxxxxxxx>, "
<javascript:return> bc-gnso@xxxxxxxxx" < <javascript:return>
bc-gnso@xxxxxxxxx>
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

Hi Laura,

 

Then what about all the trademarks that exist for 'generic words'.  Not just
Apple, but also Sex, Drugs and even Rock 'n Roll (all registered at the
USPTO)?

 

Beyond that, what about the broader notion that closed generic business
models are more in the public interest than open copycat business models?
The BC is on record with the position that restricted registries are
preferred over open registries, because abuse and consumer harm are far less
likely.

 

Best,

Mike

 


  _____  


From: Laura Covington < <javascript:return> lhc@xxxxxxxxxxxxx>
To: " <javascript:return> svg@xxxxxxxxxxxxxxxxxxxxx" < <javascript:return>
svg@xxxxxxxxxxxxxxxxxxxxx>; "Deutsch, Sarah B" < <javascript:return>
sarah.b.deutsch@xxxxxxxxxxx> 
Cc: Elisa Cooper < <javascript:return> Elisa.Cooper@xxxxxxxxxxxxxxx>; Steve
DelBianco < <javascript:return> sdelbianco@xxxxxxxxxxxxx>; "
<javascript:return> bc-gnso@xxxxxxxxx" < <javascript:return>
bc-gnso@xxxxxxxxx> 
Sent: Thursday, May 23, 2013 10:23 AM
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

I don?t know of any official definition of a closed generic TLD, but perhaps
a starting place would be to say that it is a TLD that:

 

*       Consists of a generic term/phrase which 
*       Is not intended to represent a pre-existing trademark, and
*       The registry operator does not intend to sell/grant/give second
level domains to the (general?) public 

 

Laura Covington

VP, Intellectual Property Policy

Yahoo! Inc.

lhc@xxxxxxxxxxxxx <javascript:return> 

408.349.5187

 

From: " <javascript:return> svg@xxxxxxxxxxxxxxxxxxxxx" < <javascript:return>
svg@xxxxxxxxxxxxxxxxxxxxx>
Date: Thursday, May 23, 2013 12:49 AM
To: "Deutsch, Sarah B" < <javascript:return> sarah.b.deutsch@xxxxxxxxxxx>
Cc: Elisa Cooper < <javascript:return> Elisa.Cooper@xxxxxxxxxxxxxxx>, Steve
DelBianco < <javascript:return> sdelbianco@xxxxxxxxxxxxx>, "
<javascript:return> bc-gnso@xxxxxxxxx" < <javascript:return>
bc-gnso@xxxxxxxxx>
Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

Thanks Sarah, J. Scott and Laura for this work. 

 

I am wondering if there is a clear definition of what constitutes a closed
generic TLD somewhere?

 

Failing that, what is to stop the criteria suggested in this text being
imposed on, say, a brand that has a term resembling a generic term as its
brand name and that would understandably like to operate it for its own
exclusive use?

 

Thanks,

 

Stéphane Van Gelder
Chairman and Managing Director/Fondateur
STEPHANE VAN GELDER CONSULTING

T (UK): +44 (0)7583 457053

T (FR): +33 (0)6 20 40 55 89

Skype: SVANGELDER
 <http://www.stephanevangelder.com/> www.StephaneVanGelder.com
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Le 22 mai 2013 à 22:58, "Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx
<javascript:return> > a écrit :





All,


To follow up on our BC call this morning,  we discussed why the existing
draft asking ICANN to develop a non-specific public policy exemption in the
Registry Code of Conduct for closed generics was not a good idea.  Steve had
encouraged me, J. Scott Evans and Laura Covington from Yahoo to put pen to
paper and propose specific ideas (building on the Australia?s earlier GAC
recommendations on closed generics) rather than for the BC to remain silent
on this issue. 

 

Our proposed language is attached for Members? consideration.

 


Sarah

 

 


Sarah B. Deutsch 
Vice President & Deputy General Counsel 
Verizon Communications 
Phone: 703-351-3044 
Fax: 703-351-3670

 

 

From:  <javascript:return> owner-bc-gnso@xxxxxxxxx [ <javascript:return>
mailto:owner- <javascript:return> bc-gnso@xxxxxxxxx] On Behalf Of Elisa
Cooper
Sent: Monday, May 20, 2013 3:34 PM
To: Steve DelBianco
Cc:  <javascript:return> bc-gnso@xxxxxxxxx
Subject: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

Steve,

 

Thank you so much for all of your work on this.

 

Please find attached my edits to Sarah?s draft.

 

As previously stated, I will recuse myself from comments related to Closed
Generics. That said, I am concerned that the proposed comments in this draft
may be at odds with our earlier position:
<http://www.bizconst.org/Positions-Statements/BC%20Comment%20on%20Closed%20G
eneric%20TLDs.pdf>
http://www.bizconst.org/Positions-Statements/BC%20Comment%20on%20Closed%20Ge
neric%20TLDs.pdf.

 

Thank you again.

 

Best,

Elisa

 

Elisa Cooper

Director of Product Marketing

MarkMonitor

 

Elisa Cooper

Chair

ICANN Business Constituency

 

208 389-5779 PH

 

From:  <javascript:return> owner-bc-gnso@xxxxxxxxx [ <javascript:return>
mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Deutsch, Sarah B
Sent: Monday, May 20, 2013 12:29 PM
To: Steve DelBianco;  <javascript:return> bc-gnso@xxxxxxxxx
Subject: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on
safeguards for new gTLDs

 

Steve, All,


Thanks for your work on this draft. My comments are attached.   One big
issue I would flag for members is the paragraph dealing with closed
generics.   Various BC members have grave concerns about certain closed
generics and formal objections have been filed.  The focus on applying for
an exemption in the Final Guidebook does not fix these fundamental concerns
for the reasons outlined in the attached.

 

I?d suggest that the BC either (a) refrain from taking a position on the
closed generic issue altogether or (b) support the GAC?s concerns about
closed generics and the need to show that an award of an exclusive right in
a generic term is in the larger public interest.   

 

Sarah

 

From:  <javascript:return> owner-bc-gnso@xxxxxxxxx [ <javascript:return>
mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco
Sent: Wednesday, May 15, 2013 4:40 PM
To:  <javascript:return> bc-gnso@xxxxxxxxx
Subject: [bc-gnso] FOR REVIEW: draft BC comment on GAC Advice on safeguards
for new gTLDs

 

ICANN?s new gTLD Board Committee has requested public comment on how it
should address GAC advice to establish safeguards for categories of new
gTLDs. (
<http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en
.htm> link)

 

The BC has have held 3 conference calls on this topic (see minutes and
transcripts on the BC  <https://community.icann.org/display/gnsobc/Home>
Wiki).  Several BC members provided input, including text from Ron Andruff,
Marilyn Cade, and Andrew Mack.  

 

Comment period closes 4-Jun.   That allows our regular 14-day review and
approval period.  So, please REPLY ALL with your suggested edits and
comments regarding this draft, before 29-May-2013.

 

Steve DelBianco

Vice chair for policy coordination

Business Constituency

 

 

 

<BC Comment on GAC Advice for new gTLDs DRAFT v1sd2 (2).docx>