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

["Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx>]

I'm not sure how you're defining all the various categories of your clients 
(niche, exclusive, restricted etc.), but perhaps include those 3 categories or 
just exclude anyone who is applying for a .brand or an open gTLD.   Since 
replying to your questions below requires delving into concerns about specific 
closed gTLDs, members would benefit from knowing which ones you are 
representing.  Full disclosure should be required regardless since BC members 
wear different hats and everyone would benefit from greater transparency when 
discussing contentious topics on the list.

From: Mike Rodenbaugh [mailto:mike@xxxxxxxxxxxxxx] On Behalf Of 
icann@xxxxxxxxxxxxxx
Sent: Thursday, May 23, 2013 4:21 PM
To: Deutsch, Sarah B; 'Laura Covington'; svg@xxxxxxxxxxxxxxxxxxxxx
Cc: 'Elisa Cooper'; 'Steve DelBianco'; bc-gnso@xxxxxxxxx
Subject: RE: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on 
safeguards for new gTLDs

I don't know how you define 'closed generic'.  All of my clients intending to 
operate single registrant TLDs have relevant trademark registrations.  I also 
don't see how your question is relevant to this discussion.

Mike Rodenbaugh
RODENBAUGH LAW
Tel/Fax: +1.415.738.8087
http://rodenbaugh.com

From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Deutsch, Sarah B
Sent: Thursday, May 23, 2013 12:40 PM
To: mike@xxxxxxxxxxxxxx<mailto:mike@xxxxxxxxxxxxxx>; 'Laura Covington'; 
svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>
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

Can you tell us which clients are you representing for which closed generics?

From: Mike Rodenbaugh [mailto:mike@xxxxxxxxxxxxxx] On Behalf Of 
icann@xxxxxxxxxxxxxx<mailto:icann@xxxxxxxxxxxxxx>
Sent: Thursday, May 23, 2013 3:22 PM
To: Deutsch, Sarah B; 'Laura Covington'; 
svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>
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

I represent various TLD applicants for all types of models -- brand, niche, 
restricted, single-registrant, open.  I advocate on behalf of the principles 
involved, namely that closed TLD business models are inherently no different 
(or at least no more likely harmful) than sole ownership of second-level domain 
names.  Moreover such models were always discussed, accepted and even 
encouraged throughout the 6-year PDP... right up until it was revealed that 
Google and Amazon had applied for 175 of them combined.

You do not cite any evidence of any potential harm.  Nor did the GAC, which 
merely tracked the "public interest" language already in the AGB Spec 9.  Nor 
did Australia, which is but one government which cited no evidence or anything 
remotely "specific" as to potential harm.  Nor have I seen any evidence from 
anyone who has objected to any so-called closed generic application.  They 
complain because their competitor would control the string, but this is much 
like their competitor (or they themselves, or someone else) controls the 
relevant .com, .net, .org and important ccTLD domains in their industry today.

As for the five factors you cite, I have questions and comments:


1)      address antitrust and other anti-competition concerns; --  Are you 
aware of any evidence of likely harm, or of harm caused by second-level generic 
domain registrations?  How could an applicant address these concerns to your 
satisfaction?  How is this within ICANN's remit?



2)      minimize the risk of potential consumer confusion for users, who may 
not realize that the information, products or services promoted is provided via 
a closed or restricted registry; -- Why is this a concern?  Why would any 
consumers care about this?  Has there been such confusion or concern in 
.museum, .aero, .travel, .jobs?  Or with respect to generic second level names?



3)      appropriately and fairly define the class of potential second level 
domain name registrants; -- Single registrant models mean there is one 
registrant.



4)      prevent onerous and potentially anticompetitive registration fees; -- 
Inapplicable in single registrant models.



5)      explore any necessary security and operational safeguards to minimize 
fraud, abuse and consumer complaints. -  These concerns are already explored in 
response to Q28 and 29 and in other areas of the TLD application, with 
requirements contained in the Registry Agreement.  Also it seems inherently 
unlikely to have such problems in a single registrant model since the 
registrant is legally responsible for all activity within the TLD.



Mike Rodenbaugh
RODENBAUGH LAW
Tel/Fax: +1.415.738.8087
http://rodenbaugh.com

From: Deutsch, Sarah B [mailto:sarah.b.deutsch@xxxxxxxxxxx]
Sent: Thursday, May 23, 2013 11:46 AM
To: mike@xxxxxxxxxxxxxx<mailto:mike@xxxxxxxxxxxxxx>; 'Laura Covington'; 
svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>
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


In the interests of transparency and to avoid any actual or perceived conflicts 
of interest, I'd ask everyone who has or will comment on this string to 
disclose whether you are applying for or representing applicants for closed 
generics and which closed generics you are advocating on behalf of.

To address the assertion that closed generics are somehow necessarily better 
than open gTLDs, my position is that both have their risks and problems.  We 
certainly don't like many of the open applications, which we believe will 
become havens for cybersquatting, fraud and abuse.  But, as evidenced by the 
GAC language, Australia's specific red flags, and the many industry objections 
filed at ICANN and at the ICC, closed generics can carry their own risk of 
potential abuses.  We wrote up what we think it means for responsible closed 
spaces to operate in the "public interest" and this included the following:


1)      address antitrust and other anti-competition concerns; (2) minimize the 
risk of potential consumer confusion for users, who may not realize that the 
information, products or services promoted is provided via a closed or 
restricted registry; (3) appropriately and fairly define the class of potential 
second level domain name registrants; (4) prevent onerous and potentially 
anticompetitive registration fees; and (5) explore any necessary security and 
operational safeguards to minimize fraud, abuse and consumer complaints.



Sarah

From: Mike Rodenbaugh [mailto:mike@xxxxxxxxxxxxxx] On Behalf Of 
icann@xxxxxxxxxxxxxx<mailto:icann@xxxxxxxxxxxxxx>
Sent: Thursday, May 23, 2013 2:13 PM
To: 'Laura Covington'; 
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

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

From: Laura Covington [mailto:lhc@xxxxxxxxxxxxx]
Sent: Thursday, May 23, 2013 10:54 AM
To: Mike Rodenbaugh; 
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

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



Laura Covington
VP, Intellectual Property Policy
Yahoo! Inc.
lhc@xxxxxxxxxxxxx<mailto:lhc@xxxxxxxxxxxxx>
408.349.5187

From: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx<mailto:icann@xxxxxxxxxxxxxx>>
Reply-To: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx<mailto:icann@xxxxxxxxxxxxxx>>
Date: Thursday, May 23, 2013 10:42 AM
To: "Yahoo! Inc." <lhc@xxxxxxxxxxxxx<mailto:lhc@xxxxxxxxxxxxx>>, 
"svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>" 
<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>" 
<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

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 <lhc@xxxxxxxxxxxxx<mailto:lhc@xxxxxxxxxxxxx>>
To: "svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>" 
<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>" 
<bc-gnso@xxxxxxxxx<mailto: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<mailto:lhc@xxxxxxxxxxxxx>
408.349.5187

From: "svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>" 
<svg@xxxxxxxxxxxxxxxxxxxxx<mailto:svg@xxxxxxxxxxxxxxxxxxxxx>>
Date: Thursday, May 23, 2013 12:49 AM
To: "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>" 
<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

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
www.StephaneVanGelder.com<http://www.stephanevangelder.com/>
----------------
Follow us on Twitter: @stephvg and "like" us on Facebook: 
www.facebook.com/DomainConsultant<http://www.facebook.com/DomainConsultant>
LinkedIn: 
fr.linkedin.com/in/domainconsultant/<http://fr.linkedin.com/in/domainconsultant/>

Le 22 mai 2013 à 22:58, "Deutsch, Sarah B" 
<sarah.b.deutsch@xxxxxxxxxxx<mailto:sarah.b.deutsch@xxxxxxxxxxx>> 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: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>] On Behalf Of Elisa 
Cooper
Sent: Monday, May 20, 2013 3:34 PM
To: Steve DelBianco
Cc: bc-gnso@xxxxxxxxx<mailto: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%20Generic%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: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Deutsch, Sarah B
Sent: Monday, May 20, 2013 12:29 PM
To: Steve DelBianco; bc-gnso@xxxxxxxxx<mailto: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: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco
Sent: Wednesday, May 15, 2013 4:40 PM
To: bc-gnso@xxxxxxxxx<mailto: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. 
(link<http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm>)

The BC has have held 3 conference calls on this topic (see minutes and 
transcripts on the BC Wiki<https://community.icann.org/display/gnsobc/Home>).  
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>