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

[<icann@xxxxxxxxxxxxxx>]

How to distinguish a .brand and a so-called closed generic TLD string is the
essence of one of my questions.  Not just my question but a question raised
by many people, which is why no such categorization has ever happened.

 

I gave plenty of examples anyone can delve into, Abbott through Apple.
And/or we can discuss the biggest lightning rods?, .books, .search, .blog?.


 

How exactly does Verizon see any harm from so-called closed generic business
models?  It might be helpful for members to understand that too.

 

Mike Rodenbaugh

RODENBAUGH LAW

Tel/Fax: +1.415.738.8087

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

 

From: Deutsch, Sarah B [mailto:sarah.b.deutsch@xxxxxxxxxxx] 
Sent: Thursday, May 23, 2013 1:33 PM
To: mike@xxxxxxxxxxxxxx; '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?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 <mailto:icann@xxxxxxxxxxxxxx> 
Sent: Thursday, May 23, 2013 4:21 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 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> 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> 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>
mailto:mike@xxxxxxxxxxxxxx] On Behalf Of  <mailto:icann@xxxxxxxxxxxxxx>
icann@xxxxxxxxxxxxxx
Sent: Thursday, May 23, 2013 2:13 PM
To: 'Laura Covington';  <mailto:svg@xxxxxxxxxxxxxxxxxxxxx>
svg@xxxxxxxxxxxxxxxxxxxxx; Deutsch, Sarah B
Cc: 'Elisa Cooper'; 'Steve DelBianco';  <mailto:bc-gnso@xxxxxxxxx>
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 [ <mailto:lhc@xxxxxxxxxxxxx> mailto:lhc@xxxxxxxxxxxxx]

Sent: Thursday, May 23, 2013 10:54 AM
To: Mike Rodenbaugh;  <mailto:svg@xxxxxxxxxxxxxxxxxxxxx>
svg@xxxxxxxxxxxxxxxxxxxxx; Deutsch, Sarah B
Cc: Elisa Cooper; Steve DelBianco;  <mailto:bc-gnso@xxxxxxxxx>
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.

 <mailto:lhc@xxxxxxxxxxxxx> lhc@xxxxxxxxxxxxx

408.349.5187

 

From: Mike Rodenbaugh < <mailto:icann@xxxxxxxxxxxxxx> icann@xxxxxxxxxxxxxx>
Reply-To: Mike Rodenbaugh < <mailto:icann@xxxxxxxxxxxxxx>
icann@xxxxxxxxxxxxxx>
Date: Thursday, May 23, 2013 10:42 AM
To: "Yahoo! Inc." < <mailto:lhc@xxxxxxxxxxxxx> lhc@xxxxxxxxxxxxx>, "
<mailto:svg@xxxxxxxxxxxxxxxxxxxxx> svg@xxxxxxxxxxxxxxxxxxxxx" <
<mailto:svg@xxxxxxxxxxxxxxxxxxxxx> svg@xxxxxxxxxxxxxxxxxxxxx>, "Deutsch,
Sarah B" < <mailto:sarah.b.deutsch@xxxxxxxxxxx> sarah.b.deutsch@xxxxxxxxxxx>
Cc: Elisa Cooper < <mailto:Elisa.Cooper@xxxxxxxxxxxxxxx>
Elisa.Cooper@xxxxxxxxxxxxxxx>, Steve DelBianco <
<mailto:sdelbianco@xxxxxxxxxxxxx> sdelbianco@xxxxxxxxxxxxx>, "
<mailto:bc-gnso@xxxxxxxxx> bc-gnso@xxxxxxxxx" < <mailto:bc-gnso@xxxxxxxxx>
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 < <mailto:lhc@xxxxxxxxxxxxx> lhc@xxxxxxxxxxxxx>
To: " <mailto:svg@xxxxxxxxxxxxxxxxxxxxx> svg@xxxxxxxxxxxxxxxxxxxxx" <
<mailto:svg@xxxxxxxxxxxxxxxxxxxxx> svg@xxxxxxxxxxxxxxxxxxxxx>; "Deutsch,
Sarah B" < <mailto:sarah.b.deutsch@xxxxxxxxxxx> sarah.b.deutsch@xxxxxxxxxxx>

Cc: Elisa Cooper < <mailto:Elisa.Cooper@xxxxxxxxxxxxxxx>
Elisa.Cooper@xxxxxxxxxxxxxxx>; Steve DelBianco <
<mailto:sdelbianco@xxxxxxxxxxxxx> sdelbianco@xxxxxxxxxxxxx>; "
<mailto:bc-gnso@xxxxxxxxx> bc-gnso@xxxxxxxxx" < <mailto:bc-gnso@xxxxxxxxx>
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: " <mailto:svg@xxxxxxxxxxxxxxxxxxxxx> svg@xxxxxxxxxxxxxxxxxxxxx" <
<mailto:svg@xxxxxxxxxxxxxxxxxxxxx> svg@xxxxxxxxxxxxxxxxxxxxx>
Date: Thursday, May 23, 2013 12:49 AM
To: "Deutsch, Sarah B" < <mailto:sarah.b.deutsch@xxxxxxxxxxx>
sarah.b.deutsch@xxxxxxxxxxx>
Cc: Elisa Cooper < <mailto:Elisa.Cooper@xxxxxxxxxxxxxxx>
Elisa.Cooper@xxxxxxxxxxxxxxx>, Steve DelBianco <
<mailto:sdelbianco@xxxxxxxxxxxxx> sdelbianco@xxxxxxxxxxxxx>, "
<mailto:bc-gnso@xxxxxxxxx> bc-gnso@xxxxxxxxx" < <mailto:bc-gnso@xxxxxxxxx>
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
----------------
Follow us on Twitter: @stephvg and "like" us on Facebook:
<http://www.facebook.com/DomainConsultant> www.facebook.com/DomainConsultant

LinkedIn:  <http://fr.linkedin.com/in/domainconsultant/>
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:  <mailto:owner-bc-gnso@xxxxxxxxx> owner-bc-gnso@xxxxxxxxx [
<mailto:owner-> mailto:owner- <mailto:bc-gnso@xxxxxxxxx> bc-gnso@xxxxxxxxx]
On Behalf Of Elisa Cooper
Sent: Monday, May 20, 2013 3:34 PM
To: Steve DelBianco
Cc:  <mailto:bc-gnso@xxxxxxxxx> 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:  <mailto:owner-bc-gnso@xxxxxxxxx> 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;  <mailto:bc-gnso@xxxxxxxxx> 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:  <mailto:owner-bc-gnso@xxxxxxxxx> 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:  <mailto:bc-gnso@xxxxxxxxx> 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>