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

["Marilyn Cade " <marilynscade@xxxxxxxxxxx>]

I do not advise or represent any client who is an applicant.

Your discussion was informative, and helpful as a not conflicted discussion 
base. 

M

Sent via BlackBerry by AT&T

-----Original Message-----
From: Phil Corwin <psc@xxxxxxxxxxx>
Date: Thu, 23 May 2013 21:53:48 
To: <marilynscade@xxxxxxxxxxx>; <jscottevans@xxxxxxxxx>; 
<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


The entity I represent on the BC (ICA) does not have a position on closed 
generics, so the following views are strictly personal and are provided for the 
purpose of contributing to this discussion --
 
 If new gTLDs are indeed powerful new means to facilitate consumer search and 
to provide businesses and other potential registrants with more relevant and 
authoritative DNS addresses, then it is my belief that allowing a registry 
operator to be the exclusive registrant in a string in which it holds no 
trademark rights is inherently at odds with the competition and innovation 
goals that justified this vast expansion and reordering of the DNS. A closed 
generic registry is a monopoly, which is not innovative and is inherently 
anti-competitive. The history of the Internet is that innovation is developed 
at the edges, not by intermediaries, and a string that consists of a powerful 
dictionary word is far more likely to produce both innovation and competition 
if it is populated by tens of thousands of registrants rather than by just one 
-- especially since a primary motivation of the applicant may be to deny the 
availability of second level domains in the new string to its competitors.
 
 For those reasons -- as well as because I believe that the Code of Conduct in 
the RA already requires a closed generic to seek an exemption from ICANN based 
on the criteria that granting the exemption will not harm the public interest 
-- I believe the BC should support the GAC position that a public interest 
standard be developed for strings in which the applicant proposes to be the 
sole registrant. (While I am personally up in the air whether closed 
registration should be allowed for a string that is a dictionary word as well 
as a trademark of the applicant, a public interest standard might accommodate 
such a situation as protecting the trademark right at the top level of the DNS.)
 
 I am not just concerned about the first round. ICANN is a unique private 
sector organization imbued with a public trust. I believe that if ICANN 
permits  non-trademark generic  strings to go forward in the first round we 
will inevitably see a rush by applicants in the second round  to secure 
dictionary word strings for their own permanent exclusive use and to deny such 
use to competitors. I think that would be an unseemly development and one that 
is detrimental to ICANN's reputation and long-term independence, and to the 
interests of those who favor ICANN's multi-stakeholder model (imperfect as it 
is) over potential replacements for DNS management. 
 
 I hope that input is helpful.
 
 Regards, Philip
 
 
 Philip S. Corwin, Founding Principal
 Virtualaw LLC
 1155 F Street, NW
 Suite 1050
 Washington, DC 20004
 202-559-8597/Direct
 202-559-8750/Fax
 202-255-6172/cell
 
 Twitter: @VlawDC
  
 "Luck is the residue of design" -- Branch Rickey
 
 
 -----Original Message-----
 From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Marilyn Cade 
 Sent: Thursday, May 23, 2013 5:24 PM
 To: J. Scott Evans ; Mike Rodenbaugh ; lhc@xxxxxxxxxxxxx ; Stéphane Van Gelder 
; Sarah Deutsch 
 Cc: P0 Elisa Cooper ; sdelbianco@xxxxxxxxxxxxx ; Bc GNSO list 
 Subject: Re: [bc-gnso] RE: FOR REVIEW: draft BC comment on GAC Advice on 
safeguards for new gTLDs
 
 
 I certainly have concerns about closed generics, and do think there are issues 
of consumer confusion - .cloud was a big concern of mine. .mobile is an example 
of another concern, if it were closed. 
 
 .Hospital
 .Bank
 .Search
 I can list many that raise questions to my mind. 
 
 
 I know some think that because .car.com might be registered by an auto 
manufacturer, that is equivalent to a GTLD. Not the case in my mind. 
 
 Otherwise, why even bother w gTLDs? 
 
 Recently  I did a webinar with businesses in Africa.  They were highly 
skeptical about fairness in closed generics operated by an industry player and 
excluding competitors. I also spoke to a number of governments this week. 
 
 
 
  
 
 Sent via BlackBerry by AT&T
 
 -----Original Message-----
 From: jscottevans@xxxxxxxxx
 Date: Thu, 23 May 2013 20:46:32
 To: <icann@xxxxxxxxxxxxxx>; <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:
 
 My new CMO, some marketers I know through my husband and some INTA members. I 
was bit surprised by their negative reactions. That said, most people could 
live with them with the appropriate safeguards in place. I think the language 
proposed by Sarah and Laura strikes the correct balance here.
 
 
 Sent from Yahoo! Mail for iPhone 
  
  
  
  
  
 ----------------
  From: icann@xxxxxxxxxxxxxx <icann@xxxxxxxxxxxxxx>; 
  To: <jscottevans@xxxxxxxxx>; <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 
  Sent: Thu, May 23, 2013 8:20:35 PM 
  
  
  
 
 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
   
 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 <icann@xxxxxxxxxxxxxx>; 
 To: 'Laura Covington' <lhc@xxxxxxxxxxxxx>; <svg@xxxxxxxxxxxxxxxxxxxxx>; 
'Deutsch, Sarah B' <sarah.b.deutsch@xxxxxxxxxxx>; 
 Cc: 'Elisa Cooper' <Elisa.Cooper@xxxxxxxxxxxxxxx>; 'Steve DelBianco' 
<sdelbianco@xxxxxxxxxxxxx>; <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
  
 
 
 From: Laura Covington [mailto:lhc@xxxxxxxxxxxxx] 
 Sent: Thursday, May 23, 2013 12:05 PM
 To: mike@xxxxxxxxxxxxxx; svg@xxxxxxxxxxxxxxxxxxxxx; 'Deutsch, Sarah B'
 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
  
 
 
 
 
 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.
 
 lhc@xxxxxxxxxxxxx
 
 408.349.5187
 
  
 From: "icann@xxxxxxxxxxxxxx" <icann@xxxxxxxxxxxxxx>
 Organization: Rodenbaugh Law
 Reply-To: "mike@xxxxxxxxxxxxxx" <mike@xxxxxxxxxxxxxx>
 Date: Thursday, May 23, 2013 11:13 AM
 To: "Yahoo! Inc." <lhc@xxxxxxxxxxxxx>, "svg@xxxxxxxxxxxxxxxxxxxxx" 
<svg@xxxxxxxxxxxxxxxxxxxxx>, "'Deutsch, Sarah B'" <sarah.b.deutsch@xxxxxxxxxxx>
 Cc: 'Elisa Cooper' <Elisa.Cooper@xxxxxxxxxxxxxxx>, 'Steve DelBianco' 
<sdelbianco@xxxxxxxxxxxxx>, "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
  
 
 
 From: Laura Covington [mailto:lhc@xxxxxxxxxxxxx] 
 Sent: Thursday, May 23, 2013 10:54 AM
 To: Mike Rodenbaugh; svg@xxxxxxxxxxxxxxxxxxxxx; Deutsch, Sarah B
 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
  
 
 
 
 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
 
 408.349.5187
 
  
 
 From: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx>
 Reply-To: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx>
 Date: Thursday, May 23, 2013 10:42 AM
 To: "Yahoo! Inc." <lhc@xxxxxxxxxxxxx>, "svg@xxxxxxxxxxxxxxxxxxxxx" 
<svg@xxxxxxxxxxxxxxxxxxxxx>, "Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx>
 Cc: Elisa Cooper <Elisa.Cooper@xxxxxxxxxxxxxxx>, Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx>, "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 <lhc@xxxxxxxxxxxxx>
 To: "svg@xxxxxxxxxxxxxxxxxxxxx" <svg@xxxxxxxxxxxxxxxxxxxxx>; "Deutsch, Sarah 
B" <sarah.b.deutsch@xxxxxxxxxxx> 
 Cc: Elisa Cooper <Elisa.Cooper@xxxxxxxxxxxxxxx>; Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx>; "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
 
 408.349.5187
 
  
 
 From: "svg@xxxxxxxxxxxxxxxxxxxxx" <svg@xxxxxxxxxxxxxxxxxxxxx>
 Date: Thursday, May 23, 2013 12:49 AM
 To: "Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx>
 Cc: Elisa Cooper <Elisa.Cooper@xxxxxxxxxxxxxxx>, Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx>, "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
 www.StephaneVanGelder.com <http://www.StephaneVanGelder.com>  
<http://www.stephanevangelder.com/> 
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 Le 22 mai 2013 à 22:58, "Deutsch, Sarah B" <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]&nbsp;On Behalf 
Of Elisa Cooper
 Sent: Monday, May 20, 2013 3:34 PM
 To: Steve DelBianco
 Cc: 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]&nbsp;On Behalf 
Of Deutsch, Sarah B
 Sent: Monday, May 20, 2013 12:29 PM
 To: Steve DelBianco; 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]&nbsp;On Behalf 
Of Steve DelBianco
 Sent: Wednesday, May 15, 2013 4:40 PM
 To: 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>