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

[Elisa Cooper <Elisa.Cooper@xxxxxxxxxxxxxxx>]

I've stated multiple times that I am conflicted on this topic and that I will 
recuse myself from this discussion.

Best,
Elisa

Sent from my iPhone

On May 23, 2013, at 6:25 PM, "Marilyn Cade " <marilynscade@xxxxxxxxxxx> wrote:

> 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/> 
> ----------------
> Follow us on Twitter: @stephvg and "like" us on Facebook: 
> www.facebook.com/DomainConsultant <http://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> 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>
>  
>  
>