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

[stephvg@xxxxxxxxx]

Thanks for the feedback MJ, it's helpful.


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
----------------
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Le 24 mai 2013 à 17:06, "Mari Jo Keukelaar" <mj@xxxxxxxxxxxxxxxxx> a écrit :

> I, too, found yesterdays dialogue discomforting.  Although I do not have 
> anything to do with closed generics, it does seem that the process itself did 
> not foreclose on applying for them.  I also see that closed generics do raise 
> issues that closed TM TLDs do not.  Yesterdays discussion did nothing to 
> clarify the issues that Mr. Evans, et al were attempting to address in their 
> comments, but did ask an attorney to make full disclosures about clients 
> that, as attorneys themselves, they recognize may be impossible to make.  I 
> think Mike was clear that he represents parties applying for closed generics 
> and that he disagreed with the comments being put forth by this group and 
> that he preferred those made by Steve’s original proposition.   
>  
> I generally do not comment when I do not hold strong positions that have 
> nothing to do with the business I represent.  Whenever I have commented, 
> however, the BC has always been highly respectful of my minority opinion.  So 
> rest assured, Stephane, that this was a rare event.
>  
>  
> From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
> stephvg@xxxxxxxxx
> Sent: Friday, May 24, 2013 6:33 AM
> To: Ron Andruff
> Cc: bc-gnso@xxxxxxxxx
> Subject: Re: [bc-gnso] FOR REVIEW: draft BC comment on GAC Advice on 
> safeguards for new gTLDs
>  
> All,
>  
> Due to the difference in timezones, I missed this discussion as it was 
> happening "live" and had the pleasure of catching up at my leisure whilst 
> sipping my morning coffee :)
>  
> I have to admit to being very uncomfortable with the path this discussion 
> seems to be taking. I have the words witch hunt forming in my mind.
>  
> My approach is this: I have an implicit trust that anyone… who is keen and 
> engaged enough to take the time to read the emails on this list, take part in 
> the discussions, be active in the BC calls or volunteer for BC work… is 
> operating for the greater good of the BC.
>  
> I find any suggestion otherwise worrying. And actually quite discouraging. 
> Does this mean that next time I make a comment that someone doesn't like, 
> then I will also be put on the spot and asked to justify myself from a 
> business point of view? So is it better for me to shut up rather than risk 
> taking abuse?
>  
> Those who know me already know that I find it very hard to shut up, so that 
> is hardly likely to happen :), but I do want to go on record here as saying 
> that unless someone proves to me that any member of the BC is acting with ill 
> intent, my base approach is to trust that people have exactly the same take 
> on BC work as me: working for the good of the BC and the defense of the ICANN 
> model which is the governance model that provides me, as a small business 
> owner, with a voice in the Internet's ,naming and address governance 
> discussion.
>  
> Best,
>  
> Stéphane
>  
> Oh, and BTW, I don't work for any closed generics ;)
>  
> 
> Le 23 mai 2013 à 23:44, Ron Andruff <randruff@xxxxxxxxxxxxxxx> a écrit :
> 
> 
> Mike,
>  
> As an observer to this string of debate, it appears to me (and possibly other 
> members) that you are obfuscating.  You have been asked on several occasions 
> to declare your interests, but you parry that question with more questions.  
> What is holding you back from being up front with the members and disclosing? 
>  Disclosure would, IMHO, lend more credibility to your arguments.
> Disclosure should be our first obligation as members of the BC – considering 
> the convoluted nature of our membership today.
>  
> Thank you.
>  
> Kind regards,
>  
> RA
>  
> Ronald N. Andruff
> RNA Partners, Inc.
> From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
> jscottevans@xxxxxxxxx
> Sent: Thursday, May 23, 2013 4:58 PM
> 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
>  
> Oh, and as to a counter-argument to your position, I refer you to the USPTO's 
> disposition of the various .music trademark applications. While not 
> identical, the USPTO's reasoning is very solar to the concerns I have heard 
> from others.
> 
> J. Scott 
> 
> 
> 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
> ----------------
> Follow us on Twitter: @stephvg and "like" us on Facebook: 
> www.facebook.com/DomainConsultant
> LinkedIn: 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] 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] 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] 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)
>  
> The BC has have held 3 conference calls on this topic (see minutes and 
> transcripts on the BC 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>
>  
>  
> 
>  
>