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

[Andy Abrams <abrams@xxxxxxxxxx>]

Dear Steve,

Much thanks to you and everyone else who has contributed to this evolving
document.  We've taken another pass at the latest iteration, and we're
generally supportive of the direction that this comment is heading.  We
just had a couple of additional comments that we are hoping you can take
into account as you put together the final draft for the BC's consideration:

   - Second paragraph under "Safeguards Applicable to All New gTLDs": we
   support your original statement regarding the safeguards that are already
   required of registrars under the final 2013 RAA.  We would not support
   effectively absolving registrars of their responsibilities by having the
   safeguards simply shifted over to registries if the registrar fails to act.
   - "Safeguards Applicable to All New gTLDs": To the extent new safeguards
   are implemented for all new gTLDs, we respectfully believe there is merit
   to discussing a PDP in order to apply such safeguards to all gTLDs.  As set
   forth in this section, we agree that wide discrepancies in implementation
   of safeguards are not ideal for registrants and Internet users - we believe
   that this statement should apply to gTLDs generally, not simply to new
   gTLDs.
   - "Safeguards 6, 7 and 8 Applicable to Category 1 TLDs": We've thought
   about this section further, and we think that Marilyn's suggestion makes
   sense, that instead of having the onus be on ICANN to come up with a list,
   the onus should be on the applicants themselves to be responsible for
   determining whether their TLDs fall in sensitive/regulated areas.
    Accordingly, we support Marilyn's edits in this section.

Best,

Andy


On Fri, May 24, 2013 at 10:05 AM, <stephvg@xxxxxxxxx> wrote:

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


-- 
Andy Abrams | Trademark Counsel
*Google* | 1600 Amphitheatre Parkway, Mountain View, CA 94043
(650) 669-8752 <https://www.google.com/voice#phones>