[gnso-iocrc-dt] RE: DT CONSENSUS CALL ON RECOMMENDATIONS AT THE TOP LEVEL

[David Heasley <dheasley@xxxxxxxxx>]

Yes.


David K. Heasley
Silverberg, Goldman & Bikoff, LLP
1101 30th Street, N.W.
Suite 120
Washington, D.C. 20007
Tel. 202.944.2339
Fax  202.944.3306
dheasley@xxxxxxxxx


________________________________
From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Neuman, Jeff
Sent: Tuesday, March 06, 2012 9:58 PM
To: 'gnso-iocrc-dt@xxxxxxxxx'
Subject: [gnso-iocrc-dt] DT CONSENSUS CALL ON RECOMMENDATIONS AT THE TOP LEVEL

All,

Many of you may have noticed that I proposed a motion today on the GNSO Council 
for the Council to approve the 3 recommendations and send those to the Board.  
I had to do that today in order to meet the timelines and get a motion on the 
agenda.  The wording can always be tweaked.  However, I do want to take a 
"Consensus" poll of those in the Drafting Team on the substance of the 
recommendations.  It appears likely that the GAC as a group will likely support 
the recommendations and it would be great to report that we have at least a 
rough consensus in our group supporting the substance.

Please note that I am not asking about process or whether the GNSO Council or 
the Board should vote on the recommendations at this meeting.  Nor am I 
addressing any of the concerns expressed by ICANN staff.  I am not asking about 
that because in my view that is not the job of the Drafting Team to address 
those questions, but rather the Council.    If they are not happy with the 
process, they can choose to address.  Our job as the drafting team was to take 
the GAC proposal, evaluate it and provide substantive recommendations to the 
GNSO Council for their interactions with the GAC.

In other words, I am not asking for an opinion on whether there should be one 
or more public comment periods, whether you believe we need to provide 
additional rationale to the ICANN staff or Board, etc.  Those are important 
questions for the Council to consider.  But I am asking that all other things 
being equal, do you support the substance of the recommendations themselves.  I 
will note that on the last call and the call with the GAC (and from re-reading 
the transcript) it appeared to me there was at least a rough consensus, but I 
want to re-ask the question.

PLEASE RESPOND TO THIS E-MAIL WITH A YES OR NO, AND IF NO, THE RATIONALE.

The recommendations are:

Recommendation 1:    Treat the terms set forth in Section 2.2.1.2.3 as 
"Modified Reserved Names," meaning:

a)               The Modified Reserved Names are available as gTLD strings to 
the International Olympic Committee (hereafter the "IOC"), International Red 
Cross and Red Crescent Movement (hereafter "RCRC") and their respective 
components, as applicable.

b)               Applied-for gTLD strings, other than those applied for by the 
IOC or RCRC, are reviewed during the String Similarity review to determine 
whether they are similar to these Modified Reserved Names. An application for a 
gTLD string that is identified as confusingly similar to a Modified Reserved 
Name will not pass this initial review.


c)               If an application fails to pass initial string similarity 
review:


                                            i.                        And the 
applied-for TLD identically matches any of the Modified Reserved Names (e.g., 
".Olympic" or ".RedCross"), it cannot be registered by anyone other than the 
IOC or the RCRC, as applicable.

                                          ii.                        If the 
applied-for TLD is not identical to any of the Modified Reserved Names, but 
fails initial string similarity review with one of Modified Reserved Names, the 
applicant may attempt to override the string similarity failure by:


1.      Seeking a letter of non-objection from the IOC or the RCRC, as 
applicable; or

2.      If it cannot obtain a letter of non-objection, the applicant must:

a.      claim to have a legitimate interest in the string, and demonstrate the 
basis for this claim; and
b.      explain why it believes that the new TLD is not confusingly similar to 
one of the protected strings and makes evident that it does not refer to the 
IOC, RCRC or any Olympic or Red Cross Red Crescent activity.

3.      A determination in favor of the applicant under the above provision 
(ii)(2) above would not preclude the IOC, RCRC or other interested parties from 
bringing a legal rights objection or otherwise contesting the determination.

4.      The existence of a TLD that has received a letter of non-objection by 
the IOC or RCRC pursuant to (ii)(1), or has been approved pursuant to (ii)(2) 
shall not preclude the IOC or RCRC from obtaining one of the applicable 
Modified Reserved Names in any round of new gTLD applications.

Recommendation 2:    Protect the IOC/RCRC Terms in as many Languages as Feasible

            The GAC has proposed that the IOC and RCRC "names should be 
protected in multiple languages-all translations of the listed names in 
languages used on the Internet...The lists of protected names that the IOC and 
RC/RC have provided are illustrative and representative, not exhaustive."  
Although the Drafting Team agrees with the notion that the lists provided by 
the IOC and RCRC were illustrative, protecting the terms in every language on 
the Internet is not a standard that the Drafting Team believes is feasible to 
achieve.  While it is true that the list of languages can be expanded, we 
recognize that in order to perform a String Similarity Review (as recommended 
above), a definitive objective list of languages must be created.  It is the 
Drafting Team's understanding that representatives from the IOC and RCRC are 
working on the creation of that definitive list and should be able to present 
that to the Drafting Team by no later than the ICANN Meeting in Costa Rica.  If 
such a list can be produced, the Drafting Team may recommend the use of that 
list as a substitute to that currently in the Applicant Guidebook.

            In addition, the Drafting Team also notes that even in the unlikely 
event that a third party applies for an IOC or RCRC term in a language that was 
not contained on the list, the IOC or RCRC, as applicable, may still file an 
applicable objection as set forth in the Applicant Guidebook.

Recommendation 3:    Protections should apply for all future rounds, but may be 
reviewed after the first round.

            In its proposal, the GAC has recommended that the protections for 
the IOC and RCRC should not just apply during the first round of new gTLDs, but 
should be a permanent protection afforded for all subsequent rounds.  Although, 
the Drafting Team has not spent a lot of time discussing this topic, it does 
agree with the notion that it is making this recommendation as one intended to 
apply in all future rounds, but also recognizes that like all other aspects of 
the new gTLD program, these protections may be reviewed by the ICANN community 
should it desire to do so.

Thank you in advance.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
21575 Ridgetop Circle, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
jeff.neuman@xxxxxxxxxxx<mailto:jeff.neuman@xxxxxxxxxxx>  / 
www.neustar.biz<http://www.neustar.biz/>
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