Re: [gtld-council] NCUC proposals to amend gnso recommendations on new gtld policy

[Mawaki Chango <ki_chango@xxxxxxxxx>]

Liz,

I understand that the link you referred to in your message below
provides background information as it relates to ICANN overall
operation budget (revenue & spending). However, I haven't found
any information that addresses the point I was making about the
registry application costs and structure. In the different
tables and various pie charts, such costs, if present, are
apparently sunk in larger aggregates such as "prmotion of
competition & choice", "administration & contingency",
"professional services", etc. to mention a few probable items
that might be of relevance. Nothing that specifies at least a
range of the registry application fee, details the breakdown
along specific budget items, showing the cost distribution. I
did find the excerpt below in the section "New gTLD Process". It
would be interesting, maybe some time in the future, to further
analyze this, including an effort towards a sound cost analysis,
in order to determine what is most necessary and what is less;
what is "scalable" not only in the process but cost-wise, based
on the type, purpose & potential client base (or community) of
the target gtld.

Thanks,
Mawaki

http://www.icann.org/financials/proposed-budget-v1-fy07-08-23may07.htm#_Toc167180751

Excerpt:

"The process for the introduction of new gTLDs must be robust in
form, timely and predictable to administer, and scalable to
accommodate the numbers and variety of potential applications.
The global nature and complexity of the project have direct
bearing on the program?s start-up and recurring costs. ICANN
anticipates a significant investment in the project, in year
one, to create the gTLD program office.

The new gTLD process costs are intended to be fully self-funded
and off-set by the application fees. It is anticipated that
first-round costs will be significant due to one-time start-up
expenses and that subsequent rounds will be less expensive to
administer. Start-up costs include, but are not limited to:
recruitment of new employees to staff the gTLD program office,
professional services fees associated with production of the
applicant request for proposal (RFP), development of the
objections filed/dispute resolution model, retention of
resources to conduct technical and business/financial reviews,
and recruitment costs associated with the creation of an
independent panel or series of panels to provide adjudication
services around dispute resolution and string contention. 

A significant component to start-up costs is the creation and
implementation of a communications strategy, across many
different languages, to announce and promote the first round to
the global Internet community. ICANN will incur media costs when
it publishes applications following conclusion of the
application window. If ICANN is to foster a geographically
diverse representation of service providers on the Internet, it
first must communicate and educate them about the gTLD process."
 

--- Liz Williams <liz.williams@xxxxxxxxx> wrote:

> Mawaki
> 
> The recently posted proposed budget will provide you with some
>  
> background about the costs of running a gTLD application
> process.
> 
> Whilst the budget is not yet approved formally you'll see that
> the  
> costs are significant and, as we are operating on a cost
> recovery  
> model, the application fees for a new TLD need to recoup those
> costs  
> in some way.
> 
> http://www.icann.org/financials/proposed-budget-v1- 
> fy07-08-23may07.htm#_Toc167180735 -- go the section on the
> live link  
> at the contents page for the gTLD process.
> 
> Liz
> 
> .....................................................
> 
> Liz Williams
> Senior Policy Counselor
> ICANN - Brussels
> +32 2 234 7874 tel
> +32 2 234 7848 fax
> +32 497 07 4243 mob
> 
> 
> 
> 
> On 05 Jun 2007, at 05:48, Mawaki Chango wrote:
> 
> > Mike,
> >
> > I have failed to see any sound cost modeling that makes it a
> > necessity for a tld application to cost the applicant
> several
> > dozens of thousands dollars. Such cost derives from a policy
> > decision that has its own assumptions, and even its own
> biases
> > (all economies are not equal, yet it's practically possible
> to
> > operate a tld from or within most of them.)
> >
> > So the cost, on which you seem to base your whole reasoning
> as
> > per your email below, is not an act of God; not even the
> most
> > unchallengeable human act. And please be aware that there
> are
> > serious people, not necessarily from within NCUC, including
> > individual ICANN Board member(s), who argue for the
> structure of
> > tld application cost to be revised and adapted. After all,
> why a
> > uniformly, not to say arbitrarily, high cost should ever be
> the
> > unique reason that would prevent a grassroots community,
> e.g.,
> > with a sizeable base and an identity, to apply for a gtld?
> >
> > A collateral remark here: with a universal-like tld such as
> > .com, at least for businesses and most trademark holders
> (though
> > this is less and less the case), the same problem migrates
> at
> > 2nd level, and among all those quickly labeled
> cybersquatters, I
> > believe there were a few individuals who registered the same
> > names as trademarks with no commercial intentions or use,
> but
> > were still dispossessed of their 2nd level tld based on
> > ICANN-related policies. I don't have any specific reference
> at
> > hand to provide, but I stand to be corrected if I'm wrong
> here.
> > In the mean time, this makes me wonder whether you're not
> too
> > optimistic in thinking that things are or will be
> fondamentally
> > different between tld and second level, and on the other
> hand
> > whether you're not taking too quick a shortcut by implying
> that
> > the difference in policy for different levels of the dns
> (which
> > makes some sense in commercial terms) will necessarily lead
> to a
> > difference in the rights warranted to individuals by the
> law.
> >
> > Anyway, it may be silly to predicate that a horde of
> applicants
> > are standing the queue to apply for a trademark tld, but I
> don't
> > think it's wise to assume that this will never ever happen.
> With
> > such assumption, we surely do everything possible to ban
> that
> > from hapening (without even noticing it), which is a clear
> > stance against those rights Robin has been talking about.
> Your
> > call for ICANN to disallow such possibility is interesting
> in
> > that regard. However, I fail to see the *legal* grounds for
> > rights that you recognize at second and lower level of the
> dns
> > to be banned from the top level.
> >
> > Mawaki
> >
> >
> >
> > --- Mike Rodenbaugh <mxr@xxxxxxxxxxxxx> wrote:
> >
> >>
> >> This is a rather silly discussion if it is predicated on
> the
> >> notion that
> >> a non-profit will want to own and operate a TLD,
> corresponding
> >> to a
> >> well-known trademark, for some non-commercial purpose.  It
> >> would be an
> >> extremely ridiculous NGO that wanted to spend tens or
> hundreds
> >> of
> >> thousands of dollars to own and operate a TLD for the
> purpose
> >> of
> >> criticizing one company, when it could spend under $100 for
> >> any number
> >> of other domain name options.
> >>
> >> The only TLDs that non-profit entities are likely to want
> are
> >> TLDs that
> >> correspond to their trademarks, for the same reasons that
> >> other
> >> well-known trademark owners might want a corresponding TLD.
> >>
> >> Is the NCUC aware of any specific organization interested
> in
> >> registering
> >> a 'gripe TLD'?  Assuming so, I think ICANN would make a
> much
> >> more
> >> reasonable decision to disallow that because activity of
> >> registering
> >> domains for others (the function of a registry, after all)
> >> would be
> >> inherently commercial, and would be confusing and an aid to
> >> criminals as
> >> previously stated.
> >>
> >> Mike Rodenbaugh
> >>
> >> Sr. Legal Director
> >>
> >> Yahoo! Inc.
> >>
> >>
> >>
> >> NOTICE:  This communication is confidential and may be
> >> protected by
> >> attorney-client and/or work product privilege.  If you are
> not
> >> the
> >> intended recipient, please notify me by reply, and delete
> this
> >> communication and any attachments.
> >>
> >>
> >> -----Original Message-----
> >> From: Robin Gross [mailto:robin@xxxxxxxxxxxxx]
> >> Sent: Monday, June 04, 2007 5:59 PM
> >> To: Mike Rodenbaugh
> >> Cc: gtld-council@xxxxxxxxxxxxxx; gnso-rn-wg@xxxxxxxxx
> >> Subject: Re: [gtld-council] NCUC proposals to amend gnso
> >> recommendations
> >> on new gtld policy
> >>
> >> There are at least 2 faulty assumptions in your statement.
> >> You assume
> >> that all tlds will be businesses, but surely nonprofits
> will
> >> want to
> >> apply for tlds and there are countless other non-commercial
> >> possibilities.  A consumer watch-dog group that monitors
> >> irresponsible
> >> corporate behavior may want to register a tld such as
> ".enron"
> >> to
> >> provide the public with information about Enron, Inc.  The
> NGO
> >> would not
> >>
> >> violate any trademark rules as the case law makes clear
> since
> >> people
> >> have a free expression right to use a trademark to discuss
> a
> >> company or
> >> its products.
> >>
> >> The other faulty assumption is that the law would treat a
> >> top-level
> >> domain differently from other domains and grant a lower
> level
> >> of
> >> protection for free expression at the top-level.   There is
> no
> >> legal
> >> precedent to support that argument.
> >>
> >> Robin
> >>
> >>
> >> Mike Rodenbaugh wrote:
> >>
> >>> None of those cases are on point, all involve 2d or
> >> higher-level
> >>> domains.  I do not dispute that there are many
> non-commercial
> >> uses of
> >>> trademarks that are legit.  On the other hand, operating a
> >> TLD that
> >>> corresponds to a well-known trademark, without consent of
> >> trademark
> >>> holder, would be an inherently commercial activity likely
> to
> >> cause
> >>> confusion and enable criminal conduct.  Such commercial
> >> activity would
> >>> not be protected by any of the precedents you cite, or any
> >> other
> >>> principal of law that I am aware of.
> >>>
> >>> Mike Rodenbaugh
> >>>
> >>> Sr. Legal Director
> >>>
> >>> Yahoo! Inc.
> >>>
> >>>
> >>>
> >>> NOTICE:  This communication is confidential and may be
> >> protected by
> >>> attorney-client and/or work product privilege.  If you are
> >> not the
> >>> intended recipient, please notify me by reply, and delete
> >> this
> >>> communication and any attachments.
> >>>
> >>>
> >>> -----Original Message-----
> >>> From: Robin Gross [mailto:robin@xxxxxxxxxxxxx]
> >>> Sent: Monday, June 04, 2007 4:08 PM
> >>> To: Mike Rodenbaugh
> >>> Cc: gtld-council@xxxxxxxxxxxxxx; gnso-rn-wg@xxxxxxxxx
> >>> Subject: Re: [gtld-council] NCUC proposals to amend gnso
> >> recommendations
> >>> on new gtld policy
> >>>
> >>> Hi Mike,
> >>>
> >>> Well US courts have consistently disagreed with your view
> and
> >> ruled
> >> that
> >>>
> >>> there are numerous lawful uses of a trademark in a domain
> >> name by
> >>> someone other than a trademark holder.  Trademark law has
> >> never granted
> >>
> >>> a monopoly on language.  It only regulates specific uses
> of
> >> words or
> >>> symbols, and only commercial uses.  Non-commercial
> expression
> >> is not
> >>> regulated by trademark rules under the law.
> >>>
> >>> One of the most cited US legal precedents to examine the
> >> boundary of
> >>> free expression rights and trademark rights is Taubman v.
> >> Webfeats 319
> >>> F.3d 770 (6th Circuit 2003), an early "cyber-gripe case".
> >> The court
> >>> explained, "we will first explain the interrelation
> between
> >> the First
> >>> Amendment and the Lanham Act. ... The Lanham Act is
> >> constitutional
> >>> because it only regulates commercial speech, which is
> >> entitled to
> >>> reduced protections under the First Amendment."   In
> Taubman
> >> the
> >>> appellate court held that many expressions of a mark were
> not
> >> a
> >>> 'trademark use' and not likely to cause confusion and
> >> therefore
> >>> "outside the jurisdiction of the Lanham Act and
> necessarily
> >> protected
> >> by
> >>>
> >>> the First Amendment."
> >>>
> >>> The 6th Circuit spoke directly to our issue, "The rooftops
> of
> >> our past
> >>> have evolved into the Internet domain names of our
> present.
> >> We find
> >>> that the domain name is a type of public expression, no
> >> different in
> >>> scope than a billboard or a pulpit, and [defendant] has a
> >> First
> >>> Amendment right to express his opinion about [plaintiff],
> as
> >> long as
> >> his
> >>>
> >>> speech is not commercially misleading, the Lanham Act
> cannot
> >> be
> >> summoned
> >>>
> >>> to prevent it."  Taubman explicitly held there First
> >> Amendment
> >>> protection to use a trademark in a domain name to
> criticize a
> >> business.
> >>>
> >>> See:
> >>>
> >>
> >
>
http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0043p.06
> >>>
> >>> Another US circuit, the 9th, has also set similar
> precedent
> >> in Bosley
> >>> Med. Inst. v. Kremer, 403 F.3d 672 (9th Cir. 2005) over a
> >> non-commercial
> >>>
> >>> gripe-site using a trademark in its domain name.  Again
> the
> >> court
> >> agreed
> >>>
> >>> that the non-commercial expression of opinion was not a
> >> "trademark use"
> >>
> >>> subject to regulation by the mark holder. "[Defendant] is
> not
> >>
> >>> [plaintiff's] competitor; he is their critic.  His use of
> >> [plaintiff's]
> >>
> >>> mark is not in connection with a sale of goods or service
> -
> >> it is in
> >>> connection with the expression of his opinion about
> >> [plaintiff's] goods
> >>
> >>> and services.  [Plaintiff] cannot use the Lanham Act
> either
> >> as a shield
> >>
> >>> from ... criticism, or as a sword to shut [defendant] up."
> >>> See:
> >>>
> >>
> >> http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ 
> >> 3B0C93358B88F28D88256FD
> >> 9
> >>> 0056994B/$file/0455962.pdf?openelement
> >>>
> >>> The US 2nd Circuit has also provided strong protection for
> >> noncommercial
> >>>
> >>> speech and recognized that words and phrases are used in
> many
> >> different
> >>
> >>> ways in a digital environment, to serve differing goals,
> and
> >> that not
> >>> all of these uses are controlled by trademark law.  In
> 1-800
> >> Contacts
> >> v.
> >>>
> >>> WhenU.com 414 F3d 400 (2d Cir. 2005), the 2nd Circuit
> ruled
> >> that the
> >>> vast majority of such uses were outside the scope of
> >> trademark law and
> >>> only those specific uses visually associated with the sale
> of
> >>
> >>> goods/services could be regulated by trademark.
> >>> See:
> >>>
> www.eff.org/legal/cases/1800*contacts*_v_whenu/decision.pdf
> >>>
> >>> So the US law is clear in permitting numerous
> non-commercial
> >> uses of a
> >>> trademark in a domain name, to discuss, criticize,
> compare,
> >> provide
> >>> general information about a company or  product.  Freedom
> of
> >> expression
> >>
> >>> is a legally recognized value that trademark rights do not
> >> supersede.
> >>
> >>> The current gnso draft recommendations diverge
> significantly
> >> from the
> >>> law on this point.
> >>>
> >>> Robin
> >>>
> >>> Mike Rodenbaugh wrote:
> >>>
> >>>
> >>>
> >>>> I disagree with the NCUC's suggested change to Reco #3.
> >> There are
> >>>>
> >>>>
> >>> ample
> >>>
> >>>
> >>>> numbers of 2d and higher lever domains that can be used
> for
> >> freedom of
> >>>> expression, with exponentially more to come.  NCUC seems
> to
> >> suggest
> >>>>
> >>>>
> >>> that
> >>>
> >>>
> >>>> some prospective TLD operator would want to run an entire
> >> TLD full of
> >>>> gripe sites as to one trademark.  Such a business would
> not
> >> be
> >>>>
> >>>>
> >>> protected
> >>>
> >>>
> >>>> under the guise of 'freedom of expression' under any
> >> nation's law that
> >>>>
> >>>>
> >>> I
> >>>
> >>>
> >>>> am aware of.
> >>>>
> >>>> The current Reco is tied to a core ICANN value of
> protecting
> >> security
> >>>> and stability.  If a TLD corresponding to a well-known
> >> trademark were
> >>>> awarded to any entity other than the trademark owner, it
> is
> >> highly
> >>>> likely that many users would be confused and placed at
> >> higher risk of
> >>>> crime through activity at that TLD.  This is the same
> >> security and
> >>>> stability concern that underlies the UDRP, as to 2d level
> >> and higher
> >>>> domains.
> >>>>
> >>>>
> >>>> Mike Rodenbaugh
> >>>>
> >>>> Sr. Legal Director
> >>>>
> >>>> Yahoo! Inc.
> >>>>
> >>>>
> >>>>
> >>>> NOTICE:  This communication is confidential and may be
> >> protected by
> >>>> attorney-client and/or work product privilege.  If you
> are
> >> not the
> >>>> intended recipient, please notify me by reply, and delete
> >> this
> >>>> communication and any attachments.
> >>>>
> >>>>
> >>>> -----Original Message-----
> >>>> From: owner-gtld-council@xxxxxxxxxxxxxx
> >>>> [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of
> >> Robin Gross
> >>>> Sent: Saturday, June 02, 2007 10:23 AM
> >>>> To: gtld-council@xxxxxxxxxxxxxx
> >>>> Subject: [gtld-council] NCUC proposals to amend gnso
> >> recommendations
> >> on
> >>>> new gtld policy
> >>>>
> >>>> NCUC has developed 5 new proposals to amend the draft
> gnso
> >>>> recommendations on new gtld policy.
> >>>>
> >>>> These proposals are meant to give some recognition to
> >> freedom of
> >>>> expression values in our recommendations.  The proposals
> >> also address
> >>>> concerns about ICANN becoming enmeshed in national policy
> >> debates and
> >>>> would keep the Internet core neutral of such conflicts.
> >>>>
> >>>> The 5 proposals are not meant to be accepted only as a
> >> package, but
> >>>> should be considered individually also.
> >>>>
> >>>> NCUC proposals to amend draft GNSO recommendations:
> >>>> http://www.ipjustice.org/ICANN/062007.html
> >>>>
> >>>> I welcome an opportunity to discuss the amendments at
> >> greater length
> >>>>
> >>>>
> >>> and
> >>>
> >>>
> >>>> will try to answer any questions you may have on them.
> >>>>
> >>>> Thank you for considering them.
> >>>>
> >>>> Best,
> >>>> Robin
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>
> >>
> >>
> >>
> 
>