[bc-gnso] RE: DRAFT BC Public Comments on DAGv4

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

For clarification, the vast majority of domain investors do NOT see major new 
business opportunities in new gTLDs (Michael Castello and his brother David are 
in the forefront on that view). To the extent that they have a business model 
based on owning non-infringing generic word domains and benefit from ad revenue 
driven by type-in direct search traffic there will be almost no such traffic at 
new gTLDs and it is doubtful a domain could generate sufficient PPC revenue to 
offset annual registration costs. Now there is a big movement among domainers 
to developing their best domains -- both because PPC revenue is down as well as 
that this is a more profitable use of a good domain -- but time will tell if 
developing a new gTLD domain is a worthwhile enterprise. Domainers feel very 
burned by past gTLD rollouts in which investments were not at all rewarded -- 
.travel is usually cited as a prime disappointment -- and are skeptical about 
the business opportunities in any new ones coming along.

So ICA's attitude has been anything but "let her rip" in regard to new gTLDs 
being rolled out. In fact, we are on the record in our prior comment letters as 
questioning the wisdom of near-simultaneous rollout of 500+ new gTLDs on a 
variety of grounds, and urged ICANN to proceed cautiously and consider paced 
and prioritized introduction.

We fully understand the concerns of trademark owners, although we do think they 
are somewhat exaggerated. That is, just as brand owners don't register at every 
ccTLD there will be lots of new gTLDs where the opportunities for profitable 
infringement will be low to nil (that is, a .phone could pose a threat to 
Verizon but a .cuisine much less so). We have consistently proposed a balanced 
UDRP reform process that addressed the default case issue for rights holders 
while also considering registrant concerns with the current UDRP -- what we 
have opposed is consideration of major new changes in the new gTLD context that 
amounted to one-sided UDRP reform (and many rights holders and even ICANN staff 
stated publicly that they hoped that any new rights protections adopted for new 
gTLDs would rapidly be applied to incumbents, so this was hardly an unwarranted 
concern).

Finally, to the extent that any new gTLDs achieve market success this is to be 
welcomed as it will provide new opportunities for domain investors and 
developers, and businesses and individuals generally, and hopefully will 
provide some pricing constraints at .com and other incumbents. My perception is 
that even VeriSign would welcome that development, as being regarded in the DNS 
space as akin to Microsoft for PCs and Google for search imposes costs as well 
as benefits for them.


Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

________________________________
From: Rick Anderson [randerson@xxxxxxxxxxxxxxxx]
Sent: Sunday, July 18, 2010 7:44 PM
To: michaelc@xxxxxxxxxxxx
Cc: sarah.b.deutsch@xxxxxxxxxxx; Phil Corwin; mike@xxxxxxxxxx; jb7454@xxxxxxx; 
randruff@xxxxxxxxxxxxxxx; ffelman@xxxxxxxxxxxxxxx; bc-gnso@xxxxxxxxx
Subject: DRAFT BC Public Comments on DAGv4


Hi Michael.

I think it's important that ICANN and the Business Constituency thereof remain 
focussed upon our own role.

It could well be that Google has too great a market dominance in search, and it 
could well be that pro-competition regulatory authorities in various 
jurisdictions will wish to address that. Perhaps, perhaps not.

But this is some distance from our role with regards to the policies we (the 
ICANN community) put in place around the domain name system.

It is NOT our (ICANN's) job to regulate Google, nor to regulate the search 
advertising market.

Our (ICANN's) job is to oversee "...IP address space allocation, protocol 
identifier assignment, generic and country code Top-Level Domain name system 
management, and root server system management functions....(through being) 
dedicated to preserving the operational stability of the Internet; to promoting 
competition..."

Try starting a new business or organization today, and see what .com domain 
choices are available to you. I know you know the answer - very limited, unless 
you go to the secondary market. Is this our intent - that future domain name 
registrants continue to crowd into the saturated .com space and pay high rates 
to secondary providers for .com names?

If it is, then I guess we should continue to drag our heels with respect to new 
gTLDs, and thereby protect the market for incumbent players.

If it is not, we should take further steps to open the market.



cheers/Rick

Rick Anderson
EVP, Walton Global Investments Ltd
randerson@xxxxxxxxxxxxxxxx
cell (403) 830-1798

PS: Please note our updated corporate name and email address

________________________________
From: Michael Castello
To: Rick Anderson
Cc: sarah.b.deutsch@xxxxxxxxxxx ; pcorwin@xxxxxxxxxxxxxxxxxx ; mike@xxxxxxxxxx 
; jb7454@xxxxxxx ; randruff@xxxxxxxxxxxxxxx ; ffelman@xxxxxxxxxxxxxxx ; 
bc-gnso@xxxxxxxxx
Sent: Sun Jul 18 17:03:56 2010
Subject: Re: DRAFT BC Public Comments on DAGv4

Rick,


Thanks for your comments. Ten years ago that might have been the case. Today 
the monopoly could be seen as Google. It is not Google's fault since many were 
using direct navigation in the early net but those that did not find tangible 
content searched for it. In doing so, search has dominated the way people 
navigate today. Having hundreds more gTLDs will only enhance that monopoly. 
Today anyone can register ANY gTLD and get high search ranking and relevance 
with the right kind of content and input. There is speculation in gold but in 
reality it is what people make gold out to be. Scarcity in itself creates worth 
ONLY to those that see the worth of its scarcity (;>. We have had many gTLDs 
since dot com but where did they go wrong? That is a matter of opinion since I 
know many that made millions from them. The ONLY difference is the worth that 
the global community places in them over time. As I said earlier, there will be 
great wealth in the short term exposure to the new gTLDs in sales. You have to 
get the public perception to buy into developing them in order for them to 
become a global brand. Those are two drastically differing returns. If you 
really want to make all navigation equal to everyone we could revert back to 
the IP system.


Michael Castello

CEO/President

Castello Cities Internet Network, Inc.

http://www.ccin.com

michael@xxxxxxxx<mailto:michael@xxxxxxxx>


--

Sunday, July 18, 2010, 1:28:36 PM, you wrote:




Hi Michael.


Not sure where I said .com should be undone, I agree it has been a success.


What I say is that amidst the successful evolution of the domain name system we 
have also seen the (unintended) consequence of .com being so dominant as to be 
a near-monopoly. It will not always be this way, and it is in the community's 
interest to move more quickly than we have done to diversify domain name demand 
away from an over-concentration on .com.


Because .com is still seen by so many as the only way to go, we have created 
the circumstances which have lead to speculation in .com names with most of the 
attractive names now registered, leading to an artificial scarcity of domain 
name real estate. But this is really just a perceptual scarcity, and a 
policy-induced one, not a real scarcity. The best way to eliminate that 
artificial scarcity, in my view, is through the creation of more real estate, 
as has been done with some success (but not yet enough) with ccTLDs . More 
gTLDs are part of the answer, this is a matter of basic market economics.




cheers/Rick


Rick Anderson

EVP, Walton Global Investments Ltd

randerson@xxxxxxxxxxxxxxxx

cell (403) 830-1798


PS: Please note our updated corporate name and email address

________________________________

From: Michael Castello

To: Rick Anderson

Cc: sarah.b.deutsch@xxxxxxxxxxx ; pcorwin@xxxxxxxxxxxxxxxxxx ; mike@xxxxxxxxxx 
; jb7454@xxxxxxx ; randruff@xxxxxxxxxxxxxxx ; ffelman@xxxxxxxxxxxxxxx ; 
bc-gnso@xxxxxxxxx

Sent: Sun Jul 18 13:52:57 2010

Subject: Re: DRAFT BC Public Comments on DAGv4

Hello Rick,


In all due respect your third reason absolutely floored me. The virtual world 
will be built by those that take the time, effort and sacrifice to do so. Dot 
com (commercial) was the only available gTLD to me and many others like me in 
1994. It was what we had to build upon. ICANN does not determine what the 
public chooses or uses. The 1994 Internet, in my circles, was considered a fad. 
We could have simply used IPs to navigate and allowed search to do the 
workload. What had happened was actually quite beautiful. Average citizens 
could find a global distributional channel for ideas and products that used 
words to navigate. There was clarity in that a "word" with a dot com. It was 
understood as "the Internet". Dot com in itself became a brand. That was 
something the general public decided not the DNSO or ICANN. To purposely try to 
undo something that was natural will be futile in my opinion. There is a lot of 
growth in the name space for the global future. The new gTLDs will offer great 
wealth to those that sell, purchase and resell but it remains unseen if the 
global community chooses to "build upon" it. I personally think your intentions 
would have better served you unsaid.


Michael Castello

CEO/President

Castello Cities Internet Network, Inc.

http://www.ccin.com

michael@xxxxxxxx<mailto:michael@xxxxxxxx>


--

Sunday, July 18, 2010, 11:55:07 AM, you wrote:




Sarah does a good job of identifying two of the three key drivers in the gTLD 
discussion, namely


1. The commercial interest of service providers and domain name investors in 
having access to a new universe of products to provide and-or invest in


2. The interest of trademark owners in not being subject to fresh new rounds of 
defensive registrations and trademark protection


There is a third driver though, and it is the one which prompts BC members who 
are not in the domain business to support new gTLDs:


3. The need for the ICANN community to dissolve the perceptual and economic 
domination of .com in the domain space.


To some of us, eliminating the .com dominance/monopoly is the single most 
important policy challenge facing ICANN. ICANN's practices and polices have had 
the (unintended) consequence of creating a near-monopoly, and an artificial 
scarcity of supply where none in fact exists, a near-monopoly and scarcity 
which distort prices and limit access. We need to fix that, and I at least have 
not yet heard a better way to do so than through multiplying TLDs.


This is more than a debate between those with a commercial interest in the 
domain business vs those with a defensive interest in trademark protectionism




cheers/Rick


Rick Anderson

EVP, Walton Global Investments Ltd

randerson@xxxxxxxxxxxxxxxx

cell (403) 830-1798


PS: Please note our updated corporate name and email address

________________________________

From: owner-bc-gnso@xxxxxxxxx

To: Phil Corwin ; michaelc@xxxxxxxxxxxx ; mike@xxxxxxxxxx

Cc: jb7454@xxxxxxx ; randruff@xxxxxxxxxxxxxxx ; ffelman@xxxxxxxxxxxxxxx ; 
bc-GNSO@xxxxxxxxx

Sent: Sun Jul 18 11:41:13 2010

Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

I'm not opposed to polling members on this issue.  I can understand that many 
of Phil's members who are in the domain name business may see business 
opportunities from the introduction of new gTLDs.  They and others who 
expressed concern do not own a well known brand or have widespread trademark 
infringement problems.  Those who object have different business interests and 
protecting corporate brands and consumers in the new gTLD spaces is not on 
their list of priorities.  I respect that.



However, ICANN designated trademark protection as one of the overarching issues 
surrounding the rollout and pledged that these issues would be adequately 
addressed in the DAG.  I'm not aware of any major brand owners, including the 
IPC members participating on the IRT, who are happy with the diluted trademark 
protections currently contained in DAG 4.  I would hope even members without 
trademark concerns, should respect the interests of BC members who have such 
concerns and allow them to express those.  Our BC GNSO councilors have 
consistently advocated for these protections on our behalf.  The BC already 
submitted consistent comments in the past, including on DAG 3. Ron tried to 
keep much of the DAG 4 comments identical to the language to the DAG 3 draft.  
I'm sure Ron is open to receiving additional constructive edits on tone and 
substance (e.g., Mike R's helpful suggestion to delete reference to the GPML 
since that appears to be dead in the water).



I'm hopeful that we can find a consructive way to move forward given the 
importance of this issue to so many BC members.  We've heard from those raising 
concerns, but we've also heard from AT&T, News Corp, Mike Rodenbaugh, 
NetChoice, Verizon and RNA Partners weighing in supporting the comments.  I 
would urge others to weigh in on this as well.




Sarah





Sarah B. Deutsch

Vice President & Associate 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 
Phil Corwin

Sent: Saturday, July 17, 2010 9:48 PM

To: 'michaelc@xxxxxxxxxxxx'; 'mike@xxxxxxxxxx'

Cc: 'jb7454@xxxxxxx'; 'randruff@xxxxxxxxxxxxxxx'; 'ffelman@xxxxxxxxxxxxxxx'; 
'bc-GNSO@xxxxxxxxx'

Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4


Given the diversity of opinion within the BC, as well as the fact that other 
members appear to have broader concerns than those I raised, I would again 
suggest that a poll should be taken of BC members to take the Constituency's 
temperature and determine if there is any consensus for the proposed position 
statement.

Philip S. Corwin

Partner, Butera & Andrews

1301 Pennsylvania Ave., NW

Suite 500

Washington, DC 20004

2026635347/Office

2022556172/Cell


"Luck is the residue of design." -- Branch Rickey




From: Michael Castello [mailto:michaelc@xxxxxxxxxxxx]

Sent: Saturday, July 17, 2010 07:04 PM

To: Mike O'Connor <mike@xxxxxxxxxx>

Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454@xxxxxxx>; Ron Andruff 
<randruff@xxxxxxxxxxxxxxx>; frederick felman <ffelman@xxxxxxxxxxxxxxx>; 
bc-GNSO@xxxxxxxxx <bc-GNSO@xxxxxxxxx>

Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4




I agree with both Phil and Mikey. There was certainly a lot of freedom early on 
with the internet and closing ranks on the concerns of trademark holders and 
new entities were, over time, clearly needed. The name space was allowed to 
flourish because it was so available to everyone. We need to make sure that 
these regulations, while needed, do not become too cumbersome to new 
participants. Everyone needs to be invited to the party.


Michael Castello

CEO/President

Castello Cities Internet Network, Inc.

http://www.ccin.com

michael@xxxxxxxx<mailto:michael@xxxxxxxx>


--

Saturday, July 17, 2010, 5:39:34 AM, you wrote:




i am in Phil's camp on this.  several years ago i started referring to myself 
as "a member of the business wing of the Business Constituency" just to make it 
clear that i'm not keen on our strident views with regard to rights protections 
and cyber-security.


of course cyber-crime is important, but folks like Bruce Schneier make an 
extremely compelling case that there needs to be a culture of security in which 
all participants are active and aware rather than creating a culture of passive 
consumers being "protected" by ever-increasingly intrusive "authorities" like 
governments and ICANN.


of course trademark violations are unacceptable -- but to make this our 
signature issue, to take our position beyond even those of the IPC, and leaving 
*small* business owners defenseless in the face of large corporate 
brand-owners, leaves me continuing to feel disenfranchised (much the way i feel 
disenfranchised by the extreme politics in my country -- where the heck do 
moderates hang out??).


i would love to see the BC develop a positive message (based on positive 
positions) that truly reflect the needs of businesses large and small rather 
than recycling these views from our reactionary past.


i would also love to get out of the continuing role of being an apologist for 
our somewhat quirky positions.  haarrrumph!  :-)


so, just to be on record, i do not support these comments on DAGv4.


sorry about the rant.  thanks for taking the time to craft these notes Phil,



mikey



On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:



Ron (and other BC members who contacted me to ask that I provide alternative 
URS language):



I appreciate the request, as I appreciate the hard work put in by Ron and Sarah 
on the draft.



That said, a few word changes will not suffice to alter ICA's dissent, as we 
have an entirely different perspective. We represent individuals and companies 
with substantial investments in domain portfolios. They view domains in the 
same way that most of you (and we) view trademarks -- as an intangible asset 
with substantial value. When a trademark rights protection is proposed it might 
be useful to ask whether you would be willing to have one of your trademarks 
suspended, or forfeited, on the basis of what is on the table. If not, then 
don't expect registrants to embrace it. In no way do we condone trademark 
infringement, but proposed responses to it need to assure basic due process.



If a majority wills it then the BC is within its rights to proffer a reworking 
of the same positions it has articulated on prior occasions, and it should 
expect essentially the same results -- especially after BC members participated 
in an STI process that reworked the IRTrecommendations, and the STI's work was 
embraced by the GNSO and approved by the Board. If ICANN staff have 
significantly altered the STI's consensus recommendations then that certainly 
should be raised, but otherwise the rights protections for new gTLDs have been 
pretty much baked into the DAG. Does anyone really think they will be reopened 
in any significant way?



As regards the specifics of the URS provision, we cannot agree that the URS 
should have the same substantive standard as the UDRP. The URS was proposed by 
the IRT as reserved for "obvious", "no brainer" rights disputes, and was 
originally proposed with a higher evidentiary standard to distinguish URS cases 
from UDRPs. We don't think the BC's credibility on trademark matters is 
enhanced when it consistently articulates a harder line than that of the IPC, 
which conceived of and oversaw the IRT. As for urging that the URS lead to a 
domain transfer and not just a suspension -- again, this goes beyond the IRT 
recommendation and would likewise blur the distinction between the URS and UDRP.



Finally, we find the discussion of the "impact" test for a finding of RDNH in 
the URS to be confusing -- but we do believe that if a complainant advances 
deliberate falsehoods with the intent of having a favorable impact on its 
complaint then it is clearly guilty of attempting to abuse the available system.



Beyond the URS, our only other comment on the rights protection language is to 
note our strong questioning of a TM Clearinghouse regime in which an "identical 
match" is defined as "typographical variations". Identical means identical, not 
variations. Variations to what degree? Having a trademark in one word doesn't 
provide a right to fire warning shots at tens of thousands of possible variants 
of that word, multiple degrees of separation away from it. If you're going to 
propose that variations be encompassed then it really is incumbent to 
articulate some defining limits on that notion - "we know it when we see it" is 
really not adequate assurance for registrants. And, of course, these issues 
become even more problematic for dictionary words that are trademarked for 
various purposes. Please let's remember that in most instances infringement 
can't just be determined by the name of a domain but requires a look at how it 
is being used.



Finally, to note an area of agreement -- we share the concern that ICANN 
devotes inadequate resources to compliance, and indeed in Brussels we suggested 
publicly that it earmark a meaningful portion of revenues from new gTLD 
applications to that end.



Summing up, we would have to oppose the URS regime that the majority of the BC 
seems to favor as providing inadequate assurance of due process to registrants, 
and we think the overall position on rights protection is backwards looking 
given that the STI train has left the station. Again, this does not mean we are 
unsympathetic to the concerns of rights holders. Throughout the past 18 months 
we have advocated comprehensive UDRP reform that would address the concerns of 
all parties across the entire gTLD space, and we continue to believe that a 
good faith collaboration could produce positive changes that could be put in 
place in tandem with the opening of new gTLDs.



Regards to all,

Philip



Philip S. Corwin

Partner

Butera & Andrews

1301 Pennsylvania Ave., NW

Suite 500

Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

________________________________

From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[owner-bc-gnso@xxxxxxxxx] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@xxxxxxx]

Sent: Friday, July 16, 2010 3:36 PM

To: Ron Andruff; frederick felman; bc-GNSO@xxxxxxxxx<mailto:bc-GNSO@xxxxxxxxx>

Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4


Thanks Ron and Sarah.  AT&T supports filing comments and I like how you've 
updated them.  While I was not involved in the original BC comments, I would 
note that you could add a reference to the recommendation in the Economic Study 
that it may be wise for ICANC to continue its practice of introducing new gTLDs 
in discrete, limited rounds.



Jeff Brueggeman

AT&T Public Policy

(202) 457-2064







From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Ron Andruff

Sent: Friday, July 16, 2010 12:34 PM

To: 'frederick felman'; bc-GNSO@xxxxxxxxx<mailto:bc-GNSO@xxxxxxxxx>

Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4



Thanks to Mark Monitor and AIM for your notes of support for the circulated 
draft.



I encourage other members to give the doc a quick read.  While it is several 
pages long, please note that it is the same document we submitted for DAGv3 so 
what we are asking is for you to review the redlines and give your 
comments/amendments.   To that end, Phil Corwin, can you send your suggested 
URS text asap?



Thanks again everyone for taking a moment to review the DAGv4 draft comments.



RA



Ronald N. Andruff

President

RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11



________________________________

From: frederick felman [mailto:ffelman@xxxxxxxxxxxxxxx]

Sent: Friday, July 16, 2010 12:21 PM

To: Ron Andruff; bc-GNSO@xxxxxxxxx<mailto:bc-GNSO@xxxxxxxxx>

Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4

Importance: High



MarkMonitor support the BC comments to DAGv4.



On 7/15/10 7:20 AM, "Ron Andruff" 
<randruff@xxxxxxxxxxxxxxx<https://exchange.sierracorporation.com/owa/UrlBlockedError.aspx>>
 wrote:

Dear Members,



Further to my reminder earlier this week regarding the need for a BC public 
comment on DAGv4, Sarah Deutsch and I have developed a draft for member review 
and comment.  Effectively, we have taken the BC's DAGv3 comments and 
added/amended based on (1) staff having largely ignored our comments in DAGv2 
and v3; and (2) utilized subsequent information that has come available in the 
interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material 
and I took responsibility for the other elements.



We ask that members review and comment on the document at your earliest 
convenience, so that we can meet the submission deadline of Wednesday, July 
21st.  Sorry for the late posting, but unfortunately with summer holidays and 
all, a few things are slipping between the cracks...



Thanks in advance for your soonest input.



Kind regards,



RA



Ronald N. Andruff

President


RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11






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