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Terri Agnew's Personal Meeting Room
Julie Bisland
28:52
Welcome to the New gTLD Subsequent Procedures Working Group call on Thursday 22nd August 2019 at 03:00 UTC.
Jeff Neuman
29:02
@jim - we need to handle that last piece online
Jim Prendergast
29:23
how will that be done?
Steve Chan
29:40
It was choppy for me as well
Julie Bisland
29:48
Sorry!
Steve Chan
29:53
And Jeff, you sound perfectly clear
Heather Forrest
30:53
Since we always thank non-APAC for attending the occasional APAC-friendly call time, can we start thanking APAC for attending all the other calls?
Cheryl Langdon-Orr
30:57
and CONGRATULATIONS @Tom :-)
Heather Forrest
31:03
Congrats Tom
Cheryl Langdon-Orr
31:19
Excellent point @Heather
Tom Dale
31:24
Absolutely!
Justine Chew
31:31
Just a provisional update to my SOI - provisional as it won't take effect until the end of ICANN66 AGM. I have been selected by NomCom as ALAC Member for Asia/Australia/Pacific Islands. But for current SubPro purposes, I remain a member of At-Large and serve as ALAC/At-Large liaison for subsequent procedures.
Steve Chan
33:26
Link to document here: https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrouR4AI/edit?usp=sharing
Rubens Kuhl
38:53
The RA commitments are very narrow, not a wholesale ban on what's usually called closed generics.
Rubens Kuhl
39:30
Actually there was no decision on closed generics by the board; they punted the decision to this PDP.
Steve Chan
39:59
FYI, the vast majority of the text added in this background section is pulled from the Initial Report.
Heather Forrest
40:43
The gist of my concern at the moment is - I thought the summary we're looking at is the summary of comments received in this PDP, not a place to express comments formally or informally received since 2012.
Steve Chan
40:45
That’s partially why the element that Kathy added is maybe inappropriate for this section?
Cheryl Langdon-Orr
43:24
your comment and concern is noted @Heather
Steve Chan
44:42
@Jeff, I believe the text Kathy added is actually from the closed generics public comment from 2013 here: https://www.icann.org/en/system/files/files/report-comments-closed-generic-08jul13-en.pdf
Jim Prendergast
45:04
do we have a break down on how many withdrew and howmany changed the application? And what happened to the gang of 5?
Rubens Kuhl
45:42
Question: How many applicants selected the second option, to maintain their plan to operate an exclusive generic TLD. As a result, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs?-----Based on staff research, the 5 applications referenced in the text above are:HOTELS - Booking.com B.V.GROCERY - Wal-Mart Stores, Inc.DVR - Hughes Satellite Systems CorporationDATA - Dish DBS CorporationPHONE - Dish DBS CorporationAll five submitted change requests to question 18 (i.e., mission/purpose of the proposed gTLD) and have since been delegated. Therefore, the answer to the question above appears to be zero.
Kathy Kleiman
46:14
@Jim - the vast majority agreed to change their application -- to agree to be an "Open Generic" -- and moved forward with their applications.
Jim Prendergast
46:48
thanks
Heather Forrest
47:07
What a mess when the Board wades into policy-making while saying "we're not making policy, it's just temporary until the GNSO does so".
Paul McGrady
47:42
Innovation so long as nothing innovative happens.
Heather Forrest
48:13
Good idea, Paul - let's do that
Kathy Kleiman
48:36
.Cloud has large and small businesses.
Paul McGrady
49:08
@Kathy - so does Net. Nothing new there.
Jim Prendergast
49:53
do we know how many withdrew as a result of this change? i didnt see that in any of the material above.
Paul McGrady
50:17
So, here is the question: is the baseline the AGB which clearly allowed closed generics (many applications filed for them) or is the default the Board's "no"?
Rubens Kuhl
50:54
Paul, I don't think there is a baseline at this point either way.
Jim Prendergast
51:21
I think the baseline is the rules, including the AGB, that governed the round
Christine Farley
51:35
@Paul AGB "clearly allowed"? Do you mean didn'y clearlt ban?
Kathy Kleiman
51:46
very few withdrew
Kathy Kleiman
51:51
most wanted to go forward...
Paul McGrady
52:06
@Christine - yes. Whatever is not banned is allowed.
Paul McGrady
52:58
So, which is the baseline? 2012 AGB or Board's temp position?
Justine Chew
53:04
We know what you mean @Jeff
Kathy Kleiman
53:09
hand up
Cheryl Langdon-Orr
53:28
Bifuricated opinions
Steve Chan
53:41
I’m going to stop screen share for a moment to get the timer onto the screen share
Jim Prendergast
54:03
yes
Rubens Kuhl
54:07
Regardless of what AGB implied, Board shuffled it and we are now at square zero having to define what is allowed and what is not.
Kristine Dorrain
56:16
in 2013 people were terrified of what they didn’t understand. today people are demanding innovation and locking all TLDs to one model: sell domains to anyone who shows up, is outdated
Kristine Dorrain
57:16
Paul was right: innovate without doing anything different. ROs are barraged by demands to make something of TLDs with both hands tied behind our backs.
Paul McGrady
57:36
@Jeff - correct. Lots of competitors sat on their hands, realized they were out innovated by their competitors and came to ICANN seeking help shutting down their competitor's innovation.
Christine Farley
57:36
Hmm. I hear people today being VERY concerned about monopolies
Kathy Kleiman
57:47
It's a basic principle of trademark law
Heather Forrest
58:04
The Ops Procedures caution us against giving weight to numbers on opposing sides of an argument.
Kathy Kleiman
58:04
... that generic words cannot be monopolized by single competitors of a business or industry
Paul McGrady
59:16
@Kathy - a closed generic is only one method to use the word - there are zillions of other ways to use that word - there is no possiblty of "monopoly."
Christine Farley
59:41
@Paul same could be said for TM law
Paul McGrady
01:00:12
@Christine - not sure what you mean, but we aren't writing national trademark laws here. We are writing the next AGB.
Cheryl Langdon-Orr
01:01:06
Yup
Cheryl Langdon-Orr
01:01:16
indeed they are
Christine Farley
01:01:24
Let's either rely on TM law or not, but let's not cherry pick
Paul McGrady
01:02:16
@Christine - truly I have lost your narrative. Who is relying on trademark laws in relationship to closed generic terms registries with innovative business models?
Kathy Kleiman
01:02:51
@Paul, a business can be as innovative as it wants under its own name or a trademarked service or product.
Paul McGrady
01:04:02
@Kathy - I don't disagree. Not sure the point you are trying to make. Are you suggesting that all innovative business models MUST be tied to a trademark right?
Kathy Kleiman
01:05:32
I'm suggesting that we heard from trade associations all over the world that a basic word representing their industry ("generic") should require the registry (thru registrars) to register domain names to ALL competitors. A basic principle of competition
Kathy Kleiman
01:05:37
and trademark law...
Christine Farley
01:06:11
@Paul, my point is simply that now that so much TM law has been imported into ICANN, it would odd not to incorporate a major feature of TM law, which is to prohibit the "monopolization" of generic terms.
Paul McGrady
01:06:51
@Kathy - still not sure of the point. Competition and trademark law were in existence for centuries before the DNS. How could the trade association's view be a basic principal of laws that were prexisting the view?
Cheryl Langdon-Orr
01:07:22
Heather had a comment but she can speak to it now I suspect
Paul McGrady
01:07:52
@Christine - gotcha. Same answer, I suppose, as above, which is that there are zillions of other ways to use a word other than in a closed generic regisrty, so monopolization isn't a possibility.
Christine Farley
01:09:10
@Paul, it is the same monopolization addressed in TM law. It isn't a total ban on the word or its equivalent, but its a significant threat to competition.
Steve Chan
01:10:55
@Heather, I forgot the timer for you. No more free rides! :)
Kathy Kleiman
01:11:22
@Jeff, right, and why over 250 commenters raised a common voice of concern about competition and monopolization -- a wide range of commercial and noncommercial organizations.
Paul McGrady
01:11:28
@Christine - it isn't the same as marks are tied to goods or services, so DELTA for airlines, DELta for faucets and DELTA for dentistry services all co-exist and competition appears to be thriving...
Kathy Kleiman
01:12:26
"Allowing such closed gTLDs would harm competition, limit consumer choice andn confuse consumers" -- Retail Council of Canada, Ikea, Blacknight, Indigo Books & Music, Alibaba Groups and moire...
Kristine Dorrain
01:12:45
@Kathy HOW
Kristine Dorrain
01:12:52
that is my ongoing question.
Rubens Kuhl
01:13:03
Every rule will have false positives and false negatives. A false positive would be a closed generic that could be useful to the public but is blocked from delegation. A false negative would be an anti-competitive TLD that is not blocked. So the question is what type of false we favor.
Cheryl Langdon-Orr
01:13:14
Were ok for Chat Jeff they are really just trading examples in discuss
Kathy Kleiman
01:13:23
certainly international organizations and businesses objected to Closed Generics...
Paul McGrady
01:13:48
@Kathy - understand that such was the opinion of certain folks, but assertions aren't facts.
Paul McGrady
01:14:03
or at least aren't always facts
Heather Forrest
01:14:13
For the record, responding to Christopher's comment, I haven't commented in this call on trademark rights. My comment simply went to the need to present an impartial record of the history in background. That has nothing at all to do with trademark laws.
Kathy Kleiman
01:14:14
Since it echoes trademark law in the US and worldwide, it has a ring of truth, Paul... :-)
Kristine Dorrain
01:14:15
@Kathy they could only speculate about what harm folks might suffer. no one will even think past 1999 about what the DNS of the future could look like
Steve Chan
01:14:18
@Jeff, here is the non-exhaustive list of names from the Beijing Communique: .antivirus, .app, .autoinsurance, .baby, .beauty, .blog, .book, .broker,.carinsurance, .cars, .cloud, .courses, .cpa, .cruise, .data, .dvr, .financialaid,.flowers, .food, .game, .grocery, .hair, .hotel, .hotels .insurance, .jewelry,.mail, .makeup, .map, .mobile, .motorcycles, .movie, .music, .news, .phone,.salon, .search, .shop, .show, .skin, .song, .store, .tennis, .theater, .theatre,.tires, .tunes, .video, .watches, .weather, .yachts, .クラウド [cloud],.ストア [store], .セール [sale], .ファッション [fashion], .家電[consumer electronics], .手表 [watches], .書籍 [book], .珠宝 [jewelry],.通販 [online shopping], .食品 [food]
Steve Chan
01:14:25
Here: https://gac.icann.org/contentMigrated/icann46-beijing-communique
Kathy Kleiman
01:17:03
Some? The GAC objected to dozens!
Rubens Kuhl
01:17:34
Kathy, I believe the "some" reference was to closed generic IDNs.
Paul McGrady
01:19:55
@Kathy - again, not sure what the trademark law point is here, so I don't see the ring of truth that you do.
Kathy Kleiman
01:21:51
@Paul - from USPTO.GOV - "Generic words are the weakest types of “marks” (and cannot even qualify as “marks” in the legal sense) and are never registrable or enforceable against third parties. Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. Be aware that if you adopt a generic term to identify your goods or services, you will not be able to prevent others from using it to identify potentially competing products or services."
Paul McGrady
01:22:49
@Kathy - understand - like you I've been at this trademark thing for awhile. But I just don't understand what the point is. ICANN isn't registering any trademarks...
Paul McGrady
01:25:00
"Hammers" is generic for a hammers. "Hammers" is not generic for a domain name registry.
Cheryl Langdon-Orr
01:25:04
just to and fro stuff Jeff
Kathy Kleiman
01:25:55
@Paul, the GAC disagreed... as did the world.
Kathy Kleiman
01:26:25
Registries who want to monopolize and own all of second level domain names of a gTLD can easily do it under their own brand names...
Christopher Wilkinson
01:27:46
@Krisine - ICANN language is woefully vague. GNSO initially considered geographical names as Generic, which obviously they are not. Also, Specification 13 contains and incomprehensible clause that trademark applications shall not be generic strings.
Kristine Dorrain
01:28:30
@Christopher you’re entitled to both of those opinions. I disagree.
Steve Chan
01:28:40
No sure. Will look.
Paul McGrady
01:28:56
@Kathy - was unaware the world took a vote. :) I get your point - there were some folks that were unhappy that creative competitors applied and they didn't and those folks were able to get the GAC on board with shutting it down. But, let;s not confuse being savvy within the ICANN political structure with having a globally accepted position. As mentioned before, the public comments on this are all over the place, so there can be no deducible global position.
Kristine Dorrain
01:29:20
+1 Paul
Rubens Kuhl
01:29:26
These comments regarding closed generics dotless domains are totally wacko. Any problem a dotless domain might bring happens regardless of string type.
Steve Chan
01:29:30
@Jeff, no comment on Closed Generics from the SSAC.
Kathy Kleiman
01:29:58
@Paul - I think you'll enjoy the Report of Public Comments 2013 -- https://www.icann.org/en/system/files/files/report-comments-closed-generic-08jul13-en.pdf
Kristine Dorrain
01:30:05
a registry could develop a product and build a brand get a .BRAND tld, sure. but innovation is not always linear
Kathy Kleiman
01:30:14
Plus the GAC independently wrote to ICANN about dozens of closed generics.
Jim Prendergast
01:30:23
Has the GAC said anythign firther on this topic since the Boad passed their resoltuion on this?
Cheryl Langdon-Orr
01:30:30
@Rubens I am confidet that the ALAC were reflecting to the best of their ability and understanding what they learned in discussions with the SSAC
Paul McGrady
01:30:35
@Kathy - yes, read it in 2013.
Cheryl Langdon-Orr
01:30:41
ALAC and SSAC share regular briefings
Kathy Kleiman
01:30:42
We did hear from folks around the world -- it was a huge outpouring for its time... before all of the publicity of the transition!
Cheryl Langdon-Orr
01:31:14
nothing worthy of specific highlight @jeff
Tom Dale
01:31:32
The GAC was directly lobbied about several applications eg salon, beauty, hair, skin.
Kristine Dorrain
01:31:39
I’d like to raise my hand but I’m on mobile only.what is the magic code to I mute myself
Kristine Dorrain
01:31:42
unmute
Paul McGrady
01:31:44
@Jeff - hang in there!
Kathy Kleiman
01:31:59
*6
Cheryl Langdon-Orr
01:32:03
*6
Kathy Kleiman
01:32:07
to unmute
Kathy Kleiman
01:32:16
and sometimes Staff has to unmute on our side
Cheryl Langdon-Orr
01:32:37
on a mobile thw Zoom app has aften put me on Driving mode which also doesnot help ;-)
Paul McGrady
01:34:55
The onlynon-speculative harm was the shutting down of innovation and the silencing of speech that closed generic registry operators would have been able to bring to the market.
Jim Prendergast
01:36:10
I think you need to put this question to the list and not just ask on this call which has been underatteneded on a regular basis due to the time slot.
Heather Forrest
01:36:58
I cry whenever I hear APAC calls described as "underattended"
Paul McGrady
01:37:03
@Jim - +1. Let's keep the conversation going
Heather Forrest
01:37:19
But of course I agree this should go to the whole group (irrespective of call time)
Cheryl Langdon-Orr
01:37:45
and the nimber is not all that low either Heather 24 -mid 30's is our usual range
Justine Chew
01:37:46
@Heather, me too. And when people say "how late it is for them" ;)
Kristine Dorrain
01:37:49
I genuinely want to hear about what worries people about innovation
Jim Prendergast
01:37:59
@heather - not a critique - just a fact.
Cheryl Langdon-Orr
01:38:17
I hear you both loud and clear @Heather/Justine
Heather Forrest
01:38:56
I hear you, Jim- likewise, not a criticism from me to your comment. It's just the sad state of a "global" organisation
Rubens Kuhl
01:39:17
Kathy has her hand up.
Heather Forrest
01:41:04
It is plausible that we can handle some of the concerns raised today about closed generics can be handled by more nuanced and specific definition drafting.
Heather Forrest
01:42:23
Sorry for the very muddled grammar in that comment.
Christine Farley
01:42:52
@Kristine, please don't characterize opposition to closed generics as anti-innovation. That's not fair. Innovation has always best thrived with competition!
Kristine Dorrain
01:42:58
the community hasn’t seen innovation because it’s not allowed
Paul McGrady
01:43:03
Really confused. I'm not sure ICANN is in a position to address concerns about a second guilded age (assuming one agrees we are in one)...
Paul McGrady
01:43:23
+! Kristine - innovation was shut down
Kristine Dorrain
01:43:48
@Christine... competiting for the same pool of domain name registrants is not new or exciting
Heather Forrest
01:43:52
@Paul - is +! even stronger than +1?
Heather Forrest
01:43:56
;)
Paul McGrady
01:44:10
+! (R) all rights reserved
Kristine Dorrain
01:44:17
I like +!!!’
Heather Forrest
01:44:46
@Kristine - have you diluted Paul's mark?
Cheryl Langdon-Orr
01:45:13
Perhaps some of the creative energies here in this call could be out towards some potential drafting of text for as requested by @Heather above "... more nuanced and specific definition drafting....
Paul McGrady
01:45:20
@Heather - it was immediatley famous the instant I typoed it
Heather Forrest
01:45:26
+! Cheryl
Heather Forrest
01:45:27
;)
Kristine Dorrain
01:45:42
@Heather, I added a ‘ so I probably tarnished it
Paul McGrady
01:47:33
hahahaha
Cheryl Langdon-Orr
01:47:41
:-)
Heather Forrest
01:47:55
So glad Jeff has a sense of humour
Kathy Kleiman
01:48:16
The Board/Staff wrote the following into each and every New gTLD Registry Agreement: " Registry Operator of a “Generic String” TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person’s or entity’s “Affiliates” (as defined in Section 2.9(c) of the Registry Agreement). “Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others."
Jeff Neuman
01:49:03
@Kathy - That is a decision, not a rationale
Kristine Dorrain
01:49:25
to
Cheryl Langdon-Orr
01:50:13
Thanks @Paul
Kathy Kleiman
01:50:15
@Jeff: the rationale is pretty clear in the phrasing...
Steve Chan
01:52:03
For your convenience, here is the NGPC resolution, which includes the NGPC’s rationale: https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en
Cheryl Langdon-Orr
01:52:23
Thanks @Steve, most helpful
Paul McGrady
01:52:27
Sorry, I got dropped off the call as soon as I said "thank you" so I missed Jeff's response to my verbal comment
Steve Chan
01:53:03
Tuesday, 27 August 2019 at 03:00 UTC for 90 minutes
Julie Bisland
01:53:06
: Tuesday, 27 August 2019 at 03:00 UTC for 90 minutes.
Steve Chan
01:53:14
Sorry Julie ;)
Cheryl Langdon-Orr
01:53:22
Beat me to it Julie B :-)
Julie Bisland
01:53:35
STEVE wins
Heather Forrest
01:53:39
Well done Jeff - you've done well to manage a tough conversation
Paul McGrady
01:53:44
Thanks Jeff!!
Cheryl Langdon-Orr
01:53:47
Thanks everyone good call
Tom Dale
01:53:55
Thanks all.
Cheryl Langdon-Orr
01:54:06
Bye for now