FINAL VERSION SUBMITTED (IF RATIFIED)
The final version to be submitted, if the draft is ratified, will be placed here by upon completion of the vote.
Note: This is not a formal ALAC statement. Justine Chew, APRALO member, in her capacity as ALAC/At-Large liaison for Subsequent Procedures, submitted comments after consultation with the CPWG on the Consultation on Neustar's Proposal for 3-Phased New gTLD Application Model. Since this is a not an ALAC statement, a vote by the ALAC is not applicable for this informal response which went to the Subsequent Procedures PDP WG Sub-group A and which will be taken up for consideration by the full Subsequent Procedures PDP WG.
Record of submission:
On Thu, 7 Feb 2019 at 02:54 (UTC+8), Justine Chew wrote:
Dear Jeff, Robin and all,
Reference is made to the request by Jeff on the Sub-Group A's call of 3 Jan 2019 for SG feedback to the comment by Neustar in response to Question 2.2.3.e.4 of the Initial Report.
I am attaching for your attention the feedback of the At-Large Community, as represented by members of the At-Large Consolidated Policy Working Group (CPWG), the feedback of which was obtained through a consultation within the CPWG.
I trust that this feedback will be appropriately considered by members of Sub-Group A and will also feature in the deliberations of the Subsequent Procedures PDP Working Group at the plenary level in due course.
Please let me know if a need for further clarification to the feedback arises.
FYI, Olivier Crepin-Leblond and Jonathan Zuck are copied in this email for their information, in their capacity as Co-Chairs of the CPWG.Thank you,
ALAC liaison for Subsequent Procedures
Record of acknowledge of receipt:
On Fri, 8 Feb 2019 at 23:25, Jeff Neuman wrote:
Thank you for this input from the ALAC. We will include this in the materials that go to the Full Working Group. This is exactly the type of back and forth we were hoping to get. If any other group has input, please do get that into us.
Senior Vice President
Com Laude | Valideus
FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC
The final draft version to be voted upon by the ALAC will be placed here before the vote is to begin.
Note: This is not a formal ALAC statement. Justine Chew, APRALO member, in her capacity as ALAC/At-Large liaison for SubPro submitted comments after consultation with the CPWG on the Consultation on Neustar's Proposal for 3-Phased New gTLD Application Model.
DRAFT SUBMITTED FOR DISCUSSION
The first draft submitted will be placed here before the call for comments begins. The Draft should be preceded by the name of the person submitting the draft and the date/time. If, during the discussion, the draft is revised, the older version(S) should be left in place and the new version along with a header line identifying the drafter and date/time should be placed above the older version(s), separated by a Horizontal Rule (available + Insert More Content control).
Draft posted and revised on 16 January 2019, with revisions in blue, and further 18 Jan revisions in red
The At-Large Community (represented by members of the At-Large Consolidated Policy Working Group) thanks the Subsequent Procedures PDP Working Group Sub-Team A for requesting our feedback on Neustar’s comment to the overarching topic 2.2.3 of Applications Assessed in Rounds as submitted through the public comment process.
We are pleased to provide feedback obtained through our Consolidated Policy Working Group consultation.
First and foremost, we believe the request for feedback to the said Neustar comment to be premature. We wish to point out that at this juncture, no decision has been made as to whether another application round / window or expansion of the gTLDs is desirable.
No substantive cross-community discussion has taken place to address this question. Neither is there definitive data nor has a sufficiently comprehensive study been undertaken to establish whether the overall impact of the New gTLD Program as it stands has truly been beneficial in terms of improving consumer choice, competition and trust as well as industry innovation and outweighing costs such as domain name confusion, DNS abuse etc from the perspective of Internet end-users.
Further, the At-Large Community strongly believes that the Program still bears many issues which need to be effectively resolved before any serious contemplation can be made to expanding the gTLDs. An example of such an issue is the adoption of priority for community-based applications in the 2012 round through the CPE process yet is one which did not provide for either a clear understanding of the term “community” or for community expertise in evaluating such applications.
Notwithstanding, and in the event the next application round were contemplated (assuming there is community consensus), we think that the idea of a phased approach is not a new one. Further, we think Neustar's proposal is problematic in several fundamental aspects.
We also believe that this Neustar comment should be rightfully and effectively discussed at the plenary level of the Subsequent Procedures PDP WG.
Specific Response to Neustar’s Proposition
We understand that Neustar’s comment was made in context of the WG’s Preliminary Recommendation 2.2.4.c.1 which essentially proposes that ICANN continue to recognise the 5 established TLD categories of:
- standard TLDs,
- community-based TLDs,
- TLDs for which government entities serves as Registry Operators,
- geographic TLDs, and
- Specification 13 .Brand TLDs.
While we support in principle the retention of these 5 categories, we think that Neustar’s proposition of a 3-phased application window followed by an open round and thereafter a FCFS process is problematic.
Our concerns, some inter-connected, are:-
1. Apart from what is provided for in the 2012 ABG, there remains no definitive guide for determining what constitutes a generic string and not geographic name. Further, WT5 is still deliberating on the treatment of potential geographic names and geographic indications which may (or not) be reserved or at least subject to preventative protection measures. Jointly and separately, these render the demarcation between .Brands, geographic and generic TLDs illusory.
2. We understand Specification 13 allows for .Brand TLD applications to be easily considered but prioritizing .Brand TLD applications in Phase 1 gives those applications an unreasonable advantage over others. It can be argued that since brand owners or trademark holders already enjoy the presumption of a ‘strong’ claim to a string matching their brand name under trademark laws, the need to prioritize .Brand TLD applications should be less than for other categories of applications.
2. Should a phased approach be contemplated and subject to an effective demarcation guide being agreed to:-
- There is consensus within At-Large that community TLD applications should not be lumped together with generic TLDs applications.
There is some support for either community TLD applications or underserved categories from the 2012 round to be prioritised in Phase 1
- There is some support for .Brand TLDs to be prioritised in Phase 1 as suggested, because .Brand strings are typically used as closed TLDs and thus bears little to no risk for SL domain abuse,
- However, there is also an alternative view that .Brand applications should be de-prioritised, with either community TLD applications or underserved categories from the 2012 round to be prioritised ahead of geographic TLDs, generic TLDs and .Brand TLDs – it can be said that since brand owners or trademark holders already enjoy the presumption of a ‘strong’ claim to a string matching their brand name under trademark laws, the need to prioritize .Brand TLD applications should be less than for other categories of applications.
- There is some support that applications could be called for and to undergo initial evaluation but not approved (or contracted for) until all the applications for all categories have been evaluated initially, undergone comments/objections, and for which contentions have been identified and resolved
- There is little or no support for the FCFS open application process to commence right after the phases and open round suggested by Neustar – the making of such a decision should be undertaken with due consideration as to the desirability of expanding the gTLDs as well as demands for new gTLDs in due course.
3. It must be emphasized that, even though clarification was provided by Donna Austin in relation to the dates of each phase being illustrative only, no decision has been made as to whether another application round / window or if expansion of the gTLDs should proceed. In this respect the At-Large Community stands strongly against any attempts to override the mandated PDP process or time frame or exceed the charter of the WG or to engage in any activity which interferes with or handicaps the ICANN Board’s due consideration of the WG’s final report and recommendations.
Greetings for the New Year 2019.
During one of the SubPro PDP Sub-Group's review of community submissions received for the Public Comment on the Initial Report on the New gTLD Subsequent Procedures PDP (Overarching Issues & Work Tracks 1-4) (which concluded on 26 Sep 2018), that WG's Co-Chair, Jeff Neuman, requested that SO/AC liaisons obtain from their stakeholder groups feedback on a proposal by Neustar for the (next) New gTLD Program applications to be conducted in three phases followed by an open round.
Details of Neustar's proposal are contained in the attached slide deck above.
I invite you to provide feedback on the same by:-
1) Replying to this email (or to me privately, if you prefer);
2) Starting a separate email thread to firstname.lastname@example.org if you wish to discuss a specific aspect of the said proposal; and/or
3) Joining the next CPWG call (tentatively on 9 Jan 2019, please look out for a notice from At-Large staff for this call)
From: Olivier MJ Crépin-Leblond
thank you very much for putting together slides with Neustar's proposals. I must admit that these slides made me feel particularly uneasy about the whole process of subsequent procedures. Without prejudice, here we have the Chair of the working group, main driver of the working group moving forward, ex-Neustar and currently working for Valideus, a company that stands to capitalise significantly in the creation of brand TLDs, pushing a calendar that is suggested by his ex-firm, favouring his current firm. I cannot stop seeing a flashing sign telling me "conflict of interest" here.
At ICANN Studienkreis and elsewhere, Cherine Chalaby has been asking the community about the need for a fast next round, and the majority of people around the table, whether end users, businesses, registrars and established registries said they were not eager for an immediate next round. It is only companies that stand to benefit directly from new gTLDs, such as the service providers that have flourished to help with TLD applications (and independent consultants), or register brands, or apply a city TLD business model that they have already applied elsewhere, who are pushing for a next round.
I am not against a next round, but when I see an illustration on page 4 saying "brand TLDs" with an application window 1st Oct 2919 to 12 Jan 2020 (even though there is an asterisk saying proposed dates are illustrative only), this worries me as a way to circulate potential dates for next round. That is, again, putting the carriage before the horses.
That said, on the actual concept of three phase model, and irrespective of the above, I am not against the concept of phases, but I do not agree with the proposed phases themselves. Phase 1, brands, sound okay, except for those brands that are geographic names. I would argue that Community TLDs should not be batched with generic TLDs and should be prioritised before GeoTLDs. So Community TLDs should go to phase 2 and Geo TLDs could go to phase 3. I would also say that I have seen significant pushback on generic TLDs that are based on generic words, so I really wonder how that is going to pan out.
From: Evan Leibovitch
I must admit that these slides made me feel particularly uneasy about the whole process of subsequent procedures. Without prejudice, here we have the Chair of the working group, main driver of the working group moving forward, ex-Neustar and currently working for Valideus, a company that stands to capitalise significantly in the creation of brand TLDs, pushing a calendar that is suggested by his ex-firm, favouring his current firm. I cannot stop seeing a flashing sign telling me "conflict of interest" here.
Welcome to ICANN's model of multi-stakeholderism, where such behaviour is a feature not a bug. Here there is no such thing as conflict of interest affecting outcomes so long as the participants declare. That flashing sign has been in our collective faces since day one.
The ICANN design encourages vested-interests to drive policy with the power to compel the Board to accept their results, with the groups which exist to represent the public interest on the sidelines as toothless advisory groups. Only ICANN's dependence on governmental non-interference has it even listening to the GAC, where it relies on the GAC's need for unanimity to keep it from intervening in truly meaningful ways. The ALAC and SSAC don't even have that.
It should be no surprise to long-timers that this "inmates running the asylum" mode of operation leads to ever-increasing industry capture, especially when ICANN-the-institution is financially dependent on said industry.
At ICANN Studienkreis and elsewhere, Cherine Chalaby has been asking the community about the need for a fast next round, and the majority of people around the table, whether end users, businesses, registrars and established registries said they were not eager for an immediate next round.
We've heard this tune many times before. ICANN makes a pretence of asking for public input, then does what industry wants anyway. (After all, the industry is part of the public, right?) The levers of ICANN power are not being moved at Studienkreis or even in public view.
If ALAC is going to be solicited and ignored as usual, it ought to at least make some principled stands that demonstrate the shallowness of the consultation.
If there is no public good to be derived from new rounds of gTLDs, but instead a threat of more confusion and potential for user abuse that outweighs the fake claims of competition, SAY SO.
If ICANN is proceeding in its path without sufficient research into the needs of the future or the consequences of past actions, SAY SO.
(Or does ALAC risk jeopardizing travel/Summit/outreach/whatever funding should it say what truly needs to be said?)
Personally I remain against any namespace expansion until proper cause for new gTLDs (outside of "ICANN needs more domain sales") can be demonstrated. So I am loathe to engage in ALAC's typical bikeshedding, micro-policy advice that detracts from the necessary simple high-level commentary. However, if ALAC insists on continuing the path of fine tuning (and thus tacitly endorsing) broken ICANN policy, I offer the following comment based on my own experience:
Before talking about the need to prioritize Community TLDs, have a very clear idea what this means. We know that the industry does not have the same view of "community" as do public-interest advocates. So you could get the prioritization you want and still not be further ahead in actually achieving any desired outcomes. This is not a theoretical problem, we have already lived it once through the Applicant Support debacle.
From Sebastien Bachollet
I support in large part the comments of OCL
But it will be easier if we get the slide deck (I didn’t know why I didn’t get it - yet?)
All the best
From: Tijani BEN JEMAA
Justine, thanks again; This is another excellent piece of work.
I tend to agree with Olivier regarding the conflict of interest of Jeff. I attended the SubPro WG meeting in Barcelona, and Jeff said they are preparing fpr the new application process even before the whole consultation process finishes and before the final approval of the Board. I asked why the rush…. I find the Neustar proposal premature since it’s not yet decided if there will be successive rounds or a single open round. Their proposal of a phased round followed immediately by an open round gave me the impression that decisions are already made.
As for phased round, it might be a good thing, but I disagree with the order of the phases and their nature:
The community applications shouldn’t be combined with the generic ones
I agree that the first phase can be for the dot brand TLDs that are not geo names
The second phase should be for the community TLDs and applications supported by the ASP since we proposed that these applications should have the priority in case of string contention.
3rd phase for the geo TLDs
4th phase for the generic TLDs
But as I said, all this is premature and will depend on the content of the WG final report approved by the board (priority policy for community and supported applications, kind of application rounds, etc.).
Tijani BEN JEMAA
From: Marita Moll
I agree with the suggestions that there is an appearance of conflict of interest and that there is an apparent "pushing" of the dates fast forward. I believe, in our submission, we expressed caution about entering into a new round. Although the slides suggest a pent-up demand in the .brand category -- is there actually evidence for this?
That said, when a new round happens, this isn't a bad strategy. I like Tijani's reorganization of the phases though.
From Christopher Wilkinson
Good evening :
Many thanks to Justine and Olivier for taking this up. Allow me a few preliminary comments with regard to the so-called Neustar proposal.
Needless to say what follows relates to my understanding of the Neustar proposal, and not to Justine's presentation of it which is highly instructive for which I am grateful.
This appears to go back to Donna Austin's October (pre-Barcelona) article in Circle ID.
On page 3 of the slide deck:
We have both 'unknown level of demand' and 'issues of pent-up demand'- One or the other, but not both?
My understanding of the PDP's work to date is that there is NO expectation of an 'open round',_ever_.
Just imagine an open global round, all languages and scripts, all geographies, all national trademarks, all generic terms, etc.
I think that is just not going to happen.
I rather doubt that the ICANN Board has been so imprudent as to commit to the next round 'as expeditiously as possible'. (I would stand to be corrected!)
There is nothing new about a 'phased application process' which has been discussed in the PDP since months ago. There are however, indeed, significant differences as to what the phases, sometimes referred to as 'batches', should comprise.
The primary constraint on the phases is the ability of ICANN staff to undertake the evaluation of applications in a fair, transparent and professionally responsible manner. It has become clear that cannot be done 'concurrently'.
Turning to Page 4 of the Slide Deck:
- I see no reason to give .brands priority. The companies concerned already hold their well-protected trademarks and domain names. They will loose nothing from waiting their turn. (I also have doubts as to the ICANN community's ability to deal with .brands in IDN scripts, but that it another matter).
- Phase I should be designated for under-served categories from the 2012 Round.
N.B. Acquiring a .brand TLD should never become the basis for application for an ex-post facto Trademark.
- Geographic TLDs should constitute a dedicated 'phase', not necessarily the highest priority in time, since there are many unresolved issues. However, there is no agreement about this in WT5.
Furthermore, WT5 is also far from an agreement on 'clearly defined eligibility criteria', notably because of the persistent – but politically unsustainable – demand that non-geographical use should not be subject to prior authorisation. Also, future geographical use would be threatened by an 'open round' and eventual FCFS.
- to subsume community TLDs with generic TLDs is just asking for trouble. Particularly if auctions are allowed for commercial 'generic' applicants to 'buy out' community applicants.
- the slide does however implicitly recognise – perhaps inadvertently - that .brands, .geographicals, and .communities are NOT 'generic'.
Phase N+1: An Open Round?
As noted above, at present I would discount this possibility. I am sure, whatever happens meanwhile, that option will be revisited nearer the time-
More generally, there is a problem with the method of this GNSO PDP. It is not just a matter of possible individual 'conflict of interest'. There are aspects of this process which defy generally accepted principles of due process, bearing in mind that the process is intended to assign potentially valuable assets to new DNS operators. For instance:
- It should not be possible for the incumbent operators to determine the terms and conditions for new entrants;
- conditions of fair competition in the public interest require that Registries are normally independent of Registrars and that Registrars treat Registries on a non-discriminatory basis.
- policy should prevent undue concentration in this industry.
- even within the narrow confines of an ICANN community bottom-up policy development process, it is quite extraordinary that Donna Austin's original piece, now be elevated into a 'Neustar' proposal and presented by the Co-Chair of the PDP.
Regards to you all,
From Jonathan Zuck:
I wonder if, instead of taking the normative approach that Christopher has taken here, we think in terms of leverage. Does our support for such a proposal potentially create allies in the brand community (which are a growing number of the contracted parties) for some of the other things we want like a more fleshed out community round/process? Just a thought.
I appreciate Christopher’s thinking on this and don’t mean to be dismissive but I wonder if we’re missing an opportunity here.
From Christopher Wilkinson:
Jonathan: The Brand community (If that this is an appropriate characterisation, because it is NOT a Community in the sense of the new TLD programme) has already received extensive protection from the public authorities in the form of their trademarks' protection, as extended de facto through the DNS and UDRP. What more do they want?
How do you perceive an alliance with At Large?
My main priority - in terms of international perceptions - would be to do something (anything) to correct the gross imbalances arising from the 2012 round to which Evan has already referred. So, Phase One is the underserved categories from 2012.
Happy New Year to you all
From: Alexander Schubert:
In general there might be a value to the multi-tier application process. But I see a fatal problem: abuse of phase 1 or 2 to snag away generic terms! Abuse of phase 1 to snag away geo terms!
The paper references to the last round and claimed there was no “abuse” regarding brand applications. Well, how could there have been “abuse”? However: if labeling an application “brand” will put me in the pole position in 2019; you will see abuse a lot. Examples:
- .coin (blockchain based currencies)
- .ico (Initial Coin Offering: if you do not know what this is then you are born before 1990)
- .weed (this is worth 8 figures in U.S. Dollares: getting it at application fee would be the ultimate scoup)
If I knew that I could get any of these WITHOUT ANY COMPETITION – wow: having to run them as “closed gTLD” would be a small price to pay. Look how well “.us.com” (“.de.com”, etc.) sell: www.us.com, SEVERAL TIMES MORE EXPENSIVE THAN .com!! These are also kind of “closed gTLDs” (on third level). I would simply “lease” the “.coin” domain-usage to third parties – but I remain the owner!
Or “geo applications”? Same problem! If I want “.weed” – there are SEVERAL places “Weed” in the world! I don’t even need their consent (letter of non-objection) as they aren’t “cities”! GREAT! The same for “.coin”! And “.ico”! Look for yourselves at www.geonames.org – all place names that do NOT need letters of non-objection!
In other words: We would INVITE “fraudsters” to take generic and geo names in the 1st phase, or to steal generic names in the geo names phase! You find a “place” for almost EVERY generic term!
Here however why the overall Neustar plan might work (with a caveat):
ICANN could start to EVALUATE applications based on this tiered application plan! But no single gTLD can be designated until the last application from stage 3 is in! We MUST allow contention sets to form. In other words: If by Jan 12 2021 nobody else has applied for a certain string that has been applied for in the “brand phase”: they can contract ASAP as they have been evaluated a long time ago; freeing up capacities for phase 3 applications! Which would be good for them as that is an IMMENSE “fast track”. However: IF somebody would apply for the same string in phase 2 or 3: a contention set would form!
So the plan is GREAT – just nothing would be contracted before the end of the 3rd phase (and ONLY if there is no contention). The same is true for “string similarity”. If a smallish brand applies for “.shangai” and would be granted the application before the phase 2 starts, then Shanghai and it’s 24 Million constituents could NOT apply, if SHANGAI and SHANGHAI would be too similar (if this example doesn’t work, there will be others). Again: We need contentions sets and string similarities to form and fight it out!
Regarding the 3rd round: while it is part of the Neustar plan – that’s wholly independent. Right now we are planning the 2nd round. The 3rd round is completely independent from the 2nd round.
From Tijani BEN JEMAA:
Good point Alexander. Thank you.
Now, I change my position regarding the phased application round: I don’t find it fair nor relevant anymore.
From: Alexander Schubert:
Well, it still has its merits: “Brand applications” are fairly easy to evaluate, and if they are based on “true BRANDS” (which mostly bear non-generic terms like “YAHOO” or “BMW”) then in all likelihood there won’t be a similar or identical geo or generic-term based application in the 3rd phase! So by the start of the 3rd phase ICANN would already have evaluated all 1st and 2nd phase applications, and save for very singular events (or “fraudsters”) there won’t be any “overlap” (maybe between brand and geo as many brands are feeding from the good standing that cities have built over decades, centuries in some cases even millennia). So let ICANN have all the phase 1 and 2 applications evaluated already – but there won’t be ANY “contracting” yet: ONLY if there are no similar or identical applications in the THIRD PHASE the contracting can start ASAP!
Here btw another “fraud”-type of thing that would happen in the currently proposed Neustar model (if we would NOT wait with contracting until ALL applications are in, and potentially “late contentions sets” could emerge):
You probably remember that some “brands” thought it would be beneficial if they would “get hold” of “their” industry vertical! Examples being “.makeup” by L’Oréal or .cruise by Viking Cruises! .cruise is especially bitter:
There was a nice stakeholder group supported (think “community” – but “stakeholder”) application by “Cruise Lines International Association Inc.” (cruising.org = “Established in 1975, Cruise Lines International Association is the world’s largest cruise industry trade association”). I think EVERY SINGLE INTERNET USER would agree, that a “.cruise” by that association would have been PERFECT: a perfect match of the mission of ICANN! Cruise organizers could have registered domains for their companies and ships and cruises! Yet: Viking Cruises NEEDED to persist – and got the TLD! It’s in the root since over 2 years now! And there are ZERO registrations outside of the mandatory nic.cruise!
These guys applied in spring 2012. They had over 4.5 years of time in planning how to launch their gTLD! Now it’s sitting there since over two years – and no domains are available. Looks to me as they simply wanted to claim land – but never use it; never wanted to make it available to the cruise industry!
Guess what will happen in 2020? “Consultants” will squirrel around and call new media managers of multi-billion corporations and tell them: “Look: there is only one .dairy but you have a number of high profile competitors: stay industry leader and secure .dairy for a one-time lump sum price of $US 500k including 10 years of maintenance. We do EVERYTHING for you, including application, contracting, delegation, etc! Take it now: think LATER what you do with it!”.
Now if you have a phase 1 for “closed applications” (specification 13) for “brands”: COOOOOOL! Nobody has ever DEFINED what a “brand” is. Likely you do not have to proof the very existence of such “brand” – well: IF then a simply US $200 trade mark application will do the trick! We reverted the process: instead of having to proof that your brand is really “in use” we said: “If somebody signs spec 13: that’s enough”. And if you want to take a generic industry term “out of circulation”: Well, you just apply for it as “brand” – and you have it. You can then offer domains to resellers, friendly bloggers etc! Say you have the “.drone” and you are one of the big drone manufacturers: You allow blogs and brand-forums that are writing positively about you to use “.drone” domains, FOR FREE! If they do not comply: you shut them down. Nice. Do we want that?
“Brands” could get an early application window and through that an early evaluation. But NO CONTRACTING before the very last phase 3 application is in. IF there is a contention set: then it will have to be dealt with! Contention may result from identical strings, or SIMILAR strings (string similarity).
What I do like about Neustar’s idea is: Brands do not apply by themselves. They are triggered and consulted by 3rd party professionals. A brand application is essentially a “copy paste job” – with a bit bolstering here and there. Whereas if you go for a geo: Oh boy. Obviously the hardest are non-profit, public-benefit, stakeholder group funded, owned, policied, supported and marketed applications: It takes YEARS to bring them together. I work on one since 2016 now already. So let the consultants go to the brands and have them submitting applications already – and ICANN can already evaluate them! That gives the others time to sort their applications out – and apply later! It also “frees up” much needed capacities for later evaluations. In that respect: A good idea! BUT: contention sets have to have the chance to form – no contracting before the last application is in. If a brand is called “VEED” but somebody applies for “.weed” (and I can guarantee you: there are applicant for .weed): looks like string similarity – they will have to form a contention set.