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The call for the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues will take place on Thursday, 27 April 2017 at 21:00 UTC.
14:00 PDT, 17:00 EDT, 22:00 London, 23:00 CEST
For other times: http://tinyurl.com/hb4wjpb
Agenda:
1. Welcome/SOIS
2. Full WG Updates
3. Closed Generics
4. AOB.
Guest Speaker: Milton Mueller
Apologies: Alan Greenberg, Annebeth Lange
On audio only: Jim Prendergast
Slides
Notes/Actions:
1. Full Working Group Update:
-- Met last Monday and also will meet next Monday.
-- Went over our responses to the CCT-RT draft report.
-- Had two Geographic Names Webinars on Tuesday, attended by over 150 people. May have been 25 governments. Good first experimental call with members of the entire community, including the GAC.
-- The recordings, transcripts, and slides from the two geographic names sessions are available here: https://gnso.icann.org/en/group-activities/calendar#apr
-- Preparing for the face-to-face sessions in Johannesburg in June.
-- Drafting Teams are underway on some of the overall issues.
2. Closed Generics:
Work thus far:
-- Looked at a history.
-- Looked at what is a closed generic and what is the debate.
-- Looked at the pros and cons from the public comments.
-- This PDP WG has been asked to look at how to move forward, such as a compromise that could allow for closed generics that could prove satisfactory to those that see potential harms, such as competition, public interest, etc.
Comment of Some NCSG members to the Closed Generics public comment here: https://forum.icann.org/lists/comments-closed-generic-05feb13/msg00061.html
Milton Mueller, Professor, Georgia Institute of Technology School of Public Policy
-- Favored allowing closed generics.
-- Concerns: Idea of free competition among business models.
-- Opposition to closed generics from people who have interest in the current business model.
-- Closed generic -- owner of the TLD tries to manage what happens at the second level, such as a brand -- hotels.com for example -- to increase the value of the domain.
-- Important for consumers when you have indescriminate mass registration under a brand domain you could have consumer confusion. Not sure you would want to ban any alternatives to that model. Would be denying end users an option and forcing every registry to operate under the mass registration model.
-- Long-standing concern with freedom of expression: having ICANN decide what is a generic term.
-- Freedom of expression implies in the domain name system the ability of a domain registry to exercise some descretion who applies in their registry.
-- Why not allow both models to coexist.
-- There are generic names that have been registered that don't convey monopoly power.
Discussion:
-- If you look at TLDs from 2002 and 2004 rounds, and also 2012 these were all positive.
-- Could now see TLDs used anticompetively.
-- Example seems to be the lock-in potential, not of closed generics. Independent of closed generics problem.
-- Not sure you can raise the price for one domain.
-- How is that different from a generic or non-generic.
-- Problem is: why would we go through this exercise if we know that we are going to encounter the same bogus competition fears from the GAC that we got before? We need to figure out a way to make it acceptable to the GAC.
-- The GAC/governments would be trained in the concept of competition policy. Say that if they think there is a competition problem by delegating a closed generic let's see you apply local law and the measurement of market power.
Question: If we were to allow closed generics would it be possible to allow the national law to deal with the proposed harms being raised?
-- The NCSG is deeply divided on this issue.
-- You can't register a generic word under trademark law as a trademark.
-- Why put the community through this again?
-- The reason we are going through this again is because policy was never set on this matter so the Board has asked the PDP WG to consider it again and whether there needs to be a policy.
-- 2013 comments were very reactive to comments that were filed.
Question: Is there a way that someone could apply for a TLD proposing a closed model but also address all of the harms/cons?
-- It is incumbent on us to consider how those proposed harms could be addressed. Incumbent on us to at least address it.
-- We have raised a similar question in the CC2 comment.
-- Respond to the statement that the whole responded against closed generics -- not a groundswell. Correct that we can deal with this better in the current context. It makes sense to have a general policy. It is a matter of business model competition.
-- Can we have an example of a business model that would only work if the TLD is closed? Look at the NCSG member comments -- .hotel in which you select and organize the domain in a manner that does not allow anybody to register -- you have to meet certain criteria. Any sponsored domain operates that way.
-- For community applications you could apply as a TLD.
Michele Neylon, Blacknight Internet Solutions, Registrar
-- We noted the case of .cloud. It has been adopted widely by companies that operate cloud-based services.
-- Application for .blog where the only possible usage was on a specific platform.
-- If you look at it in terms of allowing people to register as active users.
-- It would be very hard to believe that anybody would have such a strong piece of IP that would give them an exclusive right to that (.blog/.cloud).
-- If .food was used solely for the Food Network it would be hard to argue against it but I wouldn't like it.
Discussion:
-- .blog option -- that you have to decide based on the platform.
-- It's about having a choice. The question whether it's a good choice -- the question is should ICANN dictate what business model you should be able to use.
-- If a trademark owner has a registration for a trademark it's not about closed generics anymore.
-- The Pros/Cons documents needs a "GAC Management" Section. Otherwise, we are just driving ourselves off the same old cliff.
-- There are people looking at this. It is an important issue.
-- Not sure that saying a decision that came after the Board's decision should govern the policy discussion now..
-- Didn't have time to go through all of these statements. Need to capture all of the pros and cons that have been said.
