New gTLDs with Board Wednesday, 16 March 2011 ICANN Meeting San Francisco, California >>PETER DENGATE THRUSH: Good morning, ladies and gentlemen. Could you take your seats please. We're ready to begin. Thank you. Ladies and gentlemen, welcome to the second public consultation session on new gTLDs. For those of you who haven't received the news, we've sent a message around last night saying we would like to shorten this session, that's so that the board can carry on working on the response to the GAC scorecard and be -- and preparing actual resolutions for tomorrow. So on the other hand, we still want to hear from the community. We asked the AC and SO and constituency leadership if they could prepare material, particularly in relation to the 1B statements, and I'd open the floor now to discussion from that community leadership on any of those topics. Please come and use the microphones here and here. And if you have written statements, we're very happy to receive those. If you could just perhaps give us a short summary of those at the microphone. There's no need and absolutely no advantage in simply reading out the prepared statements. We will get those, we will read them, and they will be posted. So the ever-fresh new gTLDs. And if there isn't any public comment, then we'll be able to close this session even more quickly than we thought. >>AMADEU ABRIL i ABRIL: Just a clarification, Peter. >>PETER DENGATE THRUSH: Amadeu. >>AMADEU ABRIL i ABRIL: You're asking for only comments from SOs and organized, as we call it, groups within the -- >>PETER DENGATE THRUSH: If I give a -- >>AMADEU ABRIL i ABRIL: Okay. Yes. >>PETER DENGATE THRUSH: Just to start with, Amadeu, if we could have prepared community statements first, that's helpful. If not, we're very happy to go to the community. And the indication is -- We focused on the first session on the 2s, the areas of -- where we look having the greatest difficulty with accepting the GAC advice, although we didn't restrict ourselves to that, and in this session we want to make sure that people have had the opportunity to comment on the 1B areas. Those are the ones where we said we agreed in principle but needed further time to discuss mechanisms and implementation. So Amadeu, if you did want to say something about the scorecard, now would be a time. Oh, I'm sorry. Marilyn. >>MARILYN CADE: He doesn't know who I am. >>AMADEU ABRIL i ABRIL: Sorry. >>PETER DENGATE THRUSH: Marilyn, please go ahead. Sorry. >>MARILYN CADE: Thank you. My name is Marilyn Cade and I'm the chair of the business constituency and speaking on their behalf. I'd just like to open my comments briefly again by noting with appreciation how much the constituency that I represent appreciates the opportunity to have these exchanges. And I will take the opportunity to note that we are very pleased with where we are and we hope that this is a lesson we've learned and in the future if we find other initiatives that take -- that might benefit from earlier approaches like this, that we would all start earlier to move that forward. The challenge I face now is that many of my comments were commingled on behalf of my constituency, so I will be repeating a very few, just to emphasize those. On 4.2, which is a 1B, the requirement that new gTLD applicants provide information on expected benefits of the proposed gTLD as well as information and proposed operating terms to eliminate and minimize costs to registrants and consumers, I made a statement on our behalf that we do believe that applicants really must be able to explain the audience that they intend to be their registrants, and we also believe that they should be able to describe how they will be, if they are a community-basing -- a community-based TLD, how they will avoid registering those who are not qualified to be in their TLD or do not fit the community, and then we also would like them to describe in detail the actions and programs that they will engage in which will curtail defensive registrations and make sure that the registrations are not maliciously used. And we do think that applicants should be able to describe that. That may include describing how they are going to comply with a mandatory, we would like, sunrise and trademark clearinghouse. It may include other such programs. >>PETER DENGATE THRUSH: Thank you, Marilyn. Let's come back to this side then. Avri Doria. Well, I think Amadeu has conceded that we should hear from the community representatives first, so thank you Amadeu. Avri. >>AVRI DORIA: Thank you. On several of the 1Bs, are we going through all of the 1Bs now, because we -- as opposed to having a statement just sort of specific "On number 1" -- which was a 1B -- "there is this comment" and such? So should I like read the first one and then come back later or should I try to go through them? >>PETER DENGATE THRUSH: I think if you just -- while you're there, Avri, you just work your way through and that will be the quickest and easiest for you. >>AVRI DORIA: Okay. >>PETER DENGATE THRUSH: So if you're going to be more than two or three minutes -- >>AVRI DORIA: I'm not going to be all that long. >>PETER DENGATE THRUSH: -- I was going to say you can sit down, if you like, we'll can take a note of the order if there's -- >>AVRI DORIA: Yeah. And one thing, when I say the numbers, I have them all on a list here, and I may have a 1A in the midst of my 1Bs, so when I say the number, if it's a 1A and you don't want to hear it, tell me. Otherwise, I will just go ahead or -- >>PETER DENGATE THRUSH: Well, you have the floor. I think -- >>AVRI DORIA: Okay. Thank you. So on number 1, the -- on 1, the NCSG did not agree with the staff designated rename, calling it the limited public interest objections, and we remain very sportive of the rec6, one of the recommendations -- it wasn't the consensus recommendation, but it was one of the strong recommendations -- for calling these issues "principles of international law." And so we recommend that that name be reconsidered in terms of this section, to sort of really root it in what is supposed to be fundamental in making the decisions on these issues of principles of international law. So that was Number 1. Then there was a comment on 2.2.4 where there was a wording issue and options, and we were recommending the wording "material detriment to the targeted community." And I believe I have sent these through to both the GAC and the board, so you'll have them, too, so I think I've sent -- I think I've done that. On 4.3 -- and I believe this may have been a 1A; I'm not positive -- the NCSG just wants to caution that the process might be at the cost of innovation. So what you're looking at as a solution we fear might threaten the innovative processes that people might want to engage in. Number 6.1.2, we just wanted to point out that the GAC position runs against the recommendations not only of the GNSO but the IRT and the STI, and so it was pretty fundamentally against the recommendations of the community as we understood them. We agreed in 6.1.3, the NCSG, it's impossible to set objective and fair criteria for determinations as indicated in 6.1.3; that that just is not something that can be done and to attempt to do so would take us in the wrong direction. On 6.1.4, the NCSG was understanding both sides of the issue and shared the concerns of the board of trademark owners grabbing easy trademarks and gaming the system, so the mechanism must be addressed. We don't, unfortunately, have a recommendation for a mechanism for you, but just feel that this is essential because otherwise the system will get gamed with quickly procured names. >>PETER DENGATE THRUSH: Sorry to interrupt. Do you have any difficulty with the way we've suggested this? That everybody has to prove use? >>AVRI DORIA: No. >>PETER DENGATE THRUSH: No. >>AVRI DORIA: We agree with use. >>PETER DENGATE THRUSH: Thank you. >>AVRI DORIA: We're just reiterating, again, our support of the JAS working group and we did want to make one recommendation to the JAS working group and to the board in terms of one of the responses to the GAC where the GAC was basically requesting that the JAS reconsider its recommendation in terms of countries not being qualified company -- country supported applications not receiving any aid. And our recommendation was that perhaps they look at the list of the least developed countries, and that matches the GNSO recommendation, indicating in other places that least developed countries may be due special considerations. >>PETER DENGATE THRUSH: Can you give us a paragraph number for that point, please? >>AVRI DORIA: That part was 10.6. >>PETER DENGATE THRUSH: 10.6. >>AVRI DORIA: 10.6. >>PETER DENGATE THRUSH: Thank you. >>AVRI DORIA: And 11.1, we wanted to reiterate our concern in several places about the definitions of "criminal behavior" and that very often acts of freedom of expression and freedom of association are, indeed, deemed to be criminal behavior, and so therefore think any conditions of criminal behavior need to be constrained by signed international covenants of civil and political rights that stem from the Universal Declaration of Human Rights. While the human -- while one is not binding and overall, things like the International Covenant on Civil and Political Rights is indeed a signed treaty and does constitute international law. And then we had one concern that applied to several, and it applied to 2.2.5, 8.1.1.1, and 8.1.4, and this will be my last on this. While the NCSG has not taken a position on whether the GAC should be exempt from paying the fee for making an objection, the NCSG supports the following: One, whenever an objection is made on the basis of fee exemption, the applicant must have a similar fee exemption for their response. And two, that there should be a review done after the round on the effect of these free objections. But the first point is really quite critical to us. If applicants - - I mean if objections can come in without any restriction on fee, then it's just very unfair to require that the applicants would have to respond to them, because it is, in a sense, an easier way to make an objection and there may be more of them with that sort of provision. Thank you. >>PETER DENGATE THRUSH: Just on that last point, Avri -- >>AVRI DORIA: Uh-huh. >>PETER DENGATE THRUSH: -- have you thought about what that's going to do to the cost of the application? I mean someone has to pay for this. These objections cost about 50 to $75,000 each, so this is not trivial when we talk about a free ride in the objection process. >>AVRI DORIA: No. I understand. And that's what I'm saying. We haven't taken a position on whether there should be a free ride for anyone. What we are saying is if a free ride is given to anyone, then it should be given to both sides in the issue. >>PETER DENGATE THRUSH: I understand your point. >>AVRI DORIA: And in terms of the fees, in other contexts we've certainly looked at the fees and seen various reserve funds, seen various legal protection funds for the future, et cetera, that we think could provide those funds quite reasonably, if one actually looks at the internal structure of the fees and looks at what -- what's really appropriate, especially when we're talking about something that has a government challenge or such. >>PETER DENGATE THRUSH: Okay. Thanks very much. >>AVRI DORIA: Thank you. >>PETER DENGATE THRUSH: Is there another constituency or SO position? Yes. >>AMBER STERLING: Hi. My name is Amber Sterling and I am the chair of the proposed not-for-profit operational concerns constituency within the NCSG and represent, in some ways, a minority view to Avri's comments that she just made. I'm going to limit my comments to Section 6, and the one, too, I'm hoping to discuss is Section 4-point -- or 6.4.4, the vetting of certain strings. The example given in the scorecard was dot bank and dot dentist. Not-for-profit organizations, these extensions for us that we would wish extensive vetting be done before extensions such as dot donate, dot give, dot charity. We feel that they have a tremendous value and also a tremendous potential for harm. And we're not saying don't use those extensions; we're just asking that much care is given to the reviewing of that application and the applicant itself, which I guess speaks to Section 4.0 as well. And this also raises the issue of the second-level extensions. If - - insert your favorite charity plus your favorite city -- dot donate, the second-levels are important to us as well. And so for the trademark clearinghouse and the uniform rapid suspension, we ask that in Section 6.1.7.1, that the trademark clearinghouse continue after the launch, because there is no way to continue the example Debra Hughes gave on Monday for Red Cross, that she could ever register Red Cross dot every city that could ever have a natural disaster dot donate, or insert any extension at that point. And so we hope that the trademark clearinghouse, while clearly will never be perfect, will provide some level of protection for those names and keep the on-line world safer for donations and collecting of money and the continuation of the works that nonprofits do. And I think I will end it there. Thank you. >>PETER DENGATE THRUSH: Thank you very much. And there's more on this side. >>KARLA VALENTE: Hi. This is Karla Valente from staff speaking on behalf of remote participants. Just to let you know that the NCUC is preparing a supplementary statement to the NCSG scorecard that was presented on Monday. They are working on that right now. They will try to make it for this session but if not you're going to receive something soon. >>PETER DENGATE THRUSH: Thank you very much. And written statements, of course, always well received. Mason. >>MASON COLE: Good morning. Mason Cole speaking for the registrar stakeholder group. I have two general statements and then some specifics on sections of the scorecard. It's important that the contemplation of various protections consider implementation burden and cost. Consultation with registrars about how systems are put into place will inform the community in advance about whether -- whether or not those envisioned systems can actually achieve their desired outcomes. We believe the guidebook, however, can be approved now and implementation details can be resolved as we progress. Further, we encourage the board and the GAC to consider the issue of cost impacts on media applicants and consumer costs. The more that's added to the guidebook in advance, the costlier it will be to consumers. Ongoing IP claims could be very burdensome. We have specific feedback on sections of the scorecard we believe will increase consumer costs during the introduction of new TLDs. A general comment on trademarks. We do support the board's endorsement that the -- of the community consensus position as reflected in the consensus on the STI report, which was unanimously approved by the GNSO Council. Rights afforded to trademark holders should be based on some form of legitimacy of the mark. Now, I have a clarification statement, if I may on 6.4.4. We commented on that two days ago. I want to make it clear the registrars position on this. The current applicant guidebook has a high-level vetting which should be used for every string. Our input is that more intensive vetting should not include additional evaluation criteria. Now, our specific feedback on four sections of the scorecard. The first is 6.4.2. >>PETER DENGATE THRUSH: Okay. Just keep the -- give -- slow down a little, please. Thanks. >>MASON COLE: Oh, I'm sorry. Of course. 6.4.2, with regard to law enforcement. We believe any assistance must be in compliance with applicable law in the jurisdiction where the registry operator is located. We further support the board's position and are committed to working with registries and law enforcement consistent with the recent law enforcement meeting that we held in Brussels. 6.1.7.2, which is the cost of the trademark clearinghouse, we support the board's position. Trademark holders and registries are appropriate for bearing the cost of the trademark clearinghouse. On 11.2.1, weighting of applicants, we support the board's position here. Registrars would be opposed to categorization of strings. And finally, on 11.3, which is the addition of domestic screening services, we support the board's position and further confirm our position that intensive vetting is already required by the guidebook. Therefore, additional screening is duplicative and an unnecessary expense. I'll be submitting this in writing as well for the board. And that's our input. >>PETER DENGATE THRUSH: Thank you very much. >>MASON COLE: Thank you. >>PETER DENGATE THRUSH: Appreciate that. Next. >>CONSTANTIN TOENZ: Good morning. I am Constantin Toenz representing the noncommercial users constituency. Just two things. The first one has to do with default, and we would like to say that we see the board trying to strike a balance between the GAC's recommendation. We would like to point out that default should not be and cannot be based on the presumption of guilt. And we would like to possibly -- we would like to express our concern that for those domain names that on their face appear to be in favor of free speech, that the examiners should be given the discretion, at least, to consider that even in the case of default there might be a free speech issue that can be -- that should be upheld. And finally, in the issue of the trademark clearinghouse incorporating all types of intellectual property marks, we would also like to say that the original scope of the trademark clearinghouse was just to include trademarks and that the board appears to be also thinking in the same lines. Thank you. >>PETER DENGATE THRUSH: Sorry. Can I just ask a question -- >>CONSTANTIN TOENZ: Yes. >>PETER DENGATE THRUSH: -- and really understand what you mean by "in the case of default, the examiner ought to be allowed to consider that there's a free speech issue." So is the example something like you've read someone's registered "Nokia sucks" -- >>CONSTANTIN TOENZ: Yes. >>PETER DENGATE THRUSH: -- or "I like Nokia" and Nokia -- I apologize to Nokia. I'm just using them as an example, they attack that and there's no there's no defense? >>CONSTANTIN TOENZ: Yes. I mean if on their face, because the default might be for various reasons. So 14 days is not enough for the respondent to respond to the complaint in any case, so we believe that if on its face the domain name appears to be free speech the examiners should be provided with the discretion to at least consider that this might be a free speech issue. >>PETER DENGATE THRUSH: Okay. Thank you for the clarification. >>CONSTANTIN TOENZ: Thank you. >>PETER DENGATE THRUSH: Chuck, welcome back. >>CHUCK GOMES: Thank you, Peter. Speaking on behalf of the registry stakeholder group in place of our chair and vice chair, I'll be very brief. Our detailed comments were submitted yesterday, and my understanding is they're posted. We, in our all-day meeting yesterday, went through all of the 2s, several 1As and 1Bs as well, and I encourage people to read those and see our comments. They're a little bit lengthy, but I think they're easy to read because we show the context and we try to provide rationale in many cases for our position. And I'll just leave it at that. >>PETER DENGATE THRUSH: Thank you, Chuck. And thank you for those written comments. Marilyn, Round 2. >>MARILYN CADE: Thank you. I'm going to -- I realize that we're not giving our comments in any particular order, but I will reference the number that my comment relates to, and that is 10.5. On Monday, on behalf -- my name is Marilyn Cade, for the transcript. On Monday, I noted that the -- for languages whose presence is limited on the Web, we feel that this does make them in special need of support, and therefore we suggested that the BC could support fee reductions. We also said that we do not think that the technical or business requirements should be lowered because we do believe that registrants, in particular, deserve high-quality service. I'm going to make an extended -- an extension to that statement now. We believe that the recommendation of a variety of support mechanisms and resources could be offered to such gLT applicants -- that is, those who are addressing languages who have limited presence on the Web -- they could include the fee reduction for additional versions of the applied-for string in IDN scripts and other languages, which, in essence, would enable that applicant to serve not only ASCII users of such languages, but, even better, serve other scripts as well. >>PETER DENGATE THRUSH: Okay. Thank you, Marilyn. Any further constituency, SO, AC positions? If not, let's throw the microphones open to the floor and have other speakers. Antony. >>ANTONY VAN COUVERING: Antony Van Couvering with Minds + Machines. I'm happy that the GAC produced a scorecard. I think it's very useful and I think many of the comments are considered and helpful, but I think we need to remember we have an ICANN scorecard as well, and this consultation process that we're engaged in is supposed to be timely and efficient, and I encourage the board and the GAC to remember their duties under the bylaws and fulfill them. Thank you. >>PETER DENGATE THRUSH: Thank you. I can assure you the board is aware of the bylaw requirements. Amadeu. >>AMADEU ABRIL i ABRIL: Good morning. I have first, if you'll allow me, a question for you, Peter, because many of us are a little bit confused. Is this part of the consultation process established as a bylaw or something that's previous to the statements that lead to the consultation process? >>PETER DENGATE THRUSH: This is part of the bylaw consultation process. >>AMADEU ABRIL i ABRIL: Thanks. Because we are getting different messages from different sides of the discussion. Then if you'll allow me, I have just two general comments on, you know, what we need to achieve here. Let me say that I understand and can support all of your positions regarding the GAC scoreboard. Nearly all. I think me and most people understand also the concerns of the GAC, and we support them. So it doesn't fit. Everything that Marilyn or Robin or Chuck or Avri have been saying today and the other day is absolutely rational and perfectly logical and makes complete sense, but still we need to achieve some sort of consensus. So let me tell you something. Today is the seventh anniversary -- being March 16th -- of the closure of the last proceeding we had for new TLDs. The 2004 sponsorship round. For the last seven years, we have been waiting for the procedure. And in 2000, we sacrificed output in the name of, you know, not solving the problem. You know, there are many things not yet resolved. Let's do something very limited, an experiment -- six, seven, maximum ten TLDs -- and then, you know, we can handle that and people accept it, because the (inaudible) was limited. Even so, we were changing in a room like this one two strings from dot Web to dot info, from error to aero really on the fly -- and dot aero on will be happy about that. That's sort of a stupid joke. In the very last minute when they were really approved. In 2004, we said "Well, we learned from the -- from the mistakes." 2003, sorry, was the RFP. "So we won't do these things." All 10 -- only the two that were rejected were done so according to the RFP. For all the rest, there were behind-the-scenes changes after the evaluation happened. Why? Because we could not foresee everything. I'm not blaming the board or the staff or the community for being realistic. Then we have the -- now, with your board, this new side of bylaws with these procedures, with all that they have learned in 13 years. We have the IDN ccTLD and we have some rules. And then we have some panel decisions that all only can be understood as behind the scenes rule thinking that something in the rules was wrong and deny anything on principle, not on the concrete example for -- you know, in the concrete -- confusion of Cyrillic or (inaudible), two letters, which might be correct, but it came after the decision. So now we are saying we have consensus and we cannot compromise on that, and we cannot allow, you know, expost, after sending the applications, renegotiations or people raising their hands or something like that. What I'm saying is that, first, I support what's in the DAG and, you know, the STI, IRT, like many others, because it's a workable consensus, not because I think that I have any religious position on whether -- who said that -- sunrise and IP claims should be cumulative or alternative. I have an opinion but I think that having a process is more important than my personal opinion. This doesn't break the consensus. And if we have consensus in the policy sense but the governments keep saying that they don't agree, we don't have consensus in a material sense even if we have that, you know, in a formal sense. So my request to the board is that besides analyzing each concrete point, just take a breath and think whether defending the consensus in each and every point and not allowing a test in some sort of mechanism will make that we break the institution for, you know, spending two more years without being able to achieve one of our fundamental and foundational goals: Creating a stable process for creating new TLDs. So my recommendation is, this time we don't compromise output. We don't say, "Just seven, just one test, only that Amadeu likes, only those in IDNs, only those for cities." Instead of doing something very limited like this, let's do a process that doesn't (inaudible) output but has a compromise on procedure. The board takes on a commitment to accept and evaluate in a specific way requests from not just the governments, ALAC, trademark constituency, any established house, that they have expost when they see that despite all our efforts, something unexpected happen. Thanks a lot. >>PETER DENGATE THRUSH: Thanks, Amadeu. There was a lot in that. Let me just assure you that the board is very conscious of the need to defend and then sees its role, in fact, precisely the way you put it in terms of defending the consensus that the community has put, and you'll see that's reflected explicitly in a number of our -- where we've put a 2 against the GAC advice, particularly in relationship to some of the intellectual property matters where there's been a very well contested process including the, you know, IRT and the STI, et cetera. Kristina -- >> I'm sorry to interrupt but may we request that you speak a little lower. Our scribes and our interpreters are having great difficulty understanding. Thank you. >>PETER DENGATE THRUSH: Thank you. I'm sure the New Zealand accent is also a factor there that has to be taken into account. So, yes, so let's get that first point. And secondly, I think there's no sense at all, in my reading of the board, Amadeu, that they're ready to sacrifice the principles just to get some kind of new gTLD program underway. In other words, there's no sense that we'll say, "Well, let's just do the IDNs or let's just" -- the idea is to build a comprehensive program according to the GNSO policy that we were given, so I think you can rest assured on that one. I'll come back to the others when I record them. Kristina? >>KRISTINA ROSETTE: I am actually speaking on behalf of the IPC with regard to the 1B. And I apologize for not having the document available for the moment. I do want to emphasize, however, that this is a draft position. Given the time constraints we've been under, we've not yet had a chance to go through our formal approval process. So it is, of course, subject to change. But, if I can borrow a phrase from the board, it's our best current thinking on 1Bs. So, with that said, with regard to 6.1.1, we agree with -- we support the GAC's position with regard to the inclusion of all types of intellectual property rights. And I think part of what might be the problem here is making sure that "all types of intellectual property rights" is sufficiently and clearly defined. From the perspective of the IPC, the intent here would be to allow a registry operator that's organized in a country that provides I.P.-type rights to certain -- for example, German law protects literary titles. So, if, for example -- and I apologize in advance to them -- if the operators of the dot Berlin registry want to allow owners of Germany literary title rights to participate in their RPMs, that the clearinghouse should be able to accept the documentation required to support the -- demonstrate the existence of those rights. It should, of course, be optional. With regard to the date cutoff in 6.1.1, we would actually suggest that the board and the GAC take a look at the date provision that was put forth in the IRT report, because we think it might be a good compromise. We understand the concerns of the board about gaming, and we understand the concerns of the GAC about having a sufficiently specific date. So what you would require is that with regard to national and supernational registrations, the relevant dates would be a registration that issued on or before the date of the relevant registry agreement and that was applied for before the date that ICANN published the list of gTLD applications received for that round. So by cutting -- setting it both ways, you avoid gaming with people waiting to see what strings have been applied for. But you still allow sufficient time to take into account the fact that trademark registration processes in some countries can take some time. With regard to -- scrolling down, I apologize. It's the whole trademark scorecard I'm working from. With regard to 6.1.4 -- and this is just building on the statement that the IPC read the other day -- that we believe that no use requirements should be imposed, that requiring proof of use is inconsistent with the trademark laws of many countries that do not require use to be a prerequisite to registration. And, in addition, the level of expertise that would be required to meaningfully examine evidence of use for the clearinghouse will be significant and beyond the scope of any existing potential service provider. If the evidence of use will not be subject to meaningful examination, it's our view that there's no point in requiring it. With regard to 6.1.7.2, it's our view that registrars will benefit from the cost savings that are attendant with the operation of the clearinghouse and will be required to use it. Unless, of course, the board is now taking the position that registries are not required to use registrars. And in that event, because they will be required to use it and will benefit from cost savings that they would otherwise be required to incur, on a sunrise-by-sunrise basis, we do believe that they should help bear some of the cost. We do believe, however, that the principle costs should continue to be borne by the other parties. But we do think that there should be some contribution. Many of the other 1Bs that relate to references to what had been substantive examination and use, I'm just incorporating by reference some of our previous positions. With regard to 6.2.5, we support the board's position. We believe that it -- in the event of a default, that the examiner must examine the merits of the complaint on its face. However, we do not think that the examiner should be required to imagine defenses for the defaulting respondent. >>PETER DENGATE THRUSH: Kristina, to interrupt, what's your reaction to the comment earlier that there could be a limited -- a single example where that might apply would be to look for a free speech opportunity or an occasion for free speech. >>KRISTINA ROSETTE: My initial reaction is that, in the event where there is, in fact, a legitimate defense available and the respondent defaults, it would be incredibly difficult for a complainant to demonstrate the requirement and meet the requirement that the respondent had no right or legitimate interest. I would think that, in those instances, it would be so clear on its face that it would be difficult for the complainant to meet that burden. >>PETER DENGATE THRUSH: Okay. Thank you. >>KRISTINA ROSETTE: That's my personal opinion. >>PETER DENGATE THRUSH: That's helpful. Thank you. >>KRISTINA ROSETTE: I think that might be all of the 1Bs that we haven't previously covered. To the extent there are others, once this statement is finalized, we'll be sure to -- and submit it directly to the board, or where should it go? >>PETER DENGATE THRUSH: I think if we go back to the message from Kurt that you're responding to -- >>KRISTINA ROSETTE: Okay. >>PETER DENGATE THRUSH: Kristina, can I just take you back? I didn't quite catch the point you were making about use, the requirement to submit use. >>KRISTINA ROSETTE: Sure. >>PETER DENGATE THRUSH: The suggestion is that -- or can you just say what your point is? I want to be clear that everybody understands that we're saying that even in those jurisdictions where there is substantive examination for use, we're still going to require provision of use. >>KRISTINA ROSETTE: We're coming at it from a different angle. And we have two concerns about it. The first is that, whether this is the intention or not, the message that is being communicated by requiring proof of use for owners, registrations issued in countries that do not require use to obtain a registration and assert trademark rights that ICANN is essentially saying that we believe some trademark registrations issued by some countries are more valuable than others and that, if you don't have use in your registration process, we think it's so important that you have to have it. So there's that concern and the more philosophical concern, I guess you could say. From the practical perspective, it seems to us that, in order to have a meaningful use requirement, you are going to have to have various detailed requirements as to what type of use is acceptable, and you're going to have to have specifically trained clearinghouse examiners, for lack of a better word, who are able to make a sufficient distinction between this is, in fact, a legitimate specimen of use showing the use of the mark in commerce in connection with the goods or services or, no, this is a sham. And if -- and we don't think, frankly, that there's any service provider out there now that can do that, unless you're going to start hiring examiners from the trademark offices of the countries that require that now, which seems unlikely. And, if you're not going to have a meaningful examination of that evidence of use, why bother? >>PETER DENGATE THRUSH: Okay. Just in response to the third -- I think we can deal -- we understand the second point. The first point is, in fact, the other way around. What we're saying is the opposite. We're not going to engage any examination of where the registration comes from because every single one of them is going to have to have use. It doesn't create second class citizens among registries -- trademark registries at all. It treats them all as equal and requires every applicant to provide use. >>KRISTINA ROSETTE: I understand that perspective. I think it just comes down to the perception that the message that ICANN is communicating is that registrations from countries that require proof of use in examination are -- because, essentially, it will be easier for registrants -- owners of registrations from those countries to comply because they will de facto have already done it. So that's the perspective we're coming from. I think we just have to agree to disagree philosophically on this point. >>PETER DENGATE THRUSH: People from those registries who have got through it once are going to have to go through it again in the clearinghouse. >>KRISTINA ROSETTE: As a practical matter, probably not. >>PETER DENGATE THRUSH: No. I'm telling you as a practical matter they will. They will be able to file a submission of use. >>KRISTINA ROSETTE: They will already have it easily accessible. >>PETER DENGATE THRUSH: Ah. That's different. Okay. >>KRISTINA ROSETTE: Speaking from experience, it's often -- even if a mark is widely used, it's difficult in some instances to find an sample that meets whatever the requirements are. And that's when you get into the meaningful examination concern. >>PETER DENGATE THRUSH: Thank you very much. Thank you very much. Steve? Question from Rita, who's the board's topic leader on I.P. issues. Rita? >>RITA RODIN JOHNSTON: Thanks, Peter. I probably could have used this mic last night, actually. Kristina, I'm trying to figure out -- J. Scott gave a statement the other day. Was that just your IPC statements on number 2, and now this is your best current thinking? I'm really conscious of where we are in the process. We need to get people's statements and finalize. So I'm trying to understand what this statement is meant in addition to one we got sent to the board a day ago or two days ago? >>KRISTINA ROSETTE: Ultimately, what we're hoping to give you is one that covers everything. But the statement that J. Scott read was addressing those points that were number 2s that were among the IPC's top priorities. There were number 2s that we do not believe -- in terms of the must-haves, those were not among them. I mean, we did cover almost everything. But I think that there were a couple number 2s that, because of ongoing clarifications, may not have been covered. So this is really the 1Bs. This is limited to the 1Bs. >>RITA RODIN JOHNSTON: Are we supposed to read what you sent us or wait until we get something else? >>KRISTINA ROSETTE: I would read what you have until you get something else. Unfortunately, our process -- we have a formal approval process. A lot of people are currently in transit. We're not in a position to make any promises we can get that done in the next eight hours, but we're doing what we can. >>PETER DENGATE THRUSH: Steve? >>STEVE METALITZ: Thank you. Steve Metalitz. First, I just want to make a comment about -- on behalf of coalition for online accountability on item 11.5, which is a 1B, dealing -- it's stated in the form of amend the statement that the results of due diligence efforts will not be posted to a positive commitment to make such results publicly available. This has to do with due diligence on applicants. I think the board has raised some privacy concerns on this. And I just wanted to emphasize what I think I heard in the meeting yesterday from the U.S. representative to the GAC, which was that, at a minimum, this issue should include a public disclosure of the officers and principal shareholders of applicants. I think this would, of course, reduce or minimize whatever privacy concerns there were with publishing the results of a background check. And someone who is applying to -- excuse me -- to run a new gTLD, I believe I'm correct that, in all the previous rounds, the directors and principal shareholders were publicly disclosed. So I think this is very important if the public is to provide any assistance to ICANN and to the evaluators in evaluating the fitness of applicants. Because I'm sure we're going to -- again, if you look back at most of the previous rounds, the applicant was a special purpose corporation or partnership. You know, a lot of these entities did not really exist prior to making the application. So, if the applicant for dot widget is dot widget, LLC, or some dot widget limited partnership, that doesn't really tell us anything about who would be operating as a TLD. So I would hope that, in considering 11.5, that the minimum standard that I believe the U.S. representative articulated of making public the officers, directors, principal shareholders, that that would be made public in a timely fashion so that the public can assist in this process. Thank you. >>PETER DENGATE THRUSH: Thank you, Steve. The board is pretty comfortable with the concept of publishing the names of people behind the companies. What we're not going to be doing is publishing the results of the due diligence inquiries into those people. >>STEVE METALITZ: That's why I wanted to make that distinction. I think the minimum position -- the first part of what you said is -- would be very beneficial. >>PETER DENGATE THRUSH: Okay. Thanks very much. Yes? >>ANN AIKMAN-SCALESE: Hello, my name is Anne Aikman-Scalese -- that usually comes out wrong. To disclose background and biases, I'm a private practice attorney in Tucson, Arizona, with Waterfall Economidis. I'm a fairly recent member of the IPC but do not speak on behalf of the constituency. What I wanted to say -- I have, first of all, a process question. One of the great joys in my trademark practice -- and, hopefully, I'm one of the good ones, but we'll see -- is a wide variety of clients. I have clients ranging all the way from a Fortune 150 defense contractor to a major university to artists, both successful and unsuccessful, to small business ventures to community access television. And one thing that these clients currently have in common is they don't really understand all the 1As and the 1Bs and the 2s. And so I'm very hopeful that there will be -- I'm sorry to say for those in the room who are quite frustrated by this, I'm very hopeful that there will be another opportunity and comment period on the final public guidebook so that I have the opportunity to finally adequately explain all these 1As, 1Bs, and 2s to my clients. I would also say that a common denominator among these clients is that they would benefit greatly from an ongoing IP claims notifications service. And I just want to echo the comments of the Red Cross and the proposed nonprofit constituency with respect to the fact that launch is not the only relevant period for that ongoing I.P. claim service. Then I guess the last thing that I'd like to say is I believe that in the GNSO meeting the other day, one of the registrar representatives made a very astute comment. And that was that, whether or not we all want to admit it, we're in the process of regulating an industry. We've all been involved with industry regulation and its problems, its benefits, its detriments. But I honestly feel that self-regulation is preferable to forcing governments to regulate us. And I would really appreciate, to the extent that ICANN would see itself as a holder of a public trust -- I mean, I do think there's an analogy here between control of international communication systems and what happened in the United States with respect to the public airwaves of television. So I really encourage you to take on that mantle of being the self- regulatory body and let's not force the governments to do it. Thank you. >>PETER DENGATE THRUSH: Thank you. Amadeu, I remembered what your other question was. You asked, first of all, whether there is the bylaws consultation. I think that's -- there isn't actually anything in the bylaws that requires a consultation. What the bylaws require is that the parties try in good faith and in a timely and efficient manner to find a mutually acceptable -- so this is the timely and efficient manner. There are many parts to the manner. There's been the exchanges of paper and the appointment of topic leaders and the Brussels consultation and the getting together to try to resolve the issues. There's not going to be at some stage like a trial or some other sort of thing. So this is the manner in which that we are attempting in a timely and efficient way to resolve the issue. Are there any other comments from the floor? If there aren't, let me close by saying thank you very much. Although it's been some time, the people who have been around long enough will recall that I, too, was once a chair of a constituency in what was the DNSO. And I know what it's like at an ICANN meeting to get your group together to face another set of documents, to analyze them, to pull together a position, to get consensus among yourselves, get it in coherent form, and then come forward and have to do it again two days later. So I acknowledge the effort and thank the groups for all the work that's going into this. Let me also say that the board and staff are doing that exactly as well. So there's an awful lot of activities going on here to try to come to grips with these issues and trying to find that mutually acceptable compromise that the bylaws require of us. Maruyama, you've come in for the very last word. >>NAOMASA MARUYAMA: I doubt this is a sufficient manner because of the small number of GAC members here. >>PETER DENGATE THRUSH: We've had consultations with the GAC. One more? >>AVRI DORIA: I apologize. I want to ask a question. You just said that the process required a mutually agreeable compromise. >>PETER DENGATE THRUSH: That's what we're seeking. >>AVRI DORIA: Just wanted to clarify. >>PETER DENGATE THRUSH: The next bylaw says if we can't find that, the board has to move on and explain why it's not accepting the GAC advice. So I'm going to close this session. Thank you all very much. The board is now going to go back to work digesting these comments, as is the GAC right now. Thank you all.