*** Disclosure: The following is the output resulting from transcribing an audio file into a word/text document. Although the transcription is largely accurate, in some cases may be incomplete or inaccurate due to inaudible passages and grammatical corrections. It is posted as an aid to the original audio file, but should not be treated as an authoritative record.*** New gTLDs and Applicant Guidebook Meeting with Board/GAC Sunday, 19 June 2011 ICANN Meeting - Singapore >>HEATHER DRYDEN: Good afternoon, everyone. I think we can begin. First I'd like to thank the board for meeting with us this afternoon. And I'd also like to thank the community members that are here as well to observe. I know that there's been a great deal of interest from the community and contributions from the community as we have worked on these issues of particular interest to the Governmental Advisory Committee, and so we do appreciate that. For this meeting this afternoon, I would like to note that the GAC did provide advice on May 26th before the current version of the guidebook. And we also provided a letter yesterday evening that is a statement from the GAC regarding the outstanding issues, in particular some key outstanding issues. However, that doesn't diminish the importance of other areas or issues of advice that the GAC has provided to the board. So what we would like to propose and what we would be most interested in is hearing a response from the board, a reaction, to the advice we have provided, in particular May 26th, and in light of the statement that we provided yesterday. But we have provided, of course, a body of advice over the months, and our latest comments should be taken without omitting consideration of the whole of GAC advice that has been provided to you the board. So the statement that we provided yesterday does identify or highlight five particular issues. So, as I say, we would like to propose to the board that we use this as the basis of our agenda and we would like to hear the board's response to the advice we've given. So, please, Peter, if you would. >>PETER DENGATE THRUSH: Thank you, Heather. And let me join you in thanking members of the community who have come and been participating in this process for so long, and let me also thank the GAC for its participation in this process right from the beginning, including the very earliest GAC advice but, of course, most recently since the Cartagena meeting. And just jotting down some of that includes obviously the Brussels meeting, the scorecard, meetings in San Francisco, the further call we had on the 30th, the further letter we got from you on the 26th and the letter yesterday. So there's been an enormous effort put into this by the Governmental Advisory Committee and its work to improve the quality of the new gTLD program. And the board is very grateful for that. It is the reason why ICANN has a Governmental Advisory Committee and this is us working together well, it seems to us. So thank you for all that effort. I would take your suggestion, Heather, and take yesterday's letter as being a very convenient listing of items and work through. And I'm going to take you through some of these things and then refer you to some of the board topic leads to help explain where we are with some of them. I think if I can begin with the competition concerns, in particular those resulting from changes to the registry/registrar cross- ownership. And the first thing to say is we've received not from the GAC but from two other governmental agencies letters concerning competition issues arising from the implementation of the vertical integration rules. And so the first thing is to acknowledge that we have received those and to confirm that we have evaluated those, including internally and with outside counsel. And we take very seriously the advice that's contained in those. And if I can very quickly summarize our response at the stage today. The first is they deal merely with two different issues. One is what we call the legacy TLD, dot com, dot net, dot org and the others that are under existing contracts. And we have a process for transiting from the legacy position where there was vertical separation to the proposed model of vertical integration. We believe that that process largely takes care of many of the concerns that the governmental agencies have raised. We also are very concerned about substantive market power, and we will not allow vertical integration to occur where we have any risk -- we believe there is any risk of the abuse of that market power. In relation to the new TLDs, the position, of course, is slightly different. And we will work with those competition authorities and others to ensure that the process does not allow new TLDs to either go -- to have vertical integration where, again, there is any risk. So we take that message very seriously. In relation to the demonstration of use requirement for trademark holders, I think it is probably most appropriate to ask Rita Rodin Johnston who has been the topic lead on the I.P. issues in general to explain the current position of the board in relation to that. So, Rita, can I ask you to just respond on the demonstration of use requirement for trademark holders wishing to avail themselves of the new trademark protection mechanisms we have created in the new gTLD program. >>RITA RODIN JOHNSTON: Sure. Thank you, Peter. We've had a number of conversations between the board and the GAC on this topic. So I wanted to go back to look at how we got here today before our meeting so I could try again to give you all a rationale for where we are. And Bruce very handily gave me the wording from the STI report which said, "Inclusion of a trademark in the trademark clearinghouse from a country where there is no substantive review does not necessarily mean that a new gTLD registry must include those trademarks in a sunrise or I.P. claims process." So when the GAC scorecard came to the board, one of the points on the scorecard was: Why are you treating trademark registrations from different countries differently? Because in the United States, for example, to receive a trademark there must be a substantive review. Whereas in countries in Europe, there is no substantive review. So the board look a look at the guidebook and thought the GAC is right. This STI report seems to differentiate, to say it differently, to treat one country's trademarks in a superior way to another country's trademarks. And so we, as a board, thought that was a very salient point that the GAC had raised and that was not actually a good result. So then we tried to look at and analyze, well, where do we go from here? And we've heard a lot about gaming of various sunrise systems. And, remember, the sunrise is a way to give superior rights to trademark owners, that they don't actually have currently under the law. This is saying that a trademark is going to -- by having a registered trademark, you're going to be able to get a TLD before anyone else. And so one of the ways we thought we could level the playing field and make sure legitimate trademark owners were unfairly challenged in the registration was to say everybody is on a level playing field here. So, for example, in the United States where you prove use to get a trademark, if you want to put your trademark in the clearinghouse and -- so it is "and," you can put your trademark in the clearinghouse without demonstrating use. So both U.S., European, South American, Asian, all trademarks will be accepted into the clearinghouse, period. However, if you want to use that trademark in the clearinghouse as a basis for a sunrise registration, it is a very, very premier right, whether you have had the United States trademark or a Benelux trademark or a South African trademark, you will need to demonstrate use in order to qualify for a sunrise registration. And we thought this was an important requirement that will be applied equally to any registration from any country around the world. We thought this was a level playing field and a way to make sure that only legitimate trademark owners that are using marks are qualifying for sunrise registrations. So we think this is reasonable, we think this responds to the GAC, and we think that this takes into account community concerns. We've talked to you all about this a few times, and we get the same comment back about the use requirement. And we don't understand it because we think it is actually good for trademark owners. And, again, we think we listened to your original point which was leveling the playing field. So does anyone have a question about that? Or is there some other concern that we haven't quite gotten? >>HEATHER DRYDEN: Thank you, Rita. Would the GAC topic lead, the U.K., like to raise a point at this moment? >>UNITED KINGDOM: Thanks very much, Chair. And thank you, Rita, and board colleagues and everybody else who is attending here. We note what you say in terms of endeavoring to create a level playing field, but the GAC position has to remain that we're fundamentally opposed to such an approach, which is actually, in our view, discriminatory because it does create a situation where trademarks registered in certain jurisdictions are not on the level with those that do actually require evidence of use. So we can't see the argument as a convincing one that this is actually creating a level playing field. It is creating additional burden for those trademarks. It's not proven to us and I just want to say we appreciate very much the memo that came from the board in response to the questions we raised. But that memo really did not achieve what we hoped you might want to do. And that is categorically demonstrate that it is serving to address a problem by creating this requirement which contradicts the legal framework for trademark registrations in the EEU, in Australia and in other jurisdictions. So that's our reaction to what you've just provided. Thank you. >>PETER DENGATE THRUSH: Can I just ask a follow-up question? We see the position opposite so we don't understand how we can both be seeing this so differently. So require everyone to produce use is equal treatment. To allow some people to rely on the differential trademark registration systems is unequal. How is it that requiring everyone to do the same thing prejudices any one of those parties? If you could help us with that, because this is pretty fundamental. We think asking everyone to do the same thing, produce their trademark registration which we all know come from different registries with different standards -- so we've got -- You begin with parties with disparate rights. Some have got their trademark registered in registries in 30 or 40 minutes with no proof of use. And some of them have gotten them from registries that have substantive examination. Discriminating between registries is unfair and insulting. So we say, All right, you start with your registration and then you must prove use. So we are trying to make everybody equal. How is making -- how is requiring them both to produce use discriminating against either of them? >>HEATHER DRYDEN: U.K., would you like to respond or do other GAC members want to comment? U.K. >>UNITED KINGDOM: Thanks. Well, we seem to be talking at cross- purposes obviously. Trademarks that register in jurisdictions where proof of use is not required are done -- those registrations are done in good faith. And then for those trademarks then to be entered into the clearinghouse, they have to pay that fee. And then they find that actually to be eligible for sunrise services. And this proposal really does narrow the scope of sunrise services. We've had sunrise services for quite some time. But this is a new requirement which narrows the scope of eligibility for sunrise services. So you're expecting many, many trademarks to be -- have to sort of raise up to a higher level bar to be eligible for sunrise services which are a creation of ICANN in terms of ICANN is managing and coordinating the expansion of the domain name space, but you're creating a higher bar in that sense. So you should be respecting what is happening at national level and then using that as the basis for the rights protection mechanisms. That's the fundamental view of governments, and it's also this proposal is not based on community consensus. You've got us against this proposal. You've got the trademark community against this proposal. You've got the business sector against this proposal. So we can't really see how you're expecting to convince us of the legitimacy of it for those reasons. We seem to be at a complete contrary situation here. And the advice of the GAC is that this requirement should removed, both for the sunrise and for the URS. For the URS, our view is it runs against the whole objective of the URS to have a rapid, effective mechanism available. If you're going to have to submit evidence of use and that is scrutinized and if there are problems or arguments about the evidence submitted of use in the URS, you're going right against the whole purpose of the URS. So we think this conceptual approach of trying to create an artificial level playing field for trademark owners is flawed, fundamentally flawed. Thank you. >>PETER DENGATE THRUSH: Can I just ask a follow-up because I listened very carefully. There's some different points emerging from that than the one I asked. And we'll come back to those. The point I was trying to work out is how -- the allegation that there is unequal treatment of the different registry owners. I didn't hear an answer on that point. It is the same treatment whether you have a registration from one country or another to provide evidence of use. [ Applause ] So I just don't -- so if you could come back to the question, which was: How is this unequal treatment when we are so clear in our minds that it is the same treatment if everybody has to do the same thing: Produce a registration and produce use, not produce registrations of unequal value. >>UNITED KINGDOM: Thanks. Forgive me. I think that's the wrong question. [ Laughter ] The question should be: What is the eligibility of trademark owners to benefit from the rights protection mechanisms? And you're ruling out trademarks that have been legitimately registered for the purpose of intention of use. Those are automatically discarded. And then for those trademarks that have the additional burden of submitting proof of use, which your memo now escalates to one of affidavits. They've got to obtain sworn statements in the presence of independent lawyers. That's a tremendous impact on small businesses who have got that additional burden to carry in order to enjoy the benefits of sunrise services through the centralized database of the clearinghouse across hundreds of domains. So as I say, I think the key question is that inconsistency with trademark law as it is set out throughout the European Union and in other countries. That's the problem that we're trying to address. That's the key question. Thanks. >>HEATHER DRYDEN: Thank you, U.K. I can see Bertrand. >>BERTRAND DE LA CHAPELLE: I'm not a trademark lawyer at all. What I understand in the dialogue is that maybe we are bumping into a delicate question, which is the following: The trademark regime has a geographical dimension. The trademark regime uses not only classes but also geographic definition and national laws, which means that within a national boundary there is a specific regime of recognition of trademarks that in certain cases requires use and in others does not. The challenge we have as the board and as a collectively to define rules, that the sunrise systems that are going to be put in place are going to be sunrise systems at the global level. And the whole question is the challenge. I agree listening to the arguments and we've been, as you guessed, debating the pro and cons very extensively, the challenge that we have is that we're all directed by a notion of fairness and equal treatment. And the challenge is -- and this is why I think Rita tried to explain, the challenge is how do you define equal treatment among systems that recognize differences when you have no problem that it is at the national level. Because the national level says it is this option or that option. At the global level, we need to find a rule that is horizontal somehow. And the option that the board is taking and is trying to explain is that, yes, in a certain way, it raises the bar for one category of actor but it treats everybody the same in one limited sector which is a very specific right. For the rest of the trademark protection as Rita explained, contrary to what the initial suggestion in the IRT, all trademarks are treated the same in the clearinghouse for claims. For sunrise, it is a specific element because of the concern. It may be wrong, but there is a concern that some actors may exploit the ease of registration of certain spaces to benefit from sunrise in an undue manner. And so, trying to get a level playing field in a global space, the board is setting the bar a little bit higher because it is a special right. But I agree that taken from the national angle, it is not exactly the way national governments do it because they have the benefit of the national boundaries which we don't, if it helps explain a little. >>HEATHER DRYDEN: Thank you, Bertrand. I have Germany, please, then Bruce. >>GERMANY: Yes, thank you, Bertrand, for this explanation. I think if I come back to your core point, I think it is rather difficult for ICANN -- and I would not agree on such a position that ICANN is going to define what is a trademark. A global -- and set global standards for trademark and, indeed, this would lead to such a position if you say we have several standards and we require these standards. And does this mean you would discriminate certain trademarks that do not use these standards? And, therefore, I really hesitate to have this question answered in this way. Another issue is -- and I think we should really separate the discussion on this issue, is the question on whether there is some kind of gaming possible. I think the gaming question should be, yes, considered but probably not in the way that we differentiate between the different trademarks. That's a completely other issue, and we are prepared, I think, to discuss if there is a need for instruments to prevent this kind of behavior you also mentioned. We agreed to discuss instruments, but please do not define standard what is a trademark and what we accept and whatnot. >>HEATHER DRYDEN: Thank you, Germany. I have Bruce. >>BRUCE TONKIN: Thank you, Heather. Firstly, just to clarify this, there is no attempt to define what is or what is not a trademark. All trademarks are eligible to be inserted in the trademark clearinghouse regardless of nationality. Our minimum requirement is that you have a trademark. So there is no -- >>PETER DENGATE THRUSH: No discrimination. >>BRUCE TONKIN: -- no discrimination on trademark. We have a Web of trademark protection mechanisms. There are four mechanisms. Two of the mechanisms a company would use or an organization would use when they're considering the introduction of a new name is they can either choose to preemptively register a name before anyone else has the chance to get that name. That's what sunrise is. Or they can, basically, wait and protect their rights. If somebody tries to register the name and uses the name in violation of the trademark, then they are protected between two mechanisms. One is trademark claims. So, during the startup process for a registry, if someone tries to register their trademark, the party trying to register that trademark will be informed of the trademark that's in the registry and they need to warrant or effectively state that they won't infringe the rights of that trademark. And the trademark owner is also informed of that registration. So trademark claims don't need to have any use provision at all. It is merely just having a trademark and having it in the clearinghouse. If you want to preemptively register, you are saying you want a first right to register this name over everybody else that might want to use the word for legitimate purposes, so you are getting a right that's not available with trademark law, your getting a right that says you can have this word before anybody else can. And we're saying in order to get that extra right, which is not a trademark right, it is a right we are granting as part of the new gTLD program, we are saying it should be actually somebody using the trademark justifying a right to register the name before anyone else can. But the trademark right still exists. So if anybody registers that name and misuses it, firstly, they would have to go through the trademark claims process; and secondly, they are subject to UDRP. And UDRP, the requirement to participate in the UDRP, which is the fourth mechanism we have, is simply having a trademark. The other mechanism we have is a rapid suspension. Rapid suspension, you're saying there is such detrimental usage happening to the use of your mark that you need to immediately stop it being used. We can't see how that would be -- a name not being used, you are saying a name is not being used. You have a trademark but you are not using it. Why would you need a rapid suspension? UDRP is still there. You can have the name transferred to you on the basis of your trademark rights. But a rapid suspension is generally implying that you have a trademark in use and the damages to you for having somebody register that name and misuse it in a clear-cut case of misuse is immediately damaging you, therefore, you need a rapid suspension. So just be clear, trademarks are being treated equally. All trademarks are the same. Trademarks in the trademark clearinghouse is available for trademark claims during startup and is eligible for UDRP if anybody registers that name and subsequently misuses it. We are requiring an additional requirement to give some new rights, they are not trademark rights. We are giving new rights, which is to say you get to register a word before anyone else does. So we're requiring something in addition to trademark rights. I hope that clarifies that. >>HEATHER DRYDEN: Thank you, Bruce. Netherlands, please. >>NETHERLANDS: I think the basic problem is that at least, if I can summarize it like that, we, basically, have a repository of trademarks which gives us rights within the internal process. Sorry. But you are adding extra rules, extra rules which are, let's say -- maybe going in contrary of the national legislation. That means that the level playing field is fantastic but it is an illusion because getting a trademark in every country is different by definition. You won't level this by having an extra obligation on it. So, basically, it is not an official kind of extra obligation which creates level playing field which it is not after all. >>HEATHER DRYDEN: Thank you, Netherlands. Are there any further comments from the board or the GAC? U.K. please. >>UNITED KINGDOM: Thank you. Thank you, Chair. I guess we are coming back to this difference of perception of how you can be treating all trademarks equally if actually you're requiring this additional rule or burden in terms of those trademarks which aren't eligible for sunrise services because they do not have the existing ability to demonstrate use, either because they have not been registered with that requirement, the registration regime has not required it, and/or secondly, there are going to be trademarks that need to be protected where they haven't actually gone to market and actually used it. This is the intention to use point that I referred to in my first response. That is where the element of discrimination arises, and we do not see the justification for imposing that on those trademarks. The gaming issue is well respected, a well acknowledged problem, but some sunrise services have not required proof of use to be an element of eligibility for the sunrise. Dot tel is an example of that. And as I say, imposing this requirement through the guidebook is creating a narrowing of scope of the sunrise services, which we just do not feel is justified. And we haven't had a clear exposition of the argument that it is justified through tackling the gaming issue. As I say, there have been registries which have not required proof of use in tackling that problem, and we were disappointed that the memo really did not go into any great analysis of this issue of gaming as to why this is the only solution available. So I'm sorry, but the GAC consensus view is this is totally unacceptable. Thank you. >>HEATHER DRYDEN: Thank you, U.K. I have Norway, I have Rita, and Erika. >>NORWAY: Thank you, Chair. I am not going to go into the substance of the discussion, but I just wanted to remind everyone about the sort of overall guiding and steering of ICANN. And I just wanted to quote from the ICANN Articles of Incorporation in paragraph 4, and that states the corporation will operate for the benefit of the Internet community as a whole carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law. So let's just sort of underline the position of the GAC that ICANN shall operate according to those, in conformity with those -- in the Articles of Incorporation. So I just wanted to remind about that. Thank you. >>HEATHER DRYDEN: Thank you, Norway. I believe Erika is next. Rita would like to speak later in the speaking order. >>ERIKA MANN: I'd just like to go back to the point which were raised by the U.K. representative. I think it's -- you are right, and, I mean, I know the E.U. background, the legal background very well. And I think your point is well taken and we have taken, of course, all of this into consideration. Nonetheless, the question remains how you ensure fairness and how do you avoid, you know, gaming issues. Now, I hear from your -- from the points you raise and the comments the way you phrased them that you are open to this -- to the difficulties which can stem from nonfairness on an international level and from gaming-related issues. I wonder how you would phrase this? Now, you rightly, of course, expect us to do it. But since we are in the final round -- hopefully, the final round and concluding our discussion, I wonder if we cannot just, you know, take five minutes to explore and see how you would approach it, or other GAC representative would approach it. >>HEATHER DRYDEN: Thank you, Erika. U.K., did you want to respond before I continue through the speaking order? >>UNITED KINGDOM: Thank you. Very, very quickly. It's not for us to propose solutions, I'm afraid. We give you advice that what you are proposing to do is -- I'm sorry if it's what you expected but it's not our role. Our role is to advise you that a proposal is not acceptable or unworkable, and that's what we're doing. We're trying to help you by telling you you have got to cross that one off. So I'm sorry if that sounds like an expected negative reply, but it reflects the role of the GAC. We've considered the proposal to impose proof of use on sunrise services and in the URS, and we consider that as unjustifiable. So that's my comment, but colleagues may want to chip in. Thank you. >>HEATHER DRYDEN: Thank you, U.K. Rita. >>RITA RODIN JOHNSTON: Thanks, Heather. I think we're ready to move on. I just want to make two quick comments. One, I think, Mark, I finally understand a little bit better what you're describing, but there is no discrimination here. And I'm finding it difficult to understand how you're seeing discrimination in terms of trademark laws and different geographies, because that's just not true. But what we are saying as part of sunrise is, in fact, that if you have an intent to use, to use the U.S. framework, if you are just saying "I intend to use a trademark," that will not be eligible for sunrise. So that is true. And whether that is a U.S. trademark, a European trademark, an Asian trademark, if you are not using a mark but you want to try to file it to game the system and prevent legitimate trademark owners from getting sunrise registrations, we as a board are saying not cool. [ Laughter ] >>HEATHER DRYDEN: Rod. >>ROD BECKSTROM: A quick comment. I greatly appreciate the great care and concern you've expressed for this from the United Kingdom as well as the views from Germany and Norway. I think what's interesting about this dialogue on this very subtle and complex issue is I actually think the GAC and the board and the organization community share the same goals which is to do the best to craft a solution to protect the interest of trademark -- what I am call legitimate trademark owners. And I believe that there is a difference in the perceived best way to implement the mechanisms to do it, but I just want you to know that I feel the goals are absolutely shared, and that I think these mechanisms are very subtle and that the GAC may have a different view on which mechanisms can do the fine-tuning to achieve that. And the board and the intellectual property community, in listening to other members of the community, have a slightly different view, but let's not lose sight of the fact that I think we have a very common position on the objective and the goal. And that I think we have come a long way in the GAC, overall, to create a framework as best we can given the complexities to serve the global public interest. So I want to thank you very much for your dedicated advocacy from the United Kingdom and other countries and just acknowledge that I think this is a very -- a great deal of congruence here and very, very minor differences. Thank you. >>HEATHER DRYDEN: Thank you, Rod. I see Denmark. >>DENMARK: I just have a question. I mean, you're talking about legitimate trademarks. Would that mean trademarks that are registered -- for instance, in Denmark, where you don't have to use it immediately, there's a timeline, for example because of having a waiting patent or whatever, something, would you call them illegitimate? >>HEATHER DRYDEN: Mike. >>MIKE SILBER: I really don't think we want to go into the details, but, no, not at all. That's not the intention at all, and that's not what Rod means by "legitimate." I think what we're talking about is situations where a person or entity registers multiple trademarks in a convenient registry purely for the sake of obtaining that registration to game a sunrise period or otherwise. We're not talking at all about a situation where somebody intends to operate and is using applicable national law appropriately. So it really goes down to intention and purpose. The question is intention and purpose because an incredibly difficult element to investigate in an online electronic world, especially when dealing with multiple registrations with multiple TLDs. That's why there's been one proposal put on the table. That's why the suggestion of the additional use rights. It's not at all suggesting that people in the European Union or, for that matter, in my home jurisdiction where use is not required are suddenly all illegitimate trademark holders. It's not the intention at all, and I think we may just need to explain it a little bit better because it seems that notwithstanding our previous memo, the reasoning behind it is not getting through well enough. >>HEATHER DRYDEN: Thank you, Mike. U.K. >>UNITED KINGDOM: Thanks. There's one other aspect to this that we haven't discussed in this particular meeting, although I think we've raised it before, and that is even if you do go ahead with this, it's not clear to us that it's a workable solution. You are going to get gaming anyway, and you're going to get very spurious claims to use of trademarks. We don't see how you're going to be able, effectively, to scrutinize the evidence of use without deploying significant expertise in use -- in commerce. In order to carry out this requirement and allocate the resources for scrutiny to take place, that's going to be a significant effort if you're not going to deal with those who still aim to abuse the situation -- abuse the process. So we've looked at the practicalities, we have consulted on the practicalities of this, and the views we have had within national administrations is actually it's not going to work anyway. So I put that before you as well, as really one element of a catalogue of concerns that we have that this approach is fundamentally flawed. Thank you. >>HEATHER DRYDEN: Thank you, U.K. I have Bertrand. >>BERTRAND DE LA CHAPELLE: In order to allow maybe to move to the other topics, I would like to summarize what I understand at that stage. There is a joint -- As Rod said, I think there is a joint objective of having a regime of protection that is both fair and prevents gaming. I think following what Hubert said earlier, we basically have two options here. The path that the board is adopting at the moment is making a privilege to establish the rules in a way that we believe is on an equal footing and that prevents gaming. And so the preference has been given to that orientation. The alternative is if we were to accept the GAC strong position of not putting this requirement of use, I understand from what Hubert said, and I think I agree, that then we will be confronted with the question of how do we handle gaming, because then there is a certainty of gaming as the experience of the past TLDs that have been introduced exemplifies. So to summarize the way I see it now is this is the alternative. And I don't think we can go much further in that discussion. We've covered those elements. So if we could maybe move on to something else, and the board will think about the result of this discussion. >>HEATHER DRYDEN: Thank you, Bertrand. Is there time for one final comment from Germany? You don't insist. Okay. >>PETER DENGATE THRUSH: Let me move on, then, to another topic which is removal of references in the guidebook that attempt to specify that future GAC early warnings and advice must contain particular information or take a specified form. And I am delighted to say the board agrees completely with the GAC in relation to this topic. There's absolutely no intention to direct to the GAC either its processes or the wording it should use in corresponding and giving advice to the board. I think what we explained is we took the letter of the GAC itself which says we will work together to develop some wording. We are very confident that the GAC's intentions here are, as we said, very much the same as ours, and we think that methods of communicating and corresponding, et cetera, will develop over time, and we look forward to working with you to make that happen. So I think we can call that a 1A. And we don't have to have comment if there isn't any. I think the fact we are probably in agreement means we can move on to the next one, unless somebody wants to -- >>HEATHER DRYDEN: U.K. >>UNITED KINGDOM: Thank you, Chair. Can I just clarify what the process here is? Because we've -- you in your opening remarks referred to the May 26th set of comments, and there are the other IP issues where we are still awaiting reaction from the board. There were four other issues on which we have made proposals and stated our position. So I -- And we've also skated over the competition issues without any discussion. So I just -- Can I just seek a clarification of exactly what the process here is? Thanks. >>PETER DENGATE THRUSH: From my perspective, I thought what we would do is work through the ones you highlighted as most significant in your most recent letter. You do mention at the end of your letter that the other issues are still alive in your earlier letter. What I thought we would do is work through these, which have occupied us today, and then we can go back and deal with, today, the issues in your other letter. So, yes, we'll come to them. >>HEATHER DRYDEN: U.K. >>UNITED KINGDOM: Thanks very much, Peter. That's appreciated that you are cognizant of a range of other issues. We started off on the competition issue, and we didn't have a discussion about that. So what is -- Do you consider that as now closed off for this meeting or what? Thank you. Because I didn't feel that there was an adequate interaction on that specific issue. Thank you. >>PETER DENGATE THRUSH: Well, I'd be quite happy, now or later, to have any questions about the competition issues if you have them. >>HEATHER DRYDEN: Thank you, Peter. I believe there is interest in examining that further. Okay. Please, European Commission. >>EUROPEAN COMMISSION: Thank you, Mrs. Chair. I think the chair of the ICANN board referred to a submission of the European Commission as well as another submission by the U.S. government, the Department of Justice. We have set out in that submission that there are important concerns and a need for clarifications and further substantiation of the reversal of policy to allow vertical integration. I'm not clear, like my U.K. colleague, how the ICANN board is take this into account. I mean, I'm not going to go step by step through our submission. It's public. It's on your Web site. Everybody can read it. But I think an important request to ICANN was that this fundamental decision should be disassociated from the launch of the gTLD program. And I would like to hear from the ICANN board as to whether they agree to this or whether they will implement the particular provisions as they have envisaged before. So that's one point. I wanted to -- I mean, because the discussion is going a bit up -- I mean, back and forth, but on the trademark issue, I wanted to say that the European Commission fully supports those member states and the GAC consensus advice that there is a serious problem here. We're talking about legislation. We, as government, have a primary responsibility to ensure that the legislation which is adopted in our different jurisdictions is complied with and enforced. And here we have a real situation of a conflict where a decision by ICANN will impinge on the rights of trademark holders under European trademark law and national trademark law and even be in conflict with. And that we cannot accept as governments. But there is also had issue of a double standard because if I would simplify it, it would look like the U.S. trademark regime is given preference over the European or Australian or any other trademark regime and that clearly is not acceptable. I understood one member saying that the system has to be fair and it needs to prevent gaming. I think the system is not fair as far as the and European Commission is concerned and the GAC is concerned and it will also not prevent gaming. So I wanted to go on the record on both these points, but the main question now is to hear from the ICANN board how it will take into account the concerns set out in our letter and the request to disassociate the decision on the competition registry/registrar issue from the launch of the new gTLD program. Thank you. >>PETER DENGATE THRUSH: I just had a couple of questions. I just want to pick up on your last point because I thought we had been really clear that trademarks aren't discriminated against. I just don't understand your last point that somehow any trademark system under the proposal that we have made is advantaged. Can you just explain how it is you see any trademark system has advantages over any other trademark system when they all have to produce a certificate of use? >>EUROPEAN COMMISSION: It's very simple. If you are a trademark holder under U.S. law, you benefit from the protection. If you are a trademark holder under European law where you don't have to prove use -- >>PETER DENGATE THRUSH: No, no. >>EUROPEAN COMMISSION: That's where the discrimination is. That's where the double treatments the double standard. >>PETER DENGATE THRUSH: But you are not describing our proposal. I'm not sure what proposal you are describing, but under the proposal that we've got, the person with a United States registration has to do exactly what someone from a Benelux country has to do. They both have to come forward with proof of use. >>EUROPEAN COMMISSION: We have had this discussion and it seems to be a discussion between the deaf and the stupid, in a way. >>PETER DENGATE THRUSH: Well, it's. >>EUROPEAN COMMISSION: There's no point in going through this discussion again. >>PETER DENGATE THRUSH: If they both have to do the same thing -- >>EUROPEAN COMMISSION: Why don't you take the European trademark regime and make that the model for the rest of the world. >>PETER DENGATE THRUSH: No trademark system is being advantaged when all people produce their registration and have to produce proof of use. It doesn't matter where -- It's precisely to not do what you think we are doing that we are doing it. If we were to say that some trademark systems were better than others, you would be right. What we are saying is we are treating all trademark registrations the same. You produce your trademark from wherever it comes from and you produce evidence of use. The person from the United States has to produce a U.S. registration and proof of use. A person from Benelux has to produce a registration and proof of use. We cannot see how you can say that discriminates between trademark systems. Not only that, we have designed a system specifically to prevent discrimination. So help us, please, with this. Let's not go away today with anyplace of this left -- >>EUROPEAN COMMISSION: If you want to be helped, frankly, I think you have been given all the arguments much more eloquently than I could express them, including by my British colleague, by my German colleague, and you seem not to be willing to take them into account. And I don't think there's any interest in prolonging the discussion on this point if you have made up your mind. Clearly, you don't want to be convinced so what is the point of us trying to convince you further? You do not want to be convinced. >>PETER DENGATE THRUSH: All right. Well, let's come to the competition issue. I'm going to ask for help there, because it's a competition law issue, from General Counsel here, but I think we probably just want to clarify. The next question, your suggestion was your letter requires us to stop the new gTLD program -- sorry. Just clarify what the requirement in relation to the competition issue was that you asked the question about. >>EUROPEAN COMMISSION: I am not going to read out the submission of the European Commission. It's clear. I think it's well structured. It identifies the issues of concern, which are issues of substance, issues of procedure, issues that also of community support. They are all there. I am not going to take one or two points and highlight them. This is the analysis and this is the position of the European Commission on that point. But at the end, in the conclusion, there is a clear request or an urging of the European Commission on ICANN, and that I can read out because it's not very long. We consider it preferable to disassociate such a fundamental decision from the new gTLD launch process and maintain for the time being and subject to the gathering of further data the existing rules on vertical separation between registries and registrars for both new and existing gTLDs subject to limited exceptions for clearly pro competitive cases. So the question I put to you earlier, and I think I am putting it to you even more clearly now, is how are you going to respond to this particular request? Are you disassociating it from the launch of the new gTLDs or are you sticking to your position or have you modified your position in light of the elements that have been put to your attention? >>JOHN JEFFREY: So the discussion at the board level on this particular issue has been very much taking into consideration the letter from the E.C. with the nonpaper which was attached as well as the U.S. government position. And the discussion has been looking at it from two different positions. One is relating to the new generic top-level domains in the program as well as how the vertical integration decision would apply to those existing generic top-level domains. And we believe that those are treated differently in what we see in the papers. Particularly as it relates to the process that's been set forward for existing gTLDs, we think that there is a process that's been proposed which is taking into account positions of significant market power and how those would be dealt with if they were to apply through the process. So we would be grateful to work with the E.C. or the U.S. in terms of how to appropriately approve that process, but we think that process that's been set forward does take into account how to deal with existing registries and the market position that they might have that might affect consumers or others. As it relates to new gTLDs, we think there has been a good point raised about the possibility of market power affecting new gTLD applications, and the board is looking at how to build a process that would allow the board to consider that as part of the overall application process. So we're certainly interested and willing to work with the parties that have written the letters to help establish a more formal process that could amend the existing process that's been proposed. >>HEATHER DRYDEN: Thank you for that, John. I have United States. Please. >>UNITED STATES OF AMERICA: Thank you, Heather, and thank you John. I just wanted to flag at least one sentence in the Department of Justice anti-trust division letter because I am also hopeful that we will have a written response. Certainly not today, but we will get a response in writing. And there is a fairly direct sentence in here that says, "In the division's view, ICANN should retain its prohibition on vertical integration for existing gTLDs except in cases where ICANN, in consultation with public and private sector stakeholders and independent analysts, determines that the registry does not have or is unlikely to obtain market power." So there are quite a few recommendations that follow that, and it would be useful to get your views as to how you might want to follow- up on those recommendations. So I take your point that you are quite willing to work with them. But I think there is also, going back to the decision that you took for new gTLDs, I believe questions are raised there that would require a more detailed response than what we are hearing at the present time, if I may say, because it doesn't sound very definitive that there is any intention to modify the existing position. And it would be very helpful for us to know how you intend to proceed and whether you intend to potentially reconsider that decision. >>HEATHER DRYDEN: Thank you, United States. Did you want to respond, or shall I continue? >>PETER DENGATE THRUSH: I think we can answer that. >>HEATHER DRYDEN: John, please. >>JOHN JEFFREY: So the position that was set forth relating to new gTLDs was -- there were some new concepts involving the possibility of significant market power by players that were presenting applications for new generic top-level domains. Where that might occur, where there might be significant market power, we're certainly looking for a way to build a process in that could consider that. We think that that is a very important step. It is a step that the board is willing to consider. And I think in light of that, we would certainly want to work with you to determine whether there was a way to do that. So I think the commitment from the board is very clear that this is -- or at least the position that's been put forward by the board that would be voted on by the board, that there be some process to current amend the guidebook so there would be significant market power for new gTLDs. >>HEATHER DRYDEN: Thank you, John. I believe the European Commission. Yes, please. >>EUROPEAN COMMISSION: Thank you. I think there is a bit of a misunderstanding particularly about how the ICANN board or the legal counsel how competition law is enforced. We don't kind of enter into discussions with players and parties beforehand. I mean, competition law is in force ex post. We can't give blanket kind of assurances. So unless we highlight in our submission, there is a fundamental misunderstanding about how competition law works and also ICANN, assuming this kind of competence to decide kind of significant market power is also not in line with the practice and the law of competition. So we're a bit kind of -- I mean, we would encourage the legal counsel to continue to improve his understanding of competition law in the European Union. We're asking also a number of further elements. I think it is linked to what you as delegates said. We think there is a lot more need for data analysis underpinning expert advice, further documents that we think is absolute necessary, first of all, to understand how the market works. There is not a lot of data that ICANN has been providing over the years, despite repeated requests, including from the GAC and from countries about the current situation of cross- ownership. So there is a lot of work that needs to be done by the ICANN board, and we urge that work to be done quickly. And we also, of course, would suspect as is the case, when you write a letter, you expect a response in writing. I will be interested to hear -- actually what we are interested is in the ICANN board's view. The legal counsel's view is interesting. But does the legal counsel's point of view echo the ICANN board's point of view? >>HEATHER DRYDEN: Thank you, European Commission. >>PETER DENGATE THRUSH: I can say the answer is yes. >>HEATHER DRYDEN: John, did you want to comment further? Please. >>JOHN JEFFREY: I sure would, thank you. I think it's important to realize that ICANN has committed significant resources already to the issue. And, in fact, the vertical integration issue was one of the best documented decisions by the ICANN board. ICANN has pledged to study and has committed to continue to study the economic issues that are associated with the existing and new generic top-level domains. And over the last couple years ICANN has hired some of the world's leading economists and those economists agreed have unanimously agreed that registry/registrar separation issues should not block the program. With all of that in mind, we continue to commit to take these issues seriously and to address the concerns that have been expressed in the EC's letter and in the U.S. Department of Justice letter. >>HEATHER DRYDEN: Thank you, John. Bertrand? >>BERTRAND DE LA CHAPELLE: Thank you, Heather. In all those issues, it's always interesting and important to start from the objective. That's the first origin. One of the main angles to address the issue of vertical integration or non-integration is the following. The separation between registries and registrars was a remediation tool. It was used and put in place to address a very specific problem, without naming the company. We all know who is at stake. When we are thinking about the opening up of the new gTLD program, there is a huge concern not only within the board but also within the community that, basically, the program doesn't produce only very large dot com copy cats type of TLDs but also a broad diversity of TLDs, innovative, small and big, non-for-profit and for-profit. And the thinking is because they will all start small, unless we consider that any TLD has, basically, a market power in its own TLD, in the market as a whole, new TLD starting has actually potential of having market power. So there were two options: One was to impose on every single new TLD applicant, even if they are small, even if they will have problems finding registrars to put them on their shelves, to impose the same restriction as the one that was imposed as a remediation tool for the largest registry today; or to start from the other end and to say for the new gTLDs, we start with the assumption that there could be an integration because in certain cases, especially for the small ones, it has a benefit. And we pay great attention to the notion of market power, significant market power and potential abuse of power, which is the substance of competition regulations. And I think that's the fundamental reason why the board went in the direction of removing vertical separation as an obligation for the new gTLD applicants, because it is helpful also for the small. Something that is sometimes forgotten. However, what is very important and where we maybe went too far is to say if there is a problem with competition, we will send it back to the competition authorities which is probably not the right way to do it. The key question is how can we develop a relationship with the different competition authorities to understand better how this market structure will evolve. But, again, we're opening up and the rule was adopted as an explanation mostly to help the small actors. That's for the new gTLD program. The question of allowing existing operators of existing TLDs to be able to compete and participate in the new gTLD program on an equal footing is a second, separate issue. But I hope it explains a little bit the angle. >>HEATHER DRYDEN: European Commission, please. >>EUROPEAN COMMISSION: Thank you. I find it interesting that the ICANN board members think that they have more knowledge about the competition than the competition authorities. But that's a side remark. I wanted to make two points because I don't want to go again through all the issues. Even the studies commissioned by ICANN to experts acknowledge the risk of potential harm to competition ruling from vertical integration. And in our submission, you see even the relevant references in case you don't have them ready at hand. It is also interesting to note that within the GNSO community, there is a lack of consensus. So even the registries and the registrars, at least many of them, don't think this is a good idea. I mean, we're not in the business of -- I mean, as competition authorities, A, it would be very impractical but it would not be legal to work with particular interested parties in the market on the next anti- base. That's not how competition law works. I mean, in the submission of the European Commission is the point I made at the beginning, we advise the ICANN board not to go ahead with this. That's what we advise. It is still the advice of the European Commission after the clarifications given by the ICANN board this evening. >>HEATHER DRYDEN: Thank you, European Commission. Erika? >>ERIKA MANN: I would just like to respond because I feel personally a little bit attacked by your comment. It is not that the board hasn't discussed it and the board is not understanding how competition works. We had a long discussion about it, and we have many people with experience in this area including myself. But it is a different environment we are entering. It is not like that everything in this world is already shaped by the past. And this is the case here. So we are trying -- like in many other areas as well, we're trying to find the best solution. No one can argue that the best solution which we think is available is not the optimum one. That's something which I can certainly accept. But I just would like to confirm that this board is certainly capable and certainly looking into all of the issues you raised. I don't think so -- probably I don't know where this mood in this room a little bit comes from. Maybe I would recommend the point is taken we move on so we get an understanding and we can regroup later and in our communities and consult with each other and then come back to see how we can respond maybe to each other in a more positive mood. >>HEATHER DRYDEN: Thank you, Erika. United Kingdom, please. >>UNITED KINGDOM: Thank you, chair. I defer to the European Commission on the legal issues where they have competence in this area, of course, for the whole of the European Union. But if I could offer just a bit of an observation, I don't know whether this was a contributory factor for the mood of this discussion, but we note obviously what Erika said about this being an endeavor to find a solution in this dynamic world of the domain name space. The decision that the board took struck us as a very sudden volte-face on a long-standing adherence to vertical separation. And I've heard what the counsel has said about the need to develop processes and so on. It seems that this has been a very rapid move by the board. And it is very unsettling for governments to do that on such a critical issue. We like to see this model move dynamically, move rapidly. That's why the model is supportable because it keeps in track with the dynamics of the Internet. But this is a pretty major step to take. And I just get the feeling that it's not completely bottomed out yet. And there are processes and things as counsel has acknowledged that need to be worked out. And the commission has said: Where is the data, the analysis, you know? We haven't got that. We really, I think, are saying to you, "Hold off. We respect your genuine efforts and endeavors but hold off from making this move at this point because you don't have the support of governments for it" and for the reasons we've tried to express. As I say, talking to ministers, they are very unsettled and nervous about this. Thank you. >>HEATHER DRYDEN: Thank you, U.K. Are there further comments? Can we move on to the next Agenda Item? >>PETER DENGATE THRUSH: Let's do that. The next one is the support for needy applicants from developing countries. And the reference on the left of the most letter is on appropriate and timely support that should be provided. We, first of all, recognize the current piece of advice that says there should be a discount, a 76% discount. And we are at this stage not saying yes or no to that because that may well be what happens as a result of what's going on in term of the development of community processes. So our point here is that this advise needs to be integrated with the current working of the community into developing this process and may well be the eventual outcome. If it is, then we would be following GAC advice. If we got different advice up through the community process, then it may well be different. We continue to share the same concern that the GAC has, that the new gTLD program needs to be as inclusive as possible, part of the justification and enthusiasm for the program is that it will create additional methods of access and development and forms of expression for indigenous communities, endangered scripts, communities without access and so forth. And that's something the board has always submitted and encouraged the formation of the working group to develop a policy to give expression to that. And we continue to do that. You, members of the GAC, will know that the joint working group has delivered its second milestone report. It reports to two masters which may not be the best way of chartering a working group but that's the one we've got. We've had some recommendations and discussions from the ALAC who are one of the chartering parties, and we are waiting for input from the GNSO to whom the joint working group also reports, recognizing as we've been reminded while we have been here in Singapore that the working group doesn't report to the board, it reports to its masters and they develop the policy and happened it to us. So we are in that process and we are helping that process and we are looking forward to an outcome from it. We'll be proposing to pass a resolution soon, if we can this week, that takes the following sort of lines at acknowledging referencing the work that's being done, looking forward to receiving that report and because we can't effectively dictate to the community when to have its work done by indicating that it would be most useful to us if that report was received in time for action by the board at the meeting in Senegal. A new proposal which I think the members of the GAC will be interested in particularly and that is a resolution to set aside a budget of up to $2 million in U.S. currency for seed funding in the hope that other parties will provide matching funds to be available according to the form, structure and process to be determined by the board in consultation with the stakeholders. So we are waiting for this work to go through. We've put some money aside -- or we will be putting some money aside, up to $2 million, to help this process. Again, we will be indicating that the goal will be to have this form and structure and process around this fund completed in time for the launch of the -- or for the application phase. And we'll be modifying the by in the GAC to refer slightly more accurately to this program. So that's where we are up to with support for needy applicants from developing countries. >>HEATHER DRYDEN: Thank you for that, Peter. Would the GAC like to comment on that? Kenya? >>KENYA: Thank you, Heather, and thank you, Peter, very much and the board. Great progress. As you noted in the last GAC response regarding the issue, we applaud the second milestone report from the JAS and it actually does maybe quite narrative recommendations. A few concerns we discussed today with the ALAC group is regarding the process itself in terms of having two chartering organizations and the challenges we find in terms of how GAC then provides advice. And the second one you've touched on is the timing in terms of when we are launching the gTLDs to ensure that developing countries and needy applicants are not excluded from this process. It is not so much about setting up a pot of money. I think support goes beyond just having a pot of money to subsidize the application process. There is much more to that. Specifically, some of the very specific issues have to do with outreach campaign that I think we believe hasn't really taken place. And how do we go about that then we don't have assurances that the final report -- how the final report is going to be taken on by the DAG in the launch of the new gTLDs? And then the method -- implementation methods are still not clear. I think the report hasn't given us a clear indication, concrete ways of implementing some of the provisions made and the proposals made. And so those are the few questions. And another one that was brought up today that I think we feel had fallen off the cracks was on IDN factor here. The issue of offering multiple script versions for their products in communities where they ask your IDN and how then that would serve the needs of countries that have, you know, non-Latin script users and diverse languages. Those are some of the concerns I would like to hear what the board thinks about. >>HEATHER DRYDEN: Thank you for that, Kenya. Further comment? >>PETER DENGATE THRUSH: The answer is we share all of those concerns with you. And we're -- and they are valid, and they need to come out -- the answers to them need to come out of the process. It's hard to see how the board can do much more than we are doing, which is to say please get thus material. It would be most useful if it is done by, it will be most useful that -- you know. The times that we have tried to force the pace in policy development haven't always been successful. So simply giving the working group deadlines, et cetera, to complete their work, which people have suggested, isn't always the way. Your other point about how does the GAC get involved in that process, I assume -- I understand that there are members of the GAC on the working group or participating in the work of the working group, so that's one mechanism. And I suppose the others are at the time when the report comes back to the GNSO and to the At Large is the time for GAC intervention and GAC contribution. >>HEATHER DRYDEN: Thank you, Peter. Switzerland. >>SWITZERLAND: Thank you. I just would like to raise the attention to the board of the fact that we think that for the future acceptance of the ICANN model in the global community, and especially in the political community, it is of extreme relevance how many, let's say, percentage of these new gTLDs will come from or there's be in the benefit for the developing world. And there will be a huge difference in the acceptance of the -- in the future acceptance of this model when you have, maybe, out of 500 new gTLDs maybe one or two, or none, or you have at least -- I don't know, say a number, 10% of applications for the benefit of people in developing countries. And looking at the DAG as it is now, we are not really sure whether this concern is sufficiently addressed, and especially you can always say we will learn in the future rounds and so on and so forth, but I think the argument that there should be a significantly high number of applications already in the first round is a very strong argument, and I just would like to raise your attention to this fact, that this will have an effect on how ICANN is performing. Thank you. >>PETER DENGATE THRUSH: I will just quickly respond. I agree completely with the first point that part of the measure of success of this program will be just as you say, the number of applicants that come that fall within that category. >>HEATHER DRYDEN: Thank you, Peter. I have U.K. >>UNITED KINGDOM: Thank you, Chair. I'd just like to come in behind the point raised by Alice, which was a feature of our discussion with the ALAC this morning, this question of bundling of multiple script applications. This is a proposal which we very much support as one that will further enhance ICANN's commitment to internationalizing the Internet to promoting linguistic and script diversity in the Domain Name System. And I'm aware that representations have been made to the chair, to Peter, on this very issue. I'm aware that the GNSO has not adopted any policy on this, and that has constrained the ability of the JAS to advance a recommendation on this issue. So I would like to know what -- how has the chair or the board handled the representations made to him on this issue? I'm referring in particular to a letter dated 11 May, which was addressed, actually, both to the chief executive and the chair. I think that representation, I would have hoped, would have signaled to you both that this is a major issue. And as I say, it is one that the U.K. would like to see advanced early in support of the proposal that multiscript applications for the same string are an acceptable element in the guidebook. There are cost efficiencies, because you are dealing with the same string. It's just that it's in different scripts. And as Alice, I think, indicated, there are communities where you have, within the same community, people using different scripts. And if the guidebook only allows one application, well, how do you decide what kind of script? And there are political risks that would flow from arbitrarily selecting one script. So I just want to, as I say, inquire about how you have responded and dealt with that representation made to you. Thank you. >>PETER DENGATE THRUSH: Sorry, Mike. I'm just not quite clear which representation it was. Obviously we receive things every day. Just help me. Who was it from and what was it about? >>UNITED KINGDOM: It was -- thank you. It was from -- Well, the principal author of the letter was Ron Andruff, but there are a whole list of signatories in support of that letter. It's a letter dated 11 May addressed to you and to Mr. Beckstrom. >>ROD BECKSTROM: Peter, I can answer the question. Clearly on the surface it's an attractive idea to think you can bundle all these things together and process them as one bunch, but unfortunately you can't because the processes that have been designed for the entire program have to treat each string character set separately and script set separately. So there are no simple economies of scale. And it would be a complete restructuring of the program or an evolution of the program, which could certainly be possible in the future. And I myself am reminded of the complexity of these issues when I attended the IDN variant working group this morning, and the variants issue, after all these years, many of the experts still feel we do not even have a definition of the term "variants." And doing multiple scripts associated with one string also invokes issues of variants. That just touches on one dimension of complexity that we do not yet have the technology for, the definitions for, and, therefore, not even the foundation for creating such a proposed bundled processing. So the community, I believe, has discussed and looked at these issues multiple times in the past and come to the same conclusion, which is that there is no quick and easy fix, either to the variants issue or to the multiple scripts issue. So the response to that question in Mr. Andruff's letter will certainly be we are not prepared to do that. We don't have the science, the technology, or the process developed for the new gTLD program, nor was that defined, I believe, in the initial PDP from the GNSO. Thank you. >>HEATHER DRYDEN: Thank you, Rod. Did you want to do a quick follow-up to that, U.K? And then I'll return to the speaking order. Please. >>UNITED KINGDOM: Thank you, Chair. If I may, very quickly. While I think it's a very regrettable situation that ICANN has found itself in, okay, no quick-and-easy fix, but this is a crucial, critical issue to the credibility of ICANN, as I say to its contribution to promoting diversity and accessibility for -- accessibility to the Domain Name System, to the Internet for communities in many, many developing countries in particular. So if the issue has been shut down, I'm frankly surprised, if I can leave that on record. Thank you. >>ROD BECKSTROM: Heather, may I? >>HEATHER DRYDEN: Please, Rod, yes. >>ROD BECKSTROM: Thank you very much for your views from the United Kingdom. And I would just like to suggest a modification to some of the language, which is it's not the situation ICANN finds itself in. It's the situation all of us find ourselves in. The IETF, which has the brilliant engineers that created the Internet itself and have evolved it for 40 years, have not yet solved the variant issues and problems which are just one dimension, as I mentioned, of the important issue you have raised. I hope and certainly look forward to all of us working together in the future to solve these problems. But there are genuinely complex issues that I think all of us can look at, but they may take some time to develop. Thank you. >>HEATHER DRYDEN: Thank you, Rod. I have Sri Lanka, Mike Silber, and Senegal. >>SRI LANKA: Thank you, Chair. I just want to echo the sentiments expressed by Kenya and my friend Thomas and Mark in connection with this issue earlier, so I will not repeat myself in relation to the points raised by them. Just a point of clarification that I have in relation to the JAS working group and their findings, because the board has chartered them with the task of formulating concrete recommendations. Will the board be amending the application guidebook in accordance with the recommendations made by JAS? And at what point is it going to be done? As an ongoing basis? In relation to the issue about GAC participation, I believe we have a challenge about building consensus and the way in which we communicate with another working group, sitting side by side, along with so many other activities taking shape in this environment. Some of us may be individually submitting our comments directly to the JAS working group, representing our individual countries. Thank you. >>PETER DENGATE THRUSH: Just a very minor technicality to start with. The board doesn't charter the working group. The board has asked the SOs and ACs to deal with this, and they have chartered the working group. So that means there is actually that other layer that they will come back and report. And that leads to the second question, which is we are going to be amending the guidebook to include reference to the work of that. But we don't have, yet, recommendations from ALAC or GNSO to put in the guidebook at this stage. So we'll be putting in all the other kind of positive things that we have been trying to say and we are going to have this other resolution which basically says please give thus work and here is some money that's available. All that stuff I read out before. >>HEATHER DRYDEN: Thank you, Peter. Mike, you are next. >>MIKE SILBER: Thank you, Chair. I will try to be brief. I am very impressed with the lobbying efforts of some of the private sector have managed to get to GAC members. I think there is a lot of confusion in referring to bundling and support for needy applicants. Support for needy applicants is one issue. Bundling is a totally unrelated issue which, as I understand it, has been mooted in various fora and knocked down in each of those, including having been mooted within the JAS working group and knocked down in the JAS working group itself. So I think if you are talking about following the ICANN model, following the multistakeholder model, we have to accept that that model also allows for community consensus to be both including the community, not simply accepting the view of a small grouping, as well as it may be because they have their own objections to that. In addition, I don't really see how you promote competition by giving a single entity total global dominance of what maybe a generic term in multiple scripts and multiple languages. [ Applause ] >>MIKE SILBER: And so it may mean that somebody with a relatively small language script is then forced to go with an applicant because they manage to get the ASCII English term that then have a global monopoly on, for example, music or travel. What will stop somebody from having a smaller script or a more esoteric script, then, from -- that would prevent somebody obtaining the word for music in their own language or in their own particular scripts. I think there are massive dangers and that we shouldn't confuse supporting needy applicants with the possibility of bundling. Now, if we are getting into technical detail of a needy applicant who may be applying for more than one name and they have a right to that or there's a valid community attachment, that's something that the JAS working group or other community inputs need to propose through to the relevant SOs and ACs and then come up to the board. But to simply raise it top-down when it hasn't appeared in any of the other scorecards I think is, in a way, diminishing some of the critical emphasis we need to place on that issue of needy applicants. And we're just getting distracted by other issues. >>HEATHER DRYDEN: Thank you for that Mike. I have Senegal, next, please. >>SENEGAL: Thank you, Chair. I really want to support what Kenya and U.K. say about how could ICANN make some equity on the new gTLD process. I think we need to think more about it. And I really appreciate what the board said about helping -- trying to work with us, to help the JAS and the At Large group on a new report, how to take into account our concern as developing countries. And my concern is about the process and the agenda. If we have to wait to have the report of the JAS and at Large, and also my -- I wonder if we could have time from now to Dakar to have a consensus on the GAC about if we -- about the amendment of the report, the report of JAS. And I also take this opportunity to inform the GAC and the board that the AU, the African Union and Senegalese government will organize a high-level meeting on a specific ICANN agenda for Africa in Dakar from 19 to 21 of October, just before ICANN meeting. And I think the output of this meeting can really help ICANN to take into account the specificity of the African community. And we have a lot of concern about new TLD. We have a lot of concern about IDN, about dot Africa and so forth. And I think it will be a right time to have our input on these issue. And I think there's opportunity also to welcome all of you in Dakar in October. Thank you. >>HEATHER DRYDEN: Thank you very much for that, Senegal. France, you are next. >>FRANCE: Thank you. Bonjour. Just one quick comment. I just maybe missed something in the process. This group is very useful and productive, but what I don't understand from the board side, and I hope you can explain to me this. Why are you so involved in all of the topics, like trademarks, competition, and many, many things, and on that very political topics that you just say there is a group. So we just wait. It's okay to have a group, a community group. But you don't seem to take responsibility. Do you know what I mean? It's just that you just wait. And maybe it's time to say that, as board, we always will, and it is our duty to take responsibility, before we consider important issues, the work has been done, we consider it by principle that for the first round something must be done for them. So we are going to do something. I think just to wait that. I don't want to speak for them, of course, but I think it is just wait you to say something that you have to demonstrate that you have the will. And $2 million, it's positive. We have to admit that. But maybe it's not enough. And maybe it will be too late in a sense. I also hear that. They also say that we will be vulnerable because we won't have the money to protect what is important for us with the geo TLD, language community TLD. And some people, they can just come, because they have the money to do it, to steal us something. And many years ago, this had a name, okay? Like colonial behavior. I'm from a colonial country with a nonglorious past. I'm not proud of that. So maybe that's why I am thinking differently. Maybe it's too passionate subject. But what I'm -- Please, if some people just laugh on that, just don't laugh. It's serious. It's political. Because in the end, we all want -- I have this card here, it's one world, one Internet; okay? This is our constitutional principle here at ICANN. We all inside of this. And that's why I think it's so important for them to -- not to stay on that. Just to wait for that group. One of our former prime ministers just once say that when you want to bury a problem when you are a government, you just create the commission. 100 years after, nothing has changed at global governance, unfortunately. So this is basic politics. Political solution of will. And I really pledge the board to do a little more than we can have something more successful. And I stop here because I don't want to speak for other people, but I just say what I just said. So politics has been done but please do a little bit more and engage a little more on this. Thank you. >>HEATHER DRYDEN: Thank you for that, France. I have Mike Silber and Kenya. >>MIKE SILBER: Very briefly. All of the issues we have touched on have been through some of the processes. And we have been through equivalent committees and working groups dealing with the vertical integration question, dealing with trademark issues. They have been constituted. They have fed their input into the board which has then evolved. This is no different. It is following as a formal accelerated pace because of the pressure to implement the program, but it is following exactly the same process. There is no difference simply because this is political and rather a technical-legal or a technical-technology issue. And on that basis, I would suggest that additional participation to move this more quickly doesn't require the board to impose from the top down but to let the multistakeholder model work by actually building consensus from the bottom up. >>HEATHER DRYDEN: Thank you, Mike. Kenya? >>KENYA: Thank you. I'd like to agree with my French colleague, that it's extremely important to make sure -- and, of course, express the same concern, a lot of enthusiasm when it comes to intellectual property issues and others. But alas when it comes to developing country issues and supporting developing countries, in fact, to begin with, out of curiosity, I would like to know how you came up with the $2 million -- you know, how that figure was developed and how you came out of curiosity because thinking back to a process, for example, redelegation of the dot KE cost us nearly the same amount. When they talk to the ICANN community they say it doesn't cost anything. We need to be serious about these issues. One of the issues I would like to go back and insist how are we going to ensure that we are creating a conducive environment to make sure that developing countries and needy applicants are not left behind in this new gTLD process. I think that is the important issue, and it needs to be reflected not only in the DAG but also as we are launching this new gTLD. We need to be sure that that is taken care, to ensure that we have the One World, one Internet philosophy that we are talking about here. Thank you. >>HEATHER DRYDEN: Thank you, Kenya. I have Sébastien, Portugal and Rita. >>SÉBASTIEN BACHOLLET: Thank you very much. I think we need to hear each other because I think what Peter said in the beginning, if I take the point of view of one of the exparticipants of the JAS group, I think it is a very important step forward and improvement and it will help the JAS group to deliver a report hopefully. At the same time, the question is: How a different group could still participate to the JAS group? It seems that the GAC have some difficulty to send participants. Then I would like to tell you two things. The first is the second milestone, it open for public comment and it is open for everybody. A few days ago it was published in the agreement of both the GNSO and the ALAC. And it is one way to participate and to be active in the definition of the process to help a needy applicant. And, of course, you are the GAC. You will be available when we receive as board final report of the JAS group through the GNSO and the ALAC to make any additional comment. And there are plenty of opportunities to participate. I am not sure the best way to help this process to go is to spend time with 100 people around the table when unfortunately there are 12 people -- or 20 people who are each week two hours twice a week trying to figure out what to do for needy applicant. The work must be done there. And if you don't think the board do enough, I can tell you that there are some board members who follow very, very carefully what is happening there. And we hope that plenty of participants in this meeting will be participating in the next JAS call because they need. And it is a need for the needy applicant at the end of the day. Thank you very much. >>HEATHER DRYDEN: Thank you, Sébastien. Portugal? >>PORTUGAL: Thank you. Well, I was thinking of whether it would make sense to intervene at this stage or not. But reading all these Twitters, I thought I should say something. I think that ICANN people, they are forgetting that there is something that is called world. And there is something that is called IGF. There is something that is called European Union and OECD and where the majority of the delegates here are almost every single day supporting and defending the multistakeholder model. Every single day we are doing something about business sector, about the civil society, about the importance of all these stakeholders in the management of Internet. If ICANN cannot help us in doing this, I'm afraid ICANN will have much more problems in the future. For instance, IGF can be the last one in Nairobi next September. So it is better if you are equated with what was going on, what the problems are and help these delegates to help you. Thank you. >>PETER DENGATE THRUSH: Can I just ask a follow-up? We do appreciate and we are aware, obviously, that all of those people who are here, and particularly those who are at the GAC, are supporters of the model. And we've said previously, we are the ones trying to make this work and obviously a strong GAC means a strong ICANN. So, firstly, thank you for the daily battle that you refer that you're having. The question from us is: How can we help you in that battle and defend the multistakeholder model? What particularly are you asking us to do to help you with that battle? >>HEATHER DRYDEN: Thank you, Peter. I have Rita next. >>RITA RODIN JOHNSTON: Thank you, Peter. Just to follow on Portugal's comment and to respond to the gentleman from France and someone else who had a similar comment, to quote Erika, I think those comments touched me. I think we are happily speaking more civilly, but still comments like that I think are disturbing to me because I hope no one on the GAC truly believes every member of this board does not care about needy applicants, does not care about supporting them, does not care about the developing world. We also care about the multistakeholder model. And if you ask us why we are arguing more about trademarks, it is because we've had a process for that. We had an IRT. We had a STI. We had multiple comment periods. So the board was given a policy that we saw as a compromise that came from the community to us and we are trying to reconcile some comments that you all have had. With respect to the needy applicants, we have been awaiting some of the work product from the JAS working group. And we heard from the GNSO yesterday there have been some bumps in the road in terms of procedures there and how these cross-constituency working groups work. I think everybody wants to have the benefit of getting this information and this board especially does. I think this fund was set up in a way to continue to incentivize this multistakeholder community, bottom-up process to give us some standards that you think would be used to apply this money. Please do know that the board does deeply care about this. >>HEATHER DRYDEN: Thank you for that, Rita. I have Switzerland and then Katim. >> SWITZERLAND: Thank you. I believe everybody believes the board cares about this. Maybe some wonder how much in compare to other issues. I think maybe we could ask you a simple question, which gives a little bit of a benchmark in this respect. Maybe the board has done some thinking about how many percentage of new gTLDs from developing countries or for developing countries they expect. So a simple question: How many gTLDs should there be in the first round coming from developing countries? And how are you ensuring in the provisions in the DAG that this is going to happen? Maybe that's a simple question for the board to answer. Thank you. >>PETER DENGATE THRUSH: The answer is that we haven't got any rules or thinking about that at all. And you might -- I'm not sure how productive it would be. You could poll each individual board members on their predictions. We don't know what's going to come. We don't how many brand owners will apply for their brands. We don't know how many will apply for generics. We don't know how many will apply in IDN scripts and so forth. I'm not sure you will get a really helpful answer from the board. >>HEATHER DRYDEN: Thank you, Switzerland. Katim. >>KATIM TOURAY: Thanks, GAC chair. And thanks, GAC members. I am so happy -- (laughter). If I were probably another color, I would be able to say I have just really been tickled pink by this meeting. Really. [ Laughter ] I'm just thinking to myself that I only wish we had this meeting before this and I wouldn't say why. But I would just so wish we had this meeting before today because I think it would have given us so much more food for thought and, also, so much ammunition to fight some of the battles we have to fight. I thank you very much for your feedback. As has been said, I don't want to belabor the point. We are not perfect. We are just a bunch of individuals, very diverse people from all kinds of backgrounds. We certainly have or difficulties in some of the objectives and some of the responsibilities we have to discharge. I think in my opinion or my view, the message has been received loud and clear by the board. And knowing what I know about how we work, I'm sure we are going to take the advice and the feedback we got and in good faith we are going to take it to heart and really work as the Americans say our butts off to make sure we can deliver something we all can be proud of. Again, thank you very much. >>HEATHER DRYDEN: Thank you, Katim. So I think you may be the final speaker. Ah, European Commission, please. >>EUROPEAN COMMISSION: I just want to go on the record that we fully support I think what many delegations have said. Just to refer to what the Portuguese delegate has said, the Swiss delegate, the French delegate, but all other delegates that this is an absolutely critical issue for the sustainability of the multistakeholder model and the act of the inclusion of the model. We are looking, obviously there needs to be a lot of work to be done to prepare all of this. But I think we are all looking for tangible and concrete steps to be taken and then results. I mean, indeed if we get into a situation where there are very few or none gTLDs from developing countries, that that would be really embarrassing, that we will have to avoid as a collective effort. Thank you. >>HEATHER DRYDEN: Thank you, European Commission. And I think Egypt will have the last comment. Please. >>EGYPT: Thank you, Heather. Just very quickly, I do appreciate the work and the effort by the board to try as possible to be fair to everyone. But sometimes asking for the same thing from everyone is not one to one with fairness. I mean, if I ask everyone in the room to freely express himself but in English, then I'm not being fair to everyone. So, again -- and I believe this applies to many of the topics that were discussed today, that sometimes asking for exactly the same request from everyone equally might not be as fair as it seems. Thank you. >>HEATHER DRYDEN: Thank you very much for that comment, Egypt. And we are Russia next. Please. >>RUSSIA: Thank you, Chair. I think we haven't paid enough attention to the very important question, which is does the innovation affect the security and stability of the DNS infrastructure? And I believe the answer is yes, and it was not deliberated enough. Everything, all the questions about trademarks, about unregulated competition between registry and registrar, they encourage not only the market -- not only competition but also blocking of domains on the top level. And it is the point of decision, I believe. >>PETER DENGATE THRUSH: Wonder if I can ask the vice chairman of the board, Dr. Crocker, who was the founding chairman of the ICANN Security and Stability Advisory Committee and who is obviously a world expert on security and stability of the Internet to respond. Steve, can you answer the question about really whether the innovation we are proposing poses a substantial risk to the stability of the Internet? >>STEVE CROCKER: Thank you, Peter. As you said, this has gotten a lot of attention. I'm not sure that I understood the exact point of the question, what aspect that you were focusing on with respect to the potential risks to security and stability. So perhaps you could say a bit more. We certainly have looked at -- and the "we" here is a very inclusive "we." It is not just the Security and Stability Advisory Committee that I chaired for several years but also the full range in the community have looked at an awful lot of aspects to security and stability with respect to scaling, with respect to IDNs, with respect to DNSSEC, with respect to all the different aspects. So let me, if you would, say a bit more about -- if we get too specific here, this may not be the right forum. But I would like to get at least specific enough to know the general thrust of what your concern is. >>RUSSIA: Generally my concern is if the market -- especially in developing countries will face the issues which is unregulated by our national law, it will erase the opposition using cyber tools of discussion. I mean, just commercial cyber wars. And we just underestimate how active will be the commercial players on the market, which you will see the unfair competition, which is not regulated by the law. >>STEVE CROCKER: So there is a mixture of things that I think you're referring to. There is quite a lot of security issues in the Internet that are much broader than just domains per se, cyber attacks and fraud and identity theft and so forth. >>RUSSIA: And cyber attacks. >>STEVE CROCKER: And cyber attacks and so forth. That's a very, very big and very important area of concern of which ICANN has a relatively little leverage to do anything. But we get looked at to see what we can do about it because there aren't a lot of other mechanisms around. An important question, is expansion of the domain name system going to exacerbate those problems? Is it going to make it worse? And is it appropriate to put some controls in place with respect to that? A different element of what you might be asking about is whether there will be a tax on domain names per se as part of commercial warfare?hard to imagine that would be qualitatively different than anything we see already. There is some of that that takes place, but it has more to do with the business models behind those domain names. >>RUSSIA: I believe the model will be changed with the new gTLD model. Trademarks are considered property, and we have opened the market for the -- turn trademark into the domain, top-level name. And at the same time, an experienced registry will appear on the market, and so the cyber attacks, for example, we'll see on the top level of domains. I believe it's a big threat to the stability of Internet, and we -- the people will turn to the government if they face some significant disruption in their Internet service. So that's by -- we need the clear answer. >>STEVE CROCKER: Let me ask if we can continue this -- I'm very interested in what it is that -- the picture that you have in mind, and perhaps we can dig into this a little bit off-line. >>HEATHER DRYDEN: Thank you for that. I don't see any further requests to speak on this topic, so if we can move to the next item on the agenda. Peter. >>PETER DENGATE THRUSH: Thank you, Heather, yes. This is a really interesting and very typical problem. This is the question about appropriate. And I think that's the important word, the appropriate protection that should be offered to the Olympic and red crescent trademarks in relation to the (indiscernible) domain names. And the board has considered this very extensively particularly through the trademark group that has been formed to deal with this. And our current thinking on this falls into two categories, and the first is the concept of blocking other people from using those at the second level. We think there are at least three problems with using -- with blocking at the second level. The first is the concept of self-blocking. We're not sure that the applicants themselves appreciate that they would then themselves not be able to use, for example, Olympic.games or Olympic.sport or redcross.appeal or some of the other things they may want to use. But the other problem that was raised in our conversation with you on the 30th was that it might be helpful, because the plethora of spamming and phishing attempts that follow any kind of natural disaster, for example, in relation to Red Cross, or anything around the Olympiad, and the answer is that this won't help that, and the suggestion that it will might just lead to greater confusion. So while we might be able to block redcross.appeal, we won't be able to block redcrosstsunami.appeal or Red Cross anything else. So the amount of protection that's available through this mechanism is insignificant by comparison to the actual problem. But much more importantly than those two matters is the fact that this is an extraordinarily broad protection not actually justified by the current legislation at the second level. And would in effect operate to deprive many other legitimate trademark owners of their current trademark rights, which I'm sure is not intended. So, for example, Olympic taxis would not be allowed to register Olympic.taxi. Olympic fisheries wouldn't be allowed to register Olympic.fish or dot food and so on, and existing trademarks of Red Cross and we have seen a couple of redcross.salt. So current protection for these words doesn't create the kind of monopoly that's being suggested here. What's usually created in relation to these kinds of brands is protection against user confusion in relation to specific events or specific areas. So there's no justification for extending and creating this kind of sort of total monopoly at the second level. Moving to the first level -- and again, this is an extraordinary exercise. We accept completely that these organizations, enormously important, have the kind of authority and status in the world that justifies special attention. And clearly they have an enormous amount of legislative protection in each of their countries. So we accept that there is, from the GAC side and from our side, a major public- policy issue in relation to these names. I suppose one of the things we're not comfortable with is the suggestion that the reserved names list that's available for a completely different reason be used in this way. The reserved names list has been set up for largely technical reasons by RFCs, et cetera, and is not for another method of protecting famous brands or famous names in this sense. We think that there has been some consideration around related issues. And if there is going to be a kind of policy development, that that should be done by the GNSO in this area. We don't feel that this is an appropriate area for the board to be making policy at the 11th hour on the protection of these extraordinarily valuable cultural and other institutions. Our current suggestion, therefore, is that we place a moratorium on registration at the top level of Olympic and Olympiad and the Red Cross and red crescent and the other names that are supported, while the GNSO develops policy in relation to how these sort of names ought to be protected. So that's our current position. Not suggesting -- Not really a possibility at the second level, but something needs to be done at the top level. The proper people to do this are the GNSO. While they're doing that, we will place a block on these, not via use of the reserved names list because that's something else, to prevent any abuse while we come up with the appropriate policy to take care of this important public-policy issue. >>HEATHER DRYDEN: Thank you, Peter. Would the GAC like to make a comment on the information provided by the board? U.K.? >>UNITED KINGDOM: Thank you very much, Chair, and thank you for Peter for giving such a comprehensive account of your position, and we're very appreciative of the consideration you have given to these two particular quests from the IOC and Red Cross and red crescent movements. As you said, these are extraordinary requests, and that's why they merited the attention of governments, and ultimately, we were able to provide advice to you on adding them to the reserved names list. And I think we note what you say with regard to the moratorium, and then we will consult further on this. But appreciate very much your efforts in this regard. Thank you. >>HEATHER DRYDEN: Thank you, United Kingdom. United States. >>UNITED STATES OF AMERICA: Thank you, Heather, and thank you, Mark. I would like to join Mark in sort of expressing our appreciation for the overview of the efforts that you have undertaken to kind of look through what these requests entail. I do have a couple of questions, though, and it would be useful -- I know it's getting late and people are getting restive so I can put it out there to be followed up at later point in time. Just a question as to the hesitation vis-a-vis the evolution of the reserved names list. Somehow that seems to be considered sacrosanct, and I am just curious, if we can evolve the entire DNS, and we can introduce DNSSEC and we're going to transition to IPv6, and we are going to open up the new gTLD world to gazillions of new top-level names, would it not make sense that you would also examine the underlying purpose of the existing reserved names list? So we for one think that would not be an unreasonable approach and not to somehow consider it so unique that you can't reconsider it. So I would like to put that marker down. We strongly suggest that that list could be evolved as well. I would also like to just, I guess, express a bit of hesitation. And in fairness, I am not expressing the views of my colleagues around the GAC table on this one. So it's a hesitation coming just from (indiscernible). The idea of a GNSO policy process on this, frankly, if I were the IOC and the Red Cross, I would probably fall over and have a heart attack. It strikes me that this could take an enormous amount of time to address their concerns. And I am mind of the fact that I think at one point in time the GNSO itself had a small working group that looked into this issue while they were developing the new gTLD recommendations. So I look to the GNSO to correct me. And I don't know what the results of that work was. But I just would express some hesitation there that this strikes me as sort of kicking the can. I do appreciate that these are sensitive issues, and they are significant issues. I guess as you can -- If I can just restate what the GAC consensus advice noted, we think these two are fairly unique entities that have a measure of protection that we seriously doubt anybody else could meet, both in national law and international legal instruments. And that, to us, is pretty significant. It sets a very, very high bar. And I guess I'd have to express some disappointment at the moment that we aren't able to do more. However, do appreciate the moratorium, at least. And I guess we'll have to go back and consult on the challenges that you're citing on the second level. But thank you very much for sharing your deliberations. >>PETER DENGATE THRUSH: Can I just make a quick response to the U.S.? And then I might ask Bruce to answer the particular question of what happened to the working group. The reserved names list is sort of set up as a management and software sort of concept rather than this. Now, there's no problem at all with reviewing and revisiting that, as you say. The difficulty about doing that -- and this method is the difficulty. If we do it, the sense is if we do it in this case there's no protection against the sort of slippery slope. Somebody has to set a policy and the levels to prevent the next most famous institution from approaching us, and then the next and then the next. And then we have no protection or no answer when a famous brand owner comes and says, well, I have got a famous brand. So there's a sense of this particular tool becoming misused. You are absolutely right that they may be afraid that the time it will take to develop a policy on this will be long, but that's just testament, I think, to the difficulty of the issue which equally prohibits us from taking on this kind of policy development on the fly. The very fact that it is difficult is a good reason why we shouldn't do it in a hurry. But on the other hand we completely accept the principle that institutions like this need protection. Of course, they have all the other protections that we've created in terms of building these additional brand protection mechanisms that have been created. We don't often stop and say what as extraordinarily different regime we are looking at now than we have with, say, dot com and dot net and dot org, in addition to UDRP and all the other legislative processes, there can be GAC advice and a quick look and if there are any other applications coming through the process, they can be -- there are lots of other mechanisms. So it's not that these parties are going to be left unprotected. There are lots of other protection mechanisms. We just have a difficulty with, if you like, inventing this mechanism in this way. Bruce, are you able to help with the question about the -- was there a working group that looked at this in particular, other than perhaps the reserved names working group? Or is that, Suzanne, what you were -- >>BRUCE TONKIN: I assume that's what you are referring to. Yeah, the reserved names working group presented its final report on the 23rd of May 2007, and that's on the ICANN Web site, so I can send you a link to that. >>HEATHER DRYDEN: Bertrand? It. >>BERTRAND DE LA CHAPELLE: Thank you, Heather. Just to add an element to what has been said before. The angle that the board has taken in this topic is in view of the discussions that took place with the GAC and also work to has been done by staff to document this, is the consideration of the nature of those two organizations and the exceptional global public interest that they represent. As a matter of fact, initially there could be a concern whether this was going to be a list that could extend. And more in-depth analysis has comforted the message that the GAC has sent that these actually are two organizations that have a particularly exceptional status. So the message I want to give is that it is not so much a question of protection of trademark. It is not global protected trademark issue, or not only, certainly. It's fundamentally a recognition of the value and the global public interest value of those organizations, and the desire of the board to make sure that two dangers are taken into account. That because this has been spotted and we wouldn't have found an appropriate method for the first round, a problem at the top level may happen that we would not have the tools to address. Hence, the moratorium, to say we need to discuss that further and not get into a trap. So that's the reason why the first thing was done. And on the second thing, it's mostly a concern that we absolutely share to prevent misuse of the name of the Red Cross or the Olympic committee at the second level. And a complement to the approach is to say there will be a need to potentially explore with the rest of the community all the mechanisms that can be put in place that do not have to be put in place in the DAG, actually, or the Applicant Guidebook, but that can be put in place to detect, identify, remediate, abuses of registration using those words. So that this is work that can be open, and I am sure and I hope, but I'm sure that registrars and registries that will be applying will be willing to explore the ways to put in place modalities for this. But this is a different -- a different topic. I wanted to insist on the global public interest identification of those two entities. >>HEATHER DRYDEN: Further comment, before we move to the next agenda item? Okay. Peter. >>PETER DENGATE THRUSH: Thank you, Heather. We've now been through the latest letter. We've completely consumed all of our cocktail hour. I had required the board to be back to work at 7:30, having had dinner, so we're now using the board's dinnertime. What I suggest we do, then, is you mentioned early on, Mark and others, that you had other issues in your remaining letter. I think it would be helpful to us if you could identify to us which are the most important and in the next few minutes we can perhaps try and cover those. I have the letter and we can respond. >>HEATHER DRYDEN: In terms of other advice we've provided, it's all important, but having said that, are there ones that GAC members would like to raise here and now? U.K., please. >>UNITED KINGDOM: Thanks very much. The comments of 26 May on IP, in addition to proof of use, covered four issues and we had two proposals in the explication of those issues, and two statements of adherence to previous advice to the board, and on all of these we await the board's response. I mean, briefly, if I go through them quickly, would that help, or... Okay. Yeah. I see nods around the room, so I'll proceed. The first one was that the RFP for the provider of the clearinghouse includes a requirement to assess whether domain names that include a mark at the beginning or end could be included in the clearinghouse services. So should we take them one by one? What's the position on that? Thank you. >>PETER DENGATE THRUSH: Just looking here, perhaps Kurt or -- >>ROD BECKSTROM: Or Bruce. Bruce or Kurt. >>PETER DENGATE THRUSH: I think just trying to work on -- we'll try and get someone who can answer all these reasonably quickly, I think, because... >>KURT PRITZ: Hi, Mark. So I'm going as to start with the clearinghouse. The GAC advice, as I understand it, was that ICANN undertake a postlaunch study on certain -- okay. Go ahead. >>UNITED KINGDOM: Sorry. We're going through the four areas one by one, so I think if we stick to that procedure here, there will be clarity for all of us, I think. So the first question -- sorry, the first proposal in the GAC advice is that the RFP for the provider of the clearinghouse includes a requirement to assess whether domain names that include a mark at the beginning or end could be included in the clearinghouse services. >>KURT PRITZ: Yeah. So very briefly, we agree with that. Now, that is not a change in the guidebook, per se, but it's a change so that we can understand from the clearinghouse provider what would be required in order to include that, you know, exact match plus a key term if that were ever included in the guidebook. So we agree. >>UNITED KINGDOM: Thanks very much, Kurt. That's noted. Thanks for your consideration of that. The second is that ICANN should establish an independent postlaunch review of the clearinghouse one year after the launch of the 75th new gTLD, which inter alia will (a) determine whether the automated system should be enhanced to include key terms associated with the goods or services identified by the mark, and in association with this we request that the review provide a technical report on exact matches plus -- so additional elements to the exact match -- whenever they appear in a domain.. (b) that the review include a consultation on extending the notification period beyond 60 days. And again, what we would request in association with this advice for this element of the review is that a technical paper be prepared. (c) the review should undertake an analysis of the impact on the watch services market. And (d) that the review would assess the resource requirements for the clearinghouse. So, sorry, it's a rather long list with some sub-elements, but that's a summation of what's in the 26 May comments from the GAC. >>KURT PRITZ: Yeah. I remember -- I remember it well. So we agree to undertake those studies also. We were interested in how you arrive at the 75th TLD after one year of operation, but it seems as good as any, and if, when the time comes, that doesn't seem to be the right time to launch the study, we would consult with the GAC, but otherwise, plan to do that. >>UNITED KINGDOM: Thanks very much. That's well noted and appreciate, again, all your consideration of the several elements in that piece of advice. The third piece of advice was that the standard of proof required for the URS and the PDDRP should be reduced from clear and convincing evidence to preponderance of evidence, which we've long argued is an appropriate level of standard for this kind of area. Clear and convincing evidence is a very high standard, appropriate to criminal law, which we feel would be burdensome in the operation of the URS and the UDDRP -- sorry, PDDRP. Thank you. >>KURT PRITZ: Thanks, Mark. I'm going to report -- report the board discussion. In the United States, anyway, clear and convincing evidence is also a civil standard, but admittedly higher than preponderance, which to us means 51%. With regard to the URS, that was developed for cases where there were clear-cut cases of abuse and the -- you know, the discussions in the development of the URS and especially use of the word "clear-cut cases" seem to lend themselves especially well for a very rapid takedown model to require a higher standard than just a preponderance of evidence. And so the board was very clear there in continuing that standard. Similarly with PDDRP, that's a very dramatic remedy, where a party can go directly after a registry for domain names where there may or may not be a direct connection, and therefore the board also agreed among themselves that the standard of clear and convincing, higher than just 51%, was more appropriate. >>UNITED KINGDOM: Thanks for the consideration, and obviously we're disappointed that the GAC advice is being rejected here. I don't know if any of our GAC colleagues want to comment on the rejection of that advice at this stage. To the chair, should I leave that question open before I go to the final part of the -- final area of the advice on IP? >>HEATHER DRYDEN: Are there comments on that particular point before we move to the next item? I see none. Continue, please, U.K. >>UNITED KINGDOM: Thank you very much. As I say, we will need to consult within the GAC on that last item. Fourthly, the GAC advice was that the loser pays threshold should be reset at 15 domains, and the effectiveness of this threshold should be reviewed at the same time as the review of the clearinghouse. If you'll recall, I think the figure in the guidebook is 26, which we thought was an unjustifiable high number and we came up with this figure to reset it at 15. Thank you. >>KURT PRITZ: Thanks, Mark. This discussion has evolved. After while, at the end, the board recognizing that 26 was the result of a community discussion but seemed somewhat arbitrary, as the number 15 seems somewhat arbitrary for the first round. The board felt that, you know, it was -- it was acceptable to change the number to 15. I'd remind the GAC that at one time they -- we had jointly agreed, I think, there didn't need to be a loser pays model, but have recently gone back to that and implemented it, and the guidebook -- my recollection of the very recent board discussion, though, is that we will change that to 15. >>UNITED KINGDOM: Okay. Thank you. That's a very satisfactory conclusion to this round of detailed and not-so-entertaining issues but very important issues. We've consulted in national administrations with IP policy experts, consulted business, consulted users, and that's a satisfactory point on which to conclude at this opportunity. Thank you. >>HEATHER DRYDEN: Thank you very much, U.K. So at this stage, can we conclude this meeting? European Commission. >>EUROPEAN COMMISSION: As far as we are concerned, yes, we can. I would like to hear when we can expect a response in writing to the GAC communique. That would be useful information. Thank you. >>HEATHER DRYDEN: A response in writing to the letter we communicated yesterday? Is that the question? >>PETER DENGATE THRUSH: Some answers may come tomorrow and some answers may follow within a week or so. I'm not quite sure what -- what precision you require. Certainly within a month or two and certainly before Senegal. Some of it will -- there will be a formal response within a reasonable time, I think is the safest thing I can say. If you have a -- unless anyone can help. It's a question of what staff are available to write it and go through and deal with it in the usual way. So within a reasonable time, I think, is probably the answer. >>HEATHER DRYDEN: Norway, please. >>NORWAY: Thank you, chair. Does that also include like the issues we haven't been able to cover here from the 26 May letter, also some written responses on those things we haven't been able to cover? That would also be interesting to have responses to. Thank you. >>PETER DENGATE THRUSH: Yes. It will be a complete answer to all of the outstanding issues that are included in the letter of yesterday and the letter of the 26th. And I'm being told that it may well be as soon as tomorrow in relation to most of it. >>HEATHER DRYDEN: Okay. So I see no further requests for the floor, so with that, on behalf of the GAC, I would like to thank the board for meeting with us today, and we look forward to the board meeting tomorrow. >>PETER DENGATE THRUSH: Thanks, Heather. Can I also express that on behalf of all of us, it's been an extraordinary effort and a huge -- as I say, we think we now have, as a result of this, much improvement in most of the areas that have been discussed as a result of this interaction. So thank you, Heather, for chairing it. Thank you for the work that's gone into it from the GAC topic leaders and all other members of the GAC and the community. Thank you very much. Board members, please reconvene in the board working room at 7:30 as arranged. Thank you.