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Olympic showdown spells doom for ICANN, film at 11

Kevin Murphy, March 19, 2012, 17:51:39 (UTC), Domain Policy

ICANN’s 43rd public meeting, held in Costa Rica last week, was a relatively low-drama affair, with one small exception: the predicted death of ICANN’s Generic Names Supporting Organization.
The drama went down at the GNSO Council’s meeting last Wednesday – or “the day that everyone is going to remember as the downfall of the current GNSO Council” as vice-chair Jeff Neuman put it.
It had all the elements one might expect from an ICANN showdown: obscure rules of engagement, government meddling, special interests, delayed deadlines, whole oceans of acronym soup, commercial and non-commercial interests facing off against each other…
…and it was ultimately utterly, utterly pointless and avoidable.
The GNSO Council – which is responsible for forwarding community policies to ICANN’s board of directors – was asked to vote on a resolution giving special trademark protections to the International Olympic Committee and Red Cross and Red Crescent movements.
The resolution would have made it possible for the IOC/RC/RC organizations to apply for new gTLDs such as .olympic and .redcross while also disallowing confusingly similar strings from delegation.
The motion was created by a Drafting Team on the instruction of the ICANN board of directors, itself responding to a request from a heavily lobbied Governmental Advisory Committee.
The timing of the vote was crucial – the GNSO Council was not set to meet again until April 12, coincidentally the same date that ICANN stops accepting applications for new gTLDs.
If the vote didn’t happen last week, the IOC and Red Cross could have been basically banned from applying for new gTLDs until the second application round, years from now.
Confusingly similar strings would be eligible for delegation in the first round, however, which could mean both organizations would be locked out of the program permanently.
The resolution enjoyed broad support and was set to attract positive votes from every constituency group with the exception of the Non-Commercial Stakeholders Group.
The Non-Coms were unhappy that the Drafting Team recommendations underlying the resolution were, and still are, open for public comment.
While it’s not a unanimous view, they’re also ideologically opposed to the idea that the IOC and Red Cross should get special protection when a cheap way to object to confusing gTLDs already exists.
And the NCSG is far from alone in its concern that the decision to grant special privileges to these groups was a top-down decree from the ICANN board, lobbied for by the GAC.
Rather than simply voting “no”, however, the NCSG decided instead to force a deferral of the vote.
NCSG councilor Rafik Dammak said the resolution was “questionable on the merits and contrary to ICANN’s processes” and said the group had decided it had “no option but to defer this motion at least until the public comment period is closed”.
The GNSO Council has an unwritten but frequently used convention whereby any stakeholder group request to defer a vote until the next meeting is honored by the chair.
Barely a Council meeting goes by without one stakeholder group or another requesting a deferral. Usually, it’s requested to give a constituency group more time to study a proposal.
“The deferral request is intended to give people time to consider motions,” Council chair Stephane Van Gelder told Dammak. “The statement you just read is a statement against the motion itself.”
As Van Gelder noted, the NCSG did not have the usual excuse. Drafting Team chair Jeff Neuman had spent a few weeks prior to Costa Rica making damn sure that every stakeholder group, as well as the ICANN board, knew exactly what was coming down the pike.
As a veteran GNSO wonk, Neuman knew that a Non-Com deferral was likely. Even I predicted the move over a week before the Costa Rica meeting kicked off.
He was a little pissed off anyway. Neuman said:

For us to not be able to vote today is a failure. It’s a failure of the system under the guise of claiming you want more public comment. It’s a convenient excuse but in the end it’s a failure – nothing more, nothing less. This is a slap in the face to the governments that have asked us to decide.
You already know how you’re going to vote, it’s clear the vote is going to be no, so why don’t you stand behind your vote and vote now and vote no. That is what you really should be doing.
I want everyone to remember today – March 14, 2012 – because it this is the day that everyone going to remember as the downfall of the current GNSO Council as we know it and the policy process as we know it. Mark my words, it will happen. The GAC has asked us to act and we have failed to do so.

See? Drama.
Neuman noted that the deferral tradition is an unwritten politeness and called for the Council to vote to reject the NCSG’s request – an unprecedented move.
Van Gelder was clearly uncomfortable with the idea, as were others.
NCSG councilor Bill Drake said Neuman’s call for a vote on the deferral was “absolutely astonishing”.
“I never would have imagined I could say ‘well I don’t like this, this annoys me’ and so I’m going to demand we get a vote together and try to penalize a minority group that’s standing alone for some principle,” he said. “If that’s how we going to go about conducting ourselves perhaps this is the end of the Council.”
The Non-Com position also found support from other constituencies.
While Mason Cole of the Registrars Stakeholder Group said he would have voted in favor of the resolution, he said the way the policy was created looked like “a circumvention of the bottom-up policy development process”.
To cut a long story short (too late), after a spirited debate that lasted over an hour Van Gelder honored the NCSG deferral request, saying “something that we’ve always allowed in the past for everyone else should not be overturned in this instance”.
This would have pushed the vote out to the April 12 meeting — the NCSG would have effectively killed off the resolution purely by virtue of the new gTLD program timetable.
Neuman, however, had already invoked another quirk of the GNSO rules of engagement, demanding an emergency Council teleconference to vote on the resolution.
That’s now scheduled for March 26. Assuming the resolution is approved, the ICANN board will have just three days to rubber-stamp it before ICANN’s TLD Application System stops accepting new users.
If the Olympic or Red Cross organizations have any plans to apply for new gTLDs matching their brands, they’re going to have to be very quick.
Frankly, the IOC/RC issue has been a bit of a clusterfuck from beginning to end. This is one of those cases, it seems to me, in which every party involved is wrong.
The GAC was wrong to demand unnecessary special protections for these bodies back in June.
The ICANN board of directors was wrong to overturn established bottom-up policy when it gave the GAC what it wanted at the Singapore meeting.
The ICANN staff implementation that made it into the Applicant Guidebook last September was wrong and full of loopholes.
The Drafting Team was wrong (albeit through no fault of its own) to assume that it was refining established law rather than legislating.
The GNSO Council was wrong to consider a resolution on a policy that was still open for public comment.
The Non-Coms were wrong to abuse the goodwill of the Council by deferring the vote tactically.
There are probably a few typos in this article, too.
But does it spell the end of the GNSO?
I don’t think so. I suspect Neuman’s doomsaying theatrics may have also been somewhat tactical.
The GAC, which wields the hypothetical kill-stick, has yet to say anything about the drama. This may change if the GAC doesn’t get what it wants by the Prague meeting in June, but for now the GNSO is, I believe, safe.

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Comments (17)

  1. Louise says:

    “oceans of acronym soup” – you’re an excellent writer! Enjoyed that. – L 🙂

  2. theo says:

    suspense management gotta love it 😉

  3. Mary says:

    This whole argument would be avoided if the US Patent and Trademark Office offered trademark protection for Top Level Domains.

    • Kevin Murphy says:

      Not really.
      If the USPTO allowed TLDs to be trademarked, then any two-bit startup could game the process right from the outset.
      “Hey, I thought of a word! Give me a trademark!”
      Bad idea.

      • Mary says:

        I hate to break it to you, Kevin, but that’s what trademark law IS and that’s how it has worked in every other industry for decades. The first innovator has rights to their trademarked name. The rule of law is the way this country operates as opposed to the rule of popular opinion.

        • Kevin Murphy says:

          Don’t you usually have to have actually done something with the trademark, such as provide the product or service the trademark refers to?
          I could see why it might be logical to let an existing registry acquire a mark for their own TLD, but letting non-registries preemptively corner off the entire dictionary seems a little irresponsible to me.

          • Mary says:

            Thanks for the thoughtful question. The way trademark law works – in the United States, at least – is that you file your trademark application with a type of either in use or intent to use. Once the trademark application is approved, the applicant has six months in which to put the trademark to use in commerce, or the trademark is lost. Thus, users who were not approved by ICANN would lose their trademark, because they would have no way to use their trademark in commerce.
            I will use the .SAS proposed top level domain as an example from your article on February 2. The reason that it makes such good sense to have trademark protection for top level domains is, in today’s policy, neither Scandinavian Airlines nor SAS Institute, both of whom have trademarked the term .SAS in various industries, can say that either company has more of a right to the .SAS Top Level domain than the other. Thus, either company can prevent the other from getting the .SAS Top Level Domain using the legal rights objection process outlines in the applicant guidebook. Therefore, there is a high amount of risk for Scandinavian Airlines to apply for a top level domain. The company might have to strike a deal with competitors in any number of industries who may be able to claim legal rights to the term .SAS.
            However, if the USPTO offered trademark protection for Top Level Domains, the entire process would be simplified. The first company to step forward and follow the proper legal procedures to claim .SAS for the top level domain industry would then be the legal rights holder.
            Trademark protection for top level domains therefore greatly reduces risk associated with the top level domain application process for companies who may face competition from different industries for their trademarked term.
            That is, indeed, the purpose of Trademark law: to reduce risk and protect investment. Without trademark protection, applicants face the prospect of having to bid for a top level domain or pay off potential competitors.
            As an additional fact to consider, the trademark application process in the United States includes a time period where anyone may object to an applied for trademark. THIS is the appropriate forum in which to dispute trademark rights. It is better to dispute trademark rights after having paid a couple hundred bucks to apply for a trademark, than to have to dispute legal rights after having paid a $185,000 application fee.

  4. Long ago I and some others suggested that the US trademark statute be amended to say something along these lines:
    “No US Federally registered mark shall lose any protection or enforceability by virtue of non-registration in any or all domain name registries in which it could be registered.”
    That would remove at least some of the anxiety that trademark owners feel about non-registration and also, perhaps, reduce the perceived need for per-business TLDs.
    That, of course, won’t stop business TLDs from those businesses that care more about slapping their logo on everything than about actually protecting their marks.

  5. Kathy Kleiman says:

    I wish the IOC/Red Cross had understood how their request turned ICANN on its head when they submitted it. They did not take into account existing protections, or their own ability to apply for the names at a huge discount via the applicant support process. They wanted something, and they went after it via a series of exceptions — and it has cost the community heavily in terms of time and division.

    • Kevin Murphy says:

      And they’ve already spent more money on counsel than they would have spent on a no-brainer Legal Rights Objection.

    • Cintra Sooknanan says:

      I share this sentiment. My feeling is that it was a long but worthy fight for Applicant Support, and now that it’s gotten organisations that can benefit from it are ill advised.
      While IOC/RedCross are quite different organisations, it would have been much easier and certainly more palatable for them to claim for the partial exemption under the ASP (or even full exemption as an extension to the ASP). It would also build some consistency for other Multi National NGOs such as Blue Cross, Linked Community Development etc.
      Btw I see no mention of ALAC’s statement on the issue which states in finality that –
      ALAC specifically advises and requests the ICANN Board to reconsider its directions regarding the Red Cross and Olympic names as being ultimately against the global public interest. This matter should be reviewed with the purpose of giving the ICANN Board guidance on the global public interest related to making changes to previously-approved multi-stakeholder consensus. ALAC further advises the ICANN Board to leave the Applicant Guidebook unmodified in this regard . As the body mandated by ICANN to represent the interests of Internet end-users around the world, we believe that this initiative damages the credibility of ICANN’s multi-stakeholder model without providing substantial end-user benefit, but has the effect of creating new potential sources of public confusion and instability.

  6. John Berryhill says:

    My favorite part of this whole tempest in a teapot is the post-hoc rationale which was constructed to argue that these two organizations – and no others – are distinct from any other international organization in the world.
    The bottom line is that the Red Cross and the IOC earn a lot of revenue through licensing. If UNICEF pulled in that sort of cash, I’m sure someone would find a convenient categorization for the three of them. By golly, we need to get those starving kids doing some rhythmic gymnastics.
    At least the Rosicrucians (Ancient and Mystical Order Rosae Crucis – i.e. the “Rose Cross”), are safe for now.

    • Kevin Murphy says:

      I figured it was only a matter of time before an ICANN conspiracy theory steered into Dan Brown territory.
      Maybe the board of directors’ new conflicts policy could include requirements to disclose membership of the Freemasons, Illuminati, Bilderberg Group, etc.

      • I know that last paragraph was intended tongue-in-cheek, but of course it should incude such requirement.
        Membership of any organisation whose architechture tends to promote the welfare of its members, or help a brother-in-need will always create a real or perceivable conflict of interest, and must be declared.
        About 10 years ago, there was the case of about a Guernsey man and his greenhouse which went to the Strasbourg Human Rights Court and directly led to the downfall of the office of the UK Lord Chancellor and major constitutional change.
        This case reiterated that apparent bias (even if there is no actual bias) is enough to taint the process and violate the standards of fair hearing.
        So yes, membership of such organisations must be declared, fairly *and* squarely.

        • John Berryhill says:

          Nigel, does this include the “men who wear hats” society?

        • Cintra Sooknanan says:

          It stems from the principle that — Justice must not just be done but must also be ‘seen’ to be done.
          While certain that there will be sufficient publicity one way or the other, I hope the rationale is sound to allow consistent application tempering the open floodgates.

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