ICANN chair expects more new TLDs delay

ICANN’s new top-level domains program is unlikely to be approved at its San Francisco meeting next month, according to chairman Peter Dengate Thrush.
“We don’t think we’ll be able to approve the final applicant guidebook in March,” he said in a new interview with World Trademark Review.
This confirms my suspicion that changes to the Guidebook made following the upcoming meeting between ICANN and its Governmental Advisory Committee may be too extensive for ICANN to rubber-stamp without first consulting the community.
The ICANN board and the GAC are due to meet in Brussels, February 28 and March 1, to discuss the GAC’s outstanding concerns.
Chief among these concerns is trademark protection, where the GAC is pretty much aligned with the interests of the intellectual property constituency.
Brussels will also cover matters such as geographic names protection and procedures for dealing with controversial strings that governments may want to object to.
While ICANN is under no obligation to adopt the GAC’s suggestions wholesale, if it makes substantial concessions its bylaws will likely demand more public comment on the changes.
ICANN’s board indicated last week that it plans to tell the GAC where it disagrees with its advice at a consultation March 17, one day before its San Francisco meeting.
It also said that it plans to approve a Guidebook “as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook” published in November.
UPDATE: I had an opportunity to put Dengate Thrush’s comments to ICANN CEO Rod Beckstrom this afternoon. He said: “I’m not going to forecast when the final Applicant Guidebook will be approved.”

Details of ICANN’s government showdown emerge

Eight governments will face off against nine ICANN directors and an outside lawyer at the Governmental Advisory Committee showdown in Brussels at the end of the month.
That’s according to a draft agenda for the two-day bilateral meeting on new top-level domains, posted to an ICANN mailing list over the weekend.
The GAC’s 12 remaining concerns appear to have lumped together into eight thematic sessions, each of which is assigned one or more GAC reps, ICANN directors and staffers to “lead” the discussions.
The lead governments are: the US, UK, European Commission, Germany, Netherlands, Norway, Sri Lanka and Kenya. The US will lead or jointly lead three of the eight sessions.
Bruce Tonkin of Melbourne IT has been assigned the unenviable task of representing the ICANN board on the “morality and public order objections” issue, which the US government is currently trying to recast as a governmental right of veto over new TLDs.
Tonkin recently told ICANN’s GNSO Council that he believes Brussels will be focused on trying to understand the GAC’s current objections to new TLDs and help the GAC understand where ICANN has tried to take its previous advice into account.

If the GAC still does not believe that their advice has been heeded, the Board and GAC may discuss how the GAC advice could be taken into account in such a way that the interests of the overall ICANN community continue to be balanced.

He added that any “significant changes” proposed post-Brussels will likely be taken to the rest of the ICANN community for discussion at the San Francisco meeting, March 13.
Any changes proposed by the GAC would have to be “mutually agreeable between the GAC and the rest of the ICANN community”, he wrote.
The trademark protection discussion, likely to be one of the livelier sessions, will be led by the US, UK and Sri Lanka, with Rita Rodin Johnston, Ram Mohan and Gonzalo Navarro representing the board.
ICANN also plans to lawyer up. According to the document, the sole board lead on registry-registrar separation is Joe Sims, ICANN’s long-time outside counsel, a partner with the law firm Jones Day.

US wants veto power over new TLDs

The United States is backing a governmental power grab over ICANN’s new top-level domains program.
In a startling submission to the ICANN Governmental Advisory Committee, a copy of which I have obtained, the US says that governments should get veto power over TLDs they are uncomfortable with:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

In other words, if Uganda objected to .gay, Iran objected to .jewish, or Egypt objected to .twitter, and no other governments opposed those objections, the TLD applications would be killed off.
The fate of TLDs representing marginal communities or controversial brands could well end up subject to back-room governmental horse-trading, rather than the objective, transparent, predictable process the ICANN community has been trying to create for the last few years.
The amendments the US is calling for would also limit the right to object to a TLD on “morality” grounds to members of the GAC, while the current Applicant Guidebook is much broader.
The rationale for these rather Draconian proposals is stability and “universal resolvability”.
The worry seems to be that if some nations start blocking TLDs, they may well also decide to start up their own rival DNS root, fragmenting the internet (and damaging the special role the US has in internet governance today).
The US also wants TLDs such as “.bank” or “.pharmacy” more closely regulated (or blocked altogether) and wants “community” applications more strictly defined.
In the current ICANN Applicant Guidebook, any applicant can designate their application “community-based”, in order to potentially strengthen its chances against rival bids.
But the US wants the Guidebook amended to contain the following provisions:

“Community-based strings” include those that purport to represent or that embody a particular group of people or interests based on historical components of identity (such as nationality, race or ethnicity, religion or religious affiliation, culture or particular social group, and/or a language or linguistic group). In addition, those strings that refer to particular sectors, in particular those subject to national regulation (such as .bank, .pharmacy) are also “community-based” strings.
…
In the event the proposed string is either too broad to effectively identify a single entity as the relevant authority or appropriate manager, or is sufficiently contentious that an appropriate manager cannot be identified and/or agreed, the application should be rejected.

In practice, this could potentially kill off pretty much every vertical TLD you can think of, such as .bank, .music and .hotel. How many industries have a “single entity” overseeing them globally?
While the goal appears to be noble – nobody wants a .bank or .pharma managed by hucksters – the Community Objection procedure in the Guidebook arguably already provides protection here.
The US also wants the policy allowing the vertical integration of registries and registrars reining in, for TLD applicants to justify the costs their domains will incur on others, and a dramatic overhaul of the trademark protection mechanisms in the Guidebook.
In short, the US wants the new TLDs program substantially overhauled, in ways that are certain to draw howls of protest from many in the ICANN community.
The document does not appear to be official GAC policy yet. It could well be watered down before the GAC meets the ICANN board in Brussels at the end of February.
ICANN said earlier this week that it plans to approve a Guidebook “as close as practically possible” to the current draft, and heavily hinted that it wants to do so at its San Francisco meeting in March.
But if many of the US recommendations were to make it through Brussels, that’s a deadline that could be safely kissed goodbye.

Porn set to steal the show in San Francisco

ICM Registry’s .xxx top-level domain looks set to grab the headlines at ICANN’s meeting in San Francisco, due to government-forced delays.
While ICANN is hoping to approve its new top-level domains program in March, that decision may wind up receiving less media attention than the final approval of the porn-only domain.
ICANN last month said that it wanted to hold a final consultation to resolve its differences with the Governmental Advisory Committee – which broadly objects to .xxx – in February 2011.
This referred to a proposed meeting between the GAC and the board, which has now been officially scheduled for February 28 in Brussels.
But a resolution carried by ICANN this week has pushed the consultation back to “no later than Thursday 17 March, 2011”, the day before its San Francisco meeting.
That would put the sign-off of ICM’s contract on the same billing as the planned final approval of the new top-level domains Applicant Guidebook and the launch of the new TLDs program.
San Francisco is set to be the focus of unprecedented media attention, due to its location and the likely presence of Bill Clinton. We’re probably looking at tighter stage management than usual.
With that in mind, I expect ICANN bosses won’t be too happy that porn-friendly .xxx is likely to steal away many column inches they would prefer devoted to new TLDs.
Porn in headlines gets clicks. Readers understand it, and you generally don’t need to explain to an editor what a TLD is. I know which story would be easier for me to sell.
Had ICANN put .xxx on the agenda for Brussels – which does not appear to have been ruled out yet – it could have wrapped up the ICM saga with a resolution quite quickly afterward.
That would have given ICM a week or so of undiluted media coverage, and the new TLDs program would not have had to share the spotlight with porn come San Francisco.
The question is: why is .xxx apparently not on the agenda for Brussels? Given ICANN’s previous decision to hold the meeting in February, responsibility seems to lie with the GAC.
Rumor has it that there’s a bit of a power struggle going on behind the scenes, with some elements of the GAC resistant to make Brussels the official final .xxx consultation.
Time will tell whether this position is firm or flexible.

ICANN sets March deadline for new TLDs

ICANN appears determined to put debates about its new top-level domains program to bed at its San Francisco meeting in March.
The resolutions from Tuesday’s ICANN board meeting, published this evening, give every indication that ICANN wants an end to the delays.
This seems to mean it will take a hard line with its Governmental Advisory Committee, with which it is due to meet in Brussels at the end of February.
The board resolved that it “intends to progress toward launching the New gTLD Program, as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook.”
It remains open, however, to take action on the GAC’s concerns, which include trademark protection and the treatment of geographic strings.
It wants the final GAC consultation, which is mandated by its bylaws, to take place March 17, the day before the board meets in San Francisco.
This is encouraging news for anybody who wants to apply for a new TLD, as it means ICANN would be able to launch the program shortly thereafter.
If that happens, it could be able to start accepting applications possibly as early as mid-July (although a late-August/early September window may be more likely).
More on this tomorrow.

Governments to take trademark concerns to ICANN

ICANN’s Governmental Advisory Committee will head to Brussels next month determined to persuade ICANN to strengthen the trademark protections in its new top-level domains program.
The GAC is set to take many of the concerns of the trademark lobby to its meeting with ICANN’s board of directors, UK GAC representative Mark Carvell said in an interview today.
“It’s very important that the interests of trademark holders are fully respected and that the costs that might flow to them are mitigated as much as possible,” he said.
“Their interests should not be undermined in any way that creates unnecessary burdens for them – it interferes with trade, business development and so on.”
The GAC is currently working on 12 “scorecards” that enumerate its concerns with the Applicant Guidebook for new TLDs, as well as more “overarching” issues with the program.
Carvell has been charged with writing the scorecard on trademark protection. He recently met with several large brand interests in London, as World Trademark Review reported last week.
I get the impression that the GAC’s position will be less hard-line than some of the IP lawyers WTR quoted, who want a wholesale return to their proposals of two years ago.
One protection the IP lobby wants restored to the Guidebook is the Globally Protected Marks List, which would take a lot of the cost out of defensive registrations in new TLDs.
The GPML was proposed by brand holders, but did not make it into the current version of the Guidebook.
“Whether we can simply go back to that, I doubt, but we may discuss it,” Carvell said. “I’d be hesitant to simply revert to a set of proposals that did not get full support.”
He added that protections granted in the launches of .eu and .co – which had a Specially Protected Marks List similar to the GPML – could also provide the basis for discussion.
Another protection, the Uniform Rapid Suspension policy, designed to allow trademark holders to quickly block blatant cases of cybersquatting, has been watered down quite a lot since its first iteration.
“The URS does not achieve its original objectives,” Carvell said. The GAC will push for it to be strengthened, not fundamentally revisited, he said.
“We don’t want the Trademark Clearinghouse completely remodeled, we’re not looking for the URS to be totally reshaped, we want to work with ICANN to improve these mechanisms,” he said.
The two-day Brussels meeting, scheduled for February 28, will not all be about trademarks, of course. Other issues include geographical name protection and the treatment of “controversial” strings.
There’s a feeling in some parts of the GAC that TLDs deemed so controversial they they are likely to be blocked by certain nations (think .sex, .gay etc) should be given an “early warning” dissuading them from continuing with their applications.
Unsurprisingly (given its role in overseeing the DNS root) but ironically (given its First Amendment) it is the US GAC representative who has been assigned work on this particular scorecard.
It seems to me that the list of concerns the GAC will take to Brussels is going to be quite substantial. We’re likely not talking about only minor edits to the Guidebook.
While ICANN may feel under some pressure to officially launch the new TLDs program at the close of its splashy San Francisco meeting in March, it’s my growing feeling that this may not be realistic.
If the GAC gets even half of what it intends to ask for, ICANN’s rules could well call for another public comment period before it can sign off on the Applicant Guidebook.
Carvell said that the GAC is very sensitive to the concerns of applicants, eager to launch their TLDs, saying the GAC has been placed “in a very unfortunate position”.
“Nobody wants this to go beyond San Francisco,” he said. “One would hope not, but we can’t rule out that possibility.”
He suggested that some of the GAC’s issues could be deferred in the interests of timing.
Trademark and geographic string protections refer directly to the content of the Guidebook, but other issues, such as economic analysis and supporting applications from developing countries, do not.
“It may be that some of these issues could be further explored and discussed in parallel with the launch,” he said, noting that there’s a four-month buffer period envisioned between the approval of the Guidebook and the opening of the first round of applications.

New TLDs may face more GAC delay

ICANN has finally confirmed the date for its groundbreaking meeting with its Governmental Advisory Committee, and it doesn’t look like great news for new top-level domain applicants.
The GAC and ICANN’s board of directors will meet for a two-day consultation in Brussels, starting February 28, according to an announcement late yesterday.
Attendees will be tasked with identifying the problems the GAC still has with the Applicant Guidebook, and trying to resolve as many as possible.
The devil is in the detail, however. ICANN stated:

This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.

This means that, post-Brussels, a second GAC consultation will be required before the ICANN board will be able to approve the Guidebook.
Under ICANN’s bylaws, when it disagrees with the GAC, it has to first state its reasons, and then they must “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
ICANN appears to have now confirmed that it has not yet invoked this part of the bylaws, and that Brussels will not be the “mutually acceptable solution” meeting.
The best case scenario, if you’re an impatient new TLD applicant, would see the second consultation take place during the San Francisco meeting, which kicks off March 13.
The board would presumably have to convene a special quickie meeting, in order to officially invoke the bylaws, at some point during the two weeks between Brussels and San Francisco.
That scenario is not impossible, but it’s not as desirable as putting the GAC’s concerns to bed in Brussels, which is what some applicants had hoped and expected.
The GAC is currently writing up a number of “scorecards” that enumerate its outstanding concerns with the Guidebook.
Mark Carvell, the UK representative, has been tasked with writing the scorecard for trademark protection. Other scorecards will likely also discuss, for example, the problem of objecting to TLD applications on “morality and public order” grounds.
ICANN’s board, meanwhile, is due to meet this coming Tuesday to agree upon the “rules of engagement” for handling disagreements with the GAC under its bylaws.
When these rules are published, we should have a better idea of how likely a San Francisco approval of the Applicant Guidebook is.
Surprisingly, the ICANN announcement yesterday makes no mention of ICM Registry’s .xxx TLD application, which is the only area where the board has officially invoked the bylaws with regards the GAC’s objections.
The Brussels meeting, ICANN said, will be open to observers, transcribed live, and webcast.

What O.co says about new TLDs

Overstock.com’s shock rebranding move yesterday is not only a big marketing coup for .CO Internet, it also may be good news for new top-level domains in general.
In a pair of US TV commercials (available here and here if you’re overseas) Overstock has started calling itself O.co, the domain it bought privately from the .co registry for $350,000 last July.
When I wrote, last November, “Overstock’s .com domain is its brand, and that’s not about to change”, I may well have been wrong. Go to overstock.com and look at the logo.
This is good evidence, if it were needed, that the very same trademark interests currently opposed to ICANN’s new TLDs program are also keenly aware of the benefits.
Overstock has had its eyes on O.com for over five years, and fought unsuccessfully within ICANN to have single-letter .com domains released from the VeriSign reserved list.
It was not until .co relaunched last summer – essentially a new TLD – that Overstock got the opportunity to register a domain (almost?) as good as the one it wanted.
I find this interesting because Overstock, like many other major brand owners, has been a vocal opponent of new TLDs.
In a July 2009 letter to ICANN (pdf), for example, Overstock expresses many of the same views about new TLDs that are still being expressed by the trademark interests currently holding up the program.
I’m not suggesting that Overstock’s eagerness to use O.co negates its specific criticisms of the new TLDs program, but its conflicting behavior does seem to suggest a certain degree of cognitive dissonance.
On the one hand, it opposed new TLDs. But when a new TLD launched, it grasped the opportunity with both hands and rebranded the whole company around it.
If what I hear is true, many of the companies publicly opposed to new TLDs are also the ones simultaneously investigating their own “.brand” domains.
Could Overstock’s latest move represent a pent-up demand for new TLDs among big brands? What does that mean for the future of .com as the internet’s premium real estate?

Eleven new ccTLDs coming next week

ICANN is set to approve 11 new internationalized domain name ccTLDs, representing four nations in Asia and the Middle East, at its board meeting next week.
On the January 25 consent agenda – which is typically rubber-stamped without discussion – is the approval of IDN ccTLDs for South Korea, India, Singapore and Syria.
Korea is due to get .한국, Singapore gets . 新加坡 (Chinese) and .சிங்கப்பூர் (Tamil), while Syria gets the Arabic string .سورية.
Massively polyglot India will be delegated its ccTLD in seven of its most-popular languages.
The delegations will push the number of TLDs in IANA’s database to over 300 for the first time.
This week, the ccTLD for Thailand went live with Thai-language registrations under .ไทย. You can watch a video of ICANN CEO Rod Beckstrom congratulating the nation here.
Also on ICANN’s agenda next week is the re-delegation of the ASCII ccTLDs for Burkina Faso, Congo and Syria – .bf, .cd and .sy respectively – to new registry managers.

RIAA threatens ICANN over new TLDs

The Recording Industry Association of America has added itself to the list of organizations making vague legal threats over ICANN’s new top-level domains program.
The RIAA, no stranger to playing the bogeyman when it comes to technological change, is concerned that .music, for example, could be used to encourage copyright infringement.
It wants ICANN to “ensure best practices are developed” to prevent musical TLDs being used to enable music piracy. In a letter, RIAA deputy general counsel Victoria Sheckler wrote:

We are concerned that a music themed gTLD will be used to enable wide scale copyright and trademark infringement.
…
We would like to work with ICANN and others to ensure that best practices are developed and used to ensure this type of malicious behavior does not occur.

She signs off with a barely veiled threat:

We strongly urge you to take these concerns seriously… we prefer a practical solution to these issues, and hope to avoid the need to escalate the issue further.

One of the RIAA’s objections to the current Applicant Guidebook for new TLDs is the “community objection” procedure, which the RIAA doesn’t think gives it a good enough chance of blocking a .music TLD application.
I wonder if the RIAA is planning its own .music bid.
There is already one very public .music initiative, championed for the last couple of years by Constantine Roussos, an active and vocal ICANN community member.
But the string is valuable, is likely to be contested, and there’s a not insignificant chance that Roussos will be beaten to it by an applicant with deeper pockets.
Regardless, the RIAA’s argument that .music equals piracy is pretty poor, possibly disingenuous, and unlikely to influence the Guidebook.
ICANN constantly walks the tightrope between technical coordination and content regulation; getting into the business of fighting piracy is not going to make it onto the agenda any time soon.