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Governments to take trademark concerns to ICANN

Kevin Murphy, January 24, 2011, Domain Registries

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

Kevin Murphy, January 22, 2011, Domain Registries

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

Kevin Murphy, January 21, 2011, Domain Registries

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

Kevin Murphy, January 19, 2011, Domain Registries

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

Kevin Murphy, January 18, 2011, Domain Registries

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.