The Universal Postal Union, newly installed .post registry manager, has launched a withering attack on ICANN for protecting some intergovernmental organizations and not others.
Its salvo follows the release of briefing materials — previously redacted — that ICANN’s board was given when it approved the new gTLD program at the Singapore meeting in June 2011.
The UPU says that the documents show that ICANN engaged in “ex post facto attempts at justifying legally-flawed decisions” when it decided to give extra protection to the Olympics and Red Cross/Red Crescent movements.
As you may recall, these protections were granted by the ICANN board when the program was approved, following lobbying of the Governmental Advisory Committee by both organizations.
In the current round, nobody was allowed to apply for gTLDs such as .redcross or .olympic, or translations in dozens of languages. There are also ongoing talks about extending this protection to the second level.
Some have argued that this would lead to a “slippery slope” that would resurrect the problematic Globally Protected Marks List, something ICANN and the GAC have denied.
They have maintained that the IOC/RC/RC movements are unique — their marks are protected by international treaty and many national laws — and no other groups qualify.
Other IGOs disagree.
Almost 40 IGOs, including the United Nations and International Telecommunications Union, are lobbying for an additional 1,108 strings to be given the same protection as the Olympics.
If they get what they want, four applied-for gTLDs could be rejected outright and dozens of others would be put at risk of failing string similarity reviews.
According to the UPU’s latest letter, ICANN’s newly disclosed rationale for giving only the IOC/RC/RC organizations special privileges was based on a flawed legal analysis:
most of the recommendations contained in documents such as the Unredacted Paper seem to reflect, in an unambiguous way, ex post facto attempts at justifying legally-flawed decisions in order to narrow even further the necessary eligibility “criteria” for protection of certain strings, apparently so that only two organizations would merit receiving such safeguards under the new gTLD process.
In other words, according to the UPU and others, ICANN found itself in a position in June 2011 where it had to throw the GAC a few bones in order to push the new gTLD program out of the door, so it tried to grant the IOC/RC/RC protections in such a way that the floodgates were not opened to other organizations.
It’s worth noting that the Applicant Guidebook already gives IGOs the explicit right to file Legal Rights Objections against new gTLD applications, even if they don’t have trademark protection.
A public, published list of repeat cybersquatters was among the demands that the trademark lobby took to a meeting with the US government in Washington DC yesterday.
The summit, hosted by the Department of Commerce, was the latest stage in the US government’s response to the campaign for more new gTLD rights protection mechanisms kicked off by the Association of National Advertisers a little over a year ago.
About 30 big brand owners, along with several trade associations and campaign groups, took part.
The Internet Commerce Association somehow managed to blag an invitation too, and was the only representative of domain registrants, according to a blog post by ICA counsel Phil Corwin.
The companies, which included tech companies such as Microsoft, Facebook, AOL, Yahoo and eBay and offline brand owners such as Nike, Coca-Cola, Time Warner and News Corp, met in early June to formulate a set of recommendations to take to Commerce.
These recommendations are outlined in an August 29 letter (pdf), a copy of which DI has obtained.
Notably, the companies asked for a published list of “bad actors” who have repeatedly lost Uniform Rapid Suspension cases. The letter states:
Recidivist bad actors should be tracked via a list of common Respondents and that list should be published and publicly available.
However, we understand that this request is a low-priority item, discussed only briefly yesterday, and that Commerce representatives did not immediately embrace it.
The bulk of the discussions related to tweaks trademark owners want to see in the Trademark Claims service — which alerts them and the registrant when somebody tries to register a potentially infringing domain name — and the URS.
The brand owners want Trademark Claims, which new gTLD registries are only obliged to offer for the first 60 days of general availability, extended for a longer period, possibly up to three years.
On the face of it, this is among the most reasonable longstanding demands from the IP crowd, but ICANN has resisted it to date as it’s worried about creating a monopoly in the pre-existing market for trademark monitoring services.
If the Trademark Clearinghouse is alerting you every time somebody registers a domain name with your brand in it, why pay MarkMonitor or Melbourne IT for the same service?
The letter also says that Trademark Claims should cover brand+keyword registrations, and domains containing registered trademarks, rather than just exact matches.
The worrisome aspect of this request is that there’s quite a high risk of false positives due to run-on words, very short trademarks, acronyms and dictionary words.
Non-commercial ICANN stakeholders dislike this due to the possibility of a chilling effect on free speech, while registries and registrars don’t like anything that puts unnecessary obstacles in the registration path.
With URS, the trademark owners want a full loser-pays system, though they acknowledge that it could raise the filing fee, which is something they don’t want.
To keep costs down, they want a lower filing fee for cases where the registrant does not respond and a URS panelist is not appointed, which seems like a reasonable idea.
The idea of ICANN (and, ultimately, registrants) subsidizing URS fees has also been put forward.
Finally, the trademark owners want registries to implement defensive blocking systems with one-time fees, modeled on the Sunrise B process that ICM Registry used with the launch of .xxx.
Some of the ideas — such as lower filing fees for uncontested URS cases — seem fairly reasonable and I can see them gaining traction.
Others, such as the brand+keyword protections, seem harder to implement and less likely to pass through ICANN unchallenged.
So what happens next? According to ICA’s Corwin:
For their part, the hosts of the meeting [Commerce] listened politely but did not to endorse any of the suggestions, although they did commit to follow-up interagency discussions. It was pointed out that some of the proposals have been raised before and went nowhere within ICANN, and questions were raised about what process would be utilized to place them before the broader ICANN community and its Board. It was also indicated that the U.S. would be reluctant to undertake any unilateral communications on these matters to ICANN’s Board.
Given this reluctance, I wouldn’t be surprised to see some of these ideas bubbling up through the Governmental Advisory Committee instead, as ideas from the US trademark lobby are wont to do.
As with every ICANN meeting, expect to see further discussions in Toronto next month.
ICANN has now received seven requests to withdraw new gTLD applications, according to documentation published today.
While we learned today that Google and KSB AG are behind four of the junked bids, the identities of the other three are not yet known.
ICANN has said that it will not reveal the withdrawing applications until all the formalities, such as refunds, have been finalized.
The updated stats came in a slide deck (pdf) set to be used in an ICANN webinar scheduled for noon UTC today.
The slides also reveal the aggregate status of applications’ progress through Initial Evaluation.
As you can see from the slide below, over a quarter of applications have had their String Similarity Review already. Just 65 have had their Geographic Names Review, while 127 and 141 have had their technical and financial evaluations respectively.
ICANN also states that there have been 57 requests for changes to applications — up from 49 at the last count — and that so far nobody has filed a formal objection against any bid.
ICANN has published a set of seven criteria for judging whether new top-level domain applicants should be allowed to change the details of their applications.
The test is designed to enable applicants to correct stupid errors in — or make more substantial changes to — the original applications.
ICANN had received 49 such requests at the last count.
It is believed that at least three applicants — Verisign, DotConnectAfrica and Kerry Logistics — have requested changes to typos in the applied-for string itself.
Others are thought to have asked for permission to correct copy-paste errors, when they’ve applied for multiple gTLDs.
These are the factors ICANN will use to determine whether a change will be allowed:
Explanation – Is a reasonable explanation provided?
Evidence that original submission was in error – Are there indicia to support an assertion that the change merely corrects an error?
Other third parties affected – Does the change affect other third parties materially?
Precedents – Is the change similar to others that have already been approved? Could the change lead others to request similar changes that could affect third parties or result in undesirable effects on the program?
Fairness to applicants – Would allowing the change be construed as fair to the general community? Would disallowing the change be construed as unfair?
Materiality – Would the change affect the evaluation score or require re-evaluation of some or all of the application? Would the change affect string contention or community priority consideration?
Timing – Does the timing interfere with the evaluation process in some way? ICANN reserves the right to require a re-evaluation of the application in the event of a material change. This could involve additional fees or evaluation in a subsequent application round. (AGB §1.2.7.)
It’s not yet clear who makes the decision — whether it’s ICANN staff or its board of directors. I’ve asked ICANN for clarification and will update this post when I find out.
All changes will be published in a public change log and subject to 30 days of public comment, according to ICANN’s announcement this morning.
The identities of the first four new gTLD applications to be withdrawn have been revealed by ICANN.
Google has, as predicted, dropped its bids for .and, .are and .est, because they’re protected three-letter country-codes listed in the ISO 3166 alpha-3 standard.
An application for .ksb, by the KSB, a German maker of “pumps, valves and related liquid transportation systems”, has also been withdrawn, though the reasons are less clear.
KSB is not a protected geographic string, nor has .ksb received any negative public comments. I’m guessing the application was an unnecessary defensive move.
With Google expected to lose 30% of its application fees for the three withdrawn applications ($165,000) I can’t help but wonder why ICANN allowed it to apply for the strings in the first place.
The ban on ISO 3166 alpha-3 codes in the Applicant Guidebook appears to be hard and non-negotiable. The strings essentially enjoy the same degree of exact-match protection as Reserved Names such as .iana and .example.
However, while the TLD Application System was hard-coded to reject attempts to apply for Reserved Names, banned geographic strings did not get the same safeguards.
There’s one other application for an ISO 3166 alpha-3 string — .idn — which does not appear to have been withdrawn yet.
There are at least 16 other applications for protected geographic words that may require government support — but are not outright prohibited — according to our DI PRO study.
According to ICANN, six applications have been withdrawn to date. The change in status only shows up on ICANN’s web site after the refunds have been processed, however.
Google, which applied as Charleston Road Registry, has 98 new gTLD applications remaining.