After slow launch, .africa looks to add hundreds of resellers

ZA Central Registry is opening up .africa and its South African city gTLDs to potentially hundreds of new registrars via a new proxy program.
The company today announced that its new registrar AF Proxy Services has received ICANN accreditation, which should open up .africa, .joburg, .capetown and .durban to its existing .za channel.
ZACR is the ccTLD registry for South Africa and as such it already has almost 500 partners accredited to sell .za names. But most of these resellers are not also ICANN accredited, so they cannot sell gTLD domains.
The AF Proxy service is intended to give these existing resellers the ability to sell ZACR’s four gTLDs without having to seek out an ICANN accreditation themselves.
“Effectively, all users of the AF Proxy service become resellers of the Proxy Registrar which is an elegant technical solution aimed at boosting new gTLD domain name registrations,” ZACR CEO Lucky Masilela said in a press release.
While reseller networks are of course a staple of the industry and registries acting as retail registrars is fairly common nowadays, this new ZACR business model is unusual.
According to ZACR’s web site, it has 489 accredited .za registrars active today, with 52 more in testing and a whopping 792 more in the application process.
Depending on uptake of the proxy service, that could bring the number of potential .africa resellers to over 1,300.
And they’re probably needed.
The .africa gTLD went into general availability in July — after five years of expensive legal and quasi-legal challenges from rival applicant DotConnectAfrica — but has so far managed to put just 8,600 names in its zone file.
That’s no doubt disappointing for TLD serving a population of 1.2 billion and which had been expected to see substantial domain investor activity from overseas, particularly China.

Hundreds of new gTLD applicants still in GAC limbo

A little over five months after the Governmental Advisory Committee issued its controversial Beijing communique, demanding strict controls over hundreds of new gTLDs, ICANN has still not taken any action.
ICANN’s New gTLD Program Committee “accepted” a bunch of the GAC’s advice on new gTLDs during its meeting last week, but yet again punted the most crucial issue — how to handle the so-called “Category 1” strings.
In a resolution last Tuesday, published on Friday, the NGPC addressed 21 pieces of GAC advice from the July Durban meeting but took no action on the April Beijing advice.
One application was killed off as a result — Better Living Management’s bid for .thai — on geographic grounds.
Applications for .spa, .yun, .广州 (.guangzhou), and .深圳 (.shenzhen), which are all geographic strings, have been put on hold “until the agreements between the relevant parties are reached”.
Amazon’s applications for its brand in Latin and other scripts are also on hold again pending ICANN’s review of its lengthy response to the GAC’s decision to object to them in Durban.
Two applications — .date and .persiangulf — which had raised geographic concerns in Beijing have been given leave to proceed after the GAC decided not to object in Durban.
Applications for .wine, .vin, .ram and .indians appear to be safe, but it’s not 100% clear based on the NGPC’s resolution.
Category 1 strings
“Category 1” strings were those strings that the GAC deemed applicable to “Consumer Protection, Sensitive Strings, and Regulated Markets”.
The GAC wants these gTLDs, if approved, to be subject to oversight by regulatory or self-regulatory bodies and to implement strict security controls.
The Category 1 advice has been criticized by many, including members of the NGPC, for being too vague to implement and for unfairly moving the goalposts on applicants at the last minute.
In Durban, the NGPC had indicated that it was very unhappy with the Category 1 advice.
Last week, it chose to essentially ignore the Beijing communique in which the Category 1 advice was delivered, and instead “accept” the Category 1 advice from Durban, which simply stated:

The GAC will continue the dialogue with the NGPC on this issue.

The NGPC in response stated in an annex to its resolution:

The NGPC accepts this advice. The NGPC looks forward to continuing the dialogue with the GAC on this issue.

So the 500-odd applications captured by Category 1 are still in limbo, unable to sign registry contracts with ICANN, pending the outcome of these GAC-NGPC negotiations.
On the upside, it looks like ICANN is keen to get the issue resolved before ICANN’s next public meeting, which takes place in Buenos Aires in November. ICANN said:

The NGPC and staff are working with the GAC to identify a time and place for further dialogue on these items.

Community support
The NGPC also addressed the GAC’s demands relating to community support for applications. In doing so, it again deployed its tactic of “accepting” the letter of the GAC’s advice whilst plainly rejecting it in spirit.
The GAC had said in Durban:

the GAC advises the ICANN Board to consider to take better account of community views, and improve outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date.

The GAC was basically worried about the new gTLD program not giving sufficient weight to informal objections from organizations that could be affected by applied-for strings.
The NGPC responded:

The NGPC accepts this advice. The NGPC will consider taking better account of community views and improving outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date. The NGPC notes that in general it may not be possible to improve any outcomes for communities beyond what may result from the utilization of the AGB’s community processes while at the same time remaining within the existing framework.

In other words, due to the inclusion of the phrase “within the existing framework”, ICANN can do absolutely nothing else to address the GAC’s concerns and can still say it “accepted” the advice.
The NGPC had previously used the same tactic to avoid dealing with the GAC’s Beijing advice on giving “communities” the ability to kill off applications without going through the proper channels.

DNS Women Breakfast and other photos from Durban

DI covered the ICANN 47 meeting in Durban remotely last week, but I’m happy to say that we have some photos from the meeting to publish nevertheless.
These pictures were all graciously provided by award-winning freelance photographer and long-time ICANN meeting attendee Michelle Chaplow.

ICANN CEO Fadi Chehade delivering his keynote address during the opening ceremony on Monday.

Representatives of the first new gTLD registries to sign the Registry Agreement and the first registrars to sign the 2013 Registrar Accreditation Agreement line up on stage to sell their souls to ICANN, also during the opening ceremony.
One of these men reportedly shed a tear as he committed his John Hancock to paper; whether through happiness or grief, it’s impossible to know for sure.

Attendees of the DNS Women Breakfast, which gives members of the under-represented gender an opportunity to plot world domination over coffee and croissants three times a year.
From humble beginnings a few years ago, we’re told that over 70 women attended the Durban brekkie.

Three participants on the second “What the Journalists Think” panel, which this time was exclusively made up of African journos.

Finally, Akram Atallah, president of ICANN’s new Generic Domains Division, smiling despite an apparently busy week.

What some other bloggers said about .amazon

Whenever an ICANN decision intersects with the business interests of a well-known brand name, media coverage ensues, and last week’s Governmental Advisory Committee objection to .amazon was no exception.
While a scores of headlines were generated, there wasn’t a great deal of editorializing or analysis. Most bloggers outside of the domain industry seemed content to link to and summarize a Wall Street Journal report.
But a handful of bloggers also passed comment on the decision. Views were a diverse as you might expect. Here are a few selections:
Geoffrey Manne of Truth On The Market was not impressed with what the decision said about ICANN as a regulator. He wrote:

If Latin American governments are concerned with cultural and national identity protection, they should (not that I’m recommending this) focus their objections on Amazon.com. But the reality is that Amazon.com doesn’t compromise cultural identity, and neither would Amazon’s ownership of .AMAZON.

Brand Aide called Amazon a “brand bully” and recounted a client’s past experience:

For years now, Amazon’s attorneys would have one think the Amazon River never existed. A number of years ago, one of my firm’s clients was sued by Amazon over use of the “Amazon Networks” in a domain for computer services, a term our client innocently registered about the same time Amazon launched as a bookseller. Amazon falsely claimed in federal court our client was a domain cybersquatter. In fact, the homepage of our client’s first website featured an image of the Amazon River.

Hot Hardware empathized with the GAC:

These countries make a good point. It may seem obvious that Amazon.com would get a crack at .amazon, but many in the U.S. would be upset if, say, a German company laid claim to .grandcanyon or another important U.S. geological site.

Retail trade pub Storefront Talkback sided with Amazon:

what initially looked like just a very expensive way to acquire their own .brand names is now turning into a process that’s effectively stripping some chains of their brands.

Geek.com didn’t like .amazon as a string anyway:

I also think this decision is doing Amazon a favor. .amazon is a bit long for the end of a URL. The company would be better off using a shortened version such a .amzn, it’s quicker to type and looks better when paired with categories, e.g. dvd.amzn, bluray.amzn, ebooks.amzn.

WebProNews perhaps misses the point about geographic names a bit in its speculation about .apple:

It’s going to be interesting to see if Apple meets a similar fate to Amazon. It only applied for one gTLD – .apple. Like Amazon, the word apple isn’t exclusive to the company. I find it hard to believe that ICANN would hand Apple exclusive control of the .apple gTLD, but it’s possible.

Finally, book publisher Melville House said on its blog:

The principle the South American nations are referring to is, as I understand it, a little known agreement from the early days of Arpanet that in the case of a governmental disagreement, anyone who could best a region’s most dangerous wildlife in unarmed combat was welcome to that region’s domain name. The protocol hasn’t often been used since the gory events of June 1998, when one intrepid developer hoped to claim .yukon for his online baked potato delivery service.
Patagonia was similarly denied their request for .patagonia last week, after a company representative found himself facing down the pointy end of a condor.

“Extortion” claims over new gTLD objection fees

The International Chamber of Commerce came in for quite a bit of criticism at ICANN 47 last week over claims that it is asking for deposits in excess of a million dollars to handle new gTLD objections.
Critics are worried that these high fees to arbitrate Community Objections will create a “chilling effect” that will dissuade communities affected by new gTLDs from objecting.
During a session early during the Durban meeting, Neustar VP Jeff Neuman said that the company had been “shocked” to receive a bill from the ICC for $190,000 for a single objection.
“Each one of the bidders had to put up $190,000,” he said. “It’s nothing better than extortion.”
Responding, ICANN new gTLD program manager Christine Willett said that ICANN has heard concerns from other applicants affected and has asked the ICC for a detailed rationale for its fees, which it will publish.
The ICC, she said, is “utilizing preeminent jurists to arbitrate and manage these cases” and that the estimated €450 per hour wage is “probably lower than what some of these jurists get in public fees”.
As we’ve noted previously, at €450 per hour it works out that each judge in the three-person panel would have to work on nothing but the objection, full-time, for over two weeks to justify the fee.
Later last week, during the Public Forum on Thursday, Mark Partridge of Partridge IP Law — who is WIPO panelist dealing with new gTLD Legal Rights Objections — had similar criticisms.
He said he was aware of a consolidated proceeding — where multiple objections have been bundled into the same case — where the ICC was asking for a total of €1.13 million.
A bit of back-of-the-envelope math suggests that the panelists in that case would have to work on the case full-time for a month at €450 an hour.
Partridge, noting that WIPO charges substantially less for LRO objections, said:

I’m also aware of not-for-profit associations that have found the amount of the required deposit to be prohibitive for that not-for-profit association to advance.
…
I’m still very concerned about the chilling effect that these high fees have going forward.

In response, Willett said that the Community Objection is substantially more complex than the LRO, and reiterated that
The prevailing party in a new gTLD gets its money back from the ICC. This may reduce the chilling effect, but only if a community is willing to put its money — if it even has the funds — on the line.
As we haven’t yet had any Community Objection decisions handed down yet, it’s pretty difficult to judge going into a case what the likely outcome would be. This may change in future rounds.
The ICC is also handled Limited Public Interest Objections, many of which have been filed by the ICANN-selected Independent Objector. If the objector loses his cases, the cost comes out of his budget, which was paid for by new gTLD applicants.

“Risky” gTLDs could be sacrificed to avoid delay

Google and other members of the New gTLD Applicant Group are happy to let ICANN put their applications on hold in response to security concerns raised by Verisign.
During the ICANN 46 Public Forum in Durban on Thursday, NTAG’s Alex Stamos — CTO of .secure applicant Artemis — said that agreement had been reached that about half a dozen applications could be delayed:

NTAG has consensus that we are willing to allow these small numbers of TLDs that have a significant real risk to be delayed until technical implementations can be put in place. There’s going to be no objection from the NTAG on that.

While he didn’t name the strings, he was referring to gTLDs such as .home and .corp, which were highlighted earlier in the week as having large amounts of error traffic at the DNS root.
There’s a worry, originally expressed by Verisign in April and independent consultant Interisle this week, that collisions between new gTLDs and widely-used internal network names will lead to data leakage and other security problems.
Google’s Jordyn Buchanan also took the mic at the Public Forum to say that Google will gladly put its uncontested application for .ads — which Interisle says gets over 5 million root queries a day — on hold until any security problems are mitigated.
Two members of the board described Stamos’ proposal as “reasonable”.
Both Stamos and ICANN CEO Fadi Chehade indirectly criticised Verisign for the PR campaign it has recently built around its new gTLD security concerns, which has led to somewhat one-sided articles in the tech press and mainstream media such as the Washington Post.
Stamos said:

What we do object to is the use of the risk posed by a small, tiny, tiny fraction — my personal guess would be six, seven, eight possible name spaces that have any real impact — to then tar the entire project with a big brush. For contracted parties to go out to the Washington Post and plant stories about the 911 system not working because new TLDs are turned on is completely irresponsible and is clearly not about fixing the internet but is about undermining the internet and undermining new gTLDs.

Later, in response to comments on the same topic from the Association of National Advertisers, which suggested that emergency services could fail if new gTLDs go live, Chehade said:

Creating an unnecessary alarm is equally irresponsible… as publicly responsible members of one community, let’s measure how much alarm we raise. And in the trademark case, with all due respect it ended up, frankly, not looking good for anyone at the end.

That’s a reference to the ANA’s original campaign against new gTLDs, which wound up producing not much more than a lot of column inches about an utterly pointless Congressional hearing in late 2011.
Chehade and the ANA representative this time agreed publicly to work together on better terms.

In the wake of .amazon, IP interests turn on the GAC

Intellectual property interests got a wake-up call at ICANN 47 in Durban this week, when it became clear that they can no longer rely upon the Governmental Advisory Committee as a natural ally.
The GAC’s decision to file a formal consensus objection against Amazon’s application for the .amazon gTLD prompted a line of IP lawyers to queue up at the Public Forum mic to rage against the GAC machine.
As we reported earlier in the week, the GAC found consensus to its objection to .amazon after the sole hold-out government, the United States, decided to keep quiet and allow other governments to agree.
This means that the ICANN board of directors will now be presented with a “strong presumption” that .amazon should be rejected.
With both previous consensus objections, against .africa and .gcc, the board has rejected the applications.
The objection was pushed for mainly by Brazil, with strong support from Peru, Venezuela and other Latin American countries that share the Amazon region, known locally as Amazonas.
During a GAC meeting on Tuesday, statements of support were also made by countries as diverse as Russia, Uganda and Trinidad and Tobago.
Brazil said Amazon is a “very important cultural, traditional, regional and geographical name”. Over 50 million Brazilians live in the region, he said.
The Brazilian Congress discussed the issue at length, he said.
The Brazilian Internet Steering Committee was also strongly against .amazon, he said, and there was a “huge reaction from civil society” including a petition signed by “thousands of people”.
All the countries in the region also signed the Montevideo Declaration (pdf), which resolves to oppose any attempts to register .amazon and .patagonia in any language, in April.
It doesn’t appear to be an arbitrary decision by one government, in other words. People were consulted.
The objection did not receive a GAC consensus three months ago in Beijing only because the US refused to agree, arguing that governments do not have sovereign rights over geographic names.
But prior to Durban, without changing its opinion, the US said that it would not stand in the way of consensus.
It seems that there may have been bigger-picture political concerns at play. The NTIA, which represents the US on the GAC, is said to have had its hands tied by its superiors in Washington DC.
Did the GAC move the goal posts?
With the decision to object to .amazon already on the public record before the GAC’s Durban communique was formally issued yesterday, Intellectual Property Constituency interests had plenty of time to get mad.
At the Public Forum yesterday, several took to the open mic to slam the GAC’s decision.
Common themes emerged, one of which was the claim that the GAC is retroactively changing the rules about what is and is not a “geographic” string for the purposes of the Applicant Guidebook.
Stacey King, senior corporate counsel with Amazon, said:

Prior to filing our applications Amazon carefully reviewed the Applicant Guidebook; we followed the rules. You are now being asked to significantly and retroactively modify these rules. That would undermine the hard-won international consensus to the detriment to all stakeholders. I repeat, we followed these rules.

It’s true that the string “amazon” is not on any of the International Standards Organization lists that ICANN’s Geographic Names Panel used to determine what’s “geographic”.
The local-language string “Amazonas” appears four times, representing a Brazilian state, a Colombian department, a Peruvian region and a Venezuelan state; Amazon isn’t there.
But Amazon is wrong about one thing.
By filing its objection, the GAC is not changing the rules about geographic names, it’s exercising its entirely separate but equally Guidebook-codified right to object to any application for any reason.
That’s part of the Applicant Guidebook too, and it’s a part that the IPC has never previously objected to.
Amazon was not alone making its claim about retroactive changes. IPC president Kristina Rosette, wearing her hat as counsel for former .patagonia applicant Patagonia Inc, said:

Patagonia is deeply disappointed by and concerned about the breakdown of the new gTLD process. Consistent with the recommendations and principles established in connection with that process, Patagonia fully expected its .patagonia application to be evaluated against transparent and predictable criteria, fully available to applicants prior to the initiation of the process.
Yet, its experience demonstrates the ease with which one stakeholder can jettison rules previously agreed upon after an extensive and thorough consultation.

That’s not consistent with the IPC’s position.
The IPC just last month warmly welcomed (pdf) the GAC’s Beijing advice, stating that the after-the-fact “safeguards” it demanded for all new gTLDs should be accepted.
Apparently, it’s okay for the GAC to move the goal posts for gTLD applicants when its advice is about Whois accuracy, but when it files an objection — perfectly compliant with the GAC Advice section of the Guidebook — that interferes with the business objectives of a big trademark owner, that’s suddenly not cool.
The IPC also did not challenge the GAC Advice process when it was first added to the Applicant Guidebook in the April 2011 draft.
At that time, the GAC had responded to intense lobbying by IP interests and was fighting their corner with the ICANN board, demanding stronger trademark protections in the new gTLD program.
If the IPC now finds itself arguing against the application of the GAC Advice rule, perhaps it should consider whether speaking up earlier might have been a good idea.
Rosette tried to substantiate her remarks by referring back to previous GAC advice, specifically a May 26, 2011 letter in which she said the GAC “formally accepted” the Guidebook’s definition of geographic strings.
However, that letter (pdf) has a massive caveat. It says:

Given ICANN’s clarifications on “Early Warning” and “GAC Advice” that allow the GAC to require governmental support/non-objection for strings it considers to be geographical names, the GAC accepts ICANN’s interpretation with regard to the definition of geographic names.

In other words, “The GAC is happy with your list, as long as we can add our own strings to it at will later”.
Rosette’s argument that the GAC has changed its mind, in other words, does not hold.
It wasn’t just IP interests that stood up against the .amazon decision, however. The IPC found an unlikely ally in the Registries Stakeholder Group, represented at the Public Forum by Verisign’s Keith Drazek.
Drazek sought to link the “retroactive changes” on geographic strings to the “retroactive changes” the GAC has proposed in relation to the so-called Category 1 strings — which would have the effect of demanding that hundreds of regular gTLD bids convert into de facto “Community” applications. He said:

While different stakeholders have different views about particular aspects of the GAC advice, we have a shared concern about the portions of that advice that constitute retroactive changes to the Applicant Guidebook around the issues of sovereign rights, undefined and unexplained geographic sensitivities, sensitive industry strings, regulated strings, etc.

This appears to be one of those rare instances where the interests of registries and the interests of IP owners are aligned. The registries, however, have at least been consistent, complaining about the GAC Advice process as soon as it was published in April 2011.
There’s also a big difference between the substance of the advice that they’re currently complaining about: the objection against .amazon followed the Guidebook rules on GAC Advice almost to the letter, whereas the Category 1 advice came completely out of the left field, with no Guidebook basis to cling to.
The GAC in the case of .amazon followed the rules. The rules are stupid, but the time to complain about that was before paying your $185,000 to apply.
If anyone is trying to change the rules after the fact, it’s Amazon and its supporters.
Is the GAC breaking the law?
Another recurring theme throughout yesterday’s Public Forum commentary was the idea that international trademark law does not support the GAC’s right to object to .amazon.
I’m going to preface my editorializing here with the usual I Am Not A Lawyer disclaimer, but it seems to be a pretty thin argument.
Claudio DiGangi, secretary of the IPC and external relations manager at the International Trademark Association, was first to comment on the .amazon objection. He said:

INTA strongly supports the recent views expressed by the United States. In particular, that it does not view sovereignty as a valid basis for objecting to the use of terms, and we have concerns about the effect of such claims on the integrity of the process.

J Scott Evans, head of domains at Yahoo, who left the IPC for the Business Constituency recently (apparently after some kind of disagreement) was next. He said:

There is no international recognition of country names as protection and they cannot trump trademark rights. So giving countries a block on a name violates international law. So you can’t do it.

There were similar comments along the same lines.
Heather Forrest, a senior lecturer at an Australian university and former AusRegistry employee, said she had conducted a doctoral thesis (available at Amazon!) on the rights of governments over geographic names, with particular reference to the Applicant Guidebook.
She told the Public Forum:

My study was comprehensive. I looked at international trade law, unfair competition law, intellectual property law, geographic indications, sovereign rights and human rights. As the board approved the Applicant Guidebook, I completed my study and found that there is not support in international law for priority or exclusive right of states in geographic names and found that there is support in international law for the right of non-state others in geographic names.

Kiran Malancharuvil, whose job until recently was to lobby the GAC for special protections for her client, the International Olympic Committee, now works for MarkMonitor. Calling for the ICANN board to reject the GAC’s advice on .amazon, she said at the Public Forum:

To date, governments in Latin America including the Amazonas community countries have granted Amazon over 130 trademark registrations that have been in continuous use by Amazon since 1994 without challenge. Additionally, Amazon has used their brand within domain names including some registered by MarkMonitor and including registrations in Amazonas community ccTLDs without objection.
Amazonas community countries and all other nations who have signed the TRIPS agreement have obligated themselves to maintain and protect these trademark registrations. Despite these granted rights, members of the community signed the Montevideo declaration and resolved to reject Amazon and Patagonia in any language as well as any other top-level domains referring to them. This declaration appears inconsistent with national and international law.

Having read TRIPS — the World Trade Organization’s Trade Related Aspects of Intellectual Property Rights treaty — this morning, I’m still none the wiser how it relates to .amazon.
It’s a treaty that sought to create some uniformity in how trademarks and other types of intellectual property are handled globally, and domain names are not mentioned once.
As far as I can tell, nobody is asking Amazon to change its name and nobody’s trying to take away its trademarks. Nobody’s even trying to take away its domain names.
If the international law argument is simply that the GAC and/or ICANN cannot prevent a company with a trademark from getting its mark as a TLD, as Yahoo’s Evans suggested, it seems to me that quite a lot of the new gTLD program would have to be rewritten.
We’re already seeing Legal Rights Objections in which an applicant with a trademark is losing against an applicant without a trademark.
Is that illegal too? Was it illegal for ICANN to create an LRO process that has allowed Donuts (no trademark) to beat Express LLC (with trademark) in a fight over .express?
What about other protections in the Guidebook?
ICANN already bans two-character gTLDs, on the basis that they could interfere with future ccTLDs — protecting the geographic rights of countries that do not even exist — which disenfranchises companies with two-letter trademarks, such as BT and HP.
What about 888, the poker company, and 3, the mobile phone operator? They have trademarks. Should ICANN be forced to allow them to have numeric gTLDs, despite the obvious risks?
The Guidebook already bans country names outright, and says thousands of other geographic terms need government support or will be rejected. Is this all illegal?
If the argument is that trademarks trump all, ICANN may as well throw out half the Guidebook.
Now what?
Unlike .patagonia, which dropped out of the new gTLD program last week (we’ll soon discover whether that was wise), the objection to .amazon will now go to ICANN’s board of directors for consideration.
While the Guidebook calls for a “strong presumption” that the board will then reject the application, board member Chris Disspain said yesterday that outsiders should not assume that it will simply rubber-stamp the GAC’s advice.
In both previous cases, the outcome has been a rejection of the application, however, so it’s not looking great for Amazon.

This is how stupid the GAC’s new gTLDs advice is (part two)

When Donuts and ICANN signed a new gTLD contract for .游戏, on a stage in front of hundreds of people at ICANN 47 this morning, it made a mockery of the relationship between ICANN and the GAC.
游戏 is the Chinese for “game” or “games”. It was an uncontested application with no objections and, importantly, no Governmental Advisory Committee advice standing in its way.
Donuts got lucky. The six companies that have applied for .game or .games in English are all currently prohibited from entering into contract negotiations with ICANN because they did receive GAC advice.
When the GAC drafted its “Advice on New gTLDs” in Beijing three months ago, it included a long but “non-exhaustive” set of strings that it said needed extra “safeguards” on security and community support.
ICANN has called these strings the “Category 1” list. It’s already been the subject of some strong discussion with the GAC at the meeting in Durban, which kicked off over the weekend.
So was it the GAC’s intention with Category 1 to introduce a language bias into the new gTLD program? Did it intend to give Chinese-script strings special privileges over ASCII-based languages?
If there was a sensible rationale for including .game/.games on the Category 1 list, why didn’t it apply to .游戏?
Or did the GAC simply not give its Beijing advice the care and attention it deserved?
Based on sessions in Durban over the weekend, the latter explanation appears to be closer to the truth.
“Vague and unimplementable”
At session between the GAC and ICANN’s board-level New gTLD Program Committee yesterday, the GAC heard in the strongest terms (within the bounds of polite discourse) how silly its Beijing advice was.
The session kicked off with NGPC member Chris Disspain delivering a witheringly but necessarily blunt assessment of the “Category 1” list and the associated safeguards.
He first noted that ICANN already rejected the GAC’s advice to make certain strings mandatory “community” gTLDs — something that would have had the same effect as the Beijing advice — back in 2011.
The GAC Early Warning system was introduced instead, he said, to give governments the ability to work with or object to applicants for specific strings that they were worried about.
Disspain continued with a catalog of criticisms against the Category 1 advice:

The difficulties we see at the moment are that the categories of strings are broad and undefined. There’s no principled basis for distinguishing certain categories and strings.
Generic terms are in the same category as highly regulated industries. Some strings have segments that are both licensed and unlicensed.
It’s difficult to determine relevant regulatory agencies and self-regulatory organizations. Some strings refer to industries that may be sensitive or regulated in a single or a few jurisdictions only.
The safeguard advice items three to eight create obligations that are vague and unimplementable.
And these are the outcomes that we sought to avoid when we rejected the advice in the first place. And we agreed to put in place the Early Warning system so that governments could deal directly with applicants if they had issues with the string.

He received some push-back from GAC members, some of whom — insisting that the Beijing communique was well-considered and easily understood — appear to be in denial.
“In the end, you should come with us, trying to implement,” the member for Italy said. “Because I’m sure that you well understood the meaning of this Annex 1.”
In response, Disspain reiterated that the NGPC really doesn’t understand what the GAC wants and really doesn’t understand how it came up with the Category 1 list in the first place.
“We’re unclear how we could implement at all some pieces of the advice,” he said. “The issue for us is not so much that there could be other names that could be added to the list but rather there are names that appear on the list that we don’t understand why they’re there in the first place.”
Now what?
Impasse thus reached, much of the discussion during the hour-long session focused on ways to potentially move the process forward, with participants acknowledging they’re in “uncharted territory”.
Switzerland suggested — contrary to what is plainly spelled out in the Applicant Guidebook, which asks the GAC to comment on specific applications — that the GAC didn’t think that its job was to come up with a definitive list of worrying strings. He said:

Initially, we did not think that it’s the task of the GAC to put together a finite list of sensitive strings, but we have been informed that it would be helpful to come up with concrete names.
So don’t take this list as a list that has been worked out over months and years and every TLD has been tested. These are examples, as we identified it in a rather short time.
There might be a few names that are not on the list that you could easily also add. There are some inconsistencies in that sense. But this is not meant to be a finite, absolute list.

The UK rep said he was disappointed with the “negative” tone of the NGPC’s response to the safeguard advice, but also suggested that the next step might be to come up with a proper list of strings.
“I think the next step forward is for the committee to try and prepare a first draft list for consultation with the whole community,” he said. “And we, the governments, we could obviously seize the opportunity to contribute to that consultation.”
The European Commission provided a statement that its representative said represented the views of EU states on the GAC. The statement said that the Beijing list should be an “at-minimum” list.

European GAC members consider the role of the GAC in this discussion is to provide high-level clarifications regarding the Beijing GAC advice rather than precise implementation means.
We would also like to note that the list of sensitive strings provided in the Beijing communique is a non-exhaustive one… meaning the list should be considered an at-minimum list.

What does this all mean for applicants?
Based on yesterday’s hour-long discussion, ICANN can surely be no closer to understanding which applications are affected by the GAC advice and presumably still doesn’t have a clue what some of it means.
This afternoon, during another session in Durban, program manager Christine Willett said that ICANN is using the Category 1 list published in Beijing when deciding which applicants can be contracted with.
“The NGPC is still considering the Category 1 advice and we have no direction or indication from them yet that a definitive list will be created,” she said.
I can’t see it being resolved this week, and inter-sessional meetings are very rare, so we could now be looking at Buenos Aires — November — before any of this gets sorted out.
For applicants who were — it now seems — selected at random to appear on the Beijing list, they’re facing months more delay while applicants that were not included are free to sign registry contracts today.
Is this fair?
Is it fair to allow applicants that were inexplicably excluded from the GAC’s Beijing list to go ahead and contract with ICANN, while others that were inexplicably included are delayed by many more months?
Is it fair that some applications will get bumped up the queue to delegation just because the GAC didn’t spend enough time thinking about its task?
How can ICANN be certain at contracting that any application is free of GAC advice, when the GAC has made it clear that it expects its list of strings to grow?
I asked ICANN CEO Fadi Chehade some of these questions during a press conference this afternoon and he pointed out that there are mechanisms in place in the Registry Agreement to allow future GAC advice to be addressed.
If it indeed the case that Donuts, for example, might have to add some safeguard commitments to its already signed .游戏 contract, why prevent the .game and .games applicants from signing contracts too?
Wouldn’t it be fairer to delay all new gTLD applications, or none at all, rather than relying on a list of strings we now know definitively to be ad hoc and unreliable?

First new gTLD contracts signed

Donuts, an ARI Registry Services subsdiary and CORE this morning became the first new gTLD applicants to sign registry contracts with ICANN.
The ceremonial signing took place live on stage at the opening ceremony of ICANN 47, the week-long public meeting in Durban, South Africa.
ARI CEO Adrian Kinderis signed on behalf of شبكة. applicant International Domain Registry. The string is Arabic for “.web” and transliterates as “.shabaka”. It is 3 in the program’s evaluation queue.
In an ARI press release, Go Daddy CEO Blake Irving confirmed that Go Daddy will carry .shabaka.
Donuts CEO Paul Stahura signed for .游戏, the Chinese-language “.games”, which had prioritization number 40.
It was not immediately clear which contracts Iliya Bazlyankov, chair of CORE’s executive committee, signed. CORE has applied for three internationalized domain name gTLDs with high priority numbers.
(UPDATE: Bazlyankov has been in touch to say: “We signed the .сайт (site) and .онлайн (online) contracts which had numbers 6 and 9 in the priority”.)
Representatives of Go Daddy, MarkMonitor, Momentous, Mailclub and African registrar Kheweul.com also joined ICANN CEO Fadi Chehade on stage to sign the 2013 Registrar Accreditation Agreement.
The event marks the beginning of the contract signing phase of the new gTLD program, an important milestone.
For applicants without outstanding objections, contention or Governmental Advisory Committee advice, signing a contract means only pre-delegation testing and the final transition to delegation remains.

Governments kill off Patagonia’s dot-brand bid

The clothing retailer Patagonia has withdrawn its application for .patagonia after it became clear that ICANN’s Governmental Advisory Committee was unlikely to allow it.
Controversial from the outset, Patagonia’s dot-brand came under fire from governments including Argentina and Chile because the company is named after a large region of Latin America.
The GAC couldn’t find a consensus for a full-on objection to the bid, however, because the US government refused to agree that governments should have rights over such geographic terms.
However the US said last week that it would stand neutral on .patagonia and other geographic-flavored applications at next week’s ICANN meeting in Durban, smoothing the path to GAC consensus.
A GAC consensus objection would have spelled certain death to the application.
Amazon’s .amazon application is in exactly the same position as .patagonia was. Unless the company can come to some kind of arrangement with Brazil and over governments it may suffer the same fate.