Governments to reveal new gTLD objection shortlist next week

Kevin Murphy, February 15, 2013, Domain Policy

ICANN’s Governmental Advisory Committee will next week reveal its shortlist of new gTLD applications that face possible death-by-government.

A brief notice posted to the GAC web site yesterday said:

During the week of February 18th, 2013, the GAC will post its list of applications for consideration by the GAC as a whole in Beijing, in the context of developing GAC advice as outlined in the Applicant Guidebook (Module 3 section 3.1).

This appears to mean that the GAC has been doing a lot of preparatory work to get the list of 1,916 remaining new gTLD applications down to a more manageable number.

ICANN is expecting to receive GAC Advice on New gTLDs, as defined in the Applicant Guidebook, not too long after its Beijing public meeting closes on April 11.

As reported earlier today, ICANN expects to start approving new gTLDs April 23. It’s not going to do this before it’s received the GAC’s go-ahead.

GAC Advice could take the form of a consensus recommendation to ICANN to kill off one or more new gTLD bids, or non-consensus “concerns” that would be less deadly to applicants.

GAC members have already issued 242 Early Warnings, which were designed to give applicants the opportunity to change their plans or withdraw before receiving full GAC Advice.

No doubt some of the companies in receipt of Early Warnings will have done enough in the interim to put governments’ minds at rest, but there’s also nothing stopping the GAC adding new applications to its hit-list.

The European Commission and Iran both submitted lists of concerns outside of the official Early Warning process, and there’s been no official word from the GAC yet as to what status they have.

With that in mind, it’s difficult to predict how many applications, and which ones, are going to be on the GAC’s new shortlist.

GAC Early Warnings just got a whole lot more important

Kevin Murphy, January 18, 2013, Domain Policy

ICANN will let new gTLD applicants change their applications in order to respond to the concerns of governments, it has emerged.

Changes to applications made as a result of Early Warnings made by the Governmental Advisory Committee “would in all likelihood be permitted”, ICANN chair Steve Crocker informed the GAC this week.

ICANN is also looking at ways to make these changes enforceable in the respective applicants’ registry contracts.

Combined, the two bits of news confirm that the GAC will have greater power over new gTLD business models than previously anticipated.

The revelations came in the ICANN board of directors’ official response to GAC advice emerging from last October’s Toronto meeting.

After Toronto, the GAC had asked ICANN whether applicants would be able to change their applications in response to Early Warnings, and whether the changes made would be binding.

In response, Crocker told his GAC counterpart, Heather Dryden, that ICANN already has a procedure for approving or denying application change requests.

The process “balances” a number of criteria, including whether the changes would impact competing applicants or change the applicant’s evaluation score, but it’s not at all clear how ICANN internally decides whether to approve a request or not. So far, none have been denied.

Crocker told Dryden:

It is not possible to generalize as to whether change requests resulting from early warnings would be permitted in all instances. But if such requests are intended solely to address the “range of specific issues” listed on page 3 of the Toronto Communique, and do not otherwise conflict with the change request criteria noted above, then such request would in all likelihood be permitted.

The “range of specific issues” raised in the Toronto advice (pdf) are broad enough to cover pretty much every Early Warning:

  • Consumer protection
  • Strings that are linked to regulated market sectors, such as the financial, health and charity sectors
  • Competition issues
  • Strings that have broad or multiple uses or meanings, and where one entity is seeking exclusive use
  • Religious terms where the applicant has no, or limited, support from the relevant religious organisations or the religious community
  • Minimising the need for defensive registrations
  • Protection of geographic names
  • Intellectual property rights particularly in relation to strings aimed at the distribution of music, video and other digital material
  • The relationship between new gTLD applications and all applicable legislation

Some Early Warnings, such as many filed against gTLD bids that would represent regulated industries such as finance and law, ask applicants to improve their abuse mitigation measures.

To avoid receiving potential lethal GAC Advice this April, such applicants were asked to improve their rights protection mechanisms and anti-abuse procedures.

In some cases, changes to these parts of the applications could — feasibly — impact the evaluation score.

The GAC also made it clear in Toronto that it expects that commitments made in applications — including commitments in changes made as a result of Early Warnings — should be enforceable by ICANN.

This is a bit of a big deal. It refers to Question 18 in the new gTLD application, which was introduced late at the request of the GAC and covers the “mission/purpose” of the applied-for gTLD.

Answers to Question 18 are not scored as part of the new gTLD evaluation, and many applicants took it as an invitation to waffle about how awesome they plan to be.

Now it seems possible they they could be held to that waffle.

Crocker told Dryden (with my emphasis):

The New gTLD Program does not currently provide a mechanism to adopt binding contractual terms incorporating applicant statements and commitment and plans set forth within new gTLD applications or arising from early warning discussions between applicants and governments. To address concerns raised by the GAC as well as other stakeholders, staff are developing possible mechanisms for consideration by the Board New gTLD Committee. That Committee will discuss the staff proposals during the upcoming Board Workshop, 31 Janaury – 2 February.

In other words, early next month we could see some new mechanisms for converting Question 18 blah into enforceable contractual commitments that new gTLD registries will have to abide be.

Europe rejects ICANN’s authority as it warns of problems with 58 new gTLDs

Kevin Murphy, November 27, 2012, Domain Services

The European Commission has issued a list of 58 new gTLD applications it considers problematic, thumbing its nose at ICANN’s procedures for handling government objections to new gTLDs.

The list, sent to all applicants this afternoon, draws in several applications that were not already subject to Early Warnings from other GAC nations, including .sex, .sexy and .free.

Remarkably, the cover letter says that the gTLDs are not “Early Warnings” as described by the ICANN Applicant Guidebook and says the Commission may continue to work outside the established process in future:

The position outlined in this letter is without prejudice to any further action that the Commission might decide to undertake in order to safeguard the rights and interests of the European Union and of its citizens.

For the sake of clarity, the Commission does not consider itself legally bound to the processes, including the means of recourse, outlined in the new gTLD Applicant Guidebook and/or adopted by ICANN, unless a legal agreement between the latter and the Commission exists.

While that’s little more than a statement of fact — governments are of course free to do whatever they want in their own jurisdictions — it’s giving applicants much more reason to be nervous.

Even if they don’t receive GAC Advice against their applications, the EC may decide to take other action against them.

The fact that the letter also explicitly states that the warnings are definitely not official Early Warnings — meaning applicants on the list won’t even qualify for the extra refund if they drop out — sends a worrying signal that the EC is not in the mood to play by ICANN’s rules.

As for the list itself, the Commission’s letter states that it’s “non-exhaustive” and that it focuses on bids that “could possibly raise issues of compatibility with the existing legislations (the acquis) and/or with policy positions and objectives of the European Union”.

The fact that the list contains ICM Registry’s .adult and .sex applications, but not its identical .porn bid, seems to confirm that the list does not cover all the gTLDs the Commission has a problem with.

The letter (pdf) states that the Commission will attempt to enter into “further discussions” with the applicants on the list (pdf).

Australia leads the charge as governments file 242 new gTLD warnings

Kevin Murphy, November 21, 2012, Domain Registries

Governments of the world have filed 242 warnings on new gTLD applications, more than half of which came from Australia.

Warnings were filed against 145 strings in total, and in most cases governments issued the same warnings against all competing applications in a given contention set.

Australia was responsible for 129 warnings, accounting for most of the 49 warnings received by Donuts.

There are some surprises in there.

Notably, there were no warnings on any of the strings related to sex, sexuality or porn.

Given the amount of effort the GAC put into advising against .xxx, this is a big shock. Either governments have relaxed their attitudes, or none were willing to single themselves out as the anti-porn country.

No government warned on .gay.

The largest single recipient of warnings, with 49, was Donuts, the largest portfolio applicant.

The most-warned application, with 17 warnings, was DotConnectAfrica’s .africa. The company is contesting the gTLD without government support, and African nations objected accordingly.

Nigeria also warned Delta Airlines about its proposed .delta dot-brand,

The string “delta” is a protected ISO 3166 sub-national place name, as Delta is likely to discover when the Geographic Names Panel delivers the results of its evaluation.

Australia objected to .capital on the same grounds.

Top Level Domain Holdings was hit with warnings from Italy and South Africa based on a lack of government support for its geographic applications .roma and .zulu.

Remarkably, Samoa warned the three applications for .website on the grounds that they would be “confusingly similar” to its own ccTLD, .ws, which is marketed as an abbreviation for “website”.

The US warned on all 31 of Radix Registry’s applications, saying that the Directi company inappropriately included an email from the FBI in its bids, suggested an endorsement when none exists.

Australia, among its 129 warnings, appears to have won itself a lot of friends in the intellectual property community.

It’s objected to .fail, .sucks, .gripe and .wtf on the grounds that they have “overly negative connotations” and a lack of “sufficient mechanisms to address the potential for a high level of defensive registrations.”

It also issued warnings to applicants planning gTLDs covering “regulated sectors”, including .accountant, .architect and .attorney, without sufficient safeguards to protect consumers.

Generic strings with single-registrant business models — such as Google’s .app and .blog bids — are also targeted by Australia on competition grounds.

Australia more than any other governments appears to be trying to use its warnings as a way to enter into talks with applicants, with a view to remedial action.

Whether this will be permitted — applicants are essentially banned from making big changes to their applications — is another matter entirely.

The full list of warnings can be found here.

GAC Early Warnings confirmed for today. Here’s what I expect to see

Kevin Murphy, November 20, 2012, Domain Policy

ICANN’s Governmental Advisory Committee is ready to send out its Early Warnings on new gTLD applications today as scheduled, ICANN has confirmed.

The Early Warnings, which highlight applications that individual GAC members have problems with, are expected to be sent by the GAC to applicants and published by ICANN later.

Because the warnings are expected to be issued by individual governments, rather than the GAC as a whole, we could wind up seeing hundreds, due to multiple governments objecting to the same applications.

However, some governments may have decided to be conservative for precisely the same reason.

Governments won’t be able to hide behind the cloak of “GAC Advice”, as they did when .xxx was up for approval last year; the names of the governments will be on the warnings.

That’s not to say there won’t necessarily be safety in numbers. It’s possible that some warnings will be explicitly supported by multiple governments, potentially complicating applicant responses.

But which countries will provide warnings?

I’d be surprised if the US, as arguably the most vocal GAC player, does not issue some. Likewise, the regulation-happy European Commission could be a key objector.

It’s also my understanding that Australia has a raft of concerns about various applications, and has been leading much of the back-room discussion among GAC members.

Going out on a limb slightly, I’m expecting to see the warnings from Western nations concentrating largely on regulated industries, IP protection and defensive registrations.

We’re likely to see warnings about .bank and .sucks, for examples, from these governments. To a certain extent, any non-Community applications that could be seen as representing an industry could be at risk.

On the “morality” front, indications from ICANN’s public comment period are that Saudi Arabia has a great many problems with strings that represent religious concepts, and with strings that appear to endorse behavior inconsistent with Islamic law, such as alcohol and gambling.

But last time I checked Saudi Arabia was not a member of the GAC. It remains to be seen whether similar concerns will be raised by other governments that are members.

The one Early Warning we can guarantee to emerge is against .patagonia, the application from a US clothing retailer that shares its name with a region of South America.

The Argentinian government has explicitly said it will issue a warning against this bid, and I expect it to garner significant support from other GAC members.

The GAC Early Warnings stand to cause significant headaches for applicants, many of which are gearing up for a four-day US Thanksgiving weekend.

After receiving a warning, applicants have just 21 days to decide whether to withdraw their bid — receiving an 80% refund of their $185,000 application fee — or risk a formal GAC Advice objection next year.

But that’s not even half of the problem.

The GAC has indicated that it wants to be able to, effectively, negotiate with new gTLD applicants over the details of their applications after issuing its warnings.

At the Toronto meeting last month, the GAC asked ICANN to explain:

the extent to which applicants will be able to modify their applications as a result of early warnings.

[and]

how ICANN will ensure that any commitments made by applicants, in their applications or as a result of any subsequent changes, will be overseen and enforced by ICANN.

ICANN has not yet responded to these inquiries and it does not expect to do so until Thursday.

The fact is that ICANN has for a long time said that it does not intend to allow any applicant to make any material changes to their applications after submission. This was to avoid gaming.

It has since relaxed that view somewhat, by introducing a change request mechanism that has so far processed about 30 changes, some of which (such as .dotafrica and .banque) were highly material.

Whether ICANN will extend this process to allow applicants to significantly alter their applications in order to calm the fears of governments remains to be seen.

Whatever happens this even, many new gTLD applicants are entering unknown territory.

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