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Four governments file ICANN appeals over .wine

Kevin Murphy, April 9, 2014, Domain Policy

France, Spain, the UK and the European Commission have formally appealed ICANN’s decision to allow the .wine and .vin new gTLD applications to proceed.

In doing so, they’ve become the first national governments to file Requests for Reconsideration with ICANN since the process was introduced in 1999.

All four governments are demanding that ICANN take another look at its March 22 resolution in which it said .wine and .vin could be taken off hold and proceed through the remainder of the new gTLD process.

The four applications in question (three for .wine, one for .vin) have been frozen since the Beijing meeting a year ago, at which the Governmental Advisory Committee said it needed more time to consider them.

European nations, with some Latin American support, think that wine-related gTLDs should not be approved unless the applicants agree to give special protection to geographic indicators, such as “Champagne”.

The RfRs are all, as you might expect, a bit “inside baseball”, focusing on the minutiae of ICANN’s bylaws.

What’s illegal and what isn’t?

A key concern is that ICANN’s New gTLD Program Committee, in passing the resolution, relied in part on an analysis of the legal issues (pdf) conducted by French law professor Jerome Passa.

Passa concluded that there’s nothing under the law to prevent ICANN assigning .wine to Donuts, one of the applicants, because “wine” is not a protected GI string.

As regards the applications for the assignment of the new gTLDs ‘.vin’ and ‘.wine’ filed by the Donuts company, there is no rule of the law of geographical indications, nor any general principle which obliges ICANN to reject the applications or accept the applications under certain specific conditions.

From my reading of Passa’s opinion, a domain name containing a GI would only be illegal if it was used to sell counterfeit wines.

For example, it would be perfectly okay for a Chinese registrant to own champagne.wine if he used it to sell genuine champagne from Champagne, but it would be uncool if he used it to sell champagne-style sparkling wine.

Passa doesn’t seem to think it would be necessarily illegal for a registry to sell that domain, or for ICANN to delegate a .wine gTLD that could possibly be abused by said registrant in future.

The four governments are not so much concerned by his legal arguments (though they do disagree with them), but rather by the fact that the GAC was not shown Passa’s opinion before the NGPC made its decision

Under section XI-A of ICANN’s governing bylaws, the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”

By not giving Passa’s analysis to the GAC prior to its March 22 resolution, the NGPC violated ICANN’s bylaws, the four governments argue.

However, ICANN has already responded to this argument and others, suggesting that the four new RfRs may already be dead in the water.

In a resolution last Thursday the NGPC stated that the bylaws were not broken because the requirement to show the GAC “external expert advice” only applies when the board is determining matters of policy.

An explanation of last week’s NGPC decision says:

the NGPC has concluded that there was no process violation or procedural error under the Bylaws, particularly because the Independent Legal Analysis was not sought as External Expert Advice pursuant to Article X1-A, or any other Bylaws provision. Rather, the Independent Legal Analysis was sought pursuant to Module 3.1 of the Applicant Guidebook, and partly at the GAC’s suggestion.

Basically, it’s round two the old “policy versus implementation” debate, in which the ICANN board and GNSO Council have regularly sparred, kicking off with new opponents.

Spain argues in its RfR that the bylaws “the supreme governing rules” of ICANN, apply to implementation matters too and that there’s “no legal basis” for ICANN’s finding that they only apply to policy.

It further notes that a legal analysis of the related .amazon new gTLD controversy, also written by Passa, has been circulated to the GAC for comment as per the bylaws.

Disturbing views on “consensus”

In order for an RfR to be successful, complainants have to show that the ICANN board or NGPC did not consider all the evidence they should have at the time of their decision.

The governments are only slippery ground here, as all they can seem to point to are the barrage of letters that have been sent to ICANN by wine producers, associations and governments over the last year or so.

It may not have mentioned each one explicitly in its resolution but it’s very unlikely, in my view, that the NGPC was not aware of these letters when it made its call.

More significantly, these objecting governments are arguing that the NGPC was misled by GAC chair Heather Dryden about the extent of “consensus” in the GAC with regards .wine and .vin.

Dryden told ICANN in a September 9, 2013 letter that the GAC had not reached a consensus to object to the two new gTLDs, so they could proceed.

It appeared that the GAC — with members such as the US, Canada and Australia disagreeing with Europe — had simply hit an immovable brick wall in its talks, so consensus was never going to be reached.

France states in its RfR that the Dryden letter was sent without first consulting the GAC:

The GAC Chair’s statement that “The GAC has finalised its consideration of the strings .wine and .vin and further advises that the applications should proceed through the normal evaluation process” is not a consensus view of the GAC as per the aforementioned Operating Principle, but a mere interpretation and opinion of the GAC Chair.

Where France’s opinion, which seems to match previous statements by the European Commission, gets disturbing is in its interpretation of what “consensus” means. It wrote:

in reality a significant number of GAC members were in consensus not to allow the .WINE and .VIN applications to proceed through evaluation until sufficient additional safeguards were in place. The reality is that the GAC as a whole could not reach consensus, what does not necessarily imply that the strings can proceed through the normal evaluation process without further consideration.

It’s worded awkwardly, but France seems to be saying that agreement among a certain subset of GAC members (ie, the Europeans) somehow constitutes a GAC consensus that the applications should be indefinitely delayed.

It’s disturbing close to arguing for majority rule on the GAC, which as I explained in depth earlier this week is something to be avoided at all costs.

Anyway, that’s the second prong of the RfR attack: whether the NGPC had been misled about the GAC’s views.

The four separate RfRs appeared on the ICANN web site today. The file labeled as being from the European Commission appears to be a copy of the French one; possibly an uploading error.

UPDATE: It was an uploading error. You can find a copy of the European Commission RfR here (pdf).

Applicant claims “rogue” GAC rep killed its gTLD

Kevin Murphy, April 2, 2014, Domain Policy

The unsuccessful applicant for the .thai top-level domain has become the third new gTLD hopeful to file an Independent Review Process complaint against ICANN.

Better Living Management had its bid for the restricted, Thailand-themed TLD rejected by ICANN in November due to a consensus objection from the Governmental Advisory Committee.

Now the company claims that the Thailand GAC representative who led the charge against its bid has never been formally authorized to speak for the Thai government at ICANN.

BLM says it has sued Wanawit Ahkuputra, one of three Thailand GAC reps listed on the GAC’s web site, in Thailand and wants ICANN to unreject its application pending the case’s outcome.

In the IRP request, BLM claims that Ahkuputra was appointed to the GAC by previous rep Thaweesak Koanantakool without the authorization of the Thai government.

It further claims that while Koanantakool was “invited” by the Thai government to be Thailand’s GAC rep, he was never formally “appointed” to the role. He was “erroneously recruited by the GAC”, BLM alleges.

Following that logic, Ahkuputra could not claim to be a legitimate GAC rep either, BLM claims.

From the IRP alone it looks like a bit of a tenuous, semantics-based argument. Is there any real difference between “invited” and “appointed” in the platitude-ridden world of diplomacy?

Nevertheless, BLM claims that by pushing the rest of the GAC to object to the .thai bid at the ICANN Beijing meeting a year ago, Ahkuputra acted against the wishes of the Thai government.

BLM says it has letters of support from five Thai government ministries — including the one Koanantakool works for — all signed during the new gTLD application and evaluation periods in 2012 and 2013.

Those letters were apparently attached to its IRP complaint but have not yet been published by ICANN.

BLM says it has sued Koanantakool and Ahkuputra, asking a Thai court to force them to drop their objections to the .thai bid.

This is not the first time that an unsuccessful new gTLD applicant has alleged that a GAC member was not properly appointed. DotConnectAfrica has level similar accusations against Kenya.

DCA claims (pdf) that Alice Munyua spoke against its .africa application in the GAC on behalf of Kenya but against the wishes of Kenya, which DCA says did not oppose the bid.

However, ICANN and GAC chair Heather Dryden rubbished these claims in ICANN’s reply (pdf) to DCA’s complaint, citing evidence that Kenya did in fact oppose the application.

What some other bloggers said about .amazon

Kevin Murphy, July 24, 2013, Domain Policy

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.

Senators slate NTIA, to demand answers on new gTLD security

Kevin Murphy, July 23, 2013, Domain Policy

Did Verisign get to the US Congress? That’s the intriguing question emerging from a new Senate appropriations bill.

In notes attached to the bill, the Senate Appropriations Committee delivers a brief but scathing assessment of the National Telecommunication and Information Administration’s performance on ICANN’s Governmental Advisory Committee.

It says it believes the NTIA has “not been a strong advocate for U.S. companies and consumers”.

The notes would order the agency to appear before the committee within 30 days to defend the “security” aspects of new gTLDs and “urges greater participation and advocacy within the GAC”.

While the NTIA had a low-profile presence at the just-finished Durban meeting, it would be difficult to name many other governments that participate or advocate more on the GAC.

This raises an eyebrow. Which interests, in the eyes of the committee, is the NTIA not sufficiently defending?

Given the references to intellectual property, suspicions immediately fall on usual suspects such as the Association of National Advertisers, which is worried about cybersquatting and associated risks.

The ANA successfully lobbied for an ultimately fruitless Congressional hearing in late 2011, following its campaign of outrage against the new gTLD program.

It’s mellowed somewhat since, but still has fierce concerns. Judging by comments its representatives made in Durban last week, it has shifted its focus to different security issues and is now aligned with Verisign.

Verisign, particularly given the bill’s reference to “security, stability and resiliency” and the company’s campaign to raise questions about the potential security risks of new gTLDs, is also a suspect.

“Security, stability and resiliency” is standard ICANN language, with its own acronym (SSR), rolled out frequently during last week’s debates about Verisign’s security concerns. It’s unlikely to have come from anyone not intimately involved in the ICANN community.

And what of Amazon? The timing might not fit, but there’s been an outcry, shared by almost everyone in the ICANN community, about the GAC’s objection last week to the .amazon gTLD application.

The NTIA mysteriously acquiesced to the .amazon objection — arguably harming the interests of a major US corporation — largely it seems in order to play nice with other GAC members.

Here’s everything the notes to “Departments of Commerce and Justice, and Science, and related agencies appropriations Bill, 2014” (pdf) say about ICANN:

ICANN — NTIA represents the United States on the Internet Corporation for Assigned Names and Numbers [ICANN] Governmental Advisory Committee [GAC], and represents the interests of the Nation in protecting its companies, consumers, and intellectual property as the Internet becomes an increasingly important component of commerce. The GAC is structured to provide advice to the ICANN Board on the public policy aspects of the broad range of issues pending before ICANN, and NTIA must be an active supporter for the interests of the Nation. The Committee is concerned that the Department of Commerce, through NTIA, has not been a strong advocate for U.S. companies and consumers and urges greater participation and advocacy within the GAC and any other mechanisms within ICANN in which NTIA is a participant.

NTIA has a duty to ensure that decisions related to ICANN are made in the Nation’s interest, are accountable and transparent, and preserve the security, stability, and resiliency of the Internet for consumers, business, and the U.S. Government. The Committee instructs the NTIA to assess and report to the Committee within 30 days on the adequacy of NTIA’s and ICANN’s compliance with the Affirmation of Commitments, and whether NTIA’s assessment of ICANN will have in place the necessary security elements to protect stakeholders as ICANN moves forward with expanding the number of top level Internet domain names available.

While the bill is just a bill at this stage, it seems to be a strong indication that anti-gTLD lobbyists are hard at work on Capitol Hill, and working on members of diverse committees.

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

Kevin Murphy, July 19, 2013, Domain Policy

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)

Kevin Murphy, July 15, 2013, Domain Policy

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?

Governments kill off Patagonia’s dot-brand bid

Kevin Murphy, July 11, 2013, Domain Policy

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.

Plural gTLDs could be a casualty as ICANN accepts big chunk of GAC advice

ICANN has accepted nine pieces of Governmental Advisory Committee advice pertaining to new gTLDs, essentially killing off two applications and putting question marks over many more.

Notably, the question of whether plural and singular versions of the same string should be allowed to coexist has been reopened for debate, affecting as many as 98 applications.

ICANN’s New gTLD Program Committee, which carries board powers but does not include directors with conflicts of interest, this week passed a resolution that addresses a good chunk of the GAC’s Beijing communique.

It does not discuss any of the amorphous “safeguard” advice from the document, which was subject to a recently closed public comment period and is likely to take much longer to resolve.

By far the line item with the broadest immediate impact is this:

The NGPC accepts this advice and will consider whether to allow singular and plural versions of the same string.

That’s right folks, singular and plural gTLDs (eg, .car and .cars) may not be allowed to coexist after all.

Using a broad interpretation (that treats .new and .news as clashes, for example), 98 applications could be affected by this decision.

Singular vs plural is a contentious issue with some strongly held religious views. Whether you come down on one side or the other depends largely on how you see new gTLDs being used in future.

Proponents of coexistence see a future of 30,000 gTLDs being used as direct navigation and search tools, while opponents worry about the risk of freeloading plural registries making a killing from unnecessary defensive registrations.

The NGPC did not say how the debate would be moved forward, but I’d be surprised if it didn’t involved the broader community through public comments or meetings in Durban next month.

Ding dong…?

Two line items appear to put the final nails in the coffins of two new gTLD applications: DotConnectAfrica’s .africa and GCCIX WLL’s .gcc.

Both clash with the names of geographic regions (.gcc is for Gulf Cooperation Council, a name often associated with nations in the Arabian/Persian Gulf) and received the GAC’s strongest possible form of objection.

In both cases, the NGPC said the applications “will not be approved” and invited the applicants to withdraw.

However, it gave both applicants the right to appeal using “ICANN’s accountability mechanisms”.

Islamic strings on life support

Some governments in the GAC had taken issue with the applications for strings such as .islam and .halal, and the NGPC said it “stands ready to enter into dialogue with the GAC on this matter”.

That’s the Applicant Guidebook-mandated response when the GAC cannot reach a consensus that an application should be killed off.

Amazon among geo strings delayed

As expected, the NGPC decided to work with the GAC’s extended timetable for the consideration of 19 applications whose chosen strings clash with geographic names such as .thai and .persiangulf.

Basically, the GAC asked for more time to discuss them.

In response, ICANN will not delay Initial Evaluation for these applications, but it will not sign contracts with the applicants until the GAC has issued its final advice.

The list includes two big trademarks: retail giant Amazon and the clothing brand Patagonia.

Both will have to wait until at least Durban to discover their fate.

The list also includes .wine and .vin, because some in the wine industry have been kicking up a stink about the protection of special geographic identifiers (eg Champagne, Bordeaux) at the second-level.

Weasel words on community objections

There’s one piece of advice that the NGPC said it has “accepted” but which it clearly has not.

The GAC had said this:

The GAC advises the Board that in those cases where a community, which is clearly impacted by a set of new gTLD applications in contention, has expressed a collective and clear opinion on those applications, such opinion should be duly taken into account, together with all other relevant information.

I think any reasonable interpretation of this item would require ICANN or somebody else to make a subjective judgement call on which applications should win certain contention sets.

To my mind, the advice captures contested strings such as .book (where publishers hate the idea of Amazon running it as a closed generic) and .music (where the music industry favors a restricted registration policy).

But ICANN, always reluctant to have to pick winners and losers, seems to have chosen to interpret the advice somewhat differently. In its response, it states:

The NGPC accepts this advice. Criterion 4 for the Community Priority Evaluation process takes into account “community support and/or opposition to the application” in determining whether to award priority to a community application in a contention set. (Note however that if a contention set is not resolved by the applicants or through a community priority evaluation then ICANN will utilize an auction as the objective method for resolving the contention.)

I don’t think this covers the GAC’s advice at all, and I think the NGPC knows it.

As the parenthetical comment says, communities’ views are only taken into account if an applicant has filed a formal “Community” bid and chooses to resolve its contention set with a Community Priority Evaluation.

To return to the above examples, this may well capture .music, where at least one applicant intends to go the CPE route, but it does not capture .book, where there are no Community applications.

There are 33 remaining Community applications in 29 contention sets.

Will the GAC accept the NGPC’s response as a proper implementation of its advice? If it’s paying attention and feels strongly enough about the issue, my guess is probably not.

More special favors for the Olympics

The International Olympic Committee holds extraordinary power over governments, which has resulted in the GAC repeatedly humiliating itself by acting an Olympic lobbyist before the ICANN board.

In the Beijing communique, it asked ICANN to make sure that the temporary temporary protections granted to Olympics and Red Cross are made permanent in the Applicant Guidebook.

Prior to April, the Registry Agreement in the Guidebook said that the protected strings “shall be initially reserved”, but this language has been removed in the current version of the RA.

The NGPC said that this was due to the GAC’s advice. Box ticked.

But here’s the kicker: the protections will still be subject to a Generic Names Supporting Organization Policy Development Process.

In other words, the discussion is not over. The rest of the ICANN community will get their say and ICANN will try to reconcile what the GNSO decides with what the GAC wants at a later date.

While “accepting” the GAC’s advice, it’s actually proposing something of a compromise. The NGPC said:

Until such time as the GNSO approves recommendations in the PDP and the Board adopts them, the NGPC’s resolutions protecting IOC/RCRC names will remain in place. Should the GNSO submit any recommendations on this topic, the NGPC will confer with the GAC prior to taking action on any such recommendations.

New gTLD registries will not be able to argue in future that their contracts only require them to “initially” protect the Olympic and Red Cross strings, but at the same time the GNSO as a whole gets a say in whether permanent protections are warranted.

It seems like a pretty nice compromise proposal from ICANN — particularly given the problems it’s been having with the GNSO recently — but I doubt the GAC will see it that way.

Other stuff

There were two other items:

  • The GAC had advised that no new gTLD contracts should be approved until the 2013 Registrar Accreditation Agreement is finalized. ICANN agreed. It’s already built into the timetable.
  • The GAC wanted its existing views taken into account in the current, ongoing, formative discussions about a replacement service for Whois. That’s already happening.

In summary…

…it’s a pretty sensible response from the NGPC, with the exception of the weaselly response to the “community views” advice.

Taken as a whole, it’s notable for its respect for other stakeholders and processes, which is admirable.

Even in the case of .africa and .gcc, which I firmly believed would be dead today, it’s given the applicants the opportunity to go through the appropriate appeals channels.

The GAC, it seems, doesn’t even get the last word with its kiss of death.

TLDH weighs in on “terrifying” GAC advice

Top Level Domain Holdings is the latest portfolio applicant to slate the Governmental Advisory Committee’s advice on new gTLDs, calling it “troubling in principle” and “terrifying in practice”.

The company, which applied directly for 70 gTLDs and is involved in several others, filed its comments on the “safeguard advice” in the GAC’s Beijing communique with ICANN today.

The comments focus mainly on the overarching issues of governmental power and process, rather than delve into the nitty-gritty implementation problems presented by the advice.

TLDH CEO Antony Van Couvering wrote:

The Communiqué’s prescriptions define the opposite of a well-regulated sector. Instead of a clear process in which all concerns are weighed, the Communiqué sets up an ad-hoc GAC process from which the views of applicants are excluded.

Instead of clear rules to which industry players must adhere, ill-defined categories have been set up that applicants have a hard time even to understand.

Instead of a clear authority on who will determine policy, the ICANN community must now wonder who is in charge.

The comment points to the fact that the GAC’s 2007 principles on new gTLDs state that applicants should have a clear, objective process to follow, and that Beijing undermines that principle.

It also puts forth the view that the GAC appears to be trying to create policy unilaterally, and in a top-down manner that doesn’t give the Generic Names Supporting Organization a role.

The GAC Beijing Communiqué as enunciated in Section IV.1.b [the safeguard advice] unilaterally expands the role of the GAC from an advisory committee, with a remit of providing advice on policy originating in the GNSO, into a policy-making body from which other members of the ICANN community are excluded.

TLDH also notes that some parts of the advice are “not in themselves bad ideas” and that the company has offered to adopt some of them already in the Public Interest Commitments appended to its applications.

It comments follow those from rival Demand Media, which questioned the feasibility of implementing the GAC’s advice, last week.

Separately, over the weekend, Medicus Mundi International Network — an organization of healthcare non-governmental organizations — filed comments saying that the GAC advice does not go far enough.

Rather, it said, ICANN should delay the introduction of .health until a “broad-based consultation of the health community” can be carried out and a “multi-stakeholder” governance model for it created.

New gTLDs applicants should brace for GAC delays

Kevin Murphy, May 12, 2013, Domain Policy

New gTLD applicants affected by Governmental Advisory Committee advice may be about to find that their launch runway is quite a bit longer than they hoped.

That’s the message that seems to be coming through subtly from ICANN and the GAC itself — via last week’s applicant update webinar and GAC chair Heather Dryden — right now.

Dryden made it clear in an official ICANN interview, recorded early last week, that the GAC expects its Beijing communique to be “fully taken into account”, lest governments abandon ICANN altogether.

But at the same time she seemed to suggest that the rest of the community may have misunderstood the GAC’s intentions, due in part to the fact that its deliberations were held in private.

Here’s a slice of the interview with Brad White, ICANN’s media relations chief:

WHITE: Suppose the [ICANN] board in the end says “thank you very much for the advice, we’ve looked at it, but we’re moving on” and basically ignores a lot of that advice?

DRYDEN: I think it would be a very immediate reaction, questioning the value of participating in the Governmental Advisory Committee. If it is going to be the place for governments to come and raise their concern and influence the decision making that occurs at ICANN then we have to be able to demonstrate that the advice generated is fully taken into account or to the maximum extent appropriate taken in and in this way governments understand that the GAC is useful mechanism for them.

WHITE: What you seem to be saying is there is concern about whether or not some governments might pull out from that multi-stakeholder model?

DRYDEN: Right, right why would they come? How would they justify coming to the GAC meetings? Why would they support this model if in fact it’s there aren’t channels available to them and appropriate to their role and perspective as a government?

Under ICANN’s bylaws, the board of directors does not have to adopt GAC advice wholesale.

It is able to disagree with, and essentially overrule, the GAC, but only after they’ve tried “in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.

The only time this has happened before was in February 2011, when discussions covered the final details of the new gTLD program and the imminent approval of the .xxx gTLD.

Then, the ICANN board and the GAC gathered in Brussels for two days of intense face-to-face discussions, which was followed by multiple “scorecard” drafts and follow-up talks.

It seems very likely that we’re going to see something similar for the Beijing advice, if for no other reason than the communique is vague enough that ICANN will need a lot of clarification before it acts.

So does this mean delay for new gTLD applicants? Probably.

Dryden, asked about the GAC’s agenda for the ICANN public meeting in Durban this July, said:

There may well also be aspects of safeguard advice that we would discuss further with the board or with the community or would need to, particularly the implementation aspects of some of the new safeguards that the GAC identified.

The “safeguard” advice is the large section of the Beijing communique that attempts to impose broad new obligations on over 500 new gTLDs in “regulated or professional sectors”.

Dryden appeared to acknowledge the criticism that much of the advice appears unworkable to many, saying:

The intent behind this was to provide a reminder or to reinforce the importance of preexisting obligations and the applicability of national laws and really not to impose new burdens on applicants or registrants.

However, there are measures proposed in that safeguard advice where there are real implementation questions and so we think this is a very good focus for discussions now in the community with the GAC and with the board around that particular aspect of the advice.

The safeguard advice is currently open for public comment. I outline some of the many implementation questions in this post.

White put to Dryden DI’s criticism that the communique was a “perplexing, frustrating mess” aimed at using the DNS to solve wider problems with the internet.

For example, the GAC appears to want to use ICANN contracts use introduce new ways to enforce copyrights and data security regulations, something perhaps better addressed by legislation.

She responded:

It’s really not intended to impose a new global regulatory regime. It is intended to be consistent with ICANN’s existing role and serve as a reminder to those that have applied of what is really involved with implementing if they are successful a string globally as well as really wanting to emphasize that some of those strings raise particular sensitivities for governments

So have we misunderstood the GAC’s intentions? That seems to be the message.

Watch the whole Dryden interview here:

Based on current evidence, I’d say that any applicant covered by the Beijing communique that still believes they have a chance of signing a contract before July is kidding itself.

The ICANN board’s new gTLD program committee met on Wednesday to discuss its response to the Beijing communique. The results of this meeting should be published in the next few days.

But there’s little doubt in my mind that ICANN doesn’t have enough time before Durban to pick through the advice, consult with the GAC, and come up with a mutually acceptable solution.

Quite apart from the complexity of and lack of detail in the GAC’s requests, there’s the simple matter of logistics.

Getting a representative quorum of GAC members in the same room as the ICANN board for a day or two at some point in the next 60 days would be challenging, based on past performance.

I think it’s much more likely that a day or two will be added to the Durban meeting (before its official start) to give the board and GAC the kind of time they need to thrash this stuff out.

ICANN’s latest program timetable, discussed during a webinar on Thursday night, extended the deadline for the ICANN board’s response to the GAC from the first week of June to the end of June.

On the call, program manager Christine Willett confirmed that this date assumes the board adopts all of the advice — it does not take into account so-called “bylaws consultations”.

While it seems clear that all 518 applications (or more) affected by the “safeguards” advice won’t be signing anything before Durban, it’s less clear whether the remaining applicants will feel an impact too.

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