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ICANN sets March deadline for new TLDs

Kevin Murphy, January 28, 2011, Domain Registries

ICANN appears determined to put debates about its new top-level domains program to bed at its San Francisco meeting in March.

The resolutions from Tuesday’s ICANN board meeting, published this evening, give every indication that ICANN wants an end to the delays.

This seems to mean it will take a hard line with its Governmental Advisory Committee, with which it is due to meet in Brussels at the end of February.

The board resolved that it “intends to progress toward launching the New gTLD Program, as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook.”

It remains open, however, to take action on the GAC’s concerns, which include trademark protection and the treatment of geographic strings.

It wants the final GAC consultation, which is mandated by its bylaws, to take place March 17, the day before the board meets in San Francisco.

This is encouraging news for anybody who wants to apply for a new TLD, as it means ICANN would be able to launch the program shortly thereafter.

If that happens, it could be able to start accepting applications possibly as early as mid-July (although a late-August/early September window may be more likely).

More on this tomorrow.

.XXX demands approval in Brussels

Kevin Murphy, January 25, 2011, Domain Registrars

ICM Registry has called on ICANN to quickly give final approval to its .xxx top-level domain contract after its meeting with governments next month.

Company president Stuart Lawley, in a letter to ICANN (pdf), said ICM has “invested extraordinary resources” in its TLD proposal and has waited almost seven years to get into the DNS root.

Its hopes of getting the nod from ICANN’s board of directors in Cartagena last month were dashed, when it was decided that a final consultation with the Governmental Advisory Committee was required.

That consultation is set to take place in Brussels at the end of February (although ICANN’s announcement of the meeting last Friday conspicuously made no mention of .xxx).

Lawley writes:

ICM Registry urges the ICANN Board to fulfill its explicit commitments to ICM Registry and to the ICANN community, and to uphold the integrity of the ICANN process by conducting and completing its consultations with the GAC

Neither ICM Registry nor the ICANN community can be expected to stand by while ICANN allows yet another self-imposed deadline on this matter to come and go without a plausible explanation.

The letter notes that it’s almost a year since ICANN’s Independent Review Panel told the organization that, despite its protestations to the contrary, .xxx had already been approved.

Lawley tells me ICM is spending, on average, $100,000 a month to keep the company ticking over. He believes that the proposed registry contract has dealt with all of the GAC’s concerns.

The one concern it will never be able to avoid, of course, is that .xxx is for porn, and there are plenty of governments (be they Middle Eastern theocracies, communist Asian states or conservative Western democracies) opposed to porn in principle.

The GAC said in an official Communique in 2006 that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”

As far as I can tell, that’s pretty much the only major stumbling block remaining before ICM can sign a registry contract.

UK GAC rep Mark Carvell told me yesterday that the GAC believes the 2006 statement constitutes “advice” that ICANN is duty-bound to take into account, even though it was not a consensus GAC position.

In my opinion, ICANN has no choice but to disregard this advice.

If we suddenly start living in a world where the public policies of a handful of backward nations are sufficient to veto a TLD, then we may as well pack up the whole internet and move it to Saudi Arabia or Utah.

Governments to take trademark concerns to ICANN

Kevin Murphy, January 24, 2011, Domain Registries

ICANN’s Governmental Advisory Committee will head to Brussels next month determined to persuade ICANN to strengthen the trademark protections in its new top-level domains program.

The GAC is set to take many of the concerns of the trademark lobby to its meeting with ICANN’s board of directors, UK GAC representative Mark Carvell said in an interview today.

“It’s very important that the interests of trademark holders are fully respected and that the costs that might flow to them are mitigated as much as possible,” he said.

“Their interests should not be undermined in any way that creates unnecessary burdens for them – it interferes with trade, business development and so on.”

The GAC is currently working on 12 “scorecards” that enumerate its concerns with the Applicant Guidebook for new TLDs, as well as more “overarching” issues with the program.

Carvell has been charged with writing the scorecard on trademark protection. He recently met with several large brand interests in London, as World Trademark Review reported last week.

I get the impression that the GAC’s position will be less hard-line than some of the IP lawyers WTR quoted, who want a wholesale return to their proposals of two years ago.

One protection the IP lobby wants restored to the Guidebook is the Globally Protected Marks List, which would take a lot of the cost out of defensive registrations in new TLDs.

The GPML was proposed by brand holders, but did not make it into the current version of the Guidebook.

“Whether we can simply go back to that, I doubt, but we may discuss it,” Carvell said. “I’d be hesitant to simply revert to a set of proposals that did not get full support.”

He added that protections granted in the launches of .eu and .co – which had a Specially Protected Marks List similar to the GPML – could also provide the basis for discussion.

Another protection, the Uniform Rapid Suspension policy, designed to allow trademark holders to quickly block blatant cases of cybersquatting, has been watered down quite a lot since its first iteration.

“The URS does not achieve its original objectives,” Carvell said. The GAC will push for it to be strengthened, not fundamentally revisited, he said.

“We don’t want the Trademark Clearinghouse completely remodeled, we’re not looking for the URS to be totally reshaped, we want to work with ICANN to improve these mechanisms,” he said.

The two-day Brussels meeting, scheduled for February 28, will not all be about trademarks, of course. Other issues include geographical name protection and the treatment of “controversial” strings.

There’s a feeling in some parts of the GAC that TLDs deemed so controversial they they are likely to be blocked by certain nations (think .sex, .gay etc) should be given an “early warning” dissuading them from continuing with their applications.

Unsurprisingly (given its role in overseeing the DNS root) but ironically (given its First Amendment) it is the US GAC representative who has been assigned work on this particular scorecard.

It seems to me that the list of concerns the GAC will take to Brussels is going to be quite substantial. We’re likely not talking about only minor edits to the Guidebook.

While ICANN may feel under some pressure to officially launch the new TLDs program at the close of its splashy San Francisco meeting in March, it’s my growing feeling that this may not be realistic.

If the GAC gets even half of what it intends to ask for, ICANN’s rules could well call for another public comment period before it can sign off on the Applicant Guidebook.

Carvell said that the GAC is very sensitive to the concerns of applicants, eager to launch their TLDs, saying the GAC has been placed “in a very unfortunate position”.

“Nobody wants this to go beyond San Francisco,” he said. “One would hope not, but we can’t rule out that possibility.”

He suggested that some of the GAC’s issues could be deferred in the interests of timing.

Trademark and geographic string protections refer directly to the content of the Guidebook, but other issues, such as economic analysis and supporting applications from developing countries, do not.

“It may be that some of these issues could be further explored and discussed in parallel with the launch,” he said, noting that there’s a four-month buffer period envisioned between the approval of the Guidebook and the opening of the first round of applications.

New TLDs may face more GAC delay

Kevin Murphy, January 22, 2011, Domain Registries

ICANN has finally confirmed the date for its groundbreaking meeting with its Governmental Advisory Committee, and it doesn’t look like great news for new top-level domain applicants.

The GAC and ICANN’s board of directors will meet for a two-day consultation in Brussels, starting February 28, according to an announcement late yesterday.

Attendees will be tasked with identifying the problems the GAC still has with the Applicant Guidebook, and trying to resolve as many as possible.

The devil is in the detail, however. ICANN stated:

This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.

This means that, post-Brussels, a second GAC consultation will be required before the ICANN board will be able to approve the Guidebook.

Under ICANN’s bylaws, when it disagrees with the GAC, it has to first state its reasons, and then they must “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”

ICANN appears to have now confirmed that it has not yet invoked this part of the bylaws, and that Brussels will not be the “mutually acceptable solution” meeting.

The best case scenario, if you’re an impatient new TLD applicant, would see the second consultation take place during the San Francisco meeting, which kicks off March 13.

The board would presumably have to convene a special quickie meeting, in order to officially invoke the bylaws, at some point during the two weeks between Brussels and San Francisco.

That scenario is not impossible, but it’s not as desirable as putting the GAC’s concerns to bed in Brussels, which is what some applicants had hoped and expected.

The GAC is currently writing up a number of “scorecards” that enumerate its outstanding concerns with the Guidebook.

Mark Carvell, the UK representative, has been tasked with writing the scorecard for trademark protection. Other scorecards will likely also discuss, for example, the problem of objecting to TLD applications on “morality and public order” grounds.

ICANN’s board, meanwhile, is due to meet this coming Tuesday to agree upon the “rules of engagement” for handling disagreements with the GAC under its bylaws.

When these rules are published, we should have a better idea of how likely a San Francisco approval of the Applicant Guidebook is.

Surprisingly, the ICANN announcement yesterday makes no mention of ICM Registry’s .xxx TLD application, which is the only area where the board has officially invoked the bylaws with regards the GAC’s objections.

The Brussels meeting, ICANN said, will be open to observers, transcribed live, and webcast.

ICANN given 27 New Year’s resolutions

Kevin Murphy, January 3, 2011, Domain Policy

There’s a pretty big shake-up coming to ICANN in 2011, following the publication late last week of a report outlining 27 ways it should reform its power structures.

The final recommendations of its Accountability and Transparency Review Team (pdf) notably direct the organization to figure out its “dysfunctional” relationship with governments once and for all.

ICANN will also have to revamp how it decides who sits on its board of directors, when its staff can make unilateral decisions, how the voices of stakeholders are heard, and how its decisions can be appealed.

The ATRT report was developed, independently, as one of ICANN’s obligations under its Affirmation of Commitments with the US government’s Department of Commerce.

As such, ICANN is pretty much bound to adopt its findings. But many are written in such a way to enable some flexibility in their implementation.

The report covers four broad areas of reform, arguably the most important of which is ICANN’s relationship with its Governmental Advisory Committee.

As I’ve previously noted, ICANN and the GAC have a major stumbling block when it comes to effective communication due mainly to the fact that they can’t agree on what GAC “advice” is.

This has led, most recently, to delays with the TLD program, and with ICM Registry’s application for .xxx.

The ATRT report tells ICANN and the GAC to define “advice” before March this year.

It also recommends the opening of more formalized communications channels, so ICANN can tell the GAC when it needs advice, and on what topics, and the GAC can respond accordingly.

The report stops short of telling ICANN to follow GAC advice on a “mandatory” basis, as had been suggested by at least one GAC member (France).

The ICANN will still be able to overrule the GAC, but it will do so in a more formalized way.

ICANN’s public comment forums also look set for a rethink.

The ATRT report recommends, among other things, separating comment periods into at least two flavors and two phases, giving different priorities to different stages of policy development.

It could also could break out comment periods into two segments, to give commentators the chance to, in a second phase, rebut the earlier comments of others.

The three ICANN appeals processes (its Ombudsman, the Reconsideration Request process and the Independent Review Process) are also set for review.

The ATRT group wants ICANN to, before June, hire “a committee of independent experts” to figure out whether these procedures can be make cheaper, quicker and more useful.

The IRP, for example, is pretty much a rich man’s appeals process. The Ombudsman is seen as too cozy with ICANN to be an effective avenue for complaints. And the Reconsideration Request process has too many strict prerequisites to make it a useful tool.

The report includes a recommendation that ICANN should, in the next six months, clarify under what circumstances its is able to make decisions without listening to bottom-up consensus first:

The Board should clarify, as soon as possible but no later than June 2011 the distinction between issues that are properly subject to ICANN’s policy development processes and those matters that are properly within the executive functions performed by the ICANN staff and Board

ICANN has also been told to address how it selects its directors, with emphasis on:

identifying the collective skill-set required by the ICANN Board including such skills as public policy, finance, strategic planning, corporate governance, negotiation, and dispute resolution.

Other the recommendations themselves, the ATRT spends part of its 200-page report moaning about how little time (about nine months) it had to carry out its work, and how little importance some ICANN senior staff seemed to give to the process.

All of the 27 recommendations are expected to be implemented over the next six months. The report is currently open for public comment here.