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Porn set to steal the show in San Francisco

Kevin Murphy, January 28, 2011, Domain Registries

ICM Registry’s .xxx top-level domain looks set to grab the headlines at ICANN’s meeting in San Francisco, due to government-forced delays.

While ICANN is hoping to approve its new top-level domains program in March, that decision may wind up receiving less media attention than the final approval of the porn-only domain.

ICANN last month said that it wanted to hold a final consultation to resolve its differences with the Governmental Advisory Committee – which broadly objects to .xxx – in February 2011.

This referred to a proposed meeting between the GAC and the board, which has now been officially scheduled for February 28 in Brussels.

But a resolution carried by ICANN this week has pushed the consultation back to “no later than Thursday 17 March, 2011”, the day before its San Francisco meeting.

That would put the sign-off of ICM’s contract on the same billing as the planned final approval of the new top-level domains Applicant Guidebook and the launch of the new TLDs program.

San Francisco is set to be the focus of unprecedented media attention, due to its location and the likely presence of Bill Clinton. We’re probably looking at tighter stage management than usual.

With that in mind, I expect ICANN bosses won’t be too happy that porn-friendly .xxx is likely to steal away many column inches they would prefer devoted to new TLDs.

Porn in headlines gets clicks. Readers understand it, and you generally don’t need to explain to an editor what a TLD is. I know which story would be easier for me to sell.

Had ICANN put .xxx on the agenda for Brussels – which does not appear to have been ruled out yet – it could have wrapped up the ICM saga with a resolution quite quickly afterward.

That would have given ICM a week or so of undiluted media coverage, and the new TLDs program would not have had to share the spotlight with porn come San Francisco.

The question is: why is .xxx apparently not on the agenda for Brussels? Given ICANN’s previous decision to hold the meeting in February, responsibility seems to lie with the GAC.

Rumor has it that there’s a bit of a power struggle going on behind the scenes, with some elements of the GAC resistant to make Brussels the official final .xxx consultation.

Time will tell whether this position is firm or flexible.

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.