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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.

ICANN muddles through solution to IGO conflict

Kevin Murphy, March 31, 2014, Domain Policy

ICANN may have come up with a way to appease both the GNSO and the GAC, which are at conflict over the best way to protect the names and/or acronyms of intergovernmental organizations.

At the public forum of the ICANN 49 meeting in Singapore last Thursday, director Bruce Tonkin told the community that the ICANN board will consider the GNSO’s recommendations piecemeal instead of altogether.

It will also convene a meeting of the GNSO, GAC, IGOs, international nongovernmental organizations and the At-Large Advisory Committee to help reach a consensus.

The issue, you may recall from a DI post last week, is whether the names and acronyms of IGOs and INGOs should be blocked in all new gTLDs.

The GNSO is happy for the names to be protected, but draws the line at protecting acronyms, many of which are dictionary words or have multiple uses. The GAC wants protection for both.

Both organizations have gone through their respective processes to come to full consensus policy advice.

This left ICANN in the tricky situation of having to reject advice from one or the other; its bylaws did not make a compromise easy.

By splitting the GNSO’s 20 or so recommendations up and considering them individually, the ICANN board may be able to reconcile some with the GAC advice.

It would also be able to reject bits of GAC advice, specific GNSO recommendations, or both. Because the advice conflicts directly in some cases, rejection of something seems probable.

But ICANN might not have to reject anything, if the GAC, GNSO and others can come to an agreement during the special talks ICANN has in mind, which could happen as soon as the London meeting in June.

Even if those talks lead to nothing, this proposed solution does seem to be good news for ICANN perception-wise; it won’t have to blanket-reject either GNSO or GAC policy advice.

This piecemeal or ‘scorecard’ approach to dealing with advice hasn’t been used with GNSO recommendations before, but it is how the board has dealt with complex GAC advice for the last few years.

It’s also been used with input from non-GNSO bodies such as the Whois Review Team and Accountability and Transparency Review Team.

Judging by a small number of comments made by GNSO members at the public forum on Thursday, the solution the board has proposed seems to be acceptable.

ICANN may have dodged a bullet here.

The slides used by Tonkin during the meeting can be found here.

EU buys more time for .wine talks after surprise GAC objection

Kevin Murphy, March 27, 2014, Domain Policy

The ICANN Governmental Advisory Committee deposited a shock fly into the wine-related gTLD ointment tonight, asking ICANN to delay approval of .wine and .vin on a technicality.

ICANN’s board of directors had at the weekend basically approved the two new gTLDs, over the objections of the European Union, but the GAC today said the board’s decision hadn’t followed the rules.

In its communique (pdf) issued at the end of the just-concluded ICANN 49 meeting in Singapore, the GAC said: “In the final deliberation of the Board there appears to be at least one process violation and procedural error”.

The procedure in question is the part of the ICANN bylaws that says the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”

The GAC therefore advises:

That the Board reconsider the matter before delegating these strings.

The GAC needs to consider the above elements more fully. In the meantime concerned GAC members believe the applicants and interested parties should be encouraged to continue their negotiations with a view to reach an agreement on the matter.

The only “external advice” referenced in the ICANN decision on .wine was the legal opinion (pdf) of French law professor Jerome Passa.

Reading between the lines (I have not yet listened to all of the GAC’s public deliberations this week, so I’m speculating) it seems Passa’s opinion was not provided to the GAC before the ICANN board made its call.

I’m further assuming that the EU or one of its member states spotted the bylaws provision about external advice notice and cunningly used it to revive the .wine debate.

The GAC has declined to object to .wine and .vin because countries such as the US and Australia disagree with the EU’s position on the international law governing geographic indicators such as “Champagne”.

But no matter what other GAC members think about the European demands GI protections, it would have been very hard for them to argue in favor of an ICANN board decision that violated process.

Even if there’s very little chance of rustling up a consensus objection against these two gTLDs, the EU seems to have successfully added delay to the approval process, giving it leverage over the applicants.

I’m impressed.

While this may not change the eventual outcome, it at least buys the EU more time to negotiate with the .wine and .vin applicants about protection for geographic indicators.

This apparent oversight, coupled with the controversy this week about rights protection mechanisms for intergovernmental organizations, makes me wonder whether ICANN’s legal department might need a refresher course on the ICANN bylaws.

Or maybe, more likely, the bylaws are just such a bloody mess that even the smartest guys in the room can’t keep track of them any more.

.wine is a go

Kevin Murphy, March 26, 2014, Domain Policy

ICANN has approved the new gTLDs .wine and .vin, despite objections from the European Union.

In a resolution this weekend, published today, its board’s New gTLD Program Committee said “that the applications for .WINE and .VIN should proceed through the normal evaluation process.”

The resolution acknowledges the Governmental Advisory Committee’s lack of consensus against the two wine-related gTLDs, but not the EU’s view that geographic indicators such as “Champagne” should be protected.

European nations thought both gTLDs should be put on hold until the applicants agreed to these special protections, but the US, Australia and other nations disagreed.

ICANN sought the legal opinion (pdf) of a French law professor in its decision-making.

The EU is going to be pretty angry about this, but in the absence of a consensus objection from the GAC against the strings, it appears that the NGPC has made the right call in this case.

Donuts plays the genericide card in showdown with Belgian government over .spa

Kevin Murphy, March 19, 2014, Domain Policy

Donuts has asked ICANN to approved its .spa new gTLD application over the objections of the Belgian government, saying the town of Spa no longer has exclusive rights to the string.

As we reported at the weekend, Spa is asking Donuts and rival applicant Asia Spa and Wellness Promotion Council for an up to 25% cut of profits from .spa, as well as the right to help manage the TLD at the registry’s expense.

ASWPC has agreed to these terms, but Donuts has not. It says it offered Spa extra protections for sensitive names, but does not want to hand over any managerial control or profit.

Yesterday, Donuts wrote to ICANN (pdf) to say that “spa” is now so generic that no interest would be served by ICANN enforcing the city’s demands. Here’s the meat of it:

While the City of Spa maintains a historical link to the word “spa”, that word long ago evolved as a globally recognized generic term by people who have never even heard of the city of its origin. The public interest served by making that term available to a global community of spa users far outweighs any risk of confusion with the city of the same name. And for those names that may cause confusion, Donuts has provided a rigorous series of additional protections and controls.

The City of Spa gave the word “spa” to the world many centuries ago, and the world has done a great deal with it. Just as attorneys for the City of Spa don’t fly around the world handing cease-­and-desist notices to resort operators and hot-­tub manufacturers, we do not believe it is appropriate for them to overrun ICANN procedure to try to exert control over how that term is used in the Internet’s global addressing system.

I’m going to raise my hand to say that I’d never heard of Spa before this particular controversy arose, and I expect that goes for most of the people reading this article. Donuts surely has a point.

But that’s not to say Spa doesn’t have a point too. There are plenty of governments that managed to squeeze concessions out of applicants for gTLDs matching place names in their territories, with little complaint from applicants; it’s just that the line was drawn at capital cities, something which Spa is not.

Donuts urges ICANN to give no weight to the Spa-ASWPC deal and to move both applications forward to the next stage of the process — contention resolution.

We may see some progress at the ICANN meeting in Singapore next week, when ICANN will surely press the Governmental Advisory Committee for further advice on this string.