Another new gTLD applicant lawyers up on ICANN

Another rejected new gTLD applicant has filed an Independent Review Process complaint against ICANN, claiming the org failed to follow proper procedures on fairness and transparency.

And I think it’s got a pretty good chance of winning.

A Bahrain company called GCCXI has filed the IRP, eight years after its application for .gcc was thrown out by ICANN on the vague advice of its Governmental Advisory Community.

.gcc is for Gulf Cooperation Council, the short-hand English name for the Cooperation Council for the Arab States of the Persian Gulf, a proto-union of six states on the east coast of the Arabian peninsula.

The applicant’s problem is that it’s not affiliated with, nor supported by, the GCC or its member states.

The GAC, in its controversial Beijing communique of April 2013 objected to GCCXI’s application in the same breath and under the same power as it objected to DotConnectAfrica’s .africa bid.

Back then, the GAC was much more secretive than it is today, and did not have to provide a rationale for its advice. Its powers to object to gTLD applications pretty much amounted to a veto.

ICANN dutifully followed the GAC’s advice, throwing out the .gcc application later that year.

The applicant has evidently been trying to get ICANN to change its mind, using the Request for Reconsideration and then Cooperative Engagement Processes, since early 2014. That CEP concluded in May, and GCCXI filed for IRP in June.

Why did the CEP — a form of arbitration designed to avoid expensive IRP complaints and lawsuits — take so long and ultimately fail?

Don’t look to the IRP complaint published by ICANN (pdf) for answers — it’s redacted the whole ruddy lot, a few pages of text, without explanation.

That’s ironic given that a lack of transparency is one of GCCXI’s beefs against the org, along with an alleged failure to follow its bylaws on neutrality and fairness.

ICANN has ignored all of its carefully developed and documented policies, and instead has kowtowed to unspecified government concerns — devising a secret process to kill Claimant’s investment and opportunity, and completely disregarding the public interest in delegating the TLD for use.

The continued fight for a gTLD it surely has no hope of ever operating is a ballsy move by the applicant.

It’s roughly equivalent to some random European company applying to run .eu to represent the geographic region of EU member states without the consent of the EU institutions themselves and then complaining when it’s told to take a walk.

But that doesn’t necessarily mean it will lose the IRP. In fact, I think it has a pretty good chance of winning.

GCCXI does not deserve to prove it should be given .gcc, it only needs to show that ICANN broke its own bylaws.

DotConnectAfrica, which was rejected by the GAC and then ICANN for pretty much the same unsubstantiated reasons — the GAC “veto” — won its IRP in 2015, with the panel finding that ICANN accepted the GAC’s unexplained advice without even rudimentary due diligence, violating its commitment to fairness.

It was particularly embarrassing for the GAC, whose then-chair admitted that the committee deliberately kept its advice vague and open to interpretation

While .africa is not exactly the same as .gcc (the former is officially a geographic string, the latter is not), GCCXI had DCA had their applications rejected based on the exact same piece of GAC advice.

It’s also similar to Amazon’s IRP fight for .amazon, which it won. That bid was also kicked out as a result of ICANN’s adoption of opaque GAC advice from the Beijing communique.

You’ve got to think GCCXI has a decent shot at a victory here, though if recent IRPs and general ICANN foot-dragging on accountability are any guide we won’t know for a couple years.

ICANN blocks .islam after government veto

After six years, ICANN has finally killed off the applications for the new gTLDs .islam and .halal, due to objections from several governments.
It has also rejected the application for .persiangulf from the same applicant.
The decisions were made by the ICANN board of directors last Wednesday. The resolutions were published Friday night.
The board said: “it is apparent that the vast majority of the Muslim community (more than 1.6 billion members) object to the applications for .HALAL and .ISLAM.”
This actually means that the Organization of Islamic Cooperation, the 57-nation treaty group with a combined 1.6 billion nominal Muslim citizens, objected to the applications.
Several governments with large Muslim populations — including the UAE, Malaysia, Turkey, India and Iran — had also individually told ICANN on the record that they were not happy.
The view from these governments seemed to be that if there’s going to be a .islam, it should be run under the umbrella of a group such as the OIC, rather than some random tuppenny ha’penny gTLD registry.
In Christianity, the comparable gTLD .catholic is run by an affiliate of the world’s oldest pedophile ring, while .bible is being run as a propaganda tool by a group of sexually repressed, homophobic American evangelicals.
The ICANN board said its decision to reject .islam and .halal was in tune with its “core values” to protect the “public interest”.
The decision was based “on its consideration of and commitment to ICANN’s Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by the majority of the community most impacted by the proposed .HALAL and .ISLAM gTLDs”.
It’s been avoiding making this decision since at least December 2013.
But it has now voted that the two applications “should not proceed”. It does not appear to have banned organizations from applying for the strings in subsequent application rounds.
The applicant for .islam and .halal was Turkey-based Asia Green IT System. It applications have been “on-hold” since the GAC issued non-consensus advice against them back in April 2013.
The OIC filed Community Objections against both gTLDs with the International Chamber of Commerce, but failed on both counts.
Having failed to see any progress, in December 2015, AGIT filed an Independent Review Process appeal against its treatment by ICANN, and won.
The November 2017 IRP decision held that the “on-hold” status was a “new policy”, unilaterally put in place by ICANN Org, that unfairly condemned AGIT’s applications to indefinite limbo.
The panel ordered ICANN to make its damn mind up one way or the other and pay about $270,000 in costs.
While rejecting the applications may not seem unreasonable, it’s an important example of a minority group of governments getting an essential veto over a gTLD.
Under the rules of the 2012 application round, consensus GAC advice against an application is enough to kill it stone dead.
But the GAC had merely said (pdf):

The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

That’s non-consensus advice, which is expected to initiate bilateral engagement with ICANN’s board before a decision is made.
In the case of .persiangulf, also applied for by AGIT and also now rejected, the GAC didn’t even give non-consensus advice.
In fact, in its July 2013 Durban communique (pdf) is explicitly stated it “does not object to them proceeding”.
This appears to have been a not atypical GAC screw-up. The minutes of the Durban meeting, published months later, showed that the Gulf Cooperation Council states had in fact objected — there’s a bit of a dispute in that part of the world about whether it’s the “Persian Gulf” or “Arabian Gulf” — so the GAC would have been within its rights to publish non-consensus advice.
This all came out when the GCC filed its own IRP against ICANN, which it won.
The IRP panel in that case ordered ICANN to outright reject .persiangulf. Two years later, it now has.
While the three gTLDs in question are now going into “Will Not Proceed” status, that may not be the end of the story. One “Will Not Proceed” applicant, DotConnectAfrica, has taken ICANN to court in the US over its .africa application.

Today’s new gTLD updates: two withdrawals and two “Not Approved”

DotConnectAfrica and GCCIX WLL have become the first new gTLD applicants to have their applications — for .africa and .gcc respectively — officially flagged as “Not Approved” by ICANN.
Both were killed by Governmental Advisory Committee advice.
While GCC had passed its Initial Evaluation already, DCA’s IE results report (pdf), which were published last night, simply states: “Overall Initial Evaluation Summary: Incomplete”.
In both cases the decision to flunk the applications was taken a month ago by ICANN’s New gTLD Program Committee.
DCA filed a formal Reconsideration Request (pdf), challenging the decision in typically incomprehensible style, on June 19, threatening to take ICANN to an Independent Review Panel (ICANN’s very expensive court of appeals) if it does not overturn its decision.
Here’s a sample:

We have no intention of withdrawing our application against the backdrop that we rightly believe that the Board decision is injudicious, very wrong and injurious to our application and to our organizational aspirations. We are placing faith in the possibility that this particular communication will serve the purpose of causing the ICANN Board to have a rethink, and see the wisdom in allowing DCA Trust to continue to participate in the new gTLD Program without the necessity of going to an Independent Review Process (IRP) Panel to challenge the ICANN Board Decision which we presently disagree with in the most absolute terms.

The Board Governance Committee, which handles Reconsideration Requests, has a sturdy track record of denying them, so I think the chances of DCA’s being approved are roughly zero.
But if the company is nutty enough to try its hand at an IRP, which could quite easily set it back a few million dollars in legal fees, the story might not be over yet.
The GAC didn’t like DCA’s .africa bid because African governments back UniForum, DCA’s South Africa-based competitor for the string.
Had the application made it to Initial Evaluation — its processing number wasn’t up for a few weeks — it would have been flunked by the Geographic Names Panel due to its lack of support anyway.
GCC’s application for .gcc was also rejected by the GAC on geographic grounds. It stands for Gulf Cooperation Council, and the Persian/Arabian Gulf nations in question didn’t support the bid.
Also today, the American insurance company Allstate withdrew its applications for .carinsurance and .autoinsurance. Both were single-registrant “closed generics”, which ICANN has indicated might not be approved, also due to GAC advice.

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.

Kiss-of-death gTLD applicant asks ICANN to reject “untimely” GAC advice

One of the only two companies to receive formal, consensus, kiss-of-death Governmental Advisory Committee advice last month has called on ICANN to reject it as “untimely”.
GCCIX WLL of Bahrain applied for .gcc to be an open gTLD for residents of the Persian/Arabian Gulf region.
It was a ballsy application. The intended meaning of the string was Gulf Cooperation Council — the six-state regional political union — but the applicant by its own admission had no support from local governments or the GCC itself.
It would be a little like applying for .eu, to represent Europe, with no support from the European Union.
Naturally enough, local governments balked. GCCIX received an Early Warning signed by Bahrain, Oman, Qatar and the United Arab Emirates, followed by a legal rights objection from the GCC itself.
And in Beijing, the GAC said by consensus that the application for .gcc should be rejected.
The only other application that received the same level of advice was DotConnectAfrica’s equally unsupported application for .africa which, unlike .gcc, ICANN recognizes as “geographic”.
Now, GCCIX CEO Fahad AlShirawi has written to ICANN to ask it to reject the GAC’s advice and let the legal rights objection process play out before making a decision.
Of note, AlShirawi points out that the GAC advice was received in April, a month later than the deadline outlined in the new gTLD program’s Applicant Guidebook.
ICANN should therefore reject the GAC advice as “untimely”, he wrote.
That’s not going to happen, of course.
The GAC is allowed to provide advice to ICANN at any time, no matter what the Guidebook says. If ICANN were to ignore it based on timing, it may as well sign its own death sentence at the same time.