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ICANN split between GNSO and GAC on IGO names

Kevin Murphy, May 7, 2014, Domain Policy

ICANN’s board of directors has refused to choose between the Generic Names Supporting Organization and the Governmental Advisory Committee on the issue of intergovernmental organization protections.

In a resolution last week, the board decided to approve only the parts of the GNSO’s unanimous consensus recommendations that the GAC does not disagree with.

The GNSO said last November that IGOs should not have their acronyms blocked forever at the second level in new gTLDs, going against the GAC consensus view that the acronyms should be “permanently protected”.

The GAC wants IGOs to enjoy a permanent version of the Trademark Claims notifications mechanism, whereas the GNSO thinks they should only get the 90 days enjoyed by trademark owners.

Instead of choosing a side, ICANN passed a resolution last Wednesday requesting “additional time” to reach a decision on these points of difference and said it wants to:

facilitate discussions among the relevant parties to reconcile any remaining differences between the policy recommendations and the GAC advice

The decision is not unexpected. Board member Bruce Tonkin basically revealed the board’s intention to go this way during the Singapore meeting a couple of months ago.

The differences between the GAC and the GNSO are relatively minor now, and the board did approve a large part of the GNSO’s recommendations in its resolution.

IGOs, the Olympics, Red Cross and Red Crescent will all get permanent blocks for their full names (but not acronyms) at the top level and second level in the new gTLD program.

International nongovernmental organizations (INGOs) will also get top-level blocks for their full names and protection in the style of the Trademark Claims service at the second level.

The dispute over acronyms was important because many obscure IGOs, which arguably don’t need protection from cybersquatters, have useful or potentially valuable acronyms that new gTLD registries want to keep.

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.

ICANN in a sticky spot as GNSO overrules GAC on block-lists

Kevin Murphy, November 20, 2013, Domain Policy

ICANN may have to decide which of its babies it loves the most — the GNSO or the GAC — after receiving conflicting marching orders on a controversial rights protection issue.

Essentially, the GAC has previously told ICANN to protect a bunch of acronyms representing international organizations — and ICANN did — but the GNSO today told ICANN to un-protect them.

The GNSO Council this afternoon passed a resolution to the effect that the acronyms of IGOs and international non-governmental organizations (INGOs) should not be blocked in new gTLDs.

This conflicts directly with the Governmental Advisory Committee’s longstanding advice, which states that IGOs should have their names and acronyms reserved in all new gTLDs.

The Council’s resolution was passed unanimously, enjoying the support of registries, registrars, non-commercial users, intellectual property interests… everyone.

It came at the end of a Policy Development Process that kicked off in 2011 after the GAC demanded that the International Olympic Committee and Red Cross/Red Crescent should have their names protected.

The PDP working group’s remit was later expanded to address new demands from the GAC, along with a UN-led coalition of IGOs, to also protect IGO and INGO names and acronyms.

The outcome of the PDP, which had most of its recommendations approved by the GNSO Council today, was to give the GAC most of what it wanted — but not everything.

The exact matches of the full IOC, RC/RC, IGO and INGO names should now become permanently ineligible for delegation as gTLDs. The same strings will also be eligible for the Trademark Claims service at the second level.

But, crucially, the GNSO Council has voted to not protect the acronyms of these organizations. Part of the lengthy resolution — apparently the longest the Council ever voted on — reads:

At the Top Level, Acronyms of the RCRC, IOC, IGOs and INGOs under consideration in this PDP shall not be considered as “Strings Ineligible for Delegation”; and

At the Second level, Acronyms of the RCRC, IOC, IGOs and INGO under consideration in this PDP shall not be withheld from registration. For the current round of New gTLDs, the temporary protections extended to the acronyms subject to this recommendation shall be removed from the Reserved Names List in Specification 5 of the New gTLD Registry Agreement.

The list of reserved names in Spec 5, which all new gTLD registries must block from launch, can be found here. The GNSO has basically told ICANN to remove the acronyms from it.

This means hundreds of strings like “who” and “idea” (which would have been reserved for the World Health Organization and the Institute for Development and Electoral Assistance respectively) should now become available to new gTLD registries to sell or otherwise allocate.

I say “should”, because the Council’s resolution still needs to be approved by the ICANN board before it becomes a full Consensus Policy, and to do so the board will have to reject (or reinterpret) the GAC’s advice.

The GAC, as of its last formal Communique, seemed to be of the opinion that it was going to receive all the protections that it asked for.

It has told ICANN for the last year that “IGOs are in an objectively different category to other rights holders” and that “their identifiers (both their names and their acronyms) need preventative protection”

It said in its advice from the Durban meeting (pdf) three months ago:

The GAC understands that the ICANN Board, further to its previous assurances, is prepared to fully implement GAC advice; an outstanding matter to be finalized is the practical and effective implementation of the permanent preventative protection of IGO acronyms at the second level.

The key word here seems to be “preventative”. Under the resolution passed by the GNSO Council today, IGO acronyms would be allowed to enter the Trademark Clearinghouse and participate in the Trademark Claims service, but Claims does not prevent anyone from registering a matching domain.

It’s looking like the ICANN board is going to have to make a call — does it accept the GAC advice, or does it accept the unanimous consensus position of the GNSO?

Given that much of ICANN 48 here in Buenos Aires this week has been a saccharine love-in for the “multistakeholder process”, it’s difficult to imagine a scenario in which the GNSO Council does not win out.

ICANN to crack down on UDRP “cyberflight”

Kevin Murphy, August 2, 2013, Domain Registrars

ICANN has moved closer to cracking down on cybersquatters who try to flip their domains when they discover they’ve been hit with a UDRP complaint.

Under recommendations approved by the GNSO Council yesterday, registrars would be bound by a much stricter set of UDRP-related domain locking rules in future.

So-called “cyberflight” — where squatters transfer their domains to a new registrar or registrants — appears to be a relatively infrequent problem, but when it does happen it causes big headaches for UDRP providers and trademark owners.

A survey of UDRP providers carried out as part of the GNSO’s policy development process discovered that the vast majority of registrars already lock domains hit by UDRP.

The problem is, they said, that locking practices are not uniform. Some registrars take well over a week to lock domains, and what the “lock” entails differs by registrar.

The recommendations of the GNSO’s Final Report on the Locking of a Domain Name Subject to UDRP Proceedings Policy Development Process, adopted by the Council yesterday, seek to standardize the process.

After being told about a complaint against one of its domains, the registrar in future would have a maximum of two business days to put a lock — preventing any changes in registrant or registrar — in place.

The lock would remain until the UDRP was resolved, but there would be various safeguards in place to enable complainants and respondents to settle their differences outside of the UDRP.

The lock would not prevent registrars or proxy/privacy services revealing the true identity of the registrant — that wouldn’t count as a change of registrant.

To prevent registrants abusing the two-day window to sell their domains or switch registrars, they would not be told about the existence of the UDRP until the domain had been locked.

The UDRP rules currently require the complainant to send a copy of their complaint to the domain owner at the same time it is filed with the UDRP provider.

But the GNSO has now recommended getting rid of this rule, stating: “as a best practice, complainants need not inform respondents that a complaint has been filed to avoid cyberflight.”

The registrant would be informed later by the UDRP provider instead.

Registrars would be prohibited from tipping off the registrant until the lock was in place.

The July 2013 recommendations (pdf) came out of a working group that was formed in April 2012, in response to policy ideas floated in 2011.

The GNSO’s resolution calls for ICANN staff to work with members of the working group on an implementation plan, which would eventually be put to the ICANN board for approval.

Once through the board, the new policy would become binding on all ICANN-accredited registrars.

Guest post: Pritz on policy vs implementation and the brother-in-law test

Kurt Pritz, July 11, 2013, Domain Policy

A current, important debate in internet governance and operation of the multi-stakeholder model asks: when do the bottom-up policy-making volunteers let go and when do the staff policy implementers take over?

Drawing that line to the satisfaction of everyone seems impossible. That is because there is no bright line — the development and implementation of policy is a task requiring the constant attention and cooperation of policy makers and implementation teams.

Is an ICANN action a policy position? Or is it a mere implementation detail? Labels almost never work, especially one-word labels. Since when are ICANN issues black or white?

We’ve stopped discussing the issues, it is easier to discuss the labels: is it “policy” or “implementation”?

The multi-stakeholder model depends on communication, consideration and collaboration

ICANN has a rich history of its stakeholders butting heads with the Board and both butting heads with the staff: long lines at microphones, speaking in hyperbole, and wringing of hands that the multi-stakeholder model has failed. ICANN also has a rich history of staff-stakeholder collaboration in the formulation of policy and in the implementation of policy.

The initial Inter-Registrar Transfer Policy was little more than a framework. Then a team of ICANN staff and TLD registry operators met over a period of months and developed the implementation model. It really didn’t matter where the policy making ended and the implementation started. There was a resolve that there should be an easy-to-follow way for registrants to transfer names and there was teamwork to get that accomplished.

There are parallels in the “real” world. In 1990, the United States enacted the American with Disabilities Act (ADA). The ADA itself was little more than a framework also: American employers should make “reasonable accommodation” for those with a “disability.” What was a reasonable accommodation? And what qualified as a disability?

Over a period of many years, those questions have been answered through a series of many court cases and regulations. But in 1990 employers were trying to figure that out.

At the time, we worked on developing clear criteria that would let our employees know what was covered by the ADA. After failing at that, we developed an approach to treat employees as you would your brother-in-law. You are deferential to your brother-in-law (because you have to face your sister) but not totally deferential (after all, he is making love to her). You just treat him better than the letter of the law requires.

So when your employee comes up to you and asks for better lighting at his workstation, you don’t try to parse whether you are required to accommodate near-sighted employees. You say, this is my brother-in-law, and I will listen to his request and carefully consider it.

This is how a public participation model works. The stakeholders are not strangers to one another and the model only works if there is mutual trust and respect.

If someone says, “I want to be heard,” she is generally listened to. (That doesn’t mean discussion is never ending. If that same person wants to be heard again, and says the same thing without change, she will be disregarded. If she continually repeats the same demand and content, she will be shunned.)

Policy versus Implementation should be Policy and Implementation

Take the example currently debated. There is a new gTLD policy element (approved in 2009) that states:

Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.

How does one implement that? The implementation of trademark rights protection mechanisms were developed after years of community/staff consultation, “implementability” studies, draft positions, memoranda describing potential solutions and the reasoning behind them, debate, and discussion.

When things were apparently settled, new parties joined the ICANN discussion — they were welcomed as were their opinions. ICANN was richer because there were new participants in the model. New implementation models were written. Finally, there was an indication the discussion was spent. The work was “said and done.”

Then, apparently, not all was said-and-done. After the gTLD program was launched, there were new suggestions and participants. ICANN decided to entertain those ideas. After a round of community feedback, a subset of the new suggestions was recommended by ICANN for inclusion into the implementation plan for new gTLDs.

ICANN’s policy makers, the GNSO, weighed in, agreeing with many of the conclusions but picking one of the recommendations and saying, “we’d like to talk a bit more about this one because we don’t fully understand its implications and effects.” (Unfortunately, the GNSO didn’t say exactly that, it sounded more to me like, “this item is policy and therefore it cannot be implemented without our consensus opinion.”)

Now, if my brother-in-law says he wants to talk about something some more, even if he doesn’t give a good reason, I am ready to indulge him. But ICANN did not indulge the GNSO. Now, we are in a policy versus implementation discussion: what work is the province of policy makers, and the province of implementers? The GNSO is considering ICANN Bylaw changes to ensure they are heeded.

Bylaw changes are not the lynchpin to multi-stakeholder model success. Putting rules in place for how and when to listen never work. There will always be exceptions. (Another whole piece can be written on how the rules governing communications between ICANN and its Governmental Advisory Committee have failed to facilitate the success of the multi-stakeholder model.)

Processes and procedures (as they are currently described in the Bylaws) are important. We must have clear rules for creation of consensus policy, with timelines and borders to ensure that issues are addressed and rights are respected.

But the operation of the multi-stakeholder model is more complicated than following those processes. The success of the model depends on the mutual trust and respect of the participants, and the ability to actively listen and to understand what is meant, even if that is not exactly what is said.

Rather than create new rules or discuss how one side can prevent the other from abusing its position, the volunteers, staff and Board should look inwardly to improve its own listening and communicating.

You’re my brother-in-law. I am ready (more than ready) to disagree with you, but first I am going to listen to what you have to say.

This is a guest post written by Kurt Pritz, ICANN’s former chief strategy officer. He is currently an independent consultant working with new gTLD applicants and others.

Geo gTLD bidders propose new constituency

Applicants for geographic gTLDs voted unanimously to form a new ICANN constituency last week.

According to minutes of a meeting hosted by .london applicant London & Partners in London last Thursday, 20 applicants voted in favor of a constituency and nobody voted for the alternatives.

Not every geo was in attendance, however. Twenty votes represents less than a third of the overall geographic gTLD applicant base.

A new constituency would likely join registries and registrars in the Contracted Parties House of the Generic Name Supporting Organization.

A constituency for dot-brand applicants, the Brand Registry Group, is also currently being formed.

GNSO still breathing as ICANN retracts “flawed” Trademark+50 thinking

Kevin Murphy, July 2, 2013, Domain Policy

The Generic Names Supporting Organization isn’t dead after all.

ICANN’s Board Governance Committee has retracted a document related to new gTLD trademark protections that some on the GNSO Council believed spelled the end of the multistakeholder model as we know it.

The BGC, in rejecting a formal Reconsideration Request related to the “Trademark+50” mechanism, had used a rationale that some said was overly confrontational, legalistic and gave ICANN staff the ability to ignore community input more or less at will.

We reported on the issue in considerable detail here.

The committee on Friday retracted the original rationale, replacing it with one (pdf) that, while still containing some of the flawed reasoning DI noted last month, seems to have appeased the GNSO Council.

Neustar policy VP Jeff Neuman, who raised the original concerns, told the Council: “I believe the rationale is much more consistent with, and recognizes, the value of the multi-stakeholder model.”

The BGC did not change its ultimate decision — the Reconsideration Request has still been rejected and Trademark+50 is still being implemented in the new gTLD program.

GNSO wins minor victory in Trademark+50 dispute

Kevin Murphy, June 6, 2013, Domain Policy

The ICANN board has rescheduled an important decision for trademark owners, apparently at the behest of members of the Generic Names Supporting Organization Council.

The board’s New gTLD Program Committee was due to vote June 11 on whether to approve the rejection of a Reconsideration Request filed by the Non-Commercial Stakeholders Group.

But the item has been removed from the agenda and will now instead be discussed at a new June 18 meeting that appears to have been specially scheduled for the purpose.

The rescheduling follows an appeal by GNSO Councillor Jeff Neuman directly to the committee and other senior ICANNers.

Neuman and others were concerned that a June 11 decision would preempt a discussion of the issue slated for the Council’s June 13 meeting, which would have been very bad for board-GNSO relations.

For the full background, read this post.

Essentially, Neuman and other councilors are worried that ICANN seems to be riding roughshod over the GNSO in an attempt to make a proposal known as “Trademark+50” a part of the new gTLD program.

Trademark+50 is a mechanism that will greatly expand the number of strings trademark owners can submit to the Trademark Clearinghouse and get limited protection for.

The NCSG’s Reconsideration Request had asked ICANN to reconsider its classification of the proposal as an “implementation” change that didn’t require GNSO “policy” review.

But the ICANN board’s Board Governance Committee, which adjudicates such matters, last month rejected the request in what I would describe as a sloppily argued and disconcertingly adversarial decision.

It’s now up to the New gTLD Program Committee, acting for the full board, to rubber-stamp the rejection, clearing the path for Trademark+50 to become law for new gTLD registries.

Rescheduling the decision won’t change the outcome, in my view. Trademark+50 is very probably a done deal.

But voting before the GNSO Council even had a chance to put its concerns to the board would have given fuel to the argument that ICANN ignores the GNSO when it is politically expedient to do so.

ICANN may have dodged a bullet for now, but the dispute continues.

The True Historie of Trademark+50 and the Deathe of the GNSO (Parte the Thirde)

Kevin Murphy, May 28, 2013, Domain Policy

ICANN’s decision to press ahead with the “Trademark+50” trademark protection mechanism over the objections of much of the community may not be the end of the controversy.

Some in the Generic Names Supporting Organization are even complaining that ICANN’s rejection of a recent challenge to the proposal may “fundamentally alter the multi-stakeholder model”.

Trademark+50 is the recently devised adjunct to the suite of rights protection mechanisms created specially for the new gTLD program.

It will enable trademark owners to add up to 50 strings to each record they have in the Trademark Clearinghouse, where those strings have been previously ruled abusive under UDRP.

Once in the TMCH, they will generate Trademark Claims notices for both the trademark owner and the would-be registrant of the matching domain name during the first 60 days of general availability in each new gTLD.

Guinness, for example, will be able to add “guinness-sucks” to its TMCH record for “Guinness” because it has previously won guinness-sucks.com in a UDRP decision.

If somebody then tries to register guinness-sucks.beer, they’ll get a warning that they may be about to infringe Guinness’ trademark rights. If they go ahead and register anyway, Guinness will also get an alert.

Trademark+50 was created jointly by ICANN’s Business Constituency and Intellectual Property Constituency late last year as one of a raft of measures designed to strengthen rights protection in new gTLDs.

They then managed to persuade CEO Fadi Chehade, who was at the time still pretty new and didn’t fully appreciate the history of conflict over these issues, to convene a series of invitation-only meetings in Brussels and Los Angeles to try to get other community members to agree to the proposals.

These meetings came up with the “strawman solution”, a list of proposed changes to the program’s rights protection mechanisms.

Until two weeks ago, when DI managed to get ICANN to publish a transcript and audio recording of the LA meetings, what was said during these meetings was shrouded in a certain degree of secrecy.

I don’t know why. Having listened to the 20-hour recording, I can tell you there was very little said that you wouldn’t hear during a regular on-the-record public ICANN meeting.

Everyone appeared to act in good faith, bringing new ideas and suggestions to the table in an attempt to find a solution that was acceptable to all.

The strongest resistance to the strawman came, in my view, from the very small number (only one remained by the end) of non-commercial interests who had been invited, and from the registrars.

The non-coms were worried about the “chilling effect” of expanding trademark rights, while registrars were worried that they would end up carrying the cost of supporting confused or frightened registrants.

What did emerge during the LA meeting was quite a heated discussion about whether the IPC/BC proposals should be considered merely “implementation” details or the creation of new “policy”.

That debate spilled over into 2013.

Under the very strictest definition of “policy”, it could be argued that pretty much every aspect of every new rights protection mechanism in the Applicant Guidebook is “implementation”.

The only hard policy the GNSO came up with on trademarks in new gTLDs was back in 2008. It reads:

Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.

Pretty much everything that has come since has been cobbled together from community discussions, ad hoc working groups, ICANN staff “synthesis” of public comments, and board action.

But many in the ICANN community — mainly registries, registrars and non-commercial interests — say that anything that appears to create new rights and/or imposes significant new burdens on the industry should be considered “policy”.

During the LA meetings, there was broad agreement that stuff like extending Trademark Claims from 60 to 90 days and instituting a mandatory 30-day notice period before each Sunrise period was “implementation”.

Those changes won’t really incur any major new costs for the industry; they merely tweak systems that already have broad, if sometimes grudging, community support.

But the attendees were split (IPC/BC on the one side, most everyone else on the other) about whether Trademark+50, among other items, was new policy or just an implementation detail.

If something is “policy” there are community processes to deal with it. If it’s implementation it can be turned over to ICANN staff and forgotten.

Because the registries and registrars have an effective veto on GNSO policy-making and tend to vote as a bloc, many others view a “policy” label as a death sentence for something they want done.

A month after the strawman meetings, in early December, ICANN staff produced a briefing paper on the strawman solution (pdf) for public comment. Describing what we’re now calling Trademark+50, the paper stated quite unambiguously (it seemed at the time):

The inclusion of strings previously found to be abusively registered in the Clearinghouse for purposes of Trademark Claims can be considered a policy matter.

Chehade had previously — before the strawman meetings — strongly suggested in a letter to members of the US Congress that Trademark+50 was not doable:

It is important to note that the Trademark Clearinghouse is intended be a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights.

Personally, I doubt then-new Chehade wrote the letter (at least, not without help). It mirrors Beckstrom-era arguments and language and contrasts with a lot of what he’s said since.

But it’s a pretty clear statement from ICANN’s CEO that the expansion of Trademark Claims to Trademark+50 night expand trademark rights and, implicitly, is not some throwaway implementation detail.

Nevertheless, a day after the staff briefing paper Chehade wrote to GNSO Council chair Jonathan Robinson in early December to ask for “policy guidance” on the proposal.

Again, there was a strong suggestion that ICANN was viewing Trademark+50 as a policy issue that would probably require GNSO input.

Robinson replied at the end of February, after some very difficult GNSO Council discussions, saying “the majority of the council feels that is proposal is best addressed as a policy concern”.

The IPC disagreed with this majority view, no doubt afraid that a “policy” tag would lead to Trademark+50 being gutted by the other GNSO constituencies over the space of months or years.

But despite ICANN staff, most of the GNSO Council and apparently Chehade himself concluding that Trademark+50 was policy, staff did a U-turn in March and decided to go ahead with Trademark+50 after all.

An unsigned March 20 staff report states:

Having reviewed and balanced all feedback, this proposal appears to be a reasonable add-on to an existing service, rather than a proposed new service.

It is difficult to justify omission of a readily available mechanism which would strengthen the trademark protection available through the Clearinghouse. Given that the proposal relies on determinations that have already been made independently through established processes, and that the scope of protection is bounded by this, concerns about undue expansion of rights do not seem necessary.

This caught the GNSO off-guard; Trademark+50 had looked like it was going down the policy track and all of a sudden it was a pressing reality of implementation.

Outraged, the Non-Commercial Stakeholders Group, which had been the strongest (if smallest through no fault of their own) voice against the proposal during the strawman meetings filed a formal Reconsideration Request (pdf) with ICANN.

Reconsideration Requests are one of the oversight mechanisms built into ICANN’s bylaws. They’re adjudicated by ICANN’s own Board Governance Committee and never succeed.

In its request, the NCSG told a pretty similar history to the one I’ve just finished relating and asked the BGC to overturn the staff decision to treat Trademark+50 as implementation.

The NCSG notes, rightly, that just because a domain has been lost at UDRP the string itself is not necessarily inherently abusive. To win a UDRP a complainant must also demonstrate the registrant’s bad faith and lack of rights to the string at issue.

To return to the earlier example, when notorious cybersquatter John Zuccarini — an unambiguously bad guy — registered guinness-sucks.com back in 2000 he told Guinness he’d done it just to piss them off.

That doesn’t mean guinness-sucks.beer is inherently bad, however. In many jurisdictions I would be well within my rights to register the domain to host a site criticizing the filthy brown muck.

But if I try to register the name, I’m going to get a Trademark Claims notice asking me to verify that I’m not going to infringe Guinness’ legal rights and advising me to consult a lawyer.

Chilling effect? Maybe. My own view is that many people will just click through the notice as easily as they click through the Ts&Cs on any other web site or piece of software.

Either way, I won’t be able to claim in court that I’d never heard of GuinnessTM, should the company ever decide to sue me.

Anyway, the NCSG’s Reconsideration Request failed. On May 16 the BGC issued a 15-page determination (pdf) denying it.

It’s this document that’s causing consternation and death-of-the-GNSO mutterings right now.

Last week, Neustar’s lead ICANN wonk Jeff Neuman asked for the Reconsideration Request to be put on the agenda of the GNSO Council’s June 13 meeting. He wants BGC representatives to join the call too. He wrote:

This decision was clearly written by legal counsel (and probably from outside legal counsel). It was written as a legal brief in litigation would be written, and if upheld, can undermine the entire bottom-up multi-stakeholder model. If ICANN wanted to justify their decision to protect their proclamation for the 50 variations, they could have done it in a number of ways that would have been more palatable. Instead, they used this Reconsideration Process as a way to fundamentally alter the multi-stakeholder model. It not only demonstrates how meaningless the Reconsideration process is as an accountability measure, but also sends a signal of things to come if we do not step in.

He has support from other councilors.

I suspect the registries that Neuman represents on the Council are not so much concerned with Trademark+50 itself, more with the way ICANN has forced the issue through over their objections.

The registries, remember, are already nervous as hell about the possibility of ICANN taking unilateral action to amend their contracts in future, and bad decision-making practices now may set bad precedents.

But Neuman has a point about the legalistic way in which the Reconsideration Request was handled. I spotted a fair few examples in the decision of what can only be described as, frankly, lawyer bullshit.

For example, the NCSG used Chehade’s letter to Congress as an example of why Trademark+50 should be and was being considered “policy”, but the BGC deliberately misses the point in its response, stating:

The NCSG fails to explain, however, is how ICANN policy can be created through a proclamation in a letter to Congress without following ICANN policy development procedures. To be clear, ICANN cannot create policy in this fashion.

Only a lawyer could come up with this kind of pedantic misinterpretation.

The NCSG wasn’t arguing that Chehade’s letter to Congress created a new policy, it was arguing that he was explaining an existing policy. It was attempting to say “Hey, even Fadi thought this was policy.”

Strike two: the NCSG had also pointed to the aforementioned staff determination, since reversed, that Trademark+50 was a policy matter, but the BCG’s response was, again, legalistic.

It noted that staff only said Trademark+50 “can” be considered a policy matter (rather than “is”, one assumes), again ignoring the full context of the document.

In context, both the Chehade letter and the March staff document make specific reference to the fact that the Implementation Recommendation Team had decided back in 2009 that only strings that exactly match trademarks should be protected. But the BGC does not mention the IRT once in its decision.

Strike three: the BGC response discounted Chehade’s request for GNSO “policy guidance” as an “inartful phrase”. He wasn’t really saying it was a policy matter, apparently. No.

Taken as a whole, the BGC rejection of the Reconsideration Request comes across like it was written by somebody trying to justify a fait accompli, trying to make the rationale fit the decision.

In my view, Trademark+50 is quite a sensible compromise proposal with little serious downside.

I think it will help trademark owners lower their enforcement costs and the impact on registrars, registries and registrants’ rights is likely to be minimal.

But the way it’s being levered through ICANN — unnecessarily secretive discussions followed by badly explained U-turns — looks dishonest.

It doesn’t come across like ICANN is playing fair, no matter how noble its intentions.

Policy versus implementation… shouldn’t that be complexity versus simplification? [Guest Post]

Stéphane Van Gelder, January 11, 2013, Domain Policy

ICANN has just published a paper that attempts to frame what is policy and what is implementation. Now, if you’re a normal person, your natural response would be “who cares?”.

But if you’re an Icannite, chances are you’re already in a bit of a state. Because the question of what, within the ICANN decision-making process constitutes policy development, and what should be considered implementation of policies that have already been developed, is one that has grown contentious indeed in recent times.

The theory behind ICANN is that it works by bringing together groups of people from various backgrounds or with various interests and then waiting until they all take a decision. That can then become part of the sets of official guidelines that govern the way the Internet’s addressing and numbering system works.

In this obvious oversimplification of the ICANN model, the group of people are called stakeholders and the decisions they take are policies. The way they arrive at those decisions goes by the sweet name of “bottom-up, consensus-driven, policy development process”.

This is what makes ICANN such a unique governance body. One that (in theory) takes into account the opinions and inputs of all interested parties.

It is designed to prevent one view from dominating all others, be it the opinion of industry insiders, politicians or even free-speech advocates — all groups with legitimate interests, but all groups that, when they find themselves in the ICANN fish pond, have to listen to the other fish.

Except that they don’t always want to. And in recent years, as the pressure on the ICANN model has increased because of the new gTLD program, there have been several occasions when some thought it would be better to cut through (or go around) the policy development process to get things done.

This is where the policy versus implementation debate comes from. It’s a boring one to most balanced human beings, but a crucial one for those who rate ICANN and the work that goes on there as a major interest.

The new staff paper is a welcome initiative by ICANN to try and make real progress on a debate that has, up until now, simply exacerbated tensions within the ICANN community.

It’s a first step. A kind of “state of play” view of what can at present be considered policy within the ICANN system, and a first attempt at separating that from implementation.

It’s only eight pages long (and if that seems long to you, believe me, as far as ICANN papers go, this is the equivalent of a 140-character tweet), but if you can’t be bothered to read it, I’ll break it down for you in just one word: complexity.

A first step towards much needed simplification

The real issue behind this debate is the overly complex thing that ICANN has become. Don’t agree? Even though staff need to write an eight-page report just to help everyone, including themselves, understand what “policy” means?

Read the paper and marvel at the number of different processes that could be termed policy within ICANN, including something called “little p policies”, as opposed to “Capital P Policies”. Then there’s “formal policies”, “operational policies” and even “consensus policies”.

Just in setting that scene, the staff paper is useful!

Let’s hope it leads all ICANN stakeholders to the clear realization that this can’t go on any longer. ICANN must simplify its processes so that there is no longer a need to spend time and energy splitting hairs on deciding things like: when in the ICANN universe is policy making actually making policy, and when is it implementing policies that have already been made?

This is a guest post by domain name industry consultant Stephane Van Gelder of Stephane Van Gelder Consulting. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.