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GAC delivers sweeping advice that will delay scores of new gTLDs by months

Kevin Murphy, April 11, 2013, Domain Policy

ICANN’s Governmental Advisory Committee has issued the kiss of death to two new gTLD applications and sweeping advice that will delay many, many more.

In its Beijing communique, issued this hour, the GAC as expected delivered advice against whole categories of gTLDs and provided a lengthy but “non-exhaustive” list of affected bids.

First, the GAC said that the .africa bid filed by DotConnectAfrica and the .gcc bid filed by GCCIX WLL should be rejected. Those were full consensus objections.

Two gTLDs related to Islam: .islam and .halal, have non-consensus objections, and will now have to be considered by the ICANN board of directors directly.

The GAC also said it needed more time, until ICANN’s meeting in Durban this July, to consider delivering specific advice against 14 more:

the GAC advises the ICANN Board to: not proceed beyond Initial Evaluation with the following strings: .shenzhen (IDN in Chinese), .persiangulf, .guangzhou (IDN in Chinese), .amazon (and IDNs in Japanese and Chinese), .patagonia, .date, .spa, .yun, .thai, .zulu, .wine, .vin

On the issue of plurals versus singulars, the GAC said ICANN should “Reconsider its decision to allow singular and plural versions of the same strings.” This affects about 60 applications.

But it doesn’t end there.

As predicted, the GAC has also issued swathes of advice against scores of proposed gTLDs in 12 categories: children, environmental, health and fitness, financial, gambling, charity, education, intellectual property, professional services, corporate identifiers, generic geographical terms and inherently governmental functions.

A “non-exhaustive” list of applications has been provided for each category, covering well over 100, setting the stage for a fight over inclusion for any application that the GAC forgot about.

If the GAC gets its way, any application that falls into one of these categories will have to have enhanced regulations governing Whois, abuse mitigation, and security.

The GAC also has its say on “closed generics”, which it calls “exclusive registry access” strings. They should only be awarded if they serve a public interest purpose, the GAC said.

In short, the advice is extraordinarily broad and seems to delegate the considerable work of picking through the mess to ICANN.

More analysis later…

Plural gTLDs give ICANN huge credibility risk

Kevin Murphy, April 10, 2013, Domain Policy

Can .pet and .pets co-exist peacefully on the internet? Or would they create such confusion among internet users that the whole new gTLD program would look irresponsible and foolish?

That’s the question ICANN is due to face today, as constituents line up at the public forum in Beijing to question its board of directors about the problem of plurals in new gTLDs.

The Governmental Advisory Committee, the Business Constituency, the Intellectual Property Constituency and others have all openly questioned the sanity of allowing plurals in recent days.

Right now there are 59 collisions between singular and plural gTLD applications (in English, at least, according to my analysis), involving 23 unique string pairs.

These are: .accountant(s), .auto(s), career(s), .car(s), .coupon(s), .cruise(s), .deal(s), .fan(s), .game(s), .gift(s), .home(s), .hotel(s), .kid(s), .loan(s), .market(s), .new(s), .pet(s), .photo(s), .review(s), .sport(s), .tour(s), .web(s) and .work(s).

None of these singular/plural clashes are currently in contention sets with each other, meaning there’s nothing to stop them all being delegated by ICANN. We could have a .loan alongside a .loans a year from now.

It seems to be only common sense that these clashes will cause frequent confusion. I doubt many would pass the longstanding “shouted across a crowded bar” test for URL clarity.

Would you want to register a .photo domain if you knew .photos was also available, and vice versa? If you did, wouldn’t you also want to register the .photos equivalent, just in case?

That’s one of the things ICANN’s commercial stakeholders are worried about: 23 extra TLDs means 23 extra defensive registrations for every brand they want to protect.

But there’s also the risk that gTLD registries that are successful in this application round will feel obliged to apply for the plurals of their strings in future rounds for defensive purposes.

The plurals issue also highlights shortcomings in how the new gTLD program was structured.

Why is this happening?

Unless two companies applied for the exact same strings, there are only two ways they could end up in a contention set together.

The first way was if the String Similarity Panel decided that the two strings were too visually similar to be allowed to co-exist, and that didn’t happen in the case of plurals. The panel only decided two things in the end: that I and l are confusingly similar, and that rn and m are confusingly similar.

To date, nobody except the Panel and ICANN knows what the logic behind this decision was, but it appears to be based on a very narrow (though not unreasonable) interpretation of what constitutes visual similarity.

The second way to end up in a contention set was to file a successful String Confusion Objection, or to be on the receiving end of one.

But of the 33 such objections filed, only 11 were filed against plurals, covering only six new gTLD strings in total: .pets, .tours, .webs, .games, .cars, and .kids. There was also an objection to .tvs, due to a clash with the existing ccTLD .tv.

(UPDATE: it appears that only approximately half of the String Similarity Objections filed have actually been revealed to date).

The main reason there weren’t more objections is that only existing registries and new gTLD applicants had standing to file an objection. Nobody else was allowed to.

Applicants were of course disincentivized from filing objections. Winning a String Confusion Objection doesn’t kill off your rival if you’re an applicant, it merely places both applications in a contention set.

Being in a contention set means you’re going to have to pay money to get rid of your competitor, either by negotiating some kind of private deal or by punching it out at auction.

By not filing objections, applicants in singular/plural situations risk looking like they don’t care about user confusion or are blasé about forcing defensive registrations.

(And by defensive registrations, remember here we’re not only talking about trademark owners, we’re talking about every potential future registrant in those gTLDs.)

They do have the slight excuse that they were only given a week or so to file objections after the results of the String Similarity Panel’s deliberations, delayed several times, were revealed.

There’s also the possibility that some of the apparent clashes won’t be as big of a concern in the marketplace due to, for example, registration restrictions.

What happens next?

The GAC is almost certain to issue advice about plurals in the next day or two, having brought the topic up with ICANN’s board of directors earlier this week.

The Business Constituency is also expected to make a few proposals directly to the board during the Public Forum in Beijing, Thursday afternoon local time.

The BC is likely to suggest, for example, that if one String Similarity Objection decision finds that a plural and a singular are confusingly similar, then that ruling should apply to all plural clashes, even if no objection has been filed.

It’s an audacious idea: it would certainly do the trick, but it would require some severe goal-post moving by ICANN at a time when it’s already under fire for pulling last-minute stunts on applicants.

It would also risk capturing fringe cases of strings that look plural but, in the context they are used in everyday language, are not (such as .new and .news).

Without some kind of action, however, ICANN is pretty much guaranteed to attract negative publicity.

Looking like it’s the stooge of the domain name industry, forcing regular registrants to double-buy their domains to the enrichment of registries and registrars, could look bad.

ICANN headed for GAC fight over IGO pleading

Kevin Murphy, April 10, 2013, Domain Policy

ICANN may be heading for a bust-up with its Governmental Advisory Committee over the issue of a special domain name block-list for intergovernmental organizations.

The board of directors this week indicated at a meeting with the GAC in Beijing that it’s prepared to deny the GAC’s official demand for IGO protection at second level in all new gTLDs.

The GAC wants the names and acronyms of hundreds of IGOs — any organization that qualifies for a .int domain name — blocked, so that nobody would be able to register them, in every new gTLD.

It would, for example, give the European Forest Institute the exclusive rights to efi.tld in all future gTLDs.

Other well-known cybersquatting targets such as the European Organisation for Astronomical Research in the Southern Hemisphere (ESO), the North Atlantic Salmon Conservation Organization (NASCO) and the International Conference on the Great Lakes Region of Africa (ICGLR), would also be protected.

Some potentially very useful operational domains, such as a who.tld, would be banned (because of the World Health Organization).

Clearly, the GAC’s demands are a solution looking for a problem, giving special protection to many organizations that simply don’t need it, potentially at the expense of legitimate users.

The GAC had indicated that clashes with legitimate uses could be handled in a similar way to country names will be controlled in new gTLDs, where registries have to request special permission from the governments concerned to release the domains to others.

This would open a whole can of worms, however, the implications of which were outlined in an April 1 letter from ICANN board chair Steve Crocker to the GAC.

The board’s case was also succinctly articulated by director Chris Disspain during the board’s meeting with the GAC on Tuesday, and worth quoting in full. Disspain said:

This would mean that the Church of England would require the approval of the Council of Europe to register coe.church. It means the government of Canada would require the approval of the Andean Community to register can.anything. It means the International Standards Organization would require the approval of the International Sugar Organization to register iso.anything.

Even if this is what you intended in principle, the implementation of this advice is extremely problematic.

Who at each IGO would make a decision about providing consent? How long would each IGO have to provide consent? Would no reply be equivalent to consent? What criteria would be used to decide whether to give consent or not? Who would draft that criteria? Would the criteria be consistent across all IGOs or would consent simply be granted at the whim of an IGO.

The board believes that all these issues make it extremely difficult, if not impossible, to accept the advice as is.

Rather than rejecting this advice we seek an acknowledgement from the GAC in its communique that there are issues to be worked through, and we seek agreement with the GAC that they will work with the board and staff on these issues from now until Durban [this July] when the board will make a decision?

Disspain added that despite a board decision in November to set the ball rolling on IGO protections, it most certainly has not already decided to grant the GAC’s request.

This is an excellent development in GAC-board relations, in my view.

Rather than quaking at GAC advice, or rush-approving it to meet new gTLD program deadlines, the board is schooling the GAC about the obvious flaws in its position, and inviting it to think about the problems in a bit more depth, hearing alternate views, before lobbing advice grenades.

It’s a stark contrast to its treatment of the GAC’s 2011 advice on International Olympic Committee and Red Cross/Red Crescent names, where the board agreed to special protections in order to get the new gTLD program out of the door, creating thousands of extra person-hours of work for the GNSO.

When the GAC issued its IOC/RC/RC advice, it assured ICANN that the organizations concerned were special cases.

Others warned — presciently, as it turned out — that such protections would be merely the top of a slippery slope that would lead to a much longer list of protected names.

An effect of ICANN’s strong position now is that the slope is less steep and less slippery.

What happens next with the IGO names depends on the GAC’s communique from the ongoing Beijing meeting.

If it decides to engage with ICANN to sort out the problems it’s trying to create, they have until Durban to come to a deal. If it stands firm, ICANN may have to invoke the part of its bylaws that allows it to overrule the GAC, which has only done once before, when it approved .xxx.

GAC threat looms over ICANN Beijing

Kevin Murphy, April 8, 2013, Domain Policy

How the Governmental Advisory Committee handles its advice on new gTLD applications seems to be a big worry at the ICANN public meeting in Beijing this week.

During a session yesterday, new gTLD program vice president Christine Willett was peppered with questions about the approval process going forward, many of which related to the GAC.

There’s also a lot of gossiping about which applications the GAC is thinking about delivering the kiss of death to, and what its advice will mean to the overall program timetable.

DI is not attending the Beijing meeting in person, but here’s what I’ve learned from remote participation and talking to attendees:

Confusion over the GAC Advice standard

Judging by interactions during Willett’s session, there may be a little bit of confusion about whether GAC Advice needs to be “consensus” GAC Advice in order to halt a new gTLD application.

I think the confusion is mainly due to the way some people (Willett and myself included) use phrases such as “non-consensus GAC Advice” as shorthand for a particular paragraph of the Applicant Guidebook.

Here’s the way I understand it:

All GAC Advice — including Advice sent on issues completely unrelated to the new gTLD program — is consensus GAC Advice.

If the GAC sends written Advice to the ICANN board, it means the GAC has reached consensus to send that Advice, even if the Advice itself reflects a lack of consensus on the specifics.

Confusion in the community is arising now because the Applicant Guidebook also talks about three types of “GAC Advice on New gTLDs”, the first of which is:

The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved.

That’s describing a situation where the GAC has reached a consensus that an application should be rejected. It’s going to sound the death knell for several applications, without doubt.

The second type of GAC Advice on New gTLDs in the Guidebook is:

The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

The language was written by the GAC, using its consensus model, which is why it’s so badly worded.

What it means is that the GAC could not find consensus to kill off an application — some governments want it killed off, some don’t — but that the GAC as a whole reached consensus to tell ICANN that some governments do want it killed off.

So when people talk about “non-consensus” Advice, we’re referring to this second form of GAC Advice on New gTLDs, where the GAC could reached consensus to alert ICANN about “concerns” but could not reach consensus that the application should be taken outside and shot.

Which applications are going to get Advice?

The GAC stated last week that 20 applications had been put forward for specific review at the Beijing meeting.

From what I’ve been able to piece together from the GAC’s public hints, its Early Warnings, and sources in Beijing, I think I’ve identified many of these applications.

I’m pretty certain that DotConnectAfrica’s application for .africa is going to get killer Advice.

I’m not picking on DCA (disclosure: DCA accused me of being part of a racist conspiracy) but it is the only remaining applicant to comprehensively ignore ICANN’s rules on geographic names.

It’s also well-known that Amazon’s application for .amazon (and translations), and Patagonia Inc’s application for .patagonia, both of which were not captured by ICANN’s rules on geography, are unloved by Latin American governments.

The Montevideo Declaration, signed by government ministers from the continent last week, specifically condemns any new gTLDs related to Amazonia and Patagonia.

It’s difficult to see how the GAC could ignore the strength of this position, but it’s always possible that some members may have been lobbied into submission by applicants, therefore spoiling consensus.

Other geographic strings that ICANN’s rules did not identify as geographic may also face Advice.

It’s known that .persiangulf, for example, is racially/culturally divisive because the same body of water is also known as the Arabian Gulf by Arab states in the region.

The Japanese government’s Early Warning against .date (issued because there are two cities in Japan that, when translated into Latin characters, are called Date) is also believed to have been put forward for formal GAC Advice.

Outside of geographic names, I hear that .basketball and .rugby are also on the GAC’s shortlist.

These are interesting cases because the governments with the beef (Greece and the UK) are not concerned about the strings themselves. Rather, they want to make sure their preferred applicant wins.

Both gTLDs are contested, and each contention set has one applicant backed by the official world authority for the sport concerned.

If the GAC issues Advice on either, it’s putting itself in the position of picking winners and losers, which could make for some frenetic lobbying in future application rounds.

The application for .uno is believed to be under discussion in the GAC because it clashes with the acronym of an intergovernmental organization.

It also seems pretty certain that Demand Media’s applications for .navy, .army and .airforce are going to get Advice in one form or another. The US, I gather, is adamant that these bids should be rejected at all costs.

How GAC Advice affects the timetable

Willett said yesterday that ICANN expects to receive the GAC’s Advice this week, which should come as some relief to applicants given that the timing has always been a bit vague.

But it’s still not clear what form the Advice will take.

Sure, there’s bound to be some bits of Advice that call out specific applications for death-by-board, but there may also be Advice that addresses certain “categories” of application.

If that happens, and the GAC does not explicitly state which applications fall into which category, there’s the potential for mass confusion following the Beijing meeting.

I raised this specter last week, and it cropped up again during Willett’s session in Beijing yesterday.

What I forgot about last week, and what Willett was quizzed about yesterday, is that the Guidebook gives applicants with GAC Advice 21 days to respond to it before the ICANN board acts.

“I’m concerned that whereby the GAC Advice is such that it is all-encompassing and non-exhaustive that therefore all applicants must respond and all applicants are waiting another 21 days,” ARI Registry Services CEO Adrian Kinderis asked. “No applicant can proceed, because they’re all impacted.”

“If that hypothetical situation occurs, I think that’s possible,” Willett responded.

I other words, if the GAC delivers broad advice this week that does not name specific applications, it’s possible that every applicant would have 21 days to tell ICANN’s board why they’re not affected.

That would completely balls up ICANN’s plan to sign its first registry agreements on April 23.

Governments expand gTLD objection shortlist

Kevin Murphy, April 2, 2013, Domain Policy

With the start of its meetings in Beijing just a couple of days away, ICANN’s Governmental Advisory Committee has handed out clues as to which new gTLDs it might object to.

The GAC says that 20 specific bids have already been put forward by one government as potential recipients of GAC Advice, but that there are nine broad categories of concern.

Some of the categories seem to obviously apply to certain narrow types of gTLD, while others are broad enough to catch almost any bid the GAC doesn’t like the look of.

Any application that receives adverse GAC Advice at the end of the Beijing meeting faces, at the very least, a prolonged approval process along the lines of what .xxx had to endure.

The worst-case scenario is rejection of the bid by the ICANN board of directors.

These are the GAC’s categories, along with some educated guesses about which strings they could apply to:

  • “Consumer protection” — could apply to anything, depending on how well-lobbied the GAC has been by a particular interest group. Any gTLD that could implausibly be argued to increase the risk of counterfeiting may show up here. A liberal interpretation could well capture .music or sports-related strings.
  • “Strings that are linked to regulated market sectors, such as the financial, health and charity sectors” — Dozens of applications, such as those for .lawyer, .doctor, .health .bank, and .charity — will fall into this category.
  • “Competition issues” — This most likely applies to applications for category-killer dictionary words where the applicant is already a dominant player in the relevant market, such as Google’s bid for .search or Amazon’s for .book.
  • “Strings that have broad or multiple uses or meanings, and where one entity is seeking exclusive use” — Again, this could apply to the many controversial “closed” gTLD applications.
  • “Religious terms where the applicant has no, or limited, support from the relevant religious organisations or the religious community” — I suspect that the the Vatican’s application for .catholic is less at risk than a Turkish company’s bid for .islam. Any Islam-related domains are likely to fail the “support” test, given the lack of centralized control over the religion.
  • “Minimising the need for defensive registrations” — A category that seems to have been specially created for .sucks.
  • “Protection of geographic names” — Most probably will be used to kill off DotConnectAfrica’s application for .africa and Patagonia Inc’s application for .patagonia. But will Amazon’s dot-brand bid also fall foul?
  • “Intellectual property rights particularly in relation to strings aimed at the distribution of music, video and other digital material” — If the GAC buys into the lobbying and believes that an unrestricted .music or .movie gTLD would increase piracy, expect objections to some of those bids. The GAC doesn’t have to provide a shred of evidence to support its Advice at first, remember, so this is not as ludicrous a possibility as it sounds.
  • “Support for applications submitted by global authorities” — This is a newly added category. If the GAC is proposing to submit advice in support of one application in a contention set, there’s no mechanism ICANN can use to ensure that he supported applicant wins the set. The Advice may turn out to be useless. Certain sports-related applications are among those with “global authority” backing.
  • “Corporate Identifier gTLDs” — Not, as this post originally speculated, dot-brands. Rather, this applies to the likes of .inc, .corp, .llc and so on.
  • “Strings that represent inherent government functions and/or activities” — Expect military-themed gTLDs such as .army and .navy to feature prominently here. Could also cover education and healthcare, depending on the government.

The GAC also plans to consider at least 20 specific applications that have been put forward as problematic by one or more governments, as follows:

Community name where the applicant does not have support from the community or the government: 1

Consumer protection: 2

Name of an Intergovernmental Organisation (IGO): 1

Protection of geographic names: 9

Religious terms: 2

Strings applied for that represent inherent government functions and/or activities: 3

Support for applications submitted by global authorities: 2

ICANN plans to formally approve the first batch of new gTLDs, with much ceremony, at an event in New York on April 23, but has said it will not approve any until it has received the GAC’s Advice.

The GAC is on the clock, in other words.

While it’s been discussing the new gTLDs on private mailing lists since last year’s Toronto meeting, it’s already missed at least self-imposed deadline. The information released today was due to be published in February.

While the ICANN Beijing meeting does not officially begin until next Monday, and the rest of the community starts its pre-meeting sessions at the weekend, the GAC starts its closed-session meetings this Thursday.