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GNSO faces off with governments over IGO cybersquatting

Kevin Murphy, January 27, 2017, Domain Policy

A defiant ICANN working group looking at cybersquatting rules for intergovernmental organizations is sticking to its guns in an ongoing face-off with the Governmental Advisory Committee.

In a report published for public comment this week, the GNSO working group recommended that IGOs should be given the right to use the UDRP and URS rights protection mechanisms, despite not being trademark owners.

But the recommendations conflict with the advice of the GAC, which wants ICANN to create entirely new mechanisms to deal with IGO rights.

I explored a lot of the back story of this argument in two posts a few months ago, which I will not rehash here.

The latest development is the publication of the proposed initial report of the GNSO IGO-INGO Access to Curative Rights Protection Mechanisms Initial Report (pdf) for comment.

The WG was tasked with deciding whether changes should be made to UDRP and URS to help protect the names and acronyms of IGOs and INGOs (international non-governmental organizations).

For INGOs, including the special cases of the International Olympic Committee and the Red Cross/Red Crescent, it decided no changes and no new mechanisms are required, concluding:

Many INGOs already have, and do, enforce their trademark rights. There is no perceivable barrier to other INGOs obtaining trademark rights in their names and/or acronyms and subsequently utilizing those rights as the basis for standing in the existing dispute resolution procedures (DRPs) created and offered by ICANN as a faster and lower cost alternative to litigation. For UDRP and URS purposes they have the same standing as any other private party.

The case with IGOs is different, because using UDRP and URS requires complainants to agree that the panel’s decisions can be challenge in court, and IGOs by their nature have a special legal status that allows them to claim jurisdictional immunity.

The WG recommends that these groups should be allowed access to UDRP and URS if they have protection under Article 6ter of the Paris Convention, a longstanding international intellectual property treaty.

This rule would actually extend UDRP and URS to hundreds more IGO names and acronyms than the GAC has requested protection for, which is just a few hundred. WIPO’s 6ter database by contrast currently lists 925 names and 399 abbreviations.

To deal with the jurisdictional immunity problem, the WG report recommends that IGOs should be allowed to file cybersquatting complaints via a third-party “assignee, agent or licensee”.

It further recommends that if an IGO manages to persuade a court it has special jurisdictional immunity, having been sued by a UDRP-losing registrant, that the UDRP decision be either disregarded or sent back to the arbitration for another decision.

The recommendations with regard IGOs are in conflict with the recommendations (pdf) of the so-called “small group” — a collection of governments, IGOs, INGOs and ICANN directors that worked quietly and controversially in parallel with the WG to come up with alternative solutions.

The small group wants ICANN to create separate but “functionally equivalent” copies of the UDRP and URS to deal with cybersquatting on IGO name and acronyms.

These copied processes would be free for IGOs to use and, to account for the immunity issue, would not be founded in trademark law.

The WG recommendations are now open for public comment and are expected to be the subject of some debate at the March ICANN meeting in Copenhagen.

RANT: Governments raise yet another UN threat to ICANN

Kevin Murphy, October 31, 2016, Domain Policy

ICANN’s transition away from US government oversight is not even a month old and the same old bullshit power struggles and existential threats appear to be in play as strongly as ever.

Governments, via the chair of the Governmental Advisory Committee, last week yet again threatened that they could withdraw from ICANN and seek refuge within the UN’s International Telecommunications Union if they don’t get what they want from the rest of the community.

It’s the kind of thing the IANA transition was supposed to minimize, but just weeks later it appears that little has really changed in the rarefied world of ICANN politicking.

Thomas Schneider, GAC chair, said this on a conference call between the ICANN board and the Generic Names Supporting Organization on Thursday:

I’m just urging you about considering what happens if many governments consider that this system does not work. They go to other institutions. If we are not able to defend public interest in this institution we need to go elsewhere, and this is exactly what is happening currently at the ITU Standardization Assembly.

This is a quite explicit threat — if governments don’t like the decisions ICANN makes, they go to the ITU instead.

It’s the same threat that has been made every year or two for pretty much ICANN’s entire history, but it’s also something that the US government removing its formal oversight of ICANN was supposed to help prevent.

So what’s this “public interest” the GAC wants to defend this time around?

It’s protections for the acronyms of intergovernmental organizations (IGOs) in gTLDs, which we blogged about a few weeks ago.

IGOs are bodies ranging from the relatively well-known, such as the World Health Organization or World Intellectual Property Organization, to the obscure, such as the European Conference of Ministers of Transport or the International Tropical Timber Organization.

According to governments, the public interest would be served if the string “itto”, for example, is reserved in every new gTLD, in other words. It’s not known if any government has passed laws protecting this and other IGO strings in their own ccTLDs, but I suspect it’s very unlikely any have.

There are about 230 such IGOs, all of which have acronyms new gTLD registries are currently temporarily banned from selling as domains.

The multi-stakeholder GNSO community is on the verge of coming up with some policy recommendations that would unblock these acronyms from sale and grant the IGOs access to the UDRP and URS mechanisms, allowing them to reclaim or suspend domains maliciously exploiting their “brands”.

The responsible GNSO working group has been coming up with these recommendations for over two years.

While the GAC and IGOs were invited to participate in the WG, and may have even attended a couple of meetings, they decided they’d have a better shot at getting what they wanted by talking directly to the ICANN board outside of the usual workflow.

The WG chair, Phil Corwin of the Internet Commerce Association, recently described IGO/GAC participation as a “near boycott”.

This reluctance to participate in formal ICANN policy-making led to the creation of the so-called “small group”, a secretive ad hoc committee that has come up with an opposing set of recommendations to tackle the same IGO acronym “problem”.

I don’t think it’s too much of a stretch to call the the small group “secretive”. While the GNSO WG’s every member is publicly identified, their every email publicly archived, their every word transcribed and published, ICANN won’t even say who is in the small group.

I asked ICANN for list of its members a couple of weeks ago and this is what I got:

The group is made up of Board representatives from the New gTLD Program Committee (NGPC), primarily, Chris Disspain; the GAC Chair; and representatives from the IGO coalition that first raised the issue with ICANN and some of whom participated in the original PDP on IGO-INGO-Red Cross-IOC protections – these would include the OECD, the UN, UPU, and WIPO.

With the publication two weeks ago of the small group’s recommendations (pdf) — which conflict with the expect GNSO recommendations — the battle lines were drawn for a fight at ICANN 57, which kicks off this week in Hyderabad, India.

Last Thursday, members of the GNSO Council, including WG chair Corwin, met telephonically with GAC chair Schneider, ICANN chair Steve Crocker and board small group lead Disspain to discuss possible ways forward.

What emerged is what Crocker would probably describe as a “knotty” situation. I’d describe it as a “process clusterfuck”, in which almost all the relevant parties appear to believe their hands are tied.

The GNSO Council feels its hands are tied for various reasons.

Council chair James Bladel explained that the GNSO Council doesn’t have the power to even enter substantive talks.

“[The GNSO Council is] not in a position to, or even authorized to, negotiate or compromise PDP recommendations that have been presented to use by a PDP working group and adopted by Council,” he said.

He went on to say that while the GNSO does have the ability to revisit PDPs, to do so would take years and undermine earlier hard-fought consensus and dissuade volunteers from participating in policy making. He said on the call:

By going back and revisiting PDPs we both undermine the work of the community and potentially could create an environment where folks are reluctant to participate in PDPs and just wait until a PDP is concluded and then get engaged at a later stage when they feel that the recommendations are more likely adopted either by the board or reconciled with GAC advice.

He added that contracted parties — registries and registrars — are only obliged to follow consensus policies that have gone through the PDP process.

Crocker and Disspain agreed that the the GAC and the GNSO appear to have their hands tied until the ICANN board makes a decision.

But its hands are also currently tied, because it only has the power to accept or reject GNSO recommendations and/or GAC advice, and it currently has neither before it.

Chair Crocker explained that the board is not able to simply impose any policy it likes — such as the small group recommendations, which have no real legitimacy — it’s limited to either rejecting whatever advice the GAC comes up with, rejecting whatever the GNSO Council approves, or rejecting both.

The GNSO WG hasn’t finished its work, though the GNSO Council is likely to approve it, and the GAC hasn’t considered the small group paper yet, though it is likely to endorse it it.

Crocker suggested that rejecting both might be the best way to get everyone around a table to try to reach consensus.

Indeed, it appears that there is no way, under ICANN’s processes, for these conflicting views to be reconciled formally at this late stage.

WG chair Corwin said that any attempt to start negotiating the issue before the WG has even finished its work should be “rejected out of hand”.

With the GNSO appearing to be putting up complex process barriers to an amicable way forward, GAC chair Schneider repeatedly stated that he was attempting to reach a pragmatic solution to the impasse.

He expressed frustration frequently throughout the call that there does not appear to be a way that the GAC’s wishes can be negotiated into a reality. It’s not even clear who the GAC should be talking to about this, he complained.

He sounds like he’s the sensible one, but remember he’s representing people who stubbornly refused to negotiate in the WG over the last two years.

Finally, he raised the specter of governments running off to the UN/ITU, something that historically has been able to put the willies up those who fully support (and in many cases make their careers out of) the ICANN multistakeholder model.

Here’s a lengthier chunk of what he said, taken from the official meeting transcript:

If it turns out that there’s no way to change something that has come out of the Policy Development Process, because formally this is not possible unless the same people would agree to get together and do the same thing over again, so maybe this is what it takes, that we need to get back or that the same thing needs to be redone with the guidance from the board.

But if then nobody takes responsibility to — in case that everybody agrees that there’s a public interest at stake here that has not been fully, adequately considered, what — so what’s the point of this institution asking governments for advice if there’s no way to actually follow up on that advice in the end?

So I’m asking quite a fundamental question, and I’m just urging you about considering what happens if many governments consider that the system does not work. They go to other institutions. They think we are not able to defend public interest in this institution. We need to go elsewhere. And this is exactly what is happening currently at the ITU Standardization Assembly, where we have discussions about protection of geographic names because — and I’m not saying this is legitimate or not — but because some governments have the feeling that this hasn’t been adequately addressed in the ICANN structure.

I’m really serious about this urge that we all work together to find solutions within ICANN, because the alternative is not necessarily better. And the world is watching what signals we give, and please be aware of that.

The “geographic names” issue that Schneider alludes to here seems to be a proposal (Word .doc) put forward by African countries and under discussion at the ITU’s WTSA 2016 meeting this week.

The proposal calls for governments to get more rights to oppose geographic new gTLD applications more or less arbitrarily.

It emerged not from any failure of ICANN policy — geographic names are already protected at the request of the GAC — but from Africa governments being pissed off that .africa is still on hold because DotConnectAfrica is suing ICANN in a California court and some batty judge granted DCA a restraining order.

It’s not really relevant to the IGO issue, nor especially relevant to the issue of governments failing to influence ICANN policy.

The key takeaway from Schneider’s remarks for me is that, despite assurances that the IANA transition was a way to bring more governments into the ICANN fold rather than seeking solace at the UN, that change of heart is yet to manifest itself.

The “I’m taking my ball and going home” threat seems to be alive and well for now.

If you made it this far but want more, the transcript of the call is here (pdf) and the audio is here (mp3). Good luck.

ICANN faces first post-transition test of UN power (for real this time)

Kevin Murphy, October 7, 2016, Domain Policy

The ICANN community and United Nations agencies are heading for a clash, with governments accused this morning of trying to bypass the ICANN policy-making process.

According to the leader of an ICANN volunteer working group, governments and UN-affilated intergovernmental organizations (IGOs) have circumvented the usual ICANN consensus-building process in order to extract the policies they want directly from the ICANN board of directors and staff.

It’s the first time since the IANA transition, which happened less than a week ago, that governments have been accused of exploiting their special access to the board, and it may become a hot topic at next month’s ICANN 57 meeting in India.

Governments and UN agencies now stand accused of “bypassing the ICANN community” in order to achieve their policy goals.

But the policy being debated is not directly linked to the IANA transition, nor to the thoroughly debunked notion that the UN has taken over ICANN.

Indeed, the issue in question — the permanent protection of IGO acronyms in gTLDs — is almost embarrassingly narrow and predates the announcement of the IANA transition by at least three years, going back to at least 2011.

Basically, the policy questions that look set to cause even more conflict between governments and others are: should IGO acronyms be protected, and if so, how?

IGO acronyms are strings such as WIPO, UNESCO and OECD.

The ICANN board punted this question in May 2014, when it received conflicting advice from the Governmental Advisory Committee and Generic Names Supporting Organization.

Since then, a GNSO Policy Development Process working group has been working on recommendations. It has not yet issued its initial findings, but is close.

Simultaneously and separately, members of ICANN’s board and staff have been quietly talking to a handful of GAC members and IGOs about the same issue in what has become known as the “small group”.

Because it’s small. And a group.

Yesterday, ICANN divulged the consensus of the small group in a letter (pdf) to the leaders of the GNSO Council.

Its recommendations conflict in almost every respect with what the GNSO working group intends to recommend.

The small group wants ICANN to create IGOs-acronyms-only versions of the Trademark Clearinghouse database, Trademark Claims service and UDRP and URS dispute resolution mechanisms — basically “functionally equivalent” mirrors of almost all of the rights protection mechanisms currently only available to trademark owners.

They would be administered at least partially by the GAC and at no cost to the IGOs themselves (presumably meaning ICANN would pick up the tab).

It seems like a disproportionate amount of faff considering the problem ICANN is trying to solve is the vanishingly small possibility that somebody attempts to cybersquat the United Nations Entity For Gender Equality And The Empowerment Of Women (UNWOMEN) or the Postal Union Of The Americas Spain And Portugal (PUASP).

A lot of it is also in direct opposition to what the GNSO WG plans to recommend, according to chair Phil Corwin and the current draft of the WG’s recommendations.

The WG currently plans to recommend that IGOs should be allowed to use the existing URS and UDRP mechanisms to take down or take over domains that use their acronyms in bad faith. It does not currently seem to recommend anything related to Trademark Claims.

A foundational disagreement relates to the status of IGOs under the law. While IGOs in the small group seem to think they are in a special category of entity that is not subject to regular trademark law, the WG hired expert legal counsel that determined the contrary.

Corwin, in his initial response to the small group letter, said that the implications of the debate go beyond how IGO acronyms should be protected.

IGOs carried out a “near boycott” of the GNSO PDP discussions, he wrote, preferring instead to talk to the small group “behind closed doors”. He wrote:

we continually urged members of the GAC, and IGOs, to participate in our WG. That participation was so sporadic that it amounted to a near-boycott, and when IGO representatives did provide any input they stressed that they were speaking solely as individuals and were not providing the official views of the organizations that employed them.

Of course, why should they participate in the GNSO policy processes when they are permitted to pursue their goals in extended closed door discussions with the Board, and when the Board seeks no input from the GNSO in the course of those talks?

He directly linked the timing of the small group report to the expiration last Friday of ICANN’s IANA functions contract with the US Department of Commerce, and suggested that the IGO acronym issue could be a litmus test for how ICANN and governments function together under the new oversight regime.

I note that transmission of the letter has been delayed until after the completion of the IANA transition, and that the post-transition role of governments within ICANN was a central controversy surrounding the transition.

What is at stake in this matter goes far beyond the relatively rare instance in which a domain registrant infringes upon the name or acronym of an IGO and the IGO seeks relief through a CRP [Curative Rights Protection mechanism]. The larger issue is whether, in a post-transition ICANN, the GAC and the UN agencies that comprise a large portion of IGOs, will participate meaningfully in GNSO policy activities, or will seek their policy aims by bypassing the ICANN community and engaging in direct, closed door discussions with the Board.

The financial effects of this seemingly interminable debate on the gTLD industry are probably pretty minor.

Currently, all new gTLDs have temporarily blocked, from launch, all of the IGO acronyms in question. That’s roughly 200 domains per gTLD that could otherwise be sold.

Many of the strings are three, four and five-letter acronyms that could fetch “premium” prices in the open market (though, in my judgement, not much more than a couple hundreds bucks in most cases).

A small number of the acronyms, such as WHO and IDEA, are potentially more valuable.

Off the top of my head and the back of an envelope, I’d put the cost to the industry as a whole of the IGO acronym blocks probably somewhere in the very low millions.

The harms being prevented are also very minor, in my view. With a small handful of exceptions, the IGOs in question are not attractive cybersquatting targets.

But, as is so often the case in ICANN matters, the arguments in this case boil down to matters of law, principle and process much more than practical impact.

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.

Under global spotlight, ICANN forced to choose between GAC and the GNSO

Kevin Murphy, March 27, 2014, Domain Policy

ICANN has angered the Generic Names Supporting Organization and risks angering the Governmental Advisory Committee as it prevaricates over a controversial rights protection mechanism.

It looks like the ICANN board of directors is going to have decide whether to reject either a hard-won unanimous consensus GNSO policy recommendation or a piece of conflicting GAC advice.

ICANN is “stuck in a bind”, according to chairman Steve Crocker, and it’s a bind that comes at a time when the bottom-up multi-stakeholder process is under the global microscope.

The issue putting pressure on the board this week at the ICANN 49 public meeting here in Singapore is the protection of the names and acronyms of intergovernmental organizations.

IGOs pressured the GAC a few years ago into demanding protection in new gTLDs. They want every IGO name and acronym — hundreds of strings — blocked from registration by default.

For example, the Economic Cooperation Organization would have “economiccooperationorganization” and “eco” blocked at the second level in all new gTLDs, in much the same way as country names are reserved.

Other IGO acronyms include potentially useful dictionary-word strings like “who” and “idea”. As I’ve said before, protecting the useful acronyms of obscure IGOs that never get cybersquatted anyway is just silly.

But when ICANN approved the new gTLD program in 2011, for expediency it placed a temporary block on some of these strings and asked the GNSO to run a formal Policy Development Process to figure out a permanent fix.

In November 2012 it added hundreds more IGO names and acronyms to the list, while the GNSO continued its work.

The GNSO concluded its PDP last year with a set of strong consensus recommendations. The GNSO Council then approved them in a unanimous vote at the Buenos Aires meeting last November.

Those recommendations would remove the IGO acronyms from the temporary reserved names list, but would enable IGOs to enter those strings into the Trademark Clearinghouse instead.

Once in the TMCH, the acronyms would be eligible for the standard 90-day Trademark Claims mechanism, which alerts brand owners when somebody registers a name matching their mark.

The IGOs would not, however, be eligible for sunrise periods, so they wouldn’t have the special right to register their names before new gTLDs go into general availability.

The PDP did not make a recommendation that would allow IGOs to use the Uniform Rapid Suspension service or UDRP.

Unfortunately for ICANN, the GNSO recommendations conflict with the GAC’s current advice.

The GAC wants (pdf) the IGOs to be eligible for Trademark Claims on a “permanent” basis, as opposed to the 90-day minimum that trademark owners get. It also wants IGOs — which don’t generally enjoy trademark protection — to be made eligible for the URS, UDRP or some similar dispute resolution process.

Since Buenos Aires, the ICANN board’s New gTLD Program Committee has been talking to the GAC and IGOs about a compromise. That compromise has not yet been formally approved, but some initial thinking has been circulated by Crocker to the GAC and GNSO Council.

ICANN proposes to give IGOs the permanent Trademark Claims service that the GAC has asked for, as well as access to the URS. Both policies would have to be modified to allow this.

It would also create an entirely new arbitration process to act as a substitute for UDRP for IGOs, which are apparently legally unable to submit to the jurisdiction of national courts.

The compromise, while certainly overkill for a bunch of organizations that could hardly be seen as ripe cybersquatting targets, may seem like a pragmatic way for the board to reconcile the GNSO recommendations with the GAC advice without pissing anyone off too much.

But members of the GNSO are angry that the board appears to be on the verge of fabricating new policy out of whole cloth, ignoring its hard-won PDP consensus recommendations.

That’s top-down policy-making, something which is frowned upon within ICANN circles.

Under the ICANN bylaws, the board is allowed to reject a GNSO consensus recommendation, if it is found to be “not in the best interests of the ICANN community or ICANN”. A two-thirds majority is needed.

“That’s not what happened here,” Neustar’s vice president of registry services Jeff Neuman told the board during a meeting here in Singapore on Tuesday.

“Instead, the board on its own developed policy,” he said. “It did not accept, it did not reject, it developed policy. But there is no room in the ICANN bylaws for the board to do this with respect to a PDP.”

He said that the GNSO working group had already considered elements of ICANN’s compromise proposal and specifically rejected them during the PDP. Apparently speaking for the Registries Stakeholder Group, Neuman said the compromise should be taken out of consideration.

Bret Fausett of Uniregistry added: “The process here is as important to us as the substance. We think procedure wasn’t followed here and we detect a lack of understanding at the board level that process wasn’t followed.”

The GNSO Council seems to agree that the ICANN board can either accept or reject its recommendations, but what it can’t do is just write its own policies for the sake of a quiet life with the GAC.

To fully accept the GNSO’s recommendations would, however, necessitate rejecting the GAC’s advice. That’s also possible under the bylaws, but it’s a lengthy process.

Director Chris Disspain told the GNSO Council on Sunday that the board estimates it would take at least six months to reject the GAC’s advice, during which time the temporary reservations of IGO acronyms would remain active.

He further denied that the board is trying to develop policy from the top.

“It is not top-down, it’s not intended to be top-down, I can’t really emphasis that enough,” he told the Council.

He described the bylaws ability to reject the GNSO recommendations as a “sledgehammer”.

“It would be nice to be able to not have to use the sledgehammer,” he said. “But if we did have to use the sledgehammer we should only be using it because we’ve all agreed that’s what we have to do.”

Chair Steve Crocker summed up the board’s predicament during the Sunday meeting.

“We always do not want to be in the position of trying to craft our own policy decision,” he said. “So we’re stuck in this bind where we’re getting contrary advice from sources that feel very strongly that they’ve gone through their processes and have spoken and so that’s the end of it from that perspective.”

The bind is especially tricky because it’s coming at a time when ICANN is suddenly becoming the focus of a renewed global interest in internet governance issues.

The US government has said that it’s willing to walk away from its direct oversight of ICANN, but only if what replaces it is a “multi-stakeholder” rather than “intergovernmental” mechanism

If ICANN were to reject the proceeds of a two-year, multi-stakeholder, bottom-up, consensus policy, what message would that send to the world about multistakeholderism?

On the other hand, if ICANN rejects the advice of the GAC, what message would it send about governments’ ability to effectively participate as a stakeholder in the process?

Clearly, something is broken when the procedures outlined in ICANN’s bylaws make compromise impossible.

Until that is fixed — perhaps by getting the GAC involved in GNSO policy-making, something that has been talked about to no end for years — ICANN will have to continue to make these kinds of hard choices.

Fielding a softball question during a meeting with the GNSO Council on Saturday, ICANN CEO Fadi Chehade said that “to value the process as much as I value the result” is the best piece of advice he’s received.

“Policies get made here,” Chehade told the Council, “they should not be made at the board level, especially when a consensus policy was made by the GNSO. Akram [Atallah, Generic Domains Division president] today was arguing very hard at the board meeting that even if we don’t think it’s the right thing, but it is the consensus policy of the GNSO, we should stick with it.”

Will the board stick with it? Director Bruce Tonkin told the registries on Monday that the board would try to address their concerns by today, so we may not have to wait long for an answer.

Donuts: “eco” registrants could get their names back

Kevin Murphy, March 14, 2014, Domain Registries

Registrants whose domains were deleted by Donuts this week could get their names back, should ICANN release them from its reserved lists in future, the company said today.

In an email to affected registrants, believed to number a few dozen, Donuts said:

We are actively lobbying ICANN to make the domain names you registered available to you. We hope to be successful and, though you are under no obligation to do so, we think it would be helpful if you voiced your opinion to ICANN about it directly.

To get these domain names to you as soon as possible, we are maintaining a record of your details in the event ICANN releases these names for registration. If and when ICANN does, we will contact you and have these names registered to you for free.

The only names affected by the screw-up were “eco” and “00” at the second level in any of Donuts new gTLDs.

The company had accidentally removed both strings from its list of reserved names, making the domains available for registration.

The string “eco” is reserved because it matches the acronym of the Economic Cooperation Organization, an intergovernmental organization, while “00” is reserved along with all two-character strings.

Whether “eco” is released will rather depend on whether the ICANN board of directors sides with the Generic Names Supporting Organization, which wants acronyms removed from the reserved list, or the Governmental Advisory Committee, which wants the protection to remain.

For “00”, it’s a slightly different story. There’s no move I’m aware of to relax the two-character rule, which is designed to protect current and future ccTLDs.

But it does seem a bit strange for numeric domains to be reserved in this way, given that there’s virtually no chance of a future nation being assigned a numeric country code by the UN.

It may not be impossible for “00” to be released, but I think it might take a bit longer.

GAC gives ICANN a way out on IGO acronyms

Kevin Murphy, November 22, 2013, Domain Policy

The ICANN Governmental Advisory Committee has reiterated its call for the protection of intergovernmental organization acronyms in the new gTLD program, but seems to have given ICANN a way to avoid a nasty confrontation.

In its official Communique from the just-concluded meeting in Buenos Aires, Argentina, the GAC provided the following advice concerning IGOs:

The GAC, together with IGOs, remains committed to continuing the dialogue with NGPC [ICANN’s New gTLD Program Committee] on finalising the modalities for permanent protection of IGO acronyms at the second level, by putting in place a mechanism which would:

1. provide for a permanent system of notifications to both the potential registrant and the relevant IGO as to a possible conflict if a potential registrant seeks to register a domain name matching the acronym of that IGO;

2. allow the IGO a timely opportunity to effectively prevent potential misuse and confusion;

3. allow for a final and binding determination by an independent third party in order to resolve any disagreement between an IGO and a potential registrant; and

4. be at no cost or of a nominal cost only to the IGO.

This seems to be a departure from the GAC’s its Durban Communique, in which it had demanded “preventative” measures be put in place to stop third parties registering IGO acronyms.

As we reported earlier this week, the GNSO Council unanimously approved a resolution telling ICANN to remove IGO acronyms from existing block-lists, something the GAC had been demanding.

Now, it seems that ICANN has been given a relatively simple and less confrontational way of accepting the GAC’s watered-down advice.

The Trademark Claims alerts service and Uniform Rapid Suspension dispute resolution process combined would, by my reading, tick all four of the GAC’s boxes.

IGO acronyms do not currently qualify for either, because they’re not trademarks, but if ICANN can figure out a way to allow these strings into the Trademark Clearinghouse, it can probably give the GAC what it wants.

In my view, such a move wouldn’t trample on anyone else’s rights, it would not represent the kind of overkill the GAC originally wanted, nor would it be in conflict with the GNSO’s consensus resolution (which seems to envisage a future in which these acronyms get TMCH protection).

ICANN may have avoided the sticky situation I pondered earlier this week.

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.

Global standards group highlights silliness of GAC’s IGO demands

Kevin Murphy, May 14, 2013, Domain Policy

The International Organization for Standardization, known as ISO, doesn’t want to have its acronym blocked in new gTLDs by the International Sugar Organization.

ISO has told ICANN in a letter that demands for special favors coming from intergovernmental organizations, via the Governmental Advisory Committee, should be rejected.

Secretary general Rob Steele wrote:

We have very strong concerns with the GAC proposal, and firmly oppose any such block of the acronym “ISO.”

To implement a block on the term “ISO” (requiring its release be permitted by the International Sugar Organization) disregards the longstanding rights and important mission of the International Organization for Standardization. To be frank, this would be unacceptable.

please be assured that the International Organization for Standardization is prepared to take all necessary steps if its well-known short name is blocked on behalf of another organization.

For several months the GAC has argued that IGOs are “objectively different category to other rights holders, warranting special protection from ICANN” in new gTLDs.

Just like the “unique” Olympics and Red Cross were in 2011.

The GAC proposes that that any IGO that qualifies for a .int address (it’s a number in the hundreds) should have its name and acronym blocked by default at the second level in every new gTLD.

But ICANN pointed that this would be unfair on the hundreds (thousands?) of other legitimate uses of those acronyms. It gave several examples.

The GAC in response said that the IGOs would be able to grant consent for their acronyms to be unblocked for use by others, but this opened up a whole other can of implementation worms (as the GAC is wont to do).

ICANN director Chris Disspain of AuDA said in Beijing:

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?

In the GAC’s Beijing communique, it seemed to acknowledge this problem. It said:

The GAC is mindful of outstanding implementation issues and commits to actively working with IGOs, the Board, and ICANN Staff to find a workable and timely way forward.

The GAC insists, however, that no new gTLDs should be allowed to launch until the IGO protections are in place.

Given the amount of other work created for ICANN by the Beijing communique, I suspect that the IGO discussions will focus on implementation detail, rather than the principle.

But the principle is important. IGOs are not typically victims of pernicious cybersquatting. If they deserve special protections, then why don’t trademark owners that are cybersquatted on a daily basis?

ISO standardizes all kinds of stuff in dozens of sectors. In the domain name space, it’s probably best known for providing ICANN with ISO 3166-1 alpha-2, the authoritative list of two-letter strings that may be delegated as ccTLDs.

The International Sugar Organization is very important too, probably, if you’re in the sugar business.

Wikipedia gives it a single paragraph, Google ranks the International Society of Organbuilders higher on a search for “ISO”, and its web site suggests it doesn’t do much business online.

Does it need better brand protection than Microsoft or Marriott or Facebook or Fox? Is anyone going to want to cybersquat the International Sugar Organization, really?

If it does deserve that extra layer of protection, should that right trump the more-famous ISO’s right to register domains matching its own brand?

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