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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?