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ICANN could fast-track final new TLD guidebook

Kevin Murphy, October 29, 2010, Domain Registries

ICANN is considering a fast-track process for the final version of its new top-level domain Applicant Guidebook that could see it approved this December, documents have revealed.

Minutes and board briefing materials from ICANN’s August 5 board meeting, published yesterday, seem to demonstrate an eagerness to get the policy finalized by its Cartagena meeting.

Staff and board members favor a limited public comment period prior to the guidebook’s finalization, which could see it approved sooner rather than later.

Briefing documents (pdf, page 111 and on) say:

It is recommended that the Board consider the Final version of the Guidebook for approval at the Cartagena meeting. The final version will be posted for limited comment prior to the meeting.

The minutes of the meeting reveal a preference among staff and some directors, including chairman Peter Dengate Thrush, for this limited comment window.

The comments would be “limited” to new issues, for various reasons, including this:

A full process will bring forth every last attempt for parties to repeat positions to modify the process to be in line with their pecuniary or other interest. The optics might falsely indicate that there is no consensus around the model

ICANN’s obligation to consult its Governmental Advisory Committee would be carried out face-to-face at the Cartagena meeting, further speeding this up.

Tantalizingly, a flow-chart setting out the board’s options contains the possible launch dates for the first-round application window, but they’ve been redacted.

These documents date from August and the ICANN board has met twice since then, so things may have changed.

We’re likely to find out more about the timeline when the board resolutions from its meeting yesterday are published. I’m expecting this later today, so stay tuned.

Budapest joins the city TLD bandwagon

Kevin Murphy, October 29, 2010, Domain Registries

A Hungarian consortium is set to apply for .bud, a top-level domain to represent Budapest.

The Dotbud campaign joins a long and growing list of city TLDs intended to represent European capitals, which currently includes the likes of .london, .berlin, .paris and .riga.

Judging from a machine translation of the organization’s web site, the registry plans to offer a 50% discount to registrants who follow it on Facebook which strikes me as a novel marketing technique.

ICANN “intervention” needed on TLD ownership rules

Kevin Murphy, October 28, 2010, Domain Registries

ICANN’s board of directors is today likely to step in to create rules on which kinds of companies should be able to apply for new top-level domains.

Chairman Peter Dengate Thrush now says “intervention appears to be required” on the issue of registry-registrar cross-ownership, after a GNSO working group failed to create a consensus policy.

In an email to the vertical integration working group yesterday, Dengate Thrush thanked particpants for their efforts and added:

The board is faced, in the face of absence of a GNSO position, to examine what should be done. This is a matter we are actively considering.

My sense is that, while reluctant to appear to be making policy, the Board is unwilling to allow stalemate in the GNSO policy development process to act as an impediment to implementing other major policy work of the GNSO, which calls for the introduction of new gTLDS. Some kind of Board intervention appears to be required, and we are considering that.

Currently, placeholder text in the new TLD Draft Applicant Guidebook calls for a 2% cross-ownership cap and effectively bans registrars from applying to become registries.

Such a scenario would very likely make single-registrant “.brand” TLDs unworkable. Canon, for example, would be forced to pay a registrar every time it wanted to create a new domain in .canon.

It would also put a serious question mark next to the viability of geographical and cultural TLDs that may be of limited appeal to mass-market registrars.

Many in the VI working group are in favor of more liberal ownership rules, with larger ownership caps and carve-outs for .brands and “orphan” TLDs that are unable to find registrars to partner with.

But others, notably including Go Daddy and Afilias, which arguably stand to gain more economically from the status quo, favor a stricter separation of powers.

This latter bloc believes that allowing the integration of registry and registrar functions would enable abusive practices.

Dengate Thrush’s email has already raised eyebrows. ICANN is, after all, supposed to create policies using a bottom-up process.

Go Daddy’s policy point man, Tim Ruiz, wrote:

I am hopeful that you did not intend to imply that if the bottom up process does not produce the reults that some of the Board and Staff wanted then the Board will just create its own policy top down.

I hope that the Board keeps its word regarding VI as it was given to the GNSO. To not do so would make it difficult to have any confidence in the Board whatsoever.

It’s a tightrope, and no mistake.

Former ICANN chief speaks out against new TLD morality veto

Kevin Murphy, October 26, 2010, Domain Policy

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.

Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.

The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.

There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.

But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.

Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.

He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.

Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.

He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”

A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.

Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.

Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.

His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

Trademark lobby keeps up pressure on ICANN

Kevin Murphy, October 24, 2010, Domain Policy

The International Trademark Association is continuing to press ICANN into commissioning a study of the potential economic “harms” its new top-level domain program could cause.

INTA executive director Alan Drewsen earlier this month sent ICANN a quick reminder (pdf) that it expects to see the study carried out before the new TLD application round launches.

The trademark lobby believes that new TLDs will increase costs to brand-conscious businesses through an increase in the number of defensive registrations and dispute proceedings they have to pay for.

ICANN hired some third-party analysts to look into the issue, and published a preliminary report in July that basically just speculated about studies that could be carried out in future.

The plan was to carry out a second-phase study, which was to begin after public comments on the first report had been analyzed and summarized by ICANN staff.

Three months after the public comment period closed, this analysis has not been published and there’s no news on phase two.

INTA’s latest missive also notes that the ICANN board does not appear to have discussed the economic study at its Trondheim meeting in September.

Drewson also refers back to previous correspondence, sent in early September by INTA president Heather Steinmeyer, in which she wrote:

trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

It’s not clear to me whether ICANN also thinks the study needs to be completed before the new TLD program launches.

Such a study would presumably take some considerable time to compile, and noises from ICANN currently point to the program becoming finalized at some point in the next six months.

If the study were to conclude that new TLDs would be hugely financially damaging, after three years of work… well, red faces would be the very least concern.

New TLDs dominate ICANN board agenda

Kevin Murphy, October 22, 2010, Domain Policy

ICANN has published the agenda for next Thursday’s board meeting and unsurprisingly the new top-level domain process dominates.

The agenda breaks the discussion into several bullet points.

Of interest to absolutely everybody watching the new TLD process is the first bullet – “Update on Timeline”. Everyone wants to know when the Applicant Guidebook will be finalized.

Recently, it became apparent that ICANN seems to view the next draft of the guidebook as a possible candidate for “final” status. As I blogged earlier this week, it could be published in the next two weeks.

The issues of vertical integration of registry and registrar functions, the “Rec 6” objections process, and the Governmental Advisory Committee advice on geographic names are also on the agenda.

The meeting will also discuss the approval of Qatar’s internationalized domain name country-code TLD and the redelegation of the .qa ccTLD to a new entity.

Qatar’s chosen Arabic string was approved back in March, at the same time as other strings that have already been added to the root, so I can only assume that the redelegation issue was what caused the hold-up.

The perennially controversial .xxx application is also due to be wheeled out for another hearing.

Law firm launches new TLD service

Kevin Murphy, October 19, 2010, Domain Registries

The law firm Crowell & Moring has launched a practice dedicated to helping companies apply for – and sue other applicants for – new top-level domains.

The company also said today it has hired Bart Lieben, the Brussels-based lawyer who probably has more recent experience launching new TLDs than most others in his field.

Crowell says it will offer these services:

* gTLD Assessment Services
o Feasibility study and strategic advice for brand owners and others prior to filing an application

* gTLD Application Services
o Preparation and filing of ‘New gTLD’ applications

* gTLD Litigation
o Against other applicants during and after the application process
o Against third parties opposing an application

* gTLD Launch and Implementation Assistance
o On-going assistance, post filing and execution of ICANN contract by applicant

With the new TLD round looking like a near certainty for 2011, there’s money to be made in consulting, and it’s hardly surprising that the lawyers are moving in.

World Trademark Review reported earlier this month that Hogan Lovells has become the first such firm to gain ICANN registrar accreditation in an effort to help its clients navigate new TLDs.

The new Crowell unit is being headed by Brussels-based Flip Petillion (an occasional WIPO panelist on UDRP cases) and Washington, DC-based John Stewart.

New hire Lieben has previously helped with the launches of .mobi and .tel. He was involved heavily with .CO Internet’s sunrise, and is currently helping GMO Registry and .SO Registry with the forthcoming .so launch.

Next new TLD guidebook due early November

Kevin Murphy, October 19, 2010, Domain Registries

The next version of ICANN’s Applicant Guidebook for wannabe new top-level domain registries could be published as early as the first week of November, and it could be proposed as the “final” draft.

In a note to the GNSO Council’s mailing list yesterday, ICANN senior vice president Kurt Pritz wrote:

There is a Board meeting on the 28th with new gTLDs as an agenda item, and right around that time, maybe a week later, the work on the Guidebook will be wrapped. Those two events will indicate both a Board and staff intent on whether to propose the Guidebook version as final.

In order for a 30-day public comment period to be completed prior to the start of ICANN’s meeting in Cartagena, Colombia, the Guidebook would have to be published before November 5.

That said, version four of the DAG had a 60-day comment period (and ICANN staff have yet to publish a summary and analysis of those comments three months after it closed).

As I’ve previously blogged, outstanding issues include humdingers such as the cross-ownership of registrar/registry functions, and the objections procedure formerly known as “morality and public order”.

NeuStar wins UrbanBrain .brand contract

Kevin Murphy, October 6, 2010, Domain Registries

NeuStar has become the preferred provider of registry services to UrbanBrain, a consultancy that hopes to launch “.brand” top-level domains with major Japanese companies.

The companies said in a press release:

Under the alliance, Neustar and UrbanBrain will provide brand owners with the expertise and support required to prepare and submit their applications to ICANN, and will provide all of the registry services necessary for brands to launch and operate their own Internet extensions.

NeuStar already operates the .biz and .us registries under contract with ICANN and the US government respectively, as well as providing back-end services for a number of other TLDs.

UrbanBrain is currently associated with a proposed bid for .site.

The only formally announced commercial .brand to date is .canon. Canon is working with GMO Registry, another Japanese firm.

Trademark holders think new TLD policies inadequate

Kevin Murphy, October 6, 2010, Domain Policy

Less than one in ten trademark holders believes ICANN’s policies go far enough to protect their rights under new top-level domains, according to a recent survey.

World Trademark Review is reporting that 71.6% of its survey respondents believe that the current Draft Applicant Guidebook goes not far enough to “prevent trademark infringement”.

Only 9.5% said they believe the DAG does contain adequate provisions.

The full survey will be published later this month, but today a few more results can be found over at the WTR blog.

The survey was conducted prior to ICANN’s recent Trondheim resolutions, which contained a few amendments to strengthen policies such as Uniform Rapid Suspension.