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ICANN loses another IRP — .sport gTLD fight reopens as panel finds “apparent bias”

Kevin Murphy, February 2, 2017, Domain Registries

The future of the .sport gTLD was cast into turmoil this week after an independent panel ruled that there was “apparent bias” in the decision that awarded the string to a group linked to the Olympics.

The new Independent Review Panel ruling found that ICANN broke its own bylaws by refusing to allow Famous Four Media to appeal a 2013 decision that essentially awarded .sport to rival bidder SportAccord.

FFM claims the expert panelist tasked with deciding SportAccord’s Community Objection had undisclosed conflicts of interest that made him much more likely to rule in favor of SportAccord, which is backed by the International Olympic Committee, than FFM, which is a purely commercial operator.

And the IRP panel did not disagree, ruling this week that ICANN should have taken FFM’s claims into account before rejecting its requests for an appeal in 2014.

The ruling means that ICANN may be forced to throw out the Community Objection decision from 2013 and order it to be re-tried with a new expert, potentially allowing FFM back into the .sport contest.

As usual with IRP cases, the ruling is a complex and very dry read, involving multiple layers of objections, appeals, panels and experts.

FFM and SportAccord were the only two applicants for .sport in the 2012 application round.

SportAccord, which has the backing of dozens of sporting organizations in addition to the IOC, claims to represent pretty much all organized sport and wants to run .sport with restrictions on who can register.

FFM, conversely, wants to keep it open to everyone with a passing interest in sport.

In an attempt to kick FFM out of the contest without a potentially expensive auction, SportAccord filed, and then won, a Community Objection in 2013.

To win, it had to prove that the interests of the sport community would be harmed if FFM got to run it. The objection expert panelist, Guido Tawil, came down on SportAccord’s side.

FFM naturally enough disagreed with his conclusion, and vowed to fight to overturn it.

The registry later discovered that Tawil had undisclosed ties to the IOC, which it said should have disqualified him from acting as an independent expert.

First, Tawil attended a conference of the International Bar Association in Rio de Janeiro in 2011 called “Olympic‐Size Investments: Business Opportunities and Legal Framework”, where he co‐chaired a panel entitled “The quest for optimising the dispute resolution process in major sport‐hosting events”.

Second, the law firm he works for, Argentina-based M & M Bomchil, counts DirecTV among its key clients and at the time of the Community Objection DirecTV was negotiating with the IOC for Latin America broadcasting rights for the Sochi 2014 and Rio 2016 Olympics, rights it subsequently obtained.

Third, a partner in Tawil’s law firm is president of Torneos y Competencias, a sports broadcaster with ties to DirecTV.

FFM has claimed: “Guido Tawil’s own legal practice and business is built around a company for whom IOC broadcasting rights are a core aspect of its business.”

While FFM filed two Requests for Reconsideration with ICANN in late 2013 and early 2014, raising the possibility of conflicts of interest and demanding ICANN have Tawil’s ruling thrown out, both were rejected by ICANN’s Board Governance Committee.

It also took its claims to the ICANN Ombudsman, who drafted (but did not finalize) a finding that agreed with FFM that the Community Objection should be retried with a new expert.

The subsequent IRP filing challenged the two RfR decisions and, two years later, the IRP panel has now ruled:

the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents.

The panel also said that ICANN should have taken the Ombudsman’s draft report into account.

It declared:

that the action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles, Bylaws and/or the Applicant Guidebook.

The panel has ordered ICANN to pay FFM’s share of the $152,673 IRP costs.

ICANN’s board will now have to consider the IRP decision, and it seems very possible that a new Community Objection review might be ordered.

On the face of it, it looks like a big win for FFM.

That does not mean that SportAccord will not prevail in its objection for a second time, even with a different presiding expert, however.

One fact in its favor is that it now has three years’ worth of evidence of how Famous Four conducts its business — selling domains at super-cheap prices, some say at the expense of the cleanliness of its namespaces — with which to attempt to show the likelihood of harm.

What seems certain is that the .sport gTLD is not going to see the light of day any time soon.

Read the ruling as a PDF here.

If the GNSO is irrelevant, ICANN itself is at risk [Guest Post]

Stéphane Van Gelder, December 1, 2012, Domain Policy

The weeks since October’s Toronto ICANN meeting have seen some extraordinary (and, if you care about the multi-stakeholder model, rather worrying), activity.

First, there were the two by-invitation-only meetings organised in November at ICANN CEO Fadi Chehadé’s behest to iron out the Trademark Clearinghouse (TMCH).

The TMCH is one of the Rights Protection Mechanisms (RPMs) being put in place to protect people with prior rights such as trademarks from the risk of seeing them hijacked as a spate of new gTLDs come online.

The first meeting in Brussels served as a warning sign that policy developed by the many might be renegotiated at the last minute by a few. The follow-up meeting in Los Angeles seemed to confirm this.

Two groups, the Intellectual Property Constituency (IPC) and the Business Constituency (BC), met with the CEO to discuss changing the TMCH scheme. And although others were allowed in the room, they were clearly told not to tell the outside world about the details of the discussions.

Chehadé came out of the meeting with a strawman proposal for changes to the TMCH that includes changes suggested by the IPC and the BC. Changes that, depending upon which side of the table you’re sitting on, look either very much like policy changes or harmless implementation tweaks.

Making the GNSO irrelevant

So perhaps ICANN leadership should be given the benefit of the doubt. Clearly Chehadé is trying to balance the (legitimate) needs of the IP community to defend their existing rights with the (necessary) requirement to uphold the multi stakeholder policy development model.

But then the ICANN Board took another swipe at the model.

It decided to provide specific protection for the International Olympic Committee (IOC), the Red Cross (RC), and other Intergovernmental Organisations (IGOs) in the new gTLD program. This means that gTLD registries will have to add lengthy lists of protected terms to the “exclusion zone” of domain names that cannot be registered in their TLDs.

RPMs and the IOC/RC and IGO processes have all been worked on by the Generic Names Supporting Organisation (GNSO). ICANN’s policy making body for gTLDs groups together all interested parties, from internet users to registries, in a true multi-stakeholder environment.

It is the epitome of the ICANN model: rule-based, hard to understand, at times slow or indecisive, so reliant on pro-bono volunteer commitment that crucial details are sometimes overlooked… But ultimately fair: everyone has a say in the final decision, not just those with the most money or the loudest voice.

The original new gTLD program policy came from the GNSO. The program’s RPMs were then worked on for months by GNSO groups. The GNSO currently has a group working on the IOC/RC issue and is starting work on IGO policy development.

But neither Chehadé, in the TMCH situation, or the Board with the IOC/RC and IGO protections, can be bothered to wait.

So they’ve waded in, making what look very much like top-down decisions, and defending them with a soupcon of hypocrisy by saying it’s for the common good. Yet on the very day the GNSO Chair was writing to the Board to provide an update on the GNSO’s IOC/RC/IGO related work, the Board’s new gTLD committee was passing resolutions side-stepping that work.

The next day, on November 27, 2012, new gTLD committee Chair Cherine Chalaby wrote:

The Committee’s 26 November 2012 resolution is consistent with its 13 September 2012 resolution and approves temporary restrictions in the first round of new gTLDs for registration of RCRC and IOC names at the second level which will be in place until such a time as a policy is adopted that may required further action on the part of the Board.

Continuing on the same line, Chalaby added:

The second resolution provides for interim protection of names which qualify for .int registration and, for IGOs which request such special protection from ICANN by 28 February 2013. (…) The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

A soothing “sleep on” message to both the community and the GNSO that the bottom-up policy development process is safe and sound, as long as no-one minds ICANN leadership cutting across it and making the crucial decisions.

Red alert!

Chehadé’s drive to get personally involved and help solve issues is paved with good intentions. In the real world, i.e. the one most of us live and work in, a hands-on approach by the boss generally has few downsides. But in the ICANN microverse, it is fraught with danger.

So is the Board deciding that it knows better than its community and cannot afford to wait for them to “get it”?

These latest episodes should have alarm bells ringing on the executive floor of ICANN Towers.

ICANN only works if it is truly about all interested parties getting together and working through due process to reach consensus decisions. Yes, this process is sometimes lengthy and extremely frustrating. But it is what sets ICANN apart from other governance organisations and make it so well suited to the internet’s warp-speed evolution.

Turn your back on it, act like there are valid circumstances which call for this ideology to be pushed aside, and you may as well hand the technical coordination of the internet’s naming and numbering system to the UN. Simple as that.

This is a guest post written by Stéphane Van Gelder, strategy director for NetNames. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.

ICANN massively expands the reserved domains list for new gTLDs

Kevin Murphy, November 28, 2012, Domain Policy

ICANN’s board of directors has given the Olympic and Red Cross brands – along with those of a batch of intergovernmental organizations — special second-level protection in new gTLDs.

Its new gTLD program committee this week passed two resolutions, one protecting the International Olympic Committee and Red Cross/Red Crescent, the other protecting IGOs that qualify for .int domain names.

New gTLD registries launching next year and beyond will now be obliged to block a list of names and acronyms several hundred names longer than previously expected.

Domain names including who.tld and reg.tld will be out of bounds for the foreseeable future.

In a letter to the GNSO, committee chair Cherine Chalaby said:

The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

The first ICANN resolution preempts an expected GNSO Council resolution on the Olympics and Red Cross — which got borked earlier this month — while the second is based on Governmental Advisory Committee advice coming out of the Toronto meeting in October.

The resolutions were not expected until January, after the GNSO Council had come to an agreement, but I’m guessing the World Conference on International Telecommunications, taking place in Dubai next week, lit a fire under ICANN’s collective bottoms.

The full text of the resolutions will not be published until tomorrow, but the affected organizations have already been given the heads-up, judging by the quotes in an ICANN press release today.

The press release also noted that the protections are being brought in before the usual policy-making has taken place because it would be too hard to introduce them at a later date:

In approving the resolutions, the New gTLD Program Committee made it clear it was taking a conservative approach, noting that restrictions on second-level registration can be lifted at a later time depending on the scope of the GNSO policy recommendations approved by the Board.

The new Reserved Names List will presumably be added to the Applicant Guidebook at some point in the not too distant future.

Meanwhile, Wikipedia has a list of organizations with .int domain names, which may prove a useful, though non-comprehensive, guide to some of the strings on the forthcoming list.

GNSO gives thumbs down to Olympic trademark protections in shock vote

Kevin Murphy, November 15, 2012, Domain Policy

ICANN’s GNSO Council voted against providing special brand protection to the Olympics and Red Cross today, in a shock vote that swung on a trademark lawyer’s conflict of interest.

A motion before the Council today would have temporarily protected the words “Olympic”, “Red Cross” and “Red Crescent” in various languages in all newly approved gTLDs.

The protections would be at the second level, in addition to the top-level blocks already in place.

The motion merely needed to secure a simple majority in both of the GNSO houses to pass, but it failed to do so despite having the unanimous support of registries and registrars.

Remarkably, the motion secured 100% support in the contracted parties house (registries and registrars) but only managed to scrape 46.2% of the vote in the non-contracted parties house, just one vote shy of a majority.

While the Non-Commercial Users Constituency predictably voted against the extra protections, it was an unnecessary abstention by an Intellectual Property Constituency representative that made the difference.

Trademark lawyer Brian Winterfeldt explained that he was abstaining — which essentially counts as a “no” vote — because the American Red Cross is his client so he had a conflict of interest.

The second IPC representative, newcomer Petter Rindforth, accidentally abstained also, before changing his vote to “yes” after it was explained that abstention was not an official constituency position.

Another member of the non-contracted parties house was absent from the meeting, potentially costing the motion another vote.

Half an hour later, when the Council had switched its attention to other business, Winterfeldt realized that his conflict of interest didn’t actually bar him from voting and asked if he could switch to a “yes”, kicking off a lengthy procedural debate about whether the vote should be re-opened.

In-at-the-deep-end Council chair Jonathan Robinson, in his first full meeting since taking over from Stephane Van Gelder last month, eventually concluded that because some councilors had already left the meeting it would be inappropriate to reopen the vote.

So the decision stands, for now at least: no special protections at the second level for the Olympics or Red Cross.

The Council is due to meet again December 20, when it may choose to revisit the issue. If it does, proponents of the motion had better hope the NCUC doesn’t request a deferral.

If today’s “no” vote is still in effect January 31, the ICANN board of directors may feel obliged to overrule the GNSO in order to approve the second-level reservations.

This wouldn’t look great for the vaunted bottom-up decision-making process, but the board is under a lot of pressure from the Governmental Advisory Committee to protect these two organizations, and it has already said that it favors temporary protections.

I suspect that the damage done today is not to the Olympics or Red Cross, which will probably get what they’ve been lobbying for for the last few years, but to the GNSO Council, which seems to have kicked off its new year on a divisive and embarrassingly bureaucratic note.

Secret ICANN briefing fuels IGO new gTLDs debate

Kevin Murphy, September 10, 2012, Domain Policy

The Universal Postal Union, newly installed .post registry manager, has launched a withering attack on ICANN for protecting some intergovernmental organizations and not others.

Its salvo follows the release of briefing materials — previously redacted — that ICANN’s board was given when it approved the new gTLD program at the Singapore meeting in June 2011.

The UPU says that the documents show that ICANN engaged in “ex post facto attempts at justifying legally-flawed decisions” when it decided to give extra protection to the Olympics and Red Cross/Red Crescent movements.

As you may recall, these protections were granted by the ICANN board when the program was approved, following lobbying of the Governmental Advisory Committee by both organizations.

In the current round, nobody was allowed to apply for gTLDs such as .redcross or .olympic, or translations in dozens of languages. There are also ongoing talks about extending this protection to the second level.

Some have argued that this would lead to a “slippery slope” that would resurrect the problematic Globally Protected Marks List, something ICANN and the GAC have denied.

They have maintained that the IOC/RC/RC movements are unique — their marks are protected by international treaty and many national laws — and no other groups qualify.

Other IGOs disagree.

Almost 40 IGOs, including the United Nations and International Telecommunications Union, are lobbying for an additional 1,108 strings to be given the same protection as the Olympics.

If they get what they want, four applied-for gTLDs could be rejected outright and dozens of others would be put at risk of failing string similarity reviews.

According to the UPU’s latest letter, ICANN’s newly disclosed rationale for giving only the IOC/RC/RC organizations special privileges was based on a flawed legal analysis:

most of the recommendations contained in documents such as the Unredacted Paper seem to reflect, in an unambiguous way, ex post facto attempts at justifying legally-flawed decisions in order to narrow even further the necessary eligibility “criteria” for protection of certain strings, apparently so that only two organizations would merit receiving such safeguards under the new gTLD process.

In other words, according to the UPU and others, ICANN found itself in a position in June 2011 where it had to throw the GAC a few bones in order to push the new gTLD program out of the door, so it tried to grant the IOC/RC/RC protections in such a way that the floodgates were not opened to other organizations.

You can read the unredacted ICANN briefing materials here. The UPU letter, which deconstructs the document, is here.

It’s worth noting that the Applicant Guidebook already gives IGOs the explicit right to file Legal Rights Objections against new gTLD applications, even if they don’t have trademark protection.

(Former) Donuts director hit with cybersquatting claim over Disney and Olympic domains

Kevin Murphy, August 7, 2012, Domain Policy

Donuts, the massive new gTLD applicant, has been hit by another set of cybersquatting claims, this time aimed at one of the company’s original directors.

Graham Stirling, who is listed as a Donuts Inc director in the company’s only Securities and Exchange Commission filing, seems to own several domain names containing Disney and Olympics trademarks.

(UPDATE: Donuts has confirmed that Stirling is no longer with the company, and hasn’t been since November 2011. Read the company’s full statement at the bottom of this post.)

The information emerged in a comment filed with ICANN on several Donuts applications by somebody called James Oliver Warner.

These are some of the domains Gibraltar-based Stirling allegedly owns:

2016juegosolimpicos.com
2016olimpicos.com
2020juegosolimpicos.com
2020olimpicos.com
2024olimpicos.com
andaluciadisney.com
costadelsoldisney.com
disneyandalucia.com
disneylandmalaga.com
disneymalaga.com
disneyworldmalaga.com
juegosolimpicos2008.com
juegosolimpicos2016.com
juegosolimpicos2020.com
juegosolimpicos2024.com
juegosolimpicoslondres.com
londresjuegosolimpicos.com
malagadisney.com
malagadisneyland.com
malagadisneyworld.com
olimpicos2016.com
olimpicos2020.com
olimpicos2024.com
soldisney.com
spaindisneyland.com
spaindisneyworld.com
teleubbies.com

You don’t need to be a trademark lawyer to know that these domains would not pass a UDRP challenge.

The domains all seem to have been registered to a Graham Stirling of Gibraltar for some years. Gibraltar’s a pretty small place, suggesting that it’s very probably the same guy.

It’s the second serious cybersquatting claim to hit Donuts in the last couple of weeks.

As we reported last week, a lawyer who apparently doesn’t want his client’s identity to be known has written to ICANN’s Governmental Advisory Committee to warn that Demand Media, Donuts’ back-end partner and its founders’ former employer, has a history of adverse UDRP findings.

That letter fingered Stirling as an employee of Gibraltar-based investment company Veddis Ventures, whose other executives allegedly have ties to online gambling scandals in the US.

Veddis Ventures recently removed Stirling’s full name from its web site. He’s now just listed as “Graham S”, adding to the intrigue.

The latest set of cybersquatting allegations are directed to ICANN’s background screening panel, which is tasked with weeding likely ne’er-do-wells out of the new gTLD program.

The panel looks at not only the corporate history of the applicant, but also at its directors and officers.

Stirling is not named on any of Donuts applications. For that matter, Donuts itself is not named as an official applicant on any of its 307 applications either.

Each of its applications has been filed by a different shell company, most of which are owned by another company, Dozen Donuts LLC, which we assume (but do not know) is in turn owned by Donuts.

The only individual named in the background check part of the applications (at least the portions published by ICANN) is Donuts CEO Paul Stahura.

Stirling is not currently listed as a director on Donuts’ web site.

If Stirling is still involved with Donuts, it might not impact the results of Donuts background screening, if the panel only looks at UDRP or court cases for evidence of cybersquatting.

Stirling does not appear to have ever been named in, never mind lost, a UDRP complaint.

That said, I don’t think ICANN’s background screening process will be over for a while yet…

August 7 Update:

Donuts has provided the following statement:

Graham Stirling is not a member of the Donuts Board of Directors and has not been since November 2011. Our list of board members as documented on our web site at www.donuts.co is current.

It’s disappointing to see Donuts’ contributions to new gTLD expansion attacked by those (including some unwilling to disclose their identities) who attempt to portray the company or those associated with it as bad actors. The company is and will continue to be committed to the legitimate interests of rights holders. As described in our applications, Donuts will implement rights protection mechanisms in its new gTLDs that substantially exceed those mandated by ICANN.

We have engaged the intellectual property community, law enforcement and others in the community about IP protection and believe our intentions and actions are clear and well understood. Infringement of legitimate rights is not tolerated by Donuts, in any capacity. Our collaboration with the community on IP protections will be an ongoing priority as the new gTLD program continues.

Go Daddy tones down the sex for Olympics ads

Go Daddy CEO Warren Adelman recently promised a less salacious image for the company, and its new commercial, set to air in the US during the London 2012 Olympics, delivers.

Kinda.

The attractive female spokemodel is still in attendance, but she’s matched up with a data center geek stereotype. The idea is to show that the company is not just a pretty face. Or something.

It’s all very self-conscious.

Lady With An ErmineUnless it’s nothing more sophisticated than a “beaver” joke, the otter reference went completely over my head.

UPDATE: A reader speculates that the otter may be a high-brow reference to the Leonardo painting Lady With An Ermine.

According to Wikipedia, the ermine (a stoat) may be intended to symbolize purity, despite the fact that the subject of the painting is believed to be the 16-year-old mistress of Leonardo’s employer.

Olympic domain watch list shows hundreds of squats, legit names too

Kevin Murphy, May 30, 2012, Domain Policy

Lawyers for the International Olympic Committee have released a list of hundreds of domain names allegedly cybersquatting the Olympic trademark, all registered in just a couple of weeks.

But as well as showing that there are hundreds of idiots out there, the list also sheds light on substantial numbers of apparently legitimate uses of the word “olympic” by small businesses.

The insight comes from two weekly zone file monitoring reports, compiled for the IOC by Thomson Compumark, which were circulated to an ICANN working group this week.

There are about 300 domains on the lists. At first glance, it looks like the IOC has a serious problem on its hands.

According to IOC outside counsel Jim Bikoff:

These unauthorized registrations–often for pornographic, phishing, gambling or parked sites–dilute and tarnish the Olympic trademarks, and attempt to exploit for commercial gain the good will created by the Olympic Movement. The unauthorized domains already oblige the IOC and its National Olympic Committees to expend significant amounts of time and money on monitoring and enforcement activities.

Based on a perusal of the lists and a non-exhaustive, non-scientific sampling of the sites the domains lead to, I’d say a comfortable majority are fairly straightforward cases of bad faith.

I couldn’t find any porn or phishing, but most of the domains I checked either do not resolve or resolve to placeholder or parking pages. If they resolved to a developed site, it was usually a splog.

However, a non-trivial minority of the domains are being used by apparently legitimate small businesses that have absolutely no connection to sports whatsoever.

Check out, for example, olympic-grill.com, olympicautorecycling.com, olympicbuildersgc.com, olympicco.com, olympiclandscapes.com, olympicrollingshutters.com, or olympicpromotions.info.

These are domains all apparently registered in the same week, and all appear to be kosher uses of domain names (though the logo choice at olympicpromotions.info is just begging for trouble).

A fair number of the domains on the list appear to be re-registrations of domains that have previously expired, judging by historical Whois records.

One would imagine that if there was value in cybersquatting a nice-looking domain such as 2012olympicstickets.com, for example, the former squatter probably wouldn’t have let it go.

Perhaps the “best” typo I found on the list, ollympics.com, is registered to a British guy called Olly. Assuming that’s his actual name, it seems like pretty good evidence of good faith.

The IOC, incidentally, has only ever filed 15 UDRP cases, on average fewer than two per year, so claims about spending “significant amounts” on enforcement are questionable.

The Olympics and the death of the GNSO, part deux

Kevin Murphy, March 26, 2012, Domain Policy

ICANN’s GNSO Council today narrowly voted to approve controversial special brand protections for the Olympic and Red Cross movements in the new gTLD program.

The vote this afternoon was scheduled as an “emergency” measure after the Council’s dramatic showdown at the ICANN public meeting in Costa Rica earlier this month.

Then, the Non-Commercial Stakeholders Group forced a deferral of the vote on the grounds that ICANN’s proper bottom-up policy-making processes had not been followed.

Today, a virtually identical motion barely squeaked through, turning on just a single vote after all six NCSG councilors abstained in protest.

It was a fairly tense discussion, as these things go.

“This is a sham of a proposal cooked up by a couple of lobbyists and shoved down the GNSO’s throat and that’s why I’m abstaining,” said Robin Gross, sitting in for absent councilor Wendy Seltzer.

“I’m abstaining to avoid the downfall of the GNSO Council,” said fellow NCSG councilor Rafik Dammak.

Essentially, the non-coms are upset that the decision to give special protection to the Olympics, Red Cross and Red Crescent appeared to be a top-down mandate from the ICANN board of directors last June.

(The board was itself responding to the demands of its Governmental Advisory Committee, which had been lobbied for special privileges by the organizations in question.)

ICANN policies are supposed to originate in the community, in a bottom-up fashion, but in this case the normal process was “circumvented”, NCSG councilors said.

Rather than bring the issue of special protection to the GNSO constituencies of which they are members, the IOC and Red Cross went directly to national governments in the GAC, they said.

The motion itself is to create a new class of “Modified Reserved Names” for the new gTLD program’s Applicant Guidebook, comprising solely of strings representing the Olympic and Red Cross.

Unlike the current version of the Guidebook, the International Olympic Committee and Red Cresent and Red Cross would actually be able to apply for their own brands as gTLDs.

The Guidebook would also give these Modified Reserved Names the same protection as ICANN itself in terms of string similarity – so Olympus might have a problem if it applies for a dot-brand.

Of course, the GNSO Council resolution does not become law unless it’s approved by the ICANN board of directors and implemented by staff in the Applicant Guidebook.

With the March 29 and April 12 application deadlines approaching, there’s a limited – some might say negligible – amount of time for that to happen if the GNSO’s work is to have any meaning.

That said, ICANN chair Steve Crocker said on more than one occasion during the Costa Rica meeting that he wants the board to be more flexible in its scheduling, so it’s not impossible that we’ll see an impromptu board meeting before Thursday.

Olympic showdown spells doom for ICANN, film at 11

Kevin Murphy, March 19, 2012, Domain Policy

ICANN’s 43rd public meeting, held in Costa Rica last week, was a relatively low-drama affair, with one small exception: the predicted death of ICANN’s Generic Names Supporting Organization.

The drama went down at the GNSO Council’s meeting last Wednesday – or “the day that everyone is going to remember as the downfall of the current GNSO Council” as vice-chair Jeff Neuman put it.

It had all the elements one might expect from an ICANN showdown: obscure rules of engagement, government meddling, special interests, delayed deadlines, whole oceans of acronym soup, commercial and non-commercial interests facing off against each other…

…and it was ultimately utterly, utterly pointless and avoidable.

The GNSO Council – which is responsible for forwarding community policies to ICANN’s board of directors – was asked to vote on a resolution giving special trademark protections to the International Olympic Committee and Red Cross and Red Crescent movements.

The resolution would have made it possible for the IOC/RC/RC organizations to apply for new gTLDs such as .olympic and .redcross while also disallowing confusingly similar strings from delegation.

The motion was created by a Drafting Team on the instruction of the ICANN board of directors, itself responding to a request from a heavily lobbied Governmental Advisory Committee.

The timing of the vote was crucial – the GNSO Council was not set to meet again until April 12, coincidentally the same date that ICANN stops accepting applications for new gTLDs.

If the vote didn’t happen last week, the IOC and Red Cross could have been basically banned from applying for new gTLDs until the second application round, years from now.

Confusingly similar strings would be eligible for delegation in the first round, however, which could mean both organizations would be locked out of the program permanently.

The resolution enjoyed broad support and was set to attract positive votes from every constituency group with the exception of the Non-Commercial Stakeholders Group.

The Non-Coms were unhappy that the Drafting Team recommendations underlying the resolution were, and still are, open for public comment.

While it’s not a unanimous view, they’re also ideologically opposed to the idea that the IOC and Red Cross should get special protection when a cheap way to object to confusing gTLDs already exists.

And the NCSG is far from alone in its concern that the decision to grant special privileges to these groups was a top-down decree from the ICANN board, lobbied for by the GAC.

Rather than simply voting “no”, however, the NCSG decided instead to force a deferral of the vote.

NCSG councilor Rafik Dammak said the resolution was “questionable on the merits and contrary to ICANN’s processes” and said the group had decided it had “no option but to defer this motion at least until the public comment period is closed”.

The GNSO Council has an unwritten but frequently used convention whereby any stakeholder group request to defer a vote until the next meeting is honored by the chair.

Barely a Council meeting goes by without one stakeholder group or another requesting a deferral. Usually, it’s requested to give a constituency group more time to study a proposal.

“The deferral request is intended to give people time to consider motions,” Council chair Stephane Van Gelder told Dammak. “The statement you just read is a statement against the motion itself.”

As Van Gelder noted, the NCSG did not have the usual excuse. Drafting Team chair Jeff Neuman had spent a few weeks prior to Costa Rica making damn sure that every stakeholder group, as well as the ICANN board, knew exactly what was coming down the pike.

As a veteran GNSO wonk, Neuman knew that a Non-Com deferral was likely. Even I predicted the move over a week before the Costa Rica meeting kicked off.

He was a little pissed off anyway. Neuman said:

For us to not be able to vote today is a failure. It’s a failure of the system under the guise of claiming you want more public comment. It’s a convenient excuse but in the end it’s a failure – nothing more, nothing less. This is a slap in the face to the governments that have asked us to decide.

You already know how you’re going to vote, it’s clear the vote is going to be no, so why don’t you stand behind your vote and vote now and vote no. That is what you really should be doing.

I want everyone to remember today – March 14, 2012 – because it this is the day that everyone going to remember as the downfall of the current GNSO Council as we know it and the policy process as we know it. Mark my words, it will happen. The GAC has asked us to act and we have failed to do so.

See? Drama.

Neuman noted that the deferral tradition is an unwritten politeness and called for the Council to vote to reject the NCSG’s request – an unprecedented move.

Van Gelder was clearly uncomfortable with the idea, as were others.

NCSG councilor Bill Drake said Neuman’s call for a vote on the deferral was “absolutely astonishing”.

“I never would have imagined I could say ‘well I don’t like this, this annoys me’ and so I’m going to demand we get a vote together and try to penalize a minority group that’s standing alone for some principle,” he said. “If that’s how we going to go about conducting ourselves perhaps this is the end of the Council.”

The Non-Com position also found support from other constituencies.

While Mason Cole of the Registrars Stakeholder Group said he would have voted in favor of the resolution, he said the way the policy was created looked like “a circumvention of the bottom-up policy development process”.

To cut a long story short (too late), after a spirited debate that lasted over an hour Van Gelder honored the NCSG deferral request, saying “something that we’ve always allowed in the past for everyone else should not be overturned in this instance”.

This would have pushed the vote out to the April 12 meeting — the NCSG would have effectively killed off the resolution purely by virtue of the new gTLD program timetable.

Neuman, however, had already invoked another quirk of the GNSO rules of engagement, demanding an emergency Council teleconference to vote on the resolution.

That’s now scheduled for March 26. Assuming the resolution is approved, the ICANN board will have just three days to rubber-stamp it before ICANN’s TLD Application System stops accepting new users.

If the Olympic or Red Cross organizations have any plans to apply for new gTLDs matching their brands, they’re going to have to be very quick.

Frankly, the IOC/RC issue has been a bit of a clusterfuck from beginning to end. This is one of those cases, it seems to me, in which every party involved is wrong.

The GAC was wrong to demand unnecessary special protections for these bodies back in June.

The ICANN board of directors was wrong to overturn established bottom-up policy when it gave the GAC what it wanted at the Singapore meeting.

The ICANN staff implementation that made it into the Applicant Guidebook last September was wrong and full of loopholes.

The Drafting Team was wrong (albeit through no fault of its own) to assume that it was refining established law rather than legislating.

The GNSO Council was wrong to consider a resolution on a policy that was still open for public comment.

The Non-Coms were wrong to abuse the goodwill of the Council by deferring the vote tactically.

There are probably a few typos in this article, too.

But does it spell the end of the GNSO?

I don’t think so. I suspect Neuman’s doomsaying theatrics may have also been somewhat tactical.

The GAC, which wields the hypothetical kill-stick, has yet to say anything about the drama. This may change if the GAC doesn’t get what it wants by the Prague meeting in June, but for now the GNSO is, I believe, safe.

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