Former ICANN chair joins M+M

Peter Dengate Thrush, the former ICANN chairman who pushed through approval of the new top-level domains program less than a month ago, is to join new gTLD firm Minds + Machines.
He has become executive chairman of Top Level Domain Holdings, M+M’s parent company, which is listed on the Alternative Investment Market.
The hire will undoubtedly boost M+M’s credibility and raise its profile, but is already also raising eyebrows.
TLDH plans to apply to ICANN for potentially dozens of new gTLD contracts next year, both with partners and customers and on its own.
Dengate Thrush has been granted options to buy 15 million TLDH shares for 8p each, roughly the same as its current price, which he can exercise at a rate of 1.25 million per quarter through July 2014.
TLDH currently has no revenue to speak of. Its future share price will depend on its ability to sign registry services customers and win new gTLDs through the ICANN process.
It’s fairly easy to extrapolate scenarios where Dengate Thrush’s compensation package is worth millions.
His chairmanship of ICANN’s board of directors came to an end June 24, just a few days after it voted to approve the new gTLD program.
During that vote, dissenting director Mike Silber accused the board of voting too soon, saying it was being hurried by “ego-driven deadlines”.
This was a reference to Dengate Thrush and fellow new gTLD cheerleader Rita Rodin Johnston, both of whom were due to see their terms on the board expire that week.
Dengate Thrush is the first ICANN chair to take a high-paying domain name industry job following his time with ICANN.
His predecessor, Vint Cerf, joined Google. Earlier, Esther Dyson went on to invest in and work with a number of technology start-ups.
ICANN does not have a policy preventing former employees or directors taking lucrative jobs working for the companies that they were previously essentially regulating.
Indeed, some of its directors currently work for such companies.
Few in the ICANN community doubted that Dengate Thrush, an IP lawyer by trade, would join a new gTLD company. The question was which one.
I asked him, along with CEO Rod Beckstrom and senior VP Kurt Pritz, at a press conference in Singapore, whether they would be prevented from joining a new gTLD firm.
The answer, basically, was: “No.”
ICANN staff and board sign confidentiality agreements that prevent them taking secrets into future employers, but there’s nothing to prevent a “revolving door” between industry and regulator.
There have already been calls from parts of the ICANN community to create a new ethics policy, after senior registry liaison Craig Schwartz left to join the VeriSign-backed .bank project.
GNSO Council chair Stephane Van Gelder of the French registrar Indom suggested in a blog post this morning that ICANN should consider hiring independent directors and barring them from working in the industry for a year after their terms end.
It would be pretty difficult to enforce such a rule on the board as it is currently made up, given that it draws some of its members, by design, from the domain name industry.
ICANN’s new vice chair Bruce Tonkin works for Melbourne IT, a registrar, for example. He recused himself from the new gTLD vote because of this conflict of interest.
It would be silly for ICANN to ban him from working for Melbourne IT after his term expires if he’s allowed to work there during the term itself.
While no rules appear to have been broken, M+M’s new hire may sit uncomfortably with some.
It will certainly reinforce beliefs, where they are held, that the new gTLD program is largely a money-grabbing exercise by the domain industry.

ICANN chair expects more new TLDs delay

ICANN’s new top-level domains program is unlikely to be approved at its San Francisco meeting next month, according to chairman Peter Dengate Thrush.
“We don’t think we’ll be able to approve the final applicant guidebook in March,” he said in a new interview with World Trademark Review.
This confirms my suspicion that changes to the Guidebook made following the upcoming meeting between ICANN and its Governmental Advisory Committee may be too extensive for ICANN to rubber-stamp without first consulting the community.
The ICANN board and the GAC are due to meet in Brussels, February 28 and March 1, to discuss the GAC’s outstanding concerns.
Chief among these concerns is trademark protection, where the GAC is pretty much aligned with the interests of the intellectual property constituency.
Brussels will also cover matters such as geographic names protection and procedures for dealing with controversial strings that governments may want to object to.
While ICANN is under no obligation to adopt the GAC’s suggestions wholesale, if it makes substantial concessions its bylaws will likely demand more public comment on the changes.
ICANN’s board indicated last week that it plans to tell the GAC where it disagrees with its advice at a consultation March 17, one day before its San Francisco meeting.
It also said that it plans to approve a Guidebook “as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook” published in November.
UPDATE: I had an opportunity to put Dengate Thrush’s comments to ICANN CEO Rod Beckstrom this afternoon. He said: “I’m not going to forecast when the final Applicant Guidebook will be approved.”

Governments still want new TLD morality veto

ICANN’s Governmental Advisory Committee still wants to block “controversial” new top-level domains on morality grounds.
In a letter to ICANN chairman Peter Dengate Thrush, a copy of which I have obtained, the GAC makes it clearer than ever that it wants national laws to play a part in approving new TLDs.
It also suggests that national governments should be able to pre-screen strings before applications are filed, to give applicants “early warning” that they are stepping into controversial waters.
The letter draws the battle lines for what could be some heated debate at ICANN’s meeting in Cartagena next month.
Given that the letter does not appear to have been published by ICANN yet, I will quote liberally.
Under the heading “Universal Resolvability of the DNS”, GAC interim chair Heather Dryden, the Canadian representative on the committee, wrote:

Due to uncertainties regarding the effectiveness of ICANN’s review and objections procedures, a country may feel compelled to block a new gTLD at the national level that it considers either objectionable or that raises national sensitivities.
To date, there do not appear to be controversial top level domains that have resulted in significant or sustained blocking by countries.
The GAC believes it is imperative that the impact on the continued security, stability and universal resolvability of the domain name systems of the potential blocking at the national level of the new gTLD strings that are considered to be objectionable or that raise national sensitivities be assessed prior to introducing new gTLDs.

The letter carries on to say that the GAC will “seek advice from the technical community” on the issue.
Dryden wrote that there should be a “prior review” process that would be able to identify strings that are “contrary to national law, policy or regulation” or “refer to religions, ethnicity, languages or other cultural identifiers that might raise national sensitivities”.
It sounds like the GAC envisions a pre-screening process, before new TLD applications are officially filed, similar to the “expressions of interest” concept that ICANN abandoned in March.
What TLDs this process would capture is unclear. The GAC letter notes by way of example that “several governments restrict the registration of certain terms in their ccTLDs”.
In practical terms, this would raise question marks over TLDs such as “.gay”, which would quite clearly run contrary to the policies of many national governments.
(As I reported earlier this month, the recently relaunched .so registry currently bans “gay”, “lesbian” and related terms at the second level.)
There’s more to be reported on the the implications of this letter, particularly with regards the work of ICANN’s “morality and public order” policy working group and the GAC’s relationship with ICANN in general.
Watch this space.

ICANN “intervention” needed on TLD ownership rules

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.

Group wants trademark study before new TLDs launch

The International Trademark Association has told ICANN it believes a study into the economic “harms” of launching new TLDs is “essential” before the program gets under way.
INTA president Heather Steinmeyer wrote, in a September 8 letter (pdf) published today (my emphasis):

We applaud the recommendation… to conduct a study to assess the harms associated with intellectual property abuse and related forms of consumer fraud in the domain name system, including how the current gTLDs have affected intellectual property and consumers since their introduction. Indeed trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

Steinmeyer offered INTA’s assistance with any such study.
The recommendation she refers to can be found in “An Economic Framework for the Analysis of the Expansion of Generic Top-Level Domain Names”, a report prepared for ICANN by three independent economists in June.
That report made a number of suggestions for possible further studies of the possible benefits and harms (although Steinmeyer only mentions the harms) of introducing new TLDs. It did not make any firm conclusions.
Following a public comment period that ended July 22, the status of that report appears to be ‘in limbo’.
The public comments have not yet been compiled into a summary and analysis document and as far as I can tell no other action has been taken on the report’s recommendations.
At least one ICANN director, chairman Peter Dengate Thrush, seems to consider the problem of balancing trademark protection and other parties’ interests pretty much resolved.
Just last week, in a fairly strongly worded statement at the Internet Governance Forum in Vilnius, Lithuania, he said:

The IP lawyers… have had their chance to make all these cases in a five-year process, and the intellectual property protections that have been put in place are the result of a delicate balance that has been wrought with everybody in the community, not just with the IP lawyers. IP lawyers always want more protections.

Will new TLDs be delayed by the trademark owner outcry?

Yesterday’s flood of criticism from big trademark holders has put another question mark next to ICANN’s plan to finalize the new top-level domain application process this year.
Heavy-hitters including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola filed strong criticisms of the trademark-protection mechanisms in version four of the Draft Applicant Guidebook, and urged ICANN to delay the new TLD launch until the perceived weaknesses are addressed.
The concerns were echoed by the Motion Picture Association of America, the International Olympic Committee, Nestle, the International Trademark Association, Lego, the World Intellectual Property Organization, the American Intellectual Property Law Association, News Corp, the BBC and the American Bankers Association, among others.
Two ICANN registrars, MarkMonitor and Com Laude, also threw in with the anti-DAGv4 crowd. Indeed, MarkMonitor appears to have orchestrated at least a part of the trademark owner commentary.
It’s clear that many IP owners feel they’re being ignored by ICANN. Some organizations, notably WIPO and Time Warner, filed scathing criticisms of how ICANN makes policy.
These aren’t insignificant entities, even if some of their comments read like cases of throwing toys out of the pram.
After conversations with others, I know I’m not the only one who believes that this outcry could add delay to the new TLD process.
It certainly casts doubt on comments made by ICANN chair Peter Dengate Thrush in Brussels last month to the effect that the trademark protection portions of the DAG were very close to being finalized.
Trademark owners, including most of the outfits listed above, are concerned that the Uniform Rapid Suspension policy, designed to create a faster and cheaper version of the UDRP, has become bloated and now in some cases could take longer than a UDRP proceeding.
They also don’t think the Trademark Clearinghouse, a database of brands maintained by ICANN that new TLD registries would be obliged to protect, goes far enough to protect their marks. The previously proposed Globally Protected Marks List seems like a preferred alternative.
ICANN currently hopes to have the final guidebook close to readiness by its public meeting in Cartagena, Colombia, this December. Its board of directors will meet over a weekend in September to try to knock the document into shape. I don’t envy that task.
There’s a possibility, of course, that ICANN will soldier on with its time-line regardless. Dengate Thrush indicated in an interview last month that he did not want trademark issues to delay the launch any more than they have already.
Asked about the IP lobby’s concerns with the speed of the URS, he told the World Trademark Review:

I have conceptually no problem with making sure that expedited processes are available. If this one turns out to be too slow, we’ll do something else. What we can’t have is the hold up of the entire process until this is resolved.

It’s wait and see time again, but at the very least I think it’s pretty clear that the new TLD launch timeline is more in doubt today than it was 24 hours ago.

ICANN chair says new TLD guidebook could be final by December

Peter Dengate Thrush, chairman of the ICANN board, thinks there’s a chance that the Applicant Guidebook for new top-level domains could be ready by ICANN’s next meeting, set for Cartagena in early December.
The board resolved in Brussels on Friday to turn its September two-day retreat into a special meeting focussed on knocking the DAG into shape.
Shortly after the vote, Peter Dengate Thrush spoke at a press conference (emphasis mine).

Soon after the closing of the [DAG v4] public comment period was a regularly scheduled retreat for the board to go and do what boards do at retreats, and what we’ve decided today to do is to use that two-day retreat to see if we can’t make decisions on all the outstanding issues in relation to the new TLD program.
That’s probably reasonably ambitious, there may still be a couple left, but we want to get as many of them out of the way as we can. That means that when we come to the next ICANN meeting in Cartagena in December we hope to be very close if not actually able to hand out the Applicant Guidebook for that new process.

I asked him what outstanding issues needed to be resolved before the DAG can be finalized. Instead of a comprehensive list, he named two: IP protection and the Governmental Advisory Committee’s “morality and public order” concerns.
The IP issue is “close” to being resolved, he said, but “there may still be issues”.
On MOPO, he said there is “a potential conflict emerging” between GAC members who value free speech and those who are more concerned with their own religious and cultural sensitivities.
When I followed up to ask whether it was possible to reconcile these two positions, this is what he said:

What we’ve done is ask the GAC is how they would reconcile it… now they are saying that they can’t see how it can be done. We see that very much as a problem either for the GAC to change its advice, or to provide us with a mechanism whereby that can be reconciled.

The Brussels GAC Communique (pdf), has little to say on MOPO, delaying its advice until its official DAG v4 public comment filing.
MOPO has already created tensions between the GAC and the board. The conversation at their joint meeting on Tuesday went a little like this:

GAC: We don’t like this MOPO stuff. Please get rid of it.
BOARD: Okay. What shall we replace it with?
GAC: Erm…
BOARD: Well?
GAC: It’s not our problem. You think of something.
BOARD: Can you give us a hint?
GAC: No.
BOARD: Please? A little one?
GAC: We’ll think about it.

So can we expect the GAC to get its act together in time for Cartagena? That, too, seems ambitious.