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ICANN to skip stakeholders for more GAC talks

Kevin Murphy, March 11, 2011, Domain Policy

ICANN stakeholder groups will miss out on their usual formal sit-down with the board of directors at the San Francisco meeting next week, due to talks between the board and governments.

ICANN has confirmed the touted second day of Governmental Advisory Committee consultations, centering on new top-level domains and .xxx, for next Tuesday.

Tuesdays at ICANN meetings are informally referred to as Constituency Day, where the various interest groups that make up the “bottom” of ICANN’s policy-making process meet up.

Usually, the board moves between these meetings, gathering feedback on policy issues from stakeholders such as registrars, registries, ISPs, IP owners and non-commercial users.

According to some attendees, that won’t happen in San Francisco.

ICANN staff will still attend the constituency sessions, but the GAC consultation will take up the board’s undivided attention.

It make perfect sense, of course. There are only so many hours in the day, only so many days in the week, and ICANN is eager to put work on the new TLD program to bed as soon as possible.

But that logic is unlikely to prevent grumblings from some stakeholders.

ICANN takes firm stance on new TLD delays

ICANN wants to draw a line under its talks with its Governmental Advisory Committee on new top-level domains at the San Francisco meeting next week.

In a letter to his GAC counterpart (pdf), ICANN chair Peter Dengate Thrush said that he thinks the San Francisco talks should be “final”.

He said that ICANN has agreed to compromise with the GAC wholly or partially on all but 23 of its 80 recommendations for the program.

He also said that these remaining issues should be the focus of the two days the board has set aside to consult with the GAC in San Francisco.

a narrowed focus in San Francisco on the issues that are still in contention would be a best use of the Board and GAC’s time during the two days of consultations, and should represent the final stages in our required consultation.

That appears to contrast with the GAC’s position, expressed in Brussels last week, that the SF talks should not be given the final “bylaws consultation” designation.

Nobody, possibly not even ICANN and the GAC, knows what a “bylaws consultation” consists of, but everybody knows that it is the last thing that needs to happen before the ICANN board can adopt a policy that overrules the formal advice of governments.

ICANN has already officially resolved that the consultation should happen March 17, but GAC chair Heather Dryden objected to that date in an email sent during Brussels.

According to Kieren McCarthy, who has apparently seen the email or parts of it, Dryden wrote:

We believe there is now insufficient time to receive a final written response to our advice from the Board – as well as then analyse and prepare an adequate consensus response from GAC members – to reach resolution of enough outstanding issues such that we could reasonably enter any meaningful bylaws consultation on 17 March in San Francisco.

To delay the consultation would very likely delay the next draft of the Applicant Guidebook, currently set for April 14, and thus the launch of the program itself.

It was not clear from Brussels, but ICANN’s position that March 17 is the date now appears to be firm. The just-published agenda for the March 18 board meeting carries this line item:

Outcome of Bylaw Consultation with the GAC on the new gTLD Program

Things that have not happened generally do not have an “outcome”.

Cybersquatting is the major issue still unresolved. Fifteen of the the 23 areas where the board still disagrees with the GAC deal with trademark protection in new TLDs.

ICANN has agreed to balance the Uniform Rapid Suspension policy – which comes into play following clear-cut cases of cybersquatting – somewhat more in favor of trademark holders.

The amount of money, time and effort required to make a URS case will be reduced, and it’s likely that registrants will have their domains locked by default if they do not respond to the complaint.

Complainants will also get first right of refusal to take over a domain whose registration has been suspended due to a URS proceeding.

But ICANN plans to deny the GAC’s requests for a “loser pays” model and a number of other URS-related tweaks.

The GAC had also advised that the Trademark Clearinghouse database should be expanded to include trademark+keyword registrations. This would allow Kodak, to use the GAC’s example, to prevent cybersquatters from registering not only kodak.tld but also kodakcameras.tld.

Dengate Thrush’s letter says that this “remains an area for discussion”, but ICANN still currently plans to diverge from GAC advice.

Clinton confirmed for ICANN’s SF meeting

Kevin Murphy, March 1, 2011, Gossip

Former US president Bill Clinton has been confirmed as the star guest speaker of ICANN’s 40th public meeting, which kicks off in San Francisco in a little under two weeks.

According to a tweet minutes ago from CEO Rod Beckstrom, Clinton will address ICANN’s Gala event, March 16 in Union Square.

This is usually an evening drinks-n-canapes event or a sit-down dinner. The SF Gala is scheduled for 7pm.

Given the central, outdoor location, I’m sure security will be tight. We could be looking at another limited-numbers, invitation-only event.

Beckstrom has previously stated that Clinton’s fee will be covered by a special sponsorship deal, but the identity of the sponsor does not appear to have been revealed yet.

Winners and losers in the next Applicant Guidebook

Kevin Murphy, February 23, 2011, Domain Registries

Who’s going to be happy, and who won’t be, after ICANN publishes the next version of its Applicant Guidebook for new top-level domains in April?

We now have a rough idea of the answers to those questions, following the publication this week of ICANN’s analysis of comments received between November and January.

The 163-page document (pdf) outlines where ICANN is still open to changing its rules for applying for a TLD, and where it believes the book is firmly shut.

As you might expect, at this late stage in the game, most of the analysis is essentially “thanks, but no thanks”, reiterating the reasons why the Guidebook currently says what it says.

But there are strong indications of which changes will be made to the “next” version of the Guidebook, which is currently expected to hit the ICANN web site April 14.

Here’s a high-level analysis of the winners and losers.

Impatient Applicants

Companies and entrepreneurs that have been tapping their feet for the last couple of years, hit by delay after delay, can probably take comfort from the fact that ICANN is still making encouraging noises about its commitment to the new TLDs program.

Noting that some issues are still in need of further work, ICANN staff writes:

it is ICANN’s intention to reach resolution on these issues. It would be irresponsible to use community resources to run a process without the intention to see it through to conclusion.

ICANN continues to approach the implementation of the program with due diligence and plans to conduct a launch as soon as practicable along with the resolution of these issues

Beyond what I noted in a post earlier this afternoon, there are no clues about the timetable for actually launching the program, however.

Trademark Holders

It’s a mixed bag for the intellectual property lobby, but on balance, given the length of its wish-list, I expect the trademark crowd will be more disappointed than not.

In general, ICANN is firm that the rights protection mechanisms (RPMs) in the Guidebook are the result of community compromise, and not for changing.

This is sometimes the case even when it comes to issues ICANN plans to discuss with its Governmental Advisory Committee next week.

One of these is the Trademark Clearinghouse, the database of trademark rights to be used to reduce cybersquatting, of which ICANN says:

subject to further refinement through the GAC consultation and other comments received to date, the positions in the Clearinghouse proposals will be finalized substantially similar to as it was in the Proposed Final Applicant Guidebook.

On the Globally Protected Marks List, a mechanism trademark holders want included in the Guidebook, ICANN is suitably mysterious:

It is clear that the trademark interests have continued to raise the GPML as possible RPM. While this discussion may continue, no further progress or decisions have been made.

The most substantial concession ICANN appears ready to make to trademark holders concerns the Uniform Rapid Suspension mechanism, a cousin of the UDRP that will be used to address clear-cut cases of cybersquatting in new TLDs.

A major concern from the IP lobby has been that the URS is too slow and complex to meet its original goals. ICANN disagrees that it does not do the job, but plans to streamline it anyway:

Discussions are continuing and some additional implementation detail revisions will likely be made, for example, creating a form complaint that reduces the 5000-word limit to 500 words. The 500-word limit might not, however, be placed on the respondent, as the respondent will be required to describe the legitimate basis upon with the domain name is registered. The respondents word limit be decreased from 5,000 to something less, possibly 2,500 words, in order to decrease the examinations panel‘s time requirements and thereby enhance circumstances for a relatively loss cost process. (Remember that in the vast majority of cases, it is expected that the respondents will not answer.)

This will certainly be a topic of discussion at the ICANN-GAC meeting in Brussels on Monday, so I expect IP attorneys are even now briefing their governments on how these proposed changes won’t go far enough for whatever reason.

Domainers

There’s bad news if you’re a high-rolling domain investor, looking at bagging a new TLD or three, and you also have a few UDRP losses against your name.

The background check ICANN will carry out on applicants for their history of cybersquatting stays, and it will still use the three-losses-as-UDRP-respondent benchmark.

However, ICANN has recognized that UDRP decisions are not always final. If you lost a UDRP but subsequently won in court, that decision won’t count against you.

In addition, reverse domain name hijacking findings will now also count against applicants to the same degree as UDRP losses.

I believe both of those concessions capture so few entities as to be more or less irrelevant for most potential applicants.

“.brand” Applicants

ICANN is in favor of companies applying to run “innovative” TLDs, such as “.brands”, but it is reluctant to carve out exceptions to the rules for these applicants.

The organization does not plan to give .brands a pass when it comes to protecting geographic names, nor when it comes to the requirement to register domains through an accredited registrar.

This seems to mean, for example, that if Microsoft successfully obtains .microsoft and wants to register usa.microsoft to itself, it will have to ask the US government for permission.

It also means .brands will still have to seek ICANN accreditation, or work with an existing registrar, in order to sell domains to themselves. It’s an added cost, but not an unworkable one.

Would-be .brand applicants did, however, win one huge concession: If they decide to turn off their TLD, it will not be redelegated to a third-party. ICANN wrote, with my emphasis:

In the limited case of .brand and other TLDs that operate as single-registrant/single-user TLDs it would probably make sense to not force an outgoing operator to transition second-level registration data (since presumably the operator could just delete all the names as the registrant anyway and then there would be nothing to transition), and therefore ICANN will put forward proposed language for community review and feedback that would provide for alternative transition arrangements for single-registrant/single-user gTLDs.

If .microsoft was unsuccessful and Microsoft decided to stop running it, Google would not be able to take over the ICANN registry contract, for example.

Poor People/Cheapskates

Some commenters wanted ICANN to reduce application fees in cases where the applicant is from a poorer nation, a non-governmental organization, or when they intend to apply for multiple versions of the same TLD.

They’re all out of luck.

The $185,000 baseline application fee is to stay, at least for the first round. ICANN thinks it could be reduced in future rounds, once more uncertainty has been removed from the process.

Currently, $60,000 of each fee is set aside for a “risk” (read: litigation) war-chest, which will be presumably less of an issue after the first round is completed.

Special Interests

The International Olympic Committee and the Red Cross, as well as financial services organizations, may receive the special concessions they asked for in the next Guidebook.

The IOC and Red Cross may be given the same protections as afforded to ICANN, regional internet registries, and generic terms such as “example” and “test”.

ICANN is considering the nature of these protections, and if appropriate, might augment the reserved names lists in special cases such as requested by the International Olympic Committee (IOC) and the International Red Cross, both of which are globally invested in representing the public interest.

It also emerged that ICANN is working with the financial services industry to clarify some of the security-related language in the Guidebook.

Community Applicants

Sorry guys, ICANN intends to keep the threshold score for the Community Priority Evaluation at 14 out of 16. Nor will you get a bonus point for already showing your cards by starting community outreach two years ago. Winning a CPE is going to be as tough as ever.

*

This is just a brief, non-exhaustive overview of the changes that are likely to come in the next Applicant Guidebook, setting the stage for the GAC talks next week and the San Francisco ICANN meeting next month.

One thing seems pretty clear though: this is end-game talk.

ICANN confirms TLD delays after sponsorship closes

Kevin Murphy, February 17, 2011, Domain Registries

ICANN has officially confirmed that it does not intend to launch the new top-level domains program at its meeting in San Francisco next month.

The news came just one day after the organization stopped accepting sponsorship deals, at the new controversially higher rate, for the meeting.

In a blog post, ICANN’s Jamie Hedlund said that a vote on the new TLD program would not be possible due to the upcoming consultation with the Government Advisory Committee in Brussels.

He wrote:

In addition to the Brussels consultation, the bylaws-defined consultation will take place on 17 March, the day before the Silicon Valley–San Francisco Board Meeting. Because of the timing of the bylaws consultation, the Board will not approve or announce the new gTLD program at that Board Meeting.

Now, the timing of this announcement could just be a coincidence, it could be related to ICANN’s fast-approaching deadline for publishing meeting documents, but the fact that it came the day after the sponsorship deadline for SF passed raised an eyebrow chez DI.

ICANN has known about the timing of the GAC consultation since at least January 25, when its board of directors approved the March 17 schedule.

Chairman Peter Dengate Thrush was quoted as saying new TLDs were likely off the menu for SF as early as February 3, and senior vice president Kurt Pritz echoed that view a week ago.

With March 18 no longer a possibility for the Applicant Guidebook getting approved, what does that mean for the new TLDs timetable?

Some observers believe that we’ll have to wait for the ICANN meeting in Amman, Jordan, in June, which could see the first-round application window open in October.

I’m not convinced we’ll have to wait that long. It seems possible that ICANN will eschew the fanfare of a public meeting and approve the final draft of the Guidebook over the phone whenever it’s ready.

The first new TLDs are expected to go live on the internet approximately 15 months after the Guidebook gets the nod.