.wine frozen after EU complaint

Kevin Murphy, April 5, 2014, Domain Policy

ICANN has frozen the applications for .wine and .vin new gTLDs, again, following a complaint about process violations from the Governmental Advisory Committee.

The New gTLD Program Committee of the ICANN board on Thursday voted to prevent any of the four affected applicants signing Registry Agreements for at least 60 days.

But the NGPC found that there had been “no process violation or procedural error” when it decided to take the .wine and .vin applications off hold status during the Singapore meeting last month.

The 60-day freeze is “to provide additional time for the relevant impacted parties to negotiate”, the resolution states.

The GAC advise in its Singapore communique stated that it had not had time to comment upon “external advice” — believed to be an opinion of a French lawyer (pdf) — that the NGPC had used in its deliberations.

That would have been a violation of ICANN’s bylaws.

The GAC said that ICANN should “reconsider” its decision to allow the applications to proceed and should give the applicants more time to negotiate a truce with the governments opposed to their proposed gTLDs.

The European Union wants .wine and .vin blocked unless the applicants promise to implement special protections for “geographic indicators” such as “Champagne” and “Bordeaux”.

But other nations, including the US, Canada and Australia, don’t want these protections. The GAC has therefore been unable to provide consensus advice against either string.

Essentially, the NGPC this week has found none of the bylaws violations alleged by the GAC, but has nevertheless given the GAC what it asked for in its Singapore communique. ICANN explained:

In sum, the NGPC has accepted the GAC advice and has carefully reviewed and evaluated whether there was a procedure or process violation under the Bylaws. The NGPC has determined that there was not because, among other reasons, ICANN did not seek the Independent Legal Analysis as External Expert Advice pursuant to Article XI-A, or any other portion of the Bylaws.

It’s not “policy”, it’s “implementation”, in other words.

The NGPC also, despairingly I imagine, has suggested that the full ICANN board might want to take a look at the broader issues in play here, resolving:

the NGPC recommends that the full Board consider the larger implications of legally complex and politically sensitive issues such as those raised by GAC members, including whether ICANN is the proper venue in which to resolve these issues, or whether there are venues or forums better suited to address concerns such as those raised by GAC members in relation to the .WINE and .VIN applications.

While I’m sure 60 days won’t be too much of a burden for these long-delayed applicants, this rather vague promise for more talks about “larger implications” may prove a cause for concern.

No sunrise periods for dot-brands

Kevin Murphy, March 31, 2014, Domain Policy

ICANN has finally signed off on a set of exemptions that would allow dot-brand gTLDs to skip sunrise periods and, probably, work only with hand-picked registrars.

Its board’s New gTLD Program Committee passed a resolution at ICANN 49 last week that would add a new Specification 13 (pdf) to Registry Agreements signed by dot-brands.

The new spec removes the obligation operate a sunrise period, which is unnecessary for a gTLD that will only have a single registrant. It also lets dot-brands opt out of treating all registrars equally.

Dot-brands would still have to integrate with the Trademark Clearinghouse and would still have to operate Trademark Claims periods — if a dot-brand registers a competitor’s name in its own gTLD during the first 90 days post-launch, the competitor will find out about it.

ICANN is also proposing to add another clause to Spec 13 related to registrar exclusivity, but has decided to delay the addition for 45 days while it gets advice from the GNSO on whether it’s consistent with policy.

That clause states that the dot-brand registry may choose to “designate no more than three ICANN accredited registrars at any point in time to serve as the exclusive registrar(s) for the TLD.”

This is to avoid the silly situation where a dot-brand is obliged to integrate with registrars from which it has no intention of buying any domain names.

Spec 13 also provides for a two-year cooling off period after a dot-brand ceases operations, during which ICANN will not delegate the same string to another registry unless there’s a public interest need to do so.

The specification contains lots of language designed to prevent a registry gaming the system to pass off a generic string as a brand.

There doesn’t seem to be a way to pass off a trademark alone, without a business to back it up, as a brand. Neither is there a way to pass off a descriptive generic term as a brand.

The rules seem to allow Apple to have .apple as a dot-brand, because Apple doesn’t sell apples, but would not allow a trousers company to have .trousers as a dot-brand.

ICANN muddles through solution to IGO conflict

Kevin Murphy, March 31, 2014, Domain Policy

ICANN may have come up with a way to appease both the GNSO and the GAC, which are at conflict over the best way to protect the names and/or acronyms of intergovernmental organizations.

At the public forum of the ICANN 49 meeting in Singapore last Thursday, director Bruce Tonkin told the community that the ICANN board will consider the GNSO’s recommendations piecemeal instead of altogether.

It will also convene a meeting of the GNSO, GAC, IGOs, international nongovernmental organizations and the At-Large Advisory Committee to help reach a consensus.

The issue, you may recall from a DI post last week, is whether the names and acronyms of IGOs and INGOs should be blocked in all new gTLDs.

The GNSO is happy for the names to be protected, but draws the line at protecting acronyms, many of which are dictionary words or have multiple uses. The GAC wants protection for both.

Both organizations have gone through their respective processes to come to full consensus policy advice.

This left ICANN in the tricky situation of having to reject advice from one or the other; its bylaws did not make a compromise easy.

By splitting the GNSO’s 20 or so recommendations up and considering them individually, the ICANN board may be able to reconcile some with the GAC advice.

It would also be able to reject bits of GAC advice, specific GNSO recommendations, or both. Because the advice conflicts directly in some cases, rejection of something seems probable.

But ICANN might not have to reject anything, if the GAC, GNSO and others can come to an agreement during the special talks ICANN has in mind, which could happen as soon as the London meeting in June.

Even if those talks lead to nothing, this proposed solution does seem to be good news for ICANN perception-wise; it won’t have to blanket-reject either GNSO or GAC policy advice.

This piecemeal or ‘scorecard’ approach to dealing with advice hasn’t been used with GNSO recommendations before, but it is how the board has dealt with complex GAC advice for the last few years.

It’s also been used with input from non-GNSO bodies such as the Whois Review Team and Accountability and Transparency Review Team.

Judging by a small number of comments made by GNSO members at the public forum on Thursday, the solution the board has proposed seems to be acceptable.

ICANN may have dodged a bullet here.

The slides used by Tonkin during the meeting can be found here.

EU buys more time for .wine talks after surprise GAC objection

Kevin Murphy, March 27, 2014, Domain Policy

The ICANN Governmental Advisory Committee deposited a shock fly into the wine-related gTLD ointment tonight, asking ICANN to delay approval of .wine and .vin on a technicality.

ICANN’s board of directors had at the weekend basically approved the two new gTLDs, over the objections of the European Union, but the GAC today said the board’s decision hadn’t followed the rules.

In its communique (pdf) issued at the end of the just-concluded ICANN 49 meeting in Singapore, the GAC said: “In the final deliberation of the Board there appears to be at least one process violation and procedural error”.

The procedure in question is the part of the ICANN bylaws that says the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”

The GAC therefore advises:

That the Board reconsider the matter before delegating these strings.

The GAC needs to consider the above elements more fully. In the meantime concerned GAC members believe the applicants and interested parties should be encouraged to continue their negotiations with a view to reach an agreement on the matter.

The only “external advice” referenced in the ICANN decision on .wine was the legal opinion (pdf) of French law professor Jerome Passa.

Reading between the lines (I have not yet listened to all of the GAC’s public deliberations this week, so I’m speculating) it seems Passa’s opinion was not provided to the GAC before the ICANN board made its call.

I’m further assuming that the EU or one of its member states spotted the bylaws provision about external advice notice and cunningly used it to revive the .wine debate.

The GAC has declined to object to .wine and .vin because countries such as the US and Australia disagree with the EU’s position on the international law governing geographic indicators such as “Champagne”.

But no matter what other GAC members think about the European demands GI protections, it would have been very hard for them to argue in favor of an ICANN board decision that violated process.

Even if there’s very little chance of rustling up a consensus objection against these two gTLDs, the EU seems to have successfully added delay to the approval process, giving it leverage over the applicants.

I’m impressed.

While this may not change the eventual outcome, it at least buys the EU more time to negotiate with the .wine and .vin applicants about protection for geographic indicators.

This apparent oversight, coupled with the controversy this week about rights protection mechanisms for intergovernmental organizations, makes me wonder whether ICANN’s legal department might need a refresher course on the ICANN bylaws.

Or maybe, more likely, the bylaws are just such a bloody mess that even the smartest guys in the room can’t keep track of them any more.

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.