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ICANN holds its ground on weaseled GAC advice

Kevin Murphy, September 11, 2014, Domain Policy

While many members of the community are getting upset about the plan to make it harder for ICANN’s board to overrule GAC advice, today we got a reminder that the board is not the GAC’s lapdog.

The New gTLD Program Committee is standing firm on the way it creatively reinterpreted Governmental Advisory Committee advice to make it less punishing on a few dozen new gTLD registries.

The NGPC passed a resolution on Monday approving an updated scorecard to send to the GAC. ICANN chair Steve Crocker delivered it to GAC chair Heather Dryden yesterday.

A “GAC scorecard” is a table of the GAC’s demands, taken from the formal advice it issues at the end of each public meeting, with the NGPC’s formal responses listed alongside.

The latest scorecard (pdf) addresses issues raised in the last five ICANN meetings, dating back to the Beijing meeting in April 2013.

The issues mainly relate to the GAC’s desire that certain new gTLDs, such as those related to regulated industries, be locked down much tighter than many of the actual applicants want.

One big point of contention has been the GAC’s demand that registrants in gTLDs such as .attorney, .bank and .doctor should be forced to provide a relevant licence or other credentials at point of sale.

The GAC’s exact words, from its Beijing communique (pdf), were:

At the time of registration, the registry operator must verify and validate the registrants’ authorisations, charters, licenses and/or other related credentials for participation in that sector.

However, when the NGPC came up with its first response, in November last year, it had substantially diluted the advice. The creative reinterpretation I mentioned earlier read:

Registry operators will include a provision in their Registry-Registrar Agreements that requires Registrars to include in their Registration Agreements a provision requiring a representation that the Registrant possesses any necessary authorisations, charters, licenses and/or other related credentials for participation in the sector associated with the Registry TLD string.

In other words, rather than presenting your medical licence to a registrar when buying a .doctor domain, registrants would merely assert they have such a licence on the understanding that they could lose their domain if they fail to present it on demand in future.

The GAC, which isn’t entirely stupid, spotted ICANN’s reimagining of the Beijing communique.

At the Singapore meeting this March, it issued a list of passive-aggressive questions (pdf) for the NGPC, noting that its Beijing advice had been “amended” by the board and wondering whether this would lead to “greater risks of fraud and deception” in new gTLDs.

ICANN’s response this week is quite lengthy.

The NGPC said it had “to balance many competing positions” when figuring out how to respond to the Beijing communique, and that it tried “to address all of the completing concerns in a way that respected the spirit and intent of the GAC’s advice.”

The committee gives a number of examples (starting on page 15 of this PDF) explaining why the GAC’s original demands would be unreasonably burdensome not only on registries and registrars but also on registrants.

Here’s one example:

consider a potential registrant that is a multinational insurance company seeking to register a domain name in the .insurance TLD. Suppose the multinational insurance company has locations in over 30 countries, including the United States and Kenya. If the potential registrant insurance company attempts to register a domain name in the .insurance TLD, would that trigger an obligation to verify and validate its credentials, licenses, charters, etc. in the location of its headquarters, or all of the places around the globe where it does business. Is it realistic for a Registry Operator or Registrar to have the knowledge and expertise to determine precisely what credentials or authorizations are required in every country around the world (and in every city, county or other political division if those political subdivisions also require credentials [e.g. in the United States, insurance is primarily regulated at the state level and require a license in each of the 50 states])?

The short version is that the NGPC isn’t budging on this particular issue.

Rather than backpedaling, it’s giving the GAC the reasons it disagreed with its advice and explaining how it attempted to at least comply with the spirit, if not the letter, of Beijing.

As far as I can tell, that seems to be the case in each of the 39 items in the new scorecard — explanation not capitulation. Read the full thing here.

.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.