The 10-hour outage in the Trademark Clearinghouse’s key database had no impact on domain registrations, ICANN says.
We reported earlier this week that the TMCH’s Trademark Database had been offline for much of last Friday, for reasons unknown.
We’d heard concerns from some users that the downtime may have allowed registrants to register domain names matching trademarks without triggering Trademark Claims notices.
But that worry may have been unfounded. ICANN told DI:
The issue occurred when two nodes spontaneously restarted. The cause of this restart is still under investigation. Although both nodes came back up, several services such as the network interface, TSA Service IP and the SSH daemon did not. All TMDB Services except the CNIS service were unavailable during the outage. From a domain registration point of view there should have been no impact.
CNIS is the Claim Notice Information Service, which provides registrars with Trademark Claims notice data.
The Trademark Clearinghouse is investigating the causes and impact of an outage that is believed to have hit its primary database for 10 hours last Friday.
Some in the intellectual property community are concerned that the downtime may have allowed people to register domain names without receiving Trademark Claims notices.
The downtime was confirmed as unscheduled by the TMCH on a mailing list, but requests for more information sent its way today were deflected to ICANN.
An ICANN spokesperson said that the outage is being analyzed right now, which will take a couple of days.
The problem affected the IBM-administered Trademark Database, which registrars query to determine whether they need to serve up a Claims notice when a customer tries to register a domain that matches a trademark.
I gather that registries are supposed to reject registration attempts if they cannot get a definitive answer from the TMDB, but some are concerned that that may not have been the case during the downtime.
Over 145,000 Claims notices have been sent to trademark owners since the TMCH came online over a year ago.
(UPDATE: This story was edited May 21 to clarify that it is the TMCH conducting the investigation, rather than ICANN.)
ICANN’s board of directors has refused to choose between the Generic Names Supporting Organization and the Governmental Advisory Committee on the issue of intergovernmental organization protections.
In a resolution last week, the board decided to approve only the parts of the GNSO’s unanimous consensus recommendations that the GAC does not disagree with.
The GNSO said last November that IGOs should not have their acronyms blocked forever at the second level in new gTLDs, going against the GAC consensus view that the acronyms should be “permanently protected”.
The GAC wants IGOs to enjoy a permanent version of the Trademark Claims notifications mechanism, whereas the GNSO thinks they should only get the 90 days enjoyed by trademark owners.
Instead of choosing a side, ICANN passed a resolution last Wednesday requesting “additional time” to reach a decision on these points of difference and said it wants to:
facilitate discussions among the relevant parties to reconcile any remaining differences between the policy recommendations and the GAC advice
The decision is not unexpected. Board member Bruce Tonkin basically revealed the board’s intention to go this way during the Singapore meeting a couple of months ago.
The differences between the GAC and the GNSO are relatively minor now, and the board did approve a large part of the GNSO’s recommendations in its resolution.
IGOs, the Olympics, Red Cross and Red Crescent will all get permanent blocks for their full names (but not acronyms) at the top level and second level in the new gTLD program.
International nongovernmental organizations (INGOs) will also get top-level blocks for their full names and protection in the style of the Trademark Claims service at the second level.
The dispute over acronyms was important because many obscure IGOs, which arguably don’t need protection from cybersquatters, have useful or potentially valuable acronyms that new gTLD registries want to keep.
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.
The Trademark Clearinghouse has delivered over 500,000 Trademark Claims notices and prevented over 475,000 trademarked names from being registered, according to the TMCH.
The 500,000 number announced in a press release today seems to refer to pre-registration warnings that the name about to be registered matches a trademark in the TMCH database.
Three weeks ago the TMCH said it had served 17,500 post-registration notices to trademark owners in just one month. I’m inferring that this number is now up to over 25,000.
Half a million appears to be an awfully big number, especially when compared to the number of active domain names in new gTLDs, which today stands at just over 347,000.
The TMCH said today that 95% of these notices led to the name not being registered, which it said shows the success of the Claims system.
It could also mean that it’s having the “chilling effect” predicted by opponents of the process, with legitimate registrants being scared away from non-infringing uses of registered marks.
There are plenty of dictionary words in the Clearinghouse — some that match legitimate brands, some which are simply attempts to game sunrise periods and obtain potentially valuable names.
There are currently over 28,000 marks in the TMCH database.