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GNSO says dot-brand rules “inconsistent” with policy

Kevin Murphy, May 13, 2014, 12:38:50 (UTC), Domain Policy

The ability of dot-brand gTLDs to limit how many registrars they work with is “inconsistent” with the GNSO’s longstanding policy on new gTLDs, ICANN’s GNSO Council has found.
At the end of March, ICANN approved a set of Registry Agreement opt-outs, such as the ability to avoid sunrise periods and approve just three hand-picked registrars, for dot-brands.
They’re designed to make life easy for single-registrant zones where the gTLD is also a famous, trademarked brand and it would be silly to enforce open access to all accredited registrars.
But the GNSO Council resolved last week that the registrar exception is inconsistent with the GNSO policy that first kicked off the new gTLD program in 2007, which called for non-discriminatory access.
It had been asked specifically by the ICANN board’s New gTLD Program Committee to comment on whether there was a conflict. The Council said:

the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement

However, the Council also decided that it has no objection to ICANN going ahead with the so-called Specification 13 exceptions, saying it “does not object to the implementation of Specification 13 as a whole”.
No GNSO members bothered to object when Spec 13 was open to public comment.
While it’s certainly a pragmatic, reasonable decision by the GNSO, it does highlight a situation where ICANN seems to have overridden a hard-fought community consensus policy.
That’s likely why its resolution also warns the ICANN board that its decision “may not be taken as a precedent”. Which of course it now is, regardless.

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Comments (8)

  1. Ken Hansen says:

    Even if you allow any registrar to become accredited, if the brand itself is the only registrant allowed, won’t the brand select a registrar they choose to do business with? Why would a registrar want to be accredited when the only registrant has selected another registrar for their own registrations?

    • Kevin Murphy says:

      Exactly, it would be stupid. But this is ICANN policy development, it’s genetically predisposed to stupid.

    • Volker Greimann says:

      Hi Ken,
      registrars have raised this very point many times. dotBrands as Registrants are allowed to discriminate. dotBrands as Registries are also allowed to discriminate, as long as they do it in a proper form, i.e. with open criteria. But they should not be allowed to pick and chose (as Registries).
      You will also note that the registrar councilors voted against the current motion as allowing a policy violation to slip through, especially when it is not even needed undermines the entire process.

    • John Berryhill says:

      “if the brand itself is the only registrant allowed”
      That’s part of the problem, Ken.
      It’s the brand owner and any licensees.
      So you do this:
      1. Get a trademark on an arbitrary word.
      2. Apply for a “.brand TLD” under that mark.
      3. Accredit a single registrar.
      4. Issue perfunctory pro forma “trademark licenses” as part of the registration process.
      And, boom, you have a one-registrar gTLD.
      In response to my comments during the Spec 13 notice period, ICANN did include some language on the substance of “what is a licensee” and what the domain name will be used for (i.e. in promotion of the ostensible “brand”), but it doesn’t plug up various route-arounds as tightly as one may like.
      Considering the tendency of any number of TLD applicants to consider their TLD to be a “brand” of some kind, you can see where this is going.

      • Rubens Kuhl says:

        Even if the brand itself is the only registrant allowed, content control would allow renting of the domain or subdomain. That’s why code-of-conduct exemptions require full content control… we might see the world as DNS and domain names, but nowadays people actually see the Web. Whatever non-Web services domains can provide are only known to tech savvy people.

  2. Yassin Mshana says:

    It is expected that the PDPs as per ICANN procedure developed Policy to guide in all (considered or expected) scenarios….?
    This matter is interesting. …and especially when it involves a Constitiency Policy.
    It will be good to hear about its resolution as part of ‘lessons learning’ to benefit the future..of ICANN.
    Thanks. Yassin

  3. Ken Hansen says:

    Hi Volker,
    I agree. The current rules work for single registrant brand gTLDs (no exemption required). The market takes care of that one. That is what I was trying to say : )

  4. shaun says:

    This all really does identify a huge lack of understanding of the private sector.
    It also identifies a crack in a multi stakeholder model that fundamentally does not work once you get to a brand in the traditional sense as defined by the BRG.
    You can not have transparency and privacy, you can not use the current gTLD model and in any way expect dotBrands to accept it. Besides the fact that they are bound by a privacy act, they are not accountable to ICANN but to their stake holders even though ICANN may think they are.
    This is going to open a pandoras box of issues that will for ever change the openness of the Internet by making exceptions to the rules that potentially can be exploited.
    When you think dotBrand think no public access to any data, full privacy, minimal compliance and zero transparency. Without that a brand could be compromised and besides that they are bound by a privacy act to not disclose any information especially if it involves their customers.

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