More Delay To ICANN Introduction Of New Internet Domains?

BRUSSELS – Applicants for new top-level internet domains may face another round of discussions before the long-awaited application period for .nyc, .shop or .gay can happen.

The issue is under debate this week at the 38th meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Brussels. Concern has arisen over ICANN’s draft applicant guidebook for the introduction of new generic top-level domains (gTLDs). The ICANN Government Advisory Committee in a discussion with the ICANN Board called a proposed solution on objections to new gTLDs on the basis of morality and public order “flawed” because there are no internationally adopted definitions of “morality and public order.”

United States GAC representative Suzanne Sene from the Commerce Department National Telecommunications and Information Administration (NTIA) warned: “The solution is rather unworkable. No. It is completely unworkable.”

Sene said the formulation chosen by the ICANN staff authors of the draft applicant guidebook clearly had been extracted from the Paris Convention for the Protection of Industrial Property where countries are granted an exemption from protecting marks of another country that violate morality and public order (referred to as MOPO). If something violated morality and public order, Sene said, it “is decided on a country basis.”

William Dee, representing the European Commission in the GAC, underlined that governments could not “endorse a procedure which would limit our ability to raise objections at any point in the future.” The core problem understood by everyone is “that there is no possible implementation of the MOPO in an objective way,” Dee said.

Objections on the basis of morality and public order have been introduced into ICANN’s applicant guidebook, which regulates the application procedure for all new generic top level domains (like .nyc or .gay), is an answer to concerns governments stated in their document on general public policy principles regarding the introduction of new gTLDs from 2007. The GAC in this stated that new gTLDs should respect the provisions of the Universal Declaration of Human Rights and “sensitivities regarding terms with national, cultural, geographic and religious significance.”

How to answer this request and allow objections previously spurred heated discussions in the relevant ICANN self-regulatory bodies, especially the Generic Names Supporting Organization. Bruce Tonkin, former chair of the GNSO, and meanwhile director of the ICANN Board yesterday said the GNSO had in 2008 asked for GAC advice during the discussions but none was given then.

The question of what constitutes GAC advice and what not is one heavily debated issue in Brussels and includes discussions of the future role of the GAC in ICANN.

ICANN Board Chairman Peter Dengate Thrush yesterday urged governments to “give us some advice on how a solution might look.” Dengate Thrush and his colleagues on the Board are eager to finish the consultations on the new gTLD application procedure for which many companies have been waiting for years now.

Yet the GAC chair, Latvian diplomat Janis Karklins, said: “For the time being we have not arrived at a point where we would see a good alternative.” Dee even pointed to the mere advisory role of the GAC, handing the solution back to the ICANN community as a whole.

During one of their own sessions GAC members had a discussion on possible solutions to the conundrum. These ranged from having a procedure to base decisions on “existing lists” and “authorities” for decisions on possible religious or culturally objectionable names (United States) to allowing individual governments to make objections directly to applicants in an attempt to settle the issue (France), to a MOPO clearinghouse similar to an agreed trademark clearinghouse or combinations of these.

The GAC representative from Pakistan said, “If we want to have the same strings be accessible in all countries, it will become very complex.” Strings like .gay for example would raise problems in some countries while being totally acceptable in others. His fall-back position therefore would be that countries or groups of countries should be able “to block TLDs that are offensive to them.”

Starting to block complete TLDs in single countries while others allowed access would mean the beginning of the end to the carefully crafted universal system, warned the Swiss GAC representative. Once governments started to block TLDs, they also might start to add their own ones, warned Dee. The dilemma the governments stated and handed over to the ICANN community to solve was either to not allow any TLD to which any government of the world takes offence or to risk fragmentation.

Discussions on the topic will go on through this week.

The governments’ rejection of the morality and public order solution gives ICANN another problem to solve before it can start introducing the new gTLDs. Applicants that are gathered in numbers in Brussels and registrars interested in joining the registry business – at least if the current ban of cross-ownership is lifted through ongoing negotiations in a working group this week – already have promoted making a last single big leap forward with a gTLD summit in which all remaining issues would be decided. MOPO certainly looks like a big chunk of work.

Also, the ICANN Intellectual Property Constituency and its members are not yet satisfied with rights protection mechanisms introduced into the fourth draft applicant guidebook.

In a first discussion on mechanisms elaborated by an Implementation Recommendation Team, members of the IP Constituency complained that the “most sought after Mechanism,” the Globally Protected Marks List (GPML), had been “kicked out.” The new Uniform Rapid Suspension System (URS) is now “only the clearest case of infringements.” It had been made much too burdensome, many IPC members think.

With regard to the clearinghouse in the latest draft guidebook, only marks from countries with clear evaluations or marks that had been checked in court would be quickly accepted and so therefore able to be included in the sunrise procedures. Sunrise phases are a standard process allowing trademark owners to file or reserve their names before the general launch of a new TLD.

Trademark experts also think that only allowing identical matches is insufficient and they want, according to Steve Del Bianco from NetChoice Coalition, that the clearinghouse stays open beyond the launch period of the new TLDs.

WIPO Blasts ICANN Plan

The World Intellectual Property Organization in its recent comment on the draft guidebook also criticised the rights protection mechanisms (RPMs). The URS, it wrote, has become an “overburdened procedure.” WIPO also shares concerns on the Post-Delegation Dispute Resolution Procedure (PDDRP), which it said is now limited to affirmative conduct and thereby risks the possibility of “wilful blindness occurring in the course of the management of the new domains,” the WIPO statement reads.

In sum, the “mechanisms compromised by registration pressures cannot stem the tide of the expected abuse,” the WIPO experts said.

The IP Constituency should ask for more time to discuss the issues, said IPC member Jonathan Cohen. While the ICANN Board had made it clear that the Implementation Recommendation Team recommendations and their implementation were intended to fix the IP rights concerns, with MOPO and more IP rights on its plate ICANN might be compelled to work on draft guidebook version five.