Wednesday, 20 April 2011

ICANN seems to stick to Timeline for new gTLDs - DAG 6 published

On April 15th, ICANN published the New Applicant Guidebook Discussion Draft or plain and simply; “DAG 6.“ In addition ICANN responded on GAC input on RPMs and other points of concerns related to the launch of new gTLDs. Meeting their proposed deadline with their April 15th launch of responses and rationale to GAC and of the DAG 6, ICANN seems committed to – at long last – stick to the communicated timeline;

  • April 15th through May 15th
  • New DAG 6 public comments period
  • May 20th Consultation with GAC
  • May 30th Final Applicant Guidebook
  • June 20th Board Approval
  • Followed by a global 4 months awareness campaign before the expected opening of the 60 days application window late October early November

What is new, what has been changed in the DAG? RPM (Right Protection Mechanisms) issues: New gTLDs must offer both the centralized Trademark Clearing House (TCH) service (for all word marks) and a Pre-launch Sunrise registration period for rights holders, who can demonstrate proof of use of their trademark registered before June 26, 2008. It is a good idea for TM owners to submit proof of use to the central Trademark Clearing House as well, as this will make potential domain disputes via the new URS (faster and cheaper UDRP) easier, as one can refer to the demonstrated rights in the central Trademark Clearing House.

Now what kind of protection / service is the Trademark Clearing House (TCH) providing? Firstly, a TM owner saves costs related to registering second level domain names in numerous new gTLDs, as registries can (must) now draw upon TM validation services from the central TCH. Thus, at least administrative costs will be lower, than if one had to file TM certificates to each individual registry. (How Sunrise fees will be priced is still up to each registry..). Secondly, the TM owner with a TM filed in the TCH will receive an alert message from the registrar (via the TCH), if a registrant has registered an IDENTICAL domain name (with or without “hyphen”, “&”, “spaces “ etc. The ICANN board did not follow GAC advice and implemented the alert / protection against “combo-names” – including, pre- and suffixes, or typos for that matter, so only IDENTICAL matches, as we know it from the .EU and .ASIA sunrise validation). Furthermore, any registrant that seeks to register a domain name IDENTICAL to a TM in the TCH will have to read and accept a “warning” before registering the domain name;

DAG 6 page 309: “(…)You have received this Trademark Notice because you have applied for a domain name which matches at least one trademark record submitted to the Trademark Clearinghouse. You may or may not be entitled to register the domain name depending on your intended use and whether it is the same or significantly overlaps with the trademarks listed below. Your rights to register this domain name may or may not be protected as noncommercial use or “fair use” by the laws of your country.” (…) “If you continue with this registration, you represent that, you have received and you understand this notice and to the best of your knowledge, your registration and use of the requested domain name will not infringe on the trademark rights listed below(..).”

Let us see what chilling effect such a warning will have on registrants ;-)

URS; The Uniform Rapid Suspension System in DAG 6 has implemented a “loser pays” fee in case the same registrant has registered more than 25 infringing domains. (Max “penalty” is the cost of the complaint)

GAC “Veto;” For Brand Owners it is comforting that GAC (Government representatives) has now been granted a de facto veto right against TLD applications. GAC will be able to object to (read: block) new gTLD applications through both an “early warning” (requires only one GAC member nation to “warn”) to be submitted right after the formality check (2 weeks after the closing of the application window) and a so called “GAC Advice”, based on consensus, which the board is “almost” forced to follow.

DAG 6 page 14; “GAC advice that is stated to be a “GAC consensus” position and that states, this application should not proceed, will create a strong presumption for the Board that the application should not be approved. If the Board decides to approve the application, the Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Thus, GAC will be able to prevent such sensitive and controversial TLDs as .kids, pharma, .bank to be controlled by any controversial registry operator. GAC will hardly warn or advice against any .brand applications.

Increased and explicit requirements for documentation of registry systems and security; DAG 6 has been extended to include a very detailed list of documentation requirements (93-200 pages of documentation required) for the registry systems (servers, security, monitoring, back up, WHOIS accuracy measurements etc.) This may give some of the new gTLD registry backend providers a “hot summer” and make IT consultants happy. Seriously, it is really welcomed that ICANN is making it very transparent what is required to run a registry in a safe manner, albeit a puzzle to me, why these amendments occur at the very end of this long process.

When will we see Round 2 of new gTLDs? So far ICANN has communicated its plan to launch additional rounds of 500 new gTLDs (or is it 1000 applications?) every 12 months! I very much doubt that ICANN will be able to stick to this deadline: In order to enable future economic studies assessing whether the new gTLD delivered the expected benefits, as part of the application process, ICANN is now gathering additional information from applicants, who have to indicate how their new gTLD will be benefit “registrants, Internet users, and others.” Applicants have to answer a number of questions (page 104 and onwards in DAG 6) relating to benefit creation for registrants and users and to eliminating costs to registrants and consumers.

One question is (DAG 6 redlined, page 105): ICANN wants to know: “(…)d. What goals does your proposed gTLD have in terms of user experience?”

Answer (?): “Well, that is easier for users to find what they are looking for on the Internet, you know”

Somehow economists will have to measure to what degree these first round (ICANN guesses on 500 new gTLDs, I personally expect more) new gTLDs did actually deliver on these benefit promises. More importantly is ICANN's intent to analyze the impact of the launch and operation of say 500 new gTLDs on the stability of root zone system:

DAG 6 redlined, page 24: “ICANN has committed to reviewing the effects of the New gTLD Program on the operations of the root zone system after the first application round, and will defer the delegations in a second application round until it is determined that the delegations resulting from the first round did not jeopardize root zone system security or stability’ And page 36:"(…) Modeling will continue during, and after, the first application round so that root-scaling discussions can continue and the delegation rates can be managed as the program goes forward."

The board simply will not start round 2 before:

(…)The Board commits to make the second round or batch of applications contingent on a clean sheet from full technical and administrative assessment of impact of the first round with recommendations which should go out to public comment for approval.”

To me, further economic studies and root zone stability studies AND further public comments do NOT sound like we will see a round 2 only 12 months after round 1. More likely round 2 will not happen within two or three years after the opening – yet –launch of round 1 – nTLDs. (If I say so, it maybe WILL happen, as my track record for predicting ICANN timelines is not too impressive…)

Conclusion: ICANN will launch the new gTLD program and this time I really do believe they will stick to the timeline. Brand owners with international brands should therefore asap analyze and conclude whether a dotBRAND application is the safest way to protect your IPR and/or a smart way to support your branding strategy. Applications are to be submitted at the end of this year…or will we see yet another postponement?

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