The ICANN Colombia Conference

Friday December 10, 2010 marked the end of ICANN’s most recent five-day conference in Cartagena, where the Internet regulatory body devised plans to let groups apply for and manage new Internet domain extensions called generic Top Level Domains (gTLDs), thereby allowing for the creation of any TLD with up to 64 characters, including regional suffixes, generic words and brand names. The creation of these new gTLDs will enable large brand owners with sufficient funds to become TLD registries.

According to ICANN’s Adopted Board Resolution of December 10, 2010, public comments following the publication of the fifth Draft Applicant Guidebook (DAG) identified four “overarching issues” to be addressed as a threshold for moving forward with the introduction of new gTLDs: trademark protection, mitigating malicious conduct, root zone scaling and economic analysis. As noted by ICANN, these four issues have been addressed during the Cartagena Board meeting. However, since the public comment period closed on December 10, the last day of the conference, comments will have to be digested within the next month. As ICANN Board chairman Peter Dengate Thrush puts it with respect to IP protection mechanisms, “we don’t think [we need] to start another campaign like the IRT[1] and try to develop another set of mechanisms. However, in relation to the mechanisms we have got the door still open[2] (emphasis made by the author).

However, since more time is needed to work through some remaining issues such as certain aspects of geographic gTLDs and other gTLDs that raise morality and public order issues, ICANN decided to postpone the new gTLD process.  Meanwhile, the Governmental Advisory Committee (GAC), composed of representatives from more than 100 governments worldwide, accepted the ICANN Board’s invitation to meet intersessionally in February 2011, before the March 13-18 San Francisco ICANN meeting, in the interest of resolving the outstanding issues with the new gTLD process. Indeed, the GAC remains very concerned that many of the original public policy issues raised remain unresolved in the latest version of the DAG[3]. It notably noted the absence of a detailed explanation and rationale for the decisions taken to date on the new gTLD program, exemplified by the recent Board decision on vertical integration.

In light of the February meeting, the GAC intends to provide the Board with a list of the issues which it feels are still outstanding and require additional discussion; these include:

–          The objection procedures including the requirements for governments to pay fees;

–          Procedures for review of sensitive things;

–          Root Zone Scaling;

–          Market and Economic Impacts;

–          Registry – Registrar Separation;

–          Protection of Rights Owners and consumer protection issues;

–          Post-delegation disputes with governments;

–          Use and protection of geographical names;

–          Legal recourse for applicants;

–          Providing opportunities for all stakeholders including those from developing countries;

–          Law enforcement due diligence recommendations to amend the Registrar Accreditation Agreement; and

–          The need for an early warning to applicants whether a proposed string would be considered controversial or to raise sensitivities (including geographical names).

In light of such a lengthy and diverse list, we can note that despite what some might think after reading ICANN’s Adopted Board Resolutions, the “overarching” gTLD issues are not closed; they have only been “addressed”, as expressed in the Resolutions. The terminology used was clearly carefully chosen.

This newly scheduled February consultation will further delay the rollout of gTLDs, initially planned for early 2011. Therefore, to the question “will there finally be new gTLD approval in San Francisco?”  Peter Dengate Thrush can only answer “We hope that we can work through remaining issues. There is always an incentive on people on whom this might be costly, or enjoy the privilege of incumbency – change always hurt someone. The sort of analogy we use is if you were to now ask the telcos should we introduce the internet, what would they say?” [4]

Further developments in February 2011; however, the May 30, 2011 application launch date announced by ICANN in October already seems to be compromised. To be continued …

[1] Implementation Recommendation Team (IRT): special task force broadly reflecting diverse IP interests and geography given the mandate to address what it considers to be the most pressing and key issues for trademark owners in relation to the launch of new gTLDs.

[2] Full interview : Peter Dengate Thrush, Managing Intellectual Property, December 13, 2010.

[3] GAC Communiqué – Cartagena, December 9, 2010.

[4] Full interview : Peter Dengate Thrush, Managing Intellectual Property, December 13, 2010.