Tag Archives: Internet Commerce Association

.Com Pricing Through 2018 Uncertain as USG Reviews Renewal Contract by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoVeriSign’s future ability to increase pricing for .Com domains has suddenly become uncertain after the company announced on October 25th that the renewal registry operations contract that has already been approved by ICANN’s Board of Directors is undergoing extended review by the U.S. Departments of Commerce and Justice.

VeriSign CEO Jim Bizdos told analysts:

“We have concluded that the Commerce Department may not complete its review and approve the renewal of the .com Registry Agreement prior to its expiration on Nov. 30, 2012, and that the Commerce Department, together with the Department of Justice, is reviewing the .com Registry Agreement’s pricing terms. Pursuant to the terms of the Cooperative Agreement, if the .com Registry Agreement is not approved by the Commerce Department prior to its expiration, the Commerce Department is required to agree to the extension of the .com Registry Agreement for six months, or such other reasonable period of time as the Commerce Department and VeriSign may mutually agree.”

Following a round of public comment, the contract under review was approved without change by ICANN’s Board at a June 23rd meeting held in Prague, Czech Republic.  The announcement of U.S. Government (USG) review was unexpected given that the pricing terms are unchanged from the agreement forged as a litigation settlement between VeriSign and ICANN that received Bush Administration approval six years ago. The renewal agreement would run from December 1, 2012 through November 30, 2018 and allows up to four pricing increases of a maximum of seven percent each over the six year term without any need to explain or justify them.

While we don’t know for certain what has caused the extended review, to some extent VeriSign may be the victim of its own success at maximizing profits from the current contract. The company reported a profit of $77.9 million, or 47 cents a share, up from $58.9 million, or 36 cents, a year earlier, and its operating margin widened to 51.9% from 45.2%. On the negative side for VeriSign, the quarterly increase for .Com domain registration growth has been slowing (not unexpectedly, as the base of registered domains grows larger) and renewal rates have dropped slightly. VeriSign blamed the lower renewals on macroeconomic conditions, as well as changes in Google search practices that lowered the ranking of parked and low content domains in combination with the availability of free domains at some other registries.

Although the current contract received approval from the Departments of Commerce and Justice in 2006, that does not confer any antitrust immunity on VeriSign, as noted in its Cooperative Agreement with the USG which includes this language:

Recognition by VeriSign that any approval by the Department of Commerce of the new registry agreements is not intended to confer antitrust immunity on VeriSign with respect to the registry agreements. (http://www.ntia.doc.gov/files/ntia/publications/doc_icann_verisign_agreement_05182001.pdf )

As to what material changes might be required to receive USG approval, we can only speculate at this time. But to the best of our belief, it is highly unlikely that the contract would be put out for competitive rebid, as this would open up the possibility of a non-U.S. company receiving the registry contract and could well send VeriSign hurtling toward bankruptcy as it has sold off other parts of its business over the past few years and is now focused almost exclusively on registry operations. Most likely are constraints on VeriSign’s pricing flexibility, which could range from reducing the 7 percent limit to something less, reducing the number of times that prices can be raised, or even requiring VeriSign to justify any future proposed increases to the DOJ before implementing them. As for the current base price of $7.85 on which future increases would be based, it seems less likely but not impossible that the USG would require a reduction.

And, regardless of what form its actions might take, it is our understanding that if the USG compels any material changes in the .Com contract ICANN would have to put it out for another round of public comment before the Board could approve it.

To the extent that the final determination on the contract may involve politics and lobbying, the announcement comes at an awkward time for VeriSign, as the long-time head of its Washington government affairs office unexpectedly resigned just a few weeks ago.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/USG_Review_DotCom_Renewal

URS Could Arrive Soon at .Com & .Net by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoRather than being considered for implementation at the .com and .net registries through the front door of UDRP reform, Uniform Rapid Suspension (URS) could arrive at these registries in advance of that reform through the backdoor of ending registry-registrar separation.

That’s the major import of a resolution adopted by ICANN’s Board on October 18th in Toronto, reading, “Resolved (2012.10.18.01), the Proposed Revised Process for Handling Request for Removal of Cross-Ownership Restrictions of Existing gTLDs, as posted on 16 May 2012, is approved as revised.” (www.icann.org/en/groups/board/documents/resolutions-18oct12-en.htm#1.a)

The revised May 16th document outlining the process for handling requests for cross-ownership can be found at www.icann.org/en/news/public-comment/revised-cross-ownership-restrictions-16may12-en.htm. An incumbent gTLD registry operator such as VeriSign that wishes to have its cross-ownership of registrar limitation lifted would have to submit a written request to ICANN that either agrees to transition to the new registry agreement required for all operators of new gTLDs, or to amend its current registry agreement more narrowly with the addition of several required provisions to ensure fair competition and require adherence to the new gTLD Registry Code of Conduct. One of these required amendments states that “Registry Operator shall not act as a registrar with respect to the TLD” although some permissible exceptions may provide substantial loopholes.

ICANN would also alert appropriate national competition authorities of the request to ease the cross-ownership restrictions and solicit their input where it determines that lifting the affiliation and control restrictions might raise significant competition issues.

So, if VeriSign determined that it wished to get out from under the current cross-ownership restrictions – notwithstanding the fact that it could not act, at least directly, as registrar for .com, .net, or domains at other registries it controls – it would submit an application to ICANN. It could choose to either accept the new gTLD registry agreement – which would subject its incumbent registries to the URS as well as the final version of the Trademark Clearinghouse (TMC) as both are required rights protection mechanisms (RPMs) at new gTLDs — or it could opt for the narrower amendments.

Given the dominant position of .com and .net (about half of all current domain registrations), ICANN would almost certainly alert U.S. and EU competition authorities, at which point the request would be made public. Given the significant proportion of UDRP filings alleging cybersquatting at .com and .net we would expect brand owners to push loud and hard for ICANN to require VeriSign to comply with the new registry agreement even if their application requested only the narrower amendments – and that would bring along both the TMC and the URS.

Of course, we don’t know if VeriSign has any interest in affiliating with or controlling a registrar, much less when it might submit such a request. But they are now free to do so at any time, while consideration of UDRP reform will not be initiated under current ICANN policy until 18 months after the first new gTLD launches. The first new gTLD launch could now occur as early as the third quarter of 2013 under ICANN’s moist recently revised schedule, which would mean UDRP reform starting up and considering the performance of the RPMs at the new gTLDs in early 2015.

What we do know is that the final form and proper implementation of the URS takes on even more importance in the context of this recently adopted Resolution – and that is why ICA is working overtime to assure that URS remains a narrow supplement to the UDRP that preserves essential registrant due process rights.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/URS%40DotCom

Major RPM Alterations – Including Domain Registration ‘Prior Restraint’ — Proposed as New gTLD “Implementation” Measures by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoAt the ICANN 45 meeting taking place in Toronto, an extensive list of proposed alterations of the rights protection measures (RPMs) for new gTLDs was presented to ICANN’s Board at a morning meeting on Tuesday, November 16th with ICANN’s Commercial Stakeholder Group.  The list represents a general consensus between the Business and Intellectual Property Constituencies (BC & IPC) — while the ISP Constituency, while supporting their goals, is still reviewing the details.

While a member of the Business Constituency, ICA has not endorsed these proposals and may have large concerns about the substance of at least some of them, as well as whether they represent mere implementation details rather than significant substantive alterations.

For example, point #4 below would give trademark owners a prior restraint right to block domain registrations matching not just their marks – which is questionable in itself when a mark consists of a generic word – but of the mark plus associated generic terms, with the burden put on the registrant to demonstrate non-infringing intent in advance. In a recent letter to Congressional leaders, new CEO Fade Chahade pointed out that placing marks plus associated generic terms in the Trademark Clearinghouse (TMC) database would place ICANN in the inappropriate position of creating new rights rather than enforcing existing rights – a position with which ICA wholeheartedly agrees.

And point #5 would require validation of WHOIS information for all registrants, an issue that is currently the subject of heated negotiations between ICANN and registrars in regard to potential revisions of the Registration Accreditation Agreement (RAA).

The complete list of proposed RPM changes presented to the Board is —

  1. Extend Sunrise Launch Period from 30 to 60 days with a  standardized process
  2. Extend the TMCH and Claims Notices for an indefinite period; ensure the process is easy to use, secure, and stable
  3. Complete the URS as a low cost alternative and improve its usefulness – if necessary, ICANN could underwrite for an initial period.
  4. Implement a mechanism for trademark owners to prevent registration of their marks (exact matches, plus character strings previously determined to have been  abusively registered [or used] ) across all registries, upon payment of a reasonable fee, with appropriate safeguards for legitimate registrants
  5. Validate contact information for registrants in WHOIS.
  6. All registrars active in new gTLD registrations must adhere to amended RAA for all gTLD registrations they sponsor.  .
  7. Enforce compliance of all registry commitments for Standard applications.  .
  8. Expand TM claims service to cover at least strings previously found to have been abusively registered [or used].

The proposals met with a restrained response from ICANN Board members, notwithstanding what appeared to be pre-planned live microphone endorsements from representatives of such major brands as GE, Coca-Cola, the National Basketball Association, and Travelers Insurance that the alterations were required to protect consumers. Board Chairman Steve Crocker said he appreciated the specific nature of the proposals but noted that it would require extensive review.

Other Board members provided such additional feedback as:

  • The cost of each of the suggestions would be a key consideration.
  • There was a perception among other constituencies that the IPC in particular was unwilling to compromise and was continuously coming back for additional bites at the apple.
  • It was very late in the process to consider significant alterations of the RPMs and doing so risked delaying the entire new gTLD program.

New CEO Fade Chehade said he wanted to think through all of the proposals “before we sign up for anything” and said there would be engagement in “deep development” on a collaborative basis. He also noted that there were multiple estimates of the true cost of URS filings but that the solution had to be finalized first – and observed that it was mid-October, with URS providers needed to be in place within a few months.
At both the Tuesday meeting and the Thursday Public Forum, Board Chairman Crocker said it was the responsibility of the two constituencies to “socialize” the proposals within the GNSO and get consensus support from other stakeholders before the Board would engage on them. ICA commends the Board for reaffirming the central role of the GNSO in formulating policy for gTLDs. We suspect that the BC and IPC will face considerable difficulty in lining up such consensus within the GNSO – but if any of the suggestions do make it to that stage, ICA will measure them against our recently published “domain rights dozen” principles for achieving acceptable balancing between trademark rights and domain rights.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/DN_Registration_Prior_Restraint

The ‘Domain Rights Dozen’ – ICA’s RPM Revision Review Principles by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoAs the fall of 2012 begins the implementation of rights protection mechanisms (RPMs) for new gTLDs is reaching a critical stage –

  • The Trademark Clearinghouse (TMC) is far along to detailed implementation but certain aspects are now being reconsidered as registries, registrars, and other parties raise issues of practicality and workability.
  • Implementation of Uniform Rapid Suspension (URS) is finally commencing after more than a year of needless delay.
  • Brand interests continue to press for the reopening of basic substantive elements of both RPMs.

Given the half year interval between the upcoming Toronto ICANN meeting and the following Beijing meeting in April 2013, it is highly desirable, and perhaps essential, that community discussion in Toronto result in a clear consensus on how RPM implementation should proceed if new gTLDs are to launch without further delay and if potential registrants are to perceive them as acceptable platforms for speech and commerce.

It is within this present context that the Internet Commerce Association sets forth the following dozen principles by which it will review both implementation details for these RPMs as well as any proposals to make fundamental alterations of substance to them at this late date:

  1. Our starting point is the fundamental principle that domains constitute a bundle of valuable intangible rights similar to trademarks and other forms of intellectual property, and that a reasonable balance must be struck between the respective and legitimate rights of domain registrants and trademark owners. We know that many domains have substantial value because the secondary market tells us so; likewise, any erosion of the legitimate rights of domain registrants represents an unjustified transfer of wealth from the domain sector to the trademark sector. Therefore, while we oppose any intentional infringement of trademark rights, we likewise reject the notion that the historical development of trademarks prior to the rise of the Internet confers upon trademarks any automatic entitlement to prevail over domains when a dispute arises between these two species of intangible rights. In our digital era the two rights must respectfully co-exist.
  2. While RPMs must be effective against bad actors, their design and implementation must recognize that the vast majority of domain registrants are good actors and deserve adequate substantive and procedural due process – and that some complainants can and will attempt to abuse any dispute resolution process. The most recent annual data indicates that UDRP arbitrations involve less than one two-hundredth of one percent of all registered domains; even if UDRPs understate the total of actionable cybersquatting claims by a factor of one hundred, that would still leave 99.5 percent of all domains as non-infringing. UDRPs have been steadily shrinking as a percentage of total domains for years, and this trend is likely to continue even as new gTLDs are introduced – with the percentage of arbitration cases likely to be even smaller for them. In this regard, the repurposing of various ccTLDs to be more general in nature (e.g., .md, .tv, .co, .ws, .bz, .to, .cc, .so, is, and .me) is instructive as it has not resulted in substantial new abusive registrations, and this is a highly relevant precedent for the likely usage of new gTLDs.  It should also be noted that the potential for typographical cybersquatting at new gTLDs will on the whole be greatly reduced as they are unlikely to receive much in the way of natural type-in traffic. Finally, the record number of findings of attempted reverse domain name hijackings in 2012 UDRP cases demonstrates that some complainants will seek to abuse any dispute resolution system and that registrant rights deserve adequate sanctions to deter such attempts.
  3. The number of new gTLD applications received by ICANN in the first round of the program (1900, of which 1400 are unique) is in and of itself insufficient justification for material alterations of the RPMs. At the time that the ICANN Board approved the Applicant Guidebook (AG) and the incorporated RPMs, it was widely anticipated within the ICANN community that total first round applications would be in the range of at least 500-1,000, and possibly higher. Further, the RPMs are meant to and do scale – the TMC operates in relation to, and the URS is available for use against, domains at every new gTLD. Proposals for any material RPM alteration must be grounded in genuinely unanticipated factors that have arisen since their approval and not simply on the total number of first round applications.
  4. ICANN’s bottom-up, consensus-driven, multi-stakeholder policy development process must be respected; and, further, there must be some finality to ICANN policy decisions. The existing RPMs represent more than two years of community discussion, debate, hard work and compromise and were adopted unanimously by the GNSO Council and the ICANN Board. They should not be lightly reopened in advance of the launch of new gTLDs and actual experience with both the true incidence of cybersquatting within them and the effectiveness of the new RPMs. Since the mid-2011 approval of launching the new gTLD program ICANN’s Board has already degraded URS-related registrant rights twice under brand-generated pressure — by cutting one week from permissible response time, and by halving the number of domains targeted in an action giving rise to ‘loser pays’ liability – and yet the brand sector continues to press for further RPM revisions. The time has come to bring finality to the process and lock in these RPMs absent extraordinary and unanticipated developments.
  5. The RPMs should enforce and protect existing trademark rights, but not create new rights. A trademark is limited to specific classes of goods and services, and the vast majority are not global marks but are also geographically circumscribed; therefore, the use of a trademark as or within a domain name cannot automatically confer preemptive power as to all goods and services or all locales in the context of a global Internet. Setting limits on the scope of trademark rights in the DNS is particularly important where the trademarked word(s) is of the generic dictionary variety and overly expansive rights could stifle e-commerce competition and innovation. We note and strongly approve the recognition of this principle in the letter recently sent by new ICANN CEO Fadi Chehade to U.S. Congressional leaders: “It is important to note that the Trademark Clearinghouse is intended be a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights. The principle that rights protections “should protect the existing rights of trademark owners, but neither expand those rights nor create additional legal rights by trademark law” was key to work of the Implementation Recommendation Team, a group of experts in the ICANN community who initiated intense work to recommend rights protection mechanisms in new gTLDs.” We are generally opposed to the ‘mark + generic term’ proposal referenced in Mr. Chehade’s letter as creation of a new right beyond that conferred by trademark law, as well as degradation of the purpose of the TMC as an authoritative repository of trademarks meeting certain high standards for inclusion. In addition, because many potential combinations of marks plus generic terms would likely be non-infringing, such an expansion would result in an ordinate number of trademark claims service “false positive” warning notices to innocent potential registrants who, lacking sophistication in trademark law, would be unjustifiably deterred from completing the registration process.
  6. Any alteration of one RPM must be reviewed for its potential spillover effect on registrant rights in the other. Any modification of the TMC must be analyzed for its impact on registrant rights in the URS. For example, while ignoring  a claims service warning for an exact match to a mark might appropriately serve as evidence of bad faith registration in a subsequent URS action, granting it such evidentiary weight in a ‘mark + generic term’ context would be thoroughly inappropriate.
  7. The URS implementation process must be open to participation by all interested members of the ICANN community, and must be transparent in its operation. The multi-stakeholder process and attendant transparency and accountability must be maintained for the process to have credibility and for ICANN to receive continued support from netizens. While ICANN appears to have made a commitment to this principle we shall continue to closely monitor the process even as we participate in it.
  8. Any proposed alteration of the URS premised on cost considerations must await actual market testing of the implementation costs of the present model – doing otherwise would put the cart before the horse. The suspect and possibly self-serving declarations of existing UDRP providers cannot be relied upon as an accurate URS implementation cost indicator. It is therefore incumbent upon ICANN to aggressively promote and seeks responses on a global basis to its recently issued URS implementation Request for Information (RFI) from qualified arbitration service providers beyond the ranks of existing UDRP providers.
  9. Cost considerations cannot justify a degradation of registrant rights in URS proceedings below acceptable levels, and any cost-premised alteration must actually have the potential to reduce costs both in the URS and in totality. In this regard, the proposal to eliminate all substantive review and have automatic default judgments when a registrant fails to respond by the specified deadline is unacceptable as such a procedure would neither consider whether the complainant possesses its claimed trademark rights nor whether the domain constitutes a clear cut and incontrovertible instance of infringement; it would also not inquire into whether there was actual use of the domain, without which the critical element of bad faith use cannot exist. Therefore, a default judgment process would constitute an unacceptable degradation of registrant rights. And the proposal to reduce the burden of proof to the same as that of the UDRP would actually increase costs, as it would convert the URS from a procedure targeting clear black-and-white infringement cases to ones that are multiple shades of grey and require protracted and more costly deliberation. Likewise, the proposal to allow complainants to acquire domains via URS filings, like burden of proof reduction, would convert the URS from a narrow supplement to the UDRP into a full substitute, an unacceptable “bait-and-switch” result; and would further increase total costs by placing the burden of long-term defensive registrations on complainants when other means could readily prevent the re-registration of incontrovertibly infringing domains and eliminate such defensive registration costs.
  10. URS providers must be placed under a binding standard contract.     Requiring such contracts was a central recommendation of the Special Trademark Issues – Recommendation Team that hammered out the final RPM details included in the AG. In a year in which the broad Internet community rose up against proposed SOPA legislation that would have suspended domains absent adequate due process for registrants, it is unacceptable for ICANN to accredit and empower entities to censor domains via rapid suspension absent binding agreements that set clear limits on their powers and provide ICANN with flexible and measured enforcement tools. As a non-profit private sector entity, ICANN’s only real powers are based in its contract enforcement authority and they must be exercised to ensure a properly balanced URS process. Issues to be addressed in the contract should include assuring that potential panelists are truly unbiased and are fairly and broadly selected for cases. While we see merit in the Business Constituency’s proposal that URS arbitration be awarded to a single vendor – as that would help ensure more uniform URS application while foreclosing forum shopping – the potential selection of multiple vendors gives greater urgency to the development of a binding standard contract. We are dismayed that ICANN has indicated that it is on a path to rejecting this crucially important STI-RT recommendation and to emulating the deeply flawed contactless model of the UDRP.
  11. RPM implementation must not further delay the introduction of new gTLDs. The potential new price competition, business model innovation, and other attendant benefits of new gTLDs should be realized as soon as possible. This consideration reinforces our stance against substantial revisions that could prove controversial and divisive and incite protracted debate and accompanying delay.
  12. New gTLDs should be laboratories for change, including RPM approaches. While we are skeptical of substantial revisions in the ‘one-size-fits-all’ RPMs contained in the AG, we believe it is appropriate for applicants and applicant groups to experiment with gTLD-specific RPMs and registrant qualification requirements that go beyond the baseline protections contained in the AG. Analysis of the real world results of these varied approaches, including their acceptability to registrants, can inform any future discussion of RPM policy changes after several years of utilization at the new gTLDs launched in the first round.

This article by Philip Corwin from the Internet Commerce Association was sourced from:
internetcommerce.org/Domain_Rights_Dozen

ICANN Not Currently Planning to Place URS Providers Under Contract by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoOn Wednesday, October 3rd ICANN held a ninety-minute webinar on implementation of the Uniform Rapid Suspension (URS) rights protection mechanism (RPM) for new gTLDs.  More than a hundred individuals participated.

In response to a question posed by ICA Counsel Philip Corwin, ICANN executive Kurt Pritz stated that ICANN was looking to the current UDRP model, in which ICANN accredits arbitration providers to extinguish or transfer domains without placing them under a standard and enforceable contract – but that the contract issue could be discussed further during the URS implementation briefing session scheduled for Thursday, October 18th at the Toronto ICANN meeting. (Note: Under the current model an adverse URS decision would lead to domain suspension and non-resolution, but not to transfer).

Corwin pointed out the STI-RT consensus URS model unanimously adopted by the GNSO Council and the ICANN Board specifically recommended that URS providers be placed under contract. ICA has long taken the position that since ICANN’s only real power is derived from contract enforcement, that developing a standard contract is the only way to assure uniform administration of the URS and prevent forum shopping by complainants.

The webinar discussed a list of potential alterations of the URS model based upon the assumption that the current model cannot be offered at the desired price target of $300-$500 per filing. But, other than the perhaps self-serving feedback of existing UDRP providers, ICANN has no documentation or analysis justifying that assumption. The Request for Information (RFI) soliciting bids from potential URS providers was just issued on September 24th and bids will not be received late November.

As the webinar proceeded there appeared to be a consensus among participants that a new working group to consider modifications should not be convened until the actual price of providing decisions in the slam dunk, black-and-white instances of cybersquatting targeted by URS was tested in the marketplace by competitive bidding – and that, even then, it might be better to subsidize the cost at least in the short term rather than consider significant alterations

Of course, market testing will require responses from a broad range of potential providers. In this regard, Corwin asked whether ICANN was proactively making qualified arbitration providers beyond the ranks of existing UDRP providers aware of the RFI and encouraging their bids. ICANN executive Olaf Nordling responded “We will, we’ll try, but it’s not like we have a massive market”, a not altogether encouraging perspective. However, toward the end of the webinar Kurt Pritz stated that ICANN agreed with the need for publicizing the opportunity presented by the RFI and would work with its communications group toward that end.

The majority of the call discussed a number of possible URS changes under the broad categories of limiting panelist involvement, automation and simplification, financial subsidy, and an additional appeals mechanism via an ombudsman. However, other than a general agreement that webinar participants were unenthusiastic about forming a working group to consider changes before the RFI responses illuminated real world pricing, and that at least short-term financial subsidization was worth considering as an alternative to delay and controversy–inducing changes, no clear consensus emerged on any potential alterations of the current model.

ICA will continue to monitor this issue closely and plans to be an active participant in the Toronto URS session.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/URS_contracts

First, Do No HARM by Philip Corwin

Internet Commerce Association logoIs it really less than a week ago that Melbourne IT (MIT) hosted a Washington, DC forum on “Trademarks and New gTLDs”? The calendar says that it was, but intervening events make the discussion that took place feel outdated already — given that the one item on which there was clear consensus among almost all event participants (ICANN moving forward with implementation of Uniform Rapid Suspension (URS)) appears to be launching, while ICANN’s new CEO subsequently sent a letter to Congress throwing cold water on two key items in the brand community’s wish list.

The focus of the event was supposed to be MIT’s High At-Risk Marks (HARM) proposal, which envisioned a circumscribed set of global, non-generic word trademarks receiving a higher level of required rights protection in new gTLDs. While we had strong concerns about some aspects of the HARM trial balloon – especially the notion that a URS brought against a HARM-listed mark would bring automatic domain suspension if the registrant did not pay a response fee within 48 hours – we nonetheless commend MIT for putting a well-reasoned and circumscribed proposal out for consideration. But the day’s discussion ranged far beyond HARM, especially after brand representatives at the event made clear that its requirements were too restrictive for their taste. This led MIT CTO (and ICANN Vice Chair) Bruce Tonkin to remark post-event, “There doesn’t seem to be enough support for line-drawing.” So HARM, R.I.P., we hardly knew you.

Mr. Tonkin kicked off the event with remarks that the Applicant Guidebook (AG) contained a “minimum set of protections” and that “now is the time to review the mechanisms in light of the TLDs applied for”. Most of the panelists chosen for the event represented brand interests and made predictable arguments for significant expansion of the breadth of listings in the Trademark Clearinghouse (TMC) and the length of its operation, as well as for converting URS from a limited supplement to the existing UDRP to a full-bore substitute, at a much cheaper price for complainants at the expense of cheapening registrant rights.

But some of the comments did surprise us, such as that of Dan Jaffe of the Association of National Advertisers (ANA), a group that had hoped to delay the acceptance of new gTLD applications. Mr. Jaffe declared that “there is no URS at the present time”, which is certainly news to us as well as everyone else in the ICANN community who had debated its contours at extended length. We were also taken aback by Andrew Abrams of Google, who gave an interesting presentation on the various business models contained within its 98 gTLD applications – but them went on to endorse changing the URS by lowering its burden of proof to the same as a UDRP, and to imposing a
“loser pays” rule on the registrant of even a single domain at issue. When the time came for audience comment ICA pointed out that this was a rather confounding endorsement from Google, which had helped lead the fight against the SOPA legislation for the exact reason that it would subject domains to suspension aka ”censorship” based upon allegations of IP violations but absent adequate due process for registrants. Our post-event conversation with Mr. Abrams indicated that Google may reexamine its URS position.

One panelist who stood out from the crowd was Jon Nevett of leading gTLD applicant Donuts, who made a strong argument that the AG should be considered closed and that any new rights protection mechanisms (RPMs) should only be considered in the context of a policy development process (PDP) applicable to all gTLDs. ICA, for its part, has long been on the record favoring initiation of a PDP for procedural UDRP reform, but it was pressure from brand interests that have deferred its start until at least mid-2015. Mr. Nevett pointed out that Donuts has additional rights protections baked into its applications, such as a Domain Protected Marks List (DPML), and made the case for allowing such experimentation by applicant groups to test the efficacy of such measures before even thinking about requiring them from all.

When the discussion was opened to the audience, ICA noted that the existing RPMs came out of a two year ICANN community debate and were unanimously endorsed by the GNSO Council and the ICANN Board, so they shouldn’t be casually tinkered with – while not rejecting all proposals out of hand, we think there has to be a mighty high bar for any alterations.

As for the major brand rationale for performing RPM surgery – that there were 1400 unique gTLDs being applied for – we pointed out that by the time the Board approved the existing measures there was an expectation of at least 500-1,000 applications, and that the existing RPMs do scale for whatever number of new gTLDs come into being. We also made clear that since the URS had been adopted on the basis that it was to be a limited supplement to the UDRP, we’d strongly oppose any bait-and-switch attempt to convert it into a cut-rate UDRP substitute.

From other comments, it was also clear that many applicants, registries, and registrars were very concerned by any proposed alteration of the TMC warning system that would result in an inordinate number of false positives. The trademark for insurance company ING came in for several mentions, since any TMC registration warning system triggered by the multiple words containing such a trademark – such as domaining – could scare off potential registrants in droves.

As noted, the one item on which all parties seemed to agree was that ICANN was way overdue on URS implementation. Perhaps not coincidentally, the very next day an ICANN e-mail properly delegated control of URS implementation to the GNSO Council (see http://internetcommerce.org/URS_Implementation), with this to be a major discussion item at the upcoming Toronto meeting.

But other RPM expansions touted by brand owners at the HARM event got the cold shoulder in a letter sent last week by new ICANN CEO Fadi Chéhade to Congressional leaders (letter available at http://www.icann.org/en/news/correspondence/chehade-to-leahy-et-al-19sep12-en).

In regard to possible extension of the TMC-related claims service requirement beyond 60 days, his letter stated:

There is nothing precluding registries from electing to continue to offer the trademark claims service beyond the required 60-day period; indeed the Applicant Guidebook incentivizes registries to provide rights protections that exceed minimum requirements….For the first round of new gTLDs, ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service. The 60-day period was reached through a multi-year, extensive process within the ICANN community. One reason for this is that there are existing IP Watch services that address this needs. Those community members that designed the Trademark Claims Service were cognizant of existing protections and sought to fill gap, not replace existing services and business models. (Emphasis added)

And, on another key RPM expansion being pushed by brand owners – going beyond exact matches of trademarks for TMC purposes — he had this to say:

It is important to note that the Trademark Clearinghouse is intended as a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights. The principle that  rights protections “should protect the existing rights, but neither expand those rights nor create additional legal rights by trademark law”  was key to the work of the Implementation Recommendation Team…Though ICANN cannot mandate that the Trademark Clearinghouse provide notices beyond those required in accordance with the Registry Agreement, there is nothing to prevent the Trademark Clearinghouse or others from offering additional services that would, for example, give notice regarding various forms of a trademark. (Emphasis added)

So what is the way forward in the wake of the HARM discussion and these subsequent ICANN actions? In his opening remarks, Mr. Tonkin outlined three potential routes:

  1. 1.    “Best practices” implemented voluntarily by new gTLD applicants. — This already exists in proposals from Donuts, Uniregistry, and other applicants and requires nothing from ICANN except encouragement. Registrants are free to consider whether they wish to be subject to such additional measures before acquiring a domain at any new gTLD.
  2. 2.     “Formal advice” to the ICANN Board from various ICANN constituencies, stakeholder groups, houses, and councils. – In our view, advice is fine but the GNSO Council, as the ICANN entity responsible for gTLD policy, must play a central and critical role lest we see more lobbying of the Governmental Advisory Committee (GAC) by brand interests designed to circumvent the Council, with subsequent political pressure on the ICANN Board such as that which has already resulted in some whittling down in registrants’ procedural rights.
  3. 3.    A formal PDP, the results of which would be mandatory for all gTLDs. – As Mr. Tonkin noted, this has the strongest impact but also takes the longest time. And it’s hard to envision a PDP that would consider new RPMs for presently nonexistent gTLDs as well as for those with tens of millions of domain registrations, such as .com, that could be completed prior to the expected early 2014 launch of new gTLDs.

So that’s where things stand today, but clearly more surprises could be in store in the weeks leading up to the Toronto meeting.

As ICA prepares to fully participate in that Canadian forum, our number one priority will be, “First, do no harm – to registrant rights.”

This post by Philip Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/Do_No_HARM

URS Implementation Finally to Commence Under GNSO Direction by Philip Corwin, Internet Commerce Association

Philip Corwin imageFor more than a year ICA has been asking ICANN when it will commence with the task of implementing the Uniform Rapid Suspension (URS) policy for the new gTLD program as it currently stands in the Applicant Guidebook (AG). The URS is a required rights protection mechanism (RPM) that must be in place before any new gTLDs can open, and the current model balances trademark holder and registrant rights and is the result of a laborious two-year process resulting in recommendations that were unanimously adopted by the GNSO Council and subsequently by the ICANN Board. Each of our inquiries about the commencement of URS implementation have received the same general response of “soon”, but no perceptible progress had been made since the new gTLD program launched in the spring of 2011.

We have just learned that ICANN senior executive Kurt Pritz has sent a publicly available e-mail to GNSO Council Chairman Stephane Van Gelder advising him that URS implementation will finally begin in earnest within a few weeks. That exchange is below, and here are our key take-aways:

  • ICANN continues to assert that the present URS model does “not appear to meet cost requirements”. Yet, so far as know, and our knowledge includes a targeted document disclosure request filed on this and related subjects (see http://internetcommerce.org/WIPO2ICANN_URS_Summits), ICANN has no documented cost analysis proving this assertion and is instead relying on the feedback of the two principal UDRP providers, WIPO and NAF, who have their own separate rationales for making such an assertion. At the conference held yesterday in Washington held to discuss Melbourne IT’s HARM proposal (about which we shall post separately) there was a fairly broad consensus that ICANN should publish an RFP for the URS and solicit bids from a broad range of credible arbitration providers beyond the thin ranks of WIPO and NAF, based on the common sense belief that a URS focused on slam dunk infringement should not require a great deal of expert time or associated cost (if it takes more than 15 minutes to render a decision, it’s not a black-and-white case and belongs in a UDRP proceeding). There was also considerable support for the notion that, if the price target of $300-$500 simply cannot be met, ICANN should consider at least short-term subsidization by using some of the $350 million it has collected in new gTLD application fees. ICA believes it is premature to “flesh out some of those [alternative] models for possible implementation”, and thereby contemplate significant revisions of URS, until we have market testing of the true cost of implementing the present model. Before there is any consideration of “potential solutions”, let’s determine if there really is a cost problem that needs to be solved.
  • A meeting on URS implementation, possibly in the form of a webinar, will be scheduled for the first week of October. We are unsure who will be invited to speak at the webinar and whether it will include adequate representation of the registrant community, both commercial and non-commercial. Let’s wait and see.
  • A second meeting will be scheduled during the upcoming ICANN meeting in Toronto. We believe it’s is essential that this critical meeting result in a credible path to timely implementation.
  • ICANN has stated that “the meetings we are having are open to all”. This is consistent with the open and transparent approach to URS implementation that ICA has consistently advocated, and we intend to be intimately involved.
  • ICANN understands the key role played by the GNSO Council in developing and approving the present model and “that the GNSO leadership might want to conduct the URS discussions in a certain way”, and is willing to “work in whichever way the GNSO wishes to proceed”. From our viewpoint, this position is an extremely positive development because it respects the key policymaking role that the Council plays for gTLDs, puts the ICANN community as represented by the Council rather than ICANN staff in the driver’s seat on designing and managing the implementation process, and is a far better approach than the “Summit” concept contemplated earlier this year. It also undercuts potential efforts by some brand interests to try to circumvent the Council through direct lobbying of the Governmental Advisory Committee (GAC) and, through it, the ICANN Board.
  • ICANN aims to “seek to meet the cost and timeliness goals for which the URS was designed” and to balance that with a commitment to “seek to ensure that registrants enjoy the protections written into the current model”. Assuring that registrants enjoy the essential due process rights written into the current policy, and that they are not diluted in pursuit of complainant cost reduction, will be ICA’s foremost goal as this discussion ensues.

All in all, these are overdue but overall positive developments. Again, it’s our belief that any substantial alteration of the URS based on cost goals should not even be considered until we have some accurate, market-tested idea of the cost of implementing the current model — and that does not yet exist. Even then, we are wary of reopening this carefully constructed RPM because some of the ideas floating around for reducing cost could substantially reduce registrant rights in new gTLDs and convert the URS from a narrow supplement to the UDRP into a cut-price, rights-gutting alternative to it. That’s an unacceptable bait-and-switch.

But ICANN’s recognition of the central role to be played by the GNSO Council in considering any alteration is positive. It is critically important that whatever is done on URS implementation get off to a sound launch in Toronto, because there is an unusually long half-year gap between it and the next, April 2013 ICANN meeting in Beijing. A botched process could lead to further pushback in the launch date for new gTLDs, while one that results in evisceration of registrant rights could fatally undermine their prospects for success.

The e-mail exchange follows:

From:owner-council@gnso.icann.org[mailto:owner-council@gnso.icann.org] On Behalf Of Stéphane Van Gelder
Sent: Wednesday, September 19, 2012 5:08 AM
To: Kurt Pritz
Cc: GNSO Council List
Subject: [council] Re: Uniform Rapid Suspension Discussion

Thanks Kurt. I am copying the Council for their information.

The Council will no doubt follow-up on this in the near future.

Best,

Stéphane Van Gelder
Directeur Général / General manager
INDOM NetNames France

—————-
Registry Relations and Strategy Director

NetNames

T: +33 (0)1 48 01 83 51
F: +33 (0)1 48 01 83 61

Le 18 sept. 2012 à 22:09, Kurt Pritz a écrit :


Hi Stephane:

I am writing to let you know that we are planning a set of discussions on Uniform Rapid Suspension (URS) implementation in the near future and seek the input of GNSO leadership. As you know, a meeting in Prague we indicated that URS, as currently designed, did not appear to meet cost requirements. In Prague, contributors in the meeting described briefly several potential solutions. In the next set of meetings, we want to flesh out some of those models for possible implementation. We want to have one meeting in about two weeks (probably a webinar type of format with a possibility for some face-to-face interaction), and then we have a meeting in Toronto is scheduled. The first meeting will be announced shortly.

I am writing you because some of the proposed solutions, while feasible, do not match up with the specific conclusions of the STI team when it did its work. We recognize the role of the GNSO in those discussions. While the meetings we are having are open to all, we understand that the GNSO leadership might want to conduct the URS discussions in a certain way. Having the twin goals of developing a solution in time for use by new gTLDs and ensuring that all those interested can participate in the discussion, we can work in whichever way the GNSO wishes to proceed. (Of course, we also seek to meet the cost and timeliness goals for which the URS was designed and also seek to ensure that registrants enjoy the protections written into the current model by the IRT and STI.)The output of the next meetings can inform GNSO discussion or we can carry on in a way acceptable to the GNSO.

I am also copying Olivier as ALAC members participated in the STI.

I hope you find this helpful. Contact me anytime with questions.

Regards,

Kurt

This article by the Internet Commerce Association’s Philip Corwin was sourced with permission from:
internetcommerce.org/URS_Implementation

DOJ/ICE Domain Seizures Questioned by U.S. House Members by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoOn August 30th three members of the U.S. House of Representatives sent a letter to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano raising questions about the legality and methodology of the Operations In Our Sites domain seizure program jointly launched by those Cabinet Departments in November 2010. The letter (available at lofgren.house.gov/images/Letter_to_AG_Holder_083012.pdf ) was signed by Representatives Zoe Lofgren (D-CA), Jason Chaffetz (R-UT), and Jared Polis (D-CO), all of whom were leaders in opposing the SOPA domain suspension bill that crashed and burned in the House early this year.

Their bipartisan message about the need for adequate due process and transparency  is one with which ICA wholeheartedly agrees, regardless of the process used for domain seizure or suspension and whether the allegations against a website involve violations of copyright or trademark law:

Our concern centers on your Department’s methods, and the process given, when seizing the domain names of websites whose actions and contents are presumed to be lawful, protected speech. Without conceding whether your Department has the legal authority to seize these domains under these circumstances, it needs to be given meaningful due process that comports with the U.S. Constitution and U.S. law. To do otherwise risk unjustly suppressing lawful free speech and devastating legitimate businesses that rely on the seized websites. Complaints from several websites, in addition to press accounts, indicate that In Our Sites has resulted in the seizure of domains without sufficient due process and transparency, based on links and content that appear to have been lawfully provided to the sites. (Emphasis added)

The letter cites the shuttering of the Dajaz1 website, which was suspended for more than one year until it was ultimately determined that there was a lack of probable cause for the seizure. The letter also contends that ICE prevented the website operator from obtaining judicial review by arranging for secret, ex parte extensions while copyright holders, including the Recording Industry Association of America (RIAA), were granted additional time to review website content. The letter also alleges that similar procedural problems have arisen in other seizure cases, and that “the effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures”.

The letter concludes by posing seven separate questions regarding various aspects of the In Our Sites program — including the targeting methodologies, due diligence regarding fair use and DMCA safe harbors, and avenues available to website operators wishing to restore operations. We hope the Departments respond to those questions expeditiously and forthrightly, as the free speech and economic freedom issues raised by widespread U.S. website seizures are important matters for all Netizens.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/DOJ_ICE_Domain_Seizures_Questioned

Melbourne IT Plans to Bring HARM to DC by Philip Corwin

Philip Corwin imageMelbourne IT’s involvement with ICANN dates back to 1999, when ICANN awarded it one of the first five registrar licenses to compete with the then-monopoly of Network Solutions Inc. in registering domain names under .com, .net and .org. It remains in the top tier of Internet registrars today, with 4.5 million domains under management. It is also involved with several .brand new gTLD applications, including those of Singapore-based StarHub and the Australian Football League, for which it provided domain strategy and application consulting services while ARI Registry Services(a division of AusRegistry, the .AU ccTLD registry operator) will provide technical backend services.

Last, but certainly not least, Melbourne IT’s Chief Strategy Officer, Bruce Tonkin, who formerly Chaired ICANN’s GNSO Council (the policy arbiter for gTLDs), was elevated to the position of Vice Chair of ICANN’s Board of Directors in June 2011. (We note for the record that Dr. Tonkin recused himself from voting on all matters involving new gTLDs even before MIT’s involvement with the above-referenced .brand applications, and due to potential conflicts does not serve on ICANN’s recently established New gTLD Program Committee.)

All of which adds up to say that we take any policy proposal coming from Melbourne IT very seriously – especially its new suggestions for further strengthening of the rights protection mechanisms (RPMs) for new gTLDs. On August 16th, MIT “released a Community Discussion Paper, entitled ‘Minimizing HARM‘ which outlines a policy alternative whereby organizations with ‘High At-Risk Marks’ should be afforded greater protections at the second level (ie. names to the left of the dot), which ICANN could adopt to boost consumer protection.” (See www.melbourneit.info/news-centre/Releases/Melbourne-IT-Urges-ICANN-to-Consider-Stricter-Protections-to-Minimize-Consumer-and-Business-Harm-in-new-gTLDs for the related press release.) MIT is promoting its HARM proposal fairly aggressively – an open forum will be held to discuss it in Washington, DC on the afternoon of Tuesday, September 18th  which any interested party can attend, although MIT requests that an RSVP be sent to RSVP@melbourneit.com by September 13th; MIT also plans to simultaneously webcast the discussion. And MIT also intends to promote further discussion of the HARM proposal at the upcoming Toronto ICANN meeting scheduled in October.

ICA has significant concerns about any reopening of the debate on RPMs for new gTLDs, as the existing ones – the Trademark Clearinghouse (TMC) and Uniform Rapid Suspension (URS) – were only agreed upon after two years of contentious debate within the ICANN community, and ICANN’s Board has since succumbed twice to pressure from the heavily-lobbied Governmental Advisory Committee (GAC) and further scaled back certain registrant protections in the URS. Also, while we accept at face value MIT’s contention that the HARM proposal is motivated by a perception among some organizations that they will need to engage in substantial defensive registrations at the 1400 unique new gTLDs which may be added to the root over the next few years, there are many trademark interests which have repeatedly sought any opening to turn the URS into a cheap substitute for the UDRP by lowering the required burden of proof and adding a domain transfer option, while WIPO has been unremittingly hostile to the URS as presently constituted and would prefer an alternative that looks to us like the DNS version of SOPA. We also can’t help but note that that the very same trademark interests who keep pushing for additional protections at new gTLDs are the same ones who have blocked any near-term consideration of UDRP reform — despite the fact that the UDRP is the only major ICANN policy that has never been reviewed, and the mind-boggling fact that ICANN accredits UDRP providers to cancel or transfer domains without any contractual controls or obligations.

Nevertheless, now that the initial launch date of the first new gTLDs has been pushed back to at least the first quarter of 2014, this reopened debate was probably inevitable and perhaps it is best that it be focused on a relatively restrained proposal such as that proffered by MIT. The full details can be found in the Discussion Paper, but the gist of the HARM proposal is:

  • ·         HARM designation would be available to established global trademarks that match the rights holder’s second level domain name, and which are distinctive and do not match dictionary words in any of the six official UN languages.
  • ·         The rights holder must demonstrate that the trademark has been subject to misleading and deceptive online conduct as demonstrated by multiple successful UDRPs, court actions, or similar evidence.
  • ·         A trademark meeting these criteria could, for an additional one-time fee of $1-2,000, receives certain additional protections.

MIT estimates that a few thousand global marks would meet the screening criteria. However, we assume that many trademark interests will use the HARM proposal as a jumping-off point and seek to expand the range of eligible marks and associated protections while reducing the registration cost.

That is why it is critical that consideration of any new RPM proposal such as HARM go through ICANN’s standard Policy Development Process (PDP) with full involvement of the GNSO Council. This goes far beyond mere tweaks or implementation details of existing RPMs, and should only be considered by the Board if there is strong community consensus. And there is plenty of time for such formal review, given that we are at least sixteen months away from the launch of the first new gTLD.

We also have strong concerns in particular about one of the additional proposed protections, which is that a HARM-related domain at issue in a URS be suspended within 48 hours if the registrant has not paid a response fee within that period. That is an extremely short turnaround time, especially given that complainants control the timing of filings and can choose holidays and other periods when registrant responses are more likely to be delayed. ICANN’s Board has already bowed to GAC pressure and shortened the standard URS response time by a week, and we would oppose any further truncation for disputes that only involve allegations of trademark infringement absent strong evidence of ongoing criminal activities such as phishing, malware distribution, or payment system fraud.

Finally, we have pointed out to MIT that the discussion panel listed for the DC event does not contain any identifiable proponents of registrant rights, and they have advised us that additional participants will be added.

ICA intends to attend the DC HARM forum and to remain actively engaged on this and all other proposals for alterations of new gTLD RPMs. Our top priority will be to assure that nothing in HARM does any material harm to the due process rights of registrants at new gTLDs, and that the collective weight of adopted RPMs does not so discourage registrations at new gTLDs that their potential for competition and innovation is substantially undermined.

This article by Philip Corwin of the Internet Commerce Association was sourced with permission from:
internetcommerce.org/MIT_HARM

ICANN Posts Tentative Roadmap for the Processing of New gTLD Applications by Philip Corwin

by Philip Corwin, Internet Commerce Association

Philip Corwin imageICANN has posted a “tentative roadmap” for the future direction of the new gTLD program. It is available at newgtlds.icann.org/en/announcements-and-media/announcement-17aug12-en .

This August 17th notice explains that, now that pre-evaluation “batching” has been ruled out, the technical limit of adding a maximum of 1,000 domains per year will require the selection of a pre-delegation “metering” process. The notice provides six separate examples of potential metering techniques but goes on to state that no decision has yet been made, adding:

Proposed solutions for Metering are being considered in coordination with the ICANN community. Solutions will take some time to implement, and the timeline is ultimately dependent on developmental work as well as the consultation process…at this stage it is only possible to provide a tentative roadmap for the processing of new gTLD applications. If community support emerges for a single Metering solution, the Board might be able to approve an approach after a single round of public comment. Otherwise, an additional round of community consultation might be necessary to develop community consensus.

The notice includes a detailed but nonetheless tentative schedule. This tentative schedule projects that Initial Evaluation results of all new gTLD applications will be published in June 2013 and that the first delegation request will take place two months later, in August. Given the various activities that new registries will need to engage in prior to opening registrations to the general public, the first such registrations will likely occur as previously projected by ICANN in early 2014.

The notice holds out some hope that the process can be accelerated, stating:

The current Evaluation phase is estimated at eleven months. This has been significantly accelerated from previously posted timelines. Additional acceleration is being sought and will be reported if and when new timelines are agreed.

However, the notice also indicates that both the schedule and the ultimate choice of metering solution could be negatively affected if the community is unable to quickly coalesce around a consensus approach to metering:

A solution for the Metering technique must be implemented before the end of the Evaluation phase on May 15, 2013. There is, therefore, some “slack” in the schedule, but it would be preferable not to wait until the last moment, as some solutions may take longer than others to implement and may no longer be viable as time passes.

While not mentioned in the notice, only those applications for new gTLD “strings” that face no issues will be added to the root at the beginning of the delegation phase. So, for example, applications for strings that attract GAC warnings or objections, that are subject to other types of objections, that face string similarity evaluations, or that have been applied for by multiple applicants and may be headed to auction, will face additional delays and would be delegated to the root later in 2014 or even 2015 or beyond.

There is also the possibility that controversial subjects may be reopened and subject to extensive debate. For example, Melbourne IT has just proposed extensive policy changes to the two required Rights Protection Mechanisms – the Trademark Clearinghouse and Uniform Rapid Suspension – in regard to so-called High At-Risk Trademarks. If these divisive subjects are reopened that could well delay the launch of the first new gTLDs for an indeterminate period. (See www.melbourneit.info/news-centre/Releases/Melbourne-IT-Urges-ICANN-to-Consider-Stricter-Protections-to-Minimize-Consumer-and-Business-Harm-in-new-gTLDs)

Finally, litigation retarding particular strings or the entire new gTLD program could also be filed and add to delay. Last week’s U.S. District Court ruling in California reaffirming that ICANN is subject to the antitrust laws, particularly in regard to defensive registrations, could well be cited by a potential litigant.

Summing up, all that can be said with certainty about the schedule for new gTLDs is that ICANN has provided a roadmap subject to revision, and is seeking to expedite matters while gathering community input on a consensus metering mechanism – but that the actual schedule remains uncertain and subject to a variety of factors that are beyond ICANN’s control.

This article by the Internet Commerce Association’s Philip Corwin was sourced with permission from:
internetcommerce.org/Tentative_Roadmap