We recently noted (see https://www.internetcommerce.org/ICANN_Releases_DAGv3) that the third version of the Draft Applicant Guidebook (DAG) for new gTLDs did not contain the Uniform Rapid Suspension (URS) policy and several other trademark protection mechanisms proposed by the Implementation Recommendation Team (IRT) but instead left the final decision on these matters to ICANN’s Board, to be made after consultation with the Generic Names Supporting organization (GNSO), its internal policy-making body. That process has now been initiated.
In an October 12th letter signed by Board Chairman Peter Dengate Thrush and President and CEO Rod Beckstrom the GNSO Council is asked to provide its view “on whether certain rights protection mechanisms for second level strings recommended by the staff based on public input are consistent with the GNSO’s proposed policy on the introduction of new gTLDs and are the appropriate and effective option for achieving the GNSO’s stated principles and objectives”.
The GNSO is given two months from the publication date of the letter – until December 14, 2009 – to comply with the Board request. The GNSO will be hard pressed to meet this deadline, given the other major issues it has before it – including its own ongoing internal reorganization and consolidation. The letter recognizes this challenge but makes clear that delay is not an option: “The Board appreciates that developing a consensus in such a short time period will be challenging, and may cause a delay in other important GNSO work…If the GNSO Council is unable to send the report by this date, the Board plans to consider the Staff recommendations, given the available information.”
The letter also makes clear that some version of both the Intellectual Property Clearinghouse (IPC) and URS will likely make their way into the final version of the Applicant Guidebook. Referring to the recommendations of the IRT, the letter states: “The Board …expects to incorporate some new rights protection mechanisms in the new gTLD program, based on its proposed solutions…ICANN Staff have drafted a set of implementation recommendations related to intellectual property protection for the new gTLD program.”(Note: These ICANN staff recommendations can be found at http://www.icann.org/en/topics/new-gtlds/gnso-consultations-reports-en.htm.)
The GNSO Council is also told that it is being presented with a binary choice:
The GNSO Council by consensus can either:
a) approve the staff model …which is an assimilation of the IRT work and Board concerns), or
b) propose an alternative that is equivalent or more effective and implementable.
If the GNSO Council does not reach consensus, the Board will move forward with consideration of Trademark Clearinghouse models (whether and, if so, how the Clearinghouse would be included in the new gTLD implementation) and other rights protection mechanisms, balancing proposals and soliciting public comment.
We note that the “equivalent or more effective and implementable” standard being asked of the GNSO Council does not exactly invite it to declare that the IPC or URS go too far in distorting the balance between the rights of complainants and registrants.
The letter then asks the GNSO Council to address eight separate questions regarding the IPC, including one that raises the specter (which we have long predicted) that rights protections adopted for new gTLDs may quickly find their way into .com and other incumbent gTLDs: “4. Should the Clearinghouse requirements (including the choice of IP Claims or Sunrise processes) be applied to existing registries?”(Emphasis added.)
Oddly, given the much greater controversy raised by the URS proposal as well as the significantly more detailed comments it has received to date, the letter does not pose a similar series of questions in regard to it but presents the GNSO Council with another stark binary choice:
Uniform Rapid Suspension (URS)
The GNSO Council by consensus can either:
a) approve the staff assimilation of the IRT work…or
b) propose something better that can be implemented.
If the GNSO Council does not reach consensus, the Board will move forward with consideration of URS models (whether and, if so, how the URS would be included in the new gTLD implementation) and other rights protection mechanisms, balancing proposals and soliciting public comment. (Emphasis added.)
The vague and amorphous “something better” standard of course raises the question of better from whose viewpoint? A URS that is regarded as “better” by trademark owners due to extreme low cost of filing, high probability of prevailing, and substantial displacement of the UDRP will be regarded as “worser” by registrants. As for the “can be implemented” standard we view that as largely meaningless, given that any final version of the URS can likely be implemented at a mechanical/procedural level regardless of its substantive merits or demerits.
Further, while this portion of the letter seems to promise that the Board will have its own open process that solicits further public comment after December 14th even if the GNSO is unable to reach consensus, another sentence of the letter is extremely worrisome in its implication that the Board may simply adopt the staff recommendations without further public input or significant alteration: “The Board expects that the staff recommendations will be adopted in the implementation of new gTLDs, unless the GNSO Council can reach a consensus on an alternative approach for the Board to consider that would as effectively accomplish this policy recommendation.”(Emphasis added.)
Finally, the letter indicates that the Board recognizes that achieving consensus recommendations may be difficult (especially given the likely resistance of the Intellectual Property Constituency to any modification of the IPC and URS proposals): “The Council’s response should be in the form of a report to the Board signed or endorsed by the GNSO’s constituencies or stakeholder groups, as applicable. If consensus is not reached, it is expected that the Council would provide majority and minority reports or, alternatively, plurality and minority reports.”
We will be arriving in Seoul early enough to attend the GNSO meetings that take place over the weekend preceding the official opening of the ICANN meeting on October 26th and will be able to report on the GNSO’s plans for responding to this request.
Under the most optimistic scenario from the perspective of domainers the GNSO will submit a consensus report, or failing that majority or plurality report proposing reasonable alternatives to the IPC and URS by December 14th, and the Board will then solicit further public input before making a final decision sometime in the first quarter of 2010 (there is even a chance that the final Board decision will be deferred until the first ICANN meeting of 2010, scheduled to take place in Nairobi, Kenya from March 7-12, 2010); this would still allow ICANN to meet its current timetable of accepting applications for new gTLDs in the first half of next year.
Under the most pessimistic scenario for domainers, the GNSO will be unable to produce a report, or the report will be irretrievably tainted by controversy and dissent, and the ICANN Board will simply adopt staff recommendations in late December or early 2010.
The stakes remain huge for the domain investment community, as any rights protections mechanisms adopted for new gTLDs will likely be transposed in the near term onto incumbent gTLDs, including .com. ICA plans to stay proactively involved in this process on behalf of its members.