On Sunday, October 23rd ICANN senior staffer Kurt Pritz made a lengthy presentation on “New gTLD Program Activities” to the GNSO Council meeting in Dakar. Narrating a slide presentation, and answering questions, Pritz addressed many of the complex implementation details of the program, which kicks off in mid-January (slide presentation available at http://dakar42.icann.org/meetings/dakar2011/presentation-new-gtld-program-activities-23oct11-en.pdf).
The presentation brought various aspects of the program into sharper focus:
- The only changes made in the final Applicant Guidebook (AG) were those directed by the Board. These included a reduction in the threshold for the “loser pays” aspect of Uniform Rapid Suspension (URS) to 15 or more names found to be clearly abusive in a combined action against the same registrant. While we are not altogether troubled by the notion that a blatant serial cybersquatter should pay the cost of the suspension action, we can’t help but take note that the $300 URS fee promised to rights holders under GAC pressure would bring the arbitration cost per name down to $20 each in a case targeting 15 domains – which seems grossly inadequate even for the “slam dunk” cases the URS was designed to address (more on this later in the post).
- The rules for the Trademark Clearinghouse (TMCH) are still being fleshed out, with initial applications from potential providers being accepted on November 25. (ICANN’s initial request for Information from potential TMCH service providers can be found at http://www.icann.org/en/announcements/announcement-5-03oct11-en.htm.)
- The rules for URS providers will be fleshed out as potential arbitration entities are engaged, with comments being solicited from the ICANN community regarding its priorities. An initial request for proposals from potential providers is expected to be published in mid-November.
- While the initial application period runs from January 12 through April 12, 2012, an applicant must make an initial reservation no later than March 29 to be considered in the first round.
- Initial evaluation results will be posted on November 12, with delegation to the root of non-contentious applications occurring in late 2012 and early 2013. So just a handful of new gTLDs will be up and running by early 2013 – while hundreds more will likely come into operation by the following year.
- Details are still being worked out for the Joint Applicant Support (JAS) program that will subsidize new gTLD applicants from the developing world. ICANN has set aside $2 million for initial JAS funding, which will reduce the initial application fee for qualified entities by about seventy-five percent, from $185k to $47k, with that subsidy intended to be repaid over time. While ICA empathizes with the desire to bring the benefits of new gTLDs to the developing world, it remains concerned that such cross-subsidization establishes a worrisome precedent. As ICANN has repeatedly stated that the $185k fee has been set to facilitate full cost recovery for developing and administering the new gTLD program, the subsidy is not from “rich” applicants to “poor” ones but is being taken from ICANN’s general funds, the overwhelming bulk of which are derived from registrant application and renewal fees. We question the appropriateness of “taxing” registrants for such efforts, which would be much more appropriately derived from charitable foundations and international development agencies.
- ICANN has not yet decided on a method for “batching” applications into groups of about 500 for the evaluation process – only that the order in which applications are received will not be a selection criteria.
ICA Counsel Philip Corwin asked Mr. Pritz whether ICANN anticipated encountering difficulties in soliciting bids from qualified and credible potential URS providers due to the $300 ceiling set for a single complaint that can cover multiple domains registered by the same entity – insofar as ICA has heard that WIPO and NAF, the two leading UDRP providers, have concluded that such a low fee cannot possibly cover the cost of retaining qualified trademark attorneys much less provider administrative costs. Mr. Pritz responded that, indeed, ICANN anticipated that this would be a problem, especially as additional procedural aspects were being added to the URS, and that pricing will have to be negotiated with potential providers.
ICA believes that both new gTLD registrants and trademark interests have a common cause in developing a URS that is viewed as credible, and that keeping pricing at an artificially low level that precludes participation by qualified providers would be a major error that will put the URS process under a cloud from day one.
ICA will continue to carefully monitor the implementation of URS, TMCH, and other new rights protections to assure that the legitimate due process rights of new gTLD registrants are adequately respected as the program moves forward.
Additional documents related to new gTLD rights protections that have been recently released by ICANN can be found at http://www.icann.org/en/topics/new-gtlds/rights-holders-with-insert-02sep11-en.pdf and http://www.icann.org/en/topics/new-gtlds/trademark-factsheet-insert-02sep11-en.pdf .