The second day of public consultation between ICANN’s Board of Directors and its Governmental Advisory Committee (GAC) ended on Thursday, March 17, 2011 with scant narrowing of remaining differences on multiple issues in the proposed Applicant Guidebook (AG) for new gTLDs – but with the revelation that opaque exchanges of views on trademark issues have taken place in apparent disregard for ICANN’s professed commitment to operational transparency.
As opposed to the Tuesday session – which ended early in the day, with both parties retreating to separate, closed rooms to confer among themselves – the Board and GAC at least remained engaged and in public view for most of the day. But the morning session indicated that little dialogue had taken place to even determine the procedures that would best assure productive exchanges. And much of the afternoon session was dedicated to discussing the “early warning system” for “sensitive strings” demanded by governments, with some better understanding established but no final resolution on that issue.
Of course, as regards the trademark rights protection issues that are of greatest concern to ICA and its members, our publicly articulated position is that any further narrowing of differences would undermine the balanced measures hammered out by the STI-RT more than a year ago, and that the Board should stand fast and defend the results of that consensus policy process. In particular, any additional concessions on Uniform Rapid Suspension (URS) would deter most informed registrants from choosing domains in new gTLDs, especially given the potential for abusive domain hijacking if the Board sticks with its decision to provide complainants with first option to acquire a suspended domain.
To the extent that trademark issues were discussed, we learned that there have been extensive written exchanges between the Board and GAC that have yet to be shared with the public. While this nondisclosure apparently resulted from uncertainty on the part of the Board as to whether the GAC had authorized such public dissemination, it nonetheless raises questions about the timeliness of transparency in this ongoing process. Besides, the default position should be in favor of full public disclosure whether the GAC consents or not.
Specifically, it was revealed that ICANN had dispatched fifteen separate questions on trademark issues to the GAC shortly after the close of their Brussels consultation, and that the GAC had replied in detail to fourteen of them. These contentious trademark issues were the subject of considerable public comment at new gTLD public forums held on Monday and Wednesday of this week, and it is disconcerting that all those who spoke, regardless of their positions, were deprived of critical information that was known to the Board and GAC. We have been advised by an ICANN Board member who is fully engaged on trademark protection issues that this exchange of questions and answers will be made publicly available soon — but releasing them prior to the start of the San Francisco meeting would have instilled confidence in the transparency of the AG development process while increasing the productivity and relevance of those new gTLD public forums.
Meanwhile, the GAC lead on rights protection issues, Mark Carvell of the UK, disclosed that since Brussels the GAC had engaged in additional consultations with “national IP policy experts”, but did not disclose who those “experts” are. This undisclosed information again raises the concern, first articulated by ICA in its letter of March 3rd (see https://www.internetcommerce.org/ICA_Suggests_Better_Alternative_to_URS_Domain_Transfer) that “Allowing the participation of unidentified third party “IP experts” with only one perspective…would recall the most controversial and troubling aspects of the IRT – inadequate diversity of views in the formulation and proposing of rights protection “solutions”, and lack of adequate transparency.” We suspect that the “experts” advising the GAC are sharing the narrow prospective of large corporate brand owners and depriving the GAC of a broader view conducive to fully informed decision making. Of course, if we are wrong, the GAC can readily dispel our suspicions by releasing the names of the “experts” it has been consulting.
Given that the Board-GAC discussions this week did not, by our count, result in a narrowing of differences, much less resolution, of any of the many major AG issues that remain in disagreement, the question arises as to what the process will be going forward and when it might ever come to a conclusion. GAC Chair Heather Dryden indicated on Thursday that the GAC wanted to engage in “continued good faith consultations” in the future. But at the end of the day Board Chairman Peter Dengate Thrush stated that the Board would consider the results of the four combined days of discussion in Brussels and San Francisco, the state of play on the GAC “scorecard”, and the public comment received in San Francisco – and only then decide what the next steps will be.
As to the next steps on the trademark issues, that scenario is even muddier. The ICANN Board is awaiting a full written response from the GAC on these issues that goes beyond the still-unreleased fourteen answers, while the GAC is awaiting an indication from the Board on how those answers may have altered Board positions on the many issues still in disagreement. Board member Rita Rodin, their lead on the IP discussions, further stated that the Board wants to share the GAC’s answers with the public and get further community feedback before moving forward. ICA will of course fully review that exchange and weigh in appropriately.
Summing up, it seems that we are still a long way from closure, that the trademark issues remain very much in play, and that approval of a final new gTLD AG by the June 2011 meeting in Singapore is by no means assured. For its part, ICA will remain fully engaged for as long as this process goes on and whatever further twists it may take — with a strong commitment to assuring that the final trademark rules protect existing trademark rights but do not create new ones, and that they maintain a reasonable balance those existing trademark rights and the equally important rights of domain registrants.