[gtld-council] IPC Comments on New gTLDs - Draft Final Report - Introduction of New Generic Top-Level Domains and ICANN Staff Discussion Report

["Rosette, Kristina" <krosette@xxxxxxx>]

All,

Please find set forth below the IPC Comments on New gTLDs - Draft Final
Report - Introduction of New Generic Top-Level Domains and ICANN Staff
Discussion Report.

Sincerely yours,
Kristina (Rosette)
GNSO Council, IPC, North America

-*-

The IPC is pleased to provide these preliminary reactions to the revised
draft final report on introduction of new gTLDs, see
http://www.gnso.icann.org/drafts/GNSO-PDP-Dec05-FR-14Nov06.pdf, as well
as to the accompanying ICANN Staff Discussion Points, see
http://www.gnso.icann.org/drafts/GNSO-PDP-Dec05-StaffMemo-14Nov06.pdf.
We reserve the right to supplement or modify these comments at a later
time.  

Upon reviewing the initial recommendations, the IPC identified four key
areas of concern and submitted these to ICANN staff on October 20, 2006.
We believe that these concerns remain largely applicable to the revised
draft final report as well. (The October 20 submission is at
http://www.ipconstituency.org/PDFs/IPC%20Initial%20Comments%20on%20GNSO%
20Recomm%20re%20Intro%20of%20New%20gTLDs.PDF  and we incorporate it by
reference.)

1.      In our October submission we stated:  "First, the selection
criteria must include an inquiry into the level of support for the
string and in particular, whether the string is likely to be primarily a
magnet for defensive registrations."  The revised recommendations do not
squarely address this issue. 
There really are two related issues here.  First, when a proposed new
string is clearly targeted at a particular industry or economic sector,
the revised draft final report (like the earlier recommendations) lacks
any requirement to consider whether there is support or demand for the
string from the relevant industry or economic sector, except in the
circumstance in which two or more applicants seek an identical string.
Consider, for example, the possibility of a .bank TLD.  Although ICANN's
CEO has publicly "invite[d] the financial sector to make its case" for
such a string,(see
http://technology.guardian.co.uk/weekly/story/0,,1965235,00.html) ,
under the revised draft final report, there is no provision for
inquiring  of a sole applicant for .bank whether there is any support
for it among banks, other financial institutions, etc.  More than one
speaker at the Sao Paulo public forum identified this as a concern. 
The second problem - admittedly a more difficult one to tackle - follows
from the rejection of the proposal (supported by IPC) that new TLDs be
limited to sponsored TLDs. If a proposed new TLD is not targeted to any
particular defined sector, ICANN should be in a position to inquire
whether it will depend for its financial viability on defensive
registrations, and if so to withhold approval of it.  The current
proposal denies ICANN this capability.  The community is not well served
by this result.   
2.      "Second, ICANN must (rather than "may") establish a new dispute
resolution process, using independent arbitrators, where existing
trademark holders could challenge an ICANN decision regarding a string."
In the draft revised final report, item 2.5.3.2 still makes it optional
for ICANN to establish such a process.  IPC still believes there must be
some mechanism to challenge the eligibility for consideration of strings
that are confusingly similar to trademarks.  We are prepared to work on
developing more detailed criteria that must be satisfied for a
successful challenge, and procedures for such a mechanism (and reiterate
that some deviations from the UDRP model will be required, notably that
proof of bad faith should not be required for a successful challenge).
We also note (with regard to item 2.5.2.1) that, regardless of how
existing TLD strings are treated, proposed new TLD strings which are
phonetically confusingly similar to trademarks should be subject to
challenge under the new dispute resolution procedure.   

3.      "Third, the contractual conditions must include pre-registration
mechanisms to prevent conflict with trademark owners."  This is not
included in the revised draft final report.  Some preventative mechanism
should be required, especially if new strings are not to be excluded on
the grounds that they are likely to attract cybersquatting rather than
more constructive activities.  Of course, to the extent that a new TLD
is truly a sponsored TLD in which the sponsor or its agent undertakes a
gatekeeping or validation function before accepting a registration, the
need for a separate dedicated preventative mechanism is correspondingly
lessened. 

4.      "Fourth, the recommendations must mandate the maintenance of a
robust database, publicly accessible in real-time and without cost to
those querying it, of contact details of registrants in new TLDs."  The
revised draft final report remains silent on this point, though IPC
would note that the ICANN board is publicly committed to enforcement of
such a policy in its Affirmation of Responsibilities adopted September
25, 2006.  

Finally IPC offers comments on a few of the issues raised in the "ICANN
Staff Discussion Points" document. 

7.6: The introduction of a grants scheme to assist applicants would add
considerable complexity to the new gTLD consideration process, would
significantly burden already taxed ICANN staff resources, and would also
undercut the effort to impose meaningful financial criteria on new TLD
applicants.  IPC believes ICANN should not pursue such a scheme at this
time.  

7.8:  IPC supports a requirement for public posting of string
applications in internationally recognized publications.  

7.11:  IPC supports limiting the number of applications in the next
cycle to a limited and pre-determined number, with an eye toward
expanding that number in future rounds if the new mechanisms prove to be
efficient and effective.  

7.13:  IPC believes the IDN applications should  be considered in the
next round of new gTLD designations.  This will give everyone an
incentive to work together to resolve technical and policy issues
surrounding IDNs in a prompt fashion.  In this regard, it may be
appropriate to limit IDN applications in this round to those that are
not visually, phonetically or semantically similar to existing ASCII TLD
strings.