Business Constituency (BC) comments on defensive applications -- and defensive registrations -- for new gTLDs
The ICANN Business Constituency (BC) sees much to gain from a well-executed expansion of top-level domains. But we also worry that there is much to lose if this expansion fails to meet ICANN¹s commitment to improve trust and choice among global Internet users. The new gTLD program raises critical concerns that can and should be addressed during implementation. The attached letter defines those concerns and offers specific recommendations to help the new gTLD plan fulfill its promises and avoid predictable problems. The BC believes that failure to address these concerns will put at-risk the multi-stakeholder governance model we so strongly support. One of our recommendations is particularly relevant to the present comment period regarding Defensive Applications in new gTLDs: ICANN must be able to enforce all registry restrictions -- including any commitments made to objecting parties. Perhaps the most important promise ICANN made to governments, businesses and non-profit organizations is to consider objections based on legal rights and for offenses to cultural, religious or national sensibilities. But the BC worries that the planned process won't empower ICANN to deliver on that promise. While ICANN is asking governments and other stakeholders to base their response to proposed strings based on the proposed terms in the application, those terms won't actually be enforceable unless they become part of the formal Registry Agreement. This raises the risk that for some applicants, promised restrictions on registrants or uses of domain names could be ignored after their applications are approved. That would leave ICANN with little leverage to hold TLD operators to the restrictions that were relied upon to satisfy governments and other potential objectors. This loophole should be closed before the first applications are accepted, or ICANN risks breaking a critical promise made to governments and global businesses. The above item and the attached improvements are achievable within the present implementation plan for new gTLDs. We fully understand that the ICANN community, staff and Board have become fatigued with the new gTLD process. But now is not the time to stand back and let the TLD chips fall where they may. Governments and stakeholders who support ICANN¹s role will also hold ICANN to its promises to maximize global benefits and minimize harms to registrants and users. As we saw in Dakar, it does not suffice to tell governments or other stakeholders with legitimate concerns that ICANN enforcement is constrained to its Guidebook, or that improvements to new registrar agreements must go through a protracted Policy Development Process. Much of the process that needs to change is in the arena of implementation, and ICANN staff can work with the community to make these improvements to the gTLD Guidebook. While stakeholders may pursue other means if ICANN does not provide effective and responsive mechanisms to address their concerns, the BC wants ICANN to be the space to develop effective safeguards for those who would otherwise bear significant financial and resource costs in the introduction of new gTLDs. The BC has supported a responsible, managed introduction of new gTLDs, but we do so with a commitment that effective protections are in place for registrants and trademark holders, in full recognition of the concerns raised by governments and law enforcement. We are committed to working with ICANN, the GAC, and with other stakeholders to achieve improvements that are essential to addressing the concerns of trademark holders regarding defensive registrations, and other key elements of the Guidebook. Submitted by: Steve DelBianco vice chair for policy coordination ICANN Business Constituency Attachment:
BC request for implementation improvements.pdf |