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Business Constituency (BC) comments on defensive applications -- and defensive registrations -- for new gTLDs

  • To: "newgtlds-defensive-applications@xxxxxxxxx" <newgtlds-defensive-applications@xxxxxxxxx>
  • Subject: Business Constituency (BC) comments on defensive applications -- and defensive registrations -- for new gTLDs
  • From: Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>
  • Date: Mon, 27 Feb 2012 23:07:46 +0000

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

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
Description: BC request for implementation improvements.pdf

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