ICANN’s Revised gTLD Proposal Still Comes Up Short

by on February 20, 2009 · 5 comments

ICANN has just released a second draft of its Applicant Guidebook, which would guide the creation of new generic topmore generic top-level domains (gTLDs) such as .BLOG, .NYC or .BMW. As ICANN itself declared (PDF), “New gTLDs will bring about the biggest change in the Internet since its inception nearly 40 years ago.”  PFF Adjunct Fellow Michael Palage and former ICANN Board member addressed the key problems with ICANN’s original proposal in his  paper ICANN’s “Go/ No-Go” Decision Concerning New gTLDs (PDF & embedded below), released earlier this week.

ICANN deserves credit for its detailed analysis of the many comments on the original draft which Mike summarized back in December.  ICANN also deserved credit for addressing two strong concerns of the global Internet community in response to the first draft:

  • ICANN has removed its proposed 5% global domain name tax on all registry services, something Mike explains in greater detail in his “Go/No-Go” paper.
  • ICANN has commissioned a badly-needed economic study on the dynamics of the domain name system “in broad.” But such a study must address how the fees ICANN collects from specific user communities relate to the actual costs of the services ICANN provides. The study should also consider why gTLDs should continue to provide such a disproportionate percentage of ICANN’s funding—currently 90%—given increasing competition between gTLDs and ccTLDs (e.g., the increasing use of .CN in China instead of .COM).

These concerns are part of a broader debate:  Will ICANN abide by its mandate to justify its fees based on recovering the costs of services associated with those fees, or will ICANN be free to continue “leveraging its monopoly over an essential facility of the Internet (i.e., recommending additions to the Internet’s Root A Server) to charge whatever fees it wants?”  If, as Mike has discussed, ICANN walks away from its existing contractual relationship with the Department of Commerce and claims “fee simple absolute” ownership of the domain name system, who will enforce such a cost-recovery mandate?  

But ICANN simply “kicked the can down the road on the biggest concern”: how to minimize abusive domain name registrations (e.g., cybersquatting, typosquatting, phishing, etc.) and reduce their impact on consumers. ICANN seems only to have made a vague promise to engage in additional outreach and consultation on this problem.  But Mike has proposed a number of potential solutions that are narrowly tailored to protect brand holders while respecting the fair use rights of other, including: 

  • Rebuttable Reserve Names List that would minimize the need for defensive registrations of marks that have been subject to abusive registrations by freezing registration of domain names (e.g., DELTA.AIR) that precisely correspond to those marks (e.g., Delta Airlines’ “Delta” trademark)  for the 60 days leading up to the opening of a new TLD (e.g., .AIR)—although anyone can rebut this presumption upon making a fair use showing under existing UDRP principles.
  • An Expedited Domain Suspension Policy, either  as a new policy, or an amendment to the existing UDRP, that would provide a faster and more cost-effective remedy for abusive domain name registrations on an ongoing basis, but only for marks that have been registered with a national trademark authority (or the equivalent thereof).
  • Uniform Proxy Registration Policy governing the use of proxy services that substitute their own contact information for the registration’s information in the Whois database; such baseline practices and safeguards would reduce abuse that could harm legitimate users while preserving the option of proxy registration for privacy-sensitive users.

Washington Internet Daily (subscription-only) reports that:

ICANN is also rethinking its timeline for launching the gTLD application process, it said. There will be a third draft guidebook, making it unlikely applications will be accepted before December, it said. The new draft leaves provisions on four major issues – security and stability, malicious misconduct, trademark protection and demand/economic analysis of the need for new gTLDs – unchanged pending further discussion, ICANN said. Comments are due April 13. 

PFF wil continue to respond to ICANN’s call for comment to promote responsible expansion of the domain name space.  Here’s Mike’s paper (click on the rectangle-in-rectangle button at the top right to maximize the iPaper viewer):

Progress on Point Volume 16, Issue 3 February 2009 ICANN’s “Go/ No-Go” Decision Concerning New gTLDs by Michael Palage Last October, ICANN released a proposed Draft Applicant Guidebook that would govern applications for new generic Top Level Domains (gTLDs) such as .BLOG, .NYC or .BMW. 1 As ICANN itself declared, “New gTLDs will bring about the biggest change in the Internet since its inception nearly 40 years ago.” 2 But ICANN’s proposed implementation of new gTLD application process sparked fierce and almost universal opposition from the global business community and a number of governments. 3 ICANN is now expected to release its second Draft Applicant Guidebook before its upcoming regional meeting in Mexico City in early March. Much as NASA’s Launch Manager must make a final Go/No-Go decision before the launch of any mission, now is the time to examine the critical changes ICANN must make to the process for creating new gTLDs. Based on the hundreds of comments submitted during ICANN’s first public forum, and on my own 10+ years of experience within the ICANN community and direct involvement in the launch and/or operation of several new TLDs, I suggest the following key changes: ? Eliminate ICANN’s proposed five percent (5%) global domain name tax as it currently appears in the draft agreement between ICANN and would-be gTLD registries (as well as in some existing registry agreements); Michael Palage is an Adjunct Fellow at the Center for Internet Freedom at The Progress & Freedom Foundation (PFF). The views expressed here are the author’s own, and are not necessarily the views of the PFF board, other fellows or staff. PFF Fellow Berin Szoka and Research Fellow Adam Marcus contributed to this piece. 1. 2. 3. ICANN, New gTLD Program: Draft Applicant Guidebook (Draft RFP), October 24, 2008, available at http://www.icann.org/en/topics/new-gtlds/draft-rfp-24oct08-en.pdf (“Draft Applicant Guidebook”). ICANN, New gTLD Program: What kind of Internet do you want?, June 2008, available at https://par.icann.org/files/paris/BAA_Intro_NewGTLDs_Paris_23Jun08.pdf See Michael Palage, ICANN’s gTLD Proposal Hits a Wall: Now What?, PFF Blog, Dec. 22, 2008, http://blog.pff.org/archives/2008/12/print/005412.html. See also Letter from Jorgen Abild Andersen to Peter Dengate-Thrush (PDF), Ministry of Science Technology and Innovation, National IT and Telecom Agency, Denmark, Comments to ICANN regarding New gTLDs, Jan. 22, 2009, See also http://www.icann.org/correspondence/andersen-to-dengate-thrush-22jan09-en.pdf 1444 EYE STREET, NW ? SUITE 500 ? WASHINGTON, D.C. 20005 202-289-8928 ? mailto:mail@pff.org ? www.pff.org

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