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The ICANN meeting in Nairobi on 12 March 2010 ended with a decision to withdraw the EOI process that was proposed at the prior public meeting in Seoul, Korea in October 2009.  The ICANN Board determined the benefits of proceeding with an EOI proposal were outweighed by the costs of potential delay to the new gTLD program and the lack of certainty about the date when the overarching issues of the program could be resolved.

On 18 March 2010 Melbourne IT provided an update of the meeting.  In case you missed it or would like to review the content, the session was recorded.  You can access it by following this link : March gTLD Update

Summary of the current state of the New gTLD process
The ICANN Board resolutions on gTLDs were good news for brand owners, especially those who felt the need to apply to protect their interests prior to a number of outstanding trademark issues being resolved.   This also removed the concern with applicants having to make their intentions public before submitting a final application.

Now it appears the process will have a chance to move toward completion in an orderly fashion.  This will allow the major outstanding overarching issues to be addressed so applicants will be able to make more fully informed decisions on whether or not they will need or want to apply.

Two earlier proposals from the trademark protection community gained support and are now planned to be incorporated in some manner into the next version of the applicant guidebook. Those are the Trademark (TM) Clearinghouse and the Uniform Rapid Suspension (URS) proposals.   Both proposed measures will afford brand owners with improved protection mechanisms and reduce at least some of the costs associated with guarding against infringement.  Also receiving attention is a Post Delegation Dispute Resolution Procedure (PDDRP).  This proposal looks at resolving issues should a new gTLD registry deviate from its initial charter and in the process result in a claim by a rights holder.  Within the current PDDRP concept a panel would review the claims and determine if there is infringement of the rights of a rights holder.

ICANN also took the conservative step of requiring strict separation of entities offering registry services and those acting as registrars. The registry-registrar model with a separation of functions has worked well under the current market structure, but going forward where brand owners needing to manage second level domain names for their own use, it may not be ideal.  Recognizing this, the ICANN board also asked the GNSO council for further study of the issue and to potentially provide recommendations for more flexible registry/registrar separation policies.

Currently there is no official estimate from ICANN for when applications for gTLDs may begin.  It’s possible the 4th version of the applicant guidebook could be ready by the ICANN meeting in Brussels 25 June 2010, and then it may be possible to estimate next steps.

One of the challenges facing ICANN since announcing the New gTLD program in 2008 is a reliable forecast for the demand for New gTLDs. In addition to helping satisfy the need to back up the economic assessment study, a reliable forecast is instrumental in determining the scope of both the administrative and technical infrastructure required.

ICANN is now asking for public comment on a recent proposal to seek expressions of interest from parties interesting in applying for new gTLDs. The public comment period will extend until 11 December 2009., Interested parties are encouraged to offer support, provide constructive criticism, or put forward suggestions as to the content and requirements of an EOI.

Some suggestions which have been proposed so far are:

• The EOI should include, at a minimum, the name string applied for, name of the applying entity and contact information.
• An accompanying fee of $50,000 to be later credited to the full application fee ($185,000). The idea of the fee is to help ensure interest from only serious participants.
• Stipulation that only EOI applicants be allowed to participate in the first round of applications.

ICANN staff are expected to review the comments and provide a plan for board consideration at ICANN’s next board meeting 9 December 2009.

Details on how to provide your comment, and guidelines for input into the EOI, can be viewed by clicking here.

The recent ICANN meeting in Seoul South Korea resulted a great deal of information about IDN-ccTLDs and New gTLDs.

IDN-ccTLDs are internationalized domain names (IDN) for country-code top level domain names (ccTLDs) that use non-Latin language scripts to represent the name of the country (e.g. 中 国 in addition to .cn for China). The ICANN Board approved the IDN-ccTLD fast track process to move ahead as planned. Beginning 16 November 2009, countries can apply for an IDN that is a meaningful representation of the country’s name in its native script language. The applications will go through a detailed review and approval process, and there is a possibility of some IDNs being created late next year. Whether that could happen in time to allow a formal launch before 2011 is unknown at this time.

As for as New gTLDs, a definitive time-line for implementation of the initiative no longer exists. De-emphasizing the implementation date along with discussions at the meeting around the rights protection measures appears to be a positive signal to corporations and other trademark holders that there is greater interest in getting the process right, rather than just launching new gTLDs. There are two main right protection initiatives that are being worked in tandem. One is an IP clearinghouse, a proposed central database for trademarks, and the other is a uniform rapid suspension (URS) procedure. The URS is intended to complement current UDRP processes by reducing the cost and complexity of actions by legitimate rights holders against fairly obvious intentional infringement.

Previously there were estimates of 300 or more new TLDs potentially being approved for introduction with each round of submissions. However a proposal to introduce DNSSEC implementation into the approval process comes with a request from some in the technical community to limit the rate at which new top level names (both gTLDs and ccTLDs) are added per year ( e.g. to 100 or so) to avoid overloading the business processes for changing root zone records and the network or computer resources ahead of capacity upgrades.

The 3rd revision of the applicant guidebook has been made available for viewing and comment on ICANN’s website and the comment period extends through 22 November 2009. Both the IP clearinghouse and URS proposals are posted separately, and comments are being taken on those documents as well.

Set out below are a number of the key items noted in the ICANN Board meeting minutes with additional commentary for clarity:

ccTLD-IDNS

• Applications from countries will be accepted starting 16 November 2009
• Applicable to only established countries or territories at this time having script languages in one of the currently approved ISO languages.
• Once the IDN-ccTLD name is agreed, a country still needs to follow the standard IANA processes for selecting the manager of that IDN-ccTLD registry.
• It’s possible some ccTLD IDNs may be added to the root zone late in 2010 at which time a sunrise process could be announced by each ccTLD registry.
• Currently accepted launch periods and resolution procedures will be applicable for the new IDN-ccTLDs.

New gTLDs

• No estimated timeframe available for accepting proposals.
• Work remains on agreement and approval of rights protection measures.
• Introduction of New gTLDs may be limited to a maximum per year initially (could be as low as 100).
• Participating in the first round of New gTLDs may require submission of an expression of interest to allow ICANN to get a better estimate on demand and identify potential difficult cases so that any procedures can be modified prior to launching the formal application process.
• Public comment period extends through 22 November 2009.

The Implementation Recommendation Team (IRT) sanctioned by ICANN has provided the first draft of their trademark protection proposal.

The report describes in detail several proposed solutions to improve trademark protection in the new gTLD process.  The two main elements are:

• A fee supported, IP clearinghouse of globally protected marks that would be provided to registies. Information would provided by rights holders and verified and updated annually by the clearinghouse, and pushed out to the necessary parties.
• Draft Uniform Rapid Suspension System (URS) procedure to provide a cost effective and timely mechanism for brand owners to protect their trademarks and to promote consumer protection on the Internet.  The URS would allow for immediate protection response against malicious activities, but would continue to work in conjunction with the current UDRP process to resolve legitimate disputes.

Other consideration in the proposal include:

• Post delegation dispute resolution mechanisms at the top level
• Thick WHOIS model requirements for new TLDs
• Use of algorithm in string confusion review during initial evaluation

Melbourne IT will be conducting a webinar on Tuesday 5 May to provide details of the report’s recommendations and receive feedback from customers.  Melbourne IT has been invited to provide input to the IRT team at its meeting on Monday, 11 May 2009, and information from the webinar will be the basis for our report to the IRT team.

The full report by the IRT can be vied by clicking here.

ICANN has announced the members of the Implementation Recommendation Team to work on the issues raised by trademark rights holders and the community at large regarding brand protection measures.

See: http://www.icann.org/en/topics/new-gtlds/irt-list-23mar09-en.pdf for the complete list of members of the committee.

Results of IRT work will be part of follow-on ICANN consultations regarding the overarching issues (see http://www.icann.org/en/announcements/announcement-3-18feb09-en.htm) identified in the new gTLD implementation work. Finally, any modifications to the implementation, embodied in the New gTLD Applicant Guidebook and registry agreements will be open to at least one more round of public comment and feedback.

Number four on ICANN’s list of top priorities in the organization’s three year strategic plan is improving the confidence in the gTLD marketplace by making sure registries and registrars operate in accordance with their contracts and ICANN policies. Captured in this initiative is the goal to “introduce methods for protecting registrant from abuse of their registrations and preventing the registration of fraudulent sites.” By assuring adequate protection measures in the New gTLD process, and taking action to improve some existing problem areas, ICANN should be able to score a few confidence points.

See the entire ICANN strategic plan

The devil is in the detail with changes like those proposed for the rules that govern gTLDs.  To help you to understand some of the specifics of the policy, we have compiled a list of highlights below:

Pricing – draft ICANN fee structure

From the draft New gTLD Program: Applicant Guidebook released on 25 October 2008, the fees relating to registering a new gTLD will be:

• gTLD Evaluation Fee – non-refundable fee of US$185,000
• Dispute Resolution Filing Fee – of between US$1,000 and US$5,000 (depending on the dispute provider)
• Dispute Resolution Adjudication Fee – both parties involved in a  dispute over a new gTLD need to submit an advance payment of costs, with the prevailing party receiving a refund once resolution has been rached
• Comparative Evaluation Fee – for community based applications where there are multiple applicants for the same name
• Annual Registry Fixed Fee – a minimum of US$75,000  each year, payable by the registry (see below for Registrar vs Registry information).  Large volumes of second level names would incur a transaction fee of 25 cents/name assuming the registry charges $5 per registration.

Key Dates

• 24 October 2008: Public comment on draft ICANN gTLD Applicant Guidebook commences
• 2-7 November 2008: 32nd ICANN Board meeting in Cairo
• 10 November 2008: Melbourne IT information seminar series commences in London
• 3 December 2008: Melbourne IT information seminar series concludes in Melbourne
• 8 December 2008: Public comment on draft ICANN gTLD Applicant Guidebook closes
• Early 2009: FInal gTLD applicant guidebook to be released