ICANN Releases DAGv3 – Board to Decide on TM Protections After November Launch of IDN ccTLDs

As anticipated, ICANN has just released the third version of the Draft Applicant Guidebook (DAG) for new generic top level domains (gTLDs). The DAG has been revised in more than 50 areas, so we will be combing through it to fully understand its potential impact on the domain investment community. (DAGv3 available at http://www.icann.org/en/topics/new-gtlds/comments-3-en.htm.)

In the area of greatest concern to domainers – trademark protection, and the possible displacement of the UDRP by a Uniform Rapid Suspension (URS) policy that lacks substantive and procedural due process protections for registrants — ICANN staff has kicked the ultimate decision to the ICANN Board.  

As described in ICANN’s news release:

Trademark Protection Measures – Where to next?

http://www.icann.org/en/topics/new-gtlds/gnso-consultations-reports-en.htm

Specific trademark protection mechanisms are still to be decided upon by the Board.

After receiving trademark protection recommendations from the Implementation Recommendation Team and others, taking extensive comment and conducting consultation with the broad community, ICANN has drafted a set of implementation recommendations related to intellectual property protections for the new gTLD program. Additional rights protection included in the Guidebook are the:

•requirement to maintain a "thick" Whois database, and

•specification of a post-delegation dispute procedure so that trademark holders can lodge complaints of abusive behavior against registries when merited.

For other proposed rights protection mechanisms, the Board is providing the Generic Names Supporting Organization (the policy organization that developed the new gTLDs policy) with the opportunity to offer focused input on this specific area of the proposed implementation plan that is being published now. Those proposed rights protection mechanisms are:

•The creation of an IP Clearinghouse, which is a database of validated trademarks to be utilized by new gTLD registry operators in implementing either an IP Claims service or Sunrise process during TLD launch; and

The creation of a Uniform Rapid Suspension process for use in clear-cut, blatant cases of trademark infringement.

The community at-large may also comment on these specific issues, and of course, any other new gTLD issues through comment fora found on the new gTLD pages.

The public comment period on these trademark protection solutions will be open until 22 November 2009. (Emphasis added)

ICA encourages its members to carefully review the IP Clearinghouse and URS proposals and to submit comments to help guide final Board action. We shall be doing likewise, as well as speaking out at public forums at the upcoming Seoul meeting and engaging in conversations there with individual members of the GNSO and the Board.

As previously noted (see https://www.internetcommerce.org/+ICANN_Reveals_URS_Will_Not_Be_In_DAGv3), the fact that the URS was not included in this version of the DAG and will be subject to additional GNSO input and final Board decision represents a substantial victory for ICA and other URS opponents who contended that it was an unbalanced policy proposal that was weighted too heavily in favor of trademark interests and must undergo GNSO review. We now have an opportunity to shape the final decision to obtain a fairer result.

Simultaneous with the release of DAGv3, ICANN also unveiled its Final Implementation Plan for the International Domain Names (IDN) ccTLD Fast Track Process (see  http://www.icann.org/en/topics/idn/fast-track/idn-cctld-implementation-plan-30sep09-en.pdf). The Plan will be discussed and is expected to receive final approval from the ICANN Board in Seoul and is scheduled to launch on November 16, 2009. So, at this juncture, IDNs will launch at country code TLDs far in advance of new gTLDs, where they have been tied to the overall new gTLD process. This disparity may cause registry operators for incumbent gTLDs to seek to sever that tie if the opening of the application window for new gTLDs continues to be subject to extended delay.

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