A diverse group has just sent a letter (http://www.icann.org/correspondence/van-couvering-to-beckstrom-21sep09-en.pdf) to ICANN’s top executives and Board in which they “urge you to direct ICANN staff to implement ICANN’s plan to introduce new top-level domains without further delay”.
ICA Counsel Philip Corwin had received a request from Jothan Frakes, COO of new gTLD adviser and investor Mind and Machines (http://www.mindsandmachines.com/) requesting endorsement of the draft letter, as did executives of other ICA member companies. The ICA Board considered the request and approved sending the following letter of response:
September 21, 2009
Dear Jothan:
Thank you for your e-mail of September 20th inviting ICA to be a signatory to the proposed draft letter urging ICANN’s Board to “to direct ICANN staff to implement ICANN’s plan to introduce new top-level domains without further delay”.
The ICA’s Board has considered this request and we must decline your invitation.
Among the Board’s reasons for this decision were the following:
First, we have yet to see ICANN’s 3rd version of the Draft Applicant Guidebook (DAG) for new gTLDs and have no idea of what changes and additions it contains; ICA would not be serving its members responsibly if we joined in a call for ‘full speed ahead’ when multiple critical details remain in flux. That 3rd version is due to be released in the first part of October and to be discussed and explained at the upcoming ICANN meeting in Seoul. ICANN continues to state that they anticipate opening the application window for new gTLDs in the first quarter of 2010, a scant five months away. ICANN has also repeatedly stated that it will not open the application window until all the overarching issues related to new gTLDs have been adequately resolved, and ICA supports that position.
Second, as you are aware, based upon past experience with prior rounds of new gTLDs there is great skepticism in the domain investment community that there is sufficient marketplace demand to justify an unlimited number of new gTLDs. Nonetheless, we do support an orderly and objective process for the introduction of new gTLDs and have not sought to obstruct or delay its adoption. However, we have raised strong concerns about various aspects of the proposed rules that will govern that process, such as “trademark protections” that threaten registrants’ due process rights and the possibility of differential pricing by gTLD registries, and these concerns remain unresolved.
Third, the “Building a Safer Internet” portion of the letter states:
• ICANN is likely to adopt significant portions of the recommendations for trademark protections offered by the Implementation Recommendation Team (IRT), a committee of trademark experts.
•The combination of requirements that will apply to registries operating new TLDs will far surpass the trademark protections available in current TLDs such as .COM.
…Those concerned about spam, phishing, pharming, and other forms of abuse (as we are) should welcome new TLDs and the rules that come with them.
ICA cannot be a signatory to any letter that endorses the IRT process or its recommendations, much less one that implies they are an improvement over current rules such as the UDRP. As any participant in the new gTLD discussion is undoubtedly aware, the ICA has raised strenuous written and oral objections to the process by which the IRT was created and its members chosen, has decried the fact that its group of “experts” was not adequately balanced, is firmly opposed to its proposed Uniform Rapid Suspension (URS) policy on the grounds that it deprives registrants of important due process rights and lacks adequate appeals procedures or sanctions for complainant abuse, and fears that adoption of the URS could be a backdoor means of rewriting the UDRP for .com and other incumbent gTLDs. We also believe that ICANN would be in violation of its own policy development rules if it adopted IRT recommendations without going through a Policy Development Process (PDP), and have therefore proposed that the URS be set aside and that an expedited PDP for UDRP reform be convened that could target the most egregious abuses by registrants and complainants at all gTLDs, new and incumbent, without causing undue delay in the opening of the new gTLD application window.
We believe that those companies that favor rapid opening of the new gTLD application window can best accomplish that goal by working to address the legitimate concerns that have arisen from a broad array of parties and interests regarding various aspects of the new gTLD program. Final rules that are balanced and fair can best assure that the coming expansion of the DNS proceeds soundly and without extensive litigation that would drain ICANN resources and cast a pall over the entire enterprise.
Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association