ICANN has just made available ten separate briefing papers meant to serve as background documents for the upcoming Board discussions with the Governmental Advisory Committee (GAC) scheduled for Brussels on February 28 through March 1 (announcement and documents available at http://www.icann.org/en/announcements/announcement-6-21feb11-en.htm).
According to ICANN, “The aim of the briefing papers is to identify the areas of difference which remain between the ICANN Board and the GAC on the nominated topics to focus the discussion on the issues in Brussels…It is expected that the GAC and ICANN papers will differ. The primary purpose of the Brussels consultation is to get joint understanding of specific differences between the GAC and Board positions. Once that understanding is obtained, the parties can work toward a common position.” The announcement also notes that the GAC will be bringing its own “scorecard” to Brussels, with whatever consensus position the GAC has arrived at being contrasted with existing provisions of the proposed Final Applicant Guidebook for New gTLDs.
As we understand this unprecedented process, the aim in Brussels will be to come to a clear understanding of the differences between the Board and the GAC, and then to engage in a formal consultation on March 17, 2011, during ICANN’s San Francisco meeting (and just one day prior to the public meeting of the Board) in which the Board can accept, reject, or negotiate on GAC-proposed alterations. Another new announcement from ICANN (see http://icann.org/en/announcements/announcement-22feb11-en.htm) projects that a new version of the Guidebook will be released around April 14, 2011. That announcement implies that additional public comments may be solicited on the new version, which would likely push back the opening date for new gTLD applications to be submitted to several months after that – at a minimum.
So far we have just reviewed the paper on Protection of Rights Owners, which documents the extensive history of the provisions now contained in the current version of the Guidebook. As the paper notes, many of the trademark protection measures that the GASC now finds fault with – such as the “clear and convincing” evidentiary standard for domains to be suspended under Uniform Rapid Suspension (URS), and the restriction to “exact matches” for names to be registered with the Trademark Clearinghouse – came directly from the Implementation Recommendation Team (IRT) put together by the IP Constituency.
As the background paper notes, the current version of the URS varies somewhat from the original version proposed by the IRT because “A compromise was necessary to balance the rights of trademark holders and the rights of legitimate registrants.” The ICA worked long and hard, and in good faith, along with many other members of the ICANN community to achieve that balanced compromise, which was subsequently adopted unanimously by ICANN’s GNSO policymaking body and then accepted by ICANN’s Board.
It is distressing to now see that certain trademark interests did not negotiate in good faith but have heavily lobbied GAC members to take positions that are at odds with the very protection standards that were proposed by the IRT – by now proposing a lower evidentiary standard for URS cases and allowing trademark owners to register an unlimited number of typographical variations of their marks in the Clearinghouse. That is even more true for the proposed U.S. scorecard for Brussels, which would introduce new elements that were never proposed by the IRT – a “loser pays” URS regime and the ability to not just suspend but transfer a domain through a URS action, making it the functional equivalent of the UDRP with far less protection for domain registrants (see https://www.internetcommerce.org/The_Scorecard_for_Brussels). We would urge those trademark interests to stop trying to achieve one-sided, backdoor UDRP reform through the Guidebook and instead engage in the open and considered process of balanced UDRP reform recently initiated by the GNSO.
Much more is at stake in the upcoming meetings between the Board and the GAC than the details of the Final Applicant Guidebook. What is really at stake is the integrity of ICANN’s policymaking process, and whether disgruntled interests unwilling to abide by negotiated compromise can lobby the GAC to exercise a veto power over any proposed ICANN policy.
ICANN has previously stated that the rights protection mechanisms contained in the Guidebook are essentially complete and that only modest “improvements” of existing mechanisms, and not wholesale additions or rewriting, will be considered for inclusion in a new version. ICA will be closely monitoring this process to assure that “the rights of legitimate registrants” remain protected in new gTLDs.