On the Road to Morocco

February 4, 2016

By Clark W. Lackert, Reed Smith LLP

Before the ICANN CEO, Fadi Chehade, leaves ICANN at the end of March, he will preside over his last ICANN meeting in Marrakesh, Morocco starting in early March. The twin projects of Accountability and Transition still loom large, but now the details need to be finalized in order to meet the current timeline. What progress has been made, and how do these developments relate to advertisers and brand owners?

The Cross Community Work Group (“CCWG”) on Accountability has been reviewing the feedback given to it at the end of last year on the different recommendations to make ICANN more accountable for its actions. ANA was one of the participants in this feedback exercise and expressed its concern about Recommendation 11. Specifically, ANA noted that the proposed 2/3 vote for the Board to reject GAC advice “would create a dangerous new precedent whereby GAC would have even more power within ICANN to derail the application process without any foundation in international law other than offense against GAC sensitivities. This new environment would undermine the international and national legal protection systems for trademarks and consumer protection laws. It would also create extremely vague new sources of GAC and local government objections leading to uncertainty and confusion for users of the system, while at the same time making it more difficult for the Board to exercise independent judgment. In short, the Proposal would enhance, not diminish, the undesirable path of "government capture" of ICANN processes.” Since the CCWG works on a consensus model, this particular issue will be difficult, but perhaps not impossible, to overcome, since the IP community generally is wary of ceding more power to GAC. This proposal would directly affect brand owners in the new Round 2 of generic top level domains (“gTLDs”) system, scheduled to start operations in late 2017 or early 2018, since a brand owner applicant could fulfill all of the ICANN requirements but still be denied its new gTLD if the GAC decided it was somehow against a vague public policy standard. Thus, it remains to be seen whether this issue will be resolved before Marrakech.

On the Transition issue, whereby the technical functions of ICANN will be transitioned away from U.S. supervision, the general timeline is lagging somewhat, since a number of levels of approval will need to be obtained after a clear transition plan is formulated. In addition, the current political situation in an U.S. election year in Washington creates another layer of uncertainty as to whether there is the will and agreement to transition at all. This exact timeline for Transition (whether at the end of 2016 or beyond) should become clearer after Marrakech if the various workstreams are finalized and approved at that meeting.

Accordingly, it remains to be seen what will be the exact structure of the “New ICANN” and when it will leave U.S. control, but the upcoming debates in Marrakech will surely impact the future of brands as they are used and protected in the domain name space on the Internet in 2017 and beyond.

Reed Smith LLP is the ANA’s General Counsel.


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