The “New ICANN”

June 4, 2015

By Clark W. Lackert, Reed Smith LLP

With the announced resignation of ICANN CEO Fadi Chehadé on May 21, 2015, effective next March, ICANN is truly entering a chaotic period. There are numerous key issues hanging fire including accountability requirements still undetermined, the announced delay for the technical functions transition, and the FTC's refusal to intervene in the ".sucks" controversy while blaming ICANN in part for the fiasco. It is too early to say at the moment what will emerge, although the picture should be clearer later this month at the ICANN global meeting in Buenos Aires. What is clear for advertisers and brand owners is that now, as never before, is the time to speak up about what is desired and needed in the "New ICANN."

In the Congress, Rep. Mike Kelley has introduced the Defending Internet Freedom Act of 2015 (H.R. 2251) on May 12, 2015 which would place certain restrictions on how the transition of technical functions of ICANN is handled. This issue has attained more relevance in view of the announcement by China that it will more carefully scrutinize and control the domain name sphere.

The continued rise of the Governmental Advisory Committee (“GAC”) within ICANN also could mean even more governmental intervention in complex intellectual property issues affecting domain names at ICANN. In addition, the Federal Trade Commission has just decided not to take immediate action against the “.sucks” registry outrage as set forth in its letter to ICANN of May 27, 2015, but has instead sent the controversy back to ICANN for their further review. The FTC did say, however, that ICANN ignored its previous policy recommendations and that it would monitor the activities of ICANN and the registries and take action as needed.

ICANN also has asked for community comments on the Review of the Generic Names Supporting Organization (“GNSO”), a 180 page comprehensive review issued on June 1, 2015 of the current state of play with the GNSO – comments are due by July 20, 2015. The GNSO is a key player in ICANN, since it supports various domain name legal and administrative functions, many of which affect trademarks. Additionally, the ICANN Cross Community Working Group (“CCWG”) on Enhancing ICANN Accountability also has been asking for public input. An opportunity to comment on accountability directly to ICANN may not come again in this form.

At the moment, ICANN can go in any number of directions, particularly with Fadi Chehadé leaving. It is important that interested advertisers and brand owners submit their comments directly to Congress, ICANN, and/or trade associations such as ANA to provide direction now rather than later before the path for ICANN is clearly set. If interested groups and companies believe there are issues with the New Generic Top Level Domain (“gTLD”) program and its rollout or needed safeguards for the internet as it transitions away from the United States, specific accountability mechanisms for the New ICANN, and the direction of the continuing issue of the GAC and geographical names, now is the time to provide feedback. Once the draft documents are finalized in Buenos Aires and later this year in Dublin, it may be too late to make further significant changes.

Reed Smith LLP is the ANA’s General Counsel.

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