ICANN Update: Aftermath of the Buenos Aires Meeting

July 14, 2015

By Clark W. Lackert, Reed Smith LLP

Before the ICANN Buenos Aires meeting even formally began, NTIA Assistant Secretary Larry Strickling dropped a bombshell in a packed meeting in the evening of Sunday, June 21 – the transition of the IANA (technical) function of ICANN would not take place in September 2015, but would be moved back about a year until the middle of 2016 to provide more time for the internal working groups within ICANN to hammer out the details of the move. Why is this important to brand owners and advertisers? The twin pillars of ICANN Accountability and Transition are vital to the domain name (and related trademark) stability.

Now, doubt has been cast on the timeline as the U.S. Congress has become more activist in ICANN’s activities due to public pressure (in fact, the letter from ANA to ICANN on the overreaching by the GAC in the geographical names (“Argentina”) proposal was the first footnote in a letter from House members to ICANN). Additionally, the new DOTCOM Act which is currently under consideration in the Senate (having passed the House) which would mandate Congressional supervision of the IANA “handover” is clearly a significant development and was extensively discussed in Buenos Aires. Brand owners and advertisers have another year to become involved in the process of transitioning the IANA functions to the so-called “PTI” (“Post-Transition IANA”) entity.

A parallel development in Buenos Aires of great interest to brand owners and advertisers are the activities of the Discussion Group (“DG”) on the opening of the next round of new Generic Top Level Domains (“gTLDs”), which by the timeline of the original Applicant Guidebook is already two years overdue. The DG reviewed a number of scenarios for its draft charter and the opening of a new Policy Development Process (“PDP”) for the new top level domains. Various sources provided different dates for the opening of the next round, but at the moment this date appears to be late 2017 to even early 2018. Although this may seem to be a far off date, discussions are happening now as to how the new round will be structured. To cite one example, the Governmental Advisory Committee (“GAC”) held a short update meeting in Buenos Aires on the so-called “Argentina Proposal” greatly expanding possible “geographical name” objections against brand based domain names, promoted by GAC Vice Chair Olga Cavalli. Although the previous versions of the proposal have been almost universally rejected by various members of the multi-stakeholder community as governmental meddling and censorship in the name of a vague “public interest” justification, the working group in GAC continues to attempt to find legal justification for it. This development should be closely monitored by the trademark community since virtually any brand may have some geographical, cultural, or ethnic significance which some country may find objectionable.

Since it is highly unlikely that the next round will be identical to the 2012 round, everything is currently in play, including broader powers of the GAC to veto domain name applications, reduced costs of the new gTLD applications from the existing $185,000.00 per application, strengthened rights protection mechanisms (“RPMs”), stronger control on the substance and monitoring of registry contracts, revised auction procedures, and enhanced independent review arbitration of ICANN Board decisions. Not surprisingly, timelines emanating out ICANN 53 continued to be pushed back, both for the transition (about one year – 2016) and the new gTLD round (about four years – 2017).

What is surprising, however, is how the enhanced scrutiny of ICANN’s activities and procedures continues to develop new problems for ICANN at a time when ICANN has an outgoing CEO and there is no general consensus on the way forward. As preparations are made for the upcoming meeting in Dublin in October 2015, a number of these critical issues will be open for public comment. Companies should closely monitor the ICANN Public Comments website for policy issues and draft texts which are currently being discussed, and make comments on the official record as needed. In addition, governmental representatives are also a good source of providing feedback to ICANN, as was seen by the recent series of letters from the U.S. Congress to ICANN management.

Reed Smith LLP is the ANA’s General Counsel.

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