ICANN 54 Meeting in Dublin: Next Steps

November 30, 2015

By Clark W. Lackert, Reed Smith LLP

In late October, ICANN once again convened its global meeting, this time in Dublin. As usual, there was no consensus on the way forward. The issue most discussed in the hallways in Dublin was so-called ICANN “capture”: by governments, by special interests, by the domain name industry, by insiders, and by the entrenched Board. Although “capture” may not seem of immediate interest to brand owners and advertisers, it will be a key issue for the twin pillars of Accountability and Transition facing ICANN that will play out in 2016, and will directly affect brands.

Here’s how:

One of the greatest threats to brands continues to be potential overreach by the GAC (“Governmental Advisory Committee”). The GAC is comprised of 150 members and 32 observers, mostly represented by telecommunications ministry employees from various governments with limited legal training. In Dublin, there were several contentious GAC meetings where the results of so-called “Stress Test 18” were discussed with GAC members. These meetings were essentially a review of GAC working methods particularly its “consensus” model.

The response to the stress test would be that the ICANN Board should be required to take action only if it both disagrees with GAC advice and the GAC advice represents a consensus. Therefore the ICANN Board could decide not to take action on any other type of GAC advice including positions reflecting a majority vote of the GAC. This approach could avoid the ICANN Board being forced to intervene where GAC itself was divided and perhaps more importantly avoiding GAC “capture” by one or a small group of governments forcing the ICANN Board’s hand.

Why this impacts brands is that GAC continues to push its broad “geographical names” agenda, both as a further restriction on freedom to choose new gTLD (“generic top level domain”) letter strings, including currently reviewing two-letter domains which may be considered country codes. In addition, ICANN is now reviewing whether three-letter domain name codes would also be subject to governmental approval. Most commentators have rejected the three-letter code proposal finding it unnecessary and a misappropriation of previous rights. The most glaring example is “.com”, with “com” being the three-letter code for the Comoros Islands – (should “.com” be given to the Comoros?). Thus, governmental “capture” is very much a hot topic, and intertwined with the key issues of Accountability and Transition.

The other main brand related development was the continued discussion of what Round 2 for new gTLDs would look like. Would there be two separate tracks, one for brands and one for generics, with different timelines? Would the RPMs (“rights protection mechanisms”) need to be revamped, including the oldest of all, the Uniform Domain Name Dispute Resolution Policy (UDRP), or not? Would these changes apply retroactively or not to existing registry contracts? The best estimate for now is that a new round will open in late 2017 or early 2018, but much depends on how the two central issues, Accountability and Transition, are handled.

Brand owners and advertisers need to watch these two issues – governmental capture coming principally from the GAC and the new gTLD Round 2, very carefully. There are several major proposals coming up for decision at the Marrakech meeting next February, but in the meantime brand owner input and feedback on currently “open” items are always available at the website. Additionally, in December, the UN-sponsored WSIS+10 (World Summit on the Information Society + 10 years) High Level Event at the UN in New York will take place. We will wait and see how far the UN and its instrumentalities will wade into these debates at ICANN.

Reed Smith LLP is the ANA’s General Counsel.

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