The Continuing ICANN Geographical Names Debate: Public Interest or Governmental Politics?

July 28, 2016

By Clark W. Lackert, Reed Smith LLP

The Helsinki global meeting of ICANN has just concluded, and preparations are already underway for the meeting in Hyderabad in October. ICANN is still preparing for the transition of the technical functions of the organization (the “IANA Transition”), despite objections from U.S. Senators and other elected officials, led by Senator Cruz. The opening of the so-called “Next Round” of generic top level domains (“gTLDs”) continues to be moved back, probably to 2019 or 2020, as debates continue as to possible changes to the overall structure and rules of the round within the “New ICANN”, free of at least some U.S. control. Needless to say, there is uncertainty in all quarters about the immediate and long-term future of domain name governance.

One constant remains, however. The Governmental Advisory Committee (“GAC”) continues to push for more control of any names which might have any geographical significance or sensitivity. In Helsinki, the Vice Chair of the GAC, Olga Cavalli from Argentina, presented an ambitious agenda on how to move forward on her 2014 proposal for expanding a governmental veto over so-called “geographical names”, a vague term which even she admits must be further defined. The Draft Work Plan, Version 4 (May 19, 2016), set forth in Helsinki, presents a ten (10) step plan to analyze the current ICANN track record in the area, to discuss whether the GAC should formally reply to the public comments it has already received on the 2014 draft of the proposal, to define “geographical and community names”, to analyze the divergent interpretations of the concepts of “public interest” and “public good”, to review “annexed/occupied territory” names, to evaluate best practices, and to explore other, presumably expanded, geographical and community name lists.

This continued movement of the GAC to rule on every potential new gTLD in the next round (despite being an “advisory” not a “decision-making” body), has significant impact on trademark owners and advertisers generally. Despite almost universal disapproval of the previous draft of the proposal, at least some members of the GAC are still of the opinion that this project is a worthwhile expenditure of time and money. Presumably a new version of the proposal will be published for comment in the coming months, and it must be carefully scrutinized to ensure that valuable trademark rights, which are protected under national and international law, are not being sacrificed under the vague goal of protecting the public interest. 

Reed Smith LLP is the ANA’s General Counsel.

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