ICANN 53: Accountability, Brand Policy & New Round of New gTLDs

Policy Counselor

In June, MarkMonitor joined our colleagues once again at the Internet Corporation of Assigned Names and Numbers (ICANN) 53rd public meeting in Buenos Aires, Argentina.  Several high-profile and contentious issues were on the agenda, many of which have significant impact on the interests of intellectual property and brand owners.  Among these are the ongoing ICANN Accountability issues and the impending departure of ICANN CEO Fadi Chehadé; registrant information (Whois) transparency, accuracy and accessibility; and the timing of the next round of new gTLD applications/delegation.

ICANN Accountability and a new CEO

In May, ICANN CEO Fadi Chehadé announced his departure, effective in March 2016.  During his tenure, in anticipation of preparing ICANN for the transition of the Internet Assigned Numbers Authority (IANA) function from the United States Government, Chehadé and his team had worked hard to prioritize accountability of ICANN decision making to the ICANN community as a whole.  Led by a cross-community working group, this dedication to the bottom-up multi-stakeholder structure of ICANN aims to improve communication, processes, structure of internal organizations such as the GNSO (Generic Names Supporting Organization) and transparency in decision-making.

Chehadé’s announcement was a main topic of conversation in Buenos Aires, and many questions focused on the impact of a big change in leadership on the process. One session focused entirely on the transition and the succession process.  While nothing can be certain, it’s a positive sign that the conversations about potential impact are happening now, well in advance of Chehadé’s scheduled departure, and preparation should minimize impact.  Businesses, brand owners and intellectual property advocates should watch the succession process carefully to ensure that candidates for the CEO slot are well versed in our challenges and issues so we can seamlessly continue our main points of advocacy from our place in the ICANN community.

Another accountability issue that made waves in the business, brand and intellectual property communities is the ongoing discussion about our role in ICANN contractual compliance.  Issues such as interpretation of the 2013 Registrar Accreditation Agreement with a focus on abuse reporting, as well as New gTLD Program compliance with Rights Protection Mechanisms (with a spotlight on .SUCKS) were discussed at the Commercial Stakeholder Group (CSG) meeting with the ICANN Board.  The Intellectual Property Constituency (IPC) and Business Constituency (BC) have, in recent months, engaged more closely with ICANN compliance director Allen Grogan to present our views on how contractual provisions with Registrars and Registries may be interpreted to fairly represent the views of the business community.  These discussions will be ongoing, but must be conducted in a transparent and fairly balanced manner to demonstrate that ICANN compliance is accountable to the ICANN community as a whole.

Whois – Transparency, Accuracy and Accessibility

One of the more controversial issues in Buenos Aires was the issue around the accreditation of Whois privacy and proxy services.  In part, the initial report, which had been released about a month prior to the meeting, outlined procedures for relaying communication to registrants through privacy and proxy providers and disclosing information with cause, and asked several tough questions such as whether websites that actively solicit financial transactions should be able to avail themselves of privacy and proxy services.  The public comment period, fueled by statement and signature generating websites set up by privacy/proxy service providers, had already (at the time of the Buenos Aires meeting) seen several thousand comments expressing concern about registrant data protection and access to privacy services.

Proponents of privacy/proxy accreditation note that the initial report was carefully constructed with the input of privacy experts, law enforcement, registrars and other service providers and business/IP advocates.  Some, such as brand protection advocates IPC, INTA and IACC feel that appropriate safeguards have been constructed to protect legitimate privacy interests while maintaining a fair procedure for businesses and individuals to engage with registrants without undue burden on registrars, providers or registrants.  They all encouraged further work on addressing issues of permissible use such as defining the term “transactional,” while reserving final judgment on an ultimate recommendation.  Others expressed concern and even doubt that an accreditation program would do anything to address the goal of Whois transparency and accessibility.

MarkMonitor remains committed to participating in this important issue and will continue to provide updates as the group sorts through the valuable input from the community to ensure that everyone with a legitimate interest in using privacy and proxy services are accommodated while balancing the rights of consumers and brands.

New gTLD Subsequent Rounds

In Buenos Aires at the Council meeting, the GNSO approved a motion to request a preliminary issue report on New gTLD Subsequent Rounds.  While the idea of dealing with even more launches, sunrise periods, pricing issues and blocks may strike fear in the hearts of many brand owners, the motion is only noteworthy because it’s a very initial step.  According to many, concurrent processes such as the Rights Protection Mechanism review must at least begin before a second round issue report can fully integrate all the concerns of the brand community.  Further, the Affirmation of Commitments review, which promises to examine whether the New gTLD Program lived up to its commitment to increase consumer trust, consumer choice and competition promises to add a lot of to the discussion around a second round.  Issues such as whether a new round should focus on brands and/or community and geographic gTLDs and a renewed effort to provide application support to underserved and underrepresented communities were also popular issues of discussion.

We continue to participate in the work leading up to a second round (or even a perpetually open application period), and we are happy to note that the issue report from ICANN staff will be open to change and adaptation as we encounter new issues in the current round.

MarkMonitor looks forward to the next public meeting in Dublin, Ireland scheduled for October 2015.

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