2. GAC Communiqué - GAC Advice (Alice Munyua)

GAC advice on new gTLDs contained in the GAC Beijing communiqué

GAC advice represents a consensus position among member states that a particular new gTLD application potentially raises sensitivities, thereby creating strong presumptions that the ICANN Board of Directors should not approve the application.

The Beijing meeting Governmental Advisory Committee (GAC) communiqué issued on 11 April 2013 was an important one, as ICANN was expecting GAC Advice on new gTLDs, as defined in the Applicant Guidebook. The GAC communiqué serves as the official notification to applicants of GAC Advice and triggers a 21-day response period as per the Applicant Guidebook (Module 3.1).

The guidebook states: "If the Board receives GAC Advice on new gTLDs stating that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved. If the Board does not act in accordance with this type of advice, it must provide its rationale for not doing so."

The GAC had already issued 242 early warnings, which were designed to give applicants the opportunity to respond to various concerns, change their plans or withdraw before receiving full GAC objection advice. Any application that received GAC Advice in Beijing now faces either rejection of the bid or a prolonged approval process.

The Beijing communiqué provides full consensus GAC objections to two applications:  
•    .GCC for the similarity between this string and the Gulf Cooperation Council
•     the .Africa bid submitted by DotConnectAfrica for lack of official governmental support from the Africa region.

.halal and .Islam received non-consensus objections, which means that the GAC did not arrive at full consensus so the two strings will have to be considered by the ICANN Board of directors.

The GAC also advised against proceeding with fourteen applications beyond initial evaluation to enable further GAC considerations. The 14 are: .shenzhen (IDN in Chinese), .persiangulf, .Guangzhou (IDN in Chinese), .Amazon (and IDNs in Japanese and Chinese), .Patagonia, .date, .spa, .yun, .thai, .zulu, .wine, .vin.  

The communiqué issues six safeguards meant to apply to all new gTLD applications. They include Whois verification and checks, mitigating abusive activity, documentation, security checks, making and handling complaints and consequences for demonstrated provision of false Whois. These safeguard provisions are intended to apply to 12 categories:  children, environment, health and fitness, financial, gambling, charity, education, intellectual property, professional services, corporate identifiers, generic geographical terms and inherently governmental functions.  Applications that fall into any of these categories will have to be subjected to increased regulations governing abuse mitigation, security and Whois.

The GAC is of the opinion that singular and plural versions of the same string should not be considered separately because they could lead to potential consumer confusion; for example .car and .cars.
The GAC advises that closed generics should be awarded only if they serve a public interest purpose. On Intergovernmental Organisations (IGOs), the GAC reiterates its advice that “appropriate preventative initial protection for the IGO names and acronyms on the provided list should be in place before any new gTLDs would launch”.

The GAC supports the amendment to the new gTLD registry agreement (RAA) that would require new gTLD registry operators to use only those registrars that have signed the 2013 RAA. However, the GAC urges ICANN to finalise the RAA before any new gTLD contracts are approved.

So what happens now?
Prior to the Beijing meeting, ICANN Board Chair Steve Crocker had said that “advice from governments carries quite a bit of weight. Equally it is not the end of the story….We have a carefully constructed multi-stakeholder process. We want very much to listen to governments, and we also want to make sure there’s a balance”.

ICANN by law states that "the advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account" with a view to speeding up the process. It goes further to say that if GAC and the ICANN Board are not able to come to an agreement after consultations, the action that the Board intends to take against GAC advice would have to be adopted by a majority vote (two thirds) of Board members.

ICANN is likely to set up the GAC communiqué for public comment.
CEO Fadi Chehadé and Board Chair Steve Crocker raised this possibility during comments made in the following video interview. This seems to be the best and most correct course of action. However it is likely to impact on the time lines for delegation, especially if there are differences in interpretation of GAC advice and if consultation on by-laws is required. ICANN has already put other applicants on formal notice of the publication of the Beijing communiqué, with applicants having been requested to respond by May 10 to the ICANN Board.
<http://www.icann.org/en/news/press/kits/beijing46/video-post-meeting-12apr13-en.htm>

Apart from GAC advice, other issues that will need to be considered before the launch of new gTLDs include the Registry and Registrar Accreditation Agreements still under discussion by ICANN and contracted parties, and the Trademark Clearinghouse.

Here are some of the highlights of the meetings and discussions around the TMCH at ICANN Beijing.

The pricing for the trademark holders and the ability to pay for the trademarks have been finalised. Everything else is still under development or in discussion. All the TMCH meetings were very well attended and fairly vocal. They have received lots of feedback and objections to some of the proposals so expect some of them to change.

In particular IBM are still implementing email notifications of status changes. The SMD has yet to be implemented. The full strawman process is yet to be implemented. The text for rights holders’ notice of domain name registration has yet to be discussed.

The TMCH will verify trademarks automatically where they have direct access to a trademark database. Otherwise the rights holder will have to submit trademark documentation.

TLD is required to give 30 days’ advance notice of sunrise.

It is expected that the first TLD to use the TMCH for sunrise will be .jobs.  .jobs was delegated in 2005 but has recently changed its charter and has never had a sunrise period.  TMCH are predicting a very short testing phase before it goes live.

Some of the changes that have happened to the TMCH in the past few weeks include the following:

- The claims notice period has changed from 60 days to 90 days.

- The TMCH will provide brand holders with 30 days’ notice prior to the start of any sunrise period. This means that no TLD can start its sunrise without giving prior notice to the TMCH. If the TMCH does not have the resources/bandwidth to process the sunrise period, the TLD will have to delay sunrise until capacity is available.

- Brandholders will be able to register up to 50 variants of their marks in the TMCH as long as those variants have been the subject of successful litigation or UDP arbitration in the past.

Registries will have to pay a $5000 setup fee and then an additional 0.30c per registration.  Invoices will be sent quarterly and non-payments will be charged 1.5% per month or part thereof.

Registrars will no longer have to pay anything. ICANN will pay $2 mill to the TMCH to cover registrar costs.

Trademark holders and their agents have a choice of two payment structures. The basic fee structure is a straight $150/mark per year, with small discounts for registering for 3 or 5 years instead. Payments are to be made by credit card but for "security reasons" no more than 10 marks can be registered per credit card.

The advanced fee structure is a fairly complicated system where the registrations earn points and the price drops once certain point levels are reached.  Agents or mark holders are required to deposit $15000 initially which can be used for registrations. A positive balance is required to register a mark. Any positive balance can be refunded after the sunrises are completed.

Registrations start at $145 for one year but decrease in steps, down to $90 once a suitable number of points has been earned.  More points are earned for registering a mark for 3 of 5 years.  These points will be doubled if the registration happens during the "early bird" period (before the first sunrise). With the latest points scheme an agent would need to register 334 five-year marks or 3000 one-year marks to qualify for the $90/1 year registration price.

Registries can be audited to make sure they have complied.  They are expected to inform their registrars that they can also be audited by the TMCH if requested. There is also a procedure in place where 10% of the time the TMCH may require an agent to prove they have permission to represent a mark holder.

As of the ICANN meetings:

323 trademark holders were using the TMCH.

There were a further 140 holders in the pipeline.

100 trademark holders were waiting for registration and have not yet accepted the terms and conditions.

450 trademark records have been submitted.

1. Testing only applies to ICANN and Vendors. We were never given any feedback for participating in the test.  I want answers to my  questions.
Answer: We can't give feedback because it would not be fair to others.
ICANN: Deloite may have set up an email address. They may be answering questions. You can ask them and they may even  answer.

2. Why only .jobs for the first sunrise?
Answer: IBM could not support more than this or more than 30 testers.
Response: For .biz we were told you WILL let everyone in. Why does this not apply to IBM and .jobs? We had to do it so you can too.

3. NO TOS have been applied to the contract to IBM and there is no confidentially clause. It needs to be redone.

4. You only have a 2-week testing period before sunrise that is available to signed contract holders only. Not fair to rest.

5. Why do trademark holders trump everyone? This would mean that United Charity would always have to give way to United Airlines for the "united.tld" for example, regardless of the TMCH charter.

6. Premium names can’t be reserved. IF everything must go through sunrise first, it really restricts the business model.
Karen: The current version is draft, not intended to restrict. So we are taking that feedback and planning to have a call.

7. Why the prohibition on non-accredited RARs using TMCH?

There were many complaints about the RAA. In summary: all protection is given to providers, but no protection to registries, registrars and registrants.

There were many questions from the floor on why the TMCH is required to be the exclusive trademark system. In particular this is a significant issue for anyone expected to give preference to local business. This point was repeated multiple times by different registries. TMCH have promised to re-look at it.

 

AFRICAN INTERNET COLLABORATION RECEIVES BOOST WITH "BEIJING AGREEMENT"



A landmark Memorandum of Understanding (MoU) has been signed between the ZA Central Registry (ZACR) and the African Top Level Domains Organisation (AfTLD) at ICANN's 46th Public Meeting in Beijing, People's Republic of China.

Dubbed the "Beijing Agreement", the MoU is the foundation of the relationship between AfTLD - the representative of African country code Top Level Domain (ccTLD) managers - and ZACR - the registry that is set to be awarded the right to operate the new dotAfrica (.africa) registry by ICANN.

The agreement is a culmination of collaboration in existence since 2011 when AfTLD and its members endorsed the ZACR dotAfrica application. The agreement was signed by AfTLD President Dr Paulos Nyirenda, ZACR CEO Neil Dundas and the dotAfrica Steering Committee Chair Mohammed El Bashir. The key deliverable from the MOU is the allocation of a portion of dotAfrica’s surplus revenue for programmes aimed at enhancing African ccTLD capacity as administered by AfTLD.

The AfTLD capacity building programme includes technical, policy and regulatory training, workshops and conferences. The investment in AfTLD’s ccTLD programme is not the only key deliverable for the ZACR dotAfrica project. Other key deliverables are African registrar development, African content development and ancillary socio-economic objectives.




The current dotAfrica Steercom is a precursor to the establishment of a multi-stakeholder pan-African Foundation that will drive the execution of the key deliverables in consultation with the African Union Commission. The Foundation is the brainchild of ZACR and the African Internet community, and will ensure that dotAfrica is run in the interests of the African continent.

Through the Foundation, the ZACR and AfTLD will work towards the realisation of the objectives stated in the ZACR beneficiation model, which places a premium on building the African domain name industry and contributing to Internet growth in Africa.

According to Dr Nyirenda, "The agreement signed in Beijing recently will assist AfTLD in achieving many of its strategic objectives for the next five years. For example, the enhanced operation of ccTLD registries, improvement of the technical and administrative skills base of ccTLD managers, and building capacity regarding the arbitration of domain name disputes will all become possible through collaboration with the ZACR".

According to Mr Bashir, "The agreement between ZACR and AfTLD sets a very important tone and target for the forthcoming Foundation because it ensures that whatever surplus revenue is spent on projects in Africa, ccTLD development is one of the key priorities. There is even a possibility of having AfTLD playing a bigger role in dotAfrica than just in ccTLD development".

Collaboration has historically been integral to AfTLD's business model. The organisation - already recognised by ICANN as the representative of African ccTLDs - works in partnership with other Regional Top Level Domain Organisations (RTLDOs) such as Asia-Pacific’s APTLD, Europe’s CENTR and Latin-America’s LACTLD. AfTLD has formed solid partnerships with other common interest organisations, including ICANN, ISOC and NSRC, and these have seen AfTLD deliver cutting edge capacity building programmes for African ccTLDs.

ZACR ("formerly known as UniForum SA and known for its co.za operation) provides a central registry platform for some of the main .ZA second level domains, including co.za, net.za and web.za. It has been endorsed by the AUC as its preferred bidder for dotAfrica, and has since then garnered additional endorsements by at least 41 African governments.

With ICANN’s new gTLD evaluation in full swing and no objections having been received against ZACR’s bid, there is now strong anticipation that ZACR should launch dotAfrica later this year.


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