Guest Post: Senate Cautious but Not Hostile to New gTLD Programme
This is a guest post written by Peter Dengate Thrush, former chairman of ICANN and Chairman of Top Level Domain Holdings.
The US Senate’s Commerce Committee hearing into ICANN’s new gTLD programme came and went this morning without any of the fireworks some might have predicted from the press storm generated by its recent opponents, the ANA.
The tone was set early on by Committee Chair Senator Rockefeller: “Cyber squatters are an abomination…I think I have to be very very sensitive to the question of the money you feel you are going to have to spend to protect yourself against cyber squatters…they will go on as long as the Internet goes on…
“But that’s not the point…I think we have to get used to .hotel…. I think we have to get used to .auto… I start from that position, but I listen.
“I think a surge of new names and addresses can create opportunities: whether they will or not.. I do not yet know… If ICANN is determined to move forward, it surely better do so slowly and cautiously…
The Senator’s explicit adoption of .hotel was a direct response to witness Esther Dyson, ICANN’s founding Chair, who tried to build an argument against the programme, using .hotel as an example. Comparing them to derivatives, she said “it doesn’t make sense” and ” I don’t see the point of this programme”. Clearly, the Senator does.
The 90 minute hearing heard from Fiona Alexander (NTIA), Kurt Pritz (ICANN), Angela Williams ( YMCA), Dan Jaffe (ANA) and Esther Dyson (Investor).
NTIA – which has publicly supported the multi-stakeholder model and ICANN’s role as coordinator of the Internet’s naming and numbering system since 1998, and which participated actively in ICANN’s new gTLD programme, pointed to the “unprecedented” engagement by the Governmental Advisory Committee (“GAC”) with the ICANN board in the policy implementation process.
NTIA believes that ICANN improved the new gTLD program by incorporating a significant number of proposals from the GAC. ICANN’s new gTLD program also now provides law enforcement and consumer protection authorities with significantly more tools than those available in existing gTLDs to address malicious conduct
YMCA’s Williams first point – that not-for-profit organisations couldn’t afford the $185,000 to apply themselves for new gTLDs – was somewhat undercut by the recent news that ICANN will be charging some worthy applicants only $47,000.
A better argument was that one of the major brand protections – the Trade Mark Clearing House – has still not been fully specified or built, with applications now less than 40 days away. Infringements are costly for not-for-profits to pursue, and threaten a major source of funding – online appeals.
For ANA, Dan Jaffe made the kind of points the ANA has been making publicly: “We believe the new gTLD Program is bad for marketers, consumers and the entire online marketplace. Consistent with the Affirmation of Commitments, ICANN has a responsibility to ensure that its actions further the public interest, promote consumer trust and the burgeoning Internet domain. We strongly believe that ICANN’s new gTLD Program fails all of these standards.
“This Program in aggregate has multi-billion dollar implications for all marketers, both in the commercial and the nonprofit sectors, and their brands. It would cause irreparable harm and damage to the entire online business community. It would throw the domain name universe into substantial confusion for both marketers and consumers.”
The basis for the “multi-billion dollar implications” continued to be the unproven and illogical extrapolation from the cost of brand protection on the Internet now, multiplied by the number of new TLDs that might be granted.
Mr Jaffe scored good points in complaining about the current Whois data; he produced blow up charts showing that parties can register domain names under names such as “Mickey Mouse” and “Donald Duck”. ICANN has struggled for many years with ways of requiring and maintaining accurate whois data.
But as Mr.Pritz pointed out to the Committee, domain name abuse occurs almost entirely in dot com – not the other 22 gTLDs – because that’s where the traffic is ie that is where it pays. And as he also pointed out, there are more, and stronger protections in the new TLDs than are available presently in com/net/org.
The same point was made in response to questions about defensive registrations; Mr Jaffe asserts that major brand owners are going to have to apply defensively in every one of the possibly thousands of new gTLDs.
Again Pritz pointed to the evidence that dispels this claim. There are stronger IP protection mechanisms (Trade mark notice, rapid take down via a URS that is cheaper and faster than UDRP, Post Delegation Dispute resolution process against the registries if they are involved… and more). And he noted the facts – historically brand owners have not applied in all of the existing TLDs, so there is no expectation that will change with new gTLDs.
What was gratifying was the level of understanding by the Committee, and their tacit support of the multistakeholder nature of ICANN. An encouraging part of that was a better understanding of the relationship between NTIA and ICANN.
The Committee’s Public Record will be open for a further week, so we can expect further written submissions, possibly further questions from the Committee.
Overall, the tone was cautious but not hostile to the ICANN programme. Delays by ICANN in dealing with law enforcement requests, delays in renegotiating Registrar contracts, delays in settling the terms of the Trade Mark Clearing house could all result in further calls for a delay in the start date of the programme or, more significantly – its closing date.
But the more extravagant claims: that the programme should be abandoned as being “a tax on attractive nuisances” (Dyson) or paused until every single application can be “justified in the public interest” ( Jaffe) or that not-for-profits should get free gTLDs for their trade marks – these received little attention or support.
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