Review Mechanisms, GAC Advice Hold Up Last Remaining New gTLD Applications

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By Alexis Kramer

June 16 — Hundreds of new top-level domains have been added to the Internet following the 2012 launch of the Internet Corporation for Assigned Names and Numbers' new top-level domains program. However, after three years of waiting, several dozen domains are stuck in the pipeline – tripped up by objections from ICANN's government advisors, or bogged down in dispute resolution processes that have no firm end date.

Out of 1930 total applications submitted since January 2012, 647 new top-level domains (TLDs) have been delegated and several hundred more are on the verge of delegation. Forty-two additional proposed TLDs are held up in the process, however, either due to being a part of an unresolved contention set or the subject of an active accountability mechanism.

Leading causes for delay include:

• accountability mechanisms (e.g., Cooperative Engagement Process (CEP); Independent Review Process (IRP); reconsideration process);

• ongoing Community Priority Evaluations (CPE); and

• advice from the Governmental Advisory Committee, particularly with respect to applicants that want to operate their proposed gTLDs as exclusive access registries.

There are many ways that an application for a new top-level domain may be tripped up. ICANN's rules provide for legal rights objections, string confusion objections, limited public interest objections and community opposition. Community applicants face an additional hurdle, a CPE proceeding that determines whether the applicant meets ICANN's criteria for operating a community TLD.

Because ICANN failed to provide formal appellate mechanisms for any of these forms of objection, parties seeking to challenge their outcomes have had to resort to ICANN's generally applicable accountability mechanisms: reconsideration requests and independent review.

Donuts Inc. is currently involved in two such review processes in objection to ICANN's treatment of CPEs. The company is also involved in three proceedings challenging community priority evaluations that gave the successful community applicants the right to operate domains that Donuts had applied for as a non-community applicant.

Other applicants have filed CEPs or IRPs to challenge the results of: their own CPE applications; objections based on their trademark rights in a proposed string; and string confusion or similarity determinations that placed their applications in contention sets with confusingly similar strings.

Applications for three gTLDS, .home, .corp, and .mail, are in a semi-permanent “on hold” status due to security and stability concerns raised by the prospect of name collisions. A name collision occurs when a request for a resource on a private network is mistakenly routed to a similarly named resource on the public domain name system.

ICANN authorized the launch of the new gTLD program in June 2011. The program moved past the application and evaluation phases and is now in the final contention resolution phase. According to the Applicant Guidebook, cases of string contention can be resolved either among the applicants themselves, through a community priority evaluation or through an auction.

ICANN has scheduled a July 29 auction to resolve the contention set for the .art top-level domain.

Lack of Time Limits Cause Applicant Frustration

Jennifer C. Wolfe, founder and CEO of Wolfe Domain in Cincinnati, told Bloomberg BNA that even though the new gTLD program may be moving painfully slow for some applicants, ICANN actually is doing the best that it can under the circumstances. “Considering the magnitude of what is happening, I don't think it's surprising that unexpected issues have arisen,” she said.

ICANN's Generic Names Supporting Organization (GNSO) is working to develop policies to improve upon the new gTLD program processes for subsequent rounds.

First round applicants nevertheless continue to voice their frustration over delays in their applications as a result of ICANN's various accountability mechanisms.

The community applicant for .radio, for instance, wrote a letter in March saying that a CEP placing its application on hold for an indeterminate period of time had been ongoing for over two months and that he was not notified of the commencement of such process. The applicant for .eco also challenged ICANN's inaction to terminate an ongoing CEP initiated by Donuts against its string, but withdrew its request for reconsideration March 19 after the CEP ended.  Donuts filed an IRP, however, on March 24. 

Donuts filed a CEP for .radio and IRPs for .hotel and .eco after the Board Governance Committee denied its requests for reconsideration of CPEs that resulted in the elimination of their applications from each contention set. The IRPs for .hotel and .eco were consolidated May 12 due to Donuts' identical claims that ICANN accepted a CPE panel's arbitrary determination on each of the community applications.

IRPs also remain active for .rugby, .sports and .charity upon request by Donuts to challenge the results of community objections over its applications. Donuts lost community objections to its .rugby and .sports applications in January 2014, and subsequently initiated a CEP in July 2014 which lasted for three months. Donuts requested the IRP in October 2014.

The sports community, in a November 2014 letter to the emergency arbitrator at the International Centre for Dispute Resolution, sought to dismiss Donuts' IRP action, claiming that it lacked standing to engage in the IRP and that it has caused an unwarranted delay in the delegation of their gTLDs. The IRP remains active however, and a panel was confirmed April 7.

Donuts recently requested an IRP for .charity in April on the grounds that a similarly situated applicant for the same string prevailed over its community objection. Further, Donuts still has an active CEP for the .hospital string over a community objection, even though ICANN determined that the string will not proceed.

Applicants Challenge Consistency of CPE

Dot Registry LLC, the only community applicant for .inc, .llc and .llp, filed an IRP to review the ICANN board's handling of a community priority panel's determination that these strings did not pass CPE. The registry alleged that the panel lacked the requisite skill and knowledge of corporate structure to serve as a qualified expert on its strings, and that the board failed to ensure the panel followed ICANN policies accurately and in a transparent, unbiased manner.

A community priority panel recently determined that Commercial Connect LLC, the applicant for .shop, did not prevail in CPE, awarding the applicant five out of 16 points. Jeffrey Smith, president of Commercial Connect, told Bloomberg BNA that he will file a request for reconsideration of this CPE in the next few days.

Smith expressed frustration that the panel did not award it community priority status with over 1200 supporters. He added that opposition to the application was lacking, and that he “never heard one company object to what we want to do with e-commerce in 15 years.”

Evan Leibovitch, vice-chair of the At-Large Advisory Committee and Open Source Architect at York University in Toronto, said at a March 15 meeting of the GNSO New gTLDs Subsequent Rounds Discussion Group that reliability and consistency issues of the CPE process need to be fixed for the next round of new gTLDs. “There were a lot of community applications that did not legitimately get heard because of what was considered to be a really, really wonky community evaluation process — wonky, unreliable, inconsistent, and not applied well at least into what a lot of people in the circle I travel consider to be communities,” he said.

ICANN's ombudsman recognized the large number of complaints about the CPE process and commenced an investigation in March. According to a blog post, the ombudsman's preliminary report was expected by the end of April, but it has not yet been released.

Applicants Challenge String Confusion

Two applications are currently held up in IRPs challenging string confusion determinations that placed visually similar strings together into contention sets. Vistaprint Ltd., the applicant for .webs, filed an IRP in June 2014, requesting that ICANN overturn a string confusion objection determination putting its application in contention with .web. Vistaprint petitioned ICANN to postpone its hearing date to allow for an additional round of submissions to address relevant issues raised in a separate IRP declaration, but ICANN denied Vistaprint's request.

The IRP hearing took place on May 28.

.Hotels applicant Booking.com also filed an IRP request challenging a string similarity review determination, which placed its applied-for string in a contention set with .hoteis. The ICANN board April 26 rejected Booking.com's request, accepting the IRP panel's findings that it failed to identify any board action inconsistent with ICANN policy regarding the implementation of the string similarity review process.

The board recognized in its meeting minutes that the string similarity review process lacked certain elements of transparency, but said that it would only consider resolving these issues in future rounds. In response, Booking.com filed a request for reconsideration of the board's decision May 13. Although the IRP ended in March, Booking.com's application remains on hold pending this request.

Applicants Awaiting CPE

DotMusic Ltd., one of two community-based applicants for the .music gTLD, is still awaiting CPE after a May 6 BGC determination denying reconsideration of ICANN's approval of the applicant's request to modify portions of its application. ICANN issued an applicant advisory in September 2014, saying that application changes would not be permitted because applicants could otherwise unfairly incorporate the learnings of previously posted CPE results.

Far Further, the other community-based applicant who submitted the reconsideration request, did not prevail in CPE, receiving only three out of 16 evaluation points.

Three other CPEs are in progress: one for .spa and two for .cpa. Asia Spa and Wellness Promotion Council Ltd., the community applicant for .spa, was invited to CPE in February. The two community-based applicants for .cpa were invited to CPE April 8. In May, Donuts submitted comments with regard to CPA Australia's application for .cpa, arguing that the applicant should not pass CPE.

In January, the BGC granted the .gay community applicant reconsideration of an unfavorable CPE because the CPE panel failed to verify 54 letters of support. A reevaluation of this CPE is also in progress.

Dotkids, the community based applicant for .kids, is not yet eligible for CPE because its application is on hold due to objections from the European Commission. According to a letter sent to ICANN in November 2012, the Commission said that the .kids gTLD could “possibly raise issues of compatibility with the existing legislation and/or with policy positions and objectives of the European Union.”

To be eligible to begin CPE processing, an application must have an active status and be in an unresolved contention set.

Applications Subject to GAC Advice On Hold

The .food, .mobile, .data, .phone, .cruise and .cpa applications are on hold due to applicants that wished to operate their applied-for string as an exclusive access registry, contrary to GAC advice regarding Category 2 safeguards for new gTLDs. In its Beijing Communique, the GAC advised that “for strings representing generic terms, exclusive registry access should serve a public interest goal”. The GAC considered these strings to be generic where the applicant was proposing to impose eligibility criteria that would limit registrations exclusively to a single entity for strings representing product categories rather than brand names.

In August 2013, ICANN solicited responses from applicants of the 186 applications representing generic strings with regard to whether they planned to operate their applied-for strings as exclusive access registries. For those applicants who responded that they would not, ICANN required them to submit a change request to align their applications with their stated intent.

The .cpa and .mobile applications still require a change request. The .food, .cruise, and .data applications are currently pending direction from the NGPC. The application for .phone was resolved, but it is still on hold due to a community objection in process.

In a June 5 NGPC meeting, ICANN staff presented two options for handling these remaining gTLDs: either reject them in the current round and consult with the GNSO about developing consensus policy for future rounds; or initiate a community process to develop criteria to evaluate whether an applicant's proposed exclusive registry access would serve a public interest goal. The NGPC has not yet reached a decision.

Further, Donuts filed in March a reconsideration request to challenge a new public interest commitment that would limit all registrations in the .doctor gTLD to medical practitioners.

Pursuant to advice provided in the GAC's Buenos Aires Communique, the NGPC decided Feb. 5, 2014 to move the .doctor string to highly-regulated industry Category 1 status. The reconsideration request is awaiting a BGC determination.

Applications for .wine and .vin were recently changed from “on hold” to “in contracting” after the European Commission dropped a CEP challenging ICANN's decision to delegate the strings. Although the proposed .wine and .vin domains generated substantial opposition in some wine-producing countries, the GAC was unable to muster consensus advice against them. Donuts and the EC appear to be close to resolving their differences via negotiated changes to the standard ICANN registry agreement.

Legal Rights Objections

AC Webconnecting Holding BV, one of two applicants for .cam, remains in an active CEP over the rejection of its legal rights objection. An independent panel at the WIPO Arbitration and Mediation Center held that the potential use of the proposed .cam gTLD by applicant Dot Agency Ltd. would not take unfair advantage of the distinctive character of AC Webconnecting's BOYCAM and XLOVECAM marks, in view of a lack of sufficient similarity between the string and the marks.

Merck KGaA, applicant for .merck, has been in an active IRP since July 2014 over the denial of its LRO objection against a former subsidiary that applied for the same string. Merck KGaA, arguing that the LRO panel failed to apply the appropriate LRO standards, filed a reply submission May 20. ICANN is expected to file a rejoinder submission July 8.

Geographic String Issues Not Resolved

Applications for .gcc and .africa are still on hold due to an ongoing CEP and IRP, respectively, over GAC advice that applications for these strings should not be approved.

.Africa applicant DotConnectAfrica Trust filed the IRP in November 2013, and a hearing was held on May 22. An IRP panel ruled in April that ICANN was required to produce two witnesses to testify despite ICANN's argument that requiring live witness testimony contradicted its bylaws.

The Gulf Cooperation Council filed an IRP in December 2014 in response to ICANN's rejection of its community objection to the .persiangulf string. The GCC was silent for the next 14 months, until it filed an IRP and sought emergency measures to review ICANN's approval of the gTLD.

The applicant for the .persiangulf string filed a separate CEP in January.

An Emergency Independent Review Panel held Feb. 12 that an IRP initiated over a year after the community objection determination could proceed in view of an informal engagement process that occurred during that time. Both the IRP and CEP remain active.

In February 2014, ICANN chair Stephen Crocker wrote to the applicant of .halal and .islam, saying that the NGPC will not address these applications further until conflicts with the Gulf Cooperation Council, the Republic of Lebanon, the Organization of Islamic Cooperation and the government of Indonesia are resolved.

ICANN Will Review Current Round

ICANN is currently undergoing reviews of the first round of the new gTLD program before launching into the next. The organization is in the process of collecting and analyzing data in the areas of program implementation, rights protection mechanisms, and competition and consumer trust. A draft work plan was published September 2014 and updated in January to guide these reviews and present progress in each area.

The new gTLD program Reviews will consist of a number of reports that will be published for public comment throughout the process. According to the draft work plan, ICANN anticipates that the remaining contention resolution procedures will be completed by the third quarter of 2016.

Further, the GNSO Council created a discussion group to review the current round and identify issues to be addressed for subsequent rounds. Topics raised by this group include the effectiveness of the string similarity review process in preventing user confusion, the adequacy of accountability mechanisms and the consistency of the CPE process. ICANN staff is expected to produce an issue report on the discussion group's findings.

ICANN will discuss its review process as well as updates from community groups on their work related to the next round June 22 at the ICANN 53 Public Meeting in Buenos Aires.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com

Status of New gTLD Applications

String Status Update
.africa Active IRP over GAC advice saying DotConnect's bid should not be approved. Hearing took place May 22-23, 2015.
.amazon Active CEP. Application will not proceed.
.cam Active CEP over LRO determination.  
.charity Active IRP over community objection. Donuts filed IRP April 7.
.corp On hold due to security and stability concerns raised by name collisions.  
.cpa In CPE. Two CPEs in progress. Donuts submitted comments May 11 regarding CPA Australia's CPE application.
.cruise Subject to category 2 safeguard advice. Pending direction from NGPC.
.data Subject to category 2 safeguard advice. Pending direction from NGPC.
.doctor Reconsideration request filed over PIC requirement. Donuts filed request March 12.
.eco Active IRP over CPE. Consolidated with .hotel on May 12. Donuts requested IRP March 13 to challenge the alleged lack of transparency in the Panel selection process.
.food Subject to category 2 safeguard advice. Pending direction from NGPC.
.gay Active CEP. Community applicant is awaiting new CPE.
.gcc Active CEP over GAC advice saying application should not be approved. Application not approved.
.halal Active CEP. ICANN chair Stephen Crocker wrote in a letter Feb. 2014, that the NGPC will not review the application further until conflicts have been resolved.
.home On hold due to security and stability concerns raised by name collisions.  
.hospital Active CEP over community objection. Application will not proceed.
.hotel Active IRP. Consolidated with .eco on May 12.
.hotels/.hoteis Reconsideration request filed over IRP determination. IRP request rejected, contention set can proceed as of April 26 Board meeting.
.inc Active IRP over applicant's unsuccessful CPE. Procedural hearing took place Feb. 19.
.islam Active CEP. ICANN chair Stephen Crocker wrote in a letter Feb. 2014, that the NGPC will not review the application further until conflicts have been resolved.
.kids In CPE pending eligibility. Application is still on hold due to objections from the European Commission.
.llc Active IRP over applicant's unsuccessful CPE. Procedural hearing took place Feb. 19, 2015.
.llp Active IRP over applicant's unsuccessful CPE. Procedural hearing took place Feb. 19.
.mail On hold due to security and stability concerns raised by name collisions.  
.merck Active IRP over LRO determination. Preliminary hearing conference call to be scheduled.
.mobile Subject to category 2 safeguard advice. Change request required.
.music Second community applicant awaiting CPE. BGC denied May 6, Far Further's request for reconsideration of ICANN's approval of DotMusic's application change request.
.persiangulf Active CEP/IRP. Hearing on Request for Interim Relief took place Dec. 23, 2014. ICANN dismissed community objection to gtld due to sensitivity of term. Filed IRP 14 months later.
.phone Subject to category 2 safeguard advice. Resolved. Community objection in progress.
.radio Active CEP over CPE. ICANN responded to a letter sent by the European Broadcasting Union April 14, saying that it will now notify all affected applicants of a CEP.
.rugby Active CEP over community objection. Donuts requested IRP in October 2014.
.shop On hold pending accountability mechanism. CommercialConnect is about to file a reconsideration request over its failed CPE.
.spa In CPE. Applicant invited to CPE in February.
.sports/.sport Active IRP over community objection; active CEP over Donut's IRP request. IRP panel was confirmed April 7.
.webs Active IRP over string confusion objection. Hearing took place May 28, 2015.
.wine/vin European Union withdrew from CEP. Applicant in contracting.

Key Definitions

• Cooperative Engagement Process: Informal mediation process that may precede other accountability mechanisms

• Independent Review Panel: Accountability mechanism that allows challenges to independent panel for process-related ICANN board decisions but no substantive review

• Reconsideration: Accountability mechanism that asks the ICANN board or a subset of directors to reconsider a previously made decision

• Community Priority Evaluation: Review of community applications for TLDs; applicants prevailing in CPE receive delegated strings without having to compete with general applicants for the same string

• GAC advice: Consensus of government representatives, creates a strong presumption that the ICANN board must follow or explain its rationale for ignoring

• String Confusion Objections: Challenges to applications based on visual similarity to other applications, including singulars/plurals

• Legal Rights Objections: Challenges to applicants based on competing claims of intellectual property rights to use a name

• Name Collision: Technical issue affecting strings commonly used within private networks, creating confusion whether requests seek information on the private network or the DNS