The Internet Corporation for Assigned Names and Numbers (ICANN) has been working steadily to prepare for the opening of the new generic top-level domain (gTLD) program, scheduled for January 12, 2012, since its Board approved the program in Singapore on June 20, 2011. Although ICANN’s approval of the program included an approval of the version of the Applicant Guidebook (AGB) published on May 30, 2011, ICANN reserved the right to make additional updates to the AGB and program provisions as needed prior to the opening of the application period. On September 19, 2011, ICANN exercised that right and released an updated version of the AGB. The updates provided in this version largely reflect refinements discussed during the Singapore meeting, and the edits are largely cosmetic rather than indicating any significant policy shifts. Please find below a synopsis of the most noteworthy changes for prospective applicants and others interested in the progress of the program.
Applicant Guidebook Updates
Updates and clarifications provided in the September 19 AGB include the following:
- User Registration – Any party who wishes to apply for a new gTLD must register in the TLD Application System (TAS) by March 29, 2012. Although the new gTLD application period does not close until April 12, 2012, ICANN has instituted a firm cutoff date for beginning a new gTLD application due to the lengthy and complex nature of the application.
- GAC Early Warning and Advice – Earlier this year, ICANN expanded the role of the Governmental Advisory Committee (GAC) in the new gTLD application process by introducing a provision by which the GAC can provide an early warning that an application may be problematic to one or more governments. ICANN has added some provisions to the GAC’s role, including increasing the impact of non-consensus advice and specifically reserving the right to further amend the AGB to publish a GAC-created standard vocabulary for the GAC’s use in providing advice on new gTLDs.
- Criminal History – Individuals who have pleaded guilty or had adjudication withheld of certain specified offenses are now also deemed ineligible to be part of an entity which is applying for a new gTLD.
- Applicant Assistance – ICANN has stated that it is now establishing an independent program to provide financial assistance to eligible applicants.
- Additional Prohibited Names – ICANN has announced that certain names relating to the International Olympic Committee and Red Cross will not be permitted for delegation as new gTLDs. While these names are not being permanently added to the Reserved Names List, at a minimum, they will be prohibited during the first round of gTLD applications.
- Application Fees – Preferred methods of payment are now specified, and ICANN has advised against using the ACH payment system as it could affect the timely processing of the application.
- URS Response Fee Limits – In the April 15 version of the AGB, ICANN had introduced a “loser pays” model for the Uniform Rapid Suspension System (URS), an administrative procedure through which infringing second-level domains can be disabled. ICANN has now reduced the number of infringing domains required to be registered by a single registrant to activate the “loser pays” model from twenty-six (26) to fifteen (15).
Recommended Next Steps in the New gTLD Planning Process
With the new gTLD application window opening in less than four (4) months, it is clear that ICANN is actively preparing for the program launch by its continuing communications and refinements regarding the program. While there may be some additional modifications to program policies between now and January 2012, any further adjustments are likely to be of a similar cosmetic nature. As such, we recommend all parties interested in the new gTLDs who have not yet decided whether they are going to submit an application to make their final decisions as soon as possible. To assist with the critical decision regarding whether or not to apply for one or more new gTLDs, parties should:
- Engage counsel who are experts in Internet governance and ICANN matters to assist with navigating their new gTLD strategy;
- Create a cross-functional team of stakeholders to make business decisions regarding the program, including input at the executive level;
- Ensure that relevant stakeholders are aware of the program, its opportunities, the final timeline, and potential risks of not participating; and
- Assess budgetary, staffing, and technical resources required to apply for a new gTLD and operate a registry.
Whether or not they are applying for their own new gTLDs, enforcement will also be a key concern for all brand owners. Thus, before the application period commences, organizations are strongly encouraged to:
- Evaluate their current trademark and domain name portfolios, and assess enforcement priorities;
- Develop an updated enforcement strategy for before the application period opens, during the application period, and after the new gTLDs are operational; and
- Allocate budget and personnel to address new enforcement needs in 2012 and beyond.