As regular readers of Anchovy News will know, the process for the launch of new generic Top Level Domains (gTLDs) has been ongoing since June 2008 when the board of the Internet Corporation for Assigned Names and Numbers (ICANN) gave its approval to the proposal to introduce new gTLDs.
As reported in the September issue of Anchovy News, ICANN published the eighth iteration of the new gTLD Applicant Guidebook (AGB) on 19 September 2011 which many observers are treating as the final version of the AGB despite the many question marks that still hang over the new gTLD program.
ICANN now seems to be taking action to address some of these points. The first indication that ICANN was stepping up to the plate came in the form of a Request for Information (RFI) to identify potential operators of the Trade Mark Clearinghouse (TMCH).
The TMCH is one of the tapestry of interwoven recommendations that was suggested by the Implementation Recommendation Team (IRT) in 2009. As set out in the current version of the AGB, the TMCH provides the foundation for the mandatory pre-launch rights protection mechanisms (RPMs) in the new gTLDs.
As reported in previous issues of Anchovy News, the TMCH will be operated as a central database of trade mark rights which all new gTLD Registries will be obliged to use during the pre-launch phases of domain name registrations under the new gTLDs.
According to the current AGB, trade mark holders will be able to submit their trade marks to the TMCH. The criteria for inclusion in the TMCH are as follows:
- Nationally or regionally registered word marks from all jurisdictions;
- Any word mark that has been validated through a court of law or other judicial proceeding;
- Any word mark protected by a statute or treaty in effect at the time the mark is submitted;
- Other marks that constitute intellectual property.
By submitting their trade marks to the TMCH, brand owners will be able to take advantage of the mandatory Trade Mark Claims and Sunrise services. Furthermore, trade mark holders will avoid having to submit their trade mark data to each individual gTLD Registry during their pre-launch phases.
In addition to the above, an ongoing benefit of the TMCH for trade mark holders relates to the Uniform Rapid Suspension System (URS). Under the current rules for the URS, a complainant must demonstrate, among other requirements, that the domain name is identical or confusingly similar to a word trade mark that is in current use. In order to meet the criteria for showing 'use' the complainant can either submit proof of use with the URS complaint or they can rely on evidence of use that was submitted to and validated by the TMCH.
As such, the TMCH is a vital component of the new gTLD RPMs and ICANN had come in for some criticism for not taking steps to seek a provider for the TMCH, despite the approval of the new gTLD program in June 2011.
However, ICANN has now taken action to address this and has issued an RFI seeking input from potential operators of the TMCH on how they intend to meet ICANN's requirements for the TMCH. As matters currently stand in the AGB and in the recently issued RFI for the TMCH it is very likely that ICANN will seek to appoint two different entities to operate the TMCH, with one entity fulfilling the authentication and validation of submitted trade mark data and a second entity fulfilling the Trade Mark Claims and Sunrise services. However, it is still possible that both functions may be provided by one entity alone.
Responses to the RFI are due by 25 November 2011 and ICANN will announce the successful candidate on 14 February 2012.
Instrumental change to the AGB?
Meanwhile, ICANN has published on their website a proposal from the Registries Stakeholder Group (RySG) suggesting an alternative approach to the Continued Operations Instrument (COI) as described in the AGB. The current version of the COI requires all new gTLD applicants to show that they have sufficient monies in place to fund a minimum of three years' worth of critical Registry operations in the event that the new gTLD Registry operator goes out of business.
The COI has primarily been put in place to protect registrants of domain names under the new gTLDs and to ensure that in the event of a failure of a new gTLD Registry domain names will continue to function. The period of three years has been identified as a suitable length of time to transition to a new Registry operator.
According to the AGB, the COI can either be an irrevocable standby letter of credit (LOC) or an irrevocable cash escrow account with a term of five years. As such this could be a large sum of money for new gTLD applicants to not only build into their business plans, but to also lay aside for a long period of time. Indeed, the higher the volume of potential domain name registrations, the higher the sum of money that must be set aside.
Critics of the COI have pointed out that it places a large financial burden on would-be new gTLD applicants and may in some cases be an actual barrier to entry for some applicants. In addition to this it is also possible that some new gTLD applicants would seek to downplay their projected figures for domain name registrations in order to free up capital.
As a result of this members of the RySG have proposed an alternative model to the COI. The proposal calls for the creation of a Continued Operations Fund (COF). Each successful new gTLD applicant would pay a fixed sum of $50,000 into the COF.
While this model would appear to level the playing field somewhat with regard to the financial burden that the COI would impose, it is clear that those gTLD applicants who are seeking to operate small scale Registries may prefer to keep to the current COI model as outlined in the AGB.
The closing date for comments on the RySG COI proposal is 2 December 2011.
TAS demo launched
ICANN has also released an interactive demo of the Top- Level Domain Application System (TAS). The TAS demo offers a glimpse into what the online application process for the new gTLDs will look like (subject to any future amendments) from user registration to creation of application profiles to completing and submitting a new gTLD application.
Thus it seems that after a relatively quiet summer, ICANN is starting to up the pace of the new gTLD program and firmly has its eye on the launch date of 12 January 2012. Whether or not this launch date will slip would seem to depend on last minute interventions in the guise of intervention from US Congress, one of the hinted at law suits against ICANN becoming a reality or the Government Advisory Committee of ICANN again flexing its muscles in an effort to enforce a goslow. Whatever happens, the run-up to January 2012 promises to be interesting.