Some mistakes made by companies are irreversible, while some are not. Everyone over 40 years old remembers “New Coke.” Yuck, right? Consumers didn’t like the idea and Coke quickly backpedaled. ICANN has been given not only a second chance to undo a mistake that is hurting it in the marketplace, but due to the genius of the unique ICANN accountability mechanisms, it has been given a third chance. Let me explain.
Most all trademark lawyers and brand managers know the basics of the .amazon TLD story. For the long version, read pages 6-16 of the .Amazon Request for Independent Review Process (IRP). It boils down to this: Amazon applied for the .Amazon top level domain name. The application passed all examination with flying colors, and survived all objection processes to which it was subjected. “Amazon” did not appear on any of the banned geographic terms that ICANN previously published in the Applicant Guidebook. This application should have been a “no brainer” for ICANN and sent along without controversy for delegation. It should have been a moment of triumph for ICANN—a major innovator believed in its new gTLD program and was prepared to bring its innovation to the domain name space for the benefit of consumers. Sadly, ICANN came under political pressure and ended up creating a problem for itself.
A few governments objected to .amazon, even though it was not on the list of banned geographic terms (the objection appears to be based on an inaccurate claim that “amazon” was on the banned geographic terms list when it wasn’t—see page 16 of the Amazon IRP Decision). Other governments, through the Government Advisory Committee (GAC) went along with it—presumably because of the inaccurate claim that “amazon” was banned. This resulted in GAC “advice” to the ICANN Board, asking the Board to reject the application. The GAC did not provide a rationale; after all, what rationale could there be to ask ICANN to ignore its adopted policies, published implementation documents, and its own economic best interest in a successful first new gTLD round that would lead to many others, as brand owners confidently leapt into the new gTLD .brand space following Amazon’s early adopter example?
When making its decision, the ICANN Board didn’t ask GAC for a rationale, nor did the Board develop one of its own. The ICANN Board just accepted GAC advice and denied the .amazon application. In the process, ICANN did itself great harm by following GAC advice that was political in nature rather than following its own published rules. ICANN’s job is to make consistent decisions based upon stated policy and published implementation documents. In order to do so, it has to be able to withstand the political winds of the day. As we all know, the political breeze can change overnight and is not a reliable basis for decision-making within the DNS. ICANN’s decision to set aside its own policy and implementation documents was missed opportunity number one.
Missed opportunity number two was when Amazon filed its Request for Reconsideration. ICANN’s unique system of accountability checks and balances gives the ICANN Board an early failsafe in which an aggrieved party can ask the Board Governance Committee (BGC) to look over a decision and give the ICANN Board a second chance to backpedal away from a mistake when it makes one. Amazon presented all the reasons why the Board’s decision to follow political advice instead of standing by ICANN’s own policy and implementation documents was a mistake. Unfortunately, the BGC consisted, in part, of the same people who made the original decision (Amazon’s pointing out the inherent conflict was ignored). So instead of helping guide ICANN out of the mistake, the BGC doubled down on the error and denied the reconsideration request. This was missed opportunity number two, and it had real world, practical negative consequences for ICANN, including:
- Delay in the transition away from U.S. government (USG) oversight. This should have been the easiest thing that ICANN ever did, but it wasn’t. Normally, the free speech crowd and the anti-federal government overreach crowd should have joined hands and thanked the USG for its willingness to leave, thrown them a nice, quick goodbye party, and walked them politely to the door. After all, ICANN was always meant to be a private sector initiative. Unfortunately, the extremely poor .amazon decision was a wakeup call to the entire Internet community. The decision made it more difficult to trust the ICANN Board to do the right thing when it came under pressure (and the ICANN Board is always under pressure. The fear was so great, that the community wasn’t willing to see the USG off until more safeguards checking the power of the ICANN Board were in place. After all, if it could happen to Amazon, it could happen to anyone. This resulted in a years-long effort to enhance ICANN’s accountability (much of which was directed at curtailing the ICANN Board’s ability to wield power). The delay caused by the (now obviously necessary and vital) accountability work resulted in the transition away from the USG coming down to the wire as the Obama Administration entered its final days.
- Further tarnishing of ICANN’s name within the business community. ICANN has struggled over the years to be viewed as a trusted, reliable partner to the business community. A series of course changes and implementation delays leading up to the first round of new gTLDs had a negative impact on ICANN’s brand. However, the denial of .amazon was an entire degree further. Unfortunately, the ICANN brand is now associated with delay and unpredictability.
- Perhaps most importantly, ICANN’s failure to follow its own rules and its bowing to political demands has resulted in a multiyear delay in the delegation and use of the .amazon domain name. This likely led to the delay of adoption of new gTLDs by other brands, which is unfortunate since Amazon and other .brands that actually use their TLDs for the benefit of their customers contribute significantly to consumer acceptance. Imagine how much real demand there would be for a round two of ICANN’s only “product”—new gTLDs—if .amazon had been delegated on time. It will be very difficult to convince new brands to apply if they believe they could be put through the same dysfunctional process that Amazon has been through.
All hope for ICANN is not lost! The good news is found in the genius of ICANN’s accountability mechanisms. ICANN has been given a third chance by the IRP panelists who found in Amazon’s favor. The ICANN Board can course correct and accept the IRP decision and allow the .amazon application to proceed to delegation. It should do so as soon as practical. By doing so, ICANN will be remembered not for its early error of bowing to political pressure, but for accountability mechanisms that work and lead ICANN back to a better path when it strays.