Following the submission of over 1,900 applications for new generic top-level domains (gTLDs) in 2012, ICANN has been proceeding with the new gTLD evaluation process. This process has offered several opportunities for various members of the ICANN community to voice concerns regarding specific applications, including a formal objection process. The submission window for new gTLD formal objections closed earlier this week, on March 13, 2013. Please find below a discussion of the formal objection process, as well as next steps for both objectors and applicants who may receive objections.
Formal Objection Process
A formal objection is an alternative dispute resolution process administered by various third-party Dispute Resolution Service Providers (DRSPs) that engage a panel of qualified experts in the relevant subject area to review and adjudicate the objections. In contrast to public comments, which could be filed on any application by any party, the filing of a formal objection initiates a legal proceeding that requires payment of a filing fee, as well as participation and a response from the relevant applicant in order to continue with the new gTLD evaluation process.
ICANN offered four grounds for objecting to a new gTLD application: string confusion, legal rights, limited public interest, and community, with each having different standards and standing qualifications. For the last two types, an Independent Objector, acting solely in the best interest of global Internet users, was permitted to file its own objections on the basis of relevant public comments. The Independent Objector has already published a list of its filings including 24 objections targeting dot-brand TLDs with geographic meanings, as well as charity and health-related TLDs. A successful objection will generally result in the termination of the objected-to application, with the exception of a successful string confusion objection filed by another new gTLD applicant, which will only result in the placement of the two applications into the same contention set.
ICANN will publish a Dispute Announcement of formal objections within 30 days of the close of the objection period. The announcement is expected in mid-April, 2013. However, some affected applicants may already be receiving notices that their applications have received objections.
Before the announcement, DRSPs will review the objections for compliance with formal requirements and will notify objectors whose filings are deficient. Objectors will have a five-day opportunity to correct formal deficiencies. Over the next weeks, conforming objections will be registered for processing and objection information will be posted to DRSP websites.
An applicant’s period to respond an objection will begin upon the DRSPs electronic transmission of a formal notice of the objection, which will occur promptly after the Dispute Announcement. Applicant replies to objections will be due within 30 days of the DRSP notice, or approximately mid-May, 2013. Applicants who fail to reply to conforming objections before the deadline will be in default.
GAC Advice and Beijing ICANN Meeting
ICANN has also established a process for the Governmental Advisory Committee (GAC) to provide “GAC Advice on New gTLDs” concerning applications identified by governments as problematic. GAC Advice represents a consensus position among nations (meaning that no nation is opposed) that a particular new gTLD application potentially violates national law or will raise national sensitivities, thus creating a strong presumption that the application should not be approved by the ICANN Board of Directors. In some cases, applicants may have the opportunity to remediate applications receiving GAC Advice so that they are acceptable to the GAC. The GAC provided a preview of applications that may be of concern with the issuance of GAC Early Warnings by individual countries on November 20, 2012; however, the issuance of a GAC Early Warning does not necessarily indicate that GAC Advice will be issued, nor does the absence of a GAC Early Warning preclude the issuance of GAC Advice.
The GAC previously set an internal deadline in February 2013 for its members to identify new gTLD applications meriting GAC Advice. Applications identified by GAC members as potentially meriting GAC Advice have not been disclosed publicly. However, they will be the subject of interim GAC discussions and meetings leading up to the ICANN Meeting in Beijing on April 7-11, 2013. The GAC is expected to conclude its discussions in Beijing on April 10, 2013, with GAC Advice to be issued shortly thereafter.
The New gTLD Evaluation Process
The new gTLD evaluation process is continuing to run concurrently with the formal objection and GAC Advice processes. ICANN plans to begin posting Initial Evaluation results on March 23, 2013, with results posted weekly, in Prioritization Draw order, for the following several months. This schedule means that a number of results will likely be posted before formal objections are resolved and before GAC Advice is issued. Applications that otherwise pass Initial Evaluation must successfully navigate any objections and GAC Advice issues, as well as resolve any string contention issues, before proceeding with negotiation of the Registry Agreement and transition to delegation. Thus, applications that are the subject of formal objections, GAC Advice, or string contention may be delayed in delegation for several months or longer, regardless of Prioritization Draw number.
In addition, applicants who may be considering withdrawing their applications as a result of receiving objections or GAC Advice should consider how their Initial Evaluation results may intersect with these processes. Applications withdrawn before the posting of Initial Evaluation results are eligible for a 70% refund ($130,000); refund levels drop to 35% ($65,000) after the posting of Initial Evaluation results, and 20% ($37,000) following the conclusion of dispute resolution, extended evaluation, or string contention.
Conclusion and Next Steps
For those with an interest in the new gTLD application process, whether as applicants, objectors, or other concerned stakeholders, the next month should provide some noteworthy developments. Both applicants and objectors should immediately begin considering the impending deadlines. Parties who filed formal objections should look out for DRSP deficiency notices, many of which are expected as the objection procedure is unprecedented. Applicants should immediately determine whether their primary contact has received an objection and, if so, begin preparing a formal response. In addition, applicants should be mindful of the upcoming issuance of GAC Advice; if relevant, should begin considering their strategies for resolving any string contention issues; and should review how any objection, GAC Advice, or string contention issues may affect their delegation dates and business plans in connection with registry operations. Finally, other interested parties, even if not directly involved in the objection and GAC Advice processes, may wish to consider how these dispute resolution measures may impact their organizations (i.e., in terms of timing of participation in sunrises for new gTLDs).