Early Warning - These Particular Top Level Domains May Never Get Off the Ground
November 29, 2012 3:53 PM | Posted by
Aikman-Scalese, Anne | Print this page
This year the Internet Corporation for Assigned Names and Numbers ("ICANN") received over 1900 applications for new generic Top Level Domains ("gTLDs"). (A Top Level Domain refers to the string of letters to the right of the "dot" such as dot com, dot net, or dot info.) Currently there are 22 of these as well as over two hundred country code domains, e.g. (dot)us. As part of this effort to launch an unlimited number of new gTLDs, ICANN had put in place a procedure whereby governments who are members of its Government Advisory Committee (the "GAC") could issue an "Early Warning" as to any new gTLDs they oppose or feel should have conditions attached before launching.
The United States took a very conservative view of its Early Warning power and only issued a "full stop" warning for three domains: (dot)army, (dot)navy, and (dot)airforce. There is understandable concern about the possible association with government-sponsored armed services websites and that concern is not limited to the U.S. The U.S. also warned as to one company that applied for 31 strings and included an e-mail from the FBI as an alleged endorsement when such was not the case. Other countries, such as Australia, took a broader view of the Early Warning process based on a number of different considerations such as consumer protection, protection of competition, and concern over what is commonly referred to in ICANN-speak as "closed generics". These "closed generics" are applications to operate a new gTLD registry by one player in an industry who wants to "corner the market" on a particular generic term and provide second level (i.e. "before the dot") registrations only to its affiliated companies or suppliers or customers.
A number of Early Warnings were lodged by countries which have an interest in particular geographic regions. For example, Chile and Argentina oppose an application by Patagonia, the apparel and accessories company, for (dot)patagonia because this is a geographic tourism region that spans both countries. Similarly, the government of Nigeria issued Early Warning against the application by Delta Faucets for (dot)delta because of a specific geographic region in Nigeria. The application filed by online retailer Amazon, received an Early Warning from Brazil and Peru. Numerous African countries issued Early Warning as to (dot)africa. The practical effect of all these Early Warnings remains to be seen. They will either operate as a "bar" to the launch of the gTLD or as a signal that the governments in question desire to negotiate terms with the applicant(s) that will protect their governmental interests. The complete list of Early Warnings and associated governments is published here:
A further development on the ICANN front is the potential for negotiation of enhancements in the implementation of the Trademark Clearinghouse. This is the mechanism by which trademark owners may obtain Sunrise registrations at the second level for their registered marks which are separately registered in this centralized database and may also receive notice whenever a third party has registered the identical mark in any given new Top Level Domain, but only for the first 60 days after the launch of that new domain. ICANN appears ready to agree that trademark holders will receive 30 days advance notice of the beginning of the Sunrise period for planning purposes and also appears ready to extend the IP Claims notification process from 60 days to 90 days. Trademark holders were hopeful of getting both a blocking mechanism such as the one put in place by ICM Registry for the triple X adult Top Level Domain, but that did not materialize. Other more controversial proposals such as establishing a "Claims 2" additional claims notification period from 6 to 12 months after launch of a new TLD for an additional fee to be paid by the trademark holder are still being discussed but are vigorously opposed by the Non-Commercial Stakeholder Groups on procedural grounds that this invokes policy issues which have not been properly addressed through the appropriate policy-making body at ICANN, the Generic Names Supporting Organization ("GNSO").
The same GNSO is expected to pass a resolution at its next meeting putting certain Red Cross, Red Crescent, and Olympic Committee names on a reserved names list (meaning they could not be registered at the second level) for the current round of new gTLD applications and pending the completion of the GNSO expedited Policy Development Process that was initiated at the ICANN meeting in Toronto in October. Lastly, due to recent developments in the application evaluation and delegation process, ICANN is expected to confirm that the period for filing formal Objections (such as a Community Objection or a Legal Rights Objection) to the award of any particular gTLD will be extended to March 13, 2013. Stay tuned for more updates on GAC activity and Trademark Clearinghouse implementation details, some of which may still be in play at the ICANN meeting in Beijing in April of 2013.