Just a Warning?

FairWinds Partners —  October 22, 2012

Last week in Toronto during ICANN’s 45th Public Meeting, members of the Governmental Advisory Committee, or GAC, discussed a variety of topics about both new gTLDs and other ICANN policy initiatives. Of those, the topic with arguably the highest stakes for new gTLD applicants was the GAC’s Early Warnings.

To give a quick recap, the New gTLD Applicant Guidebook (section 1.1.2.4) states that the GAC may use Early Warnings to indicate that an application may be seen as potentially sensitive or problematic to governments, or that it may violate national laws. The Early Warning is only a notice, and does not have the power to effectively halt an application like GAC Advice (which, unlike Early Warnings, results from a consensus decision on the part of GAC members) does. Rather, many GAC members expressed the belief that Early Warnings are meant to open a dialogue between applicants and governments (through the relevant GAC representatives) and resolve potentially problematic issues before Advice is necessary.

With that in mind, the GAC published its Toronto Communiqué as the meeting wrapped up late last week. Most importantly, the communiqué stated that the GAC will forward Early Warnings from its members on November 20, 2012. Beginning on that date, applicants who receive Early Warnings will have the opportunity to address the issues enumerated by one or more GAC representatives. In the communiqué, the GAC also stated that individual members are considering a range of issues when it comes to issuing Early Warnings. We have included the list from the communiqué here:

  • Consumer protection
  • Strings that are linked to regulated market sectors, such as the financial, health and charity sectors
  • Competition issues
  • Strings that have broad or multiple uses or meanings, and where one entity is seeking exclusive use
  • Religious terms where the applicant has no, or limited, support from the relevant religious organizations or the religious community
  • Minimizing the need for defensive registrations
  • Protection of geographic names
  • Intellectual property rights particularly in relation to strings aimed at the distribution of music, video and other digital material
  • The relationship between new gTLD applications and all applicable legislation

Also worth noting is that the GAC stated quite plainly that it expects ICANN to oversee and enforce any changes requested. The GAC advised the ICANN Board that such changes should be transformed into contractual requirements, which could raise a host of interesting issues with the Registry Agreement that all new gTLD operators must sign with ICANN.

In addition to Early Warnings, the GAC mentioned that it plans to finalize its Advice following the next Public Meeting in Beijing, China, in April 2013. In its latest proposal paper, which we discussed recently here on the blog, ICANN indicated that it will not delegate the first gTLDs until after that meeting, presumably to leave time for GAC Advice. However, we may not have to wait until April to hear more news from the GAC – the end of the communiqué says that the GAC is considering hosting an intersessional meeting before Beijing “as needed.”