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In this issue:

Briefing on new gTLDs:what we know,what wethink,winners & losers

ICANN policies:an end to Add Grace,GNSO reformand RAA review

Formality changes at 13 ccTLDs

DRS updates from CAC,Nominet & Afnic

Domain Name DevelopmentsBriefing Notes for Com LaudeClients & Contacts

PartOne:gTLDNews

New gTLDs: where are we now?

Today there are 21 gTLDs.In two years time,there may wellbe121or221. Inadecadeitispossiblethattherecouldbeasmany gTLDs as there are categories in the Yellow Pages, amelange of generic terms, city and place names, titles of indigenous peoples,cultural and social indicators and trademarks.Indeed,it could be that gTLDs will outnumber ccTLDs,a sobering thought for the IP community.

What do we know for certain aboutthe new gTLD process?

Generic Top Level Domains are managed by ICANN, theInternet Corporation of Assigned Names and Numbers, anot-for profit corporation based in California which currentlycreates policies through a bottom-up process, under theoversight of the US Department of Commerce.Provided youmeet the rules of the registry,anyone anywhere can registeragTLD.GTLDregistriesarecurrentlysplitbetweenSponsoredgTLDs (registries for a well-defined community such asmembers of the International Co-operative Society who areeligible for a .coop) and Unsponsored gTLDs such as .infowhich was designed as a simple alternative to .com.Onthelastdayofthe32ndICANNOpenMeetingon26June2008, Dr Paul Twomey, President and CEO of ICANN,1/10

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Summer Issue: August 2008

announced that the process to expand the number of gTLDshad the green light: “The ICANN Board today accepted arecommendation from its global stakeholders that it ispossible to implement many new names to the Internet,pavingthewayforanexpansionofdomainnamechoiceandopportunity.The potential here is huge.It represents a wholenew way for people to express themselves on the Net.It's amassive increase in the 'real estate' of the Internet."There’s not much chance of the bandwagon halting.ICANNhas published an anticipated timeline and directed staff tocomplete work on an implementation plan which will bepresented to the Board for approval at the 33rd ICANN OpenMeeting to be held in Cairo in November 2008.TheICANNTeamrunningthenewgTLDprocessisledbyKurtPritz,Senior VP of Services and Karla Valente,gTLD ProgramDirector. They have appointed a number of consultants towork with them on the development of an objectiveapplicationandevaluationprocessincludingDeloitteAudit&EnterpriseRiskServicesfromBelgiumwhichhasbeendraftingtheRequestforProposals(RFP)(whichiswhatICANNcallstheapplication form).Togethertheyhavedesignedastagedapplicationprocessasfollows:

A draft of the Application Form and the base contractwill be published;

Following comment from the internet community,theApplication and Base contract will be finalised;

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Towards the end of a four month“period forcommunication”,the final application period will openfor 45 days;

Applications must be accompanied by a fee at a level tobe announced;

All complete applications will be posted on ICANN’swebsite after the Application Period closes;

Applications will be divided into two categories:Open applications“from any type of applicant”including a trade mark owner applying for .BRANDCommunity applications which“address a clearlyidentified,organised and pre-establishedcommunity with a finite membership”.The character string that is applied for must be“strongly and specifically associated with thecommunity”and there must be a“dedicatedregistration and use policy”

The Initial Evaluation phase will feature:an examination of the character strings applied for.ICANN has commissioned an algorithm to exposeclashes with existingTLDs (gTLDs and ccTLDs) andreserved namesaTechnical Evaluation: “Applicants mustdemonstrate competence to run a registry incompliance with industry protocols and standards”a Business Evaluation: “Applicants mustdemonstrate the capability of running a stableregistry”;

If an Applicant fails the Initial Evaluation,it can apply forExtended Evaluation which may require the payment of an additional fee;

An Objection process will then be opened during whichapplications can be opposed on four grounds:1. String confusion (to avoid user confusion)2. Existing legal rights (so IPR are protected)3. Morality and Public Order (to spare the blushesof governments)4. Community Objection (expected from religiousorganisations,indigenous groups,geographicalcommunities)

Objections will be managed by one of four independentDRS providers.The same DRS provider will handle allobjections under one of the above categories.The rules,procedures,principles and fees will be created by eachDRS provider in conjunction with ICANN.If there is morethan one objection to an application,it may beconsolidated with other complaints;

“String Contention”between two applicants who wantthe same gTLD will be resolved through mutualdiscussion,a Comparative Evaluation process or anauction.As the new gTLD Policy Process favouredCommunity applications,a Community application thatcan demonstrate it will“clearly and convincingly addmore value to the global internet namespace”will winover an Open application during ComparativeEvaluation.

Applications that are approved will be recommended tothe Board for approval.Delegation of a character stringinto the root of the internet will depend on theapplicant demonstrating it has fulfilled all of thebaseline criteria in the contract.ICANN will agree a timeperiod with each separate applicant.

What don’t we know about theprocess?

The exact timing:it appears that applications will openin Q2 2009 but the history of gTLD expansion is litteredwith broken deadlines.

The amount of the application fee:there has beenspeculation that it could be as low as $100,000 to beaccessible to community groups or as high as $500,000to deter speculative bids.Will any proportion of theapplication fee be returned by ICANN if an applicationfails?

The cost and process of mounting an objection:this is avital piece of information for trade mark owners whomay find that someone wants to turn their mark intoa gTLD.

The model of auction,the auction provider and howfunds generated during an auction are to be used hasyet to be determined.

Who will apply:Several organisations have announcedtheir intention of applying for gTLDs such as .berlin;.paris;.nyc;.arab;.fam (for families);.africa etc but whoelse is waiting in the wings?

How many applications there will be and how many willbe approved:delegates at the ICANN Paris Meeting weretalking about 100 or 200 applications but if theapplication fee is affordable,there could be 500 or even

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www.comlaude.com1,000 applications.Previous gTLD rounds featured acompetitive tendering process with the Board selectingwinners following a series of discussions some of whichwere in private.This time it is running an open,objectiveprocess designed to encourage good applications.

When the application process will next open after the2008/9 round:ICANN has implied that this is not aone-time process.Depending on the number of applications it receives,it might be that ICANN will openan application window every year for the foreseeablefuture or it might be that this is the only chance forfive years.

What worries us?

The protection of IPR

during the new gTLD process is asubject that ICANN has neatly avoided.At the Paris Meeting,the Intellectual Property Constituency attempted to fill thisgapwhenitlaunchedabooklet,editedbyNickWoodofComLaudeandsponsoredbyMARQUES,called“APerfectSunrise?”which examines the pre-launch Rights ProtectionMechanisms (RPM) that have been tried by both gTLD andccTLD operators. The launch was attended by over 150delegates, several of whom enquired why ICANN is notmandatingastandardisedpre-launchRPMforallapplicantsinthesamewayastheUDRPisastandardisedpost-launchRPM.InfactICANNattemptedthisthroughaformalWorkingGroupprocess in 2007 but there was no consensus followingobjections by registry operators and registrars who wereconcerned to protect the interests of Domainer clients.Therefore it is up to each applicant to design and operate apre-launch RPM that best suits its model of registry.(For a free copy of “The Perfect Sunrise?” mail us atinfo@comlaude.com or see the link from our website).

Charterenforcement

is vital:if a new gTLD such as .berlin isdesigned for the people of Berlin,it seems logical to us thatonly those who can demonstrate a nexus with Berlin shouldbe allowed to register.However,conversations with severalaspiring applicants – including .berlin – have revealed thatmany intend to allow anyone to register anything withoutscrutiny.We hope that the validation of IPR that successivegTLD and ccTLD registries have adopted since the launch of .eu in 2005 will be continued,but this is not certain.

IPowners

will face a significant set of new challenges.It willtakeamajorincreaseinresourcestomonitortherulesof100- 200 new registries and a substantial increase in budget tofundaprotectiveregistrationprogramme.Timemustalsobefoundtomonitorallapplicantsfor“stringcontention”–andof course there is the question of whether it would becommerciallyadvantageoustoapplyforagTLDthatmatchesthe name of a trade mark.Whilst there is a compelling caseforsomeorganisationsbornoftheinternetage,manyotherscan easily resist this opportunity.The question of whether toapply for a generic term that relates to a class of goods orservices–suchasBMWapplyingfor.AUTOorBritishAirwaysapplying for .AIRLINE is another matter.Perhaps we will seethe dominant players in a business area coming togetherunder a flag of convenience to apply for a term that reflectstheir mutual interests.

Who will be the winners?

ICANN:

ICANN is securing its long term financial future withthe new gTLD programme.It currently receives $0.20 per foreach gTLD registration. 100 or 200 new gTLDs mean morefundsfromtheapplicationprocessandmorefundseveryyearfrom these sources.The new gTLD programme will supportan expansion of ICANN’s activities, new staff and offices inseveral parts of the world as well as raising its profile withgovernments.

Supporters of the democratisation of the domain namesystem beyond the English language:

“One of the mostexciting prospects before us is that the expanding gTLDsystem is being planned to support extensions in thelanguages of the world," said Peter DengateThrush,ICANN'sChairman at the Paris Meeting,anticipating that some newgTLDswillofferfullIDNregistrationfromgo-live."ThisisgoingtobeveryimportantforthefutureoftheInternetinAsia,theMiddle East,Eastern Europe and Russia." Currently the DNSonlysupports37Romancharacters(A-z,0-9andthehyphen).

Thetechnicalcompanies

whocanoperateback-endregistrysystems: in a gold rush, it is those who sell the picks andshovels who make a fortune.ICANN is prioritising stability soit may be essential to feature a provenTLD registry operatorin an application.

Some new gTLD applicants

who will find that that theirvision captures the imagination of the public and fulfills aso-far unspoken need.

Some registrants

who are currently labouring under adomain name that is far from ideal because their first choicewas already taken under .com. If a new extension for theirsphereofbusinessiscreated,itmightbethattheywillbeableto raise their profile on the internet after spending just a fewdollars on a new domain name that fits perfectly.