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Date:31 August 2005
New TLDs — Past Decisions and Documents
10. From the Minutes of GNSO Council teleconference, 22 May 2003 17
12. Resolutions of Board meeting in Carthage, Tunisia 31 October 2003 18
13. From the report by Miriam Shapiro (Summit Strategies International) 21
"Evaluation of the New gTLDs: Policy and Legal Issues", 10 July 2004
14. From the ICANN Staff Report, dated 30 September 2004 25
1. From the ICANN Articles of Incorporation
4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations.
2. From the ICANN Bylaws, Article I, Mission and Core Values
Section 1. MISSION
The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems. In particular, ICANN:
1. Coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, which are
a. Domain names (forming a system referred to as "DNS");
b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and
c. Protocol port and parameter numbers.
2. Coordinates the operation and evolution of the DNS root name server system.
3. Coordinates policy development reasonably and appropriately related to these technical functions.
Section 2. CORE VALUES
In performing its mission, the following core values should guide the decisions and actions of ICANN:
1. Preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet.
2. Respecting the creativity, innovation, and flow of information made possible by the Internet by limiting ICANN's activities to those matters within ICANN's mission requiring or significantly benefiting from global coordination.
3. To the extent feasible and appropriate, delegating coordination functions to or recognizing the policy role of other responsible entities that reflect the interests of affected parties.
4. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making.
5. Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
6. Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.
7. Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process.
8. Making decisions by applying documented policies neutrally and objectively, with integrity and fairness.
9. Acting with a speed that is responsive to the needs of the Internet while, as part of the decision-making process, obtaining informed input from those entities most affected.
10. Remaining accountable to the Internet community through mechanisms that enhance ICANN's effectiveness.
11. While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations.
These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.
3. Resolutions at the Board meeting in Yokohama, July 2000:
Whereas, the Domain Name Supporting Organization (DNSO) has conducted a consensus-development process on the introduction of new TLDs and the issues concerning the protection of famous trademarks in the context of introduction of new TLDs;
Whereas, the Names Council of the DNSO made a set of recommendations to the Board on 18/19 April 2000, including the recommendation that the Board establish a policy for the introduction of new gTLDs in a measured and responsible manner;
Whereas, the Names Council of the DNSO made a second set of recommendations to the Board on 19 May 2000, which concerned Famous Trademarks and the Operation of the DNS;
Whereas, the ICANN staff has posted a document entitled "ICANN Yokohama Meeting Topic: Introduction of New Top-Level Domains" on 13 June 2000 and sought public comment on the web site concerning the Names Council recommendations and related issues;
Whereas, over 1,300 comments were received on the ICANN web site in response to the staff posting;
Whereas, on 15 July 2000 a public forum was held in Yokohama concerning the issues discussed in the staff paper;
Whereas, the Names Council recommendations were transmitted to the Protocol Supporting Organization and the Address Supporting Organization for their comment regarding the implications on activities within their scopes of primary responsibility;
Whereas, no negative comment was received from either Supporting Organization;
Resolved [00.46] that the Board hereby adopts the Names Council's recommendation that a policy be established for the introduction of new TLDs in a measured and responsible manner.
Resolved [00.47] that the President is authorized to implement this policy according to the following schedule, which the President may adjust if necessary to accommodate circumstances that arise:
1 August 2000 - ICANN to issue a formal call for proposals by those seeking to sponsor or operate one or more new TLDs, accompanied by a New TLD Registry Application Form, instructions for filling out the application, and a statement of criteria for the Board's eventual decision.
1 October 2000 - Deadline for ICANN's receipt of applications. Portions of these applications deemed appropriate for publication for purposes of public comment or otherwise will be posted on ICANN's web site.
15 October 2000 - Close of period for public comments on proposals.
20 November 2000 - After approval by the Board, ICANN to announce selections for negotiations toward entry of agreements with registry sponsors and operators.
31 December 2000 - Target date for completion of negotiations.
Resolved [00.48] the President is authorized to establish a non-refundable fee of USD $50,000 for the submission of an application to become a sponsor or operator of a registry, which the Board finds is a reasonable estimate of ICANN's costs likely to be associated with receipt and evaluation of such applications, and follow-up.
Resolved [00.49] in connection with applications, the President should seek information that he determines is appropriate. Without limiting the information that may be sought, the Board commends to the President's consideration the data elements described in section IV of the staff paper, and also notes that the data elements should include:
Resolved [00.50] that the President is authorized to establish guidelines for assessing which proposals to select for negotiations toward entry of agreements with registry sponsors and operators. The Board commends the following topics to the President for inclusion in the guidelines:
Resolved [00.51] that the President is authorized to seek technical advice from appropriate individuals or organizations to assist the evaluation of proposals.
4. The DNSO recommendations, cited in 3 above:
The Names Council determines that the report of Working Group C and related comments indicate that there exists a consensus for the introduction of new gTLDs in a measured and responsible manner. The Names Council therefore recommends to the ICANN Board that it establish a policy for the introduction of new gTLDs in a measured and responsible manner, giving due regard in the implementation of that policy to (a) promoting orderly registration of names during the initial phases; (b) minimizing the use of gTLDs to carry out infringements of intellectual property rights; and (c) recognizing the need for ensuring user confidence in the technical operation of the new TLD and the DNS as a whole.
"Because there is no recent experience in introducing new gTLDs, we recommend to the Board that a limited number of new top-level domains be introduced initially and that the future introduction of additional top-level domains be done only after careful evaluation of the initial introduction. The Names Council takes note of the fact that the WG C report indicates that several types of domains should be considered in the initial introduction, these being: fully open top-level domains, restricted and chartered top-level domains with limited scope, non-commercial domains and personal domains. Implementation should promote competition in the domain-name registration business at the registry and registrar levels. The Names Council recognizes that any roll-out must not jeopardize the stability of the Internet, and assumes a responsible process for introducing new gTLDs, which includes ensuring that there is close coordination with organizations dealing with Internet protocols and standards.
"To assist the Board in the task of introducing new gTLDs, the Names Council recommends that the ICANN staff invite expressions of interest from parties seeking to operate any new gTLD registry, with an indication as to how they propose to ensure to promote these values.
"We would like to extend our deep appreciation to the substantial number of participants who worked so diligently in Working Groups B and C, and want to thank them for their significant efforts in evaluating the issues that were referred to them. Recognizing the Working Group C has recently approved additional principles and that Working Group B's formal report was provided to us yesterday, we advise the Board that we will be providing supplemental recommendations in the near future."
(In addition, it can be noted that the consensus statement partly derives from a Names Council teleconference 4 April 2000 where also two questions were asked to the Names Council, and the straw poll taken:
Did the Names Council believe there was consensus on the opening of new gTLDs ?
Did the Names Council believe there was consensus that the initial number for roll out should be 6 to 10 new gTLDs ?
The vote tally on the first item was 13 YES, 3 ABSTAIN, 2 ABSENT. Passed.
The vote tally on the second item was 5 YES, 9 NO, 2 ABSTAIN, 2 ABSENT. Failed.)
5. From the staff document, cited in 3 above
II. Suggested Principles for the Introduction of New TLDs
The 18/19 April 2000 Names Council statement recommends that the ICANN Board adopt a policy for the introduction of new TLDs. In adopting such a policy, several principles should be addressed. The following discusses various possible principles and poses questions for which community input is specifically sought. Those questions, of course, are not meant to be limiting and the public is invited to submit comments on all aspects of policies for the introduction of new TLDs.
A. The need to maintain the Internet's stability: a "measured and responsible" introduction.
The U.S. Government's White Paper identified four principles that should guide ICANN's activities. Of these, the White Paper made clear that ICANN's primary mission is to preserve the stability of the Internet:
"The introduction of a new management system [to replace management by the U.S. Government and its contractors] should not disrupt current operations or create competing root systems. During the transition and thereafter, the stability of the Internet should be the first priority of any DNS management system. Security and reliability of the DNS are important aspects of stability, and as a new DNS management system is introduced, a comprehensive security strategy should be developed."
Introducing new TLDs implies a change in the overall structure of the DNS, and it is therefore appropriate to take care to introduce any new TLDs in a manner that does not endanger stability.
To help ensure that introducing new TLDs does not jeopardize the Internet's stability, the Names Council emphasized that the introduction should be done in a "measured and responsible manner." According to the Names Council, care should be taken to solicit the views of technical standards bodies:
"The Names Council recognizes that any roll-out must not jeopardize the stability of the Internet, and assumes a responsible process for introducing new gTLDs, which includes ensuring that there is close coordination with organizations dealing with Internet protocols and standards."
The Names Council statement also noted that the implementation of a policy for the introduction of new TLDs should give due regard to practical considerations, such as start-up issues (the "land rush" phenomenon of huge query and transaction loads during the first few hours and days of registration) and the possibility that many domain-name disputes would be created. In particular, the Names Council identified:
"(a) promoting orderly registration of names during the initial phases;
"(b) minimizing the use of gTLDs to carry out infringements of intellectual property rights; and
"(c) recognizing the need for ensuring user confidence in the technical operation of the new TLD and the DNS as a whole."
Many have also noted that, as a practical matter, the introduction of new TLDs is not an easily reversible act, since eliminating a TLD (including all domain names registered within it) once it has been created may create significant hardships. For these reasons, some have argued that the TLD introductions should begin with a relatively small group, so that if difficulties arise they are of limited scope and can be effectively addressed before proceeding with additional TLDs.
B. A well-controlled, small-scale introduction as a "proof of concept" for possible future introductions.
Recent experience in the introduction of new TLDs is somewhat limited. No new TLD designated as a "generic" TLD has been introduced for over ten years, since before significant commercial use of the Internet began. Although dozens of ccTLDs have been introduced since the onset of commercial use of the Internet in the early 1990s, fewer than 10 of the 245 ccTLDs have as many as 100,000 registrations within them. In view of the limited recent experience, the Names Council's 18/19 April 2000 statement made the following suggestion:
"[W]e recommend to the Board that a limited number of new top-level domains be introduced initially and that the future introduction of additional top-level domains be done only after careful evaluation of the initial introduction."
Thus, the Names Council recommended that the first group of TLDs introduced serve as a "proof of concept." Although the Names Council did not formally recommend any specific number of new TLDs that should be introduced in the first group, it did indicate that the first group should be used to evaluate the feasibility and utility of a range of different types of TLDs:
"The Names Council takes note of the fact that the WG C report indicates that several types of domains should be considered in the initial introduction, these being: fully open top-level domains, restricted and chartered top-level domains with limited scope, non-commercial domains and personal domains."
This recommendation suggests that choices about the particular TLDs to be added in the first group, as well as the resulting number of TLDs, should be made in a manner that promotes effective evaluation of :
C. The purposes for adding new TLDs.
In seems appropriate that the selection of the types of TLDs to be introduced initially reflect an assessment of the purposes for adding new TLDs. In discussions generally within the Internet community over the past several years, as well as in more recent discussions in the DNSO, various advantages of new TLDs have been cited. These advantages can be grouped in three broad categories: enhancement of competition in the provision of registration services, enhancement of the utility of the DNS, and enhancement of the available number of domain names.
1. Enhancing competition for registration services.
One of the main motivations for the change in policy reflected in the White Paper was a "widespread dissatisfaction about the absence of competition in domain name registration." At the time of the White Paper, registrations in the open gTLDs (.com, .net, and .org) were made by a single source (Network Solutions) at a price fixed by its cooperative agreement with the U. S. Government. Although registrations were also available through over 200 ccTLDs worldwide, the overwhelming majority of those ccTLDs were restricted to registrants that were affiliated with the countries involved and the relatively few "open" ccTLDs were not extensively used.
Since the establishment of ICANN in November 1998, the competitive conditions have changed significantly. Beginning in June 1999, competition was introduced at the registrar level for registration services and now 45 different accredited registrars receive equivalent access to the central registry for .com, .net, and .org. Competition at the registrar level is robust, resulting in prices significantly lower than a year ago and a much larger array of service offerings from which consumers may choose. In addition to this dramatic growth in competition in .com, .net, and .org, competition from the ccTLDs has also increased. Many formerly "closed" ccTLDs have begun to permit registrations by companies not affiliated with their countries; "open" ccTLDs have become more accepted within registrants worldwide.
The encouragement of competition in registration services continues to be a major goal of the Internet community. In its 18/19 April 2000 statement, the Names Council stressed that "[i]mplementation [of new TLDs] should promote competition in the domain-name registration business at the registry and registrar levels."
Although competition has increased markedly in the past year at the registrar level, the registry (the authoritative database that maps names within the TLD to IP addresses) for all three "open" gTLDs is still operated by a single company, Network Solutions. This situation limits the effectiveness of overall competition and, even aside from strictly competitive issues, gives rise to concerns over the Internet community's lack of vendor diversity. Some have argued these concerns (competition and vendor diversity) make it appropriate to introduce one or more alternative, fully open, globally available TLDs. Others have argued that these concerns are no longer so pressing as to justify adding new open TLDs. As discussed in detail in point 2 below, they assert that having additional, undifferentiated TLDs would tend to reduce the utility of the DNS by increasing inter-TLD confusion. (E.g., <example.com> would be confused with <example.firm>.)
One concern sometimes raised in this connection is that .com may have become so highly preferred in the market to any other TLD that effective competition among open TLDs is no longer likely. Those raising this concern sometimes point out that .com enjoys a vastly superior market share compared to .net and .org, with .com accounting for 80% of the total registrations in .com, .net, and .org. This predominance of .com registrations continues even though all three TLDs are offered by 45 registrars fiercely trying to sell registrations.
2. Enhancing the utility of the DNS.
Another motivation frequently cited for introducing new TLDs is that doing so might increase the utility of the DNS. Under this view, the appropriateness of adding new TLDs should be evaluated based on whether addition of the new TLDs:
This view tends to favor adding special-purpose TLDs and to disfavor adding undifferentiated, open TLDs. To help keep TLDs distinct and meaningful, it has been suggested that TLDs should be given "charters" which define the purposes for which they are intended. These charters are intended to promote the distinctiveness of TLDs over time. Advocates of chartered TLDs note that all the present gTLDs (including .com, .net, and .org) have defined uses, see RFC 1591. The definitions of the uses of .com, .net, and .org, however, have not been enforced since 1996, when it was decided to suspend screening of registrations to reduce delays in processing applications for registration.
The view that enhancement of the utility of the DNS should be a chief goal in introducing new TLDs is reflected by the first three principles outlined in the second additional consensus point of WG-C's 17 April 2000 supplemental report:
"1. Meaning: An application for a TLD should explain the significance of the proposed TLD string, and how the applicant contemplates that the new TLD will be perceived by the relevant population of net users. The application may contemplate that the proposed TLD string will have its primary semantic meaning in a language other than English.
"2. Enforcement: An application for a TLD should explain the mechanism for charter enforcement where relevant and desired.
"3. Differentiation: The selection of a TLD string should not confuse net users, and so TLDs should be clearly differentiated by the string and/or by the marketing and functionality associated with the string."
A few have suggested that these principles (which were approved in WG-C by a vote of 46 yes, 21 no, 1 abstain) preclude the introduction of any new fully open TLDs. These people argue that introducing new unrestricted-use TLDs would not increase the availability of distinctive domain names, but would instead decrease the meaning of domain names generally by encouraging registration of domain names that are distinguished only by unmeaningful TLD labels. While the principles of WG-C's 17 April 2000 supplemental report point strongly toward introducing limited-purpose, distinct TLDs, most of those favoring them urge that they be applied flexibly so as not to rule out the introduction of one or more fully open, undifferentiated TLDs.
Differentiated types of TLDs that have been proposed for introduction under a chartered-TLD approach include:
Some have suggested that differentiated TLDs should be introduced in various systematic ways (e.g., by following a predefined taxonomy). Others have favored introducing each specific TLD according to a proposal by an organization interested in sponsoring the TLD that demonstrates the desire, legitimacy, and resources to introduce and manage the TLD in an appropriate manner.
3. Enhancing the number of available domain names.
A third reason cited for introducing additional TLDs is that doing so would increase the number of domain names available for registration. This rationale is usually based on the premise that "all the good names are already taken" and that adding TLDs would increase the supply of "good" names.
In fact, the number of second-level domain names within a single TLD is quite large (over 1098) and claims that any particular TLD is effectively exhausted are, as a technical matter, misplaced. (Even .com has only approximately 108 names registered). Some, however, have noted that the group of useful or desirable names is much smaller than the total theoretically possible. While this observation is correct, even a slight lengthening of possible second-level domain names increases the availabile possibilities much more dramatically than the addition of new TLDs. For example, under the currently followed format rules increasing second-level domain-name length by one character multiplies the possible domain names by 37, while adding three new TLDs similar to .com, .net, and .org would only double them.
Some participants in the discussion have asserted that adding undifferentiated TLDs for the purpose of increasing the number of available domain names runs counter to the goal of enhancing the distinctness of DNS names. In this view, adding names that differ from existing ones only because they fall into new, undifferentiated TLDs would impair the utility of the DNS. These participants argue that expansion of the DNS name space should not be accomplished by making available additional names that are likely to be confused with existing names, particularly since distinctive TLDs could instead be created.
As envisioned by the White Paper, ICANN is responsible for overall coordination of the DNS. In view of the hierarchical nature of the DNS, however, the responsibility for establishment of policies within TLDs varies depending on the nature of the TLD. Policies for fully open TLDs (such as .com, .net, and .org) are formulated through the ICANN process, which involves participation of all segments of the global Internet community. Policies for other TLDs (such as .edu and the ccTLDs), on the other hand, have been formulated by focused constituencies.
Proponents of limited-purpose TLDs have advocated a "sponsorship" paradigm, in which policy-formulation responsibility for the TLD would be delegated to an organization that allows participation of the affected segments of the relevant communities. The sponsoring organization would have authority to make decisions regarding policies applicable to the TLD, provided they are within the scope of the TLD's charter and comport with requirements concerning interoperability, availability of registration data, and the like intended to ensure that the interests of the overall Internet are served. For example, the TLD .museum might be sponsored by an association of museums and the .union TLD might be sponsored by a group of labor unions. In many respects, the sponsorship paradigm is a generalization of the concepts underlying appointment of managers for ccTLDs under existing ccTLD delegation policy.
According to proponents, the sponsorship paradigm has the advantages of allowing detailed policies for limited-purpose TLDs to be established through an easily manageable process in which those with relevant interests can participate, while allowing the more broadly participatory ICANN process to focus on issues of general interest to the entire Internet community.
E. New TLDs to meet new types of needs.
The 18/19 April Names Council statement recommended that the initial introduction of new TLDs include a variety of types of TLDs. Such a diversity in the initial introduction can provide useful data to determine what types of TLDs should be introduced in the future. In addition, introducing diverse types of special-purpose TLDs provides the opportunity to meet short-term needs for TLDs that are not met by the existing TLDs.
F. Start-up challenges and the protection of intellectual property.
The statement adopted by the DNSO Names Council on 18/19 April 2000 urged that, in connection with the implementation of a policy for introducing new TLDs, due regard be given to "promoting orderly registration of names during the initial phases." On 15 May 2000, Working Group B issued its final report, which amplified on the concern that the start-up phases of new TLDs can pose special risks to intellectual property and found consensus that some type of mechanism, yet to be determined, is necessary in connection with famous trademarks and the operation of the Domain Name System.
In its statement of 19 May 2000, adopted after considering Working Group B's final report, the Names Council concluded that there is community consensus and recommended that there be varying degrees of protection for intellectual property during the start-up phase of new top-level domains.
One method of protecting intellectual property that has been proposed is to prohibit the registration of famous and well-known trademarks. Indeed, the White Paper suggested that ICANN consider adopting "policies that exclude, either pro-actively or retroactively, certain famous trademarks from being used as domain names (in one or more TLDs) except by the designated trademark holder." In its deliberations, Working Group B extensively explored the use of a famous-names list for exclusion and reached consensus that such a list was not necessary or appropriate at the present time. In its 19 May 2000 statement, the Names Council "conclude[d] that there is no consensus in the community at the present time that such a list should be adopted by ICANN." Thus, it seems clear that measures other than a famous-names list for the protection of intellectual property during the start-up phases of new TLDs must be considered.
The Names Council also concluded that different types of TLDs warrant different types of protection for intellectual property. For example, some have reasoned that more protections are appropriate in a commercial TLD than in one designated for non-commercial uses.
Along with its recommendation for varying intellectual-property protections depending on the type of TLD, the Names Council also recommended that, as a minimum, the basic methods for enforcing infringed rights should always apply. In its 19 May 2000 statement, the Names Council recommended that the existing procedures (the UDRP and conventionally available legal proceedings) should apply where a domain name registrant in a chartered TLD violates the charter or other legal enforceable rights.
Concerns over the effectiveness of the UDRP have prompted some in the DNSO Business Constituency to propose that the policy be evaluated and overhauled before any new TLDs are introduced. For example, as of 13 June 2000 the Business Constituency was considering version 5 of a position paper entitled "A practical approach to new Internet domain names," which (as one option) proposed a multi-phase process under which there would be several prerequisites to the introduction of new TLDs:
"1. Rapidly evaluate the first 12 months operation of the Uniform Dispute Resolution Process (implemented 24 October 1999), and subject to a conclusion that it has been successful in meeting its objectives, proceed to phase II.
"2. Extend the UDRP wef 1st October 2000 to evaluate claims for ownership transfer based on the relevance of a well-known trademark to a charter gTLD. Once implemented proceed to phase II.
"Introduce new gTLDs in a gradual but systematic way as outlined above, testing each proposed gTLD against the principles."
Based on the likely implementation schedule (see below), it is the assessment of the ICANN staff that such a phased approach would result in a delay in the introduction of new TLDs of nine months or more.
6. From the "Report on TLD Applications: Background", 9 November 2000
Consistent with the Yokohama Resolutions, ICANN issued an overview of the application process on August 3, 2000. New TLD Application Process Overview, at http://www.icann.org/tlds/application-process-03aug00.htm. On August 15, 2000, ICANN issued application forms and instructions, see TLD Application Process: Information for Applicants, at http://www.icann.org/tlds/tld-application-process.htm, as well as a list of criteria to be used in evaluating TLD proposals, Criteria for Assessing TLD Proposals, at http://www.icann.org/tlds/tld-criteria-15aug00.htm (August 15 Criteria). The latter document indicated that "[i]n its evaluations, the ICANN staff currently intends to consider at least the factors described below:"
7. Resolutions of the Board meeting in Amsterdam, 15 December 2002
Whereas, the Board accepted the report of the ICANN New TLD Evaluation Process Planning Task Force (NTEPPTF) at its meeting on 23 August 2002;
Whereas, at that meeting the Board instructed the President to develop a plan for action for approval by the Board;
Whereas, the President presented An Action Plan Regarding New TLDs for discussion at the Public Forum in Shanghai on 30 October 2002, and posted that Action Plan for public comment on 8 November 2002;
Whereas, comments have been received, posted, and evaluated regarding that Action Plan;
Whereas, the Action Plan was again discussed at the Public Forum in Amsterdam on 14 December 2002; and
Whereas, the Action Plan recommends that key recommendations of the NTEPPTF report be implemented; that certain questions regarding the future evolution of the generic top-level namespace be referred for advice to the GNSO described in Article X of the New Bylaws approved in Shanghai on 31 October 2002 and as further refined at this meeting; and that steps be taken towards approval of a limited number of new sponsored gTLDs;
Resolved [02.150] that the Board authorizes the President to take all steps necessary to implement those aspects of the NTEPPTF recommendations as specified in the Action Plan;
Resolved [02.151] that the Board requests the GNSO to provide a recommendation by such time as shall be mutually agreed by the President and the Chair of the GNSO Names Council on whether to structure the evolution of the generic top-level namespace and, if so, how to do so;
Resolved [02.152] that the Board directs the President to develop a draft Request for Proposals for the Board's consideration in as timely a manner as is consistent with ICANN staffing and workload for the purpose of soliciting proposals for a limited number of new sponsored gTLDs.
9. From the NTEPPTF report referenced in 6 above:
This is the final Report of the New TLD Evaluation Process Planning Task Force (NTEPPTF). This Report is now submitted to the ICANN Board of Directors for its further consideration. It follows posting for community feedback and comments of the Task Force's Interim Report in December 2001, and of a draft of this Final Report on June 15, 2002. Neither of the on-topic comments received has caused the Task Force to make any changes to this Report (see Appendix 3).
This Report poses Questions (see Section 7) in each of four Areas (Technical, Business, Legal, and Process) that the Task Force suggests should be addressed in any evaluation of the new gTLDs, and provides guidance to any Evaluation Team in the form of Comments on each Question (see Appendix 1). The Report also proposes an on-going Monitoring Program (see Section 8).
A complete evaluation of the new gTLDs is a formidable undertaking that could stretch out indefinitely and could be extraordinarily expensive. The Task Force has already significantly pared down its initial list of questions and concerns, but there remains a considerable body of work. In its entirety, this may well be beyond the resources of ICANN to carry out.
This lack of resources compared with the magnitude of the work to be done could also extend the timescale of the evaluation beyond what the community can reasonably be expected to tolerate. The Board, therefore, may need to balance the need to make decisions sooner against the risks of not waiting for completion of the evaluation (see Section 4).
To mitigate the implications of delay, the Task Force, therefore, has established priorities indicating those Questions that, in its view, must be addressed early and most importantly as a prerequisite to embarking on a another round of proposals for new gTLDs. These priorities are established by assigning a criticality factor to each Question; this criticality factor indicates when the Question must be answered within reason as a prerequisite to either launching a new request for proposals or to entering a successful proposal into the root zone file. The answers to the Questions are also segregated according to the stage of activity to which they apply (pre-contract, start-up, or steady-state stage); or whether the Question applies to sponsored or unsponsored new gTLDs. See Section 5 for a more detailed discussion of the Structure used to classify Questions.
The Report proposes possible alternatives for the Evaluation Team and how it might proceed with its work (Section 9). It also lays out a schedule (Section 10) for accomplishing at least what the Task Force considers to be the most important parts of the evaluation. Section 11 focuses on funding issues and the relationship of funding to priorities. Finally, Section 12 of the Report lays out a series of recommendations to the ICANN Board on how to proceed from here.
At this point the work of the Task Force is complete. As indicated in Section 9, however, members of the Task Force stand willing to assist in whatever way the Board considers to be appropriate if and when the Board proceeds with the evaluation itself.
In response to the question asked of it by the Board, the GNSO council
* Expansion of the gTLD namespace should be a bottom-up approach with names proposed by the interested parties to ICANN. Expansion should be demand-driven.
* Furthermore, there should be a set of objective criteria to be met in any future expansion.
* The development of this set of objective criteria should be the subject of a new Policy Development Process (PDP).
These ideas are expanded in a report together with the responses of the GNSO Constituencies and the ALAC which will be forwarded to the Board in June.
Decision 4: The GNSO Council advises the ICANN Board that the namespace should be market driven and that organizations were free to propose names that they believed would be of use to DNS users.
12. Resolutions of the Board meeting in Carthage, Tunisia 31 October 2003
New Generic TLDs
Whereas the development of an appropriate process and policy for the creation of new gTLDs has been a topic of Board and community debate since the creation of ICANN.
Whereas there is a fundamental need for a comprehensive process to move from the proof of concept test commenced with the 2000 round to the liberalization of the gTLD market.
Whereas ICANN needs to deliver this comprehensive approach to new gtlds not only in response to community demand, but also toward completion of a task agreed under ICANN's new MoU with the U.S. Department of Commerce.
Whereas ICANN has committed to deliver, by September 2004, a comprehensive evaluation of:
a. The potential impact of new gtlds on the Internet root server system and Internet stability;
b. The creation and implementation of selection criteria for new and existing TLD registries, including public explanation of the process, selection criteria, and the rationale for selection decisions;
c. Potential consumer benefits/costs associated with establishing a competitive environment for TLD registries; and
d. Recommendations from expert advisory panels, bodies, agencies, or organizations regarding economic, competition, trademark, and intellectual property issues.
Whereas ICANN is also committed to define and implement a predictable strategy for selecting new gtlds using straightforward, transparent, and objective procedures that preserve the stability of the Internet (development of strategy is to be completed by September 30, 2004 and implementation to commence by December 31, 2004).
Whereas ICANN also needs to consider technical and operational means by which the operation of a TLD could be undertaken by another party in the event that any incident causes a particular TLD to become inoperable.
Whereas the Board recognizes that in order for ICANN to meet these timelines, the evaluation must commence almost immediately, and will require a significant proportion of ICANN resources.
Whereas the Board believes the development of this long-term policy should begin immediately in November 2003, with the timing of the presentation of reports and receipt of various inputs to occur between ICANN's October 2003 meeting in Carthage, and March 2004 meeting in Rome.
Whereas the areas to be covered in the development of policy on TLDs include completion of the formal review of the TLDs created in the new-TLD proof of concept initiated in 2000, obtaining advice and analysis on issues pertinent to long-term policy for TLDs from expert sources, receipt and review of community input, consideration and commencement if deemed appropriate of a targeted Policy-Development Process within the Generic Names Supporting Organization, and consultation with ICANN's Advisory Committees and other Supporting Organizations.
Whereas the final report on the success to date, and issues faced by, the TLDs created in 2000 is expected to be delivered at ICANN's March 2004 meeting in Rome.
Whereas ICANN is aware that the TLDs selected in 2000 have faced significant acceptance problems, which should be considered and addressed, if possible. These include compatibility problems with installed software (DNS resolvers, provisioning software and end-user applications) of ISPs, corporate network operators and application providers, as well as other distribution and acceptance issues, such as registrars interested in providing domain name services with respect to a new gtld.
Whereas expert advice is expected to be sought from areas including:
Whereas the Board will be considering, and seeking views from experts and the community on the appropriate balance between corporate/sponsor control of a gTLD and "management on behalf of the Internet community" and with regard to clarifying and better delineating the appropriate structure and scope of the relationship between TLD operators and ICANN.
Resolved [03.166] that the Board directs the President to begin an expeditious and targeted development of strategy and policy leading to a streamlined process for the introduction of new gtlds, and
Resolved [03.167] that the Board directs the President to begin to seek community input into development of this strategy and process immediately following this meeting in Carthage, and to establish a public forum for comments on new gtld policy at <email@example.com>.
Resolved [03.168] that the Board has requested that a report on the new gtld policy should be completed by September 30, 2004 and the implementation of the new gtld policy shall commence before December 31, 2004.
Finalization of New sTLD RFP
Whereas the ICANN community has called upon the Board to commence long term strategic plans to launch a long term process for the creation of new gTLD's and to act on community input already received in a timely manner.
Whereas the Board resolved in Montreal to invite public comment on the draft request for proposals for sTLDs posted on 24 June 2003, and in particular on the question whether or not the RFP should be limited to applicants who proposed sponsored sTLDs in November 2000.
Whereas, at the ICANN Board meeting held 13 October 2003, the Board discussed at length the topic of how, and within what timeframe, ICANN should proceed with the creation of new gTLDs, including sTLDs.
Whereas the GNSO has called upon the Board to go forward with the process for an interim round of sTLDs. The GNSO has discussed and commented on its desire for the Board to take action again on 29 October 2003.
Whereas the Board has heard the expression of concerns by experts and affected parties through the GNSO, and from users directly and through the ALAC.
Whereas the Board recognizes community consensus that it would be very difficult, both for practical reasons and as a matter of equitable policy, to restrict a new sTLD round to prior applicants from the 2000 round.
Whereas the Board also recognizes general community agreement that the appropriate form of sponsoring organization for new sTLDs should not necessarily be restricted to not-for-profit entities, but could include other forms of entity that otherwise meet the criteria for a sponsoring organization.
Resolved [03.169] that the Board directs the President to finalize and post no later than 15 December 2003 an open Request for Proposals for a limited number of new sTLDs, such final RFP to be based on the points of agreement indicated above and the comments received concerning the draft RFP.
Resolved [03.170] that upon the successful completion of the sTLD selection process, an agreement reflecting the commercial and technical terms shall be negotiated, although such terms may be subject to further amendment, as appropriate, as a result of the New gTLD process which is scheduled to be completed in 2004.
Resolved [03.171] that the selection process and implementation for sTLDs shall be evaluated and the results of such evaluation shall be utilized in the New gTLD process scheduled to be completed in 2004.
13. From the report by Miriam Shapiro (Summit Strategies International) "Evaluation of the New gTLDs: Policy and Legal Issues", 10 July 2004
The ICANN staff commissioned the development of a report introduction of new TLDs in response to the recommendation of the New TLD Evaluation Process Planning Task Force (NTEPPTF) — described in section 8 above. Slide presentation and final report.
In November 2000, the Board of Directors of the Internet Corporation for Assigned Names and Numbers (ICANN) selected seven proposals for new top level domains (gTLDs): .aero, .biz, .coop, .info, .museum, .name and .pro. This was the first effort to expand the domain name system (DNS) since the 1980s, other than by adding "country code top-level domains" that correspond to particular countries or territories. Shortly before the first of the new gTLDs was launched in September 2001, the ICANN Board decided that it was important to evaluate the "proof-of-concept" under which they were introduced. The Board established the "New TLD Evaluation Process Planning Task Force" (Task Force) to determine the scope of the evaluation. The Task Force decided that seven questions, among others, would take priority. Those questions, which are the focus of this report, address the effectiveness of intellectual property protections, compliance with registration restrictions, competition, the reasonableness of the legal framework, and regulatory issues.
The new gTLD start-up periods proved generally effective at protecting the interests of trademark holders, but suffered from other problems. The lack of any screening or verification in the .info Sunrise period led to serious abuses, including an unusually high number (43%) of registrations that had to be cancelled or transferred. The intellectual property claim process that .biz established operated more smoothly, but was extremely complicated. It proved fairer than a Sunrise period because parties without registered trademarks — including individuals — could defend registrations by demonstrating a legitimate interest or right. The .name system of defensive registrations was complex too, and in an unrestricted TLD would not be consistent with attracting new users anduses to the DNS. Looking to the future, these experiences suggest several options: (i) a Sunrise period that verifies registrations by use of online databases and other means in a cost-effective manner; (ii) notice to prospective registrants and trademark holders of their respective claims prior to adjudication, perhaps on the basis of the familiar UDRP rather than the new "STOP" procedure .biz used; or (iii) reliance on UDRP alone, as simpler and appropriate given that trademark registrations may constitute only 2 - 3% of all registrations.
The process .info and .biz used to allocate names — called a "round robin" — was criticized for enabling manipulation of the system. Some registrars kept their list of desired names short and offered coveted slots to their best customers. Others used registrars they controlled to do the same, while they opened their own lists to the general public. (Initial efforts by .biz to design an alternative distribution system for led a court to determine it would have constituted an illegal lottery.)
The .name registry sought to eliminate the advantage of submitting shorter lists by using random batch processing, but that did not prevent registrants from submitting duplicate requests through multiple registrars. Admittedly, the dilemma of how best to allocate names does not have an easy solution. Other options include first-come, first-served; auctions; and reverse Dutch auctions.
The most appropriate method depends to a great extent on which underlying values should be given priority. It also depends on which entity should benefit from the monetary rewards that certain names generate. Both subjects require more discussion within the ICANN community.
Both the .biz and .name gTLDs are subject to restrictions that limit registrations to commercial purposes and to personal names, respectively. Random sampling indicated fewer problems than expected in .biz, with 1.8% of the registrations appearing to fail to satisfy the criteria and another 9.6% being unclear. In .name, where it was somewhat easier to estimate noncompliance, 10.6% of registrations raised questions, with another .8% unclear. While the registries are not obligated to enforce the restrictions through verification, there are simpler methods, such as random screening, or heightened scrutiny when a registrant reaches a certain number of registrations, which could help. Another solution is to recognize the difficulty of enforcing restrictions on global registries and adopt the model offered by the .com, .net and .org TLDs, which were once restricted but are no longer.
The new gTLDs have introduced some competition, but how much is debatable.
Examining market share, extent of actual choice and price elasticity suggests that impact has been minimal. Other evidence, however, indicates that TLD expansion has attracted about 20% new registrants and led to new uses among 40 — 60% of registrants. The most significant contribution has been the development of facilities-based competition. As a result, new providers of registry services have been able to compete effectively with the incumbent registry, VeriSign, on that basis. Innovation has played a supporting role, and may become increasingly important as the three largest registries work to distinguish themselves from one another.
The agreements that underpin the new gTLDs reflect a level of detail that may not be necessary for future TLDs. While it was understandable for ICANN to have erred on the side of caution as it undertook initial expansion, the resulting legal framework is cumbersome. There was relatively strict insistence that the agreements adhere to key provisions of the original proposals, although it appears that such rigidity was not always the wisest course. While the agreements are relatively uniform, there are some cases -- such as the requirement that smaller, sponsored TLDs use only ICANN-accredited registrars — where divergence would have made sense. In a future round, it should be possible to use a streamlined base agreement and limit appendices to those necessary to ensure critical elements of registry performance and compliance with ICANN policies. There should also be more flexibility in the agreements to enable both ICANN and the registries to address routine issues.
Launching a new gTLD is not for the faint of heart. The experiences of the six that have done it already, and the wisdom the community as a whole as gained, should provide valuable assistance to those TLDs that follow.
The report concluded:
This Evaluation of the policy and legal questions surrounding launch of the new gTLDs has assessed their performance in five areas: effectiveness of trademark protection during start-up, extent of compliance with registration restrictions; impact on competition; adequacy of the legal framework; and regulatory issues. Consistent with the "proof-of-concept" that led to their selection in November 2000, the goal has been to determine what worked well and what did not, and why.
The new gTLD start-up periods proved generally effective at protecting the interests of trademark holders, but suffered from other problems. Afilias' use of a Sunrise registration period without screening or verification led to serious abuses and problems, including an unusually high number (43%) of disputed registrations. NeuLevel's development of an IP Claim process, which gave prospective registrants and claimants a chance to reconsider their actions before disputes would be settled by WIPO or NAF, operated more smoothly but was quite complex. It also enabled non-trademark parties to successfully defend registrations if they could demonstrate legitimate interests or rights. The Global Name Registry offered trademark holders the option of defensive registration for names that would not resolve, but the concept was complicated by its initial naming conventions and a consent procedure that enabled individuals with names similar to trademarks to still register them. Also, defensive registrations may make sense in the context of a TLD meant for individuals (or, in the case of dotCoop, for cooperatives), but they may not be consistent with broader expansion of the DNS to accommodate new users and uses.
With respect to Land Rush, there was concern about the round robin process used by Afilias and NeuLevel (for "Group 2B"), which randomly selected a name from the top of each registrar's list. This method was criticized as unfair because it favored shorter lists and, as such, opened the door to manipulation of the process. Some registrars either limited the length of their own lists, offering the coveted spots to premium customers, or limited the lists of other registrars that they controlled. Global Name Registry instead chose to randomly eliminate duplicates on each registrar's list, combine the lists, and then select registrations randomly. This eliminated the advantage of submitting artificially small lists, but it did not guard against registrants submitting the same request to multiple registrars. These various methods suggest that the combination of uniqueness plus randomization, or reverting to a "first-come, first-served" process might be fairer in the next round. But they also highlight the need for a broader discussion of the advantages and disadvantages of the various allocation options, including what the goals and priorities of the process should be.
Both the .biz and .name gTLDs are subject to restrictions that limit registrations to commercial purposes and to personal names, respectively. Random sampling indicated fewer problems than expected in .biz, with only 1.8% of the registrations appearing to fail to satisfy the criteria and another 9.6% being unclear. In .name, 10.6% of the registrations raised questions and another .8% were classified as unclear. While the registries are not obligated to enforce the restrictions through verification, there are simpler methods, such as random screening, or scrutiny when a registrant reaches a certain number of registrations, which could help. Another solution is to recognize the difficulty of enforcing restrictions on global registries and adopt the model of .com, .net and .org, which were once restricted but are no longer.
The new gTLDs have introduced some competition, but how much is debatable. Examining market share, the extent of actual choice and price elasticity suggest that impact has been minimal. Other evidence, however, indicates that TLD expansion has attracted about 20% new registrants and led to new uses among 40 — 60% of registrants. The most significant contribution has clearly been development of facilities-based competition. As a result, new providers of registry services have been able to compete effectively with the incumbent registry, VeriSign, on this basis. Innovation has played a supporting role, and may become increasingly important as the three largest registries work to distinguish themselves from one another.
The agreements that underpin the new gTLDs reflect a level of detail that may not be necessary for future TLDs. While it was understandable for ICANN to have erred on the side of caution as it undertook initial expansion, the resulting legal framework is cumbersome. There was relatively strict insistence that the agreements adhere to key provisions of the original proposals, although in retrospect it appears that such rigidity was not always the wisest course. While the agreements are relatively uniform, there are some cases -- such as the requirement that smaller, unsponsored TLDs use only ICANN-accredited registrars — where divergence would have made sense. In a future round, it should be possible to use a streamlined base agreement and limit appendices to those necessary to ensure critical elements of registry performance and compliance with ICANN policies. There should also be more flexibility in the agreements to enable both ICANN and the registries to address routine issues.
None of the registries faced major legal problems, other than those relating to start-up. There were, however, others kinds of hurdles. One challenge involved technical acceptance of new gTLDs with more than three characters. The IETF and ICANN's Security and Stability Advisory Committee have helped focus attention on the problem, which would now benefit from ICANN Staff starting to monitor progress and publicize any problems. Another challenge — for .name and .aero — involved reconciling their ICANN obligations on access to Whois data with the data privacy requirements of the EU Data Protection Act.
Launching a new gTLD is not for the faint of heart. The experiences of the six that have done it already, and the wisdom the community as a whole as gained, should provide valuable assistance to those TLDs that follow.
14. From the ICANN Staff Report "Strategy: Introduction of New Generic Top-Level Domains", 30 September 2004
The strategy described in the present document fulfills the requirements outlined in the
US Government's 1998 "Statement of Policy, Management of Internet Names and
Addresses" 63 Fed. Reg. 31741 (and the terms of the MOU between ICANN and the US
Department of Commerce).
Implementation of this strategy will introduce competition and choice to the market for domain registration services. The implementation of new gTLDs will follow a transparent and straightforward allocation process, and will ensure the stability and security of the
Internet, incorporating relevant community guidance on each of the issues identified through the implementation process.
This strategy has the flexibility to adapt to new sets of issues as they arise through the evolution of the DNS, and can also adapt to changes that may occur in the marketplace, to new industry standards, and to other issues as they arise.
The next steps in implementing the strategy include analysis of the currently available reports and expected additional reports as they become available. These reports will provide a complete set of current issues that must be addressed as part of the strategy described in this document.
Once the full range of issues associated with the introduction of gTLDs has been identified, the processes described in this document will be employed to resolve each issue. That resolution will result from the inputs of various parties across technical, business, and other areas; balancing the costs and benefits identified in those inputs; and developing solutions that best benefit the Internet community as a whole.
This process will commence prior to the end of this year. As might be expected, some of the issues discussed will resolve in a straightforward manner. Others, such as implementation of top-level IDNs and possible restrictions on geopolitical names are complex and may require significant iteration for optimal resolution.
The model developed for the implementation of new gTLDs must be technically and economically robust. That is, changes in the marketplace or technical innovation should not require changes to the implementation model; these strategies and procedures should remain viable over a relatively long period. The flexible nature of this strategy provides the first step in achieving that end.
In summary, new gTLDs will be introduced with consideration for the concerns of the technical, business, and other relevant communities, and the recommendations of government agencies, supporting organizations, advisory committees, and the Internet community at large.
15. From the staff document "New TLD Questions", 6 June 2005
The list below recasts the important issues (now five) and important sub-issues [not cited here] that should be specifically covered in ordered to competently introduce new TLDs.
1. How many new TLDs should ICANN designate, and with what frequency?
2. Which naming conventions should apply?
3. Which allocation method or methods should be used?
4. What conditions should apply to new TLD operators?
5. As a special case, how will the deployment of Internationalized Domain Names (IDNs) at the top level impact discussion and findings on the questions above?