name="_Toc118169792">
name="_Toc118102443">
name="_Toc118093959">
name="_Toc118087504">GNSO new TLDs
Committee

Draft Final Report

Introduction of New Generic Top-Level Domains

Table of Contents

name="_Toc118169794">

EXECUTIVE SUMMARY................................................................................................

2

INTRODUCTION..............................................................................................................

7

PRINCIPLES..................................................................................................................

11

TERM OF
REFERENCE ONE: DISCUSSION.......................................................

12

TERM OF REFERENCE TWO: DISCUSSION......................................................

15

TERM OF
REFERENCE THREE: DISCUSSION..................................................

26

TERM OF
REFERENCE FOUR: DISCUSSION.....................................................

29

IMPLEMENTATION
GUIDELINES.............................................................................

32

ANNEX ONE
- CONSULTATION...............................................................................

34

ANNEX TWO
- PARTICIPATION TABLE................................................................

42

ANNEX FOUR
-- REFERENCE MATERIALS.........................................................

50

name="_Toc25123613">EXECUTIVE SUMMARY

The Executive Summary sets out, in a high-level form, the principles,
policies and implementation guidelines that the GNSO Council's Committee on the
introduction of new top level domains has developed through the policy
development process.

Principles:

a) That new generic top-level domains (gTLDs) should
be introduced in an orderly, timely and predictable way.

b) That some new generic top-level domains will be
internationalised domain names (IDNs).

c) That the principal objectives of the introduction
of new top-level domains are to permit market mechanisms to support useful
online identities that permeate international markets as well as to support
competition, innovation and consumer choice.

d) That a set of technical criteria for a new gTLD
registry applicant be used to minimise the risk of harming the operational
stability, security and global interoperability of the Internet.

style='mso-special-character:line-break'>

e) That a set
of business capability criteria for a new gTLD registry applicant be used to
provide an assurance that an applicant has the capability to meets its business
ambitions.

Term of Reference One: Policy Recommendation:

Term of Reference 1: Whether to introduce new top level domains

Additional new generic top-level domains should be introduced and work should
proceed to enable the introduction of new generic top-level domains, taking
into account the recommendations found in the following sections

Term of Reference Two: Selection
Criteria - String Criteria

i)       
Strings
should not be confusingly similar to an existing top level domain

ii)     
Strings
should not infringe the legal rights of others

iii)   
Strings
should not cause any technical instability

iv)   
Strings
should not be a Reserved Word
style='mso-footnote-id:ftn1' href="#_ftn1" name="_ftnref1" title="">[1]

v)     
Strings
should not be contrary to public policy (as set out in advice from the
Governmental Advisory Committee)

TOR 2: Selection Criteria -
Applicant Criteria

vi)   
Applicants
should be able to demonstrate their technical capability

vii) 
Applicants
should be able to demonstrate their financial and operational capability

TOR 2: Selection Criteria - Process Conditions

viii)There will be a clear and
pre-published process using objective and measurable criteria

ix)   
There
will be a base contract provided to applicants at the beginning of the process

x)     
Staff
will be used to make preliminary determinations about applications as part of a
process which includes the use of expert panels to make decisions

xi)   
Dispute
resolution and challenge processes will be established prior to the start of
the process

Term of Reference Three: Allocation Methods

i)       
Applications
will be assessed in rounds

ii)     
Applications
for strings will be published after the closing date

iii)   
If
there is contention for strings

(1)  
Applicants
may resolve contention between themselves within a pre-established timeframe

(2)  
If
there is no mutual agreement, a process will be put in place to enable
efficient resolution of contention

(3)  
The
ICANN Board may be used to make a final decision, using advice from staff and
expert panels

Term of Reference Four: Policies
for Contractual Conditions

                         
i.     
A
base contract will be provided as part of the Request For Proposal

                       
ii.     
The
initial term should be a commercially reasonable length

                     
iii.     
There
should be renewal expectancy

                      
iv.     
A
clear compliance and sanctions process should be set out in the base contract
which could lead to contract termination

                        
v.     
Registries
will be required to apply existing Consensus Policies
style='mso-footnote-id:ftn2' href="#_ftn2" name="_ftnref2" title="">[2] and commit to adopting new
Consensus Polices as they are developed

                      
vi.     
If
an applicant offers an IDN service, then ICANN's IDN guidelines must be
followed

                    
vii.     
Registries
will be required to use ICANN accredited registrars

Implementation guidelines:

i)       
There
will be a cost-recovery based application fee and application fees may differ
for applicants

ii)     
First
come first served within the round for processing order only between rounds and
for an ongoing process if applicable

iii)   
Applications
will be time and date stamped

iv)   
The
application submission date will be at least four months after the issue of the
Request for Proposal

v)     
ICANN
will promote the opening of the application round

vi)   
The
application round will close at least thirty days after the start date

vii) 
An
applicant granted a TLD string must use it within an appropriate timeframe.

viii)The base contract should balance
market certainty and flexibility for ICANN to accommodate a rapidly changing
market place

ix)   
ICANN
should take a consistent approach to the establishment of registry fees

x)     
The
use of personal data is limited to the purpose for which it is collected

style='page-break-before:always'>

name="_Toc33183275">INTRODUCTION

1)     This is an updated draft
style='mso-bidi-font-style:normal'>Final Report from the GNSO Council's
Committee on the introduction of new top level domains. This version incorporates
commentary from the GNSO's public forum on new top level domains held at the
ICANN Sao Paulo meeting[3]. The meeting included a further phase in the
ongoing consultations with ICANN's Governmental Advisory Committee on public
policy principles for new top level domains
style='mso-footnote-id:ftn4' href="#_ftn4" name="_ftnref4" title="">[4].

2)     The 14 November 2006 draft
style='mso-bidi-font-style:normal'>Final Report was released in conjunction
with the ICANN Staff Discussion Points
style='mso-footnote-id:ftn5' href="#_ftn5" name="_ftnref5" title="">[5]
document that set out a wide range of further questions and commentary on the
Committee's draft recommendations. The
consultations and negotiations around the impact of the issues raised by ICANN
staff have been incorporated into an intensive and ongoing implementation
process and are manifest here in an updated set of recommendations which take
account of the Committee's response to the staff input.

3)     Additional comments were received on
the 14 November 2006 draft Constituencies and observers which are referenced
below and which have been incorporated, where possible, into this draft.
style='mso-footnote-id:ftn6' href="#_ftn6" name="_ftnref6" title="">[6]

4)     The major changes captured in this
version of the Report are to re-emphasise the Committee's key
principles that reflect ICANN's Mission and Core Values; clarification of the
Committee's draft policy recommendations and the further explanation of the
Committee's implementation guidelines which are designed to assist ICANN staff
to implement the policy recommendations in a transparent and cohesive manner.

5)     The Report sets out the key findings from a multi-phase,
multi-stakeholder policy development process that has taken place during 2006
and which will continue through 2007.
The Committee have been guided by the GNSO's policy development process
requirements which are part of ICANN's ByLaws
style='mso-footnote-id:ftn7' href="#_ftn7" name="_ftnref7" title="">[7].

6)     In each of the sections below the
Committee's recommendations are discussed in more detail with an explanation of
the rationale for the decisions. The
recommendations have been the subject
of numerous public comment periods and intensive discussion across a range of
stakeholders including ICANN's GNSO Constituencies, ICANN Supporting
Organisations and Advisory Committees and members of the broader Internet-using
public that is interested in ICANN's work
style='mso-footnote-id:ftn8' href="#_ftn8" name="_ftnref8" title="">[8]. In particular, detailed work has been
conducted through the Internationalised Domain Names Working Group (IDN-WG)
style='mso-footnote-id:ftn9' href="#_ftn9" name="_ftnref9" title="">[9] and
the Reserved Names Working Group (RN-WG)
style='mso-footnote-id:ftn10' href="#_ftn10" name="_ftnref10" title="">[10] to
comprehensively examine important elements of new TLDs. A working group to examine the protection of
the rights of others (PRO-WG) is being formed with a draft statement of work
yet to be implemented[11]. Each of these additional groups are due to
complete their work prior to ICANN's March 2007 meeting in Portugal.

7)     The GNSO Committee has conducted
four separate face-to-face consultations, in Washington DC, Wellington,
Brussels and Amsterdam, to discuss each of the Terms of Reference. The final face-to-face meeting of the
Committee is due to take place on 22 and 23 February 2007 in Los Angeles. This meeting will confirm the draft policy
recommendations, articulate proposed implementation plans from ICANN
operational and legal staff and finalise the next steps of the policy
development process through June 2007.

8)     In addressing the Terms of Reference,
very close attention has been paid to mapping the discussion and the resulting
recommendations to ICANN's Bylaws, Mission and Core Values. A full list of all the Constituency
Statements, copies of the responses to Calls for Expert Papers and the Public
Comment archives can be found in the GNSO's section of the ICANN website at
href="http://gnso.icann.org/issues/new-gtlds/new-gtld-pdp-input.htm">http://gnso.icann.org/issues/new-gtlds/new-gtld-pdp-input.htm.

9)     This Report reflects another stage in the ICANN's progress towards
introducing new top-level domains. The
history of the introduction of new TLDs, most notably during 2000 and then
again in 2003-2004, is found on ICANN's background information section on the
top-level domains (
href="http://www.icann.org/topics/gtld-strategy-areaa.html">http://www.icann.org/topics/gtld-strategy-areaa.html.

style='page-break-before:always'>

PRINCIPLES

The following principles have guided
the work of the GNSO Committee on the introduction of new top-level domains in
accordance with the Terms of Reference set by the GNSO, with reference to
ICANN's Mission and Core Values.

a) That new generic top-level
domains (gTLDs) should be introduced in an orderly, timely and predictable way.

b) That some new generic top-level
domains will be internationalised domain names (IDNs).

c) That the principal objectives of
the introduction of new top-level domains are to permit market mechanisms to
support useful online identities that permeate international markets as well as
to support competition, innovation and consumer choice.

d) That a set of technical criteria
for a new gTLD registry applicant be used to minimise the risk of harming the
operational stability, security and global interoperability of the Internet.

style='mso-special-character:line-break'>

e)
That a set of business capability criteria for a new gTLD registry
applicant be used to provide an assurance that an applicant has the capability
to meets its business ambitions.

name="_Toc25123614">TERM OF REFERENCE ONE: DISCUSSION

name="_Toc25129554">
name="_Toc25122984">
name="_Toc22794192">Whether to introduce new top-level domains

name="_Toc25123538">Additional
new generic top-level domains should be introduced and work should proceed to
enable the introduction of new generic top-level domains, taking into account
the recommendations found in the following sections.

1.      This section sets out the way in
which the Committee arrived at their Recommendation to proceed with the
introduction new top-level domains.

2.      ICANN's policy development process
is a multi-stage process that includes the production of an
style='mso-bidi-font-style:normal'>Issues Report (found at
href="http://gnso.icann.org/issues/new-gtlds/gnso-issues-rpt-gtlds-05dec05.pdf">http://gnso.icann.org/issues/new-gtlds/gnso-issues-rpt-gtlds-05dec05.pdf).
The Issues Report included
comprehensive information about the main documents and decisions on new
top-level domains since the 2000 round of new top-levels domains which
included, for example, .biz, .info, and the 2004 round of sponsored top-level
domains which included, for example, .cat and .asia. In addition, the process for the re-bids of
the .net and .org agreements was used to inform the Report.

3.      A full compilation of all the
materials the Committee used is found in the Reference Materials section at the
end of the document. In particular, the
Committee used the New TLD Evaluation
Process Planning Task Force. The
Report (
href="http://www.icann.org/committees/ntepptf/final-report-31jul02.htm">http://www.icann.org/committees/ntepptf/final-report-31jul02.htm) described four aspects to evaluate
including technical, business, legal and process that have, subsequently,
informed the development of all the Recommendations within the
style='mso-bidi-font-style:normal'>Report.

4.      In its request to the ICANN staff to
produce an Issues Report, the
Committee also made a request to produce a background report on
internationalised domain names (IDNs).
This work is now reflected in the progress of the IDN-WG in its
discussions on internationalised domain names in the context of the
introduction of new top-level domains (
href="http://gnso.icann.org/issues/idn-tlds/idn_tor_draft-12oct06.htm">http://gnso.icann.org/issues/idn-tlds/idn_tor_draft-12oct06.htm).
The broad body of work on internationalised domain names taking place
within, for example, the President's Committee on IDNs
(http://www.icann.org/committees/idnpac/), the IETF (
href="http://www.ietf.org/">http://www.ietf.org/) and other technical organisations
has been taken into account when developing the Recommendations contained here.
A joint ccNSO and GAC IDN Working Group
style='mso-footnote-id:ftn12' href="#_ftn12" name="_ftnref12" title="">[12] has
been formed and a GAC IDN Working Group is also examining IDN issues as they relate
to governments
href="#_ftn13" name="_ftnref13" title="">[13]. The ICANN Board, at the Sao Paulo meeting,
urged the various working groups to continue their efforts and to collaborate
as closely as possible[14].

5.      The outcomes of the February 2006
meeting in Washington DC were the key determinants of the recommendation to
proceed with establishing a permanent policy for and method of accepting
applications for new TLDs.

6.      There were some strong themes to
support a decision to enable the introduction of new TLDs. These included the facilitation of a competitive
environment for registry services; a
"public choice" benefit for end users and the potential for expansion of
innovative Internet use in a wide variety of markets that have may have been
underserved in the past. A summary of
the discussion on whether to introduce new top-level domains can be found at
href="http://forum.icann.org/lists/gtld-council/msg00026.html">http://forum.icann.org/lists/gtld-council/msg00026.html.
In addition, the respondents to the Call
for Papers set out a variety of
arguments to support the introduction of new TLDs.

7.      After a day of detailed discussions
and presentations from eight external stakeholders and in considering
Constituency Statements and Public Comments, there was rough consensus that the
Committee should proceed with consideration of the other three Terms of
Reference
href="#_ftn15" name="_ftnref15" title="">[15].

8.      At the 31 March 2006 ICANN Board
meeting in Wellington, the Board made clear its intention to proceed with the
introduction of new top-level domains
style='mso-footnote-id:ftn16' href="#_ftn16" name="_ftnref16" title="">[16]. The Board reaffirmed its commitment to
introducing new top-level domain registries at its 30 June 2006 meeting in
Marrakech
href="#_ftn17" name="_ftnref17" title="">[17].

9.      The general principle underpinning
the wide ranging discussions was that, whatever consensus policy was developed,
it must be consistent with ICANN's limited technical co-ordination mission and
align with ICANN's Mission and Core Values
style='mso-footnote-id:ftn18' href="#_ftn18" name="_ftnref18" title="">[18].

style='page-break-before:always'>

name="_Toc25123617">TERM
OF REFERENCE TWO: DISCUSSION

style='mso-special-character:line-break'>

1.      This section sets the results of the
discussion about the draft policy recommendations for selection criteria for
new top level domains[19]. There are three main elements of the
selection criteria including "string" criteria, "applicant" criteria and
"process" criteria. The following sections simplify the policy recommendations
and shift some previous recommendations to more appropriate sections such as
contractual conditions or implementation guidelines. The recommendations have been re-numbered to
reflect substantial changes to the ordering and positioning of the previous set
of draft recommendations.

2.      Selection Criteria - "Strings":

                                                             
i.     
Strings
should not be confusingly similar to an existing top level domain

                                                           
ii.     
Strings
should not infringe the legal rights of others

                                                         
iii.     
Strings
should not cause technical instability

                                                          
iv.     
Strings
should not be a reserved word

                                                            
v.     
Strings
should not be contrary to public policy principles (as set out in the
Governmental Advisory Committee's draft set of principles)

3.      Selection Criteria - "Applicants"

                                                             
i.     
Applicants
should be able to demonstrate their technical capability

                                                           
ii.     
Applicants
should be able to demonstrate their financial and operational capability

4.      Selection Criteria - "Process"

                                                             
i.     
There
will be a clear and pre-published process using objective and measurable
criteria

                                                           
ii.     
There
will be a base contract provided to applicants at the beginning of the process

                                                         
iii.     
Staff
will be used to make preliminary determinations about applications as part of a
process which includes the use of expert panels

                                                          
iv.     
Dispute
resolution and challenge processes will be established prior to the start of
the process

5.      The Committee decided that the "process"
criteria for introducing new top-level domains would follow a pre-published
application system including the levying of an application fee to recover the
costs of the application process. This is consistent with ICANN's approach to
the introduction of new TLDs in the previous 2000 and 2004 round for new top
level domains.

6.     
The
Committee decided that application fees should be set at the start of the
process and application materials would be made available prior to any
application cycle. The Committee agreed
that the cost to evaluate individual applications may differ depending on the
stages of the application evaluation process that the applicant reached. Therefore, different fees may be levied
depending on what stage in the process the application reaches. This approach is explained in more detail in
the implementation guidelines and in the ICANN staff-developed draft
implementation plan which addressed the Committee's proposed recommendations. This plan is under ongoing development by an
internal team including operational, legal, policy and technical staff. It is proposed to present a high level
implementation plan to the Committee at the Los Angeles meetings to enable
Committee members to see, in a practical form, how the ICANN Staff Discussion Points document, the input from the Sao
Paulo meeting and the ongoing internal implementation planning have addressed
the Committee's policy recommendations and broader guidance.

7.     
The Committee agreed that the
technical requirements for applicants would include compliance with a minimum
set of technical standards and that this requirement would be part of the new
registry operator's contractual conditions included in the proposed base
contract. The more detailed discussion
about technical requirements has been moved to the contractual conditions
section.

8.     
The Committee engaged in detailed
discussion of the string requirements which have now been simplified, after
reference to the Staff Discussion Points and
to external experts who have provided their input into the processs. ICANN would, to implement the policy, develop
an implementation plan that included staff being able to make preliminary
determinations on whether the application complies with the string requirements
and that ICANN may engage appropriate expert advice in order to make a
determinations about string contention.

9.     
It was
clear from Committee discussions and from staff input that ICANN would continue
to conduct public comment processes including input from the full range of
ICANN Advisory Committees.

10. The following sections deal specifically with
"string" criteria and include the results of intensive discussion about what
kinds of string criteria were appropriate, practical to implement and which
reasonably balanced divergent Constituency interests. For example, the NCUC argued in its December
2006 comments on the 14 November 2006 draft that the "proposal is [also]
fundamentally flawed in that it falsely assumes there is a [sic] agreed-upon
global standard of morality, religion, or expression that can be imposed on the
entire world through ICANN policy. The
draft recommendations would be practically impossible to enforce due to this
fundamental…premise in the proposed policy."
After detailed discussion about the intent of the recommendation, study
of the draft GAC public policy principles and the commitment to using already
existing bodies of well-established international law, ICANN staff have
proposed an implementation process which addresses and balances the views of a
wide range of participants.

11. The Committee agreed that strings should not be
visually confusingly similar to an existing TLD string and that the string did
not infringe the legal rights of others, as set out in recognised international
law. This proposal is consistent with
the current requirements of Registered Name Holders in the existing gTLD
Registrar Accreditation Agreement (see Clause 3.7.7.9).

12. The concept of "confusingly similar"
is used to mean that there is a likelihood of confusion on the part of the
relevant public. The prospect of IDN new
TLD applications makes this criterion vital.
There is broad agreement in international and national law the concept
of "confusingly similar". In international
trade mark law, confusion may be visual, phonetic or conceptual but the recommendation
here is limited to visual confusion.

13. In broader international law, the
concept of creating confusion is contained in the 1883 Paris Convention and
says "to create confusion by any means whatever" {Article 10bis (3) (1} and,
further, being "liable to mislead the public" {Article 10bis (3) (3)}. The treatment of confusingly similar is also
contained in European Union law and is structured as follows -- "because of its identity with or similarity
to…there exists a likelihood of confusion on the part of the public…; the
likelihood of confusion includes the likelihood of association…" {Article 4 (1)
(b) of the 1988 EU Trade Mark directive 89/104/EEC}. Article 8 (1) (b) of the 1993 European Union
Trade Mark regulation 40/94 is also relevant.

14. In the United States, existing trade
mark law states that "…to the best of the verifier's knowledge and belief, no
other person has the right to use such mark in commerce either in the identical
form thereof or in such near resemblance thereto as to be likely, when used on
or in connection with the goods of such other person, to cause confusion, or to
cause mistake, or to deceive…" which is contained in Section 1051 (3) (d) of
the US Trademark Act 2005 (found at
href="http://www.bitlaw.com/source/15usc/1051.html">http://www.bitlaw.com/source/15usc/1051.html.)

15. In Australia, the Australian Trade
Marks Act 1995 Section 119 says that "…For the purposes of this Act, a trade
mark is taken to be deceptively similar to another trade mark if it so nearly
resembles that other trade mark that it is likely to deceive or cause
confusion" (found at
href="http://www.ipaustralia.gov.au/resources/legislation_index.shtml">http://www.ipaustralia.gov.au/resources/legislation_index.shtml)

16. The European Union Trade Mark Office
provides guidance on how to interpret confusion. "…confusion
may be visual, phonetic or conceptual. A
mere aural similarity may create a likelihood of confusion. A mere visual similarity may create a
likelihood of confusion. Confusion is
based on the fact that the relevant public does not tend to analyse a word in
detail but pays more attention to the distinctive and dominant components. Similarities are more significant than
dissimilarities. The visual comparison
is based on an analysis of the number and sequence of the letters, the number
of words and the structure of the signs.
Further particularities may be of relevance, such as the existence of
special letters or accents that may be perceived as an indication of a specific
language. For words, the visual
comparison coincides with the phonetic comparison unless in the relevant
language the word is not pronounced as it is written. It should be assumed that the relevant public
is either unfamiliar with that foreign language, or even if it understands the
meaning in that foreign language, will still tend to pronounce it in accordance
with the phonetic rules of their native language. The length of a name may influence the effect
of differences. The shorter a name, the more easily the public is able to
perceive all its single elements. Thus, small differences may frequently lead
in short words to a different overall impression. In contrast, the public is
less aware of differences between long names.
The overall phonetic impression is particularly influenced by the number
and sequence of syllables." (found
at
href="http://oami.europa.eu/en/mark/marque/direc.htm">http://oami.europa.eu/en/mark/marque/direc.htm).

17. An extract from the United Kingdom's Trade
Mark Office's Examiner's Guidance Manual is useful in explaining further the
Committee's approach to developing its Recommendation. "For
likelihood of confusion to exist, it must be probable, not merely possible that
confusion will arise in the mind of the average consumer. Likelihood of
association is not an alternative to likelihood of confusion, "but serves to
define its scope". Mere association, in the sense that the later mark brings
the earlier mark to mind is insufficient to find a likelihood of confusion,
unless the average consumer, in bringing the earlier mark to mind, is led to
expect the goods or services of both marks to be under the control of one
single trade source. "The risk that the public might believe that the
goods/services in question come from the same undertaking or, as the case may
be, from economically-linked undertakings, constitutes a likelihood of
confusion…". (found at
http://www.patent.gov.uk/tm/t-decisionmaking/t-law/t-law-manual.htm)

18. The IPC, in its 20 December 2006 additional
comments, "believes there must be some mechanism to challenge to eligibility
for consideration of strings that are confusingly similar to trademarks". The proposed implementation plan deals with a
comprehensive range of potentially controversial (for whatever reason) string
applications which balances the need for reasonable protection of existing
legal rights and the capacity to innovate with new uses for top level domains
that may be attractive to a wide range of users.

19. It was agreed by the Committee that the string
should not cause any technical issues that threatened the stability and
security of the Internet. As the policy
development process proceeds, further detailed technical assistance will be
sought from both ICANN expert committees and advisors.

20. There was detailed discussion about a general
category of potential strings which may have public policy impacts of interest
to national governments. In response to
correspondence from the GNSO Council Chair, the Governmental Advisory Committee
style='mso-footnote-id:ftn20' href="#_ftn20" name="_ftnref20" title="">[20] have
responded to a request to provide guidance on public policy issues. The 17 October 2006 draft is found in full
at Annex Three. It is expected that
these principles will be finalised at the ICANN meeting in March 2007. After those guidelines are formalised, the
ICANN staff proposed implementation plan may be modified to take into account
ways to address the public policy concerns of governments in relation to the
introduction of new top level domains.

21. The
Committee discussed proposed text to address the concerns of governments that
was based on existing international law with respect to strings that may be
contrary to public policy or accepted principles of morality or be of such a
nature to deceive the public.

22. The Committee spent considerable
time considering the public policy aspects of new top-level domains
style='mso-footnote-id:ftn21' href="#_ftn21" name="_ftnref21" title="">[21]. In particular, concerns about "public policy
and morality" were raised. This phrasing
is consistent with international laws including Article 3 (1) (f) of the 1988
European Union Trade Mark Directive 89/104/EEC and within Article 7 (1) (f) of
the 1993 European Union Trade Mark Regulation 40/94. In addition, the phrasing "contrary to
morality or public order and in particular of such a nature as to deceive the
public" comes from Article 6quinques (B)(3) of the 1883 Paris Convention. The reference to the Paris Convention remains
relevant to domain names even though, when it was drafted, domain names were
completely unheard of.

23. The concept of "morality" is
captured in Article 19 United Nations Convention on Human Rights (
href="http://www.unhchr.ch/udhr/lang/eng.htm">http://www.unhchr.ch/udhr/lang/eng.htm) says "…Everyone has the right to
freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers."
Article 29 continues by saying that "…In the exercise of his rights and
freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society".

24. The EU Trade Mark Office's
Examiner's guidelines provides assistance on how to interpret morality and
deceit. "…Contrary to morality or public
order. Words or images which are offensive, such as swear words or racially
derogatory images, or which are blasphemous are not acceptable. There is a
dividing line between this and words which might be considered in poor taste.
The latter do not offend against this provision." The further element is deception of the
public which is treated in the following way.
"…Deceive the public. To deceive the public, is for instance as to the
nature, quality or geographical origin. For example, a word may give rise to a
real expectation of a particular locality which is untrue." For more information, see Sections 8.7 and
8.8 at
href="http://oami.europa.eu/en/mark/marque/direc.htm">http://oami.europa.eu/en/mark/marque/direc.htm

25. The UK Trade Mark office provides
similar guidance in its Examiner's Guidance Manual. "Marks which offend fall broadly into three
types: those with criminal connotations, those with religious connotations and
explicit/taboo signs. Marks offending
public policy are likely to offend accepted principles of morality, e.g.
illegal drug terminology, although the question of public policy may not arise
against marks offending accepted principles of morality, for example, taboo
swear words. If a mark is merely
distasteful, an objection is unlikely to be justified, whereas if it would
cause outrage or would be likely significantly to undermine religious, family
or social values, then an objection will be appropriate. Offence may be caused on matters of race,
sex, religious belief or general matters of taste and decency. Care should be taken when words have a
religious significance and which may provoke greater offence than mere
distaste, or even outrage, if used to parody a religion or its values. Where a
sign has a very sacred status to members of a religion, mere use may be enough
to cause outrage." For more information,
see
href="http://www.patent.gov.uk/tm/t-decisionmaking/t-law/t-law-manual.htm">http://www.patent.gov.uk/tm/t-decisionmaking/t-law/t-law-manual.htm)

26. Detailed discussion was conducted about
application process dispute resolution process as part of the original string
criteria discussion. This text has been
moved to the implementation guidelines section found below.

27. In summary, the
development of selection criteria for new top-level domains has been the
subject of intense discussion throughout the Committee's work. This work has now been clarified and
simplified and further guidance will be sought at the Los Angeles meetings on
any outstanding questions from either the Committee or ICANN staff.

style='page-break-before:always'>

name="_Toc25123630">TERM OF REFERENCE THREE: DISCUSSION

style='mso-special-character:line-break'>

1.      Allocation
methods for new top level domains have been the subject of detailed discussion
within the Committee and with ICANN operational staff. The draft recommendations
have been distilled into the following key areas, some of which require further
clarification from the Committee:

                                                             
i.     
Applications
will be assessed in rounds, in the first instance

                                                           
ii.     
Applications
for strings will be published after the closing date

                                                         
iii.     
If
there is contention for strings

1.      Applicants may resolve contention
between themselves within a pre-established timeframe

2.      If there is no mutual agreement, a
process will be put in place to enable efficient resolution of contention

3.      The ICANN Board may be required make
a final decision, using advice from staff and expert panels

2.      The development of recommendations
for allocation methods was conducted in the same way as that for selection
criteria. The comprehensive discussion
about allocation methods has taken place through analysis of the formal
Constituency Statements; public comments and email discussions which were used
to modify and clarify the language of the Recommendations.

3.      Comparative evaluations have been a
consistent theme throughout the policy development process with some
discussants suggesting that auctions were a more suitable method of resolving
conflict between applicants with similar string ideas. On balance, a comparative evaluation system will
be used to analyse all applications and, where there is string contention
between applicants for the same string, a different process may be
necessary.

4.      ICANN staff have received some
detailed advice about the utility and practicality of using auctions to resolve
string contention at particular points in the application process. The key features of auctions
style='mso-footnote-id:ftn22' href="#_ftn22" name="_ftnref22" title="">[22] are,
properly designed, they are objective and stand up well to challenge; they are
administratively efficient; they assign resources to the highest valued use and
they generate revenue.

5.      The draft Recommendations recognize
past experiences with comparative evaluations in the ICANN environment,
particularly those relating to sponsored top-level domains where measures of
"community" support needed to be determined.
The evaluations, for example in the case of the .net and .org rebids and
the introduction of new sTLDs like .jobs and .travel, show that the
Internet-using community takes a keen interest in ICANN's decision making
process. In addition, ICANN's Supporting
Organisations and Advisory Committees outside the GNSO play a key role in
determining the success of potential applications.

6.      Further discussion within the
Committee is necessary to confirm its draft Recommendations and to ensure that
the implementation plan includes clear instructions to applicants about how
strong contention between them (if they are applying for the same string) can
be resolved.

name="_Toc25123641">TERM OF REFERENCE FOUR: DISCUSSION

style='mso-special-character:line-break'>

1.      Policies for Contractual
Conditions - Summary

                                                             
i.     
A
base contract will be provided as part of the Request For Proposal

                                                           
ii.     
The
initial term should be a commercially reasonable length

                                                         
iii.     
There
should be renewal expectancy

                                                          
iv.     
A
clear compliance and sanctions process should be set out in the base contract

                                                            
v.     
Registries
will be required to apply existing Consensus Policies
style='mso-footnote-id:ftn23' href="#_ftn23" name="_ftnref23" title="">[23] and
commit to adopting new Consensus Polices as they are developed

                                                          
vi.     
If
an applicant offers an IDN service, then ICANN's IDN guidelines must be
followed

                                                        
vii.     
Registries
will be required to use ICANN accredited Registrars

1.      This section sets out the discussion
of the policies for contractual conditions for new top level domain registry
operators.

2.      The recommendations were developed
through the Brussels and Amsterdam face-to-face consultations. The Committee has focused on the key
principles of consistency, openness and transparency. It was also determined that a scalable and
predictable process is consistent with industry best practice standards for
services procurement. The Committee
referred in particular to standards within the broadcasting, telecommunications
and Internet services industries to examine how regulatory agencies in those
environments conducted, for example, spectrum auctions, broadcasting licence
distribution and media ownership frameworks.

3.      The Committee found a number of
expert reports
href="#_ftn24" name="_ftnref24" title="">[24]
beneficial. In particular, the World
Bank report on mobile licensing conditions provides some guidance on best
practice principles for considering broader market investment conditions. "…A major challenge facing regulators in
developed and developing countries alike is the need to strike the right
balance between ensuring certainty for market players and preserving
flexibility of the regulatory process to accommodate the rapidly changing
market, technological and policy conditions.
As much as possible, policy makers and regulators should strive to
promote investors' confidence and give incentives for long-term
investment. They can do this by favoring
the principle of 'renewal expectancy', but also by promoting regulatory
certainty and predictability through a fair, transparent and participatory
renewal process. For example, by
providing details for license renewal or reissue, clearly establishing what is
the discretion offered to the licensing body, or ensuring sufficient lead-times
and transitional arrangements in the event of non-renewal or changes in
licensing conditions. Public
consultation procedures and guaranteeing the right to appeal regulatory
decisions maximizes the prospects for a successful renewal process. As technological changes and convergence and
technologically neutral approaches gain importance, regulators and policy
makers need to be ready to adapt and evolve licensing procedures and practices
to the new environment."

4.      The Recommendations which the
Committee have developed with respect to the introduction of new TLDs are
consistent with the World Bank principles.

IMPLEMENTATION GUIDELINES

1)     At the Sao Paulo meeting, it became
clear that some of the Committee's recommendations could more properly be
termed "implementation guidelines" designed to assist ICANN staff with
implementation of the formal policy recommendations.

2)     These guidelines are consistent with
ICANN's openness and transparency requirements
style='mso-footnote-id:ftn25' href="#_ftn25" name="_ftnref25" title="">[25].

                                                             
i.     
There
will be a cost-recovery based application fee and application fees may differ
for applicants

                                                           
ii.     
First
come first served within the round for processing order only between rounds and
for an ongoing process if applicable

                                                         
iii.     
Applications
will be time and date stamped

                                                          
iv.     
The
application submission date will be at least four months after the issue of the
Request for Proposal

                                                            
v.     
ICANN
will promote the opening of the application round

                                                          
vi.     
The
application round will close at least thirty days after the start date

                                                        
vii.     
An
applicant granted a TLD string must use it within an appropriate timeframe.

                                                      
viii.     
The
base contract should balance market certainty and flexibility for ICANN to
accommodate a rapidly changing market place

                                                          
ix.     
ICANN
should take a consistent approach to the establishment of registry fees

                                                            
x.     
The
use of personal data is limited to the purpose for which it is collected

style='page-break-before:always'>

name="_Toc33183283">ANNEX ONE - CONSULTATION

1.     
This section
provides an overview of the progress of the policy development process and the
documentation produced throughout the series of teleconferences and
face-to-face consultations that have taken place during 2006. All of the meetings were open to observers
and many different stakeholders attended the meetings taking an active part in
the discussion. In addition, all
meetings were open to remote participation by teleconference and through the
use of the Shinkuro (www.shinkuro.com) file-sharing technology. A full table found at Annex One illustrates
participation by GNSO Constituencies and other observers.

2.     
The
style='mso-bidi-font-style:normal'>Issues Report was released on 5 December
2005. The Report sets out an early collation of issues that the GNSO wished
to take into account in developing the Terms of Reference for future
rounds. For example, the selection
criteria used in previous application rounds for new top-level domains were
used to guide the development of Term of Reference Two in this PDP. An evaluation of the selection criteria and
methods used in the re-bidding of the .org and .net registry contracts was also
conducted. The Issues Report contained Staff Recommendations about potential terms
of reference and, in the majority, those Recommendations were adopted by the
GNSO Council. The Report is found at
href="http://gnso.icann.org/issues/new-gtlds/gnso-issues-rpt-gtlds-05dec05.pdf">http://gnso.icann.org/issues/new-gtlds/gnso-issues-rpt-gtlds-05dec05.pdf.

3.     
A Public
Comment Period was launched on 6 December 2005 to solicit input from the ICANN
community about the proposed Terms of Reference (found at
href="http://www.icann.org/announcements/announcement-06dec05.htm">http://www.icann.org/announcements/announcement-06dec05.htm). The Public
Comment Period ran until 31 January 2006.
For this PDP public comment periods have been used in different ways
than in the past. In general, public
comment calls have been far more targeted and highly structured to get
responses on particular areas of concern to the Committee. This was a successful initiative enabling
information to be collected in a consistent way that improved the quality of
subsequent Reports. The archive of comments can be found at
href="http://forum.icann.org/lists/new-gtlds-pdp-comments/">http://forum.icann.org/lists/new-gtlds-pdp-comments/).

4.     
In addition to
a Public Comment Period, a Call for
Expert Papers was announced on 3 January 2006 (found at
href="http://icann.org/announcements/announcement-03jan06.htm">http://icann.org/announcements/announcement-03jan06.htm). The request
for input was advertised widely in the international press and yielded eleven
responses from a diverse range of stakeholders.
The authors of the papers were invited to present their papers and
participate in a question and answer session at the 23 - 25 February 2006 Washington
meeting. A full listing of all the
inputs, including the Expert Papers,
can be found at
href="http://gnso.icann.org/issues/new-gtlds/new-gtld-pdp-input.htm">http://gnso.icann.org/issues/new-gtlds/new-gtld-pdp-input.htm.

5.     
The ICANN Board
has been regularly updated on the progress of and taken a keen interest in the
work of the new TLDs Committee. For
example, the Board meeting of 10 January 2006 shows discussion within the Board
about its involvement in new TLDs policy development process (found at
href="http://www.icann.org/minutes/minutes-10jan06.htm">http://www.icann.org/minutes/minutes-10jan06.htm)

6.     
A draft
style='mso-bidi-font-style:normal'>Initial Report was released on 19
February 2006 (found at
href="http://icann.org/topics/gnso-initial-rpt-new-gtlds-19feb06.pdf">http://icann.org/topics/gnso-initial-rpt-new-gtlds-19feb06.pdf) and a request for public comments was announced at
the same time that was open between 20 February 2006 and 13 March 2006. The archives for those comments are found at
href="http://forum.icann.org/lists/new-gtlds-pdp-initial-report/">http://forum.icann.org/lists/new-gtlds-pdp-initial-report/. The draft
style='mso-bidi-font-style:normal'>Initial Report was used to facilitate
discussion at subsequent Committee meetings and to give some guide to the
broader community about the Committee's progress in its early stages.

7.     
The GNSO's new
TLDs Committee held a three day meeting in Washington DC between 23 and 25
February 2006. The meeting notes can be
found on the GNSO's Committee archive at
(http://forum.icann.org/lists/gtld-council/msg00030.html). A central element of the discussion focused
on re-visiting ICANN's Mission and Core Values to ensure that the deliberations
on the Terms of Reference were tightly constrained. The substantive discussion over the three-day
meeting also included discussion on whether to introduce new top-level domains
(
href="http://forum.icann.org/lists/gtld-council/msg00027.html">http://forum.icann.org/lists/gtld-council/msg00027.html) and potential selection criteria which could be used
in a new round of top-level domain applications (
href="http://forum.icann.org/lists/gtld-council/msg00026.html">http://forum.icann.org/lists/gtld-council/msg00026.html).

8.     
Analysis of the
lessons learned from previous TLD rounds was included in the broader discussions
held in Washington DC (
href="http://forum.icann.org/lists/gtld-council/msg00030.html">http://forum.icann.org/lists/gtld-council/msg00030.html). In addition
to discussing general selection criteria, detailed discussion of technical
requirements also took place (
href="http://forum.icann.org/lists/gtld-council/msg00028.html">http://forum.icann.org/lists/gtld-council/msg00028.html). Following
the Washington meetings, it was clear that further information about technical
criteria was necessary to inform the Committee's work. On 15 March 2006 a formal call was made for
additional information on technical criteria (found at
href="http://gnso.icann.org/issues/new-gtlds/tech-criteria-15mar06.htm">http://gnso.icann.org/issues/new-gtlds/tech-criteria-15mar06.htm). No responses
were received to that specific call but, in the resulting recommendations,
particular attention has been paid to addressing relevant technical standards
across the full range of registry operations, including those that relate to
Internationalised Domain Names.

9.     
In response to
the Committee's work and to discussions at the March 2006 Wellington meeting,
the Board indicated its intention to facilitate the implementation of new
top-level domains (found at
href="http://www.icann.org/minutes/minutes-31mar06.htm">http://www.icann.org/minutes/minutes-31mar06.htm.)

10.
The new TLDs
Committee met in Brussels between 11 and 13 May 2006 to discuss, in further
detail, the work that had been undertaken on refining the selection criteria
and allocation methods. In addition, a
full day was spent on discussing policies for contractual conditions with a
special presentation from ICANN's Deputy General Counsel. The Committee has archived, on 18 May 2006,
records of the Brussels discussion and output from the meeting can be found at
http://forum.icann.org/lists/gtld-council/msg00133.html

11.
At the Brussels
meeting, a revised work plan was devised (found at
href="http://forum.icann.org/lists/gtld-council/msg00130.html">http://forum.icann.org/lists/gtld-council/msg00130.html) which include a high level commitment to producing
an Initial Report in time for
discussion at ICANN's June 2006 Marrakech meeting.

12.
A draft
style='mso-bidi-font-style:normal'>Initial Report was released on 15 June
2006 (found at
href="http://gnso.icann.org/issues/new-gtlds/issues-report-15jun06.pdf">http://gnso.icann.org/issues/new-gtlds/issues-report-15jun06.pdf) and further discussion took place on the Committee's
mailing list prior to the Marrakech meeting.

13.
The ICANN Board
meeting of 30 June 2006 showed, again, the Board's interest in facilitating the
policy development process on new top-level domains, particularly in
encouraging ongoing discussions with the GAC.
(found at
href="http://www.icann.org/minutes/resolutions-30jun06.htm">http://www.icann.org/minutes/resolutions-30jun06.htm). After inputs
from the Marrakech meeting a final version of the Initial Report was released on 28 July 2006 (found at
href="http://gnso.icann.org/drafts/newgtlds-issues-report-01-28jul06.htm">http://gnso.icann.org/drafts/newgtlds-issues-report-01-28jul06.htm).

14.
The Committee
conducted another set of face-to-face consultations in Amsterdam between 29 and
31 August 2006 to further refine the Committee's findings and to develop a set
of draft Recommendations. Prior to the Amsterdam meeting, a
comprehensive public comment period was conducted. These public comments (found at
http://forum.icann.org/lists/gtld-council/msg00189.html) were used as working
materials for the Committee to consider, in addition to Constituency
Statements, the previous set of Expert Papers and comprehensive commentary for
a wide variety of observers to the meetings.

15.
The Committee
met with the GAC on two occasions during the course of the consultations - in
Wellington and again in Marrakech - where progress on the Committee's work was
shared with GAC members.

16.
The most
important aspects of the discussion were further clarification about:

a.      string
differentiation (
href="http://forum.icann.org/lists/gtld-council/msg00190.html">http://forum.icann.org/lists/gtld-council/msg00190.html);

b.      proposed requirements to provide an operational plan (
href="http://forum.icann.org/lists/gtld-council/msg00191.html">http://forum.icann.org/lists/gtld-council/msg00191.html)

c.      treatment of application fees (
href="http://forum.icann.org/lists/gtld-council/msg00194.html">http://forum.icann.org/lists/gtld-council/msg00194.html)

d.      allocation methods (
href="http://forum.icann.org/lists/gtld-council/msg00202.html">http://forum.icann.org/lists/gtld-council/msg00202.html); and

e.      string checking
(http://forum.icann.org/lists/gtld-council/msg00203.html)

17.
Considering all
the materials derived from the face-to-face meetings, discussions on email
lists, expert materials and expert papers, on 14 September 2006 a set of draft
style='mso-bidi-font-style:normal'>Recommendations was released by the
Committee for broader consideration (found at
href="http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm">http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm).

style='mso-special-character:line-break'>

18.
Between 14
September and 5 October 2006 email discussion took place that improved and
clarified the language of the Recommendations
and ensured that Constituencies had sufficient time to rework their
recommendations where necessary.

19.
On 5 October
2006, the Committee conducted a two hour teleconference to discuss the draft
style='mso-bidi-font-style:normal'>Recommendations (the MP3 recording can
be found at
href="http://forum.icann.org/lists/gtld-council/msg00224.html)/">http://forum.icann.org/lists/gtld-council/msg00224.html)/. The purpose
of the meeting was to confirm that the Recommendations
reflected the intentions of the Committee and to conduct further work on
refining elements of the Recommendations,
particularly with respect to the selection criteria and allocation methods
to resolve contention between string applications.

20.
On 11 October
2006, the GNSO Committee Chairman and GNSO Chair, Dr Bruce Tonkin, sent formal
correspondence to the Chair of the Governmental Advisory Committee and the
Chair of GAC Working Group I, requesting the GAC's assistance with the public
policy impacts of the introduction of new TLDs (found at
href="http://gnso.icann.org/mailing-lists/archives/council/msg02891.html">http://gnso.icann.org/mailing-lists/archives/council/msg02891.html).

21.
Based on the
substantive nature of the Committee's email traffic on the draft
style='mso-bidi-font-style:normal'>Recommendations, a further update was
released to the Committee on 18 October 2006 (found at
href="http://forum.icann.org/lists/gtld-council/msg00234.html">http://forum.icann.org/lists/gtld-council/msg00234.html) for consideration whilst the drafting of the
style='mso-bidi-font-style:normal'>Final Report takes place.

style='mso-special-character:line-break;page-break-before:always'>

name="_Toc25129599">ANNEX TWO - PARTICIPATION TABLE

UPDATE TO BE INSERTED

Legend:

a = absent

aa = absent apologies

na = not available - one constituency member funded or
other conflict

rp = remote participation