Originally Posted by Redrob
I would love to hear what you find out, Quentin.
Here's what I've found out; apologies in advance for what is bound to be a pretty lengthy post... this stuff is a little on the complicated side.
The ICM agreement with ICANN
contains a provision that calls for "TLD Differentiation," which states the following:
ICANN and Registry Operator acknowledge that one of the criteria included in the application process in which the sTLD was selected, and in the previous TLD application expansion round, was that a new TLD be "clearly differentiated from existing TLDs." ICANN, when undertaking to effect the delegation of new TLDs, shall take into consideration Internet community input received, including any objections interested third parties may have under policy considerations or applicable law or otherwise, regarding the creation of new TLD strings.
Within ICANN's recently published gTLD Applicant Guidebook
, Module 3 covers objection procedures for proposed new TLD strings, including objections that might be raised by the Governmental Advisory Committee (GAC) as well as public/third party objections.
Let's start with potential third party objectors and then come back to the GAC.
Under section 3.2 "Public Objection and Dispute Resolution Process," the Guidebook states:
A formal objection can be filed only on four enumerated grounds, as described in this module. A formal objection initiates a dispute resolution proceeding. In filing an application for a gTLD, the applicant agrees to accept the applicability of this gTLD dispute resolution process.
The four grounds for objection are as follows:
String Confusion Objection – The applied-for gTLD string is confusingly similar to an existing TLD or to another applied for gTLD string in the same round of applications.
Legal Rights Objection – The applied-for gTLD string infringes the existing legal rights of the objector.
Limited Public Interest Objection – The applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under principles of international law.
Community Objection – There is substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or
The same section of the Guidebook goes on to define what types of entities have standing to object under those four grounds for objection. Here's how that breaks down:
Grounds for objection : Who may object
Sting confusion: Existing TLD operator of gTLD applicant in current round
Legal rights: Rightsholders
Limited public interest: No limitations on who may file -- however, subject to a "quick look" designed for early conclusion of frivolous and/or abusive objections.
Community: Established institution associated with a clearly delineated community
If you look over the four potential grounds for objection, I can see how a .PORN or .SEX could
be objected to under any or all of those categories, and looking at the list of potential objectors, you can see that the range of potential objectors is very broad, indeed.
Where potential objection on the part of the GAC is concerned, as we all now know from watching the approval process for .XXX unfold, hitherto the GAC's advice has been something that ICANN evidently can ignore as it sees fit -- but
, if you look at the stated purpose for the GAC Advice stipulations in the new Guidebook, the intent of the process seems tailor-made to challenge potentially controversial gTLDs, as a .SEX or .PORN gTLD would be:
The process for GAC Advice on New gTLDs is intended to address applications that are identified by governments to be problematic, e.g., that potentially violate national law or raise sensitivities.
So.... to sum up:
* If ICM chose to challenge a proposed gTLD that competes with .XXX, it's pretty clear that they would have standing to do so, and more than one potential basis on which to object.
* It's likely that many of the same groups that opposed .XXX would also object to any newly proposed gTLDs. (In the case of religious and family groups, these objections would most likely fall under "limited public interest.")
* Some members of the adult entertainment industry might object to a new porn-related gTLD, whether for the same or different reasons that they objected to .XXX (These would fall under "Community" objections, obviously.)
* No matter who wins out when the objection process has run its course, one thing is very clear after reading the dispute resolution procedures in the Guidebook: the process will NOT be quick.
I've also learned that one of the biggest hurdles that a new adult-specific gTLD might run into is found not in ICANN's gTLD Guidebook, but in a "notice of further inquiry" that the Commerce Dept/NTIA issued in connection with the renewal of the IANA (Internet Assigned Numbers Authority) contract, which is coming up in September.
Under section C.188.8.131.52.2 of the new IANA contract
Responsibility and Respect for Stakeholders - - The Contractor shall, in collaboration with all relevant stakeholders for this function, develop a process for documenting the source of the policies and procedures and how it has applied the relevant policies and procedures, such as RFC 1591, to process requests associated with TLDs. In addition, the Contractor shall act in accordance with the relevant national laws of the jurisdiction which the TLD registry serves. For delegation requests for new generic TLDS (gTLDs), the Contractor shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.
The part I've put in bold there is a humdinger of a requirement, obviously, and one that had it been in place as a hurdler for .XXX to clear, might have derailed the whole shebang.
Evidently, that section C.184.108.40.206.2 in the new IANA contract is being referred to by some as the ".XXX clause" -- a new wrinkle added as a direct result of how unhappy the GAC was to have their "advice" concerning .XXX ignored by the ICANN Board.
So, there you have it; probably WAY more than you ever wanted to know about how a potential challenge to a new porn-related gTLD would work..... and yet it still
doesn't really answer the question "Can ICM block such an application?" The answer to that question remains "maybe," and subject to the specific facts of any given application/objection.
My personal take on it is this: the potential hassle outlined above is way too big a pain the ass to go through to establish .SEX or a .PORN, but any adult company that wants to establish "vanity gTLDs" for their own brand/product names likely wouldn't be subjected to such a challenge (not from ICM, at least).
All things considered, I'd say ICM is very fortunate that they didn't have to clear the bar as it is set now for new TLDs, because I doubt .XXX could have survived a challenge under the rules and objection criteria in place for the new gTLDs.
None of this is to say that nobody should (or will) try to establish a new porn-related gTLD, or that they will fail if they try. I'm just saying the process is now a whole lot more complicated and difficult than the one ICM applied under in their second go at winning the contract to run .XXX, back in 2004.
Here's hoping this information is useful to some of you, or at least mildly interesting, and not just a whole lot of words I've slapped on GFY for no real purpose... ;-)