ICANN 47 Briefing — GAC Advice on Closed Generics Leaves Brands on the Bubble
Posted by Jennifer Wolfe on 09th August 2013 in 360 Blog

The ICANN 47 meeting was held July 13 – 19th in Durban, South Africa. The most discussed and watched debate continued to be how the Government Advisory Committee (GAC) will address the generic strings identified in its ICANN 46 Beijing Communique. While it did resolve a few open issues, most of the 200+ gTLD applications flagged as category one or two concerns remain on the bubble with an Early Warning attached to their application. What’s most problematic about this is that there is not a clearly substantiated rationale for how the GAC selected the flagged strings. A few of the big brand strings flagged for either further safeguards or questioned as a closed generics include Traveler’s Insurance, Discover Financial Services, The Food Network, The Weather Channel, Goodyear Tire, Wal Mart, Google, Amazon, Dish Network, Safeway, All State, and Johnson and Johnson, and others. Most of these own the string in question in .com and sought to extend their brand into the new gTLD space.

This topic was debated by the Non Commercial Users Constituency during the week. The session was recorded with a transcript available and the participants robustly debated the issues in a genuine effort to understand all sides and seek out solutions. While there is certainly concern about giving one brand control over a top level domain in what could be considered a broad generic term, there are many other arguments that suggest the GAC should not arbitrarily decide which ones are of concern to the public interest. This should cause concern for brand owners everywhere. After all, terms which are generic in one context often become the most powerful brands when used in an arbitrary way.

Consider for just a moment the following popular brands and slogans: Live, Delta, Apple, A Family Company, Blockbuster, Home Depot, Frontier, Guardian, Jaguar, Juniper, Northwestern, Observer, Virgin and Yellow Pages, to name just a few. These are all generic in one context, but a powerful brand and trademark in another. So if these companies seek out their brand as a gTLD to provide more robust services to its customers through the gTLD digital platform, are they guilty of attempting to restrict a generic term in an anti-competitive strategy or simply acquiring an important digital asset for their brand? It’s certainly a slippery slope for some brands to be singled out and not others by the GAC in this process. No easy answers seem in sight and the implications for the future of the value of a trademark within the gTLD landscape is in question.

A few other notable developments during the ICANN meeting included the GNSO Council’s formal approval of the formation of a working group to debate, discuss and define the difference between policy and implementation. This will provide important guidance for what requires the formal policy development making process versus what ICANN staff can do in implementing processes. As the line has recently become blurred, most notably the strawman model of the Trademark Clearinghouse, this will be important work to monitor as a defining moment in the future of the multi-stakeholder model. Additionally, the GNSO Council review process is likely to be put on hold while macro level issues about the scope of review is considered by ICANN staff. This is currently out for public comment. The delay could signal a potential for a macro level reconsideration of the structure of the GNSO. As the big brands prepare to become a more integrated part of the ICANN ecosystem by migrating from domain name registrants and IP owners to registry operators, there may be more complex issues ahead.

ICANN also launched its digital strategy and leadership outreach programs to engage in social media, crowd sourcing and other cutting edge digital strategies to engage internet users in the ICANN process. While there is some concern over its impact on current processes, the plan to engage more people through digital platforms promises to bring more attention to the ICANN environment.

Finally, throughout the sessions on gTLDs, it became clear ICANN aims to remain on track with the anticipated launch this Fall of the Internationalize Domain Names. It will likely be 2014 before most of the generics begin to launch and well into 2014 for brands to be ready to operationalize their gTLDs. As ICANN moves full steam ahead into the next generation of the internet with the launch of roughly 1400 new top level domains over the next two years, ICANN meetings will likely draw more attention from companies around the world. ICANN 48 will take place in Buenos Aries, Argentina November 16 – 22, 2013.