New gTLD Advisory
Advisory number: R1-A01-0052
Publication date: 19 March 2014
About this Advisory:
The Governmental Advisory Committee (GAC) issued Advice to the New gTLD Program Committee of the ICANN Board (NGPC) in its Beijing Communiqué [PDF, 156 KB], Durban Communiqué [PDF, 238 KB], and Buenos Aires Communiqué [PDF, 97 KB]. The NGPC has made substantial progress in addressing the issues raised by the GAC.
The GAC Advice included Advice on specific strings or applications and Advice on broad categories of strings (referred to as "Category 1" and "Category 2" strings). As the GAC Category 1 and Category 2 Advice have affected a large number of applications, we have been receiving questions about how individual applications are affected by the Advice and the respective implementation plans. The intent of this advisory is to provide applicants with information regarding how specific applications may be affected by the NGPC's consideration of GAC Category 2 Advice regarding exclusive access for generic strings.
GAC Category 2 Advice
In the Beijing Communiqué, Category 2 Safeguard Advice (section 2), the GAC advised that, "For strings representing generic terms, exclusive registry access should serve a public interest goal." The Beijing Communiqué also included a list of strings that the GAC considered to be generic, where the applicant was proposing to provide exclusive registry access.
ICANN solicited responses from 186 applicants for the strings identified by the GAC regarding whether they planned to operate the applied-for TLDs as exclusive access registries (defined as a registry restricted to a single person or entity and/or that person's or entity's Affiliates" (as defined in Section 2.9c of the Registry Agreement)).
Of the 186 responses (view the responses):
- 139 indicated that the applied-for TLDs will not be operated as exclusive access TLDs.
- 12 indicated that the applied-for TLDs will be operated as exclusive access registries.
- 35 indicated that their applications currently state that the applied-for TLDs will be operated as exclusive access registries, but the applicants will not operate them as exclusive access registries.
On 9 October 2013, ICANN announced that the applications that would not be operated as exclusive access TLDs (and have applications that are consistent with this) would be eligible to proceed in the New gTLD Program. This action was taken per the NGPC's 28 September 2013 Resolution directing staff "to move forward with the contracting process for applicants for strings identified in the Category 2 Safeguard Advice that are prepared to enter into the Registry Agreement as approved." These applications have been cleared to proceed to the next phases of the New gTLD Program.
For the 12 applicants that stated their intent to operate exclusive access registries, applicants were asked to provide a response for how the proposed exclusive registry access serves a public interest goal. The responses received will be provided to the NGPC and the GAC for further consideration.
For the remaining 35 applications, in October 2013, ICANN asked the applicants to submit change requests to align their applications with their intended registration policies. These applicants have until 21 March 2014 to submit a change request. If such a change request is not submitted, the applicants must provide explanations for how the proposed exclusive access TLDs will serve the public interest by 21 March 2014.
GAC Category 2 Advice and the Registry Agreement
There appears to be some confusion about the provisions of the Registry Agreement relating to generic strings and exclusivity. Many members of the ICANN community use terminology referring to "open" and "closed" strings, but these terms are not used in the Registry Agreement.
What is a Generic String?
A "Generic String" means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others (as defined in Specification 11, 3(d) of the Registry Agreement).
When a word or term is used as the common dictionary name for the goods or services it describes, the word is generic. If the word "sushi" is used to identify the Japanese food sushi (i.e., vinegared rice with raw fish), the term is used generically. However, if a business uses the term SUSHI as a brand to identify goods or services unrelated to the food sushi, that would not be a generic use of the term. So a SUSHI brand line of clothing, or a SUSHI brand automobile, or a SUSHI brand photocopying service, would not be a generic use of the term sushi.
If an applicant applies for the TLD string "sushi" and it is in the business of operating restaurants that serve sushi, that would be a Generic String that describes the general class of goods or things comprising sushi. However, if an applicant applies for the TLD string "sushi," and the applicant's business is marketing and selling SUSHI brand clothing or a SUSHI brand automobile or a SUSHI brand photocopying service, that would not be a Generic String. In those cases, SUSHI would not be used to denominate the class of food known as sushi, but would instead be used to distinguish SUSHI brand clothing or SUSHI brand automobiles or SUSHI brand photocopying services from other brands of clothing or automobiles or photocopying services.
What are the implications if a string is determined to be a Generic String?
Under Section 3(d) of Specification 11, a Registry Operator of a "Generic String" TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person's or entity's "Affiliates" (as defined in Section 2.9(c) of the Registry Agreement). As an example, if Acme Sushi, Inc. is in the business of operating sushi restaurants, it could not limit registrations only to Acme Sushi, Inc. and its Affiliates. Provided Acme Sushi, Inc. does not limit registrations exclusively to Acme Sushi, Inc. and its Affiliates, it could impose registration policies and criteria that limit registrations in other ways.
Generic Strings and the Code of Conduct Exemption
Please note that one of the criteria for qualification for a Code of Conduct exemption is that all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for the exclusive use of Registry Operator or its Affiliates. Accordingly, if a TLD were a Generic String, it would be ineligible for a Code of Conduct exemption. By definition, a Code of Conduct exemption requires that domain name registrations be limited to the Registry Operator and its Affiliates, and that is not consistent with the requirement that registrations for Generic Strings cannot be limited to a single person or entity and/or that person's or entity's Affiliates.