DRAFT Work Track 5 Report to the Full Working Group 

Version 2 – Updated 1 4 October 2019

 

Introduction

 

This report serves as the final product of work completed by Work Track 5, a sub team of the New gTLD Subsequent Procedures Policy Development Process Working Group. Work Track 5 focuses exclusively on the subject of geographic names at the top level. [1] The Work Track has completed deliberations and is submitting the recommendations contained in this report to the full Working Group in accordance with the Work Track’s Terms of Reference. [2]

 

Work Track 5 began its deliberations in November 2017 and published a Supplemental Initial Report [3] for public comment [4] on 5 December 2018. The Work Track produced the Work Track 5 Report following its review and consideration of public comments on the Supplemental Initial Report. [5] The full Working Group will consider this report and hold a consensus call before publishing recommendations in the Working Group’s Final Report.

 

A key premise of Work Track 5’s deliberations was that unless there was agreement in the Work Track to recommend a change from the 2012 implementation, the Work Track would recommend maintaining the rules included in the 2012 Applicant Guidebook and bringing policy up-to-date to reflect this implementation. Therefore, the first two sections of this report, sections (A) and (B), summarize the existing GNSO policy and 2012 implementation. Section (C) contains Work Track 5’s recommendations to the full Working Group. Section (D) provides Work Track’s rationale for these recommendations. Section (E) summarizes key points of deliberation that were new in the Work Track since publication of the Supplemental Initial Report.

 

(A) What is the relevant existing policy and/or implementation guidance (if any) from the 2007 Final Report - Introduction of New Generic Top-Level Domains, [6] ?

 

Recommendation 5: Strings must not be a reserved word.

Recommendation 20: An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted.

 

In the Final Report - Introduction of New Generic Top-Level Domains, [7] the discussion of Recommendation 5 references language in the Reserved Names Working Group Final Report. [8] The relevant text of Reserved Names Working Group Final Report states:

 

There should be no geographical reserved names (i.e., no exclusionary list, no presumptive right of registration, no separate administrative procedure, etc.). The proposed challenge mechanisms currently being proposed in the draft new gTLD process would allow national or local governments to initiate a challenge, therefore no additional protection mechanisms are needed. Potential applicants for a new TLD need to represent that the use of the proposed string is not in violation of the national laws in which the applicant is incorporated.

 

However, new TLD applicants interested in applying for a TLD that incorporates a country, territory, or place name should be advised of the GAC Principles, and the advisory role vested to it under the ICANN Bylaws. Additionally, a summary overview of the obstacles encountered by previous applicants involving similar TLDs should be provided to allow an applicant to make an informed decision. Potential applicants should also be advised that the failure of the GAC, or an individual GAC member, to file a challenge during the TLD application process, does not constitute a waiver of the authority vested to the GAC under the ICANN Bylaws.

 

The Reserved Names Working Group Final Report further states:

 

We recommend that the current practice of allowing two letter names at the top level, only for ccTLDs, remains at this time. Examples include .AU, .DE, .UK.

 

(B) How was it implemented in the 2012 round of the New gTLD Program?

 

The first two versions of the Applicant Guidebook (AGB) required that strings must consist of three (3) or more visually distinct characters and that a meaningful representation of a country or territory name on the ISO 3166-1 standard must be accompanied by a letter of support or non-objection from the relevant government or public authority.

 

The ICANN Board, at the urging of the Country Code Supporting Organization (ccNSO) and Governmental Advisory Committee (GAC), directed staff to exclude country and territory names from delegation in version four of the Applicant Guidebook. Other geographic names, listed in section 2.2.1.4.2 of the Applicant Guidebook (see below), required a letter of support or non-objection, though for non-capital city names, the need for the letter was dependent upon intended usage of the string.

 

This implementation, described more fully directly below, was substantially different from the GNSO’s policy recommendations. [9]

 

In the final version of the 2012 Applicant Guidebook, Section 2.2.1.3.2 String Requirements, Part III, 3.1 states, Applied-for gTLD strings in ASCII must be composed of three or more visually distinct characters. Two-character ASCII strings are not permitted, to avoid conflicting with current and future country codes based on the ISO 3166-1 standard.”

 

According to Section 2.2.1.4.1 Treatment of Country or Territory Names, [10] the following strings are considered country and territory names and were not available in the 2012 application round:

 

i. “an alpha-3 code listed in the ISO 3166-1 standard.

ii. “a long-form name listed in the ISO 3166-1 standard, or a translation of the long-form name in any language.

iii. “a short-form name listed in the ISO 3166-1 standard, or a translation of the short-form name in any language.

iv. “a short- or long-form name association with a code that has been designated as “exceptionally reserved” by the ISO 3166 Maintenance Agency.

v. “a separable component of a country name designated on the “Separable Country Names List,” or is a translation of a name appearing on the list, in any language.

vi. “a permutation or transposition of any of the names included in items (i) through (v). Permutations include removal of spaces, insertion of punctuation, and addition or removal of grammatical articles like “the.” A transposition is considered a change in the sequence of the long or short–form name, for example, “RepublicCzech” or “IslandsCayman.”

vii. “a name by which a country is commonly known, as demonstrated by evidence that the country is recognized by that name by an intergovernmental or treaty organization.

 

Section 2.2.1.4.2 Geographic Names Requiring Government Support states [11] that applications for the following strings must be accompanied by documentation of support or non-objection from the relevant governments or public authorities:

 

  1. An application for any string that is a representation, in any language, of the capital city name of any country or territory listed in the ISO 3166-1 standard.
  2. An application for a city name, where the applicant declares that it intends to use the gTLD for purposes associated with the city name.

                                   

         City names present challenges because city names may also be generic terms or brand names, and in many cases city names are not unique. Unlike other types of geographic names, there are no established lists that can be used as objective references in the evaluation process. Thus, city names are not universally protected. However, the process does provide a means for cities and applicants to work together where desired.

                                                                                        

         An application for a city name will be subject to the geographic names requirements (i.e., will require documentation of support or non-objection from the relevant governments or public authorities) if:

                                                                                        

         (a) It is clear from applicant statements within the application that the applicant will use the TLD primarily for purposes associated with the city name; and

                                                       

(b) The applied-for string is a city name as listed on official city documents. [12]     

 

  1. An application for any string that is an exact match of a sub-national place name, such as a county, province, or state, listed in the ISO 3166-2 standard.
  2. An application for a string listed as a UNESCO region [13] or appearing on the “Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings” list. [14] In the case of an application for a string appearing on either of the lists above, documentation of support will be required from at least 60% of the respective national governments in the region, and there may be no more than one written statement of objection to the application from relevant governments in the region and/or public authorities associated with the continent or the region. Where the 60% rule is applied, and there are common regions on both lists, the regional composition contained in the “Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings” takes precedence. [EB1]

 

The GAC has produced the following documents addressing the use of geographic names at the top level:

 

       GAC Principles and Guidelines for the Delegation and Administration of Country Code Top Level Domains (2005), paragraphs 4.1.1. , 4.1.2. and 8.3.

       GAC Principles Regarding New gTLDs (2007) , sections 1.2 , 2.1 ,2.2, 2.3, 2.4 , 2.7 and 2.8.

       GAC Nairobi Communiqué (2010): Application of 2007 Principles .

       GAC Beijing Communiqué (2013): GAC Objections to Specific Applications.

       GAC Durban Communiqué (2013): Future application of 2007 Principles .

       GAC Helsinki Communiqué (2016): 3-letter codes .

 

This list is non-exhaustive. Additional resources and documents on this topic from the GAC and other sources can be found on the Work Track 5 wiki   page .

 

In the 2012 round of the New gTLD Program, there were 66 applications that self-identified as geographic names pursuant to Section 2.2.1.4.3 of the Applicant Guidebook. [15] The Geographic Names Panel determined that 6 of these 66 did not fall within the criteria for a geographic name as defined in Section 2.2.1.4 of the Applicant Guidebook (VEGAS, ZULU, RYUKYU, SCOT, IST, FRL). The Geographic Names Panel identified 3 applications that did not self-identify as geographic names but the applied-for string fell within the criteria for geographic names, requiring relevant support or non-objections (TATA, BAR, TUI). Of the 63 that fell within the Applicant Guidebook criteria for a geographic name, 56 had acceptable supporting documentation of support or non-objection from the relevant applicable governmental authority, and of those, 54 have been delegated.

 

In addition, there were 18 strings which were the subject of one or more GAC Early Warnings that mentioned concerns related to the geographic nature of the string ( ( ROMA, AFRICA, SWISS, PERSIANGULF, PATAGONIA, CAPITAL, CITY, TOWN, VIN, YUN, 广州 [GUANGZHOU], SHANGRILA, 香格里拉 [SHANGRILA], 深圳 [SHENZHEN], ZULU, AMAZON, DELTA, INDIANS). [16]   Of these , ROMA , AFRICA, 广州 [GUANGZHOU], and   深圳 [SHENZHEN] were considered by the Geographic Names Panel to fall within the criteria for a geographic name contained in the Applicant Guidebook Section 2.2.1.4.   A dditional information abo ut the outcomes for these applications and related documentation can be found on ICANN’s New gTLD Current Application Status Page. [17] [EB2]

 

Most of these strings were not contained on any of the lists in Section 2.2.1.4 of the Applicant Guidebook. Although some members of the GAC considered these strings to match geographic or geopolitical terms, these strings also corresponded to either generic terms or actual brand or company names. In almost all cases, the intended purposes for use of these applications as contained in the applicable Applicant’s response related to generic or brand use. There were varying outcomes; Some of these TLDs were permitted to move forward, some were only permitted where an arrangement could be reached with the geographic territory in question, and others were either not allowed to proceed or continue to be the subject of dispute. For those cases where an arrangement with the geographic territory was reached, no further information is publicly available on the details of such arrangement.

(C) What recommendations and/or implementation guidelines does Work Track 5 submit to the full Working Group for consideration?

 

  1. Consistent with Section 2.2.1.3.2 String Requirements, Part III, 3.1 of the 2012 Applicant Guidebook, continue to reserve all two-character [18] letter-letter ASCII combinations at the top level for existing and future country codes. [19]

 

This recommendation is consistent with the GNSO policy contained in the Introduction of New Generic Top-Level Domains policy recommendations from 8 August 2007.

 

  1. Maintain provisions included in the 2012 Application Guidebook section 2.2.1.4.1 Treatment of Country and Territory Names, [20] with the following clarification regarding section 2.2.1.4.1.vi:

 

Permutations and transpositions of the following strings are reserved and unavailable for delegation:

 

        long-form name listed in the ISO 3166-1 standard.

        short-form name listed in the ISO 3166-1 standard.

        short- or long-form name association with a code that has been designated as “exceptionally reserved” by the ISO 3166 Maintenance Agency.

        separable component of a country name designated on the “Separable Country Names List.”

 

Strings resulting from permutations and transpositions of alpha-3 codes listed in the ISO 3166-1 standard, which are themselves not on the ISO 3166-1 list, are available for delegation. [EB3]

 

The 2012 Applicant Guidebook provisions contained in section 2.2.1.4.1 are inconsistent with the GNSO policy recommendations contained in the Introduction of New Generic Top Level Domains from 8 August 2007. This recommendation would make the policy consistent with the 2012 Applicant Guidebook, and therefore represents a change to the existing policy recommendation.

 

  1. Maintain provisions included in the 2012 Application Guidebook section 2.2.1.4.2 Geographic Names Requiring Government Support, [21] with the following update regarding section 2.2.1.4.2.4:

 

The “Composition of macro geographical (continental) regions, geographical subregions, and selected economic and other groupings” list is more appropriately called the “Standard country or area codes for statistical use (M49).” The current link for this resource is https://unstats.un.org/unsd/methodology/m49 . [22]

 

The 2012 Applicant Guidebook provisions contained in section 2.2.1.4.2 are inconsistent with the GNSO policy recommendations contained in the Introduction of New Generic Top Level Domains from 8 August 2007. This recommendation would make the policy consistent with the 2012 Applicant Guidebook, and therefore represents a change to the existing policy recommendation.

 

 

(D) What is the rationale for recommendations and/or implementation guidelines?

 

The New gTLD Subsequent Procedures Working Group is tasked to determine what, if any changes may need to be made to the existing policy recommendations from 8 August 2007. Work Track 5 focused specifically on making recommendations in this regard with respect to geographic names at the top level. On the topic of geographic names, there were significant differences between the 2007 policy and the 2012 implementation, and therefore a key objective of this group’s work was to ensure that policy and implementation are aligned for subsequent procedures. In submitting recommendations that bring the policy up-to-date with the program implementation, the Work Track is achieving this important goal.

 

Work Track 5 acknowledges that some view the 2012 Applicant Guidebook itself a compromise solution, which raises challenges in reaching agreement on changes to the 2012 implementation. The different perspectives on this issue are documented in the Supplemental Initial Report and will not be repeated in this report. The Work Track considered different rationales for moving away from the 2012 implementation, and many proposals for changes to the 2012 rules, some of which increased restrictions/protections   [EB4] compared to the 2012 AGB [EB5] and others that decreased restrictions/protections compared to the 2012 AGB. While some members sought to include more categories of terms in the Applicant Guidebook, other members indicated that their acceptance of the 2012 “status quo” in the 2012 Applicant Guidebook would be contingent on no additional categories of terms receiving protection. Ultimately, the group did not achieve a unified position on the proposals considered or the rationales supporting those proposals.

 

After extensive discussion, the Work Track was unable to agree to recommendations that depart from the 2012 implementation, which it has considered the baseline throughout deliberations. Therefore, it recommends updating the GNSO policy to be consistent with the 2012 Applicant Guidebook and largely maintaining the Applicant Guidebook provisions for subsequent procedures. This brings GNSO policy in line with implementation, which the Work Track considers a significant achievement given the diversity of perspectives on this issue and the challenges in finding compromise that is acceptable to all parties After extensive discussion the Work Track defaults to , recommending that the arrived at the conclusion that 2012 implementation is an outcome that is more acceptable to the group as a whole than the alternatives considered . [EB6]

Work Track 5 brought together those with a strong interest in geographic names at the top level, including members of the GAC, ccNSO, ALAC, and GNSO, in an inclusive process that provided all participants with an opportunity to contribute. [EB7] Work Track 5 also sought to ensure that the community’s work related to geographic names, specific to gTLDs, took place in a single forum, to avoid conflicting or contradictory efforts and outcomes that have taken place in the past. The Work Track successfully met these goals, and in addition to producing the recommendations included in this report, documented the different positions, concer ns, and ideas that community members hold on these issues. Public comment on the Supplemental Initial Report serves as an additional resource reflecting perspectives on the broader ICANN community. These materials may serve as a valuable tool for any future discussions that may take place regarding the treatment of geographic names at the top level in subsequent procedures.

 

 

(E) New issues raised in deliberations since publication of the Initial Report.

 

Review of Public Comments

 

Following publication of the Supplemental Initial Report, deliberations within Work Track 5 focused on consideration of the 42 public comments received and discussion of additional issues and proposals raised through that review process. The review of public comments took place in two phases. First, the Work Track read through the comments to categorize the feedback received and ensure that it was understood by the Work Track. [23] Second, the Work Track completed a substantive review of comments, considering what changes, if any, needed to be made to the preliminary recommendations included in the Supplemental Initial Report. [24]

 

In reviewing public comments, the Work Track observed that perspectives expressed by commenters largely reflected the positions held within the Work Track itself. With respect to the preliminary recommendations, comments generally fell into three categories:

  1. Those that were generally supportive of the continuation of the 2012 implementation and therefore the preliminary recommendations. In some cases, respondents supported recommending new rules, requirements, and provisions in addition to those which were included in the 2012 implementation.
  2. Those that were generally supportive of the continuation of the 2012 implementation, with the exception of the intended use provision assigned to non-capital city names. These respondents wanted the support/non-objection requirement to be extended, so that it is always required in the case of applications for strings that match a non-capital city name.
  3. Those that had concerns about the basis for preventative protections afforded governments, but nonetheless were willing to support the continuation of the 2012 implementation, viewing it as a reflection of the compromise reached through the multistakeholder model. Those in this category did not believe that preventative protections should be extended beyond the existing categories from 2012.

 

In addition, there were some commenters that opposed preventative protections and believed that curative measures (e.g., objections, contractual requirements, etc.) are more appropriate, given their understanding of the international law as it relates to governments’ rights in relation to geographic names.

 

The preliminary recommendations included in the Supplemental Initial Report fell into two distinct categories, reflecting the two categories of terms included in the 2012 Applicant Guidebook. Recommendations 2-9 addressed terms that are considered reserved and unavailable to any party. Recommendations 10-13 addressed applications that require support/non-objection from the relevant government or public authority (with non-capital names only requiring that approval when the gTLD is intended to be used in association with the geographic meaning).

 

For preliminary recommendations 2-9, there were a number of public comments that expressed support for, or at least a willingness to accept the recommendations, generally on the basis of the three themes above. The Work Track therefore concluded that no substantial changes were needed to the preliminary recommendations in this category. Recommendations 2-9 from the Supplemental Initial Report have carried over to the recommendations in this document as a single consolidated recommendation 2.

 

For preliminary recommendations 10-13, the views submitted through public comment reflected the diversity of perspectives expressed within Work Track 5 throughout its deliberations. For instance, a number of comments suggested that for the categories of terms where a letter of support/non-objection from the relevant government or public authority is always needed, regardless of usage, the recommendation should be changed so that support/non-objection is only required if the applicant intends to use the string in the context of its geographic meaning. One of the arguments in that regard was that preventative protections are inconsistent with the level of rights provided to governments to geographic names under international law. Conversely, there were comments from those that wished to eliminate the intended use provision for non-capital city names and instead require support/non-objection in all circumstances in the case of applications for strings that match a non-capital city name. One of the arguments in that regard cited the singular nature of a TLD (i.e., there is only a single TLD for any string) and that the intended use provision creates disincentives for applicants to seek support/non-objection (e.g., simply claiming that the intended use will not be associated with the non-capital city name could bypass the requirement). Noting that the treatment of non-capital city names was a topic that drew significant interest from commenters and continued to be an area of interest for many Work Track members, the Work Track flagged this topic for additional discussion. The results of that discussion are summarized below in section 3 of this report. Ultimately, the Work Track came to the conclusion that there was no agreement to change the rules outlined in recommendations 10-13. These preliminary recommendations have carried over to the recommendations in this document as a single consolidated recommendation 3.

 

The Initial Report included 38 proposals that Work Track members put forward, either individually or in groups. These proposals were not endorsed by the Work Track as a whole, but were nonetheless documented in the Supplemental Initial Report for further consideration and comment by the community.

 

The proposals generally fell into three high-level categories:

        Proposals addressing terms already included in the 2012 Applicant Guidebook: these proposals suggested changing the scope of protections/restrictions compared to the 2012 Applicant Guidebook, adjusting the way these terms are defined, and/or altering the circumstances under which rules would apply for these terms.

        Proposals related to additional categories of terms not included in the 2012 Applicant Guidebook: these proposals suggested adding provisions to the Applicant Guidebook addressing and/or creating rules for additional types of terms not included in the 2012 Applicant Guidebook.

        Proposals focused on implementation: these proposals sought to adjust various elements of New gTLD Program implementation as they relate to geographic names at the top level.

 

The Work Track carefully reviewed feedback received on these proposals and found that there was no unified theme in the public comments regarding these proposals, and therefore no clear indication that any of the proposals should be incorporated into the recommendations. At the same time, some Work Track members used existing proposals in the Supplemental Initial Report as a starting point for drafting additional proposals for the Work Track to consider, taking into account public comments received. These new proposals are discussed in further detail below.

 

Areas of Additional Deliberation

 

Following the review of public comments, the Work Track focused discussion on four five areas where members felt that additional deliberation was needed to determine if preliminary recommendations should be revised or new recommendations should be drafted.

 

  1. Languages/Translations

 

Prior to the publication of the Supplemental Initial Report, the Work Track discussed the following rules included in the 2012 Applicant Guidebook:

 

        A string is considered unavailable if it is a translation in any language of the following categories of country and territory names: long-form name listed in the ISO 3166-1 standard; short-form name listed in the ISO 3166-1 standard; separable component of a country name designated on the “Separable Country Names List.”

        Applicants are required to obtain letters of support or non-objection from the relevant governments or public authorities for an application for any string that is a representation, in any language , of the capital city name of any country or territory listed in the ISO 3166-1 standard.

 

The Supplemental Initial Report summarized the pros and cons that the Work Track identified in relation to the “in any language” standard, as well as a number of alternatives to this standard that were proposed by members of the Work Track. See section f.2.2.1.2 on pages 46-48 and section f.2.3.1 on pages 56-58 of the Supplemental Initial Report for additional information. The Work Track asked the community for input on this issue in the Supplemental Initial Report and received a mix of feedback from respondents, some of whom supported narrowing the standard to a set of defined languages and others who supported maintaining the rules implemented in 2012. Following review of the public comments, some Work Track members continued to hold the position that “the any language” standard was too broad and impractical to implement, as well as for applicants to duly take into consideration, and submitted additional proposals for Work Track discussion, while others held that in the absence of evidence that there was a problem in the 2012 round, the existing standard should remain in place.

 

A new proposal was put forward that sought to combine some of the elements of previous alternatives discussed. The proposal suggested changing the “in any language” standard to “UN and official languages.” For those countries that do not have official languages, “de-facto” official languages would be used in place of official languages. It was noted that a list of such languages would need to be identified. It was also suggested as part of this proposal that curative mechanisms could be leveraged as an additional source of protection for translations of country and territory names and capital city names.

 

While some members felt that this proposal appropriately limited the applicable provisions to a finite list of languages that were relevant internationally and at the national level, others disagreed. Some members felt that the proposal was too limited and did not sufficiently serve the interests of smaller language communities, noting that language is a sensitive issue and an important way in which groups of people identify themselves.

 

There were two possible additions on the proposal that were put forward by Work Track members. The first proposed addition suggested including “relevant national, regional and community languages” along with “UN, official languages, and de-facto official languages.” The Work Track considered that one possible way of defining relevant national, regional and community languages is by identifying languages spoken by a certain percentage of people in the country, territory, or capital city, although a specific percentage was not proposed in the discussion. Some members felt that governments should be able to decide for their country which languages would be included under this provision. Other members felt this was impractical, and raised the concern that if some governments failed to provide input, the list would be incomplete.

 

Those supporting the addition of “relevant national, regional and community languages” indicated that it appropriately addresses translations of names in languages spoken by minority communities. From this perspective, there are countries where many languages are spoken that are not official or de-facto official languages, and this addition would take into consideration translations in those languages. From another perspective, this addition is too broad and not well defined, and therefore would create uncertainty for applicants and other parties.

 

A second proposed addition to the proposal suggested requiring a letter of support or non-objection, in the case of capital city names, where there is transposition of accented and diacritic characters in Latin-based scripts to their equivalent ASCII root. As an example, sao-tome would be protected as a DNS-Label of São Tomé alongside the IDN version of the name (xn--so-tom-3ta7c). One Work Track member suggested a further adjustment, proposing reservation of versions of country and territory names where there is transposition of accented and diacritic characters in Latin-based scripts. For example, Österreich and Osterreich would both be covered.

 

Those in favor of the transposition proposal indicated that it would add protection for an important set of strings that are associated with capital city names and country and territory names. Other members asked if the issue of accented and diacritic characters was actually a matter of translation, questioned why policy should be limited to addressing accented and diacritic characters only to the categories of names identified in the proposal (as opposed to a broader set of strings), and questioned if it might be better to address the underlying concerns through curative measures. One member suggested that if the group wanted to set rules for the treatment of specific types of characters, it may be appropriate to draw on the Trademark Clearinghouse’s rules for how certain characters are treated for the purposes of an “exact match” [25] rather than establishing a new set of rules.              

The Work Track was ultimately unable to come to agreement on any of the proposals submitted, and therefore the recommendations in this report suggest maintaining the “in any language” standard from the 2012 Applicant Guidebook.

 

  1. Categories of Terms Not Included in the 2012 Applicant Guidebook

 

In the review of public comments, the Work Track revisited the issue of whether additional categories of terms not included in the 2012 Applicant Guidebook should be subject to special rules or procedures going forward. The different perspectives on this issue are documented in section f.2.4 of the Supplemental Initial Report on pages 72-78. The Supplemental Initial Report included a question on this topic for community input on page 23 (see question e11). The Work Track noted that there was no unified theme in the public comments that pointed to a clear path forward on this topic, although many of the comments echoed themes that had previously been raised during deliberations within the Work Track. The Work Track reviewed some of these positions and ideas as it worked to reach closure on the topic.

 

The Work Track co-leaders encouraged the Work Track to consider what specific, and ideally finite, list of additional geographic terms should be protected, including the basis for protections and the proposed protection mechanisms. This suggestion was based on the fact that previous discussions were broad and ambiguous, which could lead to confusion and uncertainty for applicants and the parties seeking to protect geographic terms. On this basis, a new proposal was put forward that would require applicants for certain strings to contact the relevant public authorities to put them on notice that the application was being submitted. [26] Affected strings would include (a) Exact matches of adjectival forms of country names (as set out in the ISO 3166-1 list), in the official language(s) of the country in question and (b) Other terms with geographic meaning, as notified by GAC Members states or other UN Member states to the ICANN Organization. The country would need to provide the source in national law for considering the relevant term as especially protected. ICANN would publish the list of terms covered in part (b) of the proposal.

 

Those supporting the proposal raised the following points:

        Geographic names have implications for governments and for people’s identities.  Those interests should be taken into account early in the process.

        The proposal would help communities be “on notice” about an application where they would otherwise not be aware. It could reduce future conflicts by increasing visibility, bringing parties to the table earlier, and therefore improving predictability for all parties.

        The list of terms would be relatively modest and limited to those terms covered by national law.

        There would be no chilling effect on applications because there would be no obligations for applicants beyond contacting applicable governments.

        Without new measures to address the different interests in these strings, the same conflicts that arose in 2012 will come up again.

 

Those opposing the proposal raised the following points:

        This proposal would negatively impact transparency and predictability of the application process.

        The phrase “term with geographic meaning” is overly broad and open ended.

        The existence of a list of “terms with geographic meaning” would have a chilling effect on applications for strings on the list.

        It is unclear what governments would do after being contacted, which could further chill applications.

        This proposal does not take into account the intended use of the string. It ignores the context of the proposed TLD and whether it will or will not create an association with a place.

 

A second proposal was put forward for an “Early Reveal Process.” [27] Under this proposal, ICANN would reveal to relevant governments if an applicant had applied for an exact match of an adjectival form of a country name (as set out in the ISO 3166-1 list) in the official language(s) of the country in question.

 

Those who put forward the proposal stated that while they did not favor adding rules for additional types of terms, they could accept this limited proposal as a compromise, contingent on the fact that other members would end the discussion on rules for additional categories of terms and would agree to no longer pursue additional rules.

 

There were different perspectives expressed on the proposal:

        Some members felt that the proposal was an acceptable starting point, but believed that additional rules should be in place.

        Some members wanted the Work Track 5 recommendations to the full Working Group to include rules for additional categories of terms in some form and viewed this proposal as a possible “least common denominator” that could be acceptable to the group.

        Some members expressed that they generally did not believe rules for additional categories of terms should be included in the recommendations, but they could accept this proposal if no additional rules were pursued.

        Some members opposed the proposal stating that they could not accept new rules for any additional categories of terms, noting in particular that there was no clear justification for recommending this specific set of provisions for this specific category of terms. Some of the members who opposed the proposal additionally noted that while the proposal impacts a relatively modest number of strings, it could become a new baseline for additional provisions and therefore become a “slippery slope” towards expanding rules related to geographic names.

 

Ultimately, after reviewing the deliberations on this topic and examining all inputs to the discussion, the Work Track co-leaders determined that there was not sufficient support from the Work Track to include this proposal in the consensus recommendations to the full Working Group.

 

A third proposal discussed by the group would require a letter of support/non-objection from the relevant regional or autonomic authority for an autonomous area/region of a country. It was noted that while there is not a single authoritative list of such regions, it could be possible to create a list from existing resources available. [28] Work Track members noted that this is a very complex topic as some regions are disputed. By including rules for these terms in the Applicant Guidebook, ICANN would be taking sides among potentially conflicting parties. The Work Track decided not to move forward with this proposal, but noted that it highlights some of the challenges of expanding the set of terms included in the Applicant Guidebook that are defined as geographic.

 

  1. Non-Capital City Names

 

In the review of public comments, the Work Track revisited the issue of whether there should be changes to rules contained in the 2012 Applicant Guidebook for city names that are not capital city names. As shorthand, the Work Track refers to these terms as “non-capital city” names. The different perspectives on this issue are documented in section f.2.3.2 of the Supplemental Initial Report on pages 59-69. The Supplemental Initial Report included a question on this topic for community input on page 22-23 (question e9). The Work Track noted that there was no unified theme in the public comments that pointed to a clear path forward on this topic, although many of the comments echoed themes that had previously been raised during deliberations within the Work Track. The Work Track reviewed some of these positions and ideas as it worked to reach closure on the topic.

 

The Work Track considered two new proposals put forward by Work Track members. One proposal sought to amend Applicant Guidebook section 2.2.1.4.2, part 2(a) by specifying: “For the avoidance of doubt, if an applicant declares in their application that they will 1. operate the TLD exclusively as a dotBrand; and 2. not use the TLD primarily for purposes associated with a city sharing the same name, then this is not a use of the TLD for “purposes associated with the city name.” [29] The Work Track member who put forward the proposal indicated that the purpose was not to make a substantive change to the rules contained in the 2012 Applicant Guidebook, but to provide greater clarity and certainty for potential applicants by elaborating a specific circumstance where support/non-objection requirements would not be applicable.

 

Those who opposed the proposal questioned why it would be appropriate to specifically add provisions addressing one type of string that would not be impacted by the requirements Applicant Guidebook section 2.2.1.4.2, part 2. The author of the proposal indicated that the proposal targets instances where an applicant is applying for a .brand and does not know about a non-capital city that happens to match the name of the brand. Some Work Track members felt that brand owners should easily be able to conduct research to see if there is a city with the same name as the brand. Others disagreed, stating that it may not always be a simple task.

 

From one perspective, this proposal could carve out an exemption for .brands that is not appropriate. The author of the proposal refuted the suggestion that the proposed text would create such an exemption. Another concern raised was that this provision would not give applicants clear guidance and may cause uncertainty.

 

A second proposal also suggested a revision to the text of Applicant Guidebook section 2.2.1.4.2, part 2. [30] In the 2012 Applicant Guidebook, a letter of support or non-objection was required if it is clear from applicant statements within the application that the applicant will use the TLD primarily for purposes associated with the city name and the applied-for string is a city name as listed on official city documents. Under the proposal, a letter would also be required if if is clear from applicant statements within the application that the applicant will use the TLD primarily for purposes associated with the city name and it is a non-capital city name listed in http://unstats.un.org/unsd/demographic/products/dyb/dyb2015/Table08.xls[unstats.un.org] .]

 

The Work Track member who put forward this proposal indicated that the proposal would provide greater certainty by giving clearer guidance to applicants. By having a limited and finite list of names to review, applicants would have a better point of reference in the Applicant Guidebook. One member flagged that some countries include in their national legislation how a city is defined, and the process should defer to that definition. Some members raised concerns that the list provided in this proposal is not exclusive to city names and does not distinguish which localities are cities, urban agglomerations, municipalities or another type of locality. From this perspective, the UN Demographic Yearbook is not intended to provide a comprehensive list of all cities. Rather, it is part of a publication setting out global statistics. Therefore, there are limitations on how the information in the publication can be used. For example, the localities listed are not necessarily the actual name of the locality. Where the names are not in the Roman alphabet, they have been “romanized”.

The Work Track did not reach any agreement on whether to pursue these proposals further given the different perspectives expressed. The proposals are therefore not included in the Work Track’s consensus recommendations to the full Working Group.

 

  1. Resolution of Contention Sets Involving Geographic Names

 

In the 2012 application round, the method of last resort for resolving contention between two or more applications was an auction. The full Working Group is addressing auctions of last resort between two or more strings that are not geographic names. During deliberations, some Work Track members suggested that it might be appropriate to change rules for string contention resolution for contention sets where at least one application is for a geographic name. This is a topic that was not previously discussed in the Work Track.

 

Relevant rules in the 2012 Applicant Guidebook are included in section 2.2.1.4.2, but in brief:

        If there is more than one application for a string representing a certain geographic name, and the applications have requisite government approvals, the applications will be suspended pending resolution by the applicants.

        If a contention set is composed of multiple applications with documentation of support from the same government or public authority, the set will proceed to auction when requested by the government or public authority providing the documentation.

        If an application for a string representing a geographic name is in a contention set with applications for similar strings that have not been identified as geographical names, the set will proceed to auction.

 

One proposal was submitted on this topic. It suggested updating Module 4 of the Applicant Guidebook with the following: “In case there is contention for a string where one application designated the TLD for geographic purposes, preference should be given to the applicant who will use the TLD for geographic purposes if the applicant for the geoTLD is based in a country/or the TLD is targeted to where national law gives precedent to city and/or regional names. In case a community applicant is part of the contention set, and it did not pass the Community Priority Evaluation (CPE), the geoTLD will be granted priority in the contention set. If the community applicant passes the CPE, it will be granted priority in the contention set.” [31] The proposal also suggested updating the text of section 2.2.1.4.4 to indicate that string contention resolution between an application for a string representing a geographic name and applications for identical strings that have not been identified as geographical names should take place through the rules described in Module 4.

 

Those in favor of the proposal stated that it would update provisions to reflect national law in certain countries, such as Switzerland and Germany, that provide additional rights regarding the use of city names. From this perspective, the proposal seeks to reflect national law and does not create any new rights. Those opposing the proposal indicated that there was no clear basis for giving geographic names preference in string contention resolution. Some Work Track members raised the concern that national laws do not apply beyond a country’s borders and therefore do not provide sufficient justification for giving certain applicants priority rights in the ICANN context. From one perspective, the proposal essentially creates the equivalent of a community-based priority without the security of a community evaluation.

 

Noting that there was no agreement within the Work Track with respect to this proposal, the Work Track did not put forward any recommendations to change the rules regarding string contention resolution.

 

  1. Implementation Improvements

 

The Work Track 5 supplemental Initial Report included a series of proposals put forward by Work Track members that did not seek to change the underlying rules in the 2012 Applicant Guidebook, but instead attempted to address issues that arose in implementation. See pages 38 and 39 of the supplemental Initial Report for details of these propos als.

 

Some of these proposals were revisited in additional deliberations, although none of the proposal were ultimately included in the final recommendations. One new proposal was put forward by a Work Track member regarding the letter of support or non-objection required for applications covered under AGB section 2.2.1.4.2 . The proposal suggested that letters of support or non-objection must be dated no earlier than a spe cific date   prior to the opening of an application wind ow. For example, the letter supporting an application must be signed no more than 3 months before the relevant application window opens . The rationale provided   asserts that the absence of such a requirement favors insiders and puts newcomers to the new gTLD space at a disadvantage. [EB8]

 

Conclusion

 

Work Track 5 appreciates the opportunity to provide input to the full Working Group on the topic of geographic names at the top level. The Work Track 5 co-leaders remain available to answer any questions about the recommendations or rationale provided in the report and look forward to the full Working Group’s consideration of this topic.


[1] Additional information about Work Track 5 is available on the Working Group’s wiki: https://community.icann.org/x/YASbAw . The list of Work Track 5 members is available at: https://community.icann.org/x/UplEB .

[10]   The   description of AGB section   2.2.1.4.1 offers a summary of the applicable rules but does not directly quote the text of 2.2.1.4.1 in full.   Text excerpted from the AGB is included in quotation marks. Please see the Applicant Guidebook pages 2-16 and 2-17 for full text.  

[11]   The description of AGB section 2.2.1.4.2 offers a summary of the applicable rules but does not directly quote the text of 2.2.1.4.2 in full. Text excerpted from the AGB is included in quotation marks. Please see the Applicant Guidebook pages 2-1 7 through 2-1 9 for full text.  

[12] City governments with concerns about strings that are duplicates, nicknames or close renderings of a city name should not rely on the evaluation process as the primary means of protecting their interests in a string. Rather, a government may elect to file a formal objection to an application that is opposed by the relevant community, or may submit its own application for the string.

[18] The term “character” refers to either a single letter (for example “a”) or a single digit (for example “1”).

[19] Note that Section 2.2.1.3.2 String Requirements, Part III, 3.1 of the 2012 Applicant Guidebook addresses all 2-character strings. It states, “Applied-for gTLD strings in ASCII must be composed of three or more visually distinct characters. Two-character ASCII strings are not permitted, to avoid conflicting with current and future country codes based on the ISO 3166-1 standard.” Work Track 5’s recommendation specifically addresses letter-letter combinations, a subset of the strings that this provision addresses, because Work Track considers only letter-letter combinations to be within WT5’s scope (geographic names at the top level).

[20] See page 3 of this report for a summary of the rules contained in section 2.2.1.4.1.

[21] See page 3 of this report for a summary of the rules contained in section 2.2.1.4.2.

[22] This information has been confirmed by the Statistical Services Branch of the UN Statistics Division.

[23] The public comment review document used to support this analysis is available at: https://docs.google.com/spreadsheets/d/1WKSC_pPBviCnbHxW171ZIp4CzuhQXRCV1NR2ruagrxs/edit?usp=sharing

[24] The substantive review was supported by a public comment summary document, available at: https://docs.google.com/document/d/1rsyxCEBd6ax3Rb_w1kms_E9n29XL1_lw3Yp9XQ4TeCY/edit#

[26] Full text of proposal:

 

Proposal. Applications of strings regarding terms beyond the 2012 AGB rules with geographic meaning shall be subject to an obligation of the applicant to contact the relevant public authorities, in order to put them on notice.

Affected Strings. (a) Exact matches of adjectival forms of country names (as set out in the ISO 3166-1 list), in the official language(s) of the country in question. The adjectival forms of country names shall be found on the World Bank Country Names and Adjectives list (World Bank List). (b) Other terms with geographic meaning, as notified by GAC Members states or other UN Member states to the ICANN Organization within a deadline of 12 months following the adoption of this proposal. In such notifications the interested countries must provide the source in national law for considering the relevant term as especially protected; The list of notified terms shall be made publicly available by ICANN Org.

 

Contact details of interested countries. Interested countries must provide relevant contact details to ICANN at least three (3) months in advance of the opening of each application window.

 

Obligation to contact interested countries. Applicants for such a term will then be under an obligation to contact the relevant country. Said obligation to contact must be fulfilled, at the latest, in the period between applications closing and reveal day, but an applicant may choose to notify earlier than this. Said obligation to put on notice the relevant country may be performed in an automatized fashion by ICANN Org, if the applicant so wishes.

 

No further legal effect. There is no further obligation whatsoever arising from this provision and it may not be construed as requiring a letter of non-objection from the relevant public authority. Nothing in this section may be construed against an applicant or ICANN Org as an admission that the applicant or ICANN Org believes that the Affected String is geographical in nature, is protected under law, or that the relevant government has any particular right to take action against an application for the TLD consisting of the Affected String.

[27] Full text of the proposal:

 

Proposal. There should be an Early Reveal Process, which is an opportunity for national governments to receive early notification about particular applications so that they can take whatever steps they wish to take.

 

Affected Strings. Exact matches of adjectival forms of country names (as set out in the ISO 3166-1 list), in the official language(s) of the country in question, shall be subject to the Early Reveal Process described below. The adjectival forms of country names shall be found on the World Bank Country Names and Adjectives list (World Bank List).

 

Purpose. The purpose of the Early Reveal Process is to provide early notice to relevant national governments regarding new gTLD applications for exact matches to adjectival forms of country names found on the World Bank List.

 

Notification by National Governments. Interested national governments must provide relevant contact details to ICANN at least three (3) months in advance of the opening of each application window.

 

Notification to National Governments.  As soon as possible after, but never before, the close of each application window, but no later than 1 month after the close, ICANN Org should reveal relevant applied-for terms and applicant contact information to those national governments who provided contact information.

 

Notice by ICANN. ICANN Org will provide notice of the Affected Strings to National Governments who timely submit their contact information. There is no obligation for applicants arising from this Early Reveal Process to seek  a letter of consent/non-objection from the relevant public authority.

 

No Legal Effect.  Nothing in this section may be construed against an applicant or ICANN Org as an admission that the applicant or ICANN Org believes that the Affected String is geographical in nature, is protected under law, or that the relevant government has any particular right to take action against an application for the TLD consisting of the Affected String.

[28] Two resources were mentioned as a starting point for discussion: "The World's Modern Autonomy Systems" at http://webfolder.eurac.edu/EURAC/Publications/Institutes/autonomies/MinRig/Autonomies%20Benedikter%2009%20klein.pdf and the "List of Autonomous Areas by Country" found at https://en.wikipedia.org/wiki/List_of_autonomous_areas_by_country

 

[29] Full text of the proposal: Amend the text in AGB 2.2.1.4.2, part 2 on non-capital city names by adding the bracketed text (note that bracketed text in italics was suggested by a second Work Track member as an addition to the proposal but not supported by all).

 

2. An application for a city name, where the applicant declares that it intends to use the gTLD for purposes associated with the city name.

 

City names present challenges because city names may also be generic terms or brand names, and in many cases city names are not unique. Unlike other types of geographic names, there are no established lists that can be used as objective references in the evaluation process. [However, applicants may find it useful to review the 2017 UN Demographic Yearbook Table 8 to find a list of city names with more than 100,000 inhabitants as a reference point   https://unstats.un.org/unsd/demographic-social/products/dyb/documents/dyb2017/table08.pdf ]. Thus, city names are not universally protected. However, the process does provide a means for cities and applicants to work together where desired.

 

An application for a city name will be subject to the geographic names requirements (i.e., will require documentation of support or non-objection from the relevant governments or public authorities) if:

(a)       It is clear from applicant statements within the application that the applicant will use the TLD primarily for purposes associated with the city name. [For the avoidance of doubt, if an applicant declares in their application that they will 1. operate the TLD exclusively as a dotBrand; and 2. not use the TLD primarily for purposes associated with a city sharing the same name, then this is not a use of the TLD for “purposes associated with the city name”; and,]

(b)      The applied-for string is a city name as listed on official city documents [ or set out in national legislation designating the place as a city ].

 

[30] Full text of the proposal: Amend the text in AGB 2.2.1.4.2, part 2 on non-capital city names by adding the bracketed text (note that bracketed text in italics was suggested by a second Work Track member as an addition to the proposal but not supported by all).

 

2. An application for a city name, where the applicant declares that it intends to use the gTLD for purposes associated with the city name.
 

City names present challenges because city names may also be generic terms or brand names, and in many cases city names are not unique. [However, established lists can be used as objective references in the evaluation process.]

An application for a city name will be subject to the geographic names requirements (i.e., will require documentation of support or non-objection from the relevant governments or public authorities) if:

(a)       It is clear from applicant statements within the application that the applicant will use the TLD primarily for purposes associated with the city name, [and]

(b)      [i.]  The applied-for string is a city name as listed on official city documents, [or ii.  The applied-for string is a (non-capital) city name as [ defined pursuant to applicable national legislation or as ] listed in http://unstats.un.org/unsd/demographic/products/dyb/dyb2015/Table08.xls[unstats.un.org] .]

[31] The following example was provided to illustrate the implications of this proposal. If a US-based company Bagel Inc. and Switzerland-based City of Lausanne both apply for .lausanne, the city of Lausanne has priority. If a US-based company Bagel Inc. and Switzerland-based Lausanne Pharmaceuticals both apply for .lausanne, Lausanne Pharmaceuticals has priority. If Bagel Inc. and Lausanne Pharmaceuticals are not based in Switzerland, there is no priority granted for either application.


[EB1] Staff note: Quotation marks and footnotes 10 and 11 added in response to comment from Jorge Cancio: “ It would be useful if direct quotations from other documents (e.g. in pages 3 and 4 the rules being quoted from the 2012 AGB) were put in quotation marks.”

[EB2] Staff note: Edits proposed in response to comment from Jorge Cancio: “ On page 5 a para has sprung into my eye as differing from the very fact-based and well-documented rest of the report: the para beginning with “Most of these strings were not contained…” until “…no further information is publicly available on the details of such arrangements.” seems to me to be important in terms of knowing what happened with the non-AGB string applications from 2012 that were subject of controversy and or problems. In fact, the paragraph is at times a bit speculative or vague:

o   For example: “in almost all cases”, “were permitted”, “only permitted” “not allowed” – it is unclear who decided or allowed/not allowed, according to what decisions and under what rules/criteria.

o   I guess that reference is implicitly being made to ICANN Board or ICANN Org decisions (or IRP rulings) under their powers pursuant AGB 2012 and Bylaws. If that is the case this should be made explicit.

o   There is also the final sentence “no further information is publicly available on the details of such arrangement”. I don’t recall that having been properly checked (e.g. whether applicable PICs shed light on that or whether the TLDs inform e.g. on eligibility conditions etc.).

Therefore, probably that somewhat vague paragraph on page 5 could be replaced by a factual description of the results of that 18 strings, e.g.

“XY [number] of those strings did not fall under AGB categories. XY [number] were deemed by GAC members to be geographical [quote sources]. XY [number] applications stated in the application that their purpose was brand or generic. XY [number] of applications moved forward. XY [number] were not allowed pursuant to decisions A, B, C from ICANN Board or Org. Regarding applications Y, Z, X specific arrangements were reached [quote sources] Today XY of said 18 have been delegated. ZX are still in proceedings. XZ have been retired. etc.”

 

[EB3] Suggested edit from Alexander Schubert: “ Strings resulting from permutations and transpositions of alpha-3 codes listed in the ISO 3166-1 standard are available for delegation, unless the strings resulting from permutations and transpositions are themselves on that list.”

[EB4] Staff note: Removed duplicative text following suggestion by Alexander Schubert.

[EB5] Alexander Schubert suggested deleting “compared to the 2012 AGB.”

[EB6] Staff note: Suggested update based on feedback from Marita Moll, Katrin Ohlmer, and Alexander Schubert.

[EB7] Comment from Alexander Schubert: Sorry: Readers not familiar to the WT5 issues might take this as evidence that those with an INTEREST in geo-names couldn’t agree – when in reality they agreed very much but change was rejected by the INTELLECTUAL PROPERTY lobby mostly!

[EB8] Staff note: text added to address comment from Alexander Schubert: “ I have suggested on several occasions that we impose a shelf-life for the signature on the letter of non-objection (e.g. max 3 month prior to application submission); e.g. to avoid a second “.africa” disaster. What about that suggestion?”