[council] Latest GAC comments on applicant guidebook

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Mon May 30 01:34:45 UTC 2011


26 May 2011

GAC comments on the Applicant Guidebook (April 15th, 2011 version)

Objections Procedures

ICANN has accepted the GAC's advice that governments should not be
compelled to use the "Limited Public Interest Objections" procedures in
the previous version of the Guidebook. Although the ICANN Notes document
indicates that ICANN has accepted the GAC's recommendation that the
procedures be re-named as "Objections Procedures", the title in the
revised Applicant Guidebook remains unchanged.

GAC comments:

The GAC acknowledges the Board's acceptance of the GAC's proposal, while
noting the need to amend the title of the Objections Procedure in Module

Procedures for the review of sensitive strings

String Evaluations and Objections Procedure:

ICANN has accepted that governments can raise objections to proposed new
gTLD strings through the GAC, as an alternative to its original proposal
that its "Limited Public Interest Objections" procedures should apply to
governments.  GAC members can raise concerns about any applications and
the GAC can provide advice to the Board on any application, with no
obligation to pay fees to register an objection to
a proposed string.  ICANN is proposing that such GAC advice be provided
by the close of the Objection Filing Period, or within a five month
period after applications are posted.  ICANN also expects that GAC
advice will identify objecting countries, the public policy basis for
the objection, and the process by which consensus was reached.

If the GAC provides consensus GAC advice that a particular application
should not proceed, that will create a strong presumption for ICANN that
the application should not be approved.  If the GAC provides advice that
does not indicate consensus, or that does not state that the application
should not proceed, such advice will be provided to the applicant but
would not create the presumption that the application
should be denied.  If the consensus GAC advice indicates that the
application should not process unless remediated, it will raise a strong
presumption that the application should not proceed, unless there is a
remediation method available within the Guidebook (e.g. requiring
government approval).  The Board may consult with independent experts,
such as those designated to hear objections through the Dispute
Resolution Procedure, in cases where issues raised in the GAC advice are
pertinent to one of the subject
matter areas of the objection procedures.

GAC advice and comments:

* The GAC acknowledges the Board's efforts to date to work with the GAC
to find a mutually acceptable way forward.

* The GAC advises the Board that the current text in Module 3 that
seemingly dictates to the GAC how to develop consensus advice is
problematic and should be deleted, as it is inconsistent with the ICANN
Bylaws and the GAC's Operating Principles.

* Nevertheless, the GAC will clarify the basis on which consensus advice
is developed (e.g. the UN definition of consensus) and consider
amendments to Principle 47 of its Operating Principles consistent with
the ATRT recommendations.

* The GAC strongly believes that further discussions are needed between
the GAC and the ICANN Board to find a mutually agreed and understandable
formulation for the communication of actionable GAC consensus advice
regarding proposed new gTLD strings.

* The GAC also advises the Board that it should notify the GAC when and
if it determines to seek the views of independent experts on GAC advice,
after which consultations between the Board and the GAC (to include any
such independent experts) may be warranted.

Expand Categories of Community-based strings, Early Warning, and
Objections Fees:

ICANN has rejected the GAC's advice that the definition of
"Community-based" strings be expanded to include strings that purport to
represent a particular group of people or interests based on historical,
cultural, or social components of identity, such as nationality, race or
ethnicity, religion, culture, etc., or particular sectors, on the
grounds that doing so would be extremely difficult to implement.

ICANN believes its acceptance that GAC objections to proposed new gTLD
strings may be raised for any reason obviates the need to create new
categories and expects that any GAC concerns about strings falling into
these categories can be addressed through the new GAC objections

ICANN has partially accepted the GAC's request for an "Early Warning"
procedure; rather than adding a 60 day period prior to the Initial
Evaluation period, ICANN is proposing to extend the Initial Evaluation
period from 45 to 60 days after the new gTLD applications have been
posted.  "Early Warning" notices will not require GAC consensus, will be
forwarded by ICANN to the applicants, and will be understood by ICANN
and the applicants that the proposed string will be considered
controversial or to raise national sensitivities.  Those applicants who
withdraw within 21 days of receiving the notice will receive a refund of
80% of the application fee.

ICANN is proposing several models that could potentially address the
GAC's advice that individual governments that choose to file objections
to any "Community-based" string should not be required to pay fees, with
a stated preference for the allocation of a fixed amount of funding for
each individual government.  ICANN will also commit that at least one
objection will be fully funded for each individual government.  The
Explanatory Memorandum on the GAC Objection Procedures clearly states
ICANN's view that governments must budget for dispute resolution fees if
they anticipate the need to object to applications using the
"Community-based" strings objection procedures.

ICANN has accepted the GAC's advice that the requirement that objectors
must demonstrate "material detriment to the broader Internet community"
be amended to reflect material detriment to the rights or legitimate
interests of a significant portion of the community to which the string
may be explicitly or implicitly targeted.

GAC advice and comments:

* The GAC appreciates the Board's acceptance of the GAC's advice that
the requirement to
demonstrate "material detriment to the broader Internet community" was
impractical and has now been revised accordingly.

* The GAC will consider whether the addition of 15, vice 60, days to the
45 day Initial Evaluation period for the GAC's Early Warning Procedure
provides sufficient time for governments to review the list of proposed
new gTLD strings, undertake appropriate consultations in national
capitals, and then subsequently notify the GAC of an intention to submit
an Early Warning notice to the GAC.  The GAC advises the Board that it
will need to develop a methodology or mechanism for this new GAC Early
Warning Procedure (e.g. members to notify the GAC and the GAC, in turn,
to notify ICANN).

* While the GAC appreciates the Board's acceptance that Early Warning
notices may cite national, geographic, cultural, linguistic, religious,
ethnic and/or other reasons (e.g. the string represents a regulated
sector) as the basis for the Early Warning notice, the GAC notes that
such notices are apparently only relevant in the event there is a remedy
available in the Guidebook itself (which appear to be restricted to
geographic names).

* The GAC cannot determine whether the Board's commitment to fund at
least one objection per individual national government will be
sufficient, in view of the as-yet- unknown number of new gTLD strings
that may be considered controversial, objectionable, or to raise
national sensitivities.  The GAC therefore advises the Board that its
Communication Outreach program should specifically identify the options
available to governments to raise objections to any proposed string.

Root Zone Scaling

ICANN has accepted GAC's advice on this topic and plans to implement the
advice in the following manner:

* ICANN will establish a process for reporting root zone metrics.

* ICANN will implement a process with a clearly established chain of
command that enables the delegation of TLDs to be slowed or stopped in
the event that there is a strain on the root zone system.

* ICANN commits to review the effects of the new gTLD program on the
operations of the root zone system, and to postpone delegations in a
second round until it is determined  that the delegations in the first
round have not jeopardized the root zone system's security or stability
(as stated in the AG).

* ICANN has drafted a preliminary paper describing monitoring root zone
stability, including a hold on new delegations after the first round
until stability is tested and assured.  The proposed annex with the plan
to monitor root zone performance is not yet available.

* ICANN commits to ensuring that the operation of the IANA functions and
ICANN's coordination of the root zone system will not be negatively
affected.  The paper on Root Zone Scaling (see above) describes staffing
plans to ensure ongoing day-to-day operations at ICANN.  These
operations include delegation, re-delegation, root zone changes,
contractual compliance and registry liaison.
The GAC notes, however, that these calculations of manpower resource
requirements are not yet part of the ICANN operational plan.  ICANN will
continue to test these assumptions in order to create and execute an
operating plan that addresses these requirements.

* ICANN's planning routinely takes into account non-English speaking and
different legal
environments. It will ensure that planning is included for handling new

The GAC looks forward to the final implementation of GAC advice and to
the publication by ICANN of a single authoritative document describing
the monitoring system and reporting mechanisms.  This document should be
ready before the launch of the new gTLD program.

Market and Economic Impacts

ICANN has accepted the GAC's revised advice that criteria should be
identified to facilitate the weighing of the potential costs and
benefits to the public in the evaluation and award of new gTLDs, as part
of the new gTLD program review specified in the Affirmation of

ICANN has also accepted the GAC's advice that applicants be required to
provide information on the expected benefits of the proposed gTLD, as
well as information and proposed operating terms to eliminate or
minimize costs to registrants and consumers.  In this regard, ICANN
consulted with economists who have developed proposed questions for
inclusion in the Applicant Guidebook.

With regard to the GAC's advice that due diligence or other operating
restrictions be developed to ensure that Community-based gTLDs will in
fact serve their targeted community, ICANN has provided a briefing paper
to the Generic Names Supporting Organization (GNSO), with a request that
the GNSO consider a proposed procedure for determining under which
circumstances a community TLD registry may amend the registration
restriction in the registry agreement.

GAC advice and comments:

* The GAC recognizes the Board's responsiveness to the GAC's advice in
including specific questions for applicants, as well as requiring
applicants to provide information on the expected benefits of the new

* The GAC requests information from the Board regarding how the GAC's
concerns can be effectively taken into account in the course of the
GNSO's deliberations of a new procedure for determining the
circumstances under which a Community TLD registry may (or may be
required to) amend its registration policies.

Registry-Registrar separation

Since the recent exchanges in San Francisco on the GAC's request that
the Board provide additional background on its decision to relax
registry-registrar cross-ownership rules in relation to new gTLDs, ICANN
has also re-confirmed that it also intends to relax existing provisions
in relation to existing gTLDs.
This raises additional and related considerations for GAC members to
discuss with their competition authorities.  These discussions are
ongoing and ICANN will be informed in due course if there are concerns
that competition authorities wish to discuss with ICANN.

It is hoped that at least an initial reaction will be available before
or during the next GAC-Board interaction in Singapore.

Rights Protection Mechanisms

The rights protection mechanisms in the Applicant Guidebook constitute
an important set of initiatives aimed in particular at mitigating the
negative impact on the business community arising from the potential
substantial and rapid escalation in the incidence of cybersquatting due
to the scaling up of the number of gTLDs.  The GAC appreciates the
Board's commitment to achieving the shared overarching objective of

a) how these mechanisms can be enhanced in order to maximize the level
of rights protection afforded to businesses big and small; 


b) ensuring the burden for business stakeholders when using these
mechanisms is minimized.

As a result of the several constructive Board/GAC consultations, a
number of the GAC's specific proposals which were formulated with the
assistance of national policy experts and were drawn on national
consultations with stakeholders, have been accepted.  The GAC welcomes
the substantial progress in this important area.

There remain, however, five significant GAC proposals in the GAC's
advice where the Board and the GAC to date have been unable to reach
agreement, namely:

  i. The IP claims and sunrise services should include exact matches
plus key terms associated with the goods or services identified by the
mark, and typographical variations identified by the rights holder.

  ii. The notification function of the Trademark Clearinghouse should
continue beyond the currently proposed 60 day period after the initial
launch of each gTLD.

  iii. There should be no requirement to provide evidence of use for
eligibility to be included in the Clearinghouse which would conflict
with many national IP legal frameworks.

  iv. The standard of proof required for the URS and the PDDRP should be
reduced from "clear and convincing evidence" to the less burdensome
"preponderance of evidence".

   v. The loser pays threshold should be substantially reduced to less
than 26 domain names.

How can the Board and the GAC move forward together on the remaining
substantial operational proposals submitted by the GAC for improving the
rights protection mechanisms?

Throughout the discussions between the Board and the GAC, there was
ready acceptance of the fact that the Clearinghouse is an innovative and
untested initiative, the resourcing and commissioning of which has yet
to be determined with any certainty.  There is an element of experiment
in its eventual operation which doubtless will create further questions
and issues related to its scope and efficient operation.

In considering how to progress the GAC proposals (i), (ii) and (iii)
above, the GAC now proposes that a comprehensive post-launch independent
review of the Clearinghouse be conducted one year after the launch of
the 75th new gTLD in the round.  The GAC advises that this review should
examine whether the aims, functionality and operation of the
Clearinghouse would benefit from incorporating the current GAC proposals
as well as any unforeseen questions and issues that may arise following
the launch of the round.  The GAC advises that the following specific
questions should be included in the review's terms of reference.

 1. With regard to the issue of non-exact matches (i), the GAC notes
that the Board's principal argument against acceptance of the GAC's
advice is that the automation of the TM Claims and sunrise services
would not allow the inclusion of non-exact matches.  The GAC therefore
recommends that the request for proposal (RFP) that ICANN will issue to
potential Clearinghouse providers includes a requirement that the
candidate assess whether domain names that include a mark at the
beginning or the end of an applied for second level domain could be
included in the services.  Secondly, the GAC advises the Board to direct
the post-launch review to establish whether the automated system should
be enhanced to include key terms associated with the goods or services
identified by the mark, and typographical variations identified by the
rights holder.

 2. In the light of the experience gained from the initial period of the
operation of the Clearinghouse, in relation to the GAC's advice on
extending the operation of the Clearinghouse beyond 60 days after each
gTLD launch (ii), the GAC advises that the review should include:

	a) a consultation with registry providers, registrants and
rights holders on the benefits or otherwise of extending the period of
the Clearinghouse notifications beyond 60 days;

	b) an analysis of the impact of the operation of the
Clearinghouse notifications on the commercial watch services market;

	c) an assessment of the likely resource requirements for
extending the operation of the Clearinghouse notifications to potential
registrants for the life of each new registry.

The GAC maintains its advice to the Board that the requirement to
provide evidence of use (iii) should be removed because it is
inconsistent with trade mark law in many jurisdictions, burdensome for
business, disproportionate and discriminatory. The GAC notes that the
principal reason the Board disagrees with the GAC's advice is that this
requirement would in its view deter gaming.  In view of the Board's
concern about this as an overriding risk that outweighs the concerns
raised by the GAC if this requirement were to be imposed, the GAC asks
the Board to provide a written document for the GAC's
consideration by 8 June 2011, so that there is opportunity for GAC
review before meeting in Singapore, which:

	a) provides a detailed, evidence-supported analysis of the
gaming threat at the second level;

	b) explains why the Board believes that this requirement is the
only practicable solution for addressing this threat and would
successfully deter the practice of gaming;

	c) provides an analysis of the likely impact of this requirement
on legitimate mark holders who would be rendered ineligible for
inclusion in the Clearinghouse if this requirement is imposed;

	d) assesses the costs to business of having to furnish evidence
of proof;

	e) explains the resources which ICANN will expect to be deployed
by the Clearinghouse for the rigorous examination of evidence of use.

The GAC requests a discussion of this paper with the Board at the
meeting in Singapore before finalising its advice to the Board on the
proposal to require evidence of proof.

The GAC's advice to the Board that it reduce the burden of proof to the
standard usual applicable to civil law (iv) is unchanged on the grounds
that the GAC believes that this would constitute a significant reduction
in the burden on business without compromising the effectiveness of the
URS and the PDDRP.

The GAC maintains its advice that the threshold for the loser pays
mechanism should be lowered (v), a position which the GAC notes is
shared by the IP, Business and Not-for Profit Operation Concerns
Constituencies, as well as the US Council for International Business,
the International Trademark Association, the European Brands Association
and a number of other leading business respondents to the recent public

Furthermore, the Board indicated in its most recent consultation with
the GAC that the current threshold proposal of 26 derives from a very
formative proposal and has not been rigorously assessed recently as to
its suitability for purpose.  The GAC hereby amends its position to

a) that the threshold should be re-set at 15 domain names 


b) that the effectiveness of this threshold be reviewed at the same time
as the post-launch review of the Clearinghouse.

The GAC also has a number of outstanding specific text proposals for
amending the Applicant Guidebook which are listed at Annex A for the
Board's present consideration.

Following the clarification provided by the Board during the Board-GAC
consultation on 20 May regarding URS Default cases, the GAC accepts the
Board's response that "de novo" reviews should be retained in para. 6.4
of the Applicant Guidebook.  The GAC welcomes the Board's proposal for
reducing the period for filing a response to 6 months with a possible
extension of 6 months, primarily in order to ensure that small
businesses with limited resources are allowed sufficient to be alerted
to the opportunity to submit an appeal.

(See Annex A: Rights Protection - GAC clarification requests and
proposed text amendments. Page 13)

The Reserved Names List

Following the GAC's exchange with the Board on 20 May regarding the
requests from the International Olympic Committee (IOC) and the
International Red Cross and Red Crescent Movement for the key words most
directly associated with their respective Charters and unique
humanitarian missions to be added to the Reserved Names list, the GAC
emphasizes that it would not support the extension of the reserved list
into a de facto "Globally Protected Marks List" (GPML).  In fully
supporting these two specific requests, the GAC recognizes that they are
made by two global, non-profit, humanitarian organizations whose
property is protected by special legislation in many countries, in the
IOC's case over thirty nations representing over 4.5 billion people
which is approximately sixty-five percent of the world's population.
The GAC supports ICANN's continued application of very tightly drawn
criteria for inclusion on the reserved names list and the GAC is unaware
of any other international non-profit organization that enjoys the level
of special legislative protection across the world afforded to the IOC
and the Red Cross and Red Crescent movement that justifies inclusion on
the Reserved Names List.

Consumer Protection and Law Enforcement proposals

ICANN has accepted the intent behind the GAC's advice that the provision
in the Registry Agreement requiring an Abuse Point of Contact should
explicitly refer to government agencies that are conducting lawful
investigations or official proceedings, while rejecting the GAC's
proposed language.  The ICANN Notes indicate that ICANN has amended the
provision in the Registry Agreement in more general lines; however, the
text in the Applicant Guidebook itself does not appear to have been

The GAC's amended advice that ICANN conduct more stringent vetting of
all new gTLD applicants has been largely accepted by ICANN, which has
committed to expanding the scope of background screening and to
publishing the names and titles of key officers, directors, partners and
controlling shareholders of each applicant.

ICANN has accepted the GAC's advice that it enhance its Contract
Compliance resources prior to the launch of the new gTLD program, and
expects to issue an Explanatory Memorandum on the subject pending the
results of internal analyses.

GAC advice and comments:

* The GAC appreciates the Board's acceptance of its proposal that the
Registry Abuse Point of Contact must be responsive to requests from law
enforcement and government consumer protection agencies that are
conducting lawful investigations and requests that ICANN confirm that
the text has been amended accordingly.

* The GAC also appreciates the Board's agreement that the scope of
background screening should be broadened, and commits to providing
support from its respective law enforcement agencies to assist ICANN in
selecting a background screening service provider.

* The GAC also notes that the categories of crimes that will be included
in the screening process (as per 11.1 in the Scorecard) must be
broadened to include consumer protection violations.

* The GAC welcomes ICANN's intention to enhance its Contract Compliance
efforts and urges the Board to ensure that this effort coincides with
the implementation of the new gTLD program.

Law Enforcement proposals

ICANN has largely accepted all of the GAC's advice pertaining to law
enforcement concerns regarding increased due diligence, and has noted
that it will respond separately to the GAC's request for information on
how the Board intends to implement the LEA Recommendations for further
amendments to the Registrar Accreditation Agreement that were endorsed
by the GAC in June 2010 (as an issue unrelated to new gTLDs).  While
ICANN has not accepted the GAC's advice that applicants offering the
highest levels of security should be assigned higher weights in the
evaluation process, ICANN has agreed to include specific questions in
the applicant questionnaire that are intended to
identify the security measures, including abuse mitigation, the
applicant intends to implement.

GAC advice and comments:

* The GAC appreciates the Board's responsiveness to the majority of the
points included in the GAC's advice regarding law enforcement concerns.

* The GAC believes that the categories of law violations that will be
considered in the background screening process must be broadened to
include court or administrative orders for consumer protection law
violations.  If an applicant has been subject to a civil court or
administrative order for defrauding consumers, it should not be
permitted to operate a new gTLD.  While the GAC understands that there
is no agreed international standard related to deceptive commercial
practices, the OECD Guidelines for Protecting Consumers from Fraudulent
and Deceptive Commercial Practices Across Borders contains a definition
of fraudulent and deceptive commercial practices that is based on global
consensus that can be incorporated into the background screening

(Link to the OECD Guidelines for Protecting Consumers from Fraudulent
and Deceptive Commercial Practices Across Borders:


* The GAC also urges the Board to reconsider the deletion (in Section
1.2.1) of the phrase "include, but not limited to" with regard to a list
of offenses that would automatically disqualify an applicant.
The new text has the unintended consequence that applicants would be
disqualified only on enumerated offenses, and removes the flexibility
and discretion the previous text provided the Board to inquire into
additional law violations other than those enumerated in the Applicant

Post Delegation Disputes

ICANN has accepted the GAC's main principle, that Governments will be
able to withdraw government support for an application in case of a
dispute with the registry. Support will in most cases be given with a
set of conditions: ICANN has now written in the Applicant guidebook that
they will comply with a legally binding order from a court in the
jurisdiction of the government or public authority that has given
support to an application. This obligation is also included in the draft
registry agreement in article 7.13.

GAC advice and comments:

The GAC is therefore pleased that ICANN has reinstated this principle in
the Applicant Guidebook.

According to the GACs previous input, the GAC also want ICANN to respect
a legally binding administrative decision.  The reason for this is that
in some jurisdictions it is not possible for the Government or Public
Authority to have their administrative decision confirmed by a court.
Only the other party (i.e. the applicant) can take the decision of the
Government or Public Authority to court.

If ICANN will not include the obligation to comply with a legally
binding administrative decision in the Applicant Guidebook, you will
have a situation where some Governments or Public Authorities will not
have the possibility to give a letter of support or non-objection.  In
those cases, ICANN must be willing to comply with a legally binding
administrative decision made by the Government or Public Authority which
provided the initial letter of support or non-objection.  This
commitment from ICANN should be
included in the final version of the Applicant Guidebook, or at least
ICANN should signal that they are willing to accept this as an amendment
in the registry agreement on a case-by-case basis.

Geographic names

GAC advice and comments:

ICANN has partially accepted the GAC request for implementation of a
free of charge objection mechanism, providing limited financial support
for objections.  The GAC cannot determine whether the Board's commitment
to fund at least one objection per individual national government will
be sufficient, in view of the as-yet-unknown number of new gTLD strings
that may be considered controversial, objectionable, or raising national
sensitivities. The GAC therefore advises the Board that its
Communications Outreach program should specifically identify the options
available to governments to raise objections to any proposed string.

Given ICANN's clarifications on "Early Warning" and "GAC Advice" that
allow the GAC to require governmental support/non-objection for strings
it considers to be geographical names, the GAC accepts ICANN's
interpretation with regard to the definition of geographic names.

The GAC appreciates the language that has been added to the Applicant
Guidebook augmenting the definition of geographic names such that: "A
string shall be considered to be a country or territory name if: ... it
is 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."

The GAC believes that the potential risk of applicants avoiding the
government support requirement is resolved with the Early Warning
Process and GAC Advice procedures.

The GAC appreciates the Board's observation that requiring applicants to
describe the purpose of their TLD applications will provide useful
information for evaluation and objections; and, importantly, for the GAC
as it considers the public policy implications of the application and
string.  The GAC observes that GAC's advice allows for requests for such
statements if public policy issues are raised.

The GAC appreciates the Board's clarifications that 

a) the level of government and which administrative agency is
responsible for the provision of letters of support or non-objection is
a matter for each
national administration to determine; 


b) ICANN intends to allow multiple applicants all endorsed by the same
authority to go forward, when requested by the government.

Legal recourse for Applications

ICANN has examined these legal questions carefully and, considering the
results of these examinations, still adheres to this provision.

ICANN clarified in the Applicant Guidebook that if ICANN deviates from
its agreed processes in coming to a decision, ICANN's internal
accountability mechanisms will allow complaints to be heard.

GAC comments:

The GAC appreciates and accepts the Board clarifications.

Support for developing countries and needy applicants

The GAC commends the JAS working group on the second milestone report,
which contains very innovative proposals and the efforts to accommodate
GAC's concerns and proposals.

GAC advice and comments

* The GAC urges the Board to coordinate and implement as a matter of
urgency the decisions relating to the process and timeline issues on the
support programme in order  to provide equal opportunities to all
applicants, particularly from developing countries.

* For support to developing countries, the GAC is asking for a fee
waiver, which corresponds to 76 percent of the US$ 185,000 application
fee requirement.  Further, there will be instances where additional
costs will be required: for example, for auction, objections, and
extended evaluation.  In such events, the GAC proposes fee reduction and
waivers in these processes/instances where additional costs are
required.  The GAC would further like to propose an additional waiver of
the annual US$ 25,000 fee during the first 3 years of operation.

* There is also a need for consideration of a sustainable process for
implementing the waiver programme.  The GAC welcomes the proposal for
further discussions on this during the meeting in Singapore to help
develop a number of the very innovative approaches proposed to enable
fair access to all applicants who meet the conditions set by the JAS WG.

* On gaming, the GAC welcomes the JAS WG's recommendation to set up a
parallel process to determine eligibility based on the guidelines they
have provided.  The GAC proposes that a review team be established
consisting of ICANN stakeholders experienced and knowledgeable in gTLD
processes, developing country needs and gaming patterns. Furthermore,
consideration should be given to the imposition of penalties on entities
found to be attempting to game processes put in place to support
developing country applicants.

Annex A

Rights Protection - GAC clarification requests and proposed text

Trademark Clearinghouse

i) Para 6.1.1

The GAC seeks clarification that the date of 26.6.08 refers only to the
date of the protective treaty/statute being in force, and does not refer
to date of validation by the court as suggested in ICANN's revised notes
(see para 6.1.1, (a)(ii))

The GAC seeks clarification of the differences in approach regarding the
date of statutes/treaty.
Whereas the date of 26.6.08 is included in requirements for sunrise (see
para 7.2) but not for inclusion in the Clearinghouse (see para 3.2.3).
The practical implications for this are unclear.

ii) Para 6.1.4

The GAC advises that the word "promptly" be added as follows:
"....the Clearinghouse will promptly notify the mark holder(s)...."

iii) Paras 7.1 and 7.2

The GAC advises that the text be amended to read 'nationally or
regionally' in place of 'nationally or multi-nationally.'

Uniform Rapid Suspension

iv) Para 8.4 (2)

The GAC seeks clarification as to why this text has not been deleted.
The substantive or practical difference between para. 8.4 (1) and para
8.4 (2) is unclear as the latter appears to fall within 8.4(1).

Post Delegation Dispute Resolution Procedure

v) Para 6.1

The GAC advises that the word "affirmative" be deleted.

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