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Brand TLDs Become Official

It seems that pigs can, after all, fly. From the start of its new gTLD program, ICANN ignored what was obvious to pretty much everyone else: corporations might wish to apply for their brands and run them as closed ecosystem TLDs servicing only the brands in question.

No longer. By releasing a proposed addendum to its registry contract, called Specification 13, ICANN has done two things it has always said it would never do: acknowledged that “brand TLDs” should be considered in the new gTLD program, and created a new category of TLD for this specific class of application.

The addendum is only a draft right now. Comments from the public are invited until January 9, 2014 on what, to many long-term new gTLD program observers, will probably be considered a major shift in strategy for ICANN. Once the public comment period closes, the intent is for the draft to be forwarded to the ICANN Board’s New gTLD Program Committee. If the NGPC ratifies it, Spec 13 would then become part of the contract applicants will have to sign before being allowed to operate a new gTLD.

If and when this happens, brand TLDs will, for the first time, be officially defined. The proposed Spec 13 says that:

  • a brand TLD is identical to a registered trademark (and, in what looks uncannily like an attempt at abusing a monopoly position, registered in the Trademark Clearinghouse if eligible);
  • is owned and used by the registry operator in the course of its everyday business;
  • predates the application of the brand as a TLD;
  • its use does not change during the course of the contract awarded the registry operator to run the TLD as a brand TLD;
  • does not begin with a dot.

Furthermore, all domain names registered in the TLD must be controlled by the registry operator, its affiliates or licensees.

An end to equal access

Those registry operators that can meet these requirements will be opted out of one of the core requirements made by the GNSO, ICANN’s new gTLD policy maker, when it drafted the original set of recommendations for the new gTLD program: equal access for all registrars.

Under Spec 13, brand TLD operators will be allowed to “designate one or more ICANN accredited registrars as the exclusive registrar(s) for the TLD”. This makes perfect sense for brand TLDs as they are, by definition, niche operations on which the brand must be able to exercise strict control and not have, for example, a competitor set up a registrar just to be able to access the brand’s registry platform. However, breaking the equal access commandment has always been such a contentious issue, it’s not hard to imagine many will be displeased at this.

Spec 13 also addresses what happens if a brand TLD operator terminates. By definition, brand registries will be full of sensitive data that should not be passed on to just any old successor. So the proposed registry contract changes allow for mechanisms by which the legacy brand TLD operator can oppose this.

The draft Spec 13 is available here. The public comment period is here.

By Stéphane Van Gelder, Consultant

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