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Fair Notice and Applying for a New gTLD

Applying for a new generic Top-Level Domain (gTLD) will be expensive and complex. ICANN’s Applicant Guidebook comprises 350 pages of dense instructions, spelling out the procedures to apply for a gTLD and to comment or object to the gTLDs applied for by others. Hidden among the forest of criteria and procedures is a problem that, unless solved, could deny good faith applicants the fair notice they deserve.

The Guidebook contains deadlines and timelines—lots of them.

Several deadlines come with stated penalties for missing them. Miss the deadline for submitting a gTLD application and it “will not be considered.” Miss the deadline for submitting a Notice of Request for Extended Evaluation and “the application will not proceed.” Miss the deadline for a filing a response to a formal objection means that you are “in default, which will result in the objector prevailing.” Each penalty means the loss of time and money, as well as the opportunities that new gTLDs offer.

Sometimes deadlines are described without explaining what happens if they are missed. Parties before a Dispute Resolution Service Provider must complete its advance payment of costs “within ten (10) days” of receiving the DRSP’s request, but nothing is said about the consequences for missing that deadline.

There are also timelines where ICANN states how long it expects certain processes to take. The administrative check following the end of the application period is expected to take 8 weeks, for instance.

The problem is that deadlines, in particular, are stated unclearly. The word “days” is the most obvious source of confusion. Deadlines are expressed in “business days,” “calendar days,” and just plain “days.” The Guidebook nowhere defines these terms: it never explains whose “business days” count and whose weekends and which holidays might be excluded from the computation. Such imprecision is not just a problem for lawyers and other cranky fusspots. An applicant who strains every resource to submit an application could suffer irrecoverable losses if its computation of a deadline is mistaken by even a single day.

What makes matters worse is that these numerous deadlines and timelines are scattered throughout the Guidebook. Nowhere does ICANN provide a comprehensive summary of them. Nor does the Guidebook say whether ICANN will notify an applicant of a deadline and any penalty that is attached for missing it.

Notice must be clear to be fair, and every gTLD applicant should have fair notice of the deadlines that affect it. Fortunately, there is still time to produce the necessary clarity before the gTLD application period begins on January 12:

  • ICANN staff should conduct a thorough review of the Guidebook to identify all deadlines and timelines.
  • Deadlines without penalties should be reconsidered. A deadline without a penalty is ineffective; unless a penalty ought to be added, the deadline could be eliminated.
  • Deadlines and timelines should be summarized in a single place in the Guidebook and that summary should be posted in a prominent location at http://newgtlds.icann.org/, where it can be updated promptly after any change.
  • Key terms like “calendar day” and “business day” should be given a uniform definition for the entire Guidebook, and the Guidebook should be revised to use these terms consistently. Also, the Guidebook should be revised to use as few key terms as possible. Using “days” and “calendar days” to refer to the same unit of time is potentially confusing.
  • ICANN should include in its communications with an applicant a prominent notice of any deadline that will apply, along with the penalty for missing it. The same rule of prominent notification should be followed by evaluation panels, DRSPs, and other third parties that interact with gTLD applicants.

Adopting these measures would solve the problem of fair notice and avoid turning the gTLD application process into an unfair game of “gotcha.”

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie

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Also... plan to celebrate a deferred "Thanks-Cristmukkah" on April 13th... Jothan Frakes  –  Nov 1, 2011 5:30 PM

For where dates are static (Application Window 01/12/2012 to 04/12/2012), there’s quite a rush on to get applicants engaged to start work.  This is rapidly approaching and there’s growing interest and applicant activity, especially once the realization that the application submission window starts in under 2.5 months. 

There’s a couple of significant holidays in there that eat as much as three weeks of that time for those who are working with many corporate brands that have the luxury of those institutional practices of holiday leave.

Many of the consultants and consultancies are getting very busy with customer demands, to where many of us are going to be having to work through the holidays to support our applications being completed at the very front of the application window (January 12, 2012) to leave room for using the span until April 12th for refinements in order to have strong applications and also accommodate many of the last-minute submission clients.

As result, many of us in the community have jokingly re-named April 13th to ‘Thanks-Chrismukkah’  ;)

Batching and Prioritization R. Shawn Gunnarson  –  Nov 1, 2011 5:57 PM

I agree, Jothan. The time pressure you describe is not improved by the uncertainty that continues to linger around the question of batching applications. Kurt Pritz did a good job of explaining the current thinking on this topic in a GNSO working session last week, but firm decisions need to be made about batching and prioritization so that the work flow you rightly describe can be managed more reasonably. Resolving those questions definitively and quickly is critical to new gLTD applicants and those of us who advise them.

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