An Overview of ICANN’s Strawman Solution, and Why its Causing a Kerfuffle

There should be more complications in the new gTLD process. Said no one, ever. But concerns about brand protection have started a new debate in the ICANN community concerning the “Strawman Solution,” a suggested answer to the question, How will ICANN protect the Internet community against intellectual property destruction during the launch of nTLDs?

Since the Strawman Solution is getting so much attention, and since it affects you, as a potential registrant, we decided to break it all down – what the solution is, where it came from, why it’s causing controversy, and how it would affect registration. Once you’ve read everything over, let us know what you think.

The Strawman Solution

The Strawman Solution introduces several tweaks and implementations to policies in the ICANN guidebook, concerning trademark protection. The solution is meant as a talking point and a suggestion of possible changes, and would not go into effect until comments are considered and the proposal could be fleshed-out. Some of the key points of the proposal are:

• Registrars must give a 30 day warning, pre-sunrise period, to promote public awareness and participation in sunrise registration.
• The 60 day period for Trademark Clearinghouse registration would be extended to 90 days.
• An optional “Claims 2” period for the Trademark Clearinghouse would be implemented, during which a claims holder may pay additional fees to keep the basic functions of the TMCH open for six months to a year.
• Trademark owners could register up to 50 labels that have been previously determined by the UDRP or a court proceeding to be abusive or infringing in the TMCH.

In addition to these points of the Strawman Proposal, the document is also dog-eared with an additional proposal, not agreed on by the committee that met after Toronto, but still up for discussion. That proposal, The Limited Preventative Registration, would add a mechanism for trademark owners to prevent second-level registration of their marks.

The Process of Drafting the Strawman Proposal

The Strawman Proposal was drafted after a closed-door meeting following the Toronto summit, in November (2012). The meeting was kept off-record, so until recently the list of who attended wasn’t released. The members included: ICANN staff, IBM and Deloitte representatives (both companies were picked by ICANN to run the TMCH), and representatives from “select stakeholder groups,” who also represent GNSO, or the Generic Names Supporting Organization. The complete list is available on the Strawman document.

After the proposal was drafted, ICANN posted it to its website, and opened the document for commentary, which occurred through Jan. 16, 2013. 85 comments were posted, by applicants, trademark holders, registries and registrars, and the proposal is now in the reply stage of its process, meaning replies may be posted to original comments through Feb. 5. After Feb. 5, ICANN will post a summary of the comments in order to decide whether or not the proposal should pass through to the next stage.

Support for Strawman

Much of the support for the Strawman Solution comes from brand owners who are concerned about the changes nTLDs will cause when they are launched — including more opportunities for cyber-squatting and for string confusion. To those who support the solution, it represents an enforcement of policies already in place, and a necessary step in ensuring that trademarks are better protected without having to place the entire burden of the process on trademark owners.

The Three Main Arguments Against Strawman

Because nothing is ever as simple as it seems, ICANN’s Strawman Solution has caused a complex discussion in the nTLD community. The 85 commenters — representing companies like Facebook, Coca-Cola, DuPont, Donuts, USPS, and Time Warner, just to name a few — have either agreed with ICANN’s proposals, or raised objections. The three most common reasons for objection are:

1. The proposal came about from a closed-door meeting. Many argue that the nature of the meeting prevents the Strawman Solution from being able to represent the wants of the ICANN community. Many members feel that because ICANN called the solution a “community” proposal, but did not open the door to the community during the process, the Strawman Solution cannot represent the community.
2. “Implementation” versus “policy.” The difference between how you perceive these two words can mean all the difference when looking at the Strawman Solution. For those who support the solution, it doesn’t represent a change in policy, but rather an extension in the implementation of policies already in place. For example, the extension of a 60 day TMCH period to a 90 day period – to those who think the solution is a mere implementation of previous policies, then an extension of a TMCH period isn’t a big deal. On the other hand, some feel that the proposal introduces policy changing practices, which will cost the community more time and money and significantly change the course of nTLD registrations. Changing the TMCH period from 60 to 90 days may not be a big concern, but to those who object to the Strawman Solution, implementing a “Claims 2” period, in which the TMCH can be extended to a year, or allowing trademark owners to register up to 50 abusive strings, weighs down the process of registration and adds policies to the guidelines already in place without going through the channels the policies in the guidebook had to.
3. Protection versus overkill. The final argument between the two sides of the Strawman Solution conversation is whether or not the points proposed in the solution are a) protective measures needed to guard against trademark abuse and infringement, or b) a method of using policy to protect trademarks that hinders the free market and ties-up the registration process in red tape.

Where do you Stand?

We’ve heard from all the heavy hitters, and we’ve submitted our own comment, too. But we want to hear what you think. Do you think the Strawman Solution needs to be an Ironman Solution, or do you think ICANN needs to let it burn? Tell us in the comments below, or on Twitter or Facebook.

And keep checking back here – we’ll be watching the nTLDs for you as they make their way through the application process. (You can even sign up to have us watch your favorites, here.)