Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
This document contains the ICANN reply notes to the:• "GAC indicative scorecard on new gTLD outstanding issues" of 23 February 2011, and• “GAC comments on the ICANN Board’s response to the GAC Scorecard” of 12 April 2011.
The original “Notes” document has been revised to reflect the ICANN reasoning based on discussions in San Francisco and the
GAC Response dated 12 April 2011. In order to keep the document from becoming unwieldy and to make it relatively easy tofollow, the original Board Notes column has been “redlined.” However the rest of the document remains the same and does
not contain the most recent “GAC comments”, which are posted at the link indicated above. (Note: the simple formatting has
some drawbacks. For example, the issue numbers no longer completely match those in the new “GAC comments” where the
GAC have realigned the comments in a way that makes more sense.)
As before, each GAC scorecard item is noted with a "1A", "1B", or "2". Some scores have been adjusted to reflect changes
made by the GAC and Board.
• "1A" indicates that the Board's position is consistent with GAC advice as described in the Scorecard.
• "1B" indicates that the Board's position is consistent with GAC advice as described in the Scorecard in principle, but thatthe implementation of the advice might be different than the GAC's recommendation.
• "2" indicates that the Board's current position is not consistent with GAC advice as described in the Scorecard and GAC
Response.
Results:
The recent ICANN Board – GAC consultations were successful in a number of ways. They were substantive, effective, resultsoriented working sessions that created the gravamen for an effective ICANN - government working model going forward.
These consultations have resulted in several victories for ICANN and the GAC: the GAC agreed that ICANN should prepare foran economic study to be undertaken after the first round to measure program effectiveness and indicate improvements;
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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
ICANN agreed to implement a “GAC Advice for New gTLDs” process. In these and other areas, both sides have madeaccommodations and also reached areas of agreement.
It should be noted that in any negotiation of 80 separate points, such as we have here, the final score is not going to be 80 tozero. At the end of the day, it seems the Board is going to have to say in some cases, “we are going against GAC advice,” but
the Board has made serious and effective changes in response to the first GAC scorecard – as has the GAC. It is important torecognize that although there are “2’s” remaining, some of the solutions generated were intended to address the set of GAC
concerns, even if they do not specifically address each point.
For example, the GAC Early Warning and the GAC Advice processes are intended to address specific GAC concerns about theirrole vis-à-vis the Board, but these processes were designed to address other GAC issues as well, e.g., broadening definitions ofcommunity and geographic TLDs. So while the Scorecard indicates that there are still areas of disagreement (i.e., “2s”) some ofthose areas are addressed in the broad nature of some of the solutions.
Item #
1.
1.

2.

GAC Scorecard Actionable Item
Position
Notes
The objection procedures including the requirements for governments to pay fees
Delete the procedures related to “Limited
1A
The GAC indicated in Brussels and its 12 April “GAC comments” that it
Public Interest Objections” in Module 3.
would be consistent with GAC advice to leave the provision for Limited
Public Interest Objections in the Guidebook for entities other than GAC
members and other governments, instead of the original GAC
recommendation that the entire section be deleted. New, proposed
GAC review procedures have been created (please see below). ICANN
will also adopt the GAC recommendation that ICANN amend the title ofModule 3 to “Objection Procedures” to more accurately reflect theintention to provide the GAC with a separate procedure for objections
based on public policy concerns.
Procedures for the review of sensitive strings
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Item #GAC Scorecard Actionable Item
2.1.1 1. String Evaluation and Objections
Procedure
Amend the following procedures related to
the Initial Evaluation called for in Module 2
to include review by governments, via the
GAC.
At the beginning of the Initial Evaluation
Period, ICANN will provide the GAC with adetailed summary of all new gTLD
applications.
Any GAC member may raise an objection toa proposed string for any reason. The GAC
will consider any objection raised by a GAC
member or members, and agree on advice
to forward to the ICANN Board.

Position
1B

Notes
The Board certainly respects that there are no mandated timeframes
for GAC policy advice, nor a requirement to provide consensus advice
to the Board. It is nonetheless useful for the efficiency of the processthat GAC advice be timely, useful and documented. The Board
appreciates that the GAC will endeavor to respond within the comment
period and agrees that ICANN should attempt to set the time for the
early warning period to be at 60 days.
Coincident with the posting of this summary is also a proposal where
the current application evaluation process flow would be augmented
to include a GAC Early Warning procedure and a GAC Advice on New
gTLDs (i.e., objection) procedure. GAC Early Warning and GAC Advice
on New gTLDs can be applied to any application, e.g., sensitive,
community, sector, or geographic strings of any type.
The Early Warning Notice does not require GAC consensus; it requires a
GAC decision to issue a notice based upon statements of member
states or governments.
The GAC Advice on New gTLDs procedure does not require GAC
consensus but GAC advice that is stated to be a “GAC consensus”
position and that states “this application should not proceed,” will
create a strong presumption for the Board that the application should
not be approved. If the Board then decides to approve the application,a Bylaws-required good faith attempt at reconciliation would betriggered.
Additional detail and rationale for the positions is included in thecompanion paper posted with this summary.

2.1.2 GAC advice could also suggest measures to

2

The Board appreciates that the Bylaws do not limit the GAC’s ability toPage 3 of 42

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Item #GAC Scorecard Actionable Item
mitigate GAC concerns. For example, theGAC could advise that additional scrutiny
and conditions should apply to strings that
could impact on public trust (e.g. ‘.bank’).

Position

Notes
provide advice on public policy matters. We hope that GAC Early
Warning would encourage applicants to resolve the issue or withdraw
if appropriate. The refund is set at a higher rate than the otherwise
maximum refund in order to encourage withdrawal in the face of thepotential government-level objection.
If the GAC were to provide suggested changes to mitigate concernsthat lead to changes in the application, we are concerned that theadvice would lead to ad hoc changes to the evaluation process basedon subjective assessments.
The current process, for good reason, provides very limited ability for
applicants to amend their application. Allowing amendments would
encourage abuses and, we believe, actually increase the number ofcontroversial applications. For example, if the GAC Early Warning
required government approval for an application to go forward, that
could be remedied. However, if the GAC advised that the string itself
raised impermissible sensitivities, the applicant is not allowed toamend the application to change the string. That applicant could
withdraw for a greater refund.

2.1.3 In the event the Board determines to takean action that is not consistent with GAC
advice pursuant to Article XI Section 2.1 j
and k, the Board will provide a rationale forits decision.
2.2

1AThis is settled.

2. Expand Categories of Community-based
Strings
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Item #GAC Scorecard Actionable Item
Amend the provisions and procedures
contained in Modules 1 and 3 to clarify thefollowing:

Position

Notes

2.2.1

“Community-based strings” include thosethat purport to represent or that embody aparticular group of people or interests
based on historical, cultural or social
components of identity, such as
nationality, race or ethnicity, religion,
belief, culture or particular social origin orgroup, political opinion, membership of anational minority, disability, age, and/or alanguage or linguistic group (nonexhaustive). In addition, those strings thatrefer to particular sectors, such as thosesubject to national regulation (such as.bank, .pharmacy) or those that describe or
are targeted to a population or industry
that is vulnerable to online fraud or abuse,should also be considered “communitybased” strings.

2

It is true that the Board has rejected the idea that community namedefinitions be expanded to include other sectors and regulated
business, but it the Board does not suggest substituting a Community
objections procedure for the more proactive and preventative
mechanism that would require an affirmative demonstration ofCommunity support.

Applicants seeking such strings should be
required to affirmatively identify them as“community-based strings” and must
demonstrate their affiliation with theaffected community, the specific purpose

2

2.2.2

Expansion of categories in a clear way is extremely difficult. This isreflected in the public comment received. Community definitions havebeen drawn narrowly in the Guidebook to prevent abuses. Even
expansion of categories will probably not address GAC concerns insome way as even the expanded definition might leave some genuine
area of sensitivity unaddressed.
The proposed GAC Early Warning and GAC Advice on New gTLDs
procedures are designed to address the GAC concern, i.e., so the GAC
can provide input on any application for any reason, eliminating theneed for specific definitions. Therefore, the procedures will address
sensitive, community, geographic and sector (regulated industry) stringissues and give indications to applicants on ways to avoid formal
objections.
See section above. The GAC Early Warning and GAC Advice procedures
can be applied to any application, regardless of whether the applicant
has been self-designated as a community TLD.
The GAC’s suggestion would require applicants to designate
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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Itemof the proposed TLD, and –whenopportune evidence of support or nonobjection from the relevant authority/iesthat the applicant is the appropriate or
agreed entity for purposes of managing the
TLD.

Position

2.2.3

In the event the proposed string is either
too broad to effectively identify a single
entity as the relevant authority or
appropriate manager, or is sufficiently
contentious that an appropriate manager
cannot be identified and/or agreed, theapplication should be rejected.

2

As described above and in the accompanying paper, the GAC may
object to any application.

2.2.4

The requirement that objectors must
demonstrate “material detriment to thebroader Internet community” should be
amended to reflect simply “material
detriment”, as the former represents an
extremely vague standard that may prove
impossible to satisfy.

1A

Applicant Guidebook has been revised to clarify this aspect of thestandards.

Individual governments that choose to fileobjections to any proposed “communitybased” string should not be required to pay
fees.

1B

2.2.5

Notes
themselves as a community, even if they might not be.
Strings may have many meanings, not all of which might implicate acommunity.
Reducing the context for how strings may be used is contrary to an
important goal of the new gTLD program, which is to help encourage
competition, innovation and consumer choice.

The new standard in the Guidebook reads: “The objector must provethat the application creates a likelihood of material detriment to therights or legitimate interests of a significant portion of the community
to which the string may be explicitly or implicitly targeted.”
A companion paper considers several models that balance thegovernment interests and the need for ICANN to maintain a reasonable
extent of control over expenditures. It recommends that a predetermined amount of funding be designated by ICANN for eachindividual government, for the purpose of funding objection fees
where a government wished to file a formal objection. Each
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Item #GAC Scorecard Actionable Item

Position

Notes
government would be allotted an equal amount, and could continue todraw on such funds up to the maximum at its discretion, with theguarantee that at least one objection be fully funded. By fixing thefunding amount (instead of the number of objections), governments
could tailor the objections to minimize dispute resolution costs.
This would provide ability for governments to object without cost andeven collaborate on which governments will file objections, while
putting a ceiling on the maximum costs.
This leaves several options for governments: GAC Early Warning and
GAC Advice on New gTLDs (no fee); the loser pays model where
governments who win their objections pay no fees; limited number ofobjections paid by ICANN; and, in an option to be explored further, thepossibility that governments faced with high numbers of objectionableapplications in their region request extraordinary funding from ICANN
or some other source to be identified.
Detail and rationale are provided in the paper.

3.
3.1.1 The Board should continue implementing amonitoring and alerting system and ensurea) that ICANN can react predictably andquickly when there are indicators that new
additions and changes are straining the rootzone system, and1A

Root Zone Scaling
Root zone monitoring systems are currently in place. ICANN will workwith root zone operators to identify relevant reporting metrics andestablish a process to report such metrics to the GAC and the Internet
community.
Furthermore, a process will be implemented that enables thedelegation of TLDs to be slowed or stopped in the event there is astrain to the root zone system.
ICANN also commits to review the effects of the new gTLD program on
the operations of the root zone system, and defer the delegations inPage 7 of 42

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3.1.2 b) that the processes and possible resulting
restorative measures that flow from its
results are fully described in the Application
Guidebook before the start of the first
application round.
3.2
The Board commits to defer the launch of asecond round or batch of applications
unless an evaluation shows that there areindications from monitoring the rootsystem etc. that a first (limited) round did
not in any way jeopardize the security andstability of the root zone system.
3.3

The Board commits to make the second
round or batch of applications contingent
on a clean sheet from full technical andadministrative assessment of impact of thefirst round with recommendations whichshould go out to public comment for

Position

Notes
the second round until it is determined that the delegations in the firstround did not jeopardize root zone system security or stability.
Pleased with concurrence on this issue and taking the next step toexecute on its commitments, ICANN has drafted a companion paper tothis document describing root zone scaling efforts: monitoring rootzone stability and planning ICANN operations for increased delegation
rates and provision of services to larger numbers of registries. This plan
includes a hold on new delegations after the first round until stability is
tested and assured. Included as an annex to that paper is a draft
document: Root Server System Management Strategy. This document
is the first draft of the plan to monitor root zone performance.
See 3.1.1

See 3.1.1

See 3.1.1

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Item #GAC Scorecard Actionable Item
approval.

Position

Notes

3.4

The Board commits to avoid the possibility
that other activities will be impacted by thepossible diversion of resources toprocessing new gTLD applications.

1A

3.5

The Board should ensure that ICANN caneffectively address the specific needs ofapplicants from different, perhaps nonEnglish speaking cultures, and withdifferent legal environments.

1A

ICANN commits that the operation of the IANA functions and ICANN's
coordination of the root zone system will not be negatively affected.
The companion paper on Root Zone Scaling describes staffing plans toensure ongoing day-to-day operations at ICANN. These operations
include delegation, redelegation, root zone changes, contractual
compliance and registry liaison. Be advised that these calculations of
manpower are not yet part of the ICANN operational plan. ICANN willcontinue 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. We will ensure that planning is
included for handling new gTLDs.

3.6

The Board should monitor the pace andeffectiveness of ICANN’s management ofcontract negotiations for new gTLDs in a
potential situation of 200 to 300
simultaneous applications and evaluations.

1A

3.7

The Board is confident that all relevant
actors (IANA, root server operators, etc)
are sufficiently informed about what is
expected from them in terms of work
loadings and resources in order to fulfil
their respective roles, in particular the predelegation checking, approvals,
implementation of potentially 200 to 300

1A

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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #4.
4.1

GAC Scorecard Actionable Item
root zone changes a year and expected
post-delegation changes.

Amend the final Draft Applicant Guidebook
to incorporate the following:
Criteria to facilitate the weighing of
the potential costs and benefits tothe public in the evaluation andaward of new gTLDs.

4.2

A requirement that new gTLD applicants
provide information on the expected
benefits of the proposed gTLD, as well as
information and proposed operating terms
to eliminate or minimize costs toregistrants and consumers.

Position

Notes

Market and Economic Impacts
1A
The Board notes and appreciates the revised GAC proposal that theBoard should identify criteria to facilitate the weighing of the potential
costs and benefits to the public in the evaluation and award of newgTLDs as part of the new gTLD program review as specified in section
9.3 of the Affirmation of Commitments.

1A

The New gTLD Program will be reviewed, as specified in section 9.3 of
the Affirmation of Commitments. This will include consideration of the“extent to which the introduction or expansion of gTLDs has promoted
competition, consumer trust and consumer choice, as well as
effectiveness of: (a) the application and evaluation process, and (b)safeguards put in place to mitigate issues involved in the introduction
or expansion.”
The Guidebook will be amended, i.e., the applicant questions will beaugmented, to include questions requiring new gTLD applicants toprovide information on the expected benefits of the proposed gTLD, as
well as information and proposed operating terms to eliminate orminimize costs to registrants and consumers.
ICANN retained economists familiar with these issues to suggest whichquestions should be asked.
After some discussion and iteration, questions have been developed
and are provided in the annex to the explanatory memorandum on this
topic. The questions will be public facing, i.e., the answers will be
published. The answers will not be used to score or otherwise evaluate
the applications.
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Position

Notes
Two series or sets of questions are now included in the Guidebook,(see explanatory memorandum on this subject) headed by:1.
How do you expect that your proposed gTLD will benefit
registrants, Internet users, and others?

4.3

Due diligence or other operating
restrictions to ensure that Communitybased gTLDs will in fact serve their targetedcommunities and will not broaden theiroperations in a manner that makes it more
likely for the registries to impose costs on
existing domain owners in other TLDs.

5.
Amend the proposed new registryagreement to restrict cross-ownership
between registries and registrars, in thosecases where it can be determined that theregistry does have, or is likely to obtain,
market power.

2.
What operating rules will you adopt to eliminate or minimizesocial costs (e.g., time or financial resource costs, as well as various
types of consumer vulnerabilities)? What other steps will you take tominimize negative consequences/costs imposed upon consumers?
1A
ICANN will continue to work to ensure that post-delegation disputemechanisms adequately address this concern. The ICANN Board
resolved that the GNSO should be provided a briefing paper and should
examine this question (see, http://icann.org/en/minutes/resolutions10dec10-en.htm - 8). The GNSO was provided that paper, including a
proposed model for determining under which circumstances acommunity TLD registry operator may amend the registration
restriction in the registry agreement. The procedure is intended toallow changes to Community TLD restrictions, recognizing that changes
will be necessary to best meet community needs.
Registry – Registrar Separation2
As indicated in the original Board Notes: "ICANN sought to implement amarketplace model that would enhance competition, opportunities forinnovation and increase choice for consumers while preventing abusesin cases where the registry could wield market power. While lifting
restrictions on cross-ownership, ICANN reserves the right to referissues to appropriate competition authorities if there are apparent
abuses of market power. As previously resolved by the Board, registryagreements will include requirements and restrictions on any
inappropriate or abusive conduct arising out of registry-registrar crossPage 11 of 42

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Position

Notes
ownership, including without limitations provisions protecting against
misuse of data or violations of a registry code of conduct."
The GAC Comments from 12 April 2011 stated that "The Board
response is considered insufficient by the colleagues of some GAC
members who are responsible for Competition and anti-Trust issues.
They have requested that ICANN provide a more reasoned argument as
to why they have rejected the GAC's proposal and why the Board feelsthat ex-ante measures are less preferable to ex-post measures forminimising problems associated with anti-competitive behavior."
To answer: ICANN considered several options with respect to thevertical separation issue, including a blanket prohibition against crossownership by registries with market power. The problem with such an
ex ante prohibition is that it is overly restrictive; that is, a prohibition ofvertical integration based purely on market power is likely to deprive
consumers of the competitive benefits of cross-ownership. From a
consumer welfare perspective, a better approach is to allow generally
pro-competitive vertical integration while referring any potentiallysuspect arrangements to expert competition enforcement authorities,
who can then take action when their ex post expert evaluation
determines it is appropriate. This is particularly important because it isdifficult to accurately measure market power. Market definition andthe evaluation of market power are contentious issues in mostantitrust cases and often require complex economic and econometricanalysis. Market share can be used as a proxy, but antitrust authorities
around the world recognize that it is an imperfect proxy. Moreover,there are various ways to measure market share. Delegating this expert
analysis and post ante determination to competition authorities avoids
the problem of mistakenly ex ante deterring competitively beneficial
vertical integration while also ensuring that consumers are protected
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Item #

6.

GAC Scorecard Actionable Item

Position

Notes
when economic conditions merit competition policy intervention.

Protection of Rights Owners and consumer protection issue
1A
Overall - Based on the GAC Indicative Scorecard, discussions in the
6.1.1 1. Rights Protection: Trademark Clearing
Silicon Valley meeting, and follow-up with stakeholder groups, ICANNHouse (TC)has made several changes in Trademark Protections in an effort tomeet GAC Scorecard requests.
The TC should be permitted to accept all
types of intellectual property rights that are(a) All nationally or multi-nationally registered trademarks will berecognized under the national law of theaccepted into the Clearinghouse. The proposed date cut-off will not becountry or countries under which theutilized as a requirement for entry into the Clearinghouse.
registry is organized or has its principal
place of business. The only mandatory(b) All trademarks that have been validated via court proceeding, or
requirement for new registry operators will
have protection under statute or treaty in effect at the time the mark is
be to recognize national and supranational
submitted to the Clearinghouse for inclusion, will be accepted into thetrademark registrations issued before June
Clearinghouse.
26, 2008 and court-validated common law
trademarks.
(c) All marks that constitute intellectual property will now be accepted
into the Clearinghouse.
(d) Protections afforded to trademark registrations do not extend to
applications for registrations, marks within any opposition period orregistered marks that were the subject of successful invalidation,
cancellation or rectification proceedings.
For Trademark Claims services - Registries must recognize and honor all
marks in (a) and (b) above.
For Sunrise services – Registries must recognize and honor all marks in(a) and (b) above, provided that:(i)the holders of marks in (a) above have submitted proof ofPage 13 of 42

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Position

(ii)

Notes
use of the mark, which can be demonstrated by adeclaration and one specimen of current use; andthe holders of marks in (b) above have been validated bya court or protected by a statute or treaty on or before 26
June 2008.

The Clearinghouse must clearly note when entering the marks into the
database, which marks are registered trademarks and which marks
have been submitted with proof of use.
6.1.2 Sunrise services and IP claims should bothbe mandatory for registry operators
because they serve different functions withIP claims serving a useful notice function
beyond the introductory phase.

1A

The IRT and STI suggested an either/or approach. After discussion with
the GAC and some other community members, including those
representing trademark interests, the Board has determined to makeboth a limited Trademark Claims service, and Sunrise service,mandatory. All registries will be required to offer: (i) a Sunrise
program, and (ii) for at least 60 days from launch, a Trademark Claims
service using the Clearinghouse database. Thereafter, utilization ofTrademark Claims services will be at the registry’s discretion.
The adjusted program provides flexibility to holders of registeredtrademarks from all jurisdictions because it provides the trademark
holders with the option to receive notice through the Clearinghousewhen someone else is attempting to register a domain name using themark, rather than paying to obtain a sunrise registration itself.

6.1.3 IP claims services and sunrise services
should go beyond exact matches to include
exact match plus key terms associated withgoods or services identified by the mark)e.g. “Kodakonlineshop”) and typographicalvariations identified by the rights holder.

2

Sunrise services provide trademark holders with “first rights” in domainnames, and as such must be limited to identical matches. Moreover,unlike the URS, where a qualified Examiner will be capable of using
discretion to determine if a mark is identical or confusingly similar, nosuch discretion is afforded the Trademark Clearinghouse that will be
used for the mandatory 60-day Trademark Claims services. The
Clearinghouse should not and will not have discretion in what marks
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6.1.4 All trademark registrations of national andsupranational effect, regardless of whether
examined on substantive or relative
grounds, must be eligible to participate in
the pre-launch sunrise mechanisms.

Position

1A

Notes
are deemed anything but an identical match.
All nationally or multi-nationally (supranational) registered trademarks,
regardless of where registered and whether examined on substantive
or relative grounds, will be eligible to participate in either the 60-day
Trademark Claims service or Sunrise service, subject to the following:(a) For marks in the Clearinghouse to be recognized and honored in
Sunrise services, proof of current use of those mark must havebeen submitted to the Clearinghouse before the Sunrise service
begins.
(b) Use of the trademark may be demonstrated by providing adeclaration from the trademark holder and one specimen of
current use.

6.1.5 Protections afforded to trademark
registrations do not extend to applications
for registrations, marks within any
opposition period or registered marks thatwere the subject of successful invalidation,
cancellation or rectification proceedings.

1A

Agreed.

6.1.6 The IP claims service should notify thepotential domain name registrant of therights holder’s claim and also notify therights holder of the registrant’s application
for the domain name.

1A

Agreed. Note: the notification to the rights holder will be sent
promptly after the potential registrant has acknowledged theTrademark Claim and registers the name.

1A

The Trademark Clearinghouse will be an ongoing operation. The
Sunrise services operate as a pre-launch mechanism and Trademark

6.1.7.1 The TC should continue after the initiallaunch of each gTLD.

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Item #GAC Scorecard Actionable Item

Position

Notes
Claims services operate during the first 60 days that registration in theregistry is open for general registration.
Trademark holders will continue to be able to subscribe to ongoing"watch" services that will be able to utilize the Centralized Zone File
Access system in order to efficiently monitor registrations acrossmultiple gTLDs.
The Board originally marked this as a 2 and asked for clarification fromthe GAC. Based on discussions and comments, the Board has
determined that the parties were in agreement and thus this item
should have been marked 1A.

6.1.7.2 Rights holders, registries and registrars
should all contribute to the cost of the TC
because they all benefit from it.

6.2.1 2. Rights Protection: Uniform Rapid
Suspension (URS):

1B

Trademark holders will pay the Trademark Clearinghouse when therights holders register their marks, registries will pay the Trademark
Clearinghouse when administering their Trademark Claims and Sunrise
services. In turn registrars will pay the registries when using theirrights protection mechanisms, and registrants will pay the registrars
when using the registrars’ services to manage access to rights
protection mechanisms.

1A

Agreed.

1A

Agreed. Note: The word limit will not apply to respondents.

Significantly reduce the timescales. See
attached table for proposed changes.
6.2.2 The complaint should be simplified byreplacing the 5,000 word free text limit +unlimited attachments [para 1.2] with asimple pro forma standardised wording

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with the opportunity for not more than 500
words of freeform text and limit theattachments to copies of the offending
website.

Position

Notes

6.2.3 Decisions should be taken by a suitably
qualified ‘Examiner’ and not require panel
appointments.

1A

Examiners with demonstrably relevant legal background, such as intrademark law, will be appointed by the URS Provider. Only one
Examiner will be appointed per URS proceeding.

6.2.4 Where the complaint is based upon a valid
registration, the requirement that thejurisdiction of registration incorporate
substantive examination (paras 1.2f (i) and8.1a) should be removed.

1A

There is no requirement that any registration of a trademark must
include substantive evaluation.
Each trademark registration must be supported by evidence of use inorder to be the basis of a URS complaint.
Use of the trademark may be demonstrated by providing a declarationfrom the trademark holder along with one specimen of current usethat the Clearinghouse will validate upon receipt. Proof may also be
provided directly with the URS Complaint.
After review of the comments above, the Board has determined that
this item be changed to 1A.

6.2.5 If, as is expected in the majority of cases,
there is no response from the registrant,
the default should be in favour of thecomplainant and the website locked. The
examination of possible defences in default
cases according to para 8.4(2) would
otherwise give an unjustified privilege tothe non-cooperating defendant.

1A

An Examiner will review the merits of each Complaint to ensure thatthe standard is met, even in the event of a default. The Examiner will
not be required to imagine possible defenses.
Seeking clarification on this GAC advice, the Board posed the following
question to the GAC during the Brussels meeting “Is the GAC advisingthat, when no response is filed, there be no Examination of acomplaint? Or it is just advising that the reference to possible defenses
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Position

Notes
be omitted?” http://icann.org/en/topics/new-gtlds/questions-onscorecard-protection-of-rights-28feb11-en.pdf
In response, the GAC stated “The GAC is advising that the Guidebook
be amended by deleting 8.4 (2) because the Examiner should not be
placed in the position of having to anticipate all potential defenceswhere none was presented. However, the Examiner should stillevaluate the complaint on its merits. The complainant must still meet
his/her burden.” http://icann.org/en/topics/new-gtlds/gac-repliesrights-protection-questions-09mar11-en.pdf
In light of the GAC’s clarification, this point has been changed to 1A.

6.2.6 The standard of proof (para 8.2) should belowered from “clear and convincing
evidence” to a preponderance ofevidence”.

2

6.2.7 The “bad faith” requirement in paras 1.2f),
1.2g) and 8.1c) is not acceptable.
Complainants will in only rare cases prevail
in URS proceedings if the standards to be
fulfilled by registrants are lax.
Correspondingly, the factors listed in paras
5.7a) (“bona fide”) and b) “been commonly
known by the domain name”) can hardly
allow a domain name owner to prevail overthe holders of colliding trademarks.

2

The standard applied for the URS is based on the UDRP standard. Bothrequire a finding of bad faith. Given that the URS is meant only toapply to the most clear-cut cases of abuse, bad faith shall remain arequirement.

6.2.8 A ‘loser pays’ mechanism should be added.

1B

A straight loser pays mechanism was considered and discussed

The principle of the URS is that it should only apply to clear-cut cases ofabuse.
"Clear and convincing" is the burden of proof that was recommended
by the IRT and endorsed by the STI.

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Position

Notes
extensively by the IRT, but ultimately not recommended. Rationale
includes that the UDRP does not have a loser-pays mechanism and thefact that it is unlikely complainants would be able to effectively collectbased on clear-cut cases of abuse, since the names in question will
already have been suspended.
Notwithstanding, after participating in further consultations with the
GAC and representative of trademark interests, the Board has decided
to include a limited “loser pays” mechanism that was originallydeveloped by the IRT. Specifically, complaints involving twenty-six (26)or more domain names will be subject to a “Response Fee” which will
be refundable to the prevailing party. Under no circumstances shallthe Response Fee exceed the fee charged to the Complainant.
Given the inclusion of the Response Fee, this item is now 1B.

6.2.9 Registrants who have lost five or more URS
proceedings should be deemed to have
waived the opportunity to respond to
future URS complaints (this amendment
corresponds to the “two strikes” provision
which applies to rights holders).
6.2.10.1 However, there should be a clear rationale
for appeal by the complainant.

2

Due process principles require that every registrant should always havethe opportunity to present a defense.

1A

In response to the Board’s request for clarification, the GAC clarified
that either party seeking appeal should demonstrate a clear basis forobjecting to the decision. The Board agrees that an appellant must
identify the specific grounds on which the party is appealing, including
why the appellant claims the Examiner’s Determination was incorrect.
In light of the GAC’s clarification, this item is now 1A.

6.2.10.2 The time for filing an appeal in default

1B

The IRT originally suggested a URS without any appeal process. The STIPage 19 of 42

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Item #GAC Scorecard Actionable Itemcases must be reduced from 2 years to not
more than 6 months.

PositionNotes
suggested the inclusion of an appeal process (without any mention of alimitation on the ability to seek relief from a default). In response tocomments, the Applicant Guidebook was revised to include a two-year
limitation period on the opportunity to seek relief from a default.
After consideration of the GAC advice, the Board has determined thatthe time for a Registrant to seek relief from default should be limited
to six months, but the Respondent may seek an extension of up to afurther six months (for the total of up to one year) if the Respondent
requests the additional time before the initial six month period has
expired.

6.2.10.3 In addition, the examination of possible
defences in default cases according to para
8.4(2) means an unjustified privilege of the
non-cooperating defendant.
6.2.11 The URS filing fee should be US$200US$300 and minor administrative
deficiencies should not result in dismissal of
the URS complaint.

1A

See 6.2.5

1B

ICANN will negotiate with URS service providers for the best prices andservices. The fee range mentioned will be a target.

6.2.12 A successful complainant should have theright of first refusal for transfer of the
disputed domain name after thesuspension period so that the complainant
is not forced to pursue a UDRP proceeding
to secure a transfer.

2

The Board initially agreed to this item in the GAC scorecard. Uponconsideration of significant community feedback, however, the Board
has determined that the Guidebook position on the available remedy ina URS proceeding should stand. That is, domains shall be suspended
for the duration of the registration period and the successful
complainant will be provided an option to extend the registration
period of the name for an additional year after expiration of the initial
registration period (at commercial rates). The suspension remedy was
what the IRT recommended and the additional one-year extendedregistration was recommended by the STI. Moreover, as stated inPage 20 of 42

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Position

Notes
public comments on this issue, the URS was and is not meant toreplace or mirror the UDRP transfer remedy. Accordingly, this item has
been changed to a 2.

6.2.13 The URS should go beyond ‘exact’ matches
and should at least include exact +goods/other generic words e.g.
“Kodakonlineshop”.

1A

As recommended by the IRT, the URS applies to registrations that are
identical or confusingly similar to protected marks as described in the
Guidebook. As part of the public comment period, trademark owners
stated that they agree that this standard is appropriate here, and that
this is what was meant by this GAC comment.

6.3.1 3. Rights Protection: Post-delegation
Dispute Resolution Procedure (PDDRP)

2This was the standard developed by the IRT and will not be revised.

6.3.2 The second level registrations that form theunderlying basis of a successful PDDRP
complaint should be deleted.

2

The registrants are not parties to the proceedings, thus keeping a
registrant from using the domain name or stripping the name from theregistrant should be effected through an alternative proceeding, such
as URS or UDRP. Note that to the extent registrants have been shown
to be officers, directors, agents, employees, or entities under common
control with a registry operator, then deletion of registrations may be arecommended remedy.

6.3.3 The requirement of “substantive
examination” in para 9.2.1(i) should bedeleted.

1A

There is no requirement that any registration of a trademark must
include substantive evaluation.

The standard of proof be changed from“clear and convincing evidence” to a“preponderance of evidence”.

Each trademark registration must be supported by evidence of use in
the Clearinghouse in order to be the basis of a PDDRP complaint.
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Position

Notes
Use of the trademark may be demonstrated by providing a declarationfrom the trademark holder along with one specimen of current use.
Further discussion should take place relating to proof of use.

6.3.4 A new para 6.1 a) be added: “being
identical to the complainant’s mark in
relation to goods and services which are
identical to those for which thecomplainant’s mark is registered. This
would not apply if the registrant has abetter right to the mark. In particular theregistrant will in normal circumstances
have a better right if the mark has beenregistered prior to the registration of thecomplainant’s mark.”

2

Section 6.1 sets out the standards for filing a PDDRP against a Registry
Operator relating to the top-level domain. The GAC is requesting that,in some cases, a PDDRP complainant would prevail merely by having amark identical to the registration and “a better right” to that mark. The
existing standard requires that some harm must result to thetrademark holder as a result of the registration. The Board does notbelieve that being identical to the complainant’s mark is proper as asole basis for allowing a PDDRP complaint. If a competing trademark
holder wants to challenge the Registry Operator for simply operating
the TLD, it has the right to file a Protection of rights pre-delegation
objection and seek a variety of other court remedies.

6.3.5 Regarding the second level (para 6.2), theregistrant operator should be liable if
he/she acts in bad faith or is grossly
negligent in relation to the circumstances
listed in para 6.a)-d).

2

Changing the standard from requiring "affirmative conduct" to “grossnegligence” would effectively create a new policy imposing liability on
registries based on actions of registrants.

6.3.6 The requirement in para 7.2.3 lit.d) that thecomplainant has to notify the registry
operator at least 30 days prior to filing acomplaint is burdensome and should be
reduced to 10 days if not deleted entirely.

2

The current requirement is in place to provide the registry with areasonable amount of time to investigate and take appropriate action
if a trademark holder notifies the registry that there may be infringing
names in the registry.

6.3.7 Para 19.5 should be amended as follows:“In cases where the Expert Determination
decides that a registry operator is liable

1A

ICANN agrees that it will impose appropriate remedies that are "in line"with the determination. It should be noted however that ICANN is
ultimately responsible for determining the appropriate remedy.
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Item #GAC Scorecard Actionable Item
under the standards of the Trademark
PDDRP, ICANN will impose appropriate
remedies that are in line with the
Determination.

6.4.1 4. Consumer Protection

Position

1B

Amend the "Maintain an abuse point ofcontact" paragraph in the DAG to include
government agencies which address
consumer protection:

Notes

In its letter dated 12 April 2011, the GAC has provided suggestedchanges to the Registry Agreement as follows:A registry operator must respond in a timely manner to a request
concerning any name registered in the TLD from any government
agency that is conducting a lawful investigation or official proceedinginquiring into a violation of or failure to comply with any criminal orcivil statute or any regulation, rule, or order legally issued pursuant
thereto.
lCANN appreciates this input and has amended to the text to require
Registry Operators to take reasonable steps and respond to any reports(including from law enforcement and governmental consumer
protection agencies) of illegal conduct utilizing the Registry TLD.

6.4.2 A registry operator must assist law
enforcement, government agencies andagencies endorsed by governments with
their enquiries about abuse complaints
concerning all names registered in the TLD,
including taking timely action, as required,to resolve abuse issues.

1B

The purpose of this text amendment is to ensure that all reports ofabuse are appropriately considered within a reasonable time period.
See 6.4.1

6.4.3 Ensure that ICANN’s contract compliance

1A

In its letter dated 12 April 2011, the GAC respectfully requests ICANN,
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Item #GAC Scorecard Actionable Item
function is adequately resourced to build
confidence in ICANN’s ability to enforce
agreements between ICANN and registries
and registrars.

Position

Notes
in the upcoming weeks, to identify the amount of personnel it intends
to hire to support the compliance function and the timeline for hiring.
In addition the GAC would like to know how many staff ICANN intends
to have in place prior to the expected launch of new gTLDs.
ICANN has undertaken studies across various departments, including
contract compliance, to determine the impact to processes, people,
and systems resulting from the delegation of strings. An initial analysis
projects contract compliance staff to grow from its current level tospecified numbers indicated in an explanatory memo. These numbers
will continue to be refined as analysis continues.

6.4.4 Vetting of certain strings
gTLD strings which relate to any generally
regulated industry (e.g. .bank, .dentist,.law) should be subject to more intensive
vetting than other non-geographical gTLDs.

1B

Note, the delegation of new strings may not occur until approximately
one year after the launch of the program. However, ICANN willcontinue to update these plans as the number of delegations becomes
clearer and processes change and those plans will be shared with the
GAC and other community members when available.
In its letter dated 12 April 2011, the GAC has requested that ICANN
conduct more stringent vetting of all new gTLD applicants to ensurethat registries are not operated by entities/individuals who will use theplatform for criminal purposes or otherwise abuse the domain namesystem.
ICANN agrees with this recommendation. Although it is nearly
impossible to ensure no "bad actors" secure a new top-level domain
ICANN has implemented several measures to minimize this risk. Those
measures include:•

Expanding the scope of the background screening check to include
other crimes as suggested by the GAC. This also includes obtaining
input from selected law enforcement on the selection of aPage 24 of 42

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Item #7.
7.1

GAC Scorecard Actionable Item

Change the wording in the sample letter ofGovernment support in AG back to thewording in DAGv4 and keeping the newparagraph 7.13 of the new gTLD registryagreement with the changed wording from“may implement” to “will comply”. E.gchange the wording from “may implement”
back to “will comply” with a legally binding
decision in the relevant jurisdiction.

Position

Notes
background screening service provider – see 11.3.
•

Adding language to the Registry Agreement that requires Registry
Operators to take reasonable steps and respond to any reports(including from law enforcement and governmental consumer
protection agencies) of illegal conduct utilizing the Registry TLD.
Failing to comply with this provision could lead to termination of
the Registry Agreement.

•

Making public the names and titles of key officers, directors,
partners and controlling shareholders of each applicant forcomment.

•

Providing a GAC Early Warning process that allows members of the
GAC or any individual government through the GAC to provide a
notice to certain applicants.

Post-Delegation Disputes
1B
ICANN has previously indicated that it will modify the suggested
wording of the letter of support or non-objection, and make clear its
commitments to governments in additional text of the Applicant
Guidebook, and in its response the GAC has acknowledged andaccepted that modification.
The original Board Notes stated that "the registry agreement willcontinue to indicate that ICANN 'may implement' instead of 'will
comply' with such decisions for legal reasons. As discussed previouslywith the GAC, ICANN’s commitment to comply with legally binding
decisions is made to governments, not to registries, Therefore, it is notnecessarily in the interests of ICANN, or of governments, to place thatobligation in registry agreements, giving registry operators the ability,and perhaps duty, to force ICANN to implement decisions in every
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Position

Notescase. (ICANN has a mechanism to enforce its contracts with registry
operators.)"
In order to attempt to address the GAC's concerns and provide further
comfort to governments that ICANN will implement court orders,
ICANN proposes to modify section 7.13 of the registry agreement toread as follows: "ICANN will respect any order from a court ofcompetent jurisdiction, including any orders from any jurisdiction
where the consent or non-objection of the government was arequirement for the delegation of the TLD. Notwithstanding any otherprovision of this agreement, ICANN's implementation of any such order
will not be a breach of this Agreement."
In its response, the GAC position is that ICANN change the agreement
provision from a right of ICANN (ICANN may implement) into a duty
that ICANN will owe the registry (ICANN will implement). The GAC's
rationale asserts that this will give governments assurance thatgovernments will be able to "enforce the conditions given whenproviding a letter of support or non-objection." The GAC argues that if
ICANN does not give registry operators the power to force ICANN to
implement such court orders that this will discourage governmentsfrom granting the support that governments have asked ICANN torequire as a condition necessary for ICANN to delegate certain"geographic" TLD strings.
ICANN has previously suggested that governments could enforce any
conditions agreed to with the registry operator through other means,
either through an enforceable bilateral agreement between the
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Item #

7.2

GAC Scorecard Actionable Item

Position

In addition describe in the AG that ICANN
will comply with a legally binding decisionin the relevant jurisdiction where there has
been a dispute between the relevant
government or public authority and registry
operator.

1B

Notes
government and operator, or by insisting that the operator subject
itself to the government's jurisdiction either through consent or arequirement that the operator maintain a presence inside thejurisdiction.

The Guidebook language now states that, “Applicants should be awarethat ICANN has committed to governments that, in the event of adispute between a government (or public authority) and a registry
operator that submitted documentation of support from thatgovernment or public authority, ICANN will comply with a legallybinding order from a court in the jurisdiction of the government or
public authority that has given support to an application.”
The initial Board Notes stated that this required further discussion as it
may in some cases amount to a redelegation request. The notes also
stated that there could be multiple jurisdictions that have given theirsupport to one application (e.g., multiple "Springfield"s), thus, it may
not be appropriate to implement a particular action based on one suchdecision.
The GAC response suggests changing the wording to “final legallybinding decision”.
The GAC is essentially asking ICANN to expand the respect afforded tocourt orders to also include any "final legally binding decision", which
the GAC notes would include "an administrative decision." ICANN isconcerned that such a provision could have a very broad scope(including "decisions" from multiple overlapping or competing local
and national governmental agencies. (For example, agencies from thePage 27 of 42

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8.
8.1.1.1 1. Definition of geographic names
Implement a free of charge objection
mechanism would allow governments toprotect their interest
8.1.1.2 and to define names that are to beconsidered geographic names.

8.1.2 This implies that ICANN will exclude anapplied for string from entering the newgTLD process when the government
formally states that this string is considered
to be a name for which this country iscommonly known as.

8.1.3 Review the proposal in the DAG in order toensure that this potential [city name

Position

Notes
governments of the City of Los Angeles and the County of Los Angeles
might theoretically issue inconsistent administrative decisions
regarding the operation of a TLD registry operating in Los Angeles.)
ICANN is not equipped to sort out what constitutes a "final legallybinding decision" in every jurisdiction in the world, and will be on muchclearer ground working with orders from courts. Courts would
presumably be available to confirm any legally binding decisions, andas noted above ICANN has committed to respect such orders.

Use of geographic names
1B
As described in Issue 2 above, ICANN proposes procedures for GAC
Early Warning and GAC Advice that may be applied to geographic
names. In addition, the response to issue 2 also describes a process
where, for individual governments, ICANN will provide limited financial
support for objections.
2
The proposed GAC Early Warning and GAC Advice on New gTLDs
procedures are designed to address the GAC concern, i.e., so the GAC
can provide input any application for any reason, eliminating the needfor specific definitions. Therefore, the procedures will address
sensitive, community, geographic and sector (regulated industry) stringissues and encourage efforts to prevent formal objections.
1B
The Board appreciates the need to ensure national interests in thosecases where country names are not listed in the established list.

2

Language has been added to the Guidebook, augmenting the definitionof geographic names 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 bythat name by an intergovernmental or treaty organization.”
The Board notes the GAC comment that the post-delegation
mechanisms might not be effective in cases where the application has
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Item #GAC Scorecard Actionable Item
applicants avoiding government support
requirement by stating that use is for noncommunity purposes] does not arise.
Provide further explanations on statementsthat applicants are required to provide a
description/purpose for the TLD, and toadhere to the terms and condition ofsubmitting an application including
confirming that all statements andrepresentations contained in theapplication are true and accurate.

8.1.4 Governments should not be required to pay
a fee for raising objections to new gTLD
applications. Implement a free objection
mechanism would allow governments toprotect their interest.

Position

Notes
not been designated as a community-based TLD or a geographic TLD,
or where the government has some legal right to the name.
The GAC Early Warning and GAC Advice on New gTLDs processes
provide the best opportunities to address the situation. Applications
including city-names as TLD strings can be the subject of both those
processes.
It should be noted that the application requires applicants to describe
the purpose of the TLDs, this information will be used to inform
evaluation, objections, and importantly, the GAC as it considers public
policy implications of the application and string.

1B

Borrowing from the same issue as in section 2:
A companion paper considers several models that balance thegovernment interests and the need for ICANN to maintain a reasonable
extent of control over expenditures. It recommends that a predetermined amount of funding be designated by ICANN for eachindividual government, for the purpose of funding objection fees
where a government wished to file a formal objection. Eachgovernment would be allotted an equal amount, and could continue todraw on such funds up to the maximum at its discretion, with theguarantee that at least one objection be fully funded. By fixing thefunding amount (instead of the number of objections), governments
could tailor the objections to minimize dispute resolution costs.
This would provide ability for governments to object without cost andeven collaborate on which governments will file objections, while
putting a ceiling on the maximum costs.
Detail and rationale are provided in the paper.

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8.2.1 2. Further requirements regarding
geographic names
The GAC clarifies that it is a question ofnational sovereignty to decide which levelof government or which administration is
responsible for the filing of letters of
support or non-objection. There may be
countries that require that such
documentation has to be filed by thecentral government - also for regional
geoTLDs; in other countries the
responsibility for filing letters of support
may rest with sub-national level
administrations even if the name of thecapital is concerned. GAC requests someclarification on this in the next version of
the Applicants Guidebook.

Position
1A

Notes
This principle is agreed, and this can be clarified in the Guidebook.
ICANN invites governments to identify appropriate points of contact on
this issue.

8.2.2 According to the current DAG applications
will be suspended (pending resolution by
the applicants), if there is more than one
application for a string representing acertain geographic name, and theapplications have requisite government
approvals. The GAC understands such a
position for applications that have supportof different administrations or
governmental entities. In suchcircumstances it is not consideredappropriate for ICANN to determine themost relevant governmental entity; the1A

ICANN will continue to suspend processing of applications withinconsistent/conflicting support, but will allow multiple applicants all
endorsed by the same authority to go forward, when requested by thegovernment.
This area needs further discussion on the potential situations that
could lead to redelegation requests.

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Item #

9.
9.

GAC Scorecard Actionable Item
same applies, if one string represents
different geographic regions or cities. Somegovernments, however, may prefer not toselect amongst applicants and support
every application that fulfils certain
requirements. Such a policy may facilitate
decisions in some administrations andavoid time-consuming calls for tenders.
GAC encourages ICANN to process those
applications as other competing
applications that apply for the same string.

Seek legal advice in major jurisdiction
whether such a provision might cause legal
conflicts – in particular but not limited to
US and European competition laws. If
ICANN explains that it has alreadyexamined these legal questions carefully
and considering the results of these
examinations still adheres to that provision,
GAC will no longer insist on its position.
However, the GAC expects that ICANN willcontinue to adhere to the rule of law andfollow broad principles of natural justice.
For example, if ICANN deviates from its
agreed processes in coming to a decision,
the GAC expects that ICANN will provide anappropriate mechanism for any complaints
to be heard.

Position

Notes

Legal Recourse for Applications
1A
As discussed with the GAC, ICANN has examined these legal questions
carefully and considering the results of these examinations still adheresto this provision. ICANN will clarify 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 beheard.
In its response, the GAC stated that it "welcomes the Board’s
clarification that the legal implications of the clause have been
considered for various jurisdictions. The GAC appreciates the Board’s
notice that the Applicant Guidebook will be amended to clarify thatinternal accountability mechanisms will allow complaints to be heard."

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Item #10.
10.1

GAC Scorecard Actionable Item
Position
Notes
Providing opportunities for all stakeholders including those from developing countries
TBD
ICANN’s Board recognized the importance of an inclusive New gTLD
Main issues
Program and issued a Resolution forming a Joint Working Group (JAS
1. Cost Considerations
Set technical and other requirements,
WG) which is underway. ICANN would like to receive the report of the
JAS WG as soon as possible. JAS WG is requested to provide a possible
including cost considerations, at areasonable and proportionate level in orderdeadline for his work during the ICANN meeting in SFO allowing the
not to exclude stakeholders from
Board to act.
developing countries from participating in
It is noted that one of the challenges in developing support
the new gTLD process.
mechanisms for applicants is to ensure that such support is actually
received by those applicants with the most need, rather than being
used advantageously by other participants. This issue has also beentaken into account in the work of the JAS WG.
The minimum technical requirements for operating a registry are
expected to be consistent across applications.
The Board notes that the GAC recommends a 70% fees reduction fordeveloping country applicants, free for least developed countries andshares the concern to determine real needy applicants. The fees
reductions recommended by the GAC have been passed on to the JAS
WG. The Board is looking forward to receiving the Final Report andnotes that, given the cost recovery policy, sources of funds must be
identified.
The Board notes the GAC seeks further clarification about the certain
mechanisms for technical and logistical support. ICANN has budgeted asum of $300,000 to provide non-financial support to potential
applicants. The Board has resolved that the targets include outreachand education to encourage participation across all regions.

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Item #GAC Scorecard Actionable Item

Position

Notes
ICANN will publish a list of organizations that request assistance andorganizations that state an interest in assisting with additional program
development, for example pro-bono consulting advice, pro-bono inkind support, or financial assistance so that those needing assistanceand those willing to provide assistance can identify each other andwork together.
Some documents are already available in the 6 UN languages. The Final
Application Guidebook will be also in due course, and the web site will
be organize to find easily all the documents available in each language.
The Board notes GAC’s recommendation to extend thecommunications beyond the 6 UN languages and is taking into accountthe additional language needs in its communications strategy.

10.2.1 2. Language diversity
Key documents produced by ICANN must
be available in all UN languages within areasonable period in advance of the launchof the gTLD round.

1A

10.2.2 The GAC strongly recommends that thecommunications strategy for the new gTLD
round be developed with this issue of
inclusiveness as a key priority.

1A

The Board agrees with the GAC and staff is committed to a global
communications approach. The goal of that approach is ensure thatany person that would take steps to take advantage of or mitigate cost
due to the new gTLD program, is aware of the program.

3. Technical and logistics support

1B

ICANN has agreed to provide certain mechanisms for technical andlogistical support, such as assisting with matching needs to providers.
ICANN is also considering setting up regional help desks to provide
more responsive and relevant technical support to new gTLD applicantsin developing countries.

10.3

The Board agrees with the GAC and has directed staff to produce a
webpage where entities willing to assist applicants and applicantsseeking assistance can find each other. The webpage is expected by
end of June.
Other targets include outreach and education to encourage
participation across all regions.
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Item #
10.4
10.5

10.6

GAC Scorecard Actionable Item
4. Outreach – as per Joint AC/SO
recommendations
5. Joint AC/SO Working Group on support
for new gTLD applicants.
GAC urged ICANN to adopt
recommendations of the Joint AC/SO
Working Group.

Position
1A

Notes

TBD

This item from the GAC Scorecard appears to reflect the interim report(Milestone Report) of the JAS WG published 11 Nov 2010
http://www.icann.org/en/announcements/announcement-11nov10en.htm. ICANN is awaiting their final report that is targeted to be
published by end of May.

6. Applications from Governments or
National authorities (especially municipal
councils and provincial authorities) –special consideration for applications fromdeveloping countries
The GAC commented that the new gTLD
process should meet the global public
interest consistent with the Affirmation ofCommitments. It therefore urged ICANN to
set technical and other requirements,
including cost considerations, at areasonable and proportionate level in order
not to exclude developing country
stakeholders from participating in the new
gTLD-process. Key documents should beavailable in all UN languages. The GAC
urges that the communications andoutreach strategy for the new gTLD roundbe developed with this issue of
inclusiveness as a key priority.

TBD

This set of issues overlaps with and is addressed in the other items inthis section. The JAS WG interim report (Milestone Report) has
addressed the fees. The Board is looking forward to receiving the Final
Report with a more detailed proposal.
The Board notes the GAC is recommending a different cost structure
given to Governments and National Authorities from developing andleast developed countries. This recommendation has been passed to
the JAS WG and the Board is looking forward to receiving the Final
Report. The Board notes that, given the cost recovery policy, sources offunds must be identified.

ii. Nairobi Communiqué
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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable ItemThe GAC believed that instead of the thenproposal of single-fee requirement, a costbased structure of fees appropriate toeach category of TLD would:a) prevent cross subsidization andb) better reflect the project scale,This would improve logistical requirements
and financial position of local communityand developing country stakeholders whoshould not be disenfranchised from the
new TLD round.
Further the board believes that :a. New gTLD process is developed on a cost
recovery model.
b. Experience gained from first round will
inform decisions on fee levels, and thescope for discounts and subsidies insubsequent rounds.
c. Non-financial means of support are being
made available to deserving cases.
i. Proposed that the following beentertained to achieve cost reduction:• Waiving the cost of Program
Development ($26k).
• Waiving the Risk/Contingency cost($60k).
• Lowering the application cost($100k)• Waiving the Registry fixed fees($25k per calendar year), andcharge the Registry- Level

Position

Notes

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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Item
Transaction Fee only ($0.25 per
domain name registration or
renewal).
ii. Proposed that the reduced cost be paid
incrementally, which will give theapplicants/communities from developing
countries more time to raise money, andinvestors will be more encouraged to fundan application that passes the initial
evaluation.
iii. Believe that communities fromdeveloping countries apply for new gTLDs
according to an appropriate business model
taking into consideration the realities of
their regions. ICANN’s commitment
towards supporting gTLD applicants incommunities from developing countries
will be a milestone to the development of
the overall Internet community in Africa
and other developing regions.

Position

Notes

10.7

A. Other Developing world Community
comments
Rolling out new gTLD and IDNs was done ina hurry and without basis on a carefulfeasibility study on the impact that thisrollout will have on developing countries.
For some representatives, this is a massiveroll out of gTLDs and IDNs that will findmany developing countries unprepared andunable to absorb it. There is the fear that

1B

ICANN is investigating and intends to provide mechanisms for assistingwith matching needs to providers, and will continue to investigate
mechanisms for providing additional forms of support (such asproviding documents in additional languages beyond the official U.N.
languages).
As described above, the Board has directed staff to produce a webpage
where entities willing to assist applicants and applicants seeking
assistance can find each other. The webpage is expected by end of
June.
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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Item
there might be serious consequence interms of economic impact to developing
countries.

11.

Law enforcement due diligence recommendations [to amend the Registrar Accreditation Agreement as noted in the Brussels
Communiqué] (Note: ICANN will provide an update on the status of the RAA-related recommendations from law enforcement)
Include other criminal convictions as
1A
In its letter dated 12 April 2011 the GAC is confirming responses held in
criteria for disqualification, such as
the Brussels and San Francisco meetings to add a broad number ofInternet-related crimes (felony orconvictions to the background screening process. The inclusion of
misdemeanor) or drugs.
certain crimes without a standard definition across international, andin some cases, national jurisdictions remains a concern, for thefollowing reasons:

11.1

Position

Notes

•
•

It will lead to a background screening process that will not be
consistent and fair for all applicants andIt puts ICANN in a position of trying to implement a set ofstandards that are not agreed to among various nations,
including members of the GAC

However, ICANN has continued to investigate this concern and has,with the help of subject matter experts, agreed to expand the scope ofthe background screening to cover some of the concerns raised by the
GAC. Accordingly, the following will now be included in the
background screening process:••Has ever been convicted of the illegal sale, manufacture, or
distribution of pharmaceutical drugs, or been convicted or
successfully extradited for any offense described in Article 3 of theUnited Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances of 1988[1];Has ever been convicted or successfully extradited for any offense

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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Item

Position•

Notes
described in the United Nations Convention against Transnational
Organized Crime (all Protocols)[2]; andHas ever been convicted of any crime involving the use ofcomputers, telephony systems, telecommunications, or theInternet to facilitate the commission of crimes.

[1] http://www.unodc.org/unodc/en/treaties/illicit-trafficking.html[2] http://www.unodc.org/unodc/en/treaties/CTOC/index.html
It is recognized that not all countries have signed on to the UN
conventions reference above. These conventions are solely being used
for identifying a list of crimes for which background checks will be
performed. It is not intended that an applicant have been convictedpursuant to the UN convention but merely convicted of a crime listed
under these conventions.

11.2.1 Assign higher weight to applicants offering
the highest levels of security to minimize
the potential for malicious activity,
particularly for those strings that present ahigher risk of serving as venues for criminal,
fraudulent or illegal conduct (e.g. such as
those related to children, health-care,financial services, etc.)

1B

Other crimes suggested by the GAC have not been included due to thelack of any consistent internationally accepted definitions for suchcrimes or based on significant public comment against such an
inclusion (i.e., terrorism) when last placed in the Guidebook.
In its letter dated 12 April 2011, the GAC has reiterated its request to
provide a greater weight to those applicants who offer more security.
The GAC also requests that ICANN publicly disclose whether theapplicant has offered augmented security levels. ICANN has carefully
considered this advice and has amended the following in the AGB:•

Security –the application questionnaire has been amended toreflect two sections for Security;
1. A section, open to comment, that describes the:a. Augmented security levels or capabilities commensuratewith the nature of the applied-for string including thePage 38 of 42

Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Item

Position

Notes
identification of international or industry-relevant
standards andb. The commitments made to registrants concerning
security levels.
2. A section that will continue to remain confidential which
requires that applicants provide the security policy that aligns
with the first section of this question.
•

Abuse Prevention and Mitigation – the application questionnaire
has been amended to provide an extra point to applicants where
they include measures that promote Whois accuracy and include:
1. A description of policies and procedures that define malicious
or abusive behavior, capture metrics, and establish Service
Level Agreements for resolution or
2. Adequate controls to ensure proper access to domain functions.

The additional information being provided by the applicant in thesequestions in conjunction with application comments received from theInternet community will enable careful consideration by the evaluation
panels of the measures to be implemented by applicants.

11.3

Add domestic screening services, local to

1A

It should be noted that results from the evaluation process will be in
the form of “Pass” or “Fail” for each application. The scoring
methodology requires that an application receive at least a minimum
passing score for each question as well as an “exceeds” score for atleast two questions to pass the technical/operational evaluation.
Therefore, the scoring methodology (while not assigning a “higher
weight” to applicants offering the highest levels of security), does
create a limited incentive to meet the higher standard.
In its letter dated 12 April 2011, the GAC has requested more
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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Itemthe applicant, to the international
screening services.

Position

Notes
information on the type of background screening services to be usedby ICANN and has indicated services used by other organizations suchas ARIN which uses sources that essentially conducts searches ofpublically available data such as KnowX, Dun & Bradstreet, Westlaw,
and relevant federal and state websites for corporate and financial
information.
It has always been ICANN’s intent to use a background screening
service that conducts searches of publically available data such as
those used by the services mentioned in the GAC example.
ICANN is in the process of drafting a Request for Proposal (RFP) fromInternational Background Screening providers to provide such a
service. The RFP, currently being circulated to a select number of law
enforcement and security professionals for input, will be posted in thenext few weeks.

11.4
11.5

Add criminal background checks to theInitial Evaluation
Amend the statement that the results ofdue diligence efforts will not be posted to a
positive commitment to make such results

1A
1A

The RFP calls for providers to, at a minimum, have significant
experience conducting international record checks of criminal and civil
courts, law enforcement agencies and regulatory authorities in all
countries where such records are available; have significant experience
performing and possess a thorough knowledge of global, regional, andcountry specific background screening processes; provide backgroundscreening services in an expedited, orderly, consistent, and costeffective manner; and can efficiently scale to meet the demands of an
unknown number of applications.
See response to 11.1.
In its letter dated 12 April 2011 the GAC requests that at a minimum,
the identification of the individuals named in the application, e.g.,
officers, controlling shareholders, should be released for comment.
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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
Item #GAC Scorecard Actionable Item
publicly available

Position

Notes
ICANN agrees with this recommendation and will make available thenames and titles of the key officers, directors, partners and controllingshareholders for comment.
The GAC also reiterates its endorsement of Law Enforcement Agency
recommendations for due diligence and amendments to the Registrar
Accreditation Agreement and requests that the Board provide inwriting its indication of how it intends to implements theserecommendations prior to the Singapore meeting. ICANN and theBoard appreciate this reminder, however, this is beyond the scope of
this scorecard and will be separately addressed by the Board in due
course.

11.6

12.
12.1

Maintain requirements that WHOIS data be
accurate and publicly available.

1A

From the Affirmation of Commitments: "ICANN additionally commits toenforcing its existing policy relating to WHOIS, subject to applicablelaws. Such existing policy requires that ICANN implement measures tomaintain timely, unrestricted and public access to accurate andcomplete WHOIS information, including registrant, technical, billing,
and administrative contact information."
The need for an early warning to applicants whether a proposed string would be considered controversial or to raise
sensitivities (including geographical names)
Reconsider its objection to an “early
1B
Please see the Board’s notes above with respect to the GAC’s advice on
warning” opportunity for governments to“Procedures for the review of sensitive strings.”
review potential new gTLD strings and toadvise applicants whether their proposed
strings would be considered controversial
or to raise national sensitivities.

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Revised ICANN Notes on: the GAC New gTLDs Scorecard, and GAC Comments to Board Response
The score as estimated by ICANN (without GAC agreement or consultation):
1A

1B

2

TBD

Post Brussels Consultation

25

28

23

4

Post Silicon Valley Consultation

42

18

17

3

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