The response includes the comment that -
Regrettably, our preliminary review of the Guidebook confirms our previous observation that ICANN’s determinations rely principally on an institutionalized framework of committees and processes stated to cover the views of broader communities, but appear synchronized with registration purposes. Merely by way of illustration, the ICANN Summary and Analysis of public comments on DAG4 states that “[s]ome think they [RPMS] are sufficient, some think they are not…”; whereas a review of comments shows 6 comments supporting trademark RPM sufficiency, but over 30 comments (including those of major representative bodies) indicating the opposite.
Such substitution of process for substantive dialogue can hardly be reconciled with the Affirmation of Commitments calling for ICANN “to provide a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied.” More seriously, as explained further below, it does little for the sustainability of the resulting decisions, which in fact in some instances represent setbacks in policy choices and operational feasibility.
As another example of the drive toward conclusion without more meaningful dialogue, the ICANN Summary and Analysis of public comments on DAG4 states that the need for defensive registrations will be reduced by the availability of RPMs – ignoring the reality that those RPMs themselves of course represent a considerable measure of defensive registration or similar enforcement burden.
Whether expressed through ICANN processes or otherwise, we believe that ICANN’s policies should reflect the considered and reasoned input made by representative bodies with public responsibilities and substantive expertise.
The current effort to design appropriate RPMs for an unprecedented expansion of the DNS presents a unique opportunity to enhance the integrity of the space. Such an effort cannot avoid existing international legal norms, including in the area of trademark law, which serves to promote orderly competition without consumer confusion and deception. ICANN’s Board would be aware of the fact that the use or abuse of trademarks contributes a substantial part of the financial foundation of the existing (and likely future) registration system.
The June 2010 ICANN-sponsored Economic Analysis advised among other recommendations, “to continue ICANN’s practice of introducing new gTLDs in discrete, limited rounds.” By contrast, ICANN seeks to facilitate a program which foresees an unprecedented 200 to 300 (and up to 1,000) TLDs in a first round. Whether driven by legal concerns, business interests, or technical capacity, again, the apparent discrepancy between advice and action calls for adequate explanation.
