ICANN 'Oscars', auctions and settlements: why negotiate if you're rich enough not to?

What's happening in the wonderful world of ICANN these days? The IPKat and Merpel are happy to leave the answer to this far from rhetorical question in the capable hands of  Olivia Gregory, a trade mark assistant at Appleyard Lees, no doubt with a little interference help from former guest Kat Robert Cumming.  This is what she tells us:

ICANN Presents ... 

Not gTLDs, surely?

The Oscars ceremony might not long be over, but here in the IP world ICANN, the non-profit organisation responsible for the administration of the internet, has received over 1,900 nominations for the long-awaited "gTLD awards". Of the 230 which are contested, 750 applicants have put on their glitziest dresses in the hope of convincing ICANN that they deserve the chance to run their own top-level domain. Not everyone can be a winner. Tears, of sorrow and joy, are inevitable.

Where there are several candidates for the same gTLD, ICANN places the candidates in a ‘contention set’. This procedure can be found in the gTLD Applicant Guidebook. A contention resolution process is outlined, in which preferential treatment is given to applications with community support. However, the candidates are largely “encouraged to reach a settlement or agreement among themselves that resolves the contention” (p 190 of the Guidebook). This vision is idyllic but, in the words of the European Commission, it makes an “artificial assumption that parties are eager to negotiate”. With perfect plutocratic pandering, when parties can’t or won’t negotiate, the last resort is to go to auction.

Cue the controversy

There are a couple of big problems here, helpfully pointed out to ICANN by the European Commission.

No cash, let's bash ...

First, this system is heavily weighted in favour of the commercial blockbusters who have the deepest pockets. While ICANN keeps making aspirational statements about encouraging resolution between parties and promoting diversity and innovation, the systems which have been developed just don’t deliver these visions. If you have the cash, there is no incentive to negotiate and nothing in place to make you do so.

The second problem is the auction proceeds. In the recently published draft ICANN Auction Rules, a proper breakdown of how auction proceeds are going to be spent is notably absent. There is a small blurb in the gTLD Applicant Guidebook (pg 203) on distribution of funds, but there are no clear plans on how potentially huge sums will be distributed [Merpel has some bright ideas, but these have already sadly fortunately been vetoed].

This scepticism is shared by Esther Dyson, the founding chairman of ICANN who thinks the new gTLDs are a “waste of resources” and create nothing; they just divide the existing space into smaller sections and exploit brandowners’ fear of missing out.  They might “create jobs, but offer little extra value”.

We still don't know if ICANN will take the European Commission's comments on board [even though "creating jobs but offering little extra value" is rumoured to be an expertise with which the latter organisation is reputedly familiar]. The lethargic pace of developments so far indicates that they may not. While most would be more than happy to watch Hollywood’s elite fight it out for Best Actor (this guest blogger's money would still be on Matthew McConaughey), it hardly seems appropriate. Nor is it here.

These are important gTLDs up for grabs -– SHOP, HOME, BOOK and SITE could all potentially go to auction and there should be an appropriate, fair system in place to make sure it’s the best candidate who wins. As with many awards ceremonies, the selection process leaves people scratching their heads. In this case, deep pockets will prove crucial. 

Thanks, Olivia.  But what do our readers (many of whom are involved in the process as winners or losers) think?