For that matter, I don't have strong feelings for or against closed generics either, another new gTLD issue that has recently been discussed even though it is not mentioned in the rules new gTLD applicants had to rely on.
What I do care about is predictability of process.
Yet, as Beijing showed, the ICANN community has an uncanny ability to throw last-minute wrenches at its own Great Matter, as Cardinal Wolsey called Henry VIII's plan to divorce Catherine of Aragon.
And we should all remember that the new gTLD program is our own master plan. It is born out of the community's bottom-up process for developing policy. We all own it. We all sanctioned it when it came up through our community and was given a green light by the people we elected to represent us on the GNSO Council, the body responsible for making gTLD policy. So we should now all feel responsible for seeing it to fruition.
Impressed by governments
So can this issue of plural TLDs that came out of nowhere during the ICANN Beijing meeting week cause yet more delays to the Great Matter that is the new gTLD program?
First of all, I was surprised to see it mentioned in the GAC Communiqué which provides the ICANN Board with Advice on the new gTLD program as required by the program's Bible, the Applicant Guidebook. The GAC said it believes: "that singular and plural versions of the string as a TLD could lead to potential consumer confusion. Therefore the GAC advises the ICANN Board to (…) Reconsider its decision to allow singular and plural versions of the same strings."
For governments to react so quickly shows that they now have the pulse of what goes on outside their own circle like never before. I digress here, but I think this is an extremely important development we should all take great pride in. The government representatives that attend ICANN meetings are knowledgeable and engaged in the community they are part of in a way that is probably unique in the world of governance. The rest of us may not always agree with their decisions or opinions, but we cannot disagree with their level of commitment. To the point that individual GAC members coming straight out of a gruelling 8 days of meetings will not hesitate to stand up in the public forum and give voice to their own personal opinions only a few minutes after the GAC Beijing Communiqué was published. I am impressed.
But what about that advice? Will plural TLDs give rise to user confusion and should this debate even be opened at this time? And make no mistake, having GAC Advice on the matter is not the same as discussing it over coffee. Section 18.104.22.168 of the Applicant Guidebook is very clear: "If the Board receives GAC Advice on New gTLDs stating that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved. If the Board does not act in accordance with this type of advice, it must provide rationale for doing so".
Stay the course
So will this advice from governments cause the new gTLD program to be delayed whilst its rules are rewritten for the umpteenth time? Not necessarily. ICANN is definitely learning fast these days. With a new business-oriented CEO to provide guidance on the importance of managing a project of this magnitude with some measure of predictability, the Board itself is showing increasing confidence to stay the course. ICANN Chairman Steve Crocker has said that as far as the ICANN Board is concerned, although the word of governments carries weight, it is not the be all and end all. "We have a carefully constructed multi-stakeholder process," Crocker explained in a video interview recorded at the end of the Beijing meeting. "We want very much to listen to governments, and we also want to make sure there’s a balance."
That is reassuring. The Applicant Guidebook makes no mention of plural TLDs. Not one. These are the rules by which applicants have constructed their submissions for a TLD to ICANN. It is on the basis of this guidebook that they have defined their business models and done what ICANN itself was asking them to do: build a viable business and operational plan to operate a TLD.
The rules simply cannot be changed every couple of months. In what world is it OK to ask applicants to follow a process and then, once that process is closed, revisit it time and again and force change on those applicants? Would governments tolerate this in their own business dealings? Would those community members who call for rules revisions on a despairingly regular basis put up with it in their everyday commercial ventures?
So now governments have called upon the ICANN Board to act. But the Board always intended to keep TLD evaluations independent from those with interests in the outcomes. That is why evaluation panels were constituted, instead of getting ICANN Staff to evaluate applicants directly. And that is why we should not attempt to reopen and rearrange decisions of an expert panel basing its analysis on the program's only rulebook, the Applicant Guidebook as it stood when the new gTLD application window closed. After all, parties that disagree with panel outcomes have the objection process to address their concerns.
Singularity or plurality?
And anyway, is there really a case for prohibiting singular and plural TLDs? After all, singulars and plurals have always existed together at the second level and no-one ever took exception to that. Why is the fact that the domains car.com and cars.com are not owned and operated by the same entity less confusing to users than the equivalent singular/plural pair as a TLD? Wouldn't trying to limit the use of singular and plural TLDs amount to attempted content control and free speech limitations?
Isn't this call to limit singular and plural use just a very English-language centric view of the new gTLD world? Is it true that adding or taking away the letter "S" at the end of a string means going from a singular to a plural form in every language, for every alphabet, for every culture? And if not, then how can a level playing field be guaranteed for applicants and users alike if new rules are introduce that prohibit singular/plural use in languages and alphabets that the mostly English-speaking ICANN community understands, but the wider world is not suited to?
Can it really be argued that plurals are confusing, but phonetically similar strings aren’t? Aren't we over-reaching if we try to convince anyone that .hotel, .hoteles, and .hoteis belong in the same contention set? And if that's true, why isn't it true for their second-level counterparts, like hotel.info, hoteles.info and hoteis.info?
As I've stated, I have no real preconceived opinion on the matter. So to try and form one, I am more than happy to listen to the people that have spent months, sometimes years, coming up with realistic ideas for new gTLDs. The applicants themselves.
Uniregistry's Frank Shilling thinks that "the GAC (while well-intentioned) has made an extraordinarily short-sighted mistake. For the entire new GTLD exercise to thrive in the very long run, the collective right-of-the-dot namespace simply must allow for the peaceful coexistence of singulars and plurals. There are words with dual meaning that will be affected, this will significantly and unnecessarily hem in future spectrum. Consumers expect singulars and plurals to peacefully coexist. If we want to move to a naming spectrum with tens of thousands of new G’s in the future – a namespace which is easy, intuitive and useful for people to navigate, there is just no long term good that can come from setting such a poor precedent today."
Donuts, another new gTLD applicant, argues that the Applicant Guidebook sets an appropriately high threshold for string confusion as it is drafted now. Section 22112 of the Guidebook defines a standard for string confusion as being (text highlighted by me) "where a string so nearly resembles another visually that it is likely to deceive or cause confusion. For the likelihood of confusion to exist, it must be probable, not merely possible that confusion will arise in the mind of the average, reasonable Internet user. Mere association, in the sense that the string brings another string to mind, is insufficient to find a likelihood of confusion."
Donuts suggest that string similarity exists in today's namespace without leading to user confusion. ".BIZ and .BZ, or .COM and .CO or .CM, for example," says Donuts. "At first glance, association of these strings might suggest similarity, but reporting or evidence that they are visually or meaningfully similar clearly does not exist, and the standard of confusion probability is not met. By these examples, it is clearly difficult to confuse the average, reasonable Internet user. Broader Internet usage, growth in name space, and specificity in identity and expression are the foundation of the new gTLD program, and are suitable priorities for the community. In the interest of consumer choice and competition, multiple strings and the variety and opportunity they present to users should prevail over all but the near certainty of actual confusion."
Obviously, these quotes from applicants will have critics dismissing them just because they are from applicants. I can hear now saying "well they would say that, they want new gTLDs to come out asap." Right! And what's wrong with that? Why is it out of place for the people we, the community, have drawn into this through the policy development we approved, to want to get to the end point in a stable and predictable manner after they have invested so much time, effort and resources into this?
A professional ICANN is a strong ICANN
As usual with these calls for last-minute rule changes, we see the recurring argument that the rest of the world is watching ICANN and waiting for it to trip up and mess this up. And as usual, if we listen to those making this argument, the "this" is such a crucial issue that if it is ignored, the world as we know it may very well end. Really? Aren't ICANN critics more likely to be impressed by the organisation displaying an ability to properly project manage and get to the finish line? After having started a process which has brought in over $350 million in application fees, introduced the ICANN ecosystem to global entities, major companies and international organisations who are used to seeing rules being followed, after having shone the outside world's spotlight on itself like never before, wouldn't that be a real sign that ICANN deserves to be overseeing the Internet's namespace?
At this stage, with only a few weeks to go until ICANN declares itself in a position to approve the first TLD delegations, I contend that the real danger to the organisation is lack of predictability in the process being imposed by artificial limitations to the program's scope and rules.
Written by Stéphane Van Gelder (Chairman and Managing Director of Stéphane Van Gelder Consulting Ltd.)