Rather than being considered for implementation at the .com and .net registries through the front door of UDRP reform, Uniform Rapid Suspension (URS) could arrive at these registries in advance of that reform through the backdoor of ending registry-registrar separation.
That’s the major import of a resolution adopted by ICANN’s Board on October 18th in Toronto, reading, “Resolved (2012.10.18.01), the Proposed Revised Process for Handling Request for Removal of Cross-Ownership Restrictions of Existing gTLDs, as posted on 16 May 2012, is approved as revised.” (www.icann.org/en/groups/board/documents/resolutions-18oct12-en.htm#1.a)
The revised May 16th document outlining the process for handling requests for cross-ownership can be found at www.icann.org/en/news/public-comment/revised-cross-ownership-restrictions-16may12-en.htm. An incumbent gTLD registry operator such as VeriSign that wishes to have its cross-ownership of registrar limitation lifted would have to submit a written request to ICANN that either agrees to transition to the new registry agreement required for all operators of new gTLDs, or to amend its current registry agreement more narrowly with the addition of several required provisions to ensure fair competition and require adherence to the new gTLD Registry Code of Conduct. One of these required amendments states that “Registry Operator shall not act as a registrar with respect to the TLD” although some permissible exceptions may provide substantial loopholes.
ICANN would also alert appropriate national competition authorities of the request to ease the cross-ownership restrictions and solicit their input where it determines that lifting the affiliation and control restrictions might raise significant competition issues.
So, if VeriSign determined that it wished to get out from under the current cross-ownership restrictions – notwithstanding the fact that it could not act, at least directly, as registrar for .com, .net, or domains at other registries it controls – it would submit an application to ICANN. It could choose to either accept the new gTLD registry agreement – which would subject its incumbent registries to the URS as well as the final version of the Trademark Clearinghouse (TMC) as both are required rights protection mechanisms (RPMs) at new gTLDs — or it could opt for the narrower amendments.
Given the dominant position of .com and .net (about half of all current domain registrations), ICANN would almost certainly alert U.S. and EU competition authorities, at which point the request would be made public. Given the significant proportion of UDRP filings alleging cybersquatting at .com and .net we would expect brand owners to push loud and hard for ICANN to require VeriSign to comply with the new registry agreement even if their application requested only the narrower amendments – and that would bring along both the TMC and the URS.
Of course, we don’t know if VeriSign has any interest in affiliating with or controlling a registrar, much less when it might submit such a request. But they are now free to do so at any time, while consideration of UDRP reform will not be initiated under current ICANN policy until 18 months after the first new gTLD launches. The first new gTLD launch could now occur as early as the third quarter of 2013 under ICANN’s moist recently revised schedule, which would mean UDRP reform starting up and considering the performance of the RPMs at the new gTLDs in early 2015.
What we do know is that the final form and proper implementation of the URS takes on even more importance in the context of this recently adopted Resolution – and that is why ICA is working overtime to assure that URS remains a narrow supplement to the UDRP that preserves essential registrant due process rights.