The Ongoing Obligations of Operating a .BRAND
November 18, 2014
Back in 2011, if you asked most major brands what a gTLD, the RySG, GAC, or even ICANN was, most would not have been able to make much sense of the acronyms.
Now, those who are in the process of launching their own .BRAND and/or .GENERIC gTLD have gotten up to speed on that alphabet soup. However, staying up to speed on ICANN policies and fulfilling the obligations of the Registry Agreement will be ongoing commitments for all new Registry Operators.
Before New gTLDs & .BRANDs
Until a short time ago, the Internet Corporation for Assigned Names and Numbers (ICANN) was an organization that was not on most brands’ radar.
Brands may have heard about ICANN when learning that they had to worry about trademark protection in a new top-level domain (TLD) like .XXX. With the approval of the New gTLD Program and the opening of the application period in January 2012, though, that all changed.
Now, with their own .BRAND application(s), many brands quickly became immersed (at times to their dismay) in the world of ICANN and domain names.
The Application Process
Brands especially found themselves having to climb a steep learning curve to quickly handle the demands of ICANN during the application process, including:
- Addressing the “one size fits all” requirements in the Applicant Guidebook
- Providing personal information on Officer and Board members and submitting these individuals to background checks by ICANN
- Meeting financial requirements not geared towards strategic corporations such as providing financial statements and acquiring unconditional Letters of Credit
- Completing these tasks within three months’ time
Some brands may have sighed in relief after their applications were in, thinking that all the work was behind them.
However, brands are now recognizing that they cannot just forget about ICANN once their .BRAND (or .GENERIC) launches.
Ensuring Compliance with the Registry Agreement
Following the application period, brands understood that some input and work would be needed in order to develop and launch a .BRAND or .GENERIC TLD. However, the nuanced obligations of a Registry Operator and the direct and ongoing impact the Registry Agreement and ICANN policies would have on these same brands was never as well understood.
While it would be impossible to catalog every way that ICANN policies, developments, and activities of supporting organizations and advisory committees directly or indirectly influence and affect Registry Operators and their contractual obligations, below are a few key areas of the Registry Agreement that are currently affecting brands (and really, all Registry Operators).
- Altering the Registry Agreement: Article 7.7
While each applicant executes its own Registry Agreement for each gTLD, Article 7.7 of the Registry Agreement permits the ICANN CEO or the Chair of the Registries Stakeholder Group (RySG) to initiate a process to amend the Registry Agreement once per year. While this process is time consuming, involves negotiations, a public comment period, and an approval by both parties (the RySG and the ICANN Board), once approved, the amendment to the Registry Agreement will become effective for all Registry Operators 60 days after ICANN provides notice.
All Registry Operators are given the opportunity to participate and comment on the proposed amendments, as well as vote on the Proposed Revisions. However, .BRANDs should be aware of these provisions and follow relevant developments closely, since all registries will be affected by these modifications to the Registry Agreement – whether or not they choose to participate in the ICANN process.
- How Will the Public Interest Commitments be Interpreted: Specification 11
In July 2013, ICANN published an updated version of the Registry Agreement, which included Specification 11, the Public Interest Commitments in response to the Governmental Advisory Committee’s (GAC) Safeguard Advice.
Much has already been said about the addition of the specification, which was approved over a year after the close of the gTLD application period. Specification 11 adds obligations for registries such as the requirement to only use 2013 accredited registrars, prohibits closed generic gTLDs, and requires Registry Operators to conduct periodic technical analyses to assess whether any security threats, such as malware of phishing, are present in the gTLD, in addition to other obligations.
However, most, if not all, Registry Operators still feel a great sense of uncertainty around how this Specification will be enforced since different parties can interpret the obligations included in the specification differently.
For example, section 3b of Specification 11 requires periodic technical analysis to assess security threats in the gTLD. Based on conversations to date, it is clear that ICANN and Registry Operators interpret this provision differently – there is even disagreement among different Registry Operators. To this day, the question of how ICANN Compliance intends to interpret and enforce this requirement remains.
This will affect all Registry Operators, including brands, especially if an across-the-board standard is required of all registries. Given that Specification 11 does not relate to critical registry functions that back-end registry services providers are responsible for, it also may require brands to leverage their back-end provider for an additional service, or use another third-party provider.
- Providing Public Zone File Access: Specification 4
As required by Specification 4 of the Registry Agreement, all Registry Operators must provide third-party access to the registry’s zone file data.
While a Registry Operator can do this on its own or through a Centralized Zone Data Access Provider (CZDA Provider), the Registry Operator must enter into an agreement with any Internet user that is found to be qualified. This will allow the individual the ability to download the zone file data once every twenty-four hours. Access can be denied if the user does not provide the required credentials and/or if the Registry Operator reasonably believes that the user will use the data for unlawful purposes or any use prohibited under Section 2.1.5.
While a .BRAND’s back-end provider will be responsible for providing the registry’s zone file data, it will be the responsibility of the Registry Operator to review and approve users for access.
Despite being straightforward and simple, this is an ongoing task that the brand will be responsible for and will continue throughout the life of the TLD.
Though these requirements are a bit all over the map, these three examples demonstrate how all Registry Operators, including those with a .BRAND, face multiple ongoing responsibilities. Registry Operators will all be affected by ICANN developments and policy decisions, as well as the activities within ICANN stakeholder groups.
Most brands recognized that operating a gTLD, even a .BRAND, would be more involved than launching and operating a single domain name. However, as brands have discovered through the application, evaluation, and delegation processes to date, there is more running a compliant gTLD than outsourcing the critical registry and data escrow functions.