Adrian - good post.  You’ve understood the essence of the Board resolutions.  With the putting to bed of trademark issues, we’ve crossed the Rubicon and now I believe that new gTLDs are inevitable in 2011.  The unresolved issues may cause greater or lesser delay, but morality issues (which are far more of a problem in theory than in practice) and whether governments have to pay fees for objections are not show-stoppers and in my opinion can be worked out rather quickly.

Adrian, it was good to see you in Cartagena—and I certainly understand why you would want to put the happiest face on Friday’s Board announcements. However, my experience in the policy sphere has been a constant reminder that “only the paranoid survive”, and I offer these comments in that spirit.

So here are some key takeaways from that wary perspective—

• It is highly significant that the Board set no date certain for the launch of new gTLDs. How hard would it have been to say, for instance, “we are committed to the opening of the application window no later than the third quarter of 2011”? Such a statement would have given great comfort to potential applicants seeking investor commitments and would have given the Board substantial leverage in its February meeting with the GAC. Saying that it will happen “as soon as possible” gives no assurance that the program launch may not encounter substantial further delay.In any event, the 4-month communications campaign is unlikely to commence before the Board has approved the Guidebook (especially since it did commit to a target date), and that means that even if a Guidebook is approved in San Francisco in March the earliest the application window will open is late July, so the timetable has already slipped from Q2 to Q3 2011.

• A parallel Board resolution gives even more concern about whether we are approaching the end game on new gTLDs. As I wrote at http://www.internetcommerce.org/ICANN_Defers_Action_on_New_gTLD_Guidebook last Friday afternoon:

“...another adopted Board Resolution raises the possibility that final Guidebook approval is by no means assured in the foreseeable future. Speaking to a review process to measure consumer choice, competition and innovation resulting from new gTLDs, it states—

Whereas, if and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN has committed to organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice.

As we presume that the wording of all these Resolutions is thoroughly debated and vetted, we think that the phrase “if and when”, rather than a much more optimistic solitary “when”, has some considerable importance. Its inclusion may be much more than a Freudian slip and is certainly no cause for optimism for any parties chomping at the bit to launch new gTLDs.”

• There is a certain irony that the body entrusted with assuirng ICANN’s commitment to accountability and tranparency , the GAC, will be meeting with the Board behind closed doors in February. The community should intensively inquire as to what means ICANN will employ to assure A&T;for this unprecedented consultation. Also remember that ICANN must give up something to the GAC at this meeting if it is to be more than a venting venue and if both parties are to emerge claiming progress, and that does not bode well for final gTLD rules.(The GAC, for its part, need only demand, not concede a thing, so the meeting is all upside from its perspective.)

• Not so fast on assuming that “Issues around Trademark Protection are considered locked away.” From the perspective of the IPC and INTA their lobbying of the GAC was a success—it helped get the closed doorr February meeting—and they will only redouble their efforts over the next two months.The trademark advocates I spoke to in Cartagena do not consider them locked down in the least—and will have no hesitancy to employ litigation to delay the launch further if the February meeting does not produce changes to their liking. ICANN is in a very tough box on this issue; as I wrote on Friday:

“The Guidebook already contains provisions that go far beyond the UDRP applicable to incumbent gTLDs. Yet the trademark sector has clearly been engaged in intensive lobbying of GAC members, as was very much in evidence when it met with the Board in Cartagena. What the trademark advocates seem to want in the Guidebook is the original 2009 recommendations of the IRT plus some other things they’ve thought of since. But the IRT process and recommendations brought howls of protest from ICA and many other ICANN constituents, resulting in the creation of the STI-RT to develop a more balanced approach. That STI-RT package was unanimously adopted by the GNSO Council, which is supposed to be ICANN’s policy development body. So any further concessions to the GAC will undermine the GNSO’s legitimacy and bring us back to the same standoff that led to the creation of the STI-RT at the Seoul meeting one year ago.”

• Another big GAC issue, Geo names protection, is also not easily finessed. In an Internet world where geo-location is a key consumer search factor, this whole debate is anti-consumer, anti-competitive, and just plain silly. ICANN has already granted protections that go far beyond trademark law (as one cannot TM a map name), but that are also meaningless, as they only apply to the noun (.australia) and not the more expansive adjective (.australian). So ICANN can either extend these unjustified and ineffective “protections” to every town and village on the planet—or (and this would be disastrous to the prospects for new gTLDs) overturn a decade of UDRP precedents and grant some degree of governmental priority at the second level.

I hope that these comments don’t make me appear to be the “skunk at the garden party”. But no one who wants to preserve balanced trademark policy for new gTLDs, or submit an application on a date certain, should be sanguine about the results of Friday’s Board announcements or the extended process they have set in motion. In ICANN world, Machiavelli trumps Polyanna any day of the week.

The last sentence of the first point in the comment just published should have read:

In any event, the 4-month communications campaign is unlikely to commence before the Board has approved the Guidebook (especially since it did

commit to a target date), and that means that even if a Guidebook is approved in San Francisco in March the earliest the application window will open is late July, so the timetable has already slipped from Q2 to Q3 2011.

Having now had an opportunity to watch the video interview with Chairman Thrush and CEO Beckstrom that has been posted at the ICANN website, two further supplemental observations—

—When asked whether the Board/GAC meeting in February shall be open or closed ro the public, Chairman Thrush responds that, while they have yet to resolve the “rules of engagement”, ICANN’s “standard position” is to hold open meetings—although he then goes on to observe that if the parties agree mid-consultation that a private retreat would assist the discussions that off-stage manauver could be considered. So, while the issue has yet to be settled and the community should urge the maximum degree of transparency, my response to Adrian’s concern about “meeting behind closed doors” incorrectly assumed that the decision had already been made.

—Later in the interview, Chairman Thrush notes the great effort that has been expended to protect the rights of trademark owners, states that the protections in the Guidebook are “probably sufficient”, but then allows that the February meeting might consider the question “how can we tweak or improve those processes?” If I were representing trademark interests I’d take that reference to tweaks and improvements as an invitatioin to commence a full-bore lobbying campaign of GAC members for sweeping alterations of the RPMs.

If the trademark community really had its way, the new gTLD program would never have gotten this far.  So I take issue with the suggestion that the trademark community, including INTA, was a success. From the domain investor side, new TLDs offer new registration opportunities on generic and descriptive names, but also could reduce the value of current portfolios on existing TLDs, especially .com.  So there is risk and opportunity for everyone here. Trademark holders know that protecting their brands on the internet will always be part of the cost of doing business.  Trademark registration, monitoring and enforcement will always be required.  Domainers are used to an ever-shifting market place and will no doubt adjust. Cybersquatting will never go away and must be battled by both constituencies, although for different reasons.

I applaud ICANN for getting this far on new gTLDs.  A bit more transparency with ICANN, of course, would be a great new year’s resolution.