ICANN’s response leaves room for competing interpretations of the Applicant Guidebook.
Is it allowed? Is it prohibited? Or is there a grey area?
On Sunday, after hearing conflicting assessments from industry sources, I contacted ICANN to clarify whether applicants pursuing the same top-level domain string may negotiate or form agreements before Reveal Day. The issue has drawn attention because different parts of the Applicant Guidebook appear to send mixed messages.
One section of the guidebook explicitly states that private auctions, joint ventures, and similar private resolution mechanisms cannot be used to settle contention sets. At the same time, another passage says the guidebook “does not prohibit applicants from communicating directly or indirectly any information related to applications or application strategies… occurring outside of the defined periods when communication is prohibited.” That apparent tension between prohibiting private settlement and permitting communications outside restricted periods is the source of the confusion.
ICANN’s reply to my inquiry was concise, and deliberately cautious:
ICANN cannot provide advice or interpretation for specific situations or requests. The Applicant Guidebook prohibits private resolution of contention sets. Accordingly, private auctions, joint ventures, and any resolution methods designed to resolve contention privately are strictly prohibited.
That answer, while clear in tone, does not resolve the underlying ambiguity. It affirms the general prohibition on private resolution methods, but it stops short of addressing the timing question: whether agreements formed prior to the formal point at which ICANN designates a string as “in contention” fall under that prohibition.
Part of the complexity stems from how contention is formally determined. Under the application process, a string is not officially designated as in contention until ICANN identifies and publishes the contested set, a step that happens after Reveal Day. Before that moment, multiple parties may submit applications for the same string, but the guidebook’s formal mechanisms have not yet been triggered. That timing distinction opens a potential window where parties might argue that forming joint ventures, business arrangements, or other collaborative responses to overlapping applications is not the same as privately resolving a declared contention set.
There is also a semantic distinction between creating a joint venture and settling a contention set. Applicants can form joint ventures for a wide variety of business reasons that do not necessarily resolve who will control a contested string, particularly when more applicants remain in the mix. For example, applicants might create partnerships to share development plans, pool resources, or coordinate technical operations without explicitly designating a single winner among competing applications. Whether such arrangements cross the line into prohibited private resolution is a central question that ICANN’s brief statement does not fully address.
ICANN’s approach here is similar to how some regulatory agencies respond to specific inquiries: a firm reiteration of the rule combined with a refusal to provide case-by-case legal interpretation. That leaves applicants in a difficult position. On one hand, they want to comply with ICANN’s rules; on the other hand, they need practical guidance on what actions are permissible in the period before contention is declared.
Because the response did not provide a clear, scenario-specific ruling, different stakeholders are likely to read it in different ways. Some will see ICANN’s wording as an absolute ban on any activity that could affect who ultimately controls a string, regardless of timing. Others may conclude that negotiations or organizational arrangements made before a string is formally listed as contested remain allowable, provided they do not constitute a private settlement of an already-declared contention set.
Leaving this ambiguity unresolved increases the risk of disputes after Reveal Day. If applicants engage in pre-Reveal Day collaboration or form joint enterprises that later influence the outcome, those actions could trigger prolonged challenges and legal arguments about whether the activity violated the prohibition on private resolution. ICANN’s reluctance to offer definitive interpretations effectively pushes these disputes into later stages of the process, where remedies and penalties can be more disruptive.
Applicants are likely to comply with the rules when those rules are clear. To reduce uncertainty and avoid lengthy post-Reveal Day disputes, clearer guidance from ICANN about what specific pre-Reveal Day communications and arrangements are permissible would benefit applicants and the broader community. Until then, applicants must weigh the potential business advantages of early cooperation against the risk of a later finding that their actions crossed a line.
In short, ICANN’s statement reasserts the ban on private resolution of formally declared contention sets but leaves unanswered whether proactive agreements or joint ventures formed prior to ICANN’s official contention designation are covered by that ban. That unresolved tension will probably generate further questions and possibly formal challenges as the process moves forward.