Confusion reigns regarding fresh TLD resolution prior to Reveal Day
Applicant Guidebook interpretations vary among top level domain applicants.
In the 2012 round of fresh top level domain expansion, ICANN encouraged parties to settle contention sets (when there is more than one application for the same string) by themselves. If they couldn’t resolve the contention, ICANN held a so-called “auction of last resort.”
Most contention sets were settled without ICANN’s involvement. In many cases, the parties held an auction where the losers split the proceeds, creating a win-win for both the prevailing party and the losers.
Some firms got big payoffs in the 2012 round. ICANN was worried that this would bring applicants to the table this year who were merely applying to lose.
So the Applicant Guidebook prohibits these private resolutions.
But…the guidebook is also a bit confusing on the topic. It states only ICANN auctions can settle contention sets, but it states:
Communications are prohibited from Reveal Day until the earlier of (1) the date a prevailing applicant signs a Registry Agreement for a specific contending gTLD string, or (2) the applicant withdraws the relevant application. The prohibition on “communicating directly or indirectly” includes public disclosures as well as private communications……The Fresh gTLD Program does not prohibit applicants from communicating directly or indirectly any information related to applications or application strategies:
– For strings that are not in contention.
– Occurring outside of the defined periods where communication is prohibited
Since communication isn’t prohibited until reveal day, does that mean applicants can settle potential contention sets ahead of then?
Adding to the confusion is how ICANN defines a contention set, as it suggests contention sets don’t begin until ICANN reveals the applications.
In communications with applicants in recent days, it’s clear there’s a lot of confusion regarding the guidebook’s somewhat conflicting language.
The language seems to indicate that parties can talk and settle their differences ahead of ICANN reveals all of the applications. But the penalty for violating the rules is severe.
I wonder if ICANN considered that people would disclose their applications ahead of Reveal Day.
Writing on CircleID yesterday, attorney Marc Trachtenberg, who represents multiple applicants and is involved with earlywarning.note, discussed the confusion.
If ICANN’s goal was to prevent firms from applying just to get paid off, I think it accomplished that goal. Now, it needs to clarify whether existing applicants can settle their possible contention sets ahead of Reveal Day if they know another party has applied for the same string.
I contacted ICANN yesterday asking for clarification on this issue and will update this story when I hear back.
