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New gTLD Registry Operator Code of Conduct

12 June 2014
By Trang Nguyen

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On 30 May 2014, ICANN published the first three exemptions to the Registry Operator Code of Conduct. These exemptions represent the culmination of a long journey that included much consultation and input from our multi-stakeholder community.

The determination of whether to grant an exemption to the Code of Conduct is a complex undertaking that ICANN took seriously. The decision requires the interpretation of a Registry Operator's registration policies to determine whether the TLD will be used exclusively by itself and its Affiliates. This is necessary because the Code of Conduct is meant to protect registrants, and the only scenario under which protection may not be applicable is if the registrants are the Registry Operator and its Affiliates, and the Registry Operator also chooses to waive the protection. Therefore, exclusive access is a necessary criterion to qualify for the Code of Conduct exemption, and ICANN's careful review of the Registry Operator's registration policies is critical to making this determination.

Also required is an evaluation of whether the TLD string is a Generic term. This is to ensure that the Registry Operator will be able to meet the obligations under Specification 11 of the Registry Agreement, which amongst other things does not allow a Registry Operator of a Generic TLD to operate in an exclusive manner. Whether a word is considered to be Generic has to do with the usage of the word, and not the word itself. For example, the word "table" in and of itself is a generic word that describes a class of goods. However, if a Registry Operator applied for .TABLE and it is in the business of selling paintings and will use the TLD to promote and sell paintings, it is not considered Generic. In some instances, it is clear if the TLD is Generic, and in other instances, the distinction is more nuanced, and much analysis, review, research, and discussions are required.

After considerable time spent deliberating whether individual requests meet the criteria for an exemption, ICANN concluded that community input was necessary. On 22 April 2014, ICANN published the requests for exemption that it had received, for community's review and input. All comments submitted were taken into consideration by ICANN.

Although ICANN will continue to be deliberate and careful in our evaluation of requests for exemption to the Code of Conduct, we expect that future determinations will be made in a more timely manner.

For additional information about the Code of Conduct, please see the following resources:

Authors

Trang Nguyen