It’s time to talk about Question 18. We’ve alluded to it, hinted at it and even warned about it before here on gTLD Strategy, but now, with just over a month until the application period opens, it’s time to roll up our sleeves and dig into Question 18 of the New gTLD Applicant Guidebook.
Question 18, or the “Mission/Purpose” question, is all about how applicants plan to use their new gTLD. Applicants must address the following three sub-questions:
(a) Describe the mission/purpose of your proposed gTLD.
(b) How do you expect that your proposed gTLD will benefit registrants, Internet users, and others?
(c) What operating rules will you adopt to eliminate or minimize social costs (e.g. time or financial resource costs, as well as various types of consumer vulnerabilities)? What other steps will you take to minimize negative consequences/costs imposed upon consumers?
These seem fairly innocuous, right? After all, this is just the application, not the actual contract the applicant enters into with ICANN to run the new gTLD registry, right?
Enter Module 6 of the Guidebook, the Top-Level Domain Application – Terms and Conditions. Number 10 states that an applicant will only have the right to operate a new gTLD if it enters into a registry agreement with ICANN. It goes on to say, though, that the applicant agrees to enter into the registry agreement “in the form published in connection with the application materials.”
That means that if ICANN approves your gTLD application, everything represented in that application, including your response to Question 18, will automatically be incorporated into your base registry agreement with ICANN. In other words, what you say can and will be held against you.
We’ve touched on that point before here on the blog, but this is the first time we’ve really dug deep into the details to explain why this is so. In earlier versions of the Applicant Guidebook, Question 18 simply asked each applicant to “describe the mission and purpose of your proposed gTLD.” However, the current version lists two additional requirements, (b) and (c), above. These additions in large part resulted from pressure from ICANN’s Government Advisory Committee (GAC) to provide better data points for ICANN’s periodic review of the New gTLD Program. This is required in ICANN’s Affirmation of Commitments (see paragraph 9.3).
Aside from helping ICANN gather facts to use in the review of the Program, however, there are real, operational ramifications of how applicants respond to Question 18. In fact, look no further than the arbitration proceeding that Employ Media, the registry operator of the .JOBS gTLD, is currently embroiled in with ICANN. (Prior to the filing of this arbitration proceeding, commercial entities that were negatively impacted by a new registry service proposed by Employ Media attempted to rely upon selected excerpts from Employ Media’s original application in an attempt to block this service.)
Here’s the rub: approximately two weeks after the application period closes, ICANN will publicly post all new gTLD applications, along with who applied for each. Certain information, like the applicants’ financial information and home addresses, will be withheld during this time, but the answers to Question 18 will not be. If you apply for a new gTLD, everyone will be able to see how you answered Question 18 – and therefore, how you intend to use your gTLD – at that time.
This creates an interesting quandary for applicants that hope to gain a strategic advantage over competitors by applying for and operating a new gTLD. They will have to disclose just enough information in their answers to Question 18 in order to avoid future compliance issues, but not too much to risk giving away any strategic business plans. Even though it will be too late to submit new applications, other applicants might decide they want to “sample” some of your business plans for their own use, which they will be able to do if they worded their own responses to Question 18 vaguely enough to allow for such wiggle room.
We can say this a thousand times, and then we’ll say it a few more: Question 18 is among the most important parts of the new gTLD application. The answer to Question 18 will have an impact on your contract with ICANN; unfortunately, it may be a couple of years before you fully realize it. It is worth it to take extra time and even to hire an expert to prepare the answer to this question properly in order to avoid problems of contract non-compliance and to protect your business interests for the next decade.
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