As The GAC Restricted new gTLD’s Launch Registrants Maybe Unaware They Are already in Violation of TOS

For the first time some of the new gTLD’s that fall within the “GAC Category 1 Advice”, which generally are strings that the GAC determined should not be open to be registered by everyone, have started to launch.

From what I’m hearing, the vast majority of the general public along with domain investors, have no idea that such rules exist but they have agreed to follow them in the Terms of Service (TOS) for strings they registered domain names under,

As a background the Government Advisory Counsel of ICANN (the “GAC”) classified certain new gTLD’s into a separate category calling them GAC Category 1 Advice.

The GAC advised the ICANN Board that “strings that are linked to regulated or professional sectors should operate in a way that is consistent with applicable laws.” The GAC proposed specific safeguards that would apply to a broad category of strings related to “consumer protection, sensitive strings, and regulated markets.”

On 5 February 2014, the ICANN Board’s New gTLD Program Committee (NGPC)  adopted an implementation framework [PDF, 61 KB] for GAC Category 1 Safeguard Advice.

Effective 12 February 2014, applicants subject to GAC Category 1 Advice are proceeding in the New gTLD Program once other eligibility criteria have been met.

The implementation framework classifies Category 1 strings as requiring one of three levels of safeguards:

• Regulated Sectors/Open Entry Requirements in Multiple Jurisdictions
• Highly Regulated Sectors/Closed Entry Requirements in Multiple Jurisdictions
• Special Safeguards Required

Last week one of the first extensions of the many new gTLD’s that fall into the GAC Category 1 Advice went into general availability;

.University

According to the GAC advice the  .”University will include a provision in their Registry-Registrar Agreements that requires registrars to include in their Registration Agreements a provision requiring a representation that the registrant possesses any necessary authorizations, charters, licenses and/or other related credentials for participation in the sector associated with the TLD“(emphasis added).

.University is an extension which is owned by Donuts and their TOS clearly state in part:

Representations and Warranties. You represent and warrant that:

(a) your application and registration for a domain name contains true, accurate and up-to-date information, and is made in good faith, for a lawful purpose and does not infringe the rights of any third party; and
(b) you accept and will abide by the Registry Policies.

Necessary Authorizations. You represent that you possesses any necessary authorizations, charters, licenses and/or other related credentials for participation in the sector associated with your domain name registration.

Registrants have to be careful of running afoul of registering domains outside of the GAC advice which could cause cancellation of the domain registration and forfeiture of any fees including LandRush/EAP fees paid for early access and of course the cost of the domain, which if its a premium domain could add up to quite a few bucks.

Now here is where it gets harder.

Take .University domain names, I’m told although The GAC advice does not restrict the TLD to just licensed universities, it requires a registrant to have any necessary licenses to use the domain accordingly.

In other words, if a registrant wanted to blog about universities in the US at blog.university, all they may need is a business license or even rely on their First Amendment of free expression.

“Rights” therefore could be broadly defined so if Disney wanted to register Monsters.University to promote its movie, it probably has the necessary right to do so (copy write/trademark rights)

On the other hand, if a party wanted to hold themselves out as an accredited institution of higher learning in the US that requires a license/accreditation under law and they did not have such approval, they would be in violation of their registration agreement with the registrar and the registrar or registry could take action.

There are certainly some .university registrations that might fall into violation of the GAC advice.

As I said these Category 1 GAC new gTLD’s are just opening up.

Each has a slightly different TOS.

Whether you realize it or not you are agreeing to these terms when you make a domain registration using one of new gTLD’s that fall under category 1 GAC advice.

Unlike acknowledging trademarks registered under the trademark clearing house (TMCH), which is an in your face acknowledgement, that you have to affirm and accept at most registrars, the specific TOS of each new gTLD are just in the TOS and don’t require any “special acknowledgement”

If you’re a domain investor don’t forget that the buyer will have to also agree to the TOS which could kill off a potential sale.

.University, .Gripe and .Fail are the first but certainly not by far the last new gTLDs that will be under category 1.

As usual you need to understand what you are buying, the TOS which you are buying them under or you may find yourself out a domain and all the money paid for it.

For those who haven’t paid much attention to the GAC here are the strings that might be effected by Category 1 advice and you will notice as I said at the beginning of the post, just a few have just started to launch:

Microsoft Word – Annex 2 – GAC Category 1 Strings- 2014-02-05-final.docx