ICANN’s response leaves room for competing interpretations of the Applicant Guidebook.
Yes? No? Grey area?
On Sunday, after getting conflicting thoughts from sources, I reached out to ICANN to ask whether applicants for the same string are allowed to strike deals before Reveal Day.
The issue is that the guidebook says you can’t use private auctions or joint ventures to settle contention sets. But the guidebook also says it “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.”
ICANN responded to my inquiry today with this statement:
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’s not exactly a yes-or-no response.
Technically, strings aren’t in contention until ICANN says they are in contention, which is sometime after Reveal Day.
Also, people creating joint ventures are not necessarily settling a contention set (even if they already exist) because there could be more applicants.
ICANN’s response is similar to what you get from the IRS if you ask a specific tax question about how to account for something, such as domain sales. Their answer is along the lines of “We’re not going to tell you, and we might come after you later.”
I can see how some people would read ICANN’s response as meaning any resolution is prohibited, while others might read it as OK as long as it’s before the names are technically in contention.
By declining to give a yes-or-no answer, ICANN is pushing a problem down the road. I can already envision drawn-out challenges based on activity that takes place before Reveal Day.
Applicants are surely willing to follow ICANN’s rules, but only if it spells them out clearly.
Andrew, it’s clear that you asked the question and they responded that partnering on bids is strictly prohibited. They may allow communication between parties, but to me the language is unambiguous:
“Accordingly, private auctions, joint ventures, and any resolution methods designed to resolve contention privately are strictly prohibited.”
It does not say that these activities are permitted before the reveal date.
When you also consider U.S. bid-rigging laws, which prohibit collusion intended to suppress or avoid competitive bidding, I believe the issue is settled. There should be no private contention resolution during this round.
For U.S. participants, the potential consequences are extremely serious, including substantial fines and, in certain cases, prison sentences of up to 10 years.
I am completely with you on this one. Stop looking for a loophole where none exists, and attempting to resolve contention sets privately before Reveal Day is incredibly risky.
It’s not just U.S. antitrust law that makes this dangerous; the legal framework in Europe is virtually identical and just as punitive. Under Article 101 of the Treaty on the Functioning of the European Union (TFEU), collusive tendering, bid-rigging, and agreements designed to restrict competition or allocate markets are expressly prohibited. If competitors collude to suppress competitive bidding, the European Commission can levy massive penalties, including fines of up to 10% of a company’s total worldwide turnover.
Furthermore, depending on the national legislation of individual Member States, severe infringements can lead to director disqualifications and even prison sentences for the individuals involved.
For the 2026 round, the Applicant Guidebook explicitly implemented restrictions to prevent private resolution and private auctions. Above all, ICANN requires applicants to have a bona fide (good faith) intent to actually operate the applied-for gTLD when you click Submit.
So when applicants submit their applications, they sign binding declarations confirming this good faith intention. Anyone entering the process with the underlying goal of leveraging an application to strike a private deal, orchestrate a joint venture to avoid bidding, or engineer a payout is directly violating the bona fide intent they formally swore to upon submission. If people actually read the warranties they sign, it is very clear: you are applying because you intend to run the registry, not to play games with contention sets…
Attempting to bypass these rules under the guise of “pre-Reveal Day communication” is a direct violation of both the applicant warranties and broader international antitrust laws.
I disagree with the previous comments. Section 5.2.3 of the Applicant Guidebook states that ICANN’s contention resolution processes (i.e., an auction conducted by ICANN) provide the “only permissible path to CONTENTION RESOLUTION” and prohibits “any other arrangement designed to RESOLVE CONTENTION privately.” Similarly, Section 5.2.3.1. States that “Applicants (including their agents and affiliates) for strings in the SAME CONTENTION SET are strictly prohibited from communicating, either directly or indirectly, with other applicants in that same contention set regarding their respective applications in contention, any strategies related to the in-contention string(s), or strategies to resolve contention.”
The operative wording in both cases is “contention” and “contention sets.” This is because these prohibitions only take effect once contention has started and the Guidebook is clear that the earliest point there is contention is on Reveal Day. Specifically, Section 5.2 states that “Contention may be identified during various stages of the application process FROM REVEAL DAY through the conclusion of the string evaluation and potential subsequent challenges, objections, appeals, and Singular/Plural Notifications processes.” (emphasis added).
This is confirmed by Section 5.2.3.1, which identifies the various points in time when contention sets are identified, the earliest of which is Reveal Day (“The New gTLD Program includes various points in time when contention sets are identified and updated as new information is available, namely: Reveal Day, String Confirmation Day, publication of Singular/Plural Notification results, publication of String Similarity Evaluation results, and resolution of Objection proceeding.”)
This makes sense because prior to Reveal Day: (1) applications that were submitted may not proceed – and thus would not be revealed on Reveal Day – due to payment issues or because of completeness or accuracy issues identified during the administrative check; (2) applications may be withdrawn before Reveal Day; and (3) applicants have not finally chosen their string as they still may have the option to move to their Replacement String.
Additionally, this issue was specifically addressed by ICANN staff – and resolved – during the Subsequent Procedures IRT. In particular, it was addressed in three separate IRT sessions during ICANN 84. The most relevant discussion occurred in Session 1 of 6 on October 25. If you take a look at pages 18-24 of the transcript (https://hosted-files.sched.co/icann84/a4/TRANSC_I84DUB_Sat25Oct2025__GDS-Subsequent%20Procedures%20IRT%20%281%20of%206%29-en.pdf?_gl=1*1mn45ec*_gcl_au*NTYzMjU4MTcyLjE3ODY5Nzg0MDU.*FPAU*NTYzMjU4MTcyLjE3ODY5Nzg0MDU.) you will see that ICANN staff make clear their view that any communications between applicants for the same string can communicate – even if such communications result in one withdrawing their application – are permissible before Reveal Day.
For example, ICANN staff says:
“think the guidance states, Jeff, that as of reveal day is when the no collusion comes in. So, what happens before that is between the applicants at that point.”
And also:
“Yeah, I mean, we can look at the language again, Jeff, maybe, but I think there’s also the issue of being in contention. So until reveal day, nobody’s in contention. So there’s that qualifier around there as well, because you can obviously talk to other applicants as long as you’re not in contention at any time anyway. The problem is that while ICANN staff made their view clear during the Subsequent Procedures IRT, ICANN Org never made its view clear to the Community. But for ICANN to change their view now – or not provide their view – is disruptive and problematic to the policy development process because the IRT did not ask for changes or further clarification in the Guidebook based on staff’s representations of what the wording meant.
Most people were not closely monitoring every session of the IRT, and even for those that were, or with whom I have shared these exchanges, I understand that it’s not enough for an applicant to base a decision on that could result in termination of their applications – and the associated millions they invested in them – and potentially being permanently banned from the new gTLD program. This might not even have been an issue but with all of the self-reveals it definitely is now and ICANN has an obligation to all applicants, and to the Community generally, to clear this up now while there is still time for applicants to avoid contention and so it can avoid potential legal and other challenges that have the potential to cause significant disruption to the Round.
Finally, I think the U.S. bid-rigging and antitrust arguments are misguided. Firstly, private auctions were not found to violate any of these laws in the First Round despite getting significant attention. While ICANN may have permitted, and even encouraged, communications between applicants and private resolution in the First Round, this is irrelevant to whether such communications or resolutions were compliant with applicable law. Additionally, if anything, prohibition of communication between applicants and private resolution is more likely to be found to be anti-competitive and in violation of antitrust and anticompetition laws than permitting them as it restrains competition in the marketplace and ensures that all money from the round flows to ICANN’s coffers and no one else’s. If I was the ICANN Board, this is what I would be concerned about as once Reveal Day happens this will no longer be speculative as contention sets and the clear and undebated prohibition of private resolution and communications will finally exist and will be ripe for legal challenge by all applicants in contention.
I have also submitted an inquiry to ICANN on this and we’ll see what they say this time. Hopefully they do the right thing and provide the clarity that applicants deserve.