Secret ICANN briefing fuels IGO new gTLDs debate

The Universal Postal Union, newly installed .post registry manager, has launched a withering attack on ICANN for protecting some intergovernmental organizations and not others.
Its salvo follows the release of briefing materials — previously redacted — that ICANN’s board was given when it approved the new gTLD program at the Singapore meeting in June 2011.
The UPU says that the documents show that ICANN engaged in “ex post facto attempts at justifying legally-flawed decisions” when it decided to give extra protection to the Olympics and Red Cross/Red Crescent movements.
As you may recall, these protections were granted by the ICANN board when the program was approved, following lobbying of the Governmental Advisory Committee by both organizations.
In the current round, nobody was allowed to apply for gTLDs such as .redcross or .olympic, or translations in dozens of languages. There are also ongoing talks about extending this protection to the second level.
Some have argued that this would lead to a “slippery slope” that would resurrect the problematic Globally Protected Marks List, something ICANN and the GAC have denied.
They have maintained that the IOC/RC/RC movements are unique — their marks are protected by international treaty and many national laws — and no other groups qualify.
Other IGOs disagree.
Almost 40 IGOs, including the United Nations and International Telecommunications Union, are lobbying for an additional 1,108 strings to be given the same protection as the Olympics.
If they get what they want, four applied-for gTLDs could be rejected outright and dozens of others would be put at risk of failing string similarity reviews.
According to the UPU’s latest letter, ICANN’s newly disclosed rationale for giving only the IOC/RC/RC organizations special privileges was based on a flawed legal analysis:

most of the recommendations contained in documents such as the Unredacted Paper seem to reflect, in an unambiguous way, ex post facto attempts at justifying legally-flawed decisions in order to narrow even further the necessary eligibility “criteria” for protection of certain strings, apparently so that only two organizations would merit receiving such safeguards under the new gTLD process.

In other words, according to the UPU and others, ICANN found itself in a position in June 2011 where it had to throw the GAC a few bones in order to push the new gTLD program out of the door, so it tried to grant the IOC/RC/RC protections in such a way that the floodgates were not opened to other organizations.
You can read the unredacted ICANN briefing materials here. The UPU letter, which deconstructs the document, is here.
It’s worth noting that the Applicant Guidebook already gives IGOs the explicit right to file Legal Rights Objections against new gTLD applications, even if they don’t have trademark protection.

Big brands ask US for published list of known cybersquatters, other stuff

A public, published list of repeat cybersquatters was among the demands that the trademark lobby took to a meeting with the US government in Washington DC yesterday.
The summit, hosted by the Department of Commerce, was the latest stage in the US government’s response to the campaign for more new gTLD rights protection mechanisms kicked off by the Association of National Advertisers a little over a year ago.
About 30 big brand owners, along with several trade associations and campaign groups, took part.
The Internet Commerce Association somehow managed to blag an invitation too, and was the only representative of domain registrants, according to a blog post by ICA counsel Phil Corwin.
The companies, which included tech companies such as Microsoft, Facebook, AOL, Yahoo and eBay and offline brand owners such as Nike, Coca-Cola, Time Warner and News Corp, met in early June to formulate a set of recommendations to take to Commerce.
These recommendations are outlined in an August 29 letter (pdf), a copy of which DI has obtained.
Notably, the companies asked for a published list of “bad actors” who have repeatedly lost Uniform Rapid Suspension cases. The letter states:

Recidivist bad actors should be tracked via a list of common Respondents and that list should be published and publicly available.

However, we understand that this request is a low-priority item, discussed only briefly yesterday, and that Commerce representatives did not immediately embrace it.
The bulk of the discussions related to tweaks trademark owners want to see in the Trademark Claims service — which alerts them and the registrant when somebody tries to register a potentially infringing domain name — and the URS.
The brand owners want Trademark Claims, which new gTLD registries are only obliged to offer for the first 60 days of general availability, extended for a longer period, possibly up to three years.
On the face of it, this is among the most reasonable longstanding demands from the IP crowd, but ICANN has resisted it to date as it’s worried about creating a monopoly in the pre-existing market for trademark monitoring services.
If the Trademark Clearinghouse is alerting you every time somebody registers a domain name with your brand in it, why pay MarkMonitor or Melbourne IT for the same service?
The letter also says that Trademark Claims should cover brand+keyword registrations, and domains containing registered trademarks, rather than just exact matches.
The worrisome aspect of this request is that there’s quite a high risk of false positives due to run-on words, very short trademarks, acronyms and dictionary words.
Non-commercial ICANN stakeholders dislike this due to the possibility of a chilling effect on free speech, while registries and registrars don’t like anything that puts unnecessary obstacles in the registration path.
With URS, the trademark owners want a full loser-pays system, though they acknowledge that it could raise the filing fee, which is something they don’t want.
To keep costs down, they want a lower filing fee for cases where the registrant does not respond and a URS panelist is not appointed, which seems like a reasonable idea.
The idea of ICANN (and, ultimately, registrants) subsidizing URS fees has also been put forward.
Finally, the trademark owners want registries to implement defensive blocking systems with one-time fees, modeled on the Sunrise B process that ICM Registry used with the launch of .xxx.
Some of the ideas — such as lower filing fees for uncontested URS cases — seem fairly reasonable and I can see them gaining traction.
Others, such as the brand+keyword protections, seem harder to implement and less likely to pass through ICANN unchallenged.
So what happens next? According to ICA’s Corwin:

For their part, the hosts of the meeting [Commerce] listened politely but did not to endorse any of the suggestions, although they did commit to follow-up interagency discussions. It was pointed out that some of the proposals have been raised before and went nowhere within ICANN, and questions were raised about what process would be utilized to place them before the broader ICANN community and its Board. It was also indicated that the U.S. would be reluctant to undertake any unilateral communications on these matters to ICANN’s Board.

Given this reluctance, I wouldn’t be surprised to see some of these ideas bubbling up through the Governmental Advisory Committee instead, as ideas from the US trademark lobby are wont to do.
As with every ICANN meeting, expect to see further discussions in Toronto next month.

ICANN’s seven-point test for borked new gTLD bids

ICANN has published a set of seven criteria for judging whether new top-level domain applicants should be allowed to change the details of their applications.
The test is designed to enable applicants to correct stupid errors in — or make more substantial changes to — the original applications.
ICANN had received 49 such requests at the last count.
It is believed that at least three applicants — Verisign, DotConnectAfrica and Kerry Logistics — have requested changes to typos in the applied-for string itself.
Others are thought to have asked for permission to correct copy-paste errors, when they’ve applied for multiple gTLDs.
These are the factors ICANN will use to determine whether a change will be allowed:

Explanation – Is a reasonable explanation provided?
Evidence that original submission was in error – Are there indicia to support an assertion that the change merely corrects an error?
Other third parties affected – Does the change affect other third parties materially?
Precedents – Is the change similar to others that have already been approved? Could the change lead others to request similar changes that could affect third parties or result in undesirable effects on the program?
Fairness to applicants – Would allowing the change be construed as fair to the general community? Would disallowing the change be construed as unfair?
Materiality – Would the change affect the evaluation score or require re-evaluation of some or all of the application? Would the change affect string contention or community priority consideration?
Timing – Does the timing interfere with the evaluation process in some way? ICANN reserves the right to require a re-evaluation of the application in the event of a material change. This could involve additional fees or evaluation in a subsequent application round. (AGB §1.2.7.)

It’s not yet clear who makes the decision — whether it’s ICANN staff or its board of directors. I’ve asked ICANN for clarification and will update this post when I find out.
All changes will be published in a public change log and subject to 30 days of public comment, according to ICANN’s announcement this morning.

Another controversial VP leaves ICANN

It’s house-cleaning time at ICANN, it seems.
Elad Levinson, controversially hired 18 months ago as vice president of “organizational effectiveness” has been terminated, we’ve learned.
Levinson, who started in May 2010 as a consultant before going full-time as a VP, was tasked with sorting out some of the internal problems at ICANN.
But his hiring was not warmly welcomed by many in the ICANN community (or, we hear, staff), coming at a time when other more mission-critical positions were still vacant.
As former CEO Rod Beckstrom’s most controversial hire — Levinson’s previous ventures made him look like a bit of a hippy with a penchant for psychobabble — his departure is not unexpected.
It follows the resignation of communications VP Barbara Ann Clay, which we reported yesterday.
The rumor mill has it that Clay and Levinson are not the only ICANN executives to face the chop this week, but they’re the only names we’ve been able to confirm so far.

ICANN comms chief quits

ICANN vice president of communications Barbara Ann Clay has resigned, DI has learned.
Clay was appointed to the role in 2010 under Rod Beckstrom, and the fact that she is leaving now, while the CEO role is in transition, will come as little surprise to ICANN watchers.
As head of comms, Clay presided over a new gTLD outreach program that managed to result in 1,930 applications but which was criticized by some for not focusing enough on the developing world.
A generally low-profile executive, the only time DI has had cause to mention Clay’s name was when she complained to the government of Senegal about a crappy hotel.
She’s the second senior executive with responsibility over the new gTLD program — the third if you include Beckstrom — to leave ICANN since Reveal Day.
Program director Michael Salazar resigned in June at about the same time digital archery was getting killed off.
Clay’s last day on the job is believed to be September 14.

Congressmen quiz ICE over domain seizures

Three US members of Congress have expressed “deep concern” over the alleged lack of due process followed when the Department of Homeland Security seizes domain names.
Rep. Zoe Lofgren, Rep. Jared Polis and Rep. Jason Chaffetz quiz DHS (pdf) about the methods employed by the Immigration and Customs Enforcement agency in its Operation In Our Sites.
The Congressmen’s letter highlights the case of the hip-hop web site Dajaz1.com, which had its .com seized by ICE and then returned.
“Much of Dajaz1’s information was lawful,” the letter reads. “Despite this, DHS and the Department of Justice suppressed this website for more than a year.”
The Congressmen say that “if a website’s domain is seized, it needs to be given meaningful due process that comports to the US Constitution and US law”.
Operation In Our Sites has seen ICE seize hundreds of domains — mainly .coms accused of copyright infringement — from US-based registries including Verisign since late 2010.
Despite the relatively small number of domains seized, there have been a number of controversies.
Notably, the Spanish TV download web site RojaDirecta, which lost its .com and .org domains despite being ruled legal by a court in its home nation, last month had them returned to it by ICE.

ICANN to return to South Africa in 2013

The location of ICANN’s second meeting in 2013 has been revealed as Durban, South Africa.
A proposal submitted by the local ccTLD manager, .za Domain Name Authority, was approved by the ICANN board of directors earlier this week.
It’s the second time ICANN has hosted one of its thrice-yearly public meetings in the country; in 2004, Cape Town was the venue.
The Durban meeting will run from July 14 to July 19 2013. It’s the third upcoming meeting on ICANN’s calendar after Toronto (October) and Beijing (April 2013).
Durban, a popular tourist destination, is South Africa’s third-largest city, with a population of about half a million almost four million.

Satellite policy expert named ICANN director

ICANN has named Olga Madruga-Forti, an Argentinian telecoms policy expert, as the newest member of its board of directors.
Selected by this year’s Nominating Committee, Madruga-Forti will take over from R. Ramaraj when his second term ends at the Toronto meeting this October.
According to the biography provided by ICANN, she has extensive experience of telecommunications policy, particularly related to satellite, in both public and private sectors.
She currently works for ARSAT in Buenes Aires as international counsel. She’s previously worked for Iridium, Loral and the US Federal Communications Commission.
ICANN pointed out that she represents telcos at the International Telecommunications Union, a relevant data point, perhaps, given the WCIT conference coming up in December.
Madruga-Forti ticks one of the Latin-American boxes on the ICANN board.
NomCom has also reappointed two other directors for second terms on the board: Gonzalo Navarro (Latin-America) and the reliably contrarian George Sadowsky (North America).
New leadership members of three ICANN supporting organizations have also been selected by NomCom.
Jennifer Wolfe of the intellectual property law firm WolfeSBMC, which counts new gTLD applicants Microsoft, Procter & Gamble and Kraft Foods among its clients, has been appointed to GNSO Council.
I believe she’s destined to replace Carlos Dionisio Aguirre when his term is up later this year.
Canadian Alan Greenberg and Frenchman Jean-Jacques Subrenat have been reappointed to the At-Large Advisory Committee.
Mary Wong, who currently sits on the GNSO Council representing non-commercial stakeholders, has been appointed to the ccNSO Council.
The full biographies of all 2012 NomCom appointees can be found here.

The .patagonia problem

Argentina has escalated its complaint with ICANN about the new gTLD application for .patagonia.
Ambassador Alfredo Morelli of the country’s Ministry of Foreign Affairs has written to ICANN’s leadership to let them know that .patagonia “should not be used as a closed brand gTLD”.
An American clothing company that goes by the name of Patagonia Inc has applied for .patagonia, which it intends to use as a dot-brand, but Patagonia is also a region of South America.
Argentina’s Governmental Advisory Committee representative told ICANN’s board in Prague this June that the government would not stand for a geographic term for part of its country being used in this way.
But Argentina has a problem.
The new gTLD program rules, as spelled out in the Applicant Guidebook, give special protection to geographic strings, but only if they appear on certain lists.
Rather than create its own list of geographic strings, ICANN instead deferred to established international standards, such as ISO 3166.
Patagonia, as far as I can tell, does not appear on any of these lists. (The DI PRO database compares all applied-for strings against protected geographic names.)
While it’s undoubtedly the name of a region, covering parts of Argentina and Chile, it does not appear to be the name of the kind of administrative division covered by ISO 3166-2.
Judging by the Applicant Guidebook, ICANN’s Geographic Names Panel would therefore not designate .patagonia as geographic and the applicant would not have to secure government support for its bid.
It’s not clear from the Guidebook how much flexibility, if any, the panel will get to make subjective decisions with edge cases like this.
However, so much of the program that had been thought finalized is today apparently still open for negotiation that I wouldn’t be surprised if the rules are changed or reinterpreted.
While the .patagonia application has so far attracted almost 300 negative comments from internet users, it is not the only dot-brand to ruffle feathers in Argentina.
There has been a smaller outcry over the Commonwealth Bank of Australia’s application for .cba, which apparently matches the abbreviation of the Argentinian Province of Cordoba.
The string “CBA” does not appear to be protected by the Applicant Guidebook either, and I’ve not seen any official concerns raised by governments yet.
I think there’s a strong chance the .patagonia application is dead, even if it is not officially deemed geographic.
The GAC will almost certainly object, and even if the objection does not have consensus the ICANN board will have a big reason to reject the bid.

New gTLD typo policy coming today?

ICANN’s board-level new gTLD program committee may vote today on a policy for enabling new gTLD applicants to correct errors in their applications.
Many of the 1,930 applications contain mistakes of varying degrees.
Some are obvious, such as typos in the applied-for string — .dotafrica springs to mind — and copy-paste errors made by large portfolio applicants that reference strings in the wrong application.
The trick for ICANN is figuring out which change requests are genuine while excluding attempts to game the system in light of new competitive information emerging post-Reveal Day.
According to an update issued last night, ICANN staff have come up with a set of seven criteria to decide whether any of the dozens of changes that have been requested should be permitted.
The criteria, which have not yet been revealed, are subject to approval, ICANN said.
But the ICANN board of directors is due to meet today, and it seems likely that its new gTLD program committee — made up of non-conflicted directors — will also have a session.
It’s quite possible that the criteria will be rubber-stamped today and published later this week.
ICANN also said last night that it plans to overhaul its new gTLD microsite shortly to make information easier to find, which will be welcomed by many applicants and observers.
The Clarifying Questions pilot, a test-run for a more formal process later this year, has also started. I understand the 50 selected applications received their questions late last week.
Another webinar for applicants has also been scheduled for next week.