NAF loses UDRP market share again

If UDRP forum shopping is a real phenomenon, the market share statistics don’t bear it out.
The National Arbitration Forum today announced a sequential decrease in the number of cybersquatting cases it handled in 2011, widening the gap between itself and the World Intellectual Property Organization for at least the second year in a row.
NAF said it handled 2,082 complaints last year, down 4% from 2010. That’s over the same period WIPO saw a 2.5% increase to 2,764 cases.
NAF is occasionally accused of being the more complainant-friendly of the two major UDRP dispute resolution providers, which some say encourages “forum shopping”.
While that may or may not be true in certain fringe cases, it’s certainly not helping NAF win a flood of business. WIPO is still handling more cases, and growing its share while NAF’s shrinks.
As Mike Berkens observed over on The Domains, NAF’s press release attempted a bit of lame spinning, comparing 2011 to 2009 in order to lead with an 18% increase stat.
The release also includes the following quote from director of internet and IP services Kristine Dorrain, which seems to be designed to subtly address the “complainant-friendly” allegations.

Our experience tells us parties, particularly domain name registrants, prefer the National Arbitration Forum because documents are easily accessible in our online portal. Complaint or Response filing is accomplished in just a couple of minutes.

It’s a somewhat irrelevant statement, given that it’s the complainant who gets to choose the venue.
One of NAF’s 2011 highlights was being picked as exclusive provider of Rapid Evaluation Service cases by .xxx manager ICM Registry. It processed 10 RES complaints in 2011.
RES cases, as well as 73 .us cases, were counted in its headline statistics.

ICANN approves “digital archery” gTLD batching

It’s official. ICANN’s board of directors has approved the widely derided “time target variance” procedure for batching new generic top-level domain applications.
It’s now being officially called “digital archery”.
The ICANN board met on Wednesday to vote in favor of the system, which was first outlined by senior VP Kurt Pritz at the Costa Rica meeting earlier this month.

Resolved (2012.03.28.01), the Board confirms the approval of secondary timestamp/digital archery as the mechanism for sorting new gTLD applications into batches, and directs that the operational details of the mechanism be communicated to applicants and the public as necessary and appropriate.

The digital archery system outlined in the resolution is pretty much identical to what Pritz described at ICANN 43.
New gTLD applicants will be asked to select a target time, then log into a special page of the TLD Application System to hit a “Submit” button as close to that time as possible.
The applicants whose clicks are recorded closest to the target time get to be in the first batch. ICANN will rotate through applicants from its five regions to avoid geographic bias.
There’ll also be an opt-out for those applicants for whom time to market is less important.
“The closer to zero the secondary timestamp is the more likely the application will be processed in the earliest batch, assuming the applicant has opted in to the earliest batch,” the resolution reads.
The system still appears to favor applicants skilled in drop-catching and other domainer disciplines.
Judging by screenshots released by ICANN today, there will be no Turing test (such as a CAPTCHA), which suggests that a scripted virtual “click” may be the best way to get a good timestamp.
It’s also not yet clear how ICANN plans to address the problem of network latency, to prevent applicants “renting a room at the Marina Del Rey Marriott” and thereby reducing the number of network hops between themselves and ICANN’s servers.
The resolution’s rationale reads: “Latency concerns are addressed in a fair manner so that applicants are not put at an advantage or disadvantage based on their geographic location”.
The digital archery system was met with borderline disbelief by many ICANN 43 attendees.
ICANN’s board resolution suggests that the system may have also been controversial within the board. It notes:

some members of the community have expressed concerns about whether the digital archery proposal is sensible and fair, and an informal subgroup of the Board has studied the feasibility, benefits, and risks of the proposal as well as alternative batching mechanisms such as auction.

How to get a $180,000 new gTLD refund

ICANN will give new gTLD applicants a $180,000 refund on their application fee if they withdraw before May 2, it has emerged.
This refund is not mentioned in the Applicant Guidebook, in which the maximum refund available is $148,000. Nor could I find any reference to it on the ICANN new gTLDs microsite.
However, in response to an inquiry from DI last night, an ICANN customer service rep said:

Applications withdrawn prior to the posting of the applied-for strings are qualified for a $180000 refund (if such payment has been made and reconciled by ICANN). The USD5000 registration fee is non-refundable.
The posting of the applied-for strings occurs approximately 2 weeks after the end of the application window, which closes on 12 April 2012. Applications withdrawn after the posting of the applied-for strings will receive refunds according to the refund schedule in section 1.5 of the Applicant Guidebook.

At least one other person, new gTLD consultant Michael Palage of Pharos Global, was told substantially the same thing by the new gTLD service center earlier this week.
I believe ICANN is currently targeting May 2 for its Big Reveal, when we all find out who’s applying for what. May 1, I believe, has been ruled out because it’s a public holiday in some parts of the world.
I don’t think this apparently obscure refund opportunity significantly increases the risk of gaming, but I can see how it might alter some applicants’ strategies.
It’s possible, for example, that in some cases it might now make more sense for an applicant to announce its bid between April 12 and May 2.
After April 12, nobody will be able to file a competing, gaming application, but revealing a strong bid might be enough to scare already-competing applicants into dropping out for a 97% refund.
I don’t think it really helps reluctant dot-brand applicants, which have asked for the $180,000 refund to be available after they know what the competitive landscape for similar strings looks like.

ICANN asked to protect the names of body parts

There’s been no shortage of special pleading in relation to ICANN’s new generic top-level domains program, but this has to be the wackiest yet.
The National Health Council, an American advocacy group, has written to ICANN to ask for extra brand protection for the names of body parts, disabiliies and diseases.
Seriously.
NHC president Myrl Weinberg wrote:

Because it is not possible to trademark a body part (e.g., lung, liver) or a disease category (e.g., arthritis, diabetes), it is difficult for the patient advocacy community to protect the use of such words.
…
We strongly urge ICANN to set forth a process that investigates the potential for misunderstanding, confusion, and harm when awarding gTLDs utilizing the name of a body part or disease/disability.

The letter was inexplicably sent to ICANN’s public comment period on the Universal Acceptance of TLDs. Needless to say it’s completely off-topic, not to mention extremely late.
What seems to have happened is that the NHC’s members received a briefing recently from an ICANN staffer as part of its outreach program and what they learned gave them the willies^TM.

The Olympics and the death of the GNSO, part deux

ICANN’s GNSO Council today narrowly voted to approve controversial special brand protections for the Olympic and Red Cross movements in the new gTLD program.
The vote this afternoon was scheduled as an “emergency” measure after the Council’s dramatic showdown at the ICANN public meeting in Costa Rica earlier this month.
Then, the Non-Commercial Stakeholders Group forced a deferral of the vote on the grounds that ICANN’s proper bottom-up policy-making processes had not been followed.
Today, a virtually identical motion barely squeaked through, turning on just a single vote after all six NCSG councilors abstained in protest.
It was a fairly tense discussion, as these things go.
“This is a sham of a proposal cooked up by a couple of lobbyists and shoved down the GNSO’s throat and that’s why I’m abstaining,” said Robin Gross, sitting in for absent councilor Wendy Seltzer.
“I’m abstaining to avoid the downfall of the GNSO Council,” said fellow NCSG councilor Rafik Dammak.
Essentially, the non-coms are upset that the decision to give special protection to the Olympics, Red Cross and Red Crescent appeared to be a top-down mandate from the ICANN board of directors last June.
(The board was itself responding to the demands of its Governmental Advisory Committee, which had been lobbied for special privileges by the organizations in question.)
ICANN policies are supposed to originate in the community, in a bottom-up fashion, but in this case the normal process was “circumvented”, NCSG councilors said.
Rather than bring the issue of special protection to the GNSO constituencies of which they are members, the IOC and Red Cross went directly to national governments in the GAC, they said.
The motion itself is to create a new class of “Modified Reserved Names” for the new gTLD program’s Applicant Guidebook, comprising solely of strings representing the Olympic and Red Cross.
Unlike the current version of the Guidebook, the International Olympic Committee and Red Cresent and Red Cross would actually be able to apply for their own brands as gTLDs.
The Guidebook would also give these Modified Reserved Names the same protection as ICANN itself in terms of string similarity – so Olympus might have a problem if it applies for a dot-brand.
Of course, the GNSO Council resolution does not become law unless it’s approved by the ICANN board of directors and implemented by staff in the Applicant Guidebook.
With the March 29 and April 12 application deadlines approaching, there’s a limited – some might say negligible – amount of time for that to happen if the GNSO’s work is to have any meaning.
That said, ICANN chair Steve Crocker said on more than one occasion during the Costa Rica meeting that he wants the board to be more flexible in its scheduling, so it’s not impossible that we’ll see an impromptu board meeting before Thursday.

Today is your first new gTLD deadline

If you’re planning to apply to ICANN for more than one new generic top-level domain and you do not already have a TLD Application System account, today might be your last day to get one.
Go here to get one.
It’s been widely publicized that April 12 is the last day to file a new gTLD application with ICANN.
It’s also been widely publicized that March 29 is the last day to register an account with TAS, which is a prerequisite to filing an application.
A less well-known date is today, March 23, five business days before TAS closes to new registrants.
According to ICANN, organizations applying for more than one gTLD with the same TAS account need to get registered in TAS at least a week before registration closes.
ICANN said this today, in reply to a DI inquiry:

29 March is the deadline for registration.
This means applicants will have until 29 March to request an application.
If the applicant is a new user and wishes to submit only one application, the applicant may initiate and complete the application request on the same day (29 March for example).
If an applicant wishes to submit multiple applications, it will need to initiate the registration process several days in advance of the application window.
The reason being that only registered TAS users may request multiple applications.
The process for becoming a registered TAS user not only includes completing the application request as mentioned, but also the legal review, USD 5000 registration fee payment, reconciliation of the registration fee payment, and receipt of TAS login credentials.

ICANN announced a few weeks ago that “ICANN recommends that organizations wishing to submit several TLD applications under a single TAS user account complete steps 1 and 2 several days (e.g. 5 to 7 business days) in advance of 29 March.”
It seems that if you need to submit multiple new gTLD applications and you haven’t already, you will still be able to do so before March 29, as long as you file them under separate newly created TAS accounts.
But please don’t take my word for it. ICANN’s communications on this particular issue have not been great.
Go check out the official site or contact ICANN if you’re worried.

Another conflicted ICANN director?

Yet another member of ICANN’s board of directors may have a conflict of interest relating to the new generic top-level domains program, it has emerged.
As well as its official open meeting last Friday, the board held three off-the-books meetings during ICANN 44 last week, the outcomes of which have just been published.
Last Wednesday, March 14, the board met in private and passed this resolution:

Resolved (2012.03.14.01), the Subcommittee of the Board Governance Committee on Ethics and Conflicts is requested to review its determination of a perceived, potential or actual conflict of interest in relation to one of the Directors to determine if the mitigation factors identified remain correct as a result of new information learned at the meeting.

In other words, a director currently identified as non-conflicted in relation to the gTLD program may in fact be conflicted as ICANN defines it, based on newly acquired information.
The resolution does not state which director it refers to.
If I had to speculate — and funnily enough I feel compelled to do so — I’d say it’s Judith Vasquez.
Vasquez’s latest statement of interest, also published last week, states that she has “indicated that she may be involved with a new gTLD application”.
This potential conflict was first identified by ICANN in October, shortly before she joined the board.
However, Vasquez discussed and voted on new gTLD-related resolutions at ICANN board meetings held in February and December.
Other directors whose employers are thinking about applying for new gTLDs – such as IBM’s Thomas Narten – have recused themselves from related discussions.
It’s not clear why Vasquez has not recused herself.
In any event, last week’s resolution could refer to another director whose SOI does not currently state a potential conflict.
Ethics at ICANN have been on ICANN’s agenda since the Singapore meeting last June – former chair Peter Dengate Thrush’s move to Minds + Machines saw to that.
The issue was raised again by CEO Rod Beckstrom during his Costa Rica opening address last Monday, in which he talked about a “tangle of conflicting agendas” on the board.
Such is the degree of concern that ICANN’s Board Governance Committee recently discussed setting up a new committee, comprising the non-conflicted directors, to hold delegated authority over all matters related to the new gTLD program.
ICANN staff were directed to create a formal proposal for such a committee for consideration in Costa Rica last week, but that does not appear to have happened.
While seven of ICANN’s 21 directors recused themselves from a February vote due to new gTLD program conflicts, only four of those were among the 16 voting directors.

Olympic showdown spells doom for ICANN, film at 11

ICANN’s 43rd public meeting, held in Costa Rica last week, was a relatively low-drama affair, with one small exception: the predicted death of ICANN’s Generic Names Supporting Organization.
The drama went down at the GNSO Council’s meeting last Wednesday – or “the day that everyone is going to remember as the downfall of the current GNSO Council” as vice-chair Jeff Neuman put it.
It had all the elements one might expect from an ICANN showdown: obscure rules of engagement, government meddling, special interests, delayed deadlines, whole oceans of acronym soup, commercial and non-commercial interests facing off against each other…
…and it was ultimately utterly, utterly pointless and avoidable.
The GNSO Council – which is responsible for forwarding community policies to ICANN’s board of directors – was asked to vote on a resolution giving special trademark protections to the International Olympic Committee and Red Cross and Red Crescent movements.
The resolution would have made it possible for the IOC/RC/RC organizations to apply for new gTLDs such as .olympic and .redcross while also disallowing confusingly similar strings from delegation.
The motion was created by a Drafting Team on the instruction of the ICANN board of directors, itself responding to a request from a heavily lobbied Governmental Advisory Committee.
The timing of the vote was crucial – the GNSO Council was not set to meet again until April 12, coincidentally the same date that ICANN stops accepting applications for new gTLDs.
If the vote didn’t happen last week, the IOC and Red Cross could have been basically banned from applying for new gTLDs until the second application round, years from now.
Confusingly similar strings would be eligible for delegation in the first round, however, which could mean both organizations would be locked out of the program permanently.
The resolution enjoyed broad support and was set to attract positive votes from every constituency group with the exception of the Non-Commercial Stakeholders Group.
The Non-Coms were unhappy that the Drafting Team recommendations underlying the resolution were, and still are, open for public comment.
While it’s not a unanimous view, they’re also ideologically opposed to the idea that the IOC and Red Cross should get special protection when a cheap way to object to confusing gTLDs already exists.
And the NCSG is far from alone in its concern that the decision to grant special privileges to these groups was a top-down decree from the ICANN board, lobbied for by the GAC.
Rather than simply voting “no”, however, the NCSG decided instead to force a deferral of the vote.
NCSG councilor Rafik Dammak said the resolution was “questionable on the merits and contrary to ICANN’s processes” and said the group had decided it had “no option but to defer this motion at least until the public comment period is closed”.
The GNSO Council has an unwritten but frequently used convention whereby any stakeholder group request to defer a vote until the next meeting is honored by the chair.
Barely a Council meeting goes by without one stakeholder group or another requesting a deferral. Usually, it’s requested to give a constituency group more time to study a proposal.
“The deferral request is intended to give people time to consider motions,” Council chair Stephane Van Gelder told Dammak. “The statement you just read is a statement against the motion itself.”
As Van Gelder noted, the NCSG did not have the usual excuse. Drafting Team chair Jeff Neuman had spent a few weeks prior to Costa Rica making damn sure that every stakeholder group, as well as the ICANN board, knew exactly what was coming down the pike.
As a veteran GNSO wonk, Neuman knew that a Non-Com deferral was likely. Even I predicted the move over a week before the Costa Rica meeting kicked off.
He was a little pissed off anyway. Neuman said:

For us to not be able to vote today is a failure. It’s a failure of the system under the guise of claiming you want more public comment. It’s a convenient excuse but in the end it’s a failure – nothing more, nothing less. This is a slap in the face to the governments that have asked us to decide.
You already know how you’re going to vote, it’s clear the vote is going to be no, so why don’t you stand behind your vote and vote now and vote no. That is what you really should be doing.
I want everyone to remember today – March 14, 2012 – because it this is the day that everyone going to remember as the downfall of the current GNSO Council as we know it and the policy process as we know it. Mark my words, it will happen. The GAC has asked us to act and we have failed to do so.

See? Drama.
Neuman noted that the deferral tradition is an unwritten politeness and called for the Council to vote to reject the NCSG’s request – an unprecedented move.
Van Gelder was clearly uncomfortable with the idea, as were others.
NCSG councilor Bill Drake said Neuman’s call for a vote on the deferral was “absolutely astonishing”.
“I never would have imagined I could say ‘well I don’t like this, this annoys me’ and so I’m going to demand we get a vote together and try to penalize a minority group that’s standing alone for some principle,” he said. “If that’s how we going to go about conducting ourselves perhaps this is the end of the Council.”
The Non-Com position also found support from other constituencies.
While Mason Cole of the Registrars Stakeholder Group said he would have voted in favor of the resolution, he said the way the policy was created looked like “a circumvention of the bottom-up policy development process”.
To cut a long story short (too late), after a spirited debate that lasted over an hour Van Gelder honored the NCSG deferral request, saying “something that we’ve always allowed in the past for everyone else should not be overturned in this instance”.
This would have pushed the vote out to the April 12 meeting — the NCSG would have effectively killed off the resolution purely by virtue of the new gTLD program timetable.
Neuman, however, had already invoked another quirk of the GNSO rules of engagement, demanding an emergency Council teleconference to vote on the resolution.
That’s now scheduled for March 26. Assuming the resolution is approved, the ICANN board will have just three days to rubber-stamp it before ICANN’s TLD Application System stops accepting new users.
If the Olympic or Red Cross organizations have any plans to apply for new gTLDs matching their brands, they’re going to have to be very quick.
Frankly, the IOC/RC issue has been a bit of a clusterfuck from beginning to end. This is one of those cases, it seems to me, in which every party involved is wrong.
The GAC was wrong to demand unnecessary special protections for these bodies back in June.
The ICANN board of directors was wrong to overturn established bottom-up policy when it gave the GAC what it wanted at the Singapore meeting.
The ICANN staff implementation that made it into the Applicant Guidebook last September was wrong and full of loopholes.
The Drafting Team was wrong (albeit through no fault of its own) to assume that it was refining established law rather than legislating.
The GNSO Council was wrong to consider a resolution on a policy that was still open for public comment.
The Non-Coms were wrong to abuse the goodwill of the Council by deferring the vote tactically.
There are probably a few typos in this article, too.
But does it spell the end of the GNSO?
I don’t think so. I suspect Neuman’s doomsaying theatrics may have also been somewhat tactical.
The GAC, which wields the hypothetical kill-stick, has yet to say anything about the drama. This may change if the GAC doesn’t get what it wants by the Prague meeting in June, but for now the GNSO is, I believe, safe.

Second new gTLD round in “small number of years”

ICANN chair Steve Crocker has said that the second round of new generic top-level domain applications will open years from now, but “not a large number of years”.
He made the comments during an interview with ICANN’s head of media relations Brad White after the ICANN public meeting in San Jose, Costa Rica closed on Friday.
“We can’t pin it down with any certainty but we can make a rough estimate,” Crocker said. “It’s time measured from here in years but not a large number of years, it’s probably a small number of years but I can’t pin it down greater than that because we’re running an experiment.”
He reiterated that the first round applications need to be processed and a number of reviews need to take place before the second round opens.
He said ICANN should have a better idea how long the first of these two prerequisites will take after the application window closes April 12.
The Governmental Advisory Committee reiterated its demands for a review of the first round in its Advice document on Friday.
The earliest I believe a second round could open based on what we currently know is 2015, but many other domain industry players think 2017 is more likely.
I think the date will depend to an extent on the changing balance of tensions in the the ICANN community over the next couple of years.
If there’s a strong demand for a second round from business and intellectual property stakeholders, the necessary rights protection reviews may not be as long and drawn-out as many expect.
Crocker also said during the interview that Rod Beckstrom’s replacement as president and CEO will likely be announced in May.

ICANN to issue update on IANA contract

This weekend’s shock news that ICANN’s bid to renew its IANA contract with the US government failed is still without an official, detailed explanation, but ICANN may soon reveal more specifics.
The National Telecommunications and Information Administration said Saturday that no bidder for the IANA contract had met its requirements, and that it was canceling the RFP until a later date.
It extended ICANN’s management of IANA for another six months.
CEO Rod Beckstrom said at a press conference here at the public meeting in Costa Rica today that ICANN cannot comment on the reasons its bid was rejected for now.
However, it’s going to meet with the NTIA soon to discuss the matter and may issue an update later.
“We were invited to have a debriefing with them to learn more about this,” Beckstrom said. “Following that discussion we will share any information we are allowed to share.”
Here in San Jose, there are several theories floating around the show floor.
The first hypothesis, which was popular on Saturday but which since seems to have fallen out of favor, is that it was a deliberate attempt to, in the words of one attendee, “fuck with” Beckstrom.
His contract expires in early July, and it was speculated that the NTIA would prefer to deal with his successor on the IANA contract, forcing him to leave the organization on a bum note.
I don’t really buy that. I can’t see the NTIA playing personality politics to that extent, not with the future of internet governance on the line.
The other theory doing the rounds is that ICANN fell foul of some rather esoteric US procurement guidelines – that the NTIA was legally unable to approve its bid.
Others speculate that ICANN just submitted a really crappy response to the RFP, or a response that failed to take the NTIA’s requirements seriously enough.
This seems more likely.
Whatever the reason, the way the news broke – apparently catching ICANN off-guard as much as anybody else – certainly suggests that the NTIA either screwed up its communications or that it wanted to make one of its trademark pre-show sabre-rattling statements.