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Should YOU have to pay when lawyers access your private Whois info?

Kevin Murphy, September 23, 2020, Domain Policy

The question of who should shoulder the costs of ICANN’s proposed Whois overhaul is being raised, with governments and others suggesting that the burden should fall on registrants themselves.

In separate statements to ICANN recently, the Governmental Advisory Committee and Security and Stability Advisory Committee both put forward the view that registrants, rather than the trademark lawyers behind most requests for private Whois data, should fund the system.

ICANN currently expects the so-called System for Standardized Access/Disclosure (SSAD), proposed after two years of talks in an ICANN community working group, to cost $9 million to build and another $9 million a year to operate.

The working group, known as the EPDP, has recommended in its final report that registrants “MUST NOT bear the costs for having data disclosed to third parties”.

Instead, it recommended that requestors themselves should pay for the system, probably via an annual accreditation fee.

But now the GAC and SSAC have issued minority statements calling that conclusion into question.

The GAC told ICANN (pdf):

While the GAC recognizes the appeal of not charging registrants when others wish to access their data, the GAC also notes that registrants assume the costs of domain registration services as a whole when they register a domain name.

While the SSAC said (pdf):

Data requestors should not primarily bear the costs of maintaining the system. Requestors should certainly pay the cost of getting accredited and maintaining their access to the system. But the current language of [EPDP Recommendation] 14.2 makes victims and defenders cover the costs of the system’s operation, which is unfair and is potentially dangerous for Internet security…

No previous PDP has protected registrants from having the costs associated with “core” registration services or the implementation of consensus policies being passed on to them. No previous PDP has tried to manipulate the functioning of market forces as is proposed in Recommendation 14.

SSAC suggested instead that registrars should be allowed to pass on the costs of SSAD to their customers, and/or that ICANN should subsidize the system.

Over 210 million gTLD domain names, $9 million a year would work out to less than five cents per domain, but one could argue there’s a principle at stake here.

Should registrants have to pay for the likes of Facebook (probably the biggest requestor of private Whois data) to access their private contact information?

The current proposed system would see the estimated $9 million spread out over a far smaller number of requestors, making the fee something like $450 per year.

EPDP member Milton Mueller did the math and concluded that any company willing to pay its lawyers hundreds of thousands of dollars to fight for greater Whois access in ICANN could certainly swallow a measly few hundred bucks a year.

But the minority objections from the GAC, SSAC and Intellectual Property Constituency do not focus wholly on the costs. They’re also bothered that SSAD doesn’t go nearly far enough to actually provide access to Whois data.

Under the current, temporary, post-GDPR system, registries and registrars basically use their own employees’ discretion when deciding whether to approve a Whois data request.

That wouldn’t change significantly under SSAD, but there would be a huge, multi-tiered system of accreditation and request-forwarding that’s been described as “glorified, overly complex and very expensive ticketing system”.

The GAC wants something much more automated, or for the policy to naturally allow increased automation over time. It also wants increased centralization, taking away much of the human decision-making at registrars out of the equation.

The response from the industry has basically been that if GDPR makes them legally liable for their customers’ data, then it’s the registries and registrars that should make the disclosure decisions.

The GAC has a great deal of power over ICANN, so there’s likely to be a bit of a fight about the EPDP’s outcomes and the future of SSAD.

The recommendations are due to be voted on by the GNSO Council at its meeting tomorrow, and as I’ve noted before, it could be tight.

Council chair Keith Drazek seems to be anticipating some lively debate, and he’s already warned fellow members that’s he’s not minded to approve any request for a delay on the vote, noting that the final report has been available for review for several weeks.

By convention, the Council will defer a vote on the request of any of its constituency groups, but this is sometimes exploited.

Should the Council approve the resolution approving the final report — which contains a request for further financial review of SSAD — then it will be forwarded to the ICANN board of directors for final discussion and approval.

But with the GAC on its case, with its special advisory powers, getting SSAD past the board could prove tricky.

No ICANN meetings until 2021

Kevin Murphy, September 16, 2020, Domain Policy

Community members itching to be able to suck up to (or berate) ICANN staffers in person rather than over the phone or videoconferencing will have to wait a little longer.

The Org announced today that all face-to-face meetings have been cancelled until the end of the year due to the ongoing coronavirus pandemic.

It doesn’t affect any of the big public meetings — the AGM in October was relocated from Hamburg to Zoom a few months ago — but regular business travel and intersessional meetings are hit.

It also means ICANN staffers will continue to work from home until January at the earliest, ICANN said.

The health and safety of our community and staff are always our top concern, and we believe it is not prudent to travel or encourage gatherings until at least the end of 2020. The ongoing and long-term health impact of COVID-19 on our community and staff is a risk that we are not willing to take. In addition, the travel landscape has not yet stabilized, which makes any travel complicated and risky.

Call me a pessimist, but I’d be very surprised if this is the last time the travel ban is extended.

ICANN ordered to freeze .hotel after “serious questions” about trade secrets “theft”

Kevin Murphy, September 3, 2020, Domain Policy

ICANN has been instructed to place the proposed .hotel gTLD in limbo after four applicants for the string raised “sufficiently serious questions” that ICANN may have whitewashed the “theft” of trade secrets.

The order was handed down last month by the emergency panelist in the Independent Review Process case against ICANN by claimants Fegistry, MMX, Radix and Domain Ventures Partners.

Christopher Gibson told ICANN to “maintain the status quo” with regards the .hotel contention set, meaning currently winning applicant Hotel Top Level Domain, which is now owned by Afilias, won’t get contracted or delegated until the IRP is resolved.

At the core of the decision (pdf) is Gibson’s view that the claimants raised “sufficiently serious questions related to the merits” in allegations that ICANN mishandled and acted less than transparently in its investigation into a series of data breaches several years ago.

You may recall that ICANN seriously screwed up its new gTLD application portal, configuring in such a way that any applicant was able to search for and view the confidential data, including financial information such as revenue projections, of any other competing applicant.

Basically, ICANN was accidentally publishing applicants’ trade secrets on its web site for years.

ICANN discovered the glitch in 2015 and conducted an audit, which initially fingered Dirk Krischenowski — who at time was the half-owner of a company that owned almost half of HTLD as well as a lead consultant on the bid — as the person who appeared to have accessed the vast majority of the confidential data in March and April 2014.

ICANN did not initially go public with his identity, but it did inform the affected applicants and I managed to get a copy of the email, which said he’d downloaded about 200 records he shouldn’t have been able to access.

It later came to light that Krischenowski was not the only HTLD employee to use the misconfiguration to access data — according to ICANN, then-CEO of HTLD Katrin Ohlmer and lawyer Oliver Süme had too.

HTLD execs have always denied any wrongdoing, and as far as I know there’s never been any action against them in the proper courts. Krischenowski has maintained that he had no idea the portal was glitched, and he was using it in good faith.

Also, neither Ohlmer nor Krischenowski are still involved with HTLD, having been bought out by Afilias after the hacking claims emerged.

These claims of trade secret “theft” are being raised again now because the losing .hotel applicants think ICANN screwed up its probe and basically tried to make it go away out of embarrassment.

Back in August 2016, the ICANN board decided that demands to cancel the HTLD application were “not warranted”. Ohlmer barely gets a mention in the resolution’s rationale.

The losing applicants challenged this decision in a Request for Reconsideration in 2016, known as Request 16-11 (pdf). In that request, they argued that the ICANN board had basically ignored Ohlmer’s role.

Request 16-11 was finally rejected by the ICANN board in January last year, with the board saying it had in fact considered Ohlmer when making its decision.

But the IRP claimants now point to a baffling part of ICANN’s rationale for doing so: that it found “no evidence that any of the confidential information that Ms. Ohlmer (or Mr. Krischenowski) improperly accessed was provided to HTLD”.

In other words, ICANN said that the CEO of the company did not provide the information that she had obtained to the company of which she was CEO. Clear?

Another reason for brushing off the hacking claims has been that HTLD could have seen no benefit during the application process by having access to its rivals’ confidential data.

HTLD won the contention set, avoiding the need for an auction, in a Community Priority Evaluation. ICANN says the CPE was wholly based on information provided in its 2012 application, so any data obtained in 2014 would have been worthless.

But the losing applicants say that doesn’t matter, as HTLD/Afilias still have access to their trade secrets, which could make the company a more effective competitor should .hotel be delegated.

This all seems to have been important to Gibson’s determination. He wrote in his emergency ruling (pdf) last month:

The Emergency Panelist determines that Claimants have raised “sufficiently serious questions related to the merits” in in relation to the Board’s denial of Request 16-11, with respect to the allegations concerning the Portal Configuration issues in Request 16-11. This conclusion is made on the basis of all of the above information, and in view of Claimants’ IRP Request claim that ICANN subverted the investigation into HTLD’s alleged theft of trade secrets. In particular, Claimants claim that ICANN refused to produce key information underlying its reported conclusions in the investigation; that it violated the duty of transparency by withholding that information; that the Board’s action to ignore relevant facts and law was a violation of Bylaws; and further, to extent the BAMC and/or Board failed to have such information before deciding to disregard HTLD’s alleged breach, that violated their duty of due diligence upon reasonable investigation, and duty of independent judgment.

The Emergency Panelist echoes concerns that were raised initially by the Despegar IRP Panel regarding the Portal Configuration issues, where that Panel found that “serious allegations” had been made188 and referenced Article III(1) of ICANN’s Bylaws in effect at that time, but declined to make a finding on those issues, indicating “that it should remain open to be considered at a future IRP should one be commenced in respect of this issue.” Since that time, ICANN conducted an internal investigation of the Portal Configuration issues, as noted above; however, the alleged lack of disclosure, as well as certain inconsistencies in the decisions of the BAMC and the Board regarding the persons to whom the confidential information was disclosed and their relationship to, or position with HTLD, as well as ICANN’s decision to ultimately rely on a “no harm no foul” rationale when deciding to permit the HTLD application to proceed, all raise sufficiently serious questions related to the merits of whether the Board breached ICANN’s Article, Bylaws or other polices and commitments.

It’s important to note that this is not a final ruling that ICANN did anything wrong, it’s basically the ICANN equivalent of a ruling on a preliminary injunction and Gibson is saying the claimants’ allegations are worthy of further inquiry.

And the ruling did not go entirely the way of the claimants. Gibson in fact ruled against them on most of their demands.

For example, he said their was insufficient evidence to revisit claims that a review of the CPE process carried out by FTI Consulting was a whitewash, and he refused to order ICANN to preserve documentation relating to the case (though ICANN has said it will do so anyway).

He also ruled against the claimants on a few procedural issues, such as their demands for an Ombudsman review and for IRP administrator the International Center for Dispute Resolution to recuse itself.

Some of their claims were also time-barred under ICANN’s equivalent of the statute of limitations.

But ICANN will be prevented from contracting with HTLD/Afilias for now, which is a key strategic win.

ICANN reckons the claimants are just using the IRP to try to force deep-pocketed Afilias into a private auction they can be paid to lose, and I don’t doubt there’s more than a grain of truth in that claim.

But if it exposes another ICANN cover-up in the process, I for one can live with that.

The case continues…

ICANN will spend $51,000 on your broadband

Kevin Murphy, September 2, 2020, Domain Policy

ICANN has set aside up to $51,000 to reimburse community members for their broadband costs during its next public meeting.

Under the newly agreed Pandemic Internet Access Reimbursement Program Pilot, participants in ICANN 69 will get a maximum of $60 each to cover the costs of increased bandwidth or data caps during the month of October.

The pilot is limited to only those who already have their travel funded from the ICANN budget, such as members of important committees and the Fellowship program.

They’ll have to provide receipts from a legit ISP showing how much they paid to participate in the meeting, which will be the third in a row to be carried out via Zoom.

Anyone who wants the reimbursement will have to apply before October 2, and payouts will be made in November.

ICANN will also publish the names of those who receive the payments, as it does with travel reimbursements, which should discourage abuse.

As I’ve previously noted, ICANN is saving millions this year by eschewing in-person meetings, and $51,000 really is a drop in that ocean.

ICANN 69 runs from October 17 to October 22. It had originally been scheduled to run in Hamburg.

Amazon waves off demand for more government blocks

Kevin Murphy, August 31, 2020, Domain Policy

Amazon seems to have brushed off South American government demands for more reserved domains in the controversial .amazon gTLD.

VP of public policy Brian Huseman has written to Amazon Cooperation Treaty Organization secretary general Alexandra Moreira to indicate that Amazon is pretty much sticking to its guns when it comes to .amazon policy.

Moreira had written to Huseman a few weeks ago to complain that the Public Interest Commitments included in Amazon’s registry contract with ICANN do not go far enough to protect terms culturally sensitive to the Amazon region.

She wanted more protection for the “names of cities, villages, mountains, rivers, animals, plants, food and other expressions of the Amazon biome, biodiversity, folklore and culture”.

ACTO also has beef with an apparently unilateral “memorandum of understanding” (page 8 of this PDF) Amazon says it has committed to.

That MoU would see the creation of a Steering Committee, comprising three Amazon representatives and nine from ACTO and each of its eight member states, which would guide the creation and maintenance of .amazon block-lists.

ACTO is worried that the PICs make no mention of either the committee or the MoU, and that Huseman is the only signatory to the MoU, which it says makes the whole thing non-binding.

Moreira’s August 14 letter asked for Amazon and ACTO to “mutually agree on a document”, and for the PICs to be amended to incorporate the MoU, making it binding and enforceable. She also asked for potentially thousands of additional protected terms.

Huseman replied August 28, in a letter seen by DI, to say that Amazon is “committed to safeguard the people, culture, and heritage of the Amazonia region” and that the PICs and MoU “have the full backing and commitment” of the company.

He added:

We are disappointed that we have not yet received the names and contact information of those within ACTO who might serve on the Steering Committee contemplated in the MOU because their knowledge and help could be very beneficial as we move forward to implement the PICs.

The letter does not address ACTO’s demand for a binding bilateral agreement, nor the request for additional blocks.

ICANN itself is no longer a party to these negotiations, having washed its hands of the sorry business last month.

Schreiber really did sue you all, sorry

Kevin Murphy, August 31, 2020, Domain Policy

It seems the aggrieved domain registrant and troll Graham Schreiber really has filed a lawsuit against scores of current and former domain name industry and ICANN community members.

You may recall that last week I blogged about a purported lawsuit by Schreiber against many industry professionals, as well as people who’ve been heavily involved in ICANN over the last couple decades.

I noted that there was no independent confirmation that any complaint has actually been filed in any court, but it turns out a complaint has now actually been filed.

A search on the Canadian Federal Court system reveals:

Schreiber

That appears to be an intellectual property lawsuit filed August 25 by Schreiber against “Jeffrey Levee et al”.

That’s five days after the document started circulating among defendants and my original coverage.

Levee is the long-time outside counsel for ICANN, working for Jones Day for two decades. In the org’s early days, his name often popped up in conspiracy theories.

The Schreiber document that was circulated last week just happened to name Levee as his first defendant, followed by several dozen more, often far less influential, individuals and companies.

To see my original coverage of the pretty much incomprehensible complaint, along with a link to the document, go here.

Fight over closed generics ends in stalemate

Kevin Murphy, August 27, 2020, Domain Policy

Closed generic gTLDs could be a thing in the next application round. Or they might not. Even after four years, ICANN’s greatest policy-making minds can’t agree.

The New gTLDs Subsequent Procedures working group (SubPro) delivered its draft final policy recommendations last week, and the most glaring lack of consensus concerned closed generics.

A closed generic is a dictionary-word gTLD, not matching the applicant’s trademark, that is nevertheless treated as if it were a dot-brand, where the registry is the only eligible registrant.

It’s basically a way for companies to vacuum up the strings most relevant to their businesses, keeping them out of the hands of competitors.

There were 186 attempts to apply for closed generics in 2012 — L’Oreal applied for TLDs such as .beauty, .makeup and .hair with the clear expectation of registry-exclusive registrations, for example

But ICANN moved the goalposts in 2013 following advice from its Governmental Advisory Committee, asking these applicants to either withdraw or amend their applications. It finally banned the concept in 2015, and punted the policy question to SubPro.

But SubPro, made up of a diverse spectrum of volunteers, was unable to reach a consensus on whether closed generics should be allowed and under what circumstances. It’s the one glaring hole in its final report.

The working group does appear to have taken on board the same GAC advice as ICANN did seven years ago, however, which presents its own set of problems. Back in 2013, GAC advice was often written in such a way as to be deliberately vague and borderline unimplementable.

In this case, the GAC had told ICANN to ban closed generics unless there was a “a public interest goal”. What to make of this advice appears to have been a stumbling block for SubPro. What the hell is the “public interest” anyway?

Working group members were split into three camps: those that believed closed generics should be banned outright, those who believed that should be permitted without limitation, and those who said they should be allowed but tightly regulated.

Three different groups from SubPro submitted proposals for how closed generics should be handled.

The most straightforward, penned by consultant Kurt Pritz and industry lawyers Marc Trachtenberg and Mike Rodenbaugh, and entitled The Case for Delegating Closed Generics (pdf) basically says that closed generics encourage innovation and should be permitted without limitation.

This trio argues that there are no adequate, workable definitions of either “generic” or “public interest”, and that closed generics are likely to cause more good than harm.

They raise the example of .book, which was applied for by Amazon as a closed generic and eventually contracted as an open gTLD.

Many of us were thrilled when Amazon applied for .book. Participation by Amazon validated the whole program and the world’s largest book seller was well disposed to use the platform for innovation. Yet, we decided to get in the way of that. What harm was avoided by cancelling the incalculable benefit staring us right in the face?

Coincidentally, Amazon signed its .book registry agreement exactly five years ago today and has done precisely nothing with it. There’s not even a launch plan. It looks, to all intents and purposes, warehoused.

It goes without saying that if closed generics are allowed by ICANN, it will substantially increase the number of potential new gTLD applicants in the next round and therefore the amount of work available for consultants and lawyers.

The second proposal (pdf), submitted by recently independent policy consultant Jeff Neuman of JJN Solutions, envisages allowing closed generics, but with only with heavy end-user (not registrant) involvement.

This idea would see a few layers of oversight, including a “governance council” of end users for each closed generic, and seems to be designed to avoid big companies harming competition in their industries.

The third proposal (pdf), written by Alan Greenberg, Kathy Kleiman, George Sadowsky and Greg Shatan, would create a new class of gTLDs called “Public Interest Closed Generic gTLDs” or “PICGS”.

This is basically the non-profit option.

PICGS would be very similar to the “Community” gTLDs present since the 2012 round. In this case, the applicant would have to be a non-profit entity and it would have to have a “critical mass” of support from others in the area of interest represented by the string.

The model would basically rule out the likes of L’Oreal’s .makeup and Amazon’s .book, but would allow, off the top of my head, something like .relief being run by the likes of the Red Cross, Oxfam and UNICEF.

Because the working group could not coalesce behind any of these proposals, it’s perhaps an area where public comment could have the most impact.

The SubPro draft final report is out for public comment now until September 30.

After it’s given final approval, it will go to the GNSO Council and then the ICANN board before finally becoming policy.

New gTLD prices could be kept artificially high

Kevin Murphy, August 27, 2020, Domain Policy

ICANN might keep its new gTLD application fees artificially expensive in future in order to deter TLD warehousing.

Under a policy recommendation out from the New gTLDs Subsequent Procedures working group (SubPro) last week, ICANN should impose an “application fee floor” to help keep top-level domains out of the hands of gamers and miscreants.

In the 2012 application round, the $185,000 fee was calculated on a “cost-recovery basis”. That is, ICANN was not supposed to use it as a revenue source for its other activities.

But SubPro wants to amend that policy so that, should the costs of the program ever fall before a yet-to-be-determined minimum threshold, the application fee would be set at this fee floor and ICANN would take in more money from the program than it costs to run.

SubPro wrote:

The Working Group believes that it is appropriate to establish an application fee floor, or minimum application fee that would apply regardless of projected program costs that would need to be recovered through application fees collected. The purpose of an application fee floor is to deter speculation and potential warehousing of TLDs, as well as mitigate against the use of TLDs for abusive or malicious purposes. The Working Group’s support for a fee floor is also based on the recognition that the operation of a domain name registry is akin to the operation of a critical part of the Internet infrastructure.

The working group did not put a figure on what the fee floor should be, instead entrusting ICANN to do the math (and publicly show its working).

But SubPro agreed that ICANN should not use what essentially amounts to a profit to fund its other activities.

The excess cash could only be used for things related to the new gTLD program, such as publicizing the availability of new gTLDs or subsidizing poorer applicants via the Applicant Support Program.

ICANN already accounts for its costs related to the program separately. It took in $361 million in application fees back in 2012 and as of the end of 2019 it had $62 million remaining.

Does that mean fees could come down by as much as 17% in the next application round based on ICANN’s experience? Not necessarily — about a third of the $185,000 fee was allocated to a “risk fund” used to cover unexpected developments such as lawsuits, and that risk profile hasn’t necessarily changed in the last eight years.

Fees could be lowered for other reasons also.

As I blogged earlier today, a new registry service provider pre-evaluation program could reduce the application fee for the vast majority of applicants by eliminating redundancies and shifting the cost of technical evaluations from applicants to RSPs.

The financial evaluation is also being radically simplified, which could reduce the application fee.

In 2012, evaluations were carried out based on the applicant’s modelling of how many domains it expected to sell and how that would cover its expenses, but many applicants were way off base with their projections, rendering the process flawed.

SubPro proposes to do away with this in favor generally of applicants self-certifying that their financial situation meets the challenge. Public companies on the world’s largest 25 exchanges won’t have to prove they’re financially capable of running a gTLD at all.

The working group is also proposing changes to the Applicant Support Program, under which ICANN subsidizes the application fee for needy applicants. It wasn’t used much in 2012, a failure largely attributed to ICANN’s lack of outreach in the Global South.

Under SubPro’s recommendations, ICANN would be required to do a much better job of advertising the program’s existence, and subsidies would extend beyond the application fee to additional services such as consultants and lawyers.

Language from the existing policy restricting the program to a few dozen of the world’s poorest countries (which was, in practice, ignored in 2012 anyway), would also be removed and ICANN would be encouraged to conduct outreach in a broader range of countries.

In terms of costs, dot-brand applicants also get some love from SubPro. These applicants will be spared the requirement to have a so-called Continuing Operations Instrument.

The COI is basically a financial safeguard for registrants, usually a letter of credit from a big bank. In the event that a registry goes out of business, the COI is tapped to pay for three years of operations, enabling registrants to peacefully transition to a different TLD.

Given that the only registrant of a dot-brand gTLD is the registry itself, this protection clearly isn’t needed, so SubPro is making dot-brand applicants exempt.

Overall, it seems very likely that the cost of applying for a new gTLD is going to come down in the next round. Whether it comes down to something in excess of the fee floor or below it is going to depend entirely on ICANN’s models and estimates over the coming couple of years.

New back-end approval program could reduce the cost of a new gTLD

Kevin Murphy, August 27, 2020, Domain Policy

ICANN will consider a new pre-approval program for registry back-end service providers in order to streamline the new gTLD application process and potentially reduce application fees.

The proposed “RSP pre-evaluation process” was one of the biggest changes to the new gTLD program agreed to by ICANN’s New gTLDs Subsequent Procedures working group (SubPro), which published its final report for comment last week.

The recommendation addresses what was widely seen as a huge process inefficiency in the evaluation phase of the 2012 application round, which required each application to be subjected to a unique technical analysis by a team of outside experts.

This was perceived as costly, redundant and wasteful, given that the large majority of applications proposed to use the same handful of back-end RSPs.

Donuts, which applied for over 300 strings with virtual cookie-cutter business models and all using the same back-end, had to pay for over 300 technical evaluations, for example.

Similarly, clients of dot-brand service providers such as Neustar and Verisign each had to pay for the same evaluation as hundreds of fellow clients, despite the tech portions of the applications being largely copy-pasted from the same source.

For subsequent rounds, that will all change. ICANN will instead do the tech evals on a per-RSP, rather than per-application, basis.

All RSPs that intend to fight for business in the next round will undergo an evaluation before ICANN starts accepting applications. In a bit of a marketing coup for the RSPs, ICANN will then publish the names of all the companies that have passed evaluation.

The RSPs would have to cover the cost of the evaluation, and would have to be reevaluated prior to each application window. ICANN would be banned from making a profit on the procedure.

SubPro agreed that applicants selecting a pre-approved RSP should not have to pay the portion of the overall application fee — $185,000 in 2012 — that covers the tech eval.

RSPs may decide to recoup the costs from their clients via other means, of course, but even then the fee would be spread out among many clients.

The proposed policy, which is still subject to SubPro, GNSO Council and ICANN board approval, is a big win for the back-ends.

Not only do they get to offer prospective clients a financial incentive to choose them over an in-house solution, but ICANN will also essentially promote their services as part of the program’s communications outreach. Nice.

Single/plural gTLD combos to be BANNED

Kevin Murphy, August 27, 2020, Domain Policy

Singular and plural versions of the same string will be banned at the top level under proposed rule changes for the next round of new gTLDs.

The final set of recommendations of ICANN’s New gTLDs Subsequent Procedures working group (SubPro), which were published after four years of development last week, state:

the Working Group recommends prohibiting plurals and singulars of the same word within the same language/script in order to reduce the risk of consumer confusion. For example, the TLDs .EXAMPLE and .EXAMPLES may not both be delegated because they are considered confusingly similar.

The 2012 round had no hard and fast rule about plurals. There were String Similarity Review and String Confusion Objection procedures, but they produced unpredictable results.

At least 15 single/plural string pairs currently exist in the root, including .fan(s), .accountant(s), .loan(s), .review(s) and .deal(s). Sometimes they’re both part of the same registry’s portfolio, other times they’re owned by competitors.

But others, including .pet and .pets and .sport and .sports, were ruled by independent panels too “confusingly similar” to be allowed to coexist.

The proposed new rule would remove much of the subjectivity from these kinds of decisions, replacing the current system of objections with a flat no-coexistence rule.

If a gTLD that was the plural of an existing gTLD were applied for, the application would be rejected. If the singular and plural variants of the same word were applied for in the same round, the applications would likely end up at auction.

But there would be some wriggle room, with the ban only applying if both applied-for strings truly are singular/plural variations of each other in the same language. The working group wrote:

.SPRING and .SPRINGS could both be allowed if one refers to the season and the other refers to elastic objects, because they are not singular and plural versions of the same word. However, if both are intended to be used in connection with the elastic object, then they will be placed into the same contention set. Similarly, if an existing TLD .SPRING is used in connection with the season and a new application for .SPRINGS is intended to be used in connection with elastic objects, the new application will not be automatically disqualified.

In such situations, both registries would have to agree to binding Public Interest Commitments to only use the gTLDs for their stated, non-conflicting purposes. Registrants would also have to commit to only use .spring to represent the season and .springs for the elastic objects, also.

The ban will substantially eliminate the problem I’ve previously referred to as “tailgating”, where a registry applies for the plural variant of a competitor’s successful, well-marketed gTLD, prices domains slightly lower, then sits back to effortlessly reap the benefits of their rival’s popularity.

One could easily imagine applicants for strings such as .clubs or .sites in the next round, with applicants content to lazily ride the coat-tails of the million-selling singular namespaces.

The rule change will also remove the need for existing registries to defensively apply for the single/plural variants of their current portfolio, and for existing registrants to be compelled to defensively registry domains in yet another TLD.

On the flipside, it means that some potentially useful strings would be forever banned from the DNS.

While it might make sense for a film producer to register a .movie domain to market a single movie, it would not make sense for a review site or movies-related blog, where a .movies domain would be more appropriate. But now that’s never going to be possible.

SubPro’s work is still subject to final approval by SubPro, the GNSO Council and ICANN board of directors before it becomes policy.