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Two new gTLD confusion decisions thrown out

Kevin Murphy, October 15, 2014, Domain Policy

ICANN has reopened the contention sets for .cam and .通販 after deciding that two String Confusion Objection panels may have been wrong to reject certain applications.

Two rulings — that .cam is confusingly similar to .com and that .通販 is confusingly similar to .shop (really) — will now head to an appeals panel for a “final” determination.

The decision was made by the ICANN board’s New gTLD Program Committee this week at the ICANN 51 public meeting in Los Angeles.

The first case being reopened for scrutiny is Verisign versus Rightside, where the original SCO panel found that .cam and .com were too similar to coexist on the internet.

But a different panelist found that the two strings were not confusingly similar in objections filed by Verisign against two other applicants — Dot Agency and AC Webconnecting.

The opposing rulings meant that Rightside’s application would have been kicked out of the .cam contention set, which hardly seems fair.

This and many other “perceived inconsistencies” led to the ICANN board being pressured to come up with some kind of appeals process, which it agreed to do in February.

Verisign, unfairly in my view, was not given the opportunity to appeal the two .cam decisions that went against it, even though they were made by the same panelist for the same reasons.

The second, altogether more peculiar, case was .shop applicant Commercial Connect versus .通販 applicant Amazon.

The panelist in that case seemed to have checked his brain at the door that day, concluding that the two strings are confusingly similar simply because 通販 means “online shopping” in Japanese.

Another panelist, in a different case also involving Commercial Connect, had found that .购物 (Chinese for “shopping”) was not confusingly similar to .shop because duh.

ICANN’s NGPC has now decided that the two controversial decisions are “not being in the best interest of the New gTLD Program and the Internet community”.

Both .cam and .通販 will now be referred to a three-person panel at the International Center for Dispute Resolution, the same body that processed the original objections, for a final determination.

Bulgaria and Greece win IDN ccTLDs on appeal

Kevin Murphy, October 15, 2014, Domain Policy

Campaigns in Bulgaria and Greece to get ICANN to un-reject their Cyrillic and Greek-script ccTLD requests have proven successful.

The first decisions handed down by ICANN’s new Extended Process Similarity Review Panel this week said Bulgaria’s .бг and Greece’s .ελ are not “confusingly similar” to other ccTLDs after all.

However, a third appeal by the European Union over the Greek .ευ was rejected on the grounds that the string is too confusingly similar to .EV and .EY when in upper case.

Confusing strings should not be delegated, under ICANN rules, due to the risk of exacerbating the prevalence of security risks such as phishing attacks.

Bulgaria’s initial request for .бг was turned down in 2010 after a panel found it looks too similar to Brazil’s existing ccTLD, .br.

Greece’s bid for .ελ had been blocked for looking too much like .EA, a non-existent ccTLD that could be delegated to a new country in future.

While the initial panel’s process was pretty opaque, the newly published “extended” reviews appear to have employed a fairly scientific methodology to determine similarity.

Twenty American undergraduate student volunteers were shown pairs of strings briefly on screens designed to simulate web browsing. They then had to pick out which one they’d seen.

The volunteers were also shown pairs of similar-looking Latin-script ccTLDs that already exist, in order to establish a baseline for what should be considered an acceptable level of confusability.

The Greek and Bulgarian strings were both found to be less confusing than existing pairs of Latin-script ccTLDs and were therefore given the thumbs-up. The EU string flunked in upper case.

Under ICANN’s rules, it appears that .бг and .ελ can now proceed to delegation, while .ευ has been forever rejected.

The three reports can be downloaded here.

It will be interesting to see how the ICANN Governmental Advisory Committee will react to this.

It was pressure from the GAC — driven by the European Commission and Greece — back in 2012 that forced ICANN into creating the appeals process.

At ICANN’s meeting in Prague that year, the GAC said:

The GAC is of the view that decisions may have erred on the too-conservative side, in effect applying a more stringent test of confusability between Latin and non-Latin scripts than when undertaking a side by side comparison of Latin strings.

Now the EU seems to have been told that it still can’t have its requested ccTLD, and the standard applied was exactly the same standard as applies to Latin ccTLDs.

Will the GAC accept this determination, or stomp its feet?

GAC elects Swiss rep as new chair

Kevin Murphy, October 14, 2014, Domain Policy

ICANN’s Governmental Advisory Committee has elected Thomas Schneider of the Swiss government as its new chair.

The unprecedented, one-nation-one-vote secret ballot election at the ICANN 51 public meeting in Los Angeles today saw Schneider beat Lebanon’s Imad Hoballah by 61 votes to 37.

He will take over from Canadian incumbent Heather Dryden at the end of the week.

Schneider is deputy head of international affairs at the Swiss Federal Office of Communications (Ofcom).

He currently serves as one of the GAC’s three vice chairs.

The election was overseen by the Australian Continuous Improvement Group, which provides the GAC with ICANN-independent secretariat services.

“Send registrars to jail!”, ICANN hears

Kevin Murphy, October 13, 2014, Domain Policy

ICANN is ramping up its focus on contractual compliance in the midst of calls for domain industry offenders to “go to jail”.

CEO Fadi Chehade yesterday revealed that he has has promoted chief contracting counsel Allen Grogan to the newly created role of chief contract compliance officer.

Grogan, who Chehade has worked with off and on since 1991, will report directly to him. Maguy Serad, who has been heading compliance under Chehade for the last couple of years, will now report to Grogan.

In a session with the GNSO Council at the ICANN 51 public meeting in Los Angeles yesterday, Chehade said the appointment was part of a new “strategic, analytical” approach to compliance.

It was hinted that the compliance focus may form part of Chehade’s address at the formal opening ceremony of ICANN 51 later today.

Ron Andruff of the Business Constituency made the “jail” comments in response.

“We need to see action, we need to see teeth,” he said. “We never see any really strong action taken and it’s time we did. It’s time we saw people go to jail for doing things, lose their contracts for doing things.”

“We’ve lived through 15 years of ICANN with all manner of transgressions, some very serious ones, but they all get slid off to the side and there’s never any mention of it,” he said.

“Should someone be the recipient of extremely strong actions — losing their contract, being thrown out the community — that would send a signal,” he said.

Andruff appeared to be relating comments made by the Intellectual Property Constituency’s Kristina Rosette, at a private Commercial Stakeholders Group meeting earlier that day.

However, Rosette was quick to take to Twitter to deny she’d said anything about jail time.

Chehade, in reply to Andruff, agreed with the need for action but clarified what he plans to do.

“It doesn’t mean to create a police force, that’s not what we need,” he said. “What we need is thoughtful, analytical analysis.”

“It doesn’t mean we’re going to take the job of all the global consumer protection agencies,” he said earlier in the session.

The notion of ICANN having the power to directly jail somebody is of course laughable — all of its power comes from its contracts with registrars and registries.

However, it’s not beyond the bounds of possibility that ICANN could refer registrars to law enforcement should it come across suspected illegality in the course of its compliance investigations.

ICANN Compliance currently employs 21 people and deals with 5,000 complaints per month, Chehade said.

In the last year, the number of breach, suspension and termination notices against registrars has been on the increase.

Notably, last November a registrar owned by “spam king” Scott Richter was terminated. Notorious domain “slammer” NameJuice faces possible termination this Friday based on a July suspension notice.

Second new gTLD round “possible” but not “probable” in 2016

Kevin Murphy, September 26, 2014, Domain Policy

If there are any companies clamoring to get on the new gTLD bandwagon, they’ve got some waiting to do.

Based on a sketchy timetable published by ICANN this week, it seems unlikely that a second application round will open before 2017, and even that might be optimistic.

While ICANN said that “based on current estimates, a subsequent application round is not expected to launch until 2016 at the earliest”, that date seems unlikely even to senior ICANN staffers.

“The possibility exists,” ICANN vice president Cyrus Namazi told DI, “but the probability, from my perspective, is not that high when you think about all the pieces that have to come together.”

Here’s an ICANN graphic illustrating these pieces:

As you can see, the two biggest time-eaters on the road-map, pushing it into 2017, are a GNSO Policy Development Process (green) and the Affirmation of Commitments Review (yellow).

The timetable envisages the PDP, which will focus on what changes need to be made to the program, lasting two and a half years, starting in the first quarter 2015 and running until mid-2017.

That could be a realistic time-frame, but the GNSO has been known to work quicker.

An ICANN study in 2012 found that 263 days is the absolute minimum amount of time a PDP has to last from start to finish, but 620 days — one year and nine months — is the average.

So the GNSO could, conceivably, wrap up in late 2016 rather than mid-2017. It will depend on how cooperative everybody is feeling and how tricky it is to find consensus on the issues.

The AoC review, which will focus on “competition, consumer trust and consumer choice” is a bit harder to gauge.

The 2009 Affirmation of Commitments is ICANN’s deal with the US government that gives it some of its authority over the DNS. On the review, it states:

If and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice, as well as effectiveness of (a) the application and evaluation process, and (b) safeguards put in place to mitigate issues involved in the introduction or expansion.

The AoC does not specify how long the review must last, just when it must begin, though it does say the ICANN board must react to it within six months.

That six-month window is a maximum, however, not a minimum. The board could easily take action on the review’s findings in a month or less.

ICANN’s timeline anticipates the review itself taking a year, starting in Q3 2015 and broken down like this:

Based on the timelines of previous Review Team processes, a rough estimate for this process is that the convening of the team occurs across 3-5 months, a draft report is issued within 6-9 months, and a final report is issued within 3-6 months from the draft.

Working from these estimates, it seems that the review could in fact take anywhere from 12 to 20 months. That would mean a final report would be delivered between September 2016 and July 2017.

If the review and board consideration of its report take the longest amount of time permitted or envisaged, the AoC process might not complete until early 2018, a little over three years from now.

Clearly there are a lot of variables to consider here.

Namazi is probably on safe ground by urging caution over the hypothetical launch of a second round in 2016.

Given than new gTLD evaluations were always seen as a “rolling” process, one of the things that the GNSO surely needs to look into is a mechanism to reduce the delay between rounds.