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Infodump: what we learned about new gTLDs today

Kevin Murphy, August 9, 2012, Domain Policy

ICANN held a webinar today in which it detailed a whole lot of the current thinking about the evaluation phase of the new gTLD program, including some new deadlines and target dates.

Senior vice president and acting program head Kurt Pritz fought through a cold to give new gTLD applicants more information and clarification than they’d received since Prague in June.

These are some of the things we learned:

  • Three applications have been withdrawn already. We don’t know which ones.
  • There have been 49 requests to change applications. Again, we don’t know which ones yet. ICANN is in the process of finalizing a threshold check to allow or deny these changes, details of which it expects to publish soon.
  • “Clarifying Questions” are the new buzzword. CQs — yes, they have an acronym — are additional questions the evaluators need to ask applicants before they can score parts of their application. The vast majority of applications are going to get at least one CQ. The two-week deadline to respond to these questions, as described in the Applicant Guidebook, will likely be ignored in many cases.
  • About 90% of applications will get a CQ about their financial status. This mainly concerns their Continuing Operations Instrument, the super-complex and expensive back-up cash commitments each applicant had to secure. But applicants who got letters of credit don’t need to panic if their banks have recently had their ratings downgraded.
  • Another 40% can expect to get questions about their technical plans. Some applicants may have relied too heavily on their back-end providers to describe their security plans, it seems.
  • About half of all geographic gTLD applications have not yet supplied letters of support from the relevant government. This was already anticipated and is accounted for by Guidebook processes however, Pritz said.
  • Don’t expect an answer to the metering question any time soon. Batching may be dead, but ICANN does not expect to figure out its replacement — a way to throttle new gTLDs’ go-live dates — until October. There’s an open comment period on this and plenty more jaw-wagging to come.
  • Objections will come before Initial Evaluation results. This sucks if you’re a likely objector. The deadline for filing objections is January 12, 2013, but evaluation results are not expected until June 2013 at the earliest. This means the much cheaper option of waiting to see if an application is rejected before paying for an objection is no longer a viable strategy. But it’s good for applicants, which will get a little more visibility into their likelihood of success and their costs.
  • Contention sets will probably be revealed in November. The String Similarity Panel, which decides which gTLDs are too similar to each other to co-exist, is not expected to give its results to ICANN until late October, four and a half months after the June 13 Reveal Day — so applicants won’t know the full size of their contention sets until probably a couple of weeks after that.
  • The new gTLD public comment period will probably be extended. After several requests, ICANN is very probably going to give everyone more time to comment on the 1,930 1,927 applications, beyond the August 12 scheduled closing date. An announcement is likely on Friday.

Congressmen say new gTLDs need more comments

Kevin Murphy, August 8, 2012, Domain Policy

Senior members of the US Congress have asked ICANN to prove that it’s giving the internet community enough opportunity to comment on its 1,930 new gTLD applications.

A letter from the chairs and ranking members of the House and Senate judiciary committees sent to ICANN yesterday basically implies rather heavily that, again, ICANN’s new gTLD program outreach sucks.

Sens. Leahy and Grassley, and Reps. Smith and Conyers write:

many members of the public outside the ICANN community are unaware that the New gTLD program is underway. Of those who are aware, few know about the public comment process or comprehend that their opportunity to participate in this forum is scheduled to end in less than a week.

Probably not coincidentally, the letter comes soon after requests for more time to comment from the Association of National Advertisers and the Intellectual Property Constituency.

The IPC wants another 30-45 days added to the comment period, which is currently set to close — at least for comments that will be forwarded to evaluators — this Sunday.

The Leahy letter highlights the need for comment on “potentially sensitive names like ‘.church’, ‘.kids’, and ‘.sucks’”, which should be a cause for concern for at least seven gTLD applicants.

Given who’s pulling the strings here, it’s not surprising that the letter also highlights the demands from IP interests for stronger rights protection mechanisms, such as a permanent Trademark Clearinghouse service.

They write:

ICANN’s current policy only requires the Clearinghouse to be available for the first 60 days after a registry launches. Moreover, the Clearinghouse will only give notice when someone registers a website that is identical to a trademark; not when the website contains the trademark in a varied form.

As an example, this means that a nonprofit such as the YMCA will receive notice only if a user registers a website such as www.yrnca.give or www.ymca.charity within the first 60 days of the “.give” or” .charity” registry. The YMCA would not receive notice if a person registers those names after 60 days, or if someone registers a closely related name such as www.ymcaDC.charity.

(To which I add, as an aside: and what if Intel wants to register www.buymcafee.shop?)

I think the Congressmen/ANA/IPC have a point, anyway, at least about the lack of commenting from people outside the tightly knit ICANN community.

A lot of data was released on Reveal Day, and much more has been released since.

There are 1,930 new gTLD applications.

The public portions weigh in at almost 400 MB in HTML format and generally run to between 15,000 and 50,000 words apiece.

The 20,000 published application attachments (which MD5 hashing reveals comprise close to 3,000 unique files) are currently taking up about 6 GB of space on the DI PRO server (where subscribers can cross-reference them to see which files show up in which applications).

It’s a lot to read.

That must be at least part of the reason there hasn’t been a single community-based objection comment about Google’s single-registrant .blog application yet.

For me, that’s the benchmark as to whether anyone in the real world is paying attention to this program.

I mean, seriously: no bloggers are concerned about Google using .blog as an exclusive promo tool for its third-rate blogging platform?

What’s worrying the Congressmen is that ICANN’s expensive Independent Objector is not allowed to object to an application unless there’s been at least one negative comment about it

The IO can file community-based objections on behalf of those who cannot afford to do it themselves, but it’s not at all clear yet what the cut-off date for the IO to discover these comments is.

Hopefully, when ICANN reveals its proposed evaluation timetable this week, some of these questions will be answered.

(Former) Donuts director hit with cybersquatting claim over Disney and Olympic domains

Kevin Murphy, August 7, 2012, Domain Policy

Donuts, the massive new gTLD applicant, has been hit by another set of cybersquatting claims, this time aimed at one of the company’s original directors.

Graham Stirling, who is listed as a Donuts Inc director in the company’s only Securities and Exchange Commission filing, seems to own several domain names containing Disney and Olympics trademarks.

(UPDATE: Donuts has confirmed that Stirling is no longer with the company, and hasn’t been since November 2011. Read the company’s full statement at the bottom of this post.)

The information emerged in a comment filed with ICANN on several Donuts applications by somebody called James Oliver Warner.

These are some of the domains Gibraltar-based Stirling allegedly owns:

2016juegosolimpicos.com
2016olimpicos.com
2020juegosolimpicos.com
2020olimpicos.com
2024olimpicos.com
andaluciadisney.com
costadelsoldisney.com
disneyandalucia.com
disneylandmalaga.com
disneymalaga.com
disneyworldmalaga.com
juegosolimpicos2008.com
juegosolimpicos2016.com
juegosolimpicos2020.com
juegosolimpicos2024.com
juegosolimpicoslondres.com
londresjuegosolimpicos.com
malagadisney.com
malagadisneyland.com
malagadisneyworld.com
olimpicos2016.com
olimpicos2020.com
olimpicos2024.com
soldisney.com
spaindisneyland.com
spaindisneyworld.com
teleubbies.com

You don’t need to be a trademark lawyer to know that these domains would not pass a UDRP challenge.

The domains all seem to have been registered to a Graham Stirling of Gibraltar for some years. Gibraltar’s a pretty small place, suggesting that it’s very probably the same guy.

It’s the second serious cybersquatting claim to hit Donuts in the last couple of weeks.

As we reported last week, a lawyer who apparently doesn’t want his client’s identity to be known has written to ICANN’s Governmental Advisory Committee to warn that Demand Media, Donuts’ back-end partner and its founders’ former employer, has a history of adverse UDRP findings.

That letter fingered Stirling as an employee of Gibraltar-based investment company Veddis Ventures, whose other executives allegedly have ties to online gambling scandals in the US.

Veddis Ventures recently removed Stirling’s full name from its web site. He’s now just listed as “Graham S”, adding to the intrigue.

The latest set of cybersquatting allegations are directed to ICANN’s background screening panel, which is tasked with weeding likely ne’er-do-wells out of the new gTLD program.

The panel looks at not only the corporate history of the applicant, but also at its directors and officers.

Stirling is not named on any of Donuts applications. For that matter, Donuts itself is not named as an official applicant on any of its 307 applications either.

Each of its applications has been filed by a different shell company, most of which are owned by another company, Dozen Donuts LLC, which we assume (but do not know) is in turn owned by Donuts.

The only individual named in the background check part of the applications (at least the portions published by ICANN) is Donuts CEO Paul Stahura.

Stirling is not currently listed as a director on Donuts’ web site.

If Stirling is still involved with Donuts, it might not impact the results of Donuts background screening, if the panel only looks at UDRP or court cases for evidence of cybersquatting.

Stirling does not appear to have ever been named in, never mind lost, a UDRP complaint.

That said, I don’t think ICANN’s background screening process will be over for a while yet…

August 7 Update:

Donuts has provided the following statement:

Graham Stirling is not a member of the Donuts Board of Directors and has not been since November 2011. Our list of board members as documented on our web site at www.donuts.co is current.

It’s disappointing to see Donuts’ contributions to new gTLD expansion attacked by those (including some unwilling to disclose their identities) who attempt to portray the company or those associated with it as bad actors. The company is and will continue to be committed to the legitimate interests of rights holders. As described in our applications, Donuts will implement rights protection mechanisms in its new gTLDs that substantially exceed those mandated by ICANN.

We have engaged the intellectual property community, law enforcement and others in the community about IP protection and believe our intentions and actions are clear and well understood. Infringement of legitimate rights is not tolerated by Donuts, in any capacity. Our collaboration with the community on IP protections will be an ongoing priority as the new gTLD program continues.

ICANN director withdrew gTLD application

Kevin Murphy, August 6, 2012, Domain Policy

ICANN director Judith Vasquez applied for a new gTLD but then withdrew the bid at the last minute.

That’s among a tapestry of factoids relating to conflicts of interest to emerge from the minutes of recent meetings of ICANN’s board of directors that were published this week.

It’s also emerged that the New gTLD Program Committee — established as a subset of the board “without conflicted members” — actually now has four “directors with conflicts that have been mitigated”.

Vasquez, a businessperson heavily involved in media and telecoms in the Philippines, according to the minutes of the May 6 meeting:

disclosed that she withdrew her new gTLD application through the customer service center, though the withdrawal cannot be completed through the TAS due to the system being offline.

As you may recall, the TLD Application System (TAS) went down April 12, suggesting that Vasquez’s bid was withdrawn close to or after that date — the original deadline for filing new gTLD applications.

It’s not know what gTLD she (or a company she works for) was applying for, or why the application was withdrawn.

The potential for a conflict in her case was first noted in her published statement of interest when she joined the board in October last year.

But as I’ve noted before, Vasquez continued to vote on matters relating to the new gTLD program up until February 7.

She’s since joined the New gTLD Program Committee.

From the same May 6 minutes, it has emerged that directors Bill Graham and Kuo-Wei Wu were both probed for conflicts by a board subcommittee — set up a year ago in the wake of Peter Dengate Thrush’s move from the ICANN chair to Top Level Domain Holdings — which:

found that both of them had conflicts, but they had been already mitigated to the satisfaction of the subcommittee. And, therefore, the subcommittee determined that those two individuals, though conflicts were identified, had mitigated those conflicts with regard to the New gTLD Program.

Details of these conflicts have not been published. Both men have sat on the committee since its inception April 10.

A non-voting board liaison, Thomas Narten, was also considered conflicted but sufficiently “mitigated” to join the committee. He works as a software engineer for IBM, which has applied for a dot-brand.

Two other directors — Sebastien Bachollet and Bertrand de La Chapelle — were identified as having conflicts which they tried and apparently failed to mitigate to the satisfaction of the board.

Bachollet was unhappy with that classification, according to a statement he entered into the minutes several weeks later, which partly reads:

I still disagree with the conclusion of the Subcommittee and on the proposed mitigating measures. I will not enter into detail here, but now I have to accept this decision and I do.

I take this opportunity to underline that there is no appeal procedure in place allowing a second view on the matter.

Bachollet is a director of the International Foundation For Online Responsibility, .xxx’s nominal sponsoring organization, which is funded by ICM Registry, an applicant for three porn-related gTLDs.

The policy think-tank founded by De La Chapelle is or was funded by companies that applied for new gTLDs or offered services to applicants, according to his latest statement of interest.

The New gTLD Program Committee has 12 voting directors at present, three of which have been previously identified as conflicted but with their conflicts mitigated.

According to the May 6 minutes, ICANN’s chief lawyer John Jeffrey explained, in response to a query from de La Chapelle, why this is not a problem:

The General Counsel and Secretary explained that there are situations where a conflict may still exist, but mitigation can be completed that will remove that conflict from having an impact on the fiduciary responsibilities to ICANN or the other entity with whom the conflict may have arisen. Those directors or liaisons may then participate as if they were nonconflicted, acting without conflict in the decisions they make for the Board. He also noted that there could be situations where, upon mitigation, there may not be a conflict at all.

New gTLD timetable expected this week

Kevin Murphy, August 6, 2012, Domain Policy

ICANN plans to publish a new timetable for its new gTLD program later this week, according to its latest update.

Its board of directors’ New gTLD Program Committee said in a report (pdf) published this morning:

The roadmap will show how the separate schedules for evaluation applications, possible dates for GAC [Governmental Advisory Committee] input, comment & objection periods, and other program elements fit together. The plan will demonstrate interdependencies, indicate risk areas, describe schedule uncertainty, and indicate how applicants might be affected by changes to the plan.

The roadmap will be released by the week of August 6, 2012.

New gTLD applicants have been waiting for this report since the Prague meeting in late June, when it became clear that the original timetable, based on application batching and “digital archery”, was dead.

Potential objectors will also be sharply impacted by the timetable; decisions could hit their wallets.

If the window for filing private sector objections closes before the GAC deadline to object, for example, the cheaper wait-for-the-GAC strategy for objecting becomes a non-starter.

Today’s report from ICANN also discloses a little more about how the 1,930 new gTLD applications are being processed: they’re being grouped by applicant and/or by back-end registry provider, in an attempt to create efficiencies.

According to ICANN, this will enable the evaluators to ramp up to a maximum capacity of 300 applications per month, but that it will take a few months to fully ramp up to that speed.

The Initial Evaluation phase of the process began about a month ago, in line with its July 12 target date, ICANN said.

Adding some time for ICANN to organize and publish results, this means that initial evaluation results will be published in 11-12 months after the July 12 start date, i.e., May or June 2013.

With the timetable set to be published this week, the ongoing public comment process about application metering will presumably not have an impact on what is published.

With that in mind, any timetable released this week is unlikely to answer every outstanding question about the timing of go-live dates for successful new gTLD applicants.