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ICANN reopens defensive registration debate

Kevin Murphy, April 13, 2012, Domain Policy

ICANN’s board of directors wants more policy work done on the problem of defensive domain name registrations.

In a resolution passed at a meeting on Tuesday, the board’s newly created New gTLD Program Committee, made up exclusively of non-conflicted directors, said it:

directs staff to provide a briefing paper on the topic of defensive registrations at the second level and requests the GNSO to consider whether additional work on defensive registrations at the second level should be undertaken

The decision was made following the debate about “defensive” gTLD applications ICANN opened up in February, prompted by a letter from US Department of Commerce assistant secretary Larry Strickling.

That in turn followed the two Congressional hearings in December, lobbied for and won by the Association of National Advertisers and its Coalition for Responsible Internet Domain Oversight.

So this week’s decision is a pretty big win for the intellectual property lobby. It’s managed to keep the issue of stronger second-level trademark protection in new gTLDs alive despite ICANN essentially putting it to bed when it approved the new gTLD program last June.

The GNSO could of course decide that no further work needs to be done, so the champagne corks should probably stay in place for the time being.

At the same meeting on Tuesday, the ICANN board committee voted to disregard the GNSO Council’s recent decision to grand extra protections to the International Olympic Committee, Red Cross and Red Crescent movements. The rationale for this decision has not yet been published.

Facebook gTLD ruled out by ICANN director vote?

Kevin Murphy, April 12, 2012, Domain Policy

While Google recently confirmed its new top-level domain plans, an ICANN director has given a big hint that rival Facebook has not applied for any new gTLDs.

Director Erika Mann, head of EU policy at Facebook in Brussels, voted on ICANN’s “digital archery” method of batching new gTLD applications at the ICANN board meeting March 28.

Because ICANN’s new conflict of interest rules require directors to recuse themselves during votes on matters affecting their own businesses, this could be taken as a pretty strong indication that Facebook is not applying for a new gTLD.

If Mann was aware of a .facebook or other Facebook gTLD bid, I think there’s a pretty strong chance she would have not have participated in the digital archery decision.

At least one director whose employer is believed to have applied for a dot-brand gTLD, IBM’s Thomas Narten, did not attend the March 28 meeting.

Sébastien Bachollet, Steve Crocker, Bertrand de La Chapelle, Ram Mohan, George Sadowsky, Bruce Tonkin, Judith Vazquez, Suzanne Woolf and Kuo-Wei Wu also did not attend.

The March 28 board meeting was the first one with new gTLD program votes that Mann has participated in since the new conflict rules were introduced in December.

The news is obviously a couple of weeks old, but I think it’s worth mentioning now in light of the fact that social networking competitor Google revealed earlier this week that it will apply for some gTLDs.

NAF loses UDRP market share again

Kevin Murphy, April 4, 2012, Domain Policy

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

Kevin Murphy, March 31, 2012, Domain Policy

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

Kevin Murphy, March 30, 2012, Domain Policy

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.