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Delay not certain as new gTLD contracts reopened

Kevin Murphy, April 12, 2013, Domain Policy

The launch window for new gTLDs may have just got pushed back another month or two, following the announcement of a new 42-day comment period on registry and registrar contracts.

But ICANN CEO Fadi Chehade said he’s looking at ways to streamline the process to offset the delays.

During the public forum in Beijing yesterday, ICANN CEO Fadi Chehade said that he’d cancelled a scheduled April 20 meeting of its board of directors, during which the new agreements were targeted for approval.

Instead, new versions of the 2013 Registrar Accreditation Agreement and new gTLDs base Registry Agreement will be posted for public comment next week.

As these are expected to be the final versions of both documents, they’re also expected to have full comment periods of 42 days — 21 for comments and 21 for replies.

“I believe that putting the last version of RAA for 2013 out for full public comment process is actually strengthening that agreement,” Chedhade said today. “It makes it an agreement of the community.”

For the Registry Agreement, Chehade said talks with registries are going well and that he hopes to have a version ready for public comment agreed with negotiators in less than a week.

Assuming an April 19 start, that puts the earliest possible date for ICANN board approval at May 31, assuming the board waits for the comment period to end before giving it the rubber stamp.

Before the contracts are approved, they can’t be signed by registries and registrars, and before they are signed new gTLD applicants cannot progress to the final pre-launch stages of the delegation process.

But Chehade is weighing an idea put forward during the public forum by Donuts’ Jon Nevett: why not allow applicants to complete pre-delegation technical testing before contract signing?

“We could potentially do something about advancing this step ahead of contracting, finding a way to start pre-delegation testing before contracting is done,” Chehade said.

GAC delivers sweeping advice that will delay scores of new gTLDs by months

Kevin Murphy, April 11, 2013, Domain Policy

ICANN’s Governmental Advisory Committee has issued the kiss of death to two new gTLD applications and sweeping advice that will delay many, many more.

In its Beijing communique, issued this hour, the GAC as expected delivered advice against whole categories of gTLDs and provided a lengthy but “non-exhaustive” list of affected bids.

First, the GAC said that the .africa bid filed by DotConnectAfrica and the .gcc bid filed by GCCIX WLL should be rejected. Those were full consensus objections.

Two gTLDs related to Islam: .islam and .halal, have non-consensus objections, and will now have to be considered by the ICANN board of directors directly.

The GAC also said it needed more time, until ICANN’s meeting in Durban this July, to consider delivering specific advice against 14 more:

the GAC advises the ICANN Board to: not proceed beyond Initial Evaluation with the following strings: .shenzhen (IDN in Chinese), .persiangulf, .guangzhou (IDN in Chinese), .amazon (and IDNs in Japanese and Chinese), .patagonia, .date, .spa, .yun, .thai, .zulu, .wine, .vin

On the issue of plurals versus singulars, the GAC said ICANN should “Reconsider its decision to allow singular and plural versions of the same strings.” This affects about 60 applications.

But it doesn’t end there.

As predicted, the GAC has also issued swathes of advice against scores of proposed gTLDs in 12 categories: children, environmental, health and fitness, financial, gambling, charity, education, intellectual property, professional services, corporate identifiers, generic geographical terms and inherently governmental functions.

A “non-exhaustive” list of applications has been provided for each category, covering well over 100, setting the stage for a fight over inclusion for any application that the GAC forgot about.

If the GAC gets its way, any application that falls into one of these categories will have to have enhanced regulations governing Whois, abuse mitigation, and security.

The GAC also has its say on “closed generics”, which it calls “exclusive registry access” strings. They should only be awarded if they serve a public interest purpose, the GAC said.

In short, the advice is extraordinarily broad and seems to delegate the considerable work of picking through the mess to ICANN.

More analysis later…

Plural gTLDs give ICANN huge credibility risk

Kevin Murphy, April 10, 2013, Domain Policy

Can .pet and .pets co-exist peacefully on the internet? Or would they create such confusion among internet users that the whole new gTLD program would look irresponsible and foolish?

That’s the question ICANN is due to face today, as constituents line up at the public forum in Beijing to question its board of directors about the problem of plurals in new gTLDs.

The Governmental Advisory Committee, the Business Constituency, the Intellectual Property Constituency and others have all openly questioned the sanity of allowing plurals in recent days.

Right now there are 59 collisions between singular and plural gTLD applications (in English, at least, according to my analysis), involving 23 unique string pairs.

These are: .accountant(s), .auto(s), career(s), .car(s), .coupon(s), .cruise(s), .deal(s), .fan(s), .game(s), .gift(s), .home(s), .hotel(s), .kid(s), .loan(s), .market(s), .new(s), .pet(s), .photo(s), .review(s), .sport(s), .tour(s), .web(s) and .work(s).

None of these singular/plural clashes are currently in contention sets with each other, meaning there’s nothing to stop them all being delegated by ICANN. We could have a .loan alongside a .loans a year from now.

It seems to be only common sense that these clashes will cause frequent confusion. I doubt many would pass the longstanding “shouted across a crowded bar” test for URL clarity.

Would you want to register a .photo domain if you knew .photos was also available, and vice versa? If you did, wouldn’t you also want to register the .photos equivalent, just in case?

That’s one of the things ICANN’s commercial stakeholders are worried about: 23 extra TLDs means 23 extra defensive registrations for every brand they want to protect.

But there’s also the risk that gTLD registries that are successful in this application round will feel obliged to apply for the plurals of their strings in future rounds for defensive purposes.

The plurals issue also highlights shortcomings in how the new gTLD program was structured.

Why is this happening?

Unless two companies applied for the exact same strings, there are only two ways they could end up in a contention set together.

The first way was if the String Similarity Panel decided that the two strings were too visually similar to be allowed to co-exist, and that didn’t happen in the case of plurals. The panel only decided two things in the end: that I and l are confusingly similar, and that rn and m are confusingly similar.

To date, nobody except the Panel and ICANN knows what the logic behind this decision was, but it appears to be based on a very narrow (though not unreasonable) interpretation of what constitutes visual similarity.

The second way to end up in a contention set was to file a successful String Confusion Objection, or to be on the receiving end of one.

But of the 33 such objections filed, only 11 were filed against plurals, covering only six new gTLD strings in total: .pets, .tours, .webs, .games, .cars, and .kids. There was also an objection to .tvs, due to a clash with the existing ccTLD .tv.

(UPDATE: it appears that only approximately half of the String Similarity Objections filed have actually been revealed to date).

The main reason there weren’t more objections is that only existing registries and new gTLD applicants had standing to file an objection. Nobody else was allowed to.

Applicants were of course disincentivized from filing objections. Winning a String Confusion Objection doesn’t kill off your rival if you’re an applicant, it merely places both applications in a contention set.

Being in a contention set means you’re going to have to pay money to get rid of your competitor, either by negotiating some kind of private deal or by punching it out at auction.

By not filing objections, applicants in singular/plural situations risk looking like they don’t care about user confusion or are blasé about forcing defensive registrations.

(And by defensive registrations, remember here we’re not only talking about trademark owners, we’re talking about every potential future registrant in those gTLDs.)

They do have the slight excuse that they were only given a week or so to file objections after the results of the String Similarity Panel’s deliberations, delayed several times, were revealed.

There’s also the possibility that some of the apparent clashes won’t be as big of a concern in the marketplace due to, for example, registration restrictions.

What happens next?

The GAC is almost certain to issue advice about plurals in the next day or two, having brought the topic up with ICANN’s board of directors earlier this week.

The Business Constituency is also expected to make a few proposals directly to the board during the Public Forum in Beijing, Thursday afternoon local time.

The BC is likely to suggest, for example, that if one String Similarity Objection decision finds that a plural and a singular are confusingly similar, then that ruling should apply to all plural clashes, even if no objection has been filed.

It’s an audacious idea: it would certainly do the trick, but it would require some severe goal-post moving by ICANN at a time when it’s already under fire for pulling last-minute stunts on applicants.

It would also risk capturing fringe cases of strings that look plural but, in the context they are used in everyday language, are not (such as .new and .news).

Without some kind of action, however, ICANN is pretty much guaranteed to attract negative publicity.

Looking like it’s the stooge of the domain name industry, forcing regular registrants to double-buy their domains to the enrichment of registries and registrars, could look bad.

ICANN headed for GAC fight over IGO pleading

Kevin Murphy, April 10, 2013, Domain Policy

ICANN may be heading for a bust-up with its Governmental Advisory Committee over the issue of a special domain name block-list for intergovernmental organizations.

The board of directors this week indicated at a meeting with the GAC in Beijing that it’s prepared to deny the GAC’s official demand for IGO protection at second level in all new gTLDs.

The GAC wants the names and acronyms of hundreds of IGOs — any organization that qualifies for a .int domain name — blocked, so that nobody would be able to register them, in every new gTLD.

It would, for example, give the European Forest Institute the exclusive rights to efi.tld in all future gTLDs.

Other well-known cybersquatting targets such as the European Organisation for Astronomical Research in the Southern Hemisphere (ESO), the North Atlantic Salmon Conservation Organization (NASCO) and the International Conference on the Great Lakes Region of Africa (ICGLR), would also be protected.

Some potentially very useful operational domains, such as a who.tld, would be banned (because of the World Health Organization).

Clearly, the GAC’s demands are a solution looking for a problem, giving special protection to many organizations that simply don’t need it, potentially at the expense of legitimate users.

The GAC had indicated that clashes with legitimate uses could be handled in a similar way to country names will be controlled in new gTLDs, where registries have to request special permission from the governments concerned to release the domains to others.

This would open a whole can of worms, however, the implications of which were outlined in an April 1 letter from ICANN board chair Steve Crocker to the GAC.

The board’s case was also succinctly articulated by director Chris Disspain during the board’s meeting with the GAC on Tuesday, and worth quoting in full. Disspain said:

This would mean that the Church of England would require the approval of the Council of Europe to register coe.church. It means the government of Canada would require the approval of the Andean Community to register can.anything. It means the International Standards Organization would require the approval of the International Sugar Organization to register iso.anything.

Even if this is what you intended in principle, the implementation of this advice is extremely problematic.

Who at each IGO would make a decision about providing consent? How long would each IGO have to provide consent? Would no reply be equivalent to consent? What criteria would be used to decide whether to give consent or not? Who would draft that criteria? Would the criteria be consistent across all IGOs or would consent simply be granted at the whim of an IGO.

The board believes that all these issues make it extremely difficult, if not impossible, to accept the advice as is.

Rather than rejecting this advice we seek an acknowledgement from the GAC in its communique that there are issues to be worked through, and we seek agreement with the GAC that they will work with the board and staff on these issues from now until Durban [this July] when the board will make a decision?

Disspain added that despite a board decision in November to set the ball rolling on IGO protections, it most certainly has not already decided to grant the GAC’s request.

This is an excellent development in GAC-board relations, in my view.

Rather than quaking at GAC advice, or rush-approving it to meet new gTLD program deadlines, the board is schooling the GAC about the obvious flaws in its position, and inviting it to think about the problems in a bit more depth, hearing alternate views, before lobbing advice grenades.

It’s a stark contrast to its treatment of the GAC’s 2011 advice on International Olympic Committee and Red Cross/Red Crescent names, where the board agreed to special protections in order to get the new gTLD program out of the door, creating thousands of extra person-hours of work for the GNSO.

When the GAC issued its IOC/RC/RC advice, it assured ICANN that the organizations concerned were special cases.

Others warned — presciently, as it turned out — that such protections would be merely the top of a slippery slope that would lead to a much longer list of protected names.

An effect of ICANN’s strong position now is that the slope is less steep and less slippery.

What happens next with the IGO names depends on the GAC’s communique from the ongoing Beijing meeting.

If it decides to engage with ICANN to sort out the problems it’s trying to create, they have until Durban to come to a deal. If it stands firm, ICANN may have to invoke the part of its bylaws that allows it to overrule the GAC, which has only done once before, when it approved .xxx.

Registries still angry despite ICANN concessions on new gTLD contract

Kevin Murphy, April 9, 2013, Domain Policy

Domain name companies are coming close to agreement with ICANN on two critical new contracts, but there was still substantial skepticism and anger on display in Beijing yesterday.

It was revealed during a session at ICANN 46 that the long-running negotiations on the 2013 Registrar Accreditation Agreement are now pretty much done, with apparent compromise from both sides.

In addition, the proposed Registry Agreement for new gTLDs has been toned down to make it more acceptable to applicants, with ICANN apparently confident that agreement can be reached soon.

But while registrars seemed relatively content with their outcome, registries appear to still be very upset indeed, largely due to the new “special amendments” process that continues to be on the table.

This unilateral-right-to-amend proposal, which ICANN sprung on the industry in February, has been watered down along the lines that we reported last week.

The scope of the amendment process has been narrowed to items outside the “picket fence” that surrounds ICANN’s regulatory jurisdiction, and there are a few more ways companies can head off ICANN intervention.

“It’s not quite a unilateral amendment process any more, we’ve built in a lot of safeguards,” ICANN senior counsel Samantha Eisner told the meeting.

What’s new in the RAA?

These are some of the other things that have been agreed since the last draft of the RAA was posted a month ago.

  • Privacy opt-out on Whois. Registrars based in places such as Europe, which has stronger data protection laws than the US, will be able to opt out of the Whois data retention and verification rules if they can show that they’d be breaking the law otherwise. They won’t have to wait to to get sued first, either.
  • Account holder verification. As well as validating the email address or phone number used in the public Whois, registrars will do the same checks on their private account-holder records.
  • Proxy and privacy services. If ICANN doesn’t come up with an accreditation program for proxy/privacy services by a certain deadline, the temporary specs in the 2013 RAA will expire.
  • Port 43 obligations scrapped. Registrars will no longer have to provide Whois service over port 43 for gTLDs with “thick” registries. They’ll still have to provide it on their web sites though.

The registrars have also agreed to measures that address all 12 of the recommendations proposed by law enforcement agencies a few years ago, which is what kicked off the RAA renegotiation in the first place.

However, as we reported yesterday, law enforcement in the US and Europe are not impressed with the RAA, saying it doesn’t go far enough to verify domain registrants’ identities.

The Governmental Advisory Committee is due to speak to the ICANN board later today, and this is a topic it is likely to bring up. The RAA story may not be over yet.

Generally, the mood from registrars seemed to be mixed but relatively upbeat.

Rob Hall of Pool.com said he’s going to sign the new RAA as soon as possible. He said that the fact that the 2013 RAA is needed in order to sell new gTLD domains is an impetus to sign it.

Elliot Noss of Tucows said he was less eager to sign. He said that the new gTLDs likely to launch in the short term (uncontested ones, in other words) are unlikely to be the most lucrative ones.

Registries and new gTLD applicants, on the other hand, were not so happy with their lot.

Anger over the Registry Agreement

Yesterday’s session in Beijing was notable for a jarring moment in which normally mild-mannered Verisign policy veep Chuck Gomes threw an uncharacteristic wobbler, politely but brutally attacking ICANN for acting in bad faith and treating registries like “second-class citizens”.

He took issue with the fact that the special amendments process in the Registry Agreement was first introduced by ICANN, and then rejected by the community, a few years back.

ICANN can’t describe its eleventh-hour return as an act of “good faith”, he said.

“You’re dealing with organizations on the registry and registrar side that fund 95%, through our registrants, of your budget, and yet we’re treated like second class citizens by throwing something at us that totally reverses a community, multi-stakeholder, bottom-up decision that was made three years ago,” he said.

“Convince me that that was in good faith. I don’t think you can,” he said, receiving a round of applause.

New gTLD applicants such as Verisign have had less time to assemble their collective thoughts and come to a unified negotiating position on the RA, which was thought to be settled until recently.

The amendment provisions were introduced by ICANN in February, and applicants don’t yet have a the same kind of negotiating team the registrars have had for the past 18 months.

What’s more, they’re worried that ICANN is trying to push the changes through without giving them enough time for talks.

Rumors have been circulating in Beijing that the ICANN board is preparing to approve the RAA and RA at a meeting April 20, in time for the first registries to sign up at its April 23 new gTLDs media event.

Under persistent questioning, ICANN vice president of industry engagement Cyrus Namazi said in various different ways that ICANN has no intention to rush-approve an RA to an arbitrarily chosen date.

ICANN says it needs its special amendment rights in order to address unknown future situations in which the voting dynamics of the ICANN policy-making bodies are dominated by special interests that want to block contract changes that would be in the public interest.

Noss from Tucows, an applicant as well as a registrar, said he’s been asking for specific examples of possible reasons the special amendment process would be invoked, but has had no response from ICANN.

He further suggested that if ICANN is so worried about future uncertainties that it feels it needs these rights, then registries and registrars should get the same rights to force amendments.