Lawyer tries to nuke Donuts and Demand Media’s gTLD bids

A lawyer has called for new gTLD uber-applicants Demand Media and Donuts to be banned from running gTLD registries due to Demand’s history of cybersquatting.
Jeffrey Stoler of Boston law firm McCarter & English has written to ICANN’s leadership, along with the chair of the Governmental Advisory Committee, to allege that Demand Media, Donuts and their key executives:

are, by ICANN’s established eligibility guidelines, unsuited and ineligible to participate in the new gTLD program.

It goes on to state that:

ICANN can and should reject the applications from Donuts and its subsidiaries, Demand Media and its subsidiaries, and their respective affiliated companies.

The two companies have, combined, applied for 333 new gTLDs. Donuts, which was founded by former Demand executives, also plans to use Demand as its back-end registry provider.
Demand Media subsidiaries, however, have a rotten record of losing cybersquatting cases filed under the UDRP, as Stoler’s generally well-researched 24-page letter spells out in some detail.
This, Stoler argues, should cause both companies to fail ICANN’s background checks, which are specified in the Applicant Guidebook.
Companies that have “been involved in a pattern of adverse, final decisions” under the UDRP, defined as more than three losses in the last four years, are supposed to fail the background check.
Demand Media seems to fit that definition, and then some, assuming you include UDRP losses incurred by its subsidiaries.
Donuts, as a brand new company, does not have the same track record, but Stoler reckons there is “strong evidence that Donuts is merely an alter ego of, and working in concert with, Demand Media”.
The letter states:

In June 2009, when ICANN’s rules went into effect and it was widely thought that implementation of the new gTLD program was imminent, the executives of Demand Media Group realized that Demand Media’s sordid history would clearly block its ability to successfully apply for the new gTLDs.
As an initial gambit, Demand Media petitioned ICANN to revise the rules.
When ICANN rejected those revisions, the undersigned believes Demand Media decided it would be necessary to create a new entity to participate in the new gTLD program. As a result, Donuts was formed by Messrs. Stahura and Tindal.
It would make a mockery of ICANN rules, however, if Demand Media Group and its executives could absolve themselves of their record of adverse UDRP decisions merely by forming a new entity.

Donuts founders Paul Stahura and Richard Tindal were both with Demand when it lost a bunch of UDRP cases.
Stoler alleges that they left to form Donuts mainly because they didn’t think Demand would pass ICANN’s background checks.
While Donuts has made no secret of the fact that it’s behind 307 applications — and ICANN’s leadership is certainly already aware of this — each application has been filed by a different shell company.
The trail to Donuts is at least two companies deep in many cases, and it’s not entirely clear how its applications with Demand Media are structured, from a corporate point of view.
Ironically, Stoler’s letter does not disclose his affiliations — which clients he’s working for — either.
The smart money is probably on big trademark interests, but it’s not beyond the bounds of possibility, I suppose, that he could be on the payroll of rival new gTLD applicants.
I’ve reached out to Stoler, Donuts and Demand Media for comment and will provide updates later as appropriate.
Here’s the Stoler letter (pdf)

DotConnectAfrica responds to DI .africa rant

DotConnectAfrica has published a lengthy retort to DI’s recent post about the (probably) contested .africa gTLD, in which I accused DCA of being disconnected from reality.
You can read my original post here and the DCA response here.
According to DCA, DI’s post was “unprofessional, unwarranted, and sub judice to the ICANN evaluation process”, because it pointed out that Uniforum’s competing bid for .africa stands the best chance of being approved by ICANN.
Having read DCA’s response, I stand by what I wrote.
Geographic gTLDs are governed by special rules at ICANN. They need government support. Nobody disputes this.
In the case of .africa, which covers a lot of countries, support or non-objection from 60% of the relevant governments is required. I don’t think anyone is disputing this either.
Uniforum’s application has this March 2012 letter (pdf) from the African Union Commission, which provides the AUC’s explicit, unambiguous, exclusive support to Uniforum.
Uniforum also claims to have individual support from the required 60% of nations, though I have not seen documentary evidence of this.
DotConnectAfrica, on the other hand, has a August 2009 letter from AUC chair Jean Ping, which expresses support for the DCA application.
It is this 2009 letter that DCA is relying upon to pass the geographic support test in the ICANN evaluation process. In its latest blog post, DCA said, addressing DI:

If you state openly in your Blog that our 2009 endorsement that we got from the African Union Commission does not count, then you are obviously playing the same game that was started by our detractors who have been trying all along to deny and invalidate our hard-won endorsement in order to frustrate DCA’s chances of applying for DotAfrica. It is our sacred responsibility to make sure that our early-bird endorsement from the African Union Commission counts.

In response, all I can say is: “Good luck.”
The Uniforum letter of support, which is more recent by almost three years, states that it is “the only formal endorsement provided by the African Union and its member’s states with regard to dotAfrica.”
On the other hand, the DCA letter of support was “categorically” retracted by the African Union in this May 2011 communication.
The only possible interpretation of this, in my mind, is that Uniforum has African Union backing and that DCA does not.
Unless there’s some obscure nuance of African politics that I’ve failed to comprehend, I don’t think there’s a thing DCA can do to change that fact.
It sucks for DCA, but that’s the way it is.
As for DCA’s insinuations that DI’s position has somehow been bought, I’ll just say for the record that no opinion that has ever been expressed on DI has ever been paid for by a third party.
Over the last couple of years, I’ve probably turned down somewhere in the region of $20,000 from various parties who wanted me to give them favorable coverage in exchange for payment.
That’s just not how things work around here.

Verisign reveals “dark” .com domains

Verisign has started publishing the daily count of .com and .net domain names that are registered but do not work.
On a new page on its site, the company is promising to break out how many domains are registered but do not currently show up in the zone files for its two main gTLDs.
These are sometimes referred to as “dark” domains.
As of yesterday, the number of registered and active .com domains stands at 103,960,994, and there are 145,980 more (about 0.14% of the total) that are registered but do not currently have DNS.
For .net, the numbers stand at 14,750,674 and 32,440 (0.22%).
Verisign CEO Jim Bidzos told analysts last night that the data is being released to “increase transparency” into the company’s performance.
Many tools available for tracking registration numbers in TLDs are skewed slightly by the fact that they rely on publicly available zone file data, which does not count dark domains.
Registry reports containing more accurate data are released monthly by ICANN, but they’re always three months old.

ICANN to get $8 million more from new .com deal

Verisign will pay ICANN roughly $8 million more per year in fees under its new .com registry agreement, CEO Jim Bidzos told financial analysts last night.
Under the new deal, approved by ICANN last month, the company pays ICANN a $0.25 fee for every .com registration-year, renewal or transfer, instead of the lump sums it paid previously.
That’s going to work out to about $25 million in 2013, Bidzos said on Verisign’s second-quarter earnings call last night, compared to about $17 million under the old arrangement.
The new agreement continues to give the company the right to increase its price by 7% a year in most years, of course, so it’s not all bad news for Verisign investors.
The deal is currently under review by the US Department of Commerce and Bidzos said he expects it to be approved before November 30, when the current contract expires.

Afilias to extend abuse policy to .pro

Six months after acquiring RegistryPro, Afilias wants approval to extend its existing anti-abuse policy into the .pro gTLD.
The company has filed a Registry Services Evaluation Process request with ICANN for its Anti-Abuse Policy, which is apparently much the same as the one in place at .info for the last four years.
The policy would formally allow Afilias to take down .pro sites in cases of phishing, malware and other types of broadly condemned network abuse. It doesn’t appear to cover wedge issues such as cybersquatting.
Earlier this year, a DI PRO survey found that .pro was, by a large margin, the gTLD with the most instances of apparent cybersquatting among the world’s top 100 brands.
However, .pro has never been particularly known as a haven for other types of abusive practice, possibly due to the verification loops registrants need to jump through to get their domains resolving.
I understand that cleaning up and reinvigorating .pro’s image has been put firmly on the Afilias agenda in recent months. It’s a great string, and I reckon it could do well with the proper marketing.

DotConnectAfrica — disconnected from reality?

DotConnectAfrica’s campaign for .africa (or .dotafrica, depending who you talk to) is getting increasingly weird.
As you may recall, DCA is the Mauritius-based company, headed by the charismatic and telegenic entrepreneur Sophia Bekele, which has been campaigning for a .africa gTLD for the last few years.
It “accidentally” applied for “.dotafrica” — a sign of almost mind-boggling incompetence — instead of the intended “.africa”, but remains confident that ICANN will allow it to change its application to correct the error.
Despite these failings, the firm has put a lot of hard work raising the profile of the .africa gTLD, for which it should be commended. Unfortunately, it’s not going to win.
If anyone is going to get the .africa registry contract, it’s the other applicant: Uniforum, the South African ccTLD registry.
Despite this painful truth, DCA appears to be in denial.
Take this op-ed, published yesterday on CircleID.
In it, somebody from DCA (the piece does not have a byline) states:

DotConnectAfrica remains a strong contender for the DotAfrica string name and actually stands the best chance of being awarded the mandate to operate the .AFRICA gTLD registry

What’s the basis for this confidence?

[DCA] has adhered to, and respected all the guidelines of the new gTLD programme, in addition to accepting ICANN’s oversight of the entire process, unlike UniForum which might be penalized for wrongly attributing the rights of DotAfrica gTLD to the AU [African Union] instead of ICANN in direct contravention of the new gTLD programme guidelines

DCA is essentially saying that ICANN, and not the African Union, should be the body that gets to decide who should run .africa.
That’s true. It’s also complete rubbish.
Nobody, not even DCA, denies that .africa is a “geographic” gTLD application, as defined by the Applicant Guidebook.
You may have noticed that in the current new gTLD round there are no applications that are both “geographic” and contested by multiple applicants. There’s a good reason for that.
According to ICANN’s rules: “If an applicant has applied for a gTLD string that is a geographic name (as defined in this Guidebook), the applicant is required to submit documentation of support for or non-objection to its application from the relevant governments or public authorities.”
Geographic gTLDs only get approved if the government(s) of that geographic region don’t object, in other words.
These letters of support or non-objection are not being published by ICANN, but the public record has quite a bit to say about which governments support which bids.
In the case of .africa, which covers a lot of countries, ICANN requires letters of support or non-objection from 60% of the nations concerned, and no more than one letter of objection from a government.
Uniforum executives told me recently that the company has this 60% support. It also has the explicit, exclusive, unambiguous support of the African Union Commission.
Here’s what the AU has to say on the matter (pdf):

the AU Commission selected UniForum SA (the ZA Central Registry Operator or ZACR), to administer and operate dotAfrica gTLD on behalf of the African community. The endorsement of the ZACR is the only formal endorsement provided by the African Union and its member’s states with regard to dotAfrica.

If DotConnectAfrica wanted to scupper the Uniforum bid, its best bet would be to lobby African governments that are not already supporting Uniforum — such as those that are not members of the AU — in order to secure more than one letter of objection.
That wouldn’t give DCA a chance to win .africa — contested geographic gTLDs do not go to auction — but it would mean Uniforum’s bid would be rejected for want of support.
But DCA is taking a different — and completely inexplicable — approach.
In a June press release, which tried and failed to explain why DCA applied for .dotafrica instead of .africa, the company said:

Uniforum should really be worrying about the more serious problem it has on its hand, to wit: the agreement signed with the AU is with Uniforum SA/ZA Central Registry, but the putative registry operator/applicant for ‘Africa’ is UniForum SA trading as Registry.Africa.
Where is UniForum SA trading as Registry.Africa’s endorsement for ‘Africa’ gTLD? Is it the specious letter of appointment to apply for DotAfrica gTLD, or the purported agreement between the AU and Uniforum SA/ZA Central Registry? DCA Trust will be watching closely to see how UniForum will try to correct these documentation problems to ensure that no illegal acts are committed.

Did you understand that?
DCA is saying that because Uniforum plans to operate .africa under a standard “doing business as” brand of Registry.Africa — something fully disclosed in its gTLD application — its official letter of support from the AU is somehow open to debate.
To make the company look even more out of touch, DCA has recently had an unhealthy focus on the “insidious mass media manipulation” campaign that it reckons Uniforum has been waging against it. Presumably this blog post can be added to that file at DCA HQ.
I’m struggling to recall where I’ve witnessed such nutty PR before.
Oh, wait.

If DCA wants to be taken seriously it’s going to have to explain — in plain, unobfuscated English — one of two things:
1) Which governments support its application (and this letter from 2009 doesn’t count).
2) Why the 60% rule does not apply to its .africa bid.
Until either of those things are clarified, DCA’s messaging is just a confusing mess.

ICANN begins evaluating new gTLD applications

ICANN has already started formally evaluating some of the 1,930 new generic top-level domain applications it has received, according to sources.
Technical and financial evaluations are believed to have been going on for several days at the three outside firms ICANN has contracted with – Ernst & Young, KPMG and JAS Global Advisors.
ICANN staff said a few times during the Prague meeting last month that July 12 was the kick-off date for evaluations, but I’m led to believe they may have started a little later than that.
Nevertheless, they’re underway.
What’s not yet known is how – or if – the 1,930 applications will be batched into more manageable chunks.
The last official word from ICANN came on June 28, when Cherine Chalaby, chair of the board’s new gTLD program committee, said an update would be provided in about three weeks.
With that admittedly vague deadline now in the past, we can only assume that the publication of a new timetable is imminent.

American government kills off .kids.us

The US government is killing off the failed .kids.us domain, ten years after it was created by Congress.
The decision was explained in a statement posted on www.kids.us:

As a result of the changed landscape of the Internet and the many other tools that parents now have available to them to protect their children’s online experience, effective July 27, 2012, the Department of Commerce suspended the kids.us

An accompanying document (pdf) from Commerce says that .us registry operator Neustar should stop accepting new registrations and ask registrants to suspend their sites.
All .kids.us domains will be removed from the .us zone by June 27, 2013.
The .kids.us space was created by the Dot Kids Implementation and Efficiency Act of 2002 and essentially forced on Neustar as a means for some politicians to get some family-friendly fluff on their voting records.
It’s been considered an abject failure ever since, largely due to its strict content regulations and a lack of marketing.
From the Google results and the old .kids.us directory, I’d estimate the number of registrations at fewer than 100.
In the new gTLD program there are two applicants for .kids — Amazon and DotKids Foundation. There’s also an applicant for .kid and an applicant for the Russian “.children”.

Vignes out as CEO of OpenRegistry

OpenRegistry’s founding CEO, Jean-Christophe Vignes, left the position to join a Paris-based law firm last month.
He’s now senior counsel for the domain name practice at Caprioli & Associés.
Vignes said the change of jobs came as part of his family’s move to Paris and that he’s still a member of the OpenRegistry board of directors.
OpenRegistry (also known as Sensirius), which was selected as the back-end registry provider for 21 gTLD applications including .deloitte, .kpn and .schwarz, is based in Belgium.
It is believed that Hans Seeuws, Vignes’ former second in command, is now in charge at OpenRegistry.

Christian group opposes .sex, .porn, .adult

Morality In Media, one of the groups that fought the approval of .xxx for years, has launched a letter-writing campaign against the proposed .sex, .porn and .adult top-level domains.
ICANN has received a couple dozen comments of objection to the three gTLDs over the last couple of days, apparently due to this call-to-arms.
Expect more. MIM was one of the main religion-based objectors to .xxx, responsible for crapflooding ICANN with thousands of comments in the years before the gTLD was approved.
Now that .xxx has turned out to be less successful than ICM Registry hoped, MIM feels its key belief on the subject — that porn gTLDs lead to more porn — has been vindicated.
MIM president Patrick Trueman wrote in one of his comments:

During the years of this fight against the .xxx domain, we said many times that the establishment of a .xxx domain would increase, not decrease the spread of pornography on the Internet, causing even more harm to children, families and communities, and make ICANN complicit in that harm.
That prediction has been fulfilled because the porn sites on the .com domain have not vacated the .com and moved to .xxx. Rather, as we have seen, the .xxx has just added thousand of additional porn sites on the Internet and .com porn sites stayed put. ICANN bears responsibility for this. The .xxx was not needed.

For some reason, the complaints are only leveled at the three ICM Registry subsidiaries that are applying for porn-themed gTLDs, and not the other .sex applicant.
Uniregistry’s application for .sexy has not been targeted.
And MIM has apparently not read the applications it is complaining about; its call to action complains about non-porn companies having to pay “protection money” to defensively register in .sex.
However, the three ICM bids explicitly contemplate an extensive grandfathering program under which all current defensive registrations in .xxx would be reserved in .sex, .porn and .adult.