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Judgment day for .xxx and .jobs

Kevin Murphy, August 5, 2010, Domain Registries

ICANN’s board of directors will today meet to decide the fate of the .xxx and .jobs top-level domains.

ICM Registry will find out whether its contract to run .xxx will have to face a potentially lengthy review by ICANN’s notoriously slow-footed Governmental Advisory Committee.

Employ Media will find out whether it will be allowed to relax its registration rules to allow non-company-name .jobs domains.

If the board decides no further GAC intervention is needed, ICM will be on a fast track to having its TLD considered for delegation in Cartagena this December.

If Employ Media’s proposal is rejected, it faces more years in the wilderness of managing a registration base in the low tens of thousands.

I have a track record of lousy predictions, but I’m going to go out on a limb again and make a low-confidence prediction that both registries are going to get what they want.

I’m not sure if it’s been noted before, but there are some strong similarities between the two TLDs and their proposals.

In the case of .xxx, some of the main opponents of the domain have been the adult industry itself. With the .jobs liberalization, the loudest outcry has come from jobs boards.

Both are essentially cases of a registry proposing something that makes good business sense for itself, but which is not necessarily what a significant portion of its would-be constituents want.

In the case of ICM, lack of support from the porn business was what originally killed off the application (at least, that was the official line), a decision that ICANN was recently forced to reverse if not recant.

In the case of .jobs, ICANN’s recent summary and analysis of the well-attended public comment period, which the board will be given prior to voting, may be a telling.

Most of the opposition to the .jobs deal was organized by the International Association of Employment Web Sites, which itself sent a long letter spelling out precisely why it thinks the scheme is bogus.

Of the 2,600 words IAEWS submitted, ICANN’s summary and analysis document quotes just two sentences, one of which is this:

“Neither human resources professionals employed in corporate human resources (‘HR’) departments nor executive search/staffing firms [which are part of the .JOBS community] are eligible for membership in IAEWS.”

The quote is pulled from the introduction of the IAEWS letter, rather than the substance of its objection, and the text in square brackets is ICANN’s own insertion.

I can’t think of any reason that text is worth quoting other than in order to dilute the significance of the IAEWS’ arguments against the .jobs liberalization.

Indeed, the document uses more wordage to describe the nature of the IAEWS letter-writing campaign than it does the content of its letters, which can’t look good for the IAEWS.

Employ Media’s response to the IAEWS letter is quoted at greater length, particularly the bit where it compares its own plans to the new gTLD program.

While they claim that the addition of occupation, industry and geographical identifiers at the second level within the .JOBS sTLD will lead to increased confusion within the marketplace, it is hard to reconcile this argument to ICANN’s extensive public policy work and implementation plan in connection with the new gTLD process. The same fundamental economic basis for going forward with the whole new gTLD initiative also applies to this .JOBS RSEP request; these issues should not be re debated and should not delay or deny approval of the .JOBS RSEP request.

If you’re an ICANN board member, aware of how much of ICANN’s credibility is tied up with the new TLD program, can you really argue with that?

Of course, board and staff don’t always agree, so I may be way off the plot here, but it seems to me that .jobs is likely to very soon become a considerably more open namespace.

VeriSign may settle CFIT lawsuit

Kevin Murphy, August 4, 2010, Domain Registries

VeriSign’s chief executive has not ruled out settling its potentially damaging lawsuit with the Coalition For ICANN Transparency out of court.

During the company’s second quarter earnings call earlier this week, Mark McLaughlin was asked whether there was a way the lawsuit could be made to go away, settling investor nerves.

His response: “It is an option that could be pursued.”

CFIT, backed by Momentous.ca, claims that VeriSign’s .com and .net no-bid contracts with ICANN, including the price increases they allow, are anti-competitive.

If VeriSign loses the case, it could face the loss of its .com and .net monopolies, which makes me think it will certainly seek to settle the case before that becomes a risk.

VeriSign currently has to decide whether to request a review at the Supreme Court, or go to the District Court for trial. It has until October 7 to make its call.

Also during Monday’s earnings call, McLaughlin addressed the growth opportunities VeriSign is looking at, following its renewed focus on the domain name business.

Asked whether the introduction of new TLDs would affect .com and .net growth, McLaughlin said:

I think it’s positive… just related to .com and .net, with the introduction of new TLDs there’s an expectation it just brings more people to the market and we generally do better when more people show up to the market. And the second thing, we intend to participate in some of those ourselves, so we see growth opportunities for us.

He also confirmed again that VeriSign will seek to launch non-ASCII internationalized versions of its existing TLD base, which includes .com, .net, tv and .name.

As Andrew Allemann noted yesterday, he also declared the pay-per-click-based speculative registration market essentially “dead”.

Free entry to the .uk iPad prize giveaway

Kevin Murphy, August 2, 2010, Domain Registries

Nominet is giving away eight iPads and dozens of iTunes vouchers to new .uk domain name registrants, but you can enter the prize draw for free if you know where to look.

The promotion starts today and runs until September 27. Every week, the company will give away one iPad. Every day, a £25 iTunes voucher will be up for grabs.

The promotion is being offered via participating .uk registrars, as well as by Nominet itself.

Without delving into the terms and conditions, you’d be forgiven for thinking you have to register a domain name to enter the draw.

Not so. Under UK law, companies have to offer no-purchase-necessary alternatives when they run competitions like this, and Nominet is no exception.

If you live in the UK, you can enter here for free.

It looks like you’ll have to enter every week to be eligible for all eight prize draws.

EurID picks Netnod for .eu resolution

Kevin Murphy, August 2, 2010, Domain Registries

EurID, the .eu registry manager, has inked a deal to have its domain names resolved internationally via Netnod’s network of name servers.

Netnod is the not-for-profit Swedish internet exchange operator which also runs one of the internet’s 13 DNS root servers.

The deal means .eu domains will be resolved from Netnod’s constellation of Anycast DNS servers.

Anycast is a technology for mirroring servers on a large scale by enabling them to all advertise the same IP address from diverse locations on the internet.

EurID already has similar deals to run .eu on Anycast networks belonging to NeuStar and CommunityDNS, reducing its exposure to a failure at any single provider.

That’s some serious redundancy.

The registry says that .eu domains are now resolved by 35 server locations around the world.

.XXX domain contract could get approved next Thursday

The application for the porn-only .xxx top-level domain is on the just-published agenda for ICANN’s board meeting next Thursday.

The line item reads merely “ICM Registry Application for .XXX sTLD”, but I’m told that ICM and ICANN staff have already negotiated a new contract that the board will be asked to consider.

If the board gives it the nod, it would keep the .xxx TLD on track for possible delegation at ICANN’s Cartagena meeting in early December, meaning sales could begin as early as the first quarter 2011.

According to last month’s Brussels resolution, the board has to first decide whether the contract complies with previous Governmental Advisory Committee advice, or whether new advice is required.

If ICM jumps that hurdle, the contract will be published for public comment (fun fun fun) for three weeks to a month, before returning to the board for a vote on delegation.

Also on the agenda for the August 5 board meeting is the issue of whether to give Employ Media the right to liberalize its .jobs TLD and start accepting generic domain registrations.

In the HR industry, the .jobs debate has been just as loud as the .xxx controversy was in the porn business. Some companies think the changes would be unfair on existing jobs sites.

There are a few other intriguing items on next Thursday’s agenda.

The board will discuss the “International Dimension of ICANN”, “Data & Consumer Protection” and “UDRP Status Briefing”, all of which strike me as rather enigmatic, among other topics.

The UDRP item may refer to the ongoing debate about whether ICANN needs to have contractual relations with its UDRP providers.

Yes, .co domains are subject to the UDRP

I’ve been getting a fair bit of search traffic over the last few days from people evidently wondering whether .co domain names are subject to the same UDRP rules as .com, so I thought I’d answer the question directly.

Yes, they are.

For avoidance of doubt, I’ve just talked to .CO Internet’s director of marketing, Lori Anne Wardi, who had just talked to the registry’s policy people.

She told me that .co domains are subject to the exact same ICANN UDRP as .com.

If you’re a .co registrant, you’re bound to the policy the same as you are in .com. If you’re a trademark holder, you file a complaint in the same way.

The only difference at the moment is that .CO Internet has contracted with only one UDRP provider, WIPO, but Wardi said that more providers may be signed up in future.

UNICEF looking for a .brand TLD partner

The UN-backed charity UNICEF has become the second organization, after Canon, to confirm publicly it is planning to apply for a .brand top-level domain.

The organization has put its feelers out for a registry operator to apply for and manage .unicef, publishing a Request For Information on its web site this week.

The RFI says:

Taking the long view, as time goes on a name such as www.donations.unicef and www.cards.unicef will become more intuitive in a more crowded Internet, and thus more valuable because the name reflects exactly that of an organization and declares what it does.

With unscrupulous individuals frequently seeking to capitalize on global tragedies to bilk money out of people through bogus web sites, charities could very well see some anti-phishing benefits from having their own sufficiently publicized TLD.

As I noted yesterday, it looks like the Red Cross may be thinking about a similar initiative.

UNICEF appears to want an operator that will be able to both manage the ICANN application process and then, for at least two years, the operation of the registry.

The deadline is July 30, so vendors have just a week to fill out and submit a questionnaire outlining their capabilities.

The questions appear, to me, to betray a degree of unfamiliarity with the DNS business and the new TLD process in particular.

What are the timeframes for developing and provisioning the application including all necessary activities (i.e. obtaining ICANN’ registration, facilitating the transition of current domains to the top level domain etc) from the moment a contract is signed with the selected vendor?

Good luck answering that one.

(Hat tip: newTLDs.tv)

Brand owners drop hints about .brand TLD plans

The flood of negative comments to ICANN yesterday almost obscured the fact that a few companies have hinted that they will apply for their own “.brand” top-level domains.

As Antony Van Couvering first noted on the Minds + Machines blog, IBM’s comment on version four of the Draft Applicant Guidebook makes it pretty clear the idea of a .ibm is under consideration.

IBM’s filing raises concerns about the issues of sunrise periods and vertical integration, with particular reference as to whether .brand owners would be exempt from such things.

This suggests IBM is thinking about its own .brand.

If we make the (admittedly cheeky but probably realistic) assumption that the large majority of comments filed with ICANN are self-serving, we can infer that anyone taking in an interest in the nuts and bolts of running a new TLD has probably considered applying for one.

Other than IBM, I’ve notice two others so far: Microsoft and the American Red Cross.

Microsoft, while generally opposed to a large-scale new TLD launch, is very concerned about parts of the DAG that would allow ICANN to transfer a .brand delegation to a third party if the original registry were to shut down for whatever reason.

In other words, if Microsoft one day decided that running “.windows” was a waste of time and decided to shut it down, could ICANN appoint Apple to take it over?

I suggest that this is something that you only really worry about if you’re thinking about applying for a .brand TLD.

The American Red Cross comment contains references to a hypothetical scenario where it applies for its own TLD throughout.

It’s especially concerned that its administrative overheads would increase due to the high ICANN application fees, eating into the money it can spend on worthier causes.

To date, Canon is the only company I’m aware of to publicly state it will apply for a .brand.

Will new TLDs be delayed by the trademark owner outcry?

Yesterday’s flood of criticism from big trademark holders has put another question mark next to ICANN’s plan to finalize the new top-level domain application process this year.

Heavy-hitters including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola filed strong criticisms of the trademark-protection mechanisms in version four of the Draft Applicant Guidebook, and urged ICANN to delay the new TLD launch until the perceived weaknesses are addressed.

The concerns were echoed by the Motion Picture Association of America, the International Olympic Committee, Nestle, the International Trademark Association, Lego, the World Intellectual Property Organization, the American Intellectual Property Law Association, News Corp, the BBC and the American Bankers Association, among others.

Two ICANN registrars, MarkMonitor and Com Laude, also threw in with the anti-DAGv4 crowd. Indeed, MarkMonitor appears to have orchestrated at least a part of the trademark owner commentary.

It’s clear that many IP owners feel they’re being ignored by ICANN. Some organizations, notably WIPO and Time Warner, filed scathing criticisms of how ICANN makes policy.

These aren’t insignificant entities, even if some of their comments read like cases of throwing toys out of the pram.

After conversations with others, I know I’m not the only one who believes that this outcry could add delay to the new TLD process.

It certainly casts doubt on comments made by ICANN chair Peter Dengate Thrush in Brussels last month to the effect that the trademark protection portions of the DAG were very close to being finalized.

Trademark owners, including most of the outfits listed above, are concerned that the Uniform Rapid Suspension policy, designed to create a faster and cheaper version of the UDRP, has become bloated and now in some cases could take longer than a UDRP proceeding.

They also don’t think the Trademark Clearinghouse, a database of brands maintained by ICANN that new TLD registries would be obliged to protect, goes far enough to protect their marks. The previously proposed Globally Protected Marks List seems like a preferred alternative.

ICANN currently hopes to have the final guidebook close to readiness by its public meeting in Cartagena, Colombia, this December. Its board of directors will meet over a weekend in September to try to knock the document into shape. I don’t envy that task.

There’s a possibility, of course, that ICANN will soldier on with its time-line regardless. Dengate Thrush indicated in an interview last month that he did not want trademark issues to delay the launch any more than they have already.

Asked about the IP lobby’s concerns with the speed of the URS, he told the World Trademark Review:

I have conceptually no problem with making sure that expedited processes are available. If this one turns out to be too slow, we’ll do something else. What we can’t have is the hold up of the entire process until this is resolved.

It’s wait and see time again, but at the very least I think it’s pretty clear that the new TLD launch timeline is more in doubt today than it was 24 hours ago.

Round-up of the ICANN new TLDs comment period

Today is the deadline to file comments on version four of ICANN’s Draft Applicant Guidebook for prospective new top-level domain registries.

Of the few dozen comments filed, the majority involve special pleading in one way or another – everybody has something to lose or gain from the contents of the DAG.

That said, I’ve read all the comments filed so far (so you don’t have to) and lots of good points are raised. It’s clear that whatever the final Applicant Guidebook contains, not everybody will get what they want.

Here’s a non-comprehensive round-up, organized by topic.

Trademark Protection

Trademark holders were among the first to file comments on DAG v4. As I’ve previously reported, Lego was first off the mark with an attempt to convince ICANN that the concerns of the IP lobby have not yet been resolved.

Since then, a few more of the usual suspects from the IP constituency, such as Verizon and InterContinental Hotels, have filed comments.

The concerns are very similar: the Universal Rapid Suspension process for trademark infringements is too slow and expensive, the Trademark Clearinghouse does not remove cost or prevent typosquatting, not enough is done to prevent deadbeat registries.

Verizon, a long-time opponent of the new TLD program and a rigorous enforcer of its trademarks, used its letter to raise the issue of cybercrime and hit on pressure points relating to compliance.

It brings up the KnujOn report (pdf) released in Brussels, which accused ICANN registrars of being willfully blind to customer abuses, and the fact that ICANN compliance head David Giza recently quit.

Two IP-focused registrars also weighed in on trademark protection.

Com Laude’s Nick Wood filed a very good point-by-point breakdown of why the URS process has become too bloated to be considered “rapid” in the eyes of trademark holders.

Fred Felman of MarkMonitor covers the same ground on rights protection mechanisms, but also questions more fundamentally whether ICANN has shown that the new TLD round is even economically desirable.

Felman has doubts that new gTLDs will do anything to create competition in the domain name market, writing:

the vast majority of gTLDs currently being proposed in this round are gTLDs that hide traditional domain registration models behind a veil of purported innovation and creativity

Well, I guess somebody had to say it.

Fees

There are concerns from the developing world that $185,000, along with all the associated costs of applying for a TLD, is too steep a price to pay.

The “African ICANN Community” filed a comment a month ago asking ICANN to consider reducing or waiving certain fees in order to make the program more accessible for African applicants.

Several potential TLD registries also think it’s unfair that applicants have to pay $185,000 for each TLD they want to run, even if it’s basically the same word in multiple scripts.

Constantine Roussos, who intends to apply for .music, reiterated the points he brought up during the ICANN board public forum in Brussels last month.

Roussos believes that applicants should not have to pay the full $185,000 for each non-ASCII internationalized domain name variant of their primary TLD.

He wrote that he intends to apply for about six IDN versions of .music, along with some non-English Latin-script variants such as .musique.

Antony Van Couvering of registry consultant Minds + Machines and .bayern bidder Bayern Connect both echo this point, noting that many geographical names have multiple IDN variants – Cologne//Koeln/Köln, for example.

Roussos also notes, wisely I think, that it appears to be a waste of money paying consultants to evaluate back-end registry providers for applicants who choose to go with an recognized incumbent such as VeriSign, NeuStar or Afilias.

Another request for lower fees comes from the Japan Internet Domain Name Council, which thinks geographical TLD applications from small cities should receive a discount, as well as a waiver of any fees usually required to object to a third-party application.

Contended Strings and Front-Running

Of the known proposed TLDs, there are several strings that will very likely be contended by multiple bidders. This has led to maneuvering by some applicants designed to increase their chances of winning.

Roussos suggested that applicants such as his own .music bid, which have made their plans public for years, should be awarded bonus points during evaluation.

This would help prevent last-minute con artists stepping in with “copy-paste” bids for widely publicized TLDs, in the hope of being paid off by the original applicant, he indicated.

Roussos thinks the amount of work his .music has done in raising community awareness around new TLDs has earned the company extra credit.

It’s a thought echoed by Markus Bahmann, dotBayern’s chairman, and his counterpart at dotHamburg.

The opposing view is put forward by rival .bayern bidder Bayern Connect’s Caspar von Veltheim. He reckons such a system would put “insiders” at an unfair advantage.

M+M’s Van Couvering also said he opposes any applicant getting special treatment and added that M+M wants an explicit ban on trademark front-running included in the DAG.

Front-running is the practice of registering a TLD as a trademark in order to gain some special advantage in the new TLD evaluation process or in court afterward.

(M+M’s owner, Top Level Domain Holdings, has reportedly been front-running itself – attempting to defensively register trademarks in the likes of .kids, .books and .poker, while simultaneously trying to fight off similar attempts from potential rivals.)

Roussos of .music responded directly to M+M this afternoon, presenting the opposite view and promising to use its trademarks to defend itself (I’m assuming he means in court) if another .music applicant prevails.

Rest assured that if we, as .MUSIC are faced with the possibility of being gamed and abused in a manner that we find illegal, we will use our trademarks and other means necessary to do what we have to do to protect ourselves and our respective community.

He said .music is trademarked in 20 countries.

Morality and Public Order

This was a hot topic in Brussels, after the ICANN Governmental Advisory Committee agreed that it did not like the “MOPO” objection provisions of DAG v4, but could not think of a better replacement.

MOPO would give a way for governments to scupper bids if they do not like the morality implications. Anybody applying for .gay, for example, would have to deal with this kind of nonsense.

Jacob Malthouse of BigRoom, one of the would-be .eco bidders, reckons ICANN should treat the GAC the same as it treated the GNSO on the issue of vertical integration – remove MOPO from the DAG entirely in order to force the GAC to come up with something better.

The GAC had previously said it would address the MOPO issue in its comments on DAGv4, but its filing has not yet appeared on the ICANN site.

There’s a GNSO working group over here, but M+M’s Van Couvering notes that no GAC members have got involved post-Brussels.

Terrorism

Two commentators objected to the idea that an applicant could be rejected for involvement in “terrorism”, a term that DAGv4 does not define.

I reported on this a few days ago, but since then Khaled Fattal of the Multilingual Internet Group has filed a surprising rant that seems to indicate he has way more beef than really necessary.

Here’s a few quotes mined from the full comment:

it will alienate many in the international community who will choose not to take part in future ICANN processes including its New gTLDs, distrusting ICANN’s motives, or actively choosing to boycotting it, and causing many to seriously start re-considering alternatives.

as a Syrian born Arab American would I pass the IvCANN terrorism verification check as they are? After all Syria, my country of birth, is on the U.S. Government list of states sponsor of terrorism? And I admit, I do know an “Osama”, does that disqualify me? I Forgot to add, “Osama Fattal” a cousin. So would I pass or fail this check?

The arbitrary inclusion of terrorism as a measuring stick without any internationally recognized laws or standards is wrong and offensive to many around the world. If acted upon, it will be seen by millions of Muslims and Arabs as racist, prejudicial and profiling and would clearly indicate that ICANN has gone far beyond its mandate.

Vertical Integration and .brand TLDs

The issue of whether registries and registrars should be allowed to own each other is a thorny one, but there’s barely any mention at all of it in the DAGv4 comments filed so far.

The DAGv4 language on VI, which effectively bans it, is a place-holder for whatever consensus policy the GNSO comes up with (in the unlikely event that its working group ever gets its act together).

Most efforts on VI are therefore currently focused in the GNSO. Nevertheless, some commentators do mention VI in their filings.

Roussos of .music wants .music to be able to vertically integrate.

Abdulaziz Al-Zoman of SaudiNIC said VI limits should be removed to help applicants who need to turn to third-party infrastructure providers.

From the IP lobby, Celia Ullman of cigarette maker Philip Morris notes that there’s nothing in DAGv4 about single-registrant .brand TLDs. She writes:

would this mean that trademark owners owning a gTLD would need to open the registration procedure to second-level domain names applied for to third unrelated parties? In this case, what would be the incentive of actually registering and operating such a gTLD?

Clearly, the idea that a .brand would have to be open to all ICANN registrars on a non-discriminatory basis is enough to make any trademark attorney choke on their caviare.

JPNIC, the .jp ccTLD operator, also points out that DAGv4 says next to nothing about .brand TLDs and strongly suggests that the final Applicant Guidebook spells out just what a registry is allowed to do with its namespace (lawsuits are mentioned)

Disclaimer

I’ve paraphrased almost everybody in this article, and I’ve done it rather quickly. Despite my best efforts, some important nuance may have been lost in the act.

If you want to know what the commentators I’ve cited think, in their own words, I’ve linked to their comments individually throughout.

I may update this post as further comments are filed.