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IP lawyers call for halt to new TLDs

Kevin Murphy, January 13, 2011, Domain Registries

Some trademark interests are ratcheting up the rhetoric in opposition to ICANN’s new top-level domains program, with one company calling for it to be scrapped altogether.

While ICANN’s extended public comment period on the proposed final Applicant Guidebook does not end until the weekend, a Danish bloc of companies has already made its objections known.

The most vociferous views so far this week have come from Lundbeck, a drug company that researches treatments for diseases such as Alzheimer’s and Parkinson’s.

Lundbeck trademark counsel Søren Ingemann Larsen accused ICANN of operating “fake” comment periods that ignore feedback from the trademark lobby.

In a cap-happy missive, he said the program should be “HALTED” until ICANN can prove the domain market lacks competition, then “cancelled” if such proof is not forthcoming.

The fact of the matter is that the only entities that are in favour of the Program are the ones who can make money out of it, and that is ICANN and the Registrars. The “internet community”, including private users and brand owners, are NOT interested.

Lundbeck, which has brands such as “Cipralex” and “Xenazine”, does not appear to be a major target for cybersquatters, judging by how many UDRP complaints it has filed (none).

It did however join CADNA, the Coalition Against Domain Name Abuse, at the same time as prolific UDRP user Lego Juris, last November.

Lego, and a few other companies submitting virtually identical comments to ICANN this week, have reiterated criticisms of the program’s trademark protections expressed in previous months.

But they have now also seized upon elements of the latest independent economic report into the costs and benefits of new TLDs, which ICANN published last month.

One extract Lego and the others quote questions whether new TLDs are needed to provide some of the services proposed by community TLD wannabes:

Are there other ways to achieve the primary objectives of the proposed gTLD, such as: (a) second-level domain names; (b) certificates; (c) software tags; and (d) filters that look at content beyond the URL and any tags? How do the alternatives, if any, compare in terms of their likely effectiveness in achieving the primary objectives of the gTLD and the costs they would impose on different members of the Internet community?

It’s an interesting argument – that a community TLD could just as well operate as a second-level domain – not one I recall reading in a long while. I don’t think it has legs.

Native Americans want new TLD protection

Kevin Murphy, January 11, 2011, Domain Registries

The National Congress of American Indians, a Native American rights group, has asked ICANN for special protection for tribal names under the new top-level domains program.

In comments filed with ICANN today, the NCAI asks for the same level of protection given to countries and territories found on various UN lists, such as the ISO 3166-1 list of country names.

NCAI president Jefferson Keel wrote:

Allowing the approval of top level tribal domain names (such as .navajo or .seneca) without considering the protection of tribal governments would cause confusion, attributing certain information or views to a tribal government which would lack control while its name is being used. In our view, only tribal government websites should be authorized to use a tribal name gTLD, unless express consent is granted by the tribal government.

The letter appears to request that these protections are extended both to TLD strings and to names registered at the second level, although it’s not entirely clear on that point.

In other words, the NCAI appears to want not only “.navajo” reserved, but also to have “navajo” placed on the list of reserved strings that all TLD registries will have to abide by.

The latest list of tribes officially recognized by the US government has several hundred entries. If ICANN were to make the requested changes, more tribes would be protected than UN members.

Most of the push for protection of geographic terms has come from ICANN’s Governmental Advisory Committee, which does not have any Native American tribal representatives.

Keel’s comments were filed in response to the ongoing ICANN public comment period on the latest version of the Applicant Guidebook, which ends this Saturday.

Ready to apply for a gTLD? No, you’re not. Not even remotely

Kieren McCarthy, January 11, 2011, Domain Registries

Editor’s Note: This is a guest post by Kieren McCarthy.

So, yes, it’s been a long, drawn-out and dispiriting exercise to get to the point where the structure of the internet will be radically changed forever.

But even if the US government invades ICANN’s offices in Los Angeles, trademark lawyers kidnap Rod Beckstrom, and Marilyn Cade clones herself 100 times, nothing can stop the raw reality that 2011 is the year of the gTLD. It’s happening. So stop sulking and start getting excited about it.

It’s been a long 30 months since Paris in June 2008. Plenty of time to talk and plan and consider the future. The biggest negative impact of this delay however has not been on the process but on the gTLD applicants themselves who have started to persuade themselves they know what they’re doing.

We don’t need a four-month communication period, they cry, we are ready to go. We have been ready to go for two years!

The sad truth however is that you’re not. You’re not even remotely ready to face a brave new world of internet extensions that fit around its users, rather than the other way around.

Sure, you know the rules in the Applicant Guidebook. Well, most of them. And you know how the application process will work (but you don’t though, do you?). But that’s all just paperwork, as soon as you get through the doors of bureaucracy there standing in the brilliant light will be hundreds of thousands of internet users clamoring to hear what you have to tell them, basking in the glory of a new dawn.

Except they won’t.

Instead you are more likely to find yourself coming out of a cinema in a bad part of town just as the sun sets, looking for a taxi and realizing you haven’t got enough cash left to get home.

Make no mistake: new internet extensions are the future of this extraordinary global network. VeriSign doesn’t drop half a million dollars for a one-hour session at an ICANN meeting if it’s doesn’t think it’s critical to its future. But there was a long gap between the invention of the steam engine and the Japanese bullet train. The Wright Brothers took off in 1903 but it took 32 years for the DC-3 to bring air travel to commercial travelers.

The big boys will be fine of course; they have the money and resources to flex and change. But if you are not VeriSign or GoDaddy, how are you going to ensure that your internet dream isn’t just a pipe-dream or, worse still, a nightmare?

The answer is terrifying simple: talk to people.

The fact is that no one knows how the domain name market will pan out in the next few years. There are plenty of ideas, some new, some radical. Some of these will take root; others will fade or fail. The only way to get a sense of what will be a rapidly changing market is to find out what everyone else thinks. You need to talk to everyone, and they need to talk to you.

The other side of this coin is learning from the past. We have had two previous extensions of the internet namespace, albeit much smaller. But those that started up the dot-infos and dot-names were once in the same place as new applicants will be in six months’ time: full of ideas and staring at an uncertain path forward.

The domain name industry, though still maturing, is also not an empty space anymore. There are enough established companies and there have been enough conferences and meetings about that market for relationships to be formed. A status quo of sorts is in place, and a collective sense of how things work has emerged.

Even so, was it only me that listened to person after person in 2010 call ICANN’s economic studies inaccurate and incomplete and thought: “Not one of you has the same idea about the industry you live within.”

How much do new gTLD applicants know or even understanding the different sides of this industry?

If you go to ICANN meetings, you may know some of the politics of it. You may even have grasped some of the multitude of processes that accompany internet infrastructure. But you won’t have got a feel for the sheer business of the internet.

If you come from the domainer industry, chances are you have a sense of the intrinsic value of domains and what makes them move or not move. But even the CEO of Oversee.net, Jeff Kupietsky, said this time last year there needs to be some kind of organized effort to turn what is an ad hoc market into something more stable. Domainers know how auctions work – but not how to build the factory to make the products that are sold.

If you have run a registry in the past, you may have a leg up. But how do you differentiate between useful lessons from the past, and old ways of thinking that will put you at a competitive disadvantage?

How many of those wonderful, market-tested systems have in fact been dangerously patched and cobbled together over the past decade? How will you recognize the market-changing products when they appear?

And, of course, the biggest, the most unknown and yet the most crucially important aspect of new gTLDs: marketing.

In an industry where the epitome of marketing prowess is a woman making double entendres in a tight T-shirt, we all have much to learn from the marketing crowd. When you enter the market alongside 499 other new extensions, you better be damn sure you have a plan to persuade people why they should choose yours.

So what is the solution? Well a big part of one solution is to attend the first ever conference that is dedicated to figuring out this new market.

The .nxt conference on 9-10 February in San Francisco will feature everyone from ICANN’s CEO and the ICANN staff in charge of running the process, to the established players, the visionaries as well as the heretics, the observers and the advisers.

Over two days, you will get a masterclass in what we all collectively know, and are still figuring out, about new internet extensions. It’s the one place where you can check your assumptions and learn about others’. Miss that opportunity and in 12 months’ time you’ll be wondering how you managed to get it all so wrong.

Kieren McCarthy is an author and consultant, formerly ICANN’s general manager of public participation. He is a founder of the Global Internet Business Coalition and general manager of the .nxt conference.

Coalition complains to ICANN about Universe.jobs

Kevin Murphy, January 10, 2011, Domain Registries

The .JOBS Charter Compliance Coalition thinks Employ Media is violating its own policies by allowing Universe.jobs to be launched, and has complained to ICANN.

Coalition chief John Bell said the group, which comprises jobs sites such as Monster.com and CareerBuilder.com, “filed a formal notice” with ICANN’s compliance department December 17.

That was just one week after ICANN’s board of directors, at the Cartagena meeting, passed a resolution calling for ICANN staff to “closely monitor” the registry for charter violations.

“We are confident that ICANN is taking our claims seriously and we are looking forward to a favorable decision,” Bell said.

Universe.jobs was turned on by the DirectEmployers Association last week, using hundreds of generic domains, after ICANN give the registry the all-clear to start selling non-company-name domains.

The issue is whether this independent jobs board, which is fed traffic from domains such as usa.jobs, texas.jobs and marketing.jobs, is a permissible use of .jobs domains.

The Coalition thinks it isn’t. Employ Media thinks it is.

The Coalition has also apparently complained about NativeAmerican.jobs, another employer-independent jobs site, on behalf of NativeAmericanJobs.com.

Three new ccTLDs (including .sx) up for grabs

Kevin Murphy, January 10, 2011, Domain Registries

IANA quietly created three new country-code top-level domains shortly before Christmas, to represent the new nations created by the breakup of the Netherlands Antilles last year.

The new ccTLDs are: .bq for Bonaire, Saint Eustatius and Saba, .cw for Curacao and .sx for Sint Maarten (Dutch part). All three appeared in IANA’s database December 20.

None of the strings are currently delegated. The governments of the respective nations will have to apply to IANA if they want to start using their TLDs on the internet.

The days of chancers moving in to colonize island ccTLDs (eg .nu) may have passed, but there are still opportunities for domain name businesses to make a buck here.

The most recent new ccTLD, .me, was assigned to Montenegro in 2007. The registry’s partners include Go Daddy and Afilias.

I’m sure overseas domain name companies are already sniffing around the newly minted countries.

But these nations are small, and they don’t seem to have lucked out by being assigned strings with much secondary semantic value, so I can’t imagine we’re looking at high-volume TLDs.

Sint Maarten’s .sx may be an exception, due to its resemblance to “.sex”, which is quite likely, I think, to be created as a gTLD under ICANN’s upcoming new TLDs program.

If and when .sx is delegated, the country will have to bear this potential for confusion in mind when it’s designing its registration policies.

Will it want to keep its national brand respectable, or will it cash in on possible future typosquatting?

The Netherlands Antilles officially split in October. It took about three months for the three strings to be added to the ISO 3166 list (pdf), and another week for IANA to add the ccTLDs to its database.

The string AN, for the dissolved country, has also been deleted from the 3166 list. What happens to .an the ccTLD is a whole other story.