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Straw man proposed to settle trademark deadlock at secretive ICANN meeting

Kevin Murphy, November 19, 2012, Domain Policy

Trademark interests seem to have scored significant concessions in their ongoing battle for stronger rights protection mechanisms in new gTLDs, following a second closed-doors ICANN meeting.

Following a two-day discussion of the Trademark Clearinghouse in Los Angeles late last week, ICANN CEO Fadi Chehade has published a “straw man” proposal for further discussions.

The straw man — if it is ultimately adopted — would grant the Intellectual Property Constituency and Business Constituency some of the things they recently asked for.

Crucially, they’d get the right to add keywords to the trademarks they list in the Trademark Clearinghouse, making them eligible for the Trademark Claims service.

There would be a test — a UDRP or court win concerning the string in question — for inclusion, and a limit of 50 brand+keywords or misspellings per trademark in the Clearinghouse.

The idea here is to help brand owners quickly respond to the registration of — but not preemptively block — domains such as “brand-industry.tld” or “brand-password-reset.tld”.

The Trademark Claims service would be extended from 60 to 90 days, under the straw man model.

Chehade’s blog post also outlines a “Claims 2” process that would run for six to 12 months after the launch of each new gTLD and would require trademark owners to pay an additional fee.

This Claims 2 service would not necessarily give registrants the same information about trademarks related to the domains they want to registry. Why not is anyone’s guess.

Here’s how Chehade described it:

Rights holders will have the option to pay an additional fee for inclusion of a Clearinghouse record in a “Claims 2″ service where, for an additional 6-12 months, anyone attempting to register a domain name matching the record would be shown a Claims notice indicating that the name matches a record in the Clearinghouse (but not necessarily displaying the actual Claims data). This notice will also provide a description of the rights and responsibilities of the registrant and will incorporate a form of educational add-on to help propagate information on the role of trademarks and develop more informed consumers in the registration process.

I’ve long been of the opinion that Trademark Claims service will not prevent most cybersquatting (determined bad actors will click through the notices as easily as you or I click through a software license agreement) and “Claims 2” appears to be a diluted version of the same lip service.

Claims 2 and the extension of the Clearinghouse to brand+keyword strings appears to be a step in the right direction for trademark owners, but I can’t see the changes substantially reducing their costs.

There’s also already opposition to the ideas from the Non-Commercial Stakeholders Group, according to this analysis of the straw man from NCSG chair Robin Gross.

The LA meeting rejected the notion of a preemptive cross-TLD trademark block list along the lines of the ICM Registry’s Sunrise B for .xxx, which is among the IPC/BC proposals.

The only change to Sunrise proposed in the straw man model is a mandatory 30-day notice period before the mandatory 30-day Sunrise kicks off, to give brand owners time to prepare.

In summary, the straw man proposal appears to create some marginal benefit for trademark owners at the expense of some additional cost and complexity for registries and registrars.

It would also create an entirely new rights protection mechanism — Claims 2 — out of whole cloth.

While no firm decisions appear to have been made in LA, it’s impossible for us to know for sure what went down because the meeting was held behind closed doors.

ICANN even enforced a Twitter ban, according to some attendees.

The meeting was the second private, invitation-only TMCH discussion in recent weeks.

While we understand there were remote participation opportunities for invited guests unable to attend in person, there was no opportunity to passively listen in to the call.

DI was told by ICANN there was no way for us to follow the talks remotely.

According to a number of attendees on Twitter, participants were also asked by ICANN not to tweet about the substance of the discussions, after complaints from trademark interests present.

The same attendees said that ICANN plans to publish a transcript of the meeting, but this has not yet appeared.

Considering that the issues under discussion will help to shape the structure of the domain name industry for many years to come, the lack of transparency on display is utterly baffling.

Indian domain conference attracts 4,000

Kevin Murphy, October 31, 2012, Domain Services

While US domain conferences are reportedly becoming sedate affairs, a domain-heavy summit that kicks off tomorrow in Mumbai has more than 4,000 signed-up attendees, according to organizers.

The two-day ResellerClub Hosting Summit, organized by Directi, may have “hosting” in the title, but its sponsors and agenda reveal a strong presence from the domain name industry.

Verisign is the major sponsor, plugging its .com and .net TLDs. Other sponsors include .org, .biz, .co, .asia and .pw.

The agenda features speakers from Public Interest Registry, ICANN, NameMedia and Directi new gTLD applicant Radix.

Directi to relaunch .pw as an open TLD

Kevin Murphy, October 8, 2012, Domain Registries

Directi will soon relaunch .pw, the ccTLD for the tiny Micronesian nation of Palau, as an open pseudo-gTLD.

The official launch of the registry will happen at the ICANN meeting in Toronto next week, according to Directi CEO Bhavin Turakhia, with a sunrise period kicking off in December.

It’s the first TLD for which Directi — an applicant for 30 new gTLDs as well as a top-ten registrar — will act as the registry.

.pwThe company will brand the offering around the retroactive acronym “Professional Web”.

Turakhia hopes success will come from a combination of low cost — registry fees are not yet finalized, but will be sub-.com, he said — and the fact that .pw is mostly virgin territory.

“It’s a pretty good pricing model,” he said. “We’re making sure that people have access to desirable names at an affordable cost.”

The company plans to run .pw “exactly like a gTLD”, with standard sunrise, landrush and registration lifecycle policies. It will even adopt the UDRP, Turakhia said.

CentralNic, which already runs subdomain services such as .gb.com and .us.com, has been hired to run the back-end, despite the fact that Directi is using ARI Registry Services for its gTLD bids.

Sunrise is expected to start in early December and run for about 70 days. Landrush will run for a month, starting in February 2013. Pricing has yet to be finalized.

Directi is currently looking for registrars to sell the domains, above and beyond its own network of registrars.

Directi obtained the exclusive license to .pw about four years ago via EnCirca, the registrar that attempted to relaunch .pw under the “Personal Web” slogan in 2004.

The company originally planned to use the second level as a bundled service to tie in with a social networking slash instant messaging product that it was working on, but those plans have changed.

As a result .pw hasn’t been accepting registrations for a while.

Palau is a Pacific island nation with only about 20,000 citizens. As such, .pw doesn’t have a great many legacy registrations.

One such registration is pay.pw, which Directi is using for a payment gateway service.

Turakhia said that six second-level domains have been reserved for Palau’s use: co.pw, ne.pw, or.pw, ed.pw, go.pw and belau.pw. No other two-letter domains will be available.

ResellerClub sells 11,000 .pro domains in a month

Kevin Murphy, October 2, 2012, Domain Registries

Directi says it sold 11,000 .pro domains via its ResellerClub channel in the first month after it started supporting the TLD.

That’s pretty impressive going, given that the whole of .pro was only about 155,000 domains at the last count, enough to put the registrar into fifth place for .pro domains under management.

ResellerClub’s wholesale price until October 31 is $2.99, with two free email accounts, according to the company.

The surge will prove useful to .pro registry Afilias, which expects to see over 40,000 domains — all of them US Zip codes registered to .pro’s former owner Hostway — drop this month.

Goodbye to .co? Nominet ponders releasing second-level .uk domains

Kevin Murphy, October 1, 2012, Domain Registries

Nominet wants to let UK companies register domain names directly under .uk for the first time.

The company today launched a major consultation, seeking industry and internet users’ input on a plan to open up the second level to verified British businesses.

Today’s it’s only possible to register .uk domains at the third level — .co.uk and .org.uk are the most popular suffixes. But if Nominet gets positive feedback, you’d be able to register example.uk instead.

Second-level domains would come with a few catches, however. Nominet says it wants to create a higher-security zone.

They’d be more expensive: £20 per year instead of £2.50.

Registrants would have to be based in the UK, with verifiable contact information, and domains would only start resolving post-verification.

DNSSEC might also be mandatory.

It’s expected that registrants would be prohibited from selling third-level domains in their zones. There could be large numbers of reserved names, such as the names of towns.

There might even be restrictions on which registrars can sell the names.

There are obviously no plans to get rid of .co.uk and the other public suffixes, but over time I can see a movement in that direction.

The exact rules will depend to an extent on the results of the consultation, which can be downloaded here. The deadline for responses is January 7.

Directi says Karsten threatened it over .ping gTLD

Kevin Murphy, September 27, 2012, Domain Registries

The golf club maker Karsten has launched an attack on Directi due to their dispute over the new gTLD .ping, following through on threats Directi says the company made last month.

Karsten’s outside counsel, Paul McGrady of Winston & Strawn, filed over 200 comments and a 500-page letter against Direct’s new gTLD applications last night, shortly before the ICANN deadline.

In the comments, McGrady says that Directi should be banned from running any new gTLDs because its affiliated privacy service, PrivacyProtect.org, has lost dozens of UDRP cases.

But Directi said today that the Strawn comments — filed against applications such as .web, .hosting and .app — are just a smokescreen for Karsten’s claim over .ping.

Ping is a brand of golf clubs Karsten sells at ping.com, but Directi plans to use the gTLD in its other, geeky sense, open to all-comers.

Directi says that Karsten told it in an August 8 letter to withdraw the .ping bid or face action. According to Directi, the letter said in part:

Karsten is preparing to post this letter and the attached public comments for each of your applications, not just .ping, prior to the end of the public comment period. Once filed, this letter and the public comments will also be sent to the ICANN Board and Senior Staff. Further, as you know, Karsten may seek relief from the courts, through ICANN’s various processes, and through raising awareness of your activities within the ICANN community generally. Karsten will pursue all appropriate means to ensure that all of your applications are rejected.

Directi said in a statement: “Karsten is our only competitor for the .ping bid and their comment is submitted in bad faith and to further their self-interest.”

CEO Bhavin Turakhia said that PrivacyProtect.org did not own any of the domain names listed in the UDRP cases McGrady cited, it merely acted as the privacy service.

The company removes the privacy protection when UDRPs are filed, he said, but the registrant’s identity is not always listed in the published decision.

Is .city confusingly similar to .citi? UDRP says yes

Kevin Murphy, August 14, 2012, Domain Registries

In one of the more surprising twists to hit the new gTLD program, Citigroup has claimed that its proposed dot-brand gTLD, .citi, is not “confusingly similar” to the proposed generic gTLD .city.

The company appears to be trying to avoid getting into a contention set with the three commercial applicants for .city, which would likely put it into an expensive four-way auction.

It’s a surprising move because you’d expect a financial services company to want to at least try to mitigate the risk of future .city/.citi typo-based phishing attacks as much as possible.

Indeed, its .citi application states that the mission of the gTLD “is to further assist Applicant in accomplishing its mission of providing secure online banking and financial services”.

Nevertheless, the company is now arguing, in a few comments filed with ICANN today, this:

CITI and CITY are not so similar in an Internet context as to create a probability of user confusion if they are both delegated into the root zone. Thus, the .CITI application should not be placed into a contention set with the .CITY application.

The new Citigroup position is especially bewildering given that it has argued the exact opposite — and won — in at least two UDRP cases.

In the 2009 UDRP decision Citigroup Inc. v. Domain Deluxe c/o Domain Administrator, Citigroup contended that:

Respondent’s citywarrants.com domain name is confusingly similar to Complainant’s CITIWARRANTS mark.

The panelist in the case concluded that the Y variant of the name was merely a “mistyped variation” of and “substantively identical” to the Citigroup trademark.

A similar finding appears to have been handed down in Citigroup v Yongki, over the arguably generic citycard.com, but the decision is written in Korean so I can’t be certain.

The company’s current view, which I’m going to go out on a limb on and characterize as expedient, is that ICANN has delegated multiple ccTLDs that have only one character of variation in the past (it hasn’t — the ccTLDs it cites all pre-date ICANN) without causing confusion.

It also states in its comments that the meaning and proposed usage of the two strings is “very different” (which one commenter has already suggested is historically dubious).

So what’s going on here?

Is Citigroup really willing to risk potential phishing problems down the line to save a few measly bucks today? On the face of it, it looks that way.

If it is put in a contention set with the three .city applicants, it could wind up at auction against Donuts ($100m funding), TLD Registry Ltd (apparently backed by the Vision+ fund) and Directi.

Will Citigroup’s gambit pay off?

That’s down to a) the String Similarity Panel and b) whether any of the .city applicants tries to force the company into the contention set via a String Confusion Objection, which seems unlikely.

Big hotel chains pick a side in .hotel gTLD fight

Kevin Murphy, August 11, 2012, Domain Registries

Many of the world’s major hotel chains say they plan to object to every .hotel new gTLD application but one.

A coalition of many recognizable hotel brands, led by InterContinental, has filed comments against six of the seven .hotel applications, as well as the applications for .hotels, .hoteis and .hoteles.

They say they want the Independent Objector to object to these applications on community grounds. Failing that, they’ll file their own official Community Objections.

The comments (PRO) were filed by the Hotel Consumer Protection Coalition, which appears to be one of those ad hoc organizations that exists purely to send letters to ICANN.

HCPC encourages the Independent Evaluator to submit a formal Community Objection if necessary. (Guidebook, Sec. 3.2.5.) Failing either of these occurrences, HCPC will seriously consider filing a Community Objection of its own – unless, of course, Applicant voluntarily withdraws its application.

The coalition’s members include the Choice Hotels, InterContinental, Hilton, Hyatt, Marriott, Starwood and Wyndham hotel chains. Together, they say they have over 25,000 hotels in over 100 countries.

The lucky recipient of the coalition’s tacit support is HOTEL Top-Level-Domain, the Luxembourg-based applicant managed by Johannes Lenz-Hawliczek and Katrin Ohlmer, which is using Afilias as its back-end.

It’s one of only two .hotel applicants flagged in the DI PRO database as planning to use a “restricted” business model. Only hotels, hotel chains and hotel associations will be able to register.

The other applicant with planned restrictions is a subsidiary of Directi, though its application suggests that any eligibility requirements would only be enforced post-registration.

HOTEL Top-Level Domain is also the only applicant that appears to be pursuing a single gTLD. All but one of the others are portfolio applicants of various ambitions.

Top Level Domain Holdings, Donuts, Famous Four Media and Fegistry all plan “open” business models for .hotel, while Despegar Online is planning a single-registrant space.

The Hotel Consumer Protection Coalition’s support for HOTEL Top-Level Domain is conditional, however. The company has apparently had to agree to explicitly exclude:

“any entity other than a hotel, hotel chain, or organization or association that is not formed or controlled by individual hotels or hotel chains”

It’s also agreed to “immediately suspend” any “clear violations”, such as cases of cybersquatting, when notified by coalition members, and to include its members’ brands on a Globally Protected Hotel Marks List.

The support has apparently been granted extremely reluctantly. InterContinental explicitly does not support the new gTLD program, and Marriott has previously said it thinks .hotel is pointless.

I can’t imagine a .hotel supported by companies that have no plans to use it being particularly successful.

Third .app gTLD applicant revealed

A Ukrainian software developer has become the third company to publicly reveal that it has applied for the .app top-level domain.

MacPaw’s main business is developing software for Apple platforms, as the name suggests. It’s formed a new company, Dot App Inc, based in California, to manage the gTLD bid.

The application imagines a very pro-developer space. Domainers, it appears, will not be welcome.

Some policies from its web site:

– Only application developers or publishers will be able to register domain names in this zone

– Misused domains will be analyzed and repurposed if found to violate the Registration policy

– No need to pay a small fortune for a great but squatted .com or .net domain.

– The rights of app creators will be protected in the same way trademark rights are

Top Level Domain Holdings and Directi both last week announced plays for .app among their large portfolios of gTLD applications.

More applicants will no doubt be revealed next week.

Directi expects all 31 of its gTLDs to be contested

Directi has applied for 31 new top-level domains and expects all 31 of them to be contested, according to CEO Bhavin Turakhia.

The company has budgeted $30 million for its unashamedly mainstream portfolio of applications – which includes the likes of .web – but that’s not including what it expects to spend at auction.

“I expect there to be contention in all of them,” he said. “Whether they will end up going to auction… we’re completely open to strategic partnerships with other industry players who we believe can add value and join hands with us, based on merit. We’ll be evaluating this on a case by case basis.”

“Something like a .web, there’ll be enough competitors out there that it will certainly go to auction, no matter what,” he said, adding that he expects at least 10 rivals for .web.

Directi has applied for: .web, .shop, .bank, .law, .music, .news, .blog, .movie, .baby, .store, .doctor, .hotel, .play, .home .site, .website, .click, .online, .one, .ping, .space, .world, .press, .chat, .city, .deals, .insurance .loans, .app, .host, and .hosting.

The company is applying via its new business unit, Radix, using ARI Registry Services as its back-end registry provider.

Turakhia said he expects to use a traditional registry-registrar model for most of the domains, assuming Directi wins its contention sets.

“The strings that we have gone for are strings that are relevant to all registrars so we expect there to be significant adoption,” he said.

“If eNom were to apply for .web and .shop – and they probably will – and if they were to win those TLDs, then our registrar businesses would definitely carry them irrespective of the fact that we have our own TLDs,” he said. “There are only so many good viable strings out there.”

Most of Directi’s gTLDs, if approved, will be completely unrestricted.

For .movie, .law, .doctor and .bank there will be some tight restrictions, Turakhia said. (UPDATE: he later added that .insurance and .loans will also be restricted).

Some will also have additional rights protection mechanisms that go above and beyond what ICANN mandates in its standard registry contracts.

But none of its applications are “community” applications, the special category of application defined by ICANN.

Turakhia said he doesn’t think some of the applicants trying to “sneak through” as community applications will be successful.

“We’re treating these as all generic strings for anyone to register domains in,” he said. “.music for me does not represent a community. I could be a bathroom singer and want a .music domain name.”

“If you treat music lovers as a community then 100% of the world is part of that community.”