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Nutty DotConnectAfrica gives DI a good kicking

Kevin Murphy, March 2, 2013, Gossip

New gTLD applicant DotConnectAfrica is not happy with DI, again.

The nutty .africa applicant took issue with a recent post describing the company as “nutty” and trying to make sense of a rambling conspiracy-laden letter it had sent to the US Congress.

As a reminder, DCA is competing with South Africa’s ccTLD registry operator UniForum, which has the support of African governments and the African Union, for the .africa gTLD.

DCA has been in denial about the fact that its application is doomed for many months, scrabbling for any opportunity to cling to its .africa dream, and DI is its latest windmill.

DCA requested that I publish its lengthy “rejoinder” to our last blog post here, so I have, albeit interspersed with my own commentary.

I apologize in advance for leaving DCA’s formatting intact.

Dear Mr. Kevin Murphy,

Subject: Our Rejoinder to your article on DCA’s Complaint to U.S. Congress

The attention of DotConnectAfrica (DCA) Trust has been drawn to your recent Blog article with the title: ‘Nutty DCA Complains to US Congress about .Africa’ (http://domainincite.com/11958-nutty-dca-complains-to-us-congress-about-africa).

Even though you have continued to demonstrate your penchant for biased and negative reporting against DCA Trust, we think that the use of the pejorative ‘nutty’ is uncalled for and shows your disrespect and disdain for our organization and we believe you owe us an apology.

I don’t believe an apology is required.

DCA is the laughing stock of the industry, a status it will continue to hold until its .africa bid is killed off a few weeks from now.

“Nutty” is a generous, whimsical way to describe the company’s recent antics, which have included:

  • nuttily wasting >$185,000 on a gTLD application that has no chance of being approved,
  • nuttily applying for the wrong gTLD (.dotafrica),
  • using fake online identities to make it appear that DCA has grass-roots support for its nutty ideas,
  • throwing around nutty allegations of “wholesale illegality” without a) specifying what laws have been broken b) by whom and c) presenting any credible evidence to back up the allegations,
  • overabundant use of bold text, underlined text, colored text and font changes to distract from the fact that its nutty missives lack substance — a tactic favored by online conspiracy theorists since the dawn of the ‘net.

In short, if you think “nutty” is bad, trust me when I say it was the least antagonistic adjective I could come up with.

However, even though we already feel a sense of righteous indignation by your mocking tone and the fact that you have openly engaged in unnecessary name-calling simply to aggravate DCA Trust; we are actually more interested in setting the records straight for the benefit of your readers, and wish only to focus on the substantive issues in this rejoinder.

You cannot write to deliberately misrepresent the facts contained in our letter to the 113th United States Congress. For example, you have stated that “according to information in Bekele’s letter, the AU wanted an experienced, Africa-based registry operator to run the TLD, and UniForum, which runs South Africa’s .za ccTLD, was the only qualified candidate.”

Wrong – Not DCA’s View to say Uniforum is Only qualified candidate

First, this is not our view, therefore you cannot put words into our mouth, and we do not agree that UniForum was the only qualified candidate to run .Africa. This is not the viewpoint conveyed in our letter to the United States Congress. We only attempted to re-state what is contained in a draft unpublished report on the ‘unofficial history’ of DotAfrica that was written by Ms. Rebecca Wanjiku, a Kenyan journalist and member of the DotAfrica Registry Project Team under the contrived ‘Africainonespace’ structure (http://www.africainonespace.org/); who had purportedly interviewed Mr. Vika Mpisane, then Chairperson of the AfTLD.

My blog post, as DCA accurately quotes, said “according to information in Bekele’s letter”. The “information in Bekele’s letter” is the text she quoted from Wanjiku’s “draft unpublished report”.

I would have cited the report itself but, as DCA says, it’s unpublished.

In a nutshell, Wanjiku reported that the AU endorsed UniForum because it “wanted African ccTLDs to play a crucial role in implementing .Africa” and that UniForum was the only African ccTLD with an EPP registry.

This interview revealed to us that no tender process actually took place, because the name of UniForum was simply put forward by the AfTLD, and this was accepted by the African Union Commission (AUC). This peculiar transaction as recorded in Rebecca Wanjiku’s account apparently contradicts the official AUC position that there was an open and transparent tender process which “attracted both local and international registries interested in managing dotAfrica gTLD.”

Only a nutty reading of the Wanjiku extract suggests that “no tender process actually took place”.

The existence of the African Union’s November 2011 .africa RFP is not open to question. It’s a matter of public record.

You can still download it here.

DCA is on record acknowledging the RFP at the time it was published, ranting: “DCA has decided not to participate in this sham RFP process and also urges prospective bidders to also avoid the RFP.”

And now DCA is openly questioning whether the tender process even happened? Nutty, nutty, nutty.

Therefore, our contention is that UniForum ZA Central Registry, the other competing applicant for .Africa gTLD is the beneficiary of wholesale illegality in the process of winning the endorsement of the African Union (AU) Commission for the .Africa geographic Top-Level Domain name. This is clearly spelt out in our letter to the U.S. Congress and it does not need any further elaboration or an extra-ordinary effort on the part of any educated person to read it several times to understand what DCA Trust is saying.

Everything DCA produces reads like it was written by Google Translate, run through an overenthusiastic thesaurus, then published by a computer science undergraduate in 1995. In my opinion.

I finished reading its letter to Congress wondering: who did the illegal stuff? What was the illegal stuff they did? What laws were broken? Where? When? Is it worth my time even asking?

Given that DCA wants Congressional intervention, one would expect it to state what the alleged illegal acts were, but it doesn’t. It just says “wholesale illegality” and leaves it at that.

It’s my view that the real reason DCA is pissed off is that, having failed to win the support of African ccTLDs, the AU’s 2011 RFP pretty much excluded DCA from getting the AU’s endorsement.

The company lacked the expertise, experience and the support of African ccTLD operators that the RFP specifically asked for and weighted in its scoring criteria.

I’m not going to pretend to be an expert in African procurement law, but I’d guess that the AU would be unlikely to publish such criteria in an open RFP document if such criteria were illegal.

That’s why, in my view, DCA throws around terms like “wholesale illegality” without getting into specifics. As soon as one look at specifics, its argument melts away like warm Nutella.

It may have been unfair, from DCA’s perspective, for the AU to require a competent partner for .africa, but if the alternative was a company that would do something nutty like, I dunno, apply for the wrong string…

Deliberately Obfuscating to confuse your readers

After reading your report, we believe that you have deliberately tried to obfuscate the matter to either confuse your readers or intentionally divert the attention of the global public from understanding the full import and main implications of our letter to the U.S. Congress. You cannot report that “the AU Commission, at the conclusion of its tender process, decided to support the UniForum proposal” when the available evidence profoundly suggests otherwise; that indeed, there was really no tender process. We have always challenged the AU Commission to publish the report of that Tender Process for the entire world to see. We also maintained this in our official response to the ICANN GAC Early Warning that was issued against our .Africa application.

DI has nothing to gain from obfuscating facts or confusing readers. The entire raison d’etre of the site is to do exactly the opposite.

The best way to avoid confusing readers would be to simply no longer report on DCA’s nutty pronouncements. Believe me, nothing would give me greater pleasure.

Only ICANN can determine a qualified candidate to operate .africa

Second, our fixed position is that only the ICANN can determine the “qualified candidate” to operate .Africa based on the outcome of the new gTLD program. This is not for the AfTLD or the AU to decide contrary to the dictates of the new gTLD program and the sacrosanct stipulations contained in the new gTLD Applicant’s Guidebook. By attempting to decide, as a fait accompli, the registry operator for the new .Africa gTLD, the AU acted ultra vires, and this is a clear usurpation, and an inexcusable violation, of ICANN’s roles, responsibilities, privileges and authority under the officially sanctioned new gTLD program. This is a viewpoint that we have already communicated officially to ICANN and also in our public comments posted against the .Africa new gTLD application submitted by UniForum ZA Central Registry.

Has DCA read the Guidebook?

ICANN makes it abundantly clear throughout that it will defer to governments on geographic gTLDs.

It won’t approve any geographic gTLDs that don’t have the support of the relevant government. For regions such as Africa, that support has to come from 60% of the region’s governments.

DCA presumably knows all this, and yet it nuttily applied for .africa (.dotafrica) without that government support, dooming its $185,000 application to certain failure.

UniForum, on the other hand, does have that governmental support, giving it a shot at being approved.

Does DCA honestly believe that ICANN’s board of directors will favor DCA over UniForum, ignoring the wishes of the governments of Algeria, Benin, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, D.R.Congo, Djibouti, Egypt, Gabon Gambia, Ghana, Guinea, Kenya, Liberia, Mali, Mauritania, Mauritius, Moroco, Mozambique, Namibia, Niger, Nigeria, Senegal, Seychelles, Sierra Leone, South Africa, South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe and the African Union itself?

Good luck with that.

Even if all of Uniforum’s support were to evaporate tomorrow, DCA’s application would still be rejected under ICANN’s “sacrosanct” rules, because DCA doesn’t have government support and is unlikely to get it having spent the last year randomly accusing all those concerned of corruption and law-breaking.

Third, we have always maintained that if UniForum had been endorsed to apply on behalf of the African Community, then it should have submitted an application on behalf of the African Community and acknowledged the same community in its .Africa new gTLD bid to ICANN. We believe that UniForum, after using the African Community as ‘an excuse’ to obtain an important endorsement from the AUC, deliberately failed to acknowledge the same African Community in its bid based on the answers that it provided (or failed to provide by indicating ‘blank’) to ICANN Evaluation Question Nos. 19 and 20 in its .Africa new gTLD application. In DCA’s estimation, this is deceitful and fraudulent. If you obtain an endorsement under the pretext that you intend to, or have agreed to run and operate a geographic TLD on behalf of the African Community, then you should actually apply on behalf of this named community, to wit, the African Community.

UNIFORUM Application is Not on behalf of African Community

For further emphasis, it is necessary for one to refer to the published parts of UniForum’s application and their answers to Evaluation Question Numbers 19 and 20 to indeed verify that UniForum deliberately failed to acknowledge any Community in their official answers to ICANN. In their answer to Question No. 19 (“Is the application for a Community based TLD?”), they unequivocally stated “No”. The question No. 20 (a) – (e) which immediately follows: “(a) Provide the name and full description of the community that the applicant is committing serve”; UniForum intentionally left it blank, thus indicating that they have not actually named any community that they claim to be committing to serve in their new gTLD application for .Africa.

Your redefinition of “Community” against the rule book specifications to support UNIORUM is frivolous and mischievous

Therefore, your attempt to define ‘Big-C’ and ‘small-c’ is quite irrelevant and an unnecessary exercise in frivolity at a time that analytical and professional seriousness are called for. The AU Communiqué published in March 2012 clearly states that “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”; which you also previously acknowledged in your report of July 2012. As a matter of fact, we are actually compelled to believe that your statement that “no applicant was obliged to submit a big-C Community application under ICANN’s rules” is not only flippant but also quite mischievous.

Does DCA really not understand the difference between a “community” and a “Community gTLD application”?

I’ve attempted to explain it before and I’m not sure how to better phrase it than this: one’s a type of gTLD application and the other isn’t.

I suspect DCA does “get it” because its own application for .africa (.dotafrica) states:

DCA believes that DotAfrica does not qualify as a community-based application for two main reasons:

a) There is no clearly delineated, organized and pre-existing community that is targeted by the DotAfrica gTLD.

b) It is difficult to clearly identify who are the ‘members’ of the community, since a ‘community-definition’ of DotAfrica will restrict its use and functionality. Since ‘DotAfrica’ does not necessarily mean a TLD for ‘Africans’, it is difficult to determine the persons or entities that are considered to form the community, and the number of people or entities that make up the community.

In other words, while DCA believes .africa should not be a Community application under ICANN’s rules, it also believes that UniForum had an obligation to submit a Community application anyway? Nutty.

The actual bone of contention is that an endorsement was sought and obtained under the pretext that a Community TLD application would be submitted on behalf of the African Community. The basis cannot change after one has obtained the endorsement. DCA Trust believes that it is not your responsibility to explain why UniForum willfully reneged on the commitment that was implicit in the endorsement that it had received from the African Union Commission.

Nowhere in the African Union’s RFP for .africa does it say that the applicant must submit a Community application.

I’m not aware of any statements from UniForum to the effect that it would submit a Community application.

DCA has never provided any evidence that the AU wanted a Community application nor that UniForum promised one.

Its only tenuous scrap of evidence appears to be a press release (pdf) from the AU that announces UniForum was selected to “operate dotAfrica gTLD on behalf of the African community.”

To read that sentence as “UniForum will submit a Community application” is quite, quite nutty.

Incidentally, if UniForum did lie to the AU and other governments about submitting a Community application, it’s within the governments’ power to withdraw their endorsements at any time.

Uniforum’s Endorsement should be legally invalidated

Our position is that if UniForum has reneged in its commitment, that this fundamental issue must be forced so as to hold it accountable in order to prevent the perpetration of any acts of illegality and outright fraud over the issue of .Africa; and if this is process of accountability is not established by the African Internet Community, the African Union (and its African government member states) or ICANN, then the matter should be rightfully escalated for adjudication to the powerful United States Congress as the highest over-sighting institution of the United States Federal Government. We contend that if UniForum has been fraudulent in its application, this should legally invalidate the endorsement that it has received from the African Union Commission. This determination must be made officially by some authoritative body in order for the cause of justice to be served.

United States Congress has complete jurisdiction over the entire new gTLD program by ICANN

Our understanding is that the .Africa new gTLD is an Internet resource to be delegated by ICANN, and the same ICANN is under U.S. Federal Government Oversight by virtue of its mandate as a federal contractor handling the Internet Technical Management Functions (such as domain names and unique Internet address numbering and assignment) under the IANA Contract. It is therefore our contention that the United States Congress has complete jurisdiction over the entire new gTLD program of ICANN and this cannot be challenged (or scoffed at) by anybody without drawing the ire of Congress. DCA Trust has therefore acted correctly by recognizing the overarching authority of Congress over the entire ICANN new gTLD process and deciding on its own to undertake a necessary due process escalation of this matter to Congress. It is really not our fault if Mr. Kevin Murphy as the Domainincite Blogger lacks the intellectual acuity and analytical acumen to see this matter the same way we see it.

A Dishonest Analysis: Not even ICANN will agree with your opinion – Coomunity applications are not just “a technicality.”.

Furthermore, your explanation that “there’s no need to take advantage of the mechanism if you’re applying for a geographic string and have the necessary government support” is patently dishonest. DCA’s demand for accountability is actually pivoted on this particular point: how the government support was obtained, because the ‘community’ pretext was used by UniForum to obtain the government support from the AUC. Therefore, we believe that it is not your position to justify anything or create new definitions of what ‘community’ is about. Not even ICANN will agree with your opinion that “Community applications are just a technicality of the ICANN program, designed to give advantages to applicants that truly do have the support of a community.”

Community applications are not just “a technicality”. If UniForum claims to have both community support from the African Internet Community, and the support of African Governments, and has been selected to administer and operate a geographic TLD for the benefit of the African Community (whichever way this community is defined), then why did it not acknowledge this ‘African Community’ in its application? What is UniForum afraid of? We believe that if there is a proper accountability mechanism, then the truth regarding the actual intentions of UniForum can be fully established.

DCA cannot help with your Confusion, but we do not expect Congress NOT to be confused

Again, you have attempted to obfuscate the issues by stating in your Blog that DCA seems to deliberately confuse the process AfTLD used to back UniForum and the process the AU Commission used to select UniForum. We cannot help your confusion, since if you are confused you cannot assist your readers to properly dissect and understand what the pertinent issues are.

We do not expect Congress to be confused. Our understanding is that the process which the AfTLD used to back UniForum clearly caused the ‘No Tender Process’ that was used by the AU to select UNiForum.

For us, there is no confusion since the one connected chain remains evident for anyone to see. Our letter to Congress clearly alludes to the “illegal subversion of what was supposed to be an open and competitive tender process.”

The UNIFORUm Proposal is the same as the failed ARC, which you refereed as ‘Cuckoo Business Model’

We may recall that the African Registry Consortium (ARC) that was formed by the directors of UniForum SA sometime in 2011 had tried to solicit an expression of interest from the AfTLD: “For the provision of a domain name registry solution to the African Top Level Domain Organization (aftld) for purposes of preparing, submitting, funding and promoting a successful bid to ICANN for the dotafrica new gTLD.” (See http://africanregistry.net/index.php#endorse).

The ARC proposal had failed after DCA Trust campaigned vigorously against it as a potential Black Economic Empowerment (BEE) scam and for its ‘carpetbag opportunism’. It is the same proposal of the ARC that was pushed in the name of UniForum, and as you have also acknowledged in your write-up, “the AfTLD bid morphed into the UniForum bid.” The connection is therefore quite unmistakable, and we are not fooled. DCA Trust has always warned the African Union Commission and UniForum ZA Central Registry to beware of any irregularities over .Africa new gTLD and our position has not shifted. We are fully convinced that illegality has occurred and that an accountability mechanism must be established by the United States Congress to look into this.

Your deviation from the Truth, Professionalism and Journalistic integrity

Those who have been following the Domainincite Blog (http://www.domainincite.com) may also recall that Kevin Murphy had written about the ‘Cuckoo Business Model’ which he now thinks does not (or should not) apply in the case of UniForum.

The “Cuckoo Business Model” I once discussed referred to the practice of applying for a new gTLD that you know another company is also going to apply for, not in order to actually operate it but rather to extort money from other applicants in your contention set before withdrawing.

It obviously doesn’t apply to .africa — UniForum has no intention of dropping its application and actually wants to run the .africa registry,

DCA, on the other hand, has no chance whatsoever of getting its .africa bid approved and its best-case-scenario outcome here is getting a pay-off from UniForum.

If anything, DCA would be the cuckoo.

It sucks for DCA, which was pimping the .africa brand long before UniForum, but that’s the risk it took when it broadcast its plans to the world before it knew what the rules were going to be.

Therefore, it is our opinion that you have already deviated from the path of truth, professionalism and journalistic integrity; and by engaging in unbalanced and biased reporting against DCA Trust, you have also become quite neglectful of your scared responsibilities to the global public.

As much as I hate to make ad hominem arguments, I can’t help but point out that this is coming from the company that has been creating unconvincing fake online identities to support its nutty positioning.

Truth ain’t DCA’s strong point.

Downplaying DCA’s request for US congress intervention in serious issues

Finally, we believe that you have been rather disingenuous in your attempts to down-play the reason for DCA’s request for the intervention of the U.S. Congress. We have recommended and clearly stated in our letter that Congress should:

  • appoint a new gTLD Ombudsman that would report directly to Congress
  • should give the necessary approval and official impetus for the establishment of a new gTLD Program Ombudsman that would handle and look into different forms of grievances reported by new gTLD applicants
  • and investigate any forms of alleged irregularities and acts of illegality committed by applicants, especially of the sort that DCA Trust has outlined against its direct competitor for the .Africa gTLD, UniForum ZA Central Registry.
  • the new gTLD Ombudsman will be authorized by Congress with the powers of an Independent Counsel to investigate and adjudicate on issues of illegality that have been reported regarding new gTLD matters.

This is what we are asking Congress to do, and you cannot downplay the precedence-setting significance of this recommendation by stating whimsically that ICANN already has an Ombudsman. ICANN’s Ombudsman has no mandate to investigate alleged irregularities and acts of illegality that have been committed by new gTLD applicants.

Fair point.

Asking Congress for an independent Ombudsman was quite interesting, no matter how self-serving and unjustified the request, and perhaps I should have reported the idea in a little more detail.

We hope that you will publish this rejoinder in your Blog and give it proper visibility to ensure that your readers also have the opportunity to read our response to your article.

Sure thing.

We thank you in anticipation of your cooperation.

Yours sincerely,
DCA Public Communications Team
Nairobi, Kenya

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ICANN to reveal Registrant Rights & Responsibilities (and here’s a draft copy)

Kevin Murphy, February 28, 2013, Domain Registrars

ICANN is set to publish and start promoting a new Registrant Rights & Responsibilities charter at some point over the next couple of days, we hear.

The one-page document is set to become an important part of CEO Fadi Chehade’s plan to make the domain name industry appear more trustworthy and likable in the eyes of the internet-using public.

He first revealed the idea during a meeting with registries and registrars in Amsterdam last month.

An ICANN-commissioned study showed that people have a very low opinion of the industry, he told them.

The new document is designed to address some of those concerns.

While the charter may be presented as originating in the industry, it was first drafted by ICANN and we hear that some registrars have been somewhat reluctant to agree to it.

“It’s like when you’re a kid and your dad gives you a birthday card to sign for your mom,” one registrar told us.

The legalese-stricken document that ICANN originally presented to them over-stretched and could have carried legal exposure, they added.

DI has been sent of copy of what we’re told is a close-to-final draft of the document, which we understand is more agreeable to most registrars. We’ve pasted it below in full.

Registrants’ Rights and Responsibilities

Domain Name Registrants’ Rights:

  1. Your domain name registration and any privacy services you may use in conjunction with it must be subject to a Registration Agreement with an ICANN Accredited Registrar.
    • You are entitled to review this Registration Agreement at any time, and download a copy for your records.
  2. You are entitled to accurate and accessible information about:
    • The identity of your ICANN Accredited Registrar;
    • The identity of any privacy service provider affiliated with your Registrar;
    • Your Registrar’s terms and conditions, including pricing information, applicable to domain name registrations;
    • The terms and conditions, including pricing information, applicable to any privacy services offered by your Registrar;
    • The customer support services offered by your Registrar and the privacy services provider, and how to access them;
    • How to raise concerns and resolve disputes with your Registrar and any privacy services offered by them; and
    • Instructions that explain your Registrar’s processes for registering, managing, transferring, renewing, and restoring your domain name registrations, including through any privacy services made available by your Registrar.
  3. You shall not be subject to false advertising or deceptive practices by your Registrar or though any privacy services made available by your Registrar. This includes deceptive notices, hidden fees, and any practices that are illegal under the consumer protection law of your residence.

Domain Name Registrants’ Responsibilities:

  1. You must comply with the terms and conditions posted by your Registrar, including applicable policies from your Registrar, the Registry and ICANN.
  2. You must review your Registrar’s current Registration Agreement, along with any updates.
  3. You will assume sole responsibility for the registration and use of your domain name.
  4. You must provide accurate information for publication in directories such as WHOIS, and promptly update this to reflect any changes.
  5. You must respond to inquiries from your Registrar within fifteen (15) days, and keep your Registrar account data current. If you choose to have your domain name registration renew automatically, you must also keep your payment information current.

It draws on changes ICANN and registrars have agreed to in the 2013 (hopefully) Registrar Accreditation Agreement, such as registrar commitments to provide basic information about themselves.

As for the 2013 RAA itself, we hear that ICANN wants to present a final version to its board of directors for approval during its public meeting in Beijing in early April.

That would mean opening it up for public comment next week, but registrars and ICANN have not yet agreed to a final draft for publication, despite now-daily negotiation meetings.

The major sticking point, we gather, is an amendment that would give ICANN a unilateral right to change the contract in future — similar to the proposed gTLD Registry Agreement provision currently causing a shitstorm in the new gTLD applicant community.

There’s also controversy about the fact that ICANN wants to restrict new gTLDs to only registrars that sign the new RAA, which is designed to be a carrot to get them to sign up even if their 2009/2001 RAAs are still active.

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Chehade to take charm offensive to ANA show

Kevin Murphy, February 28, 2013, Domain Policy

ICANN CEO Fadi Chehade has agreed to speak at an upcoming conference of the Association of National Advertisers, we’ve just been told.

Chehade, currently on a whirlwind global outreach tour, will deliver a lunch keynote on day two of the 2013 ANA Advertising Law & Public Policy Conference, held in Washington DC, March 19 and 20.

The speech is currently untitled, according to the agenda, but I’d hazard a guess that Chehade will be turning on his trademarked charm to attempt to bring more ANA members into the multistakeholder fold.

The ANA, of course, was ICANN’s primary antagonist in late 2011 and much of 2012, after it came out in strong opposition to the new gTLD program, lobbying the US Congress to have it delayed or killed off.

The relationship between the two organizations has mellowed, I sense, more recently, as the ANA has become more accustomed to working within the ICANN environment.

The ANA conference, which comes with the prescient subtitle “Change Ahead: Confrontation, Compromise or Chaos?” will also feature a panel discussion on new gTLDs featuring executives from Verizon and PayPal.

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ICM’s claims against Manwin thrown out of court

Kevin Murphy, February 28, 2013, Domain Registries

ICM Registry has suffered a blow in its ongoing lawsuit with porn merchant Manwin Licensing, with a judge this week dismissing all of the registry’s counterclaims against the YouPorn owner.

ICM was sued by Manwin on antitrust grounds in late 2011, but returned fire last October with is own set of allegations, which also included claims that Manwin’s boycott of .xxx was anti-competitive.

But the judge in the case, Philip Gutierrez, on Tuesday granted Manwin’s motion to dismiss all of ICM’s claims.

Gutierrez ruled that ICM had failed to argue it had standing to complain under competition law, stating: “Harm to ICM only is not sufficient to constitute antitrust injury. It must allege harm to the competitive process.”

He also granted Manwin’s motion to strike ICM’s claims under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) laws, which are designed to protect free speech.

The judge decided that Manwin’s boycott of .xxx was protected under the anti-SLAPP statute.

ICM is now entitled to re-draft and re-submit its counterclaims; if it does not do so it will have to pay Manwin’s legal fees in connection with the anti-SLAPP action, Gutierrez ruled.

“The judge has granted us 30 days to amend our counterclaims. We are exploring all options open to us,” ICM CEO Stuart Lawley said.

Manwin’s owner, Fabian Thylmann, was arrested in Brussels last December and extradited to Germany to face charges of tax evasion.

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Nominet to revise second-level .uk proposal after domainer outrage

Kevin Murphy, February 28, 2013, Domain Registries

Nominet has temporarily killed off its plan to allow people to register second-level .uk domain names, after vocal opposition from domain investors.

The non-profit registry said yesterday it is “not proceeding with our original proposal on ‘direct.uk’”, but may revise the concept to give more rights to existing .uk domain name owners.

Nominet had been running a community consultation since October on the idea. It said yesterday:

It was clear from the feedback that there was not a consensus of support for the direct.uk proposals as presented, with some concerns cutting across different stakeholder groups. Although shorter domains (e.g. nominet.uk rather than nominet.org.uk) were considered desirable, many respondents felt that the release mechanism did not give enough weighting to existing registrants, and could lead to confusion if they could not obtain the corresponding domain.

UK domainers had been the most prominent opponents of the plan, complaining loudly that trademark owners were to be given the right to take .uk names where they do not already own the corresponding .co.uk or .org.uk names.

This would not only harm domainers, but also big companies that own generic .co.uk domains without matching trademarks, they said, and would lead to consumer confusion.

Nominet now plans to see if it can revise the proposal to come up with a “phased release mechanism based largely on the prior registrations of domains in existing third levels within .uk”.

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