With ICANN’s latest and potentially last call for comment on its new top-level domains program just hours away from closing, the arguments are shaping up along familiar lines.
Trademark protection is unsurprisingly still center stage, with loud calls for the Applicant Guidebook’s rights protection mechanisms to be amended more favorably to brand owners
Meanwhile, many of those strongly in favor of the new gTLD program launching soon have submitted more subdued, concise comments, merely urging ICANN to get a move on.
While there are still some fringe opinions, many within the intellectual property community are on the same page when it comes to rights protection mechanisms.
The Uniform Rapid Suspension policy, which enables trademark holders to relatively quickly shut down obvious cases of cybersquatting, comes in for particular attention.
In the latest draft of the URS, as well as its sister policy, the Trademark Clearinghouse, brand owners have to present “proof of use” for the trademarks which they want to enforce.
The also want the burden of proof lowered from the “clear and convincing evidence” standard, and want to expand the “loser pays” model, to provide an economic disincentive to cybersquatting.
In the latest version of the Applicant Guidebook, ICANN introduced a system whereby a cybersquatter has to pay the cost of a URS they lose, but only if the case comprises over 25 domains.
INTA, the IPC and others want this reduced to something like five domains, on the grounds that 25 is too high a bar and may actually encourage larger-scale squatting.
They also want the Clearinghouse’s IP Claims service, which serves a warning to registrants when they try to register potentially infringing domains, expanded beyond exact-match strings.
Currently, you’ll receive a warning about possible infringement if you try to register lego.tld or foxnews.tld, but not if you try to register legostarwars.tld or foxnewssucks.tld.
Many commenters want this changed to also include brand+keyword domains (fairly easy to implement in software, I imagine), or even typos (not nearly so easy).
This makes sense if you assume that cybersquatting patterns in new TLDs mirror those in .com, where brand+keyword squatting comprise the majority of UDRP cases.
But if you look at the about 100 UDRP cases to be filed so far in .co, it seems that brand-only cybersquatting is clearly the order of the day.
Depending on how this was implemented, it could also create a “chilling effect” whereby IP Claims notices are sent to legitimate registrants.
It seems likely that with a brand+keyword approach, if someone tried to register legourmetchef.tld, they could wind up with a notice that the domain infringes the Lego trademark.
The trademark lobby also wants this IP Claims service extended beyond the first 60 days of a new TLD’s life, on the grounds that the cybersquatting risk does not disappear after a TLD launches.
According to submissions from existing TLD registries and potential applicants, this could add to the costs of running a TLD, increasing prices for registrants.
Most of these demands are not new. But in many cases, the IP lobby now has the support of the ICANN Governmental Advisory Committee.
The GAC and ICANN are due to meet by teleconference this Friday, ostensibly for their “final” consultation before ICANN approves the Guidebook a little over a month from now.
But with the US and Europe now strategically aligned, it seems likely that ICANN will find itself under more pressure than ever before to concede to the demands of trademark holders.
ICM Registry today revealed the details of its policies for trademark holders that want to defensively register or block their .xxx domain names.
The company plans to kick off its sunrise period in early September. It will last 30 days, and will be followed a few weeks later by a 14-day landrush.
The date for general availability has not been set in stone, but is likely to be in early December.
Two sunrise periods will run concurrently. Sunrise A is for the adult entertainment industry, those who want to actually set up porn sites at .xxx domains. Sunrise B is for everyone else.
ICM is trying something new with .xxx, in response to non-porn brands that are worried about cybersquatting and also don’t want to actually own a .xxx domain name.
Under Sunrise B, non-porn trademark owners can pay a one-time fee to have their brand essentially turned off in .xxx.
These domains will all resolve to a standard placeholder page, informing visitors that the domain has been blocked.
Because the domains resolve, they will usually not be picked up by any ISP system whereby non-existent domains show advertisements instead of an error message.
The fees we’ve seen so far from registrars for this service range from $299 to $648, but ICM seems to think $200 to $300 is more realistic.
The blocks are expected to last forever, but because ICM’s registry agreement with ICANN only lasts for 10 years, it can only guarantee the blocks for that amount of time.
So while it looks like a $30 to $65 annual fee, over the lifetime of the TLD it may well steadily approach a negligible sum, if you’re thinking super-long-term.
To qualify for Sunrise B, you need a nationally registered trademark for the exact string you want to block. To use an example, Lego could block lego.xxx, but not legoporn.xxx.
ICM is currently planning a post-launch block service for brands that emerge in future, but it probably won’t have the flat one-time pricing structure, due to the registry’s own annual per-domain fees.
If you’re in the porn business, Sunrise A allows you to claim your brand if you have a trademark that is registered with a national effect.
It will also enable the “grandfathering” of porn sites in other TLDs that do not have a registered trademark. If you own example.com or example.co.uk, you’d qualify for example.xxx.
Lego could, for example, register legoporn.xxx using Sunrise A, because it already owns legoporn.com, but only if it actually intended to publish Lego-based pornography.
If it were to register legoporn.xxx in this way, and use it for non-porn purposes, it would be at risk of losing the domain under ICM’s planned Charter Eligibility Dispute Resolution Policy (CEDRP).
In the event that a Sunrise A applicant and a Sunrise B applicant both apply for the same string, the Sunrise A (porn) applicant will be given the option to withdraw their application.
If they don’t withdraw, they will be able to register the domain, trumping their non-porn rival.
Two Sunrise A applicants gunning for the same .xxx domain will have to fight it out at auction.
It’s probably worth mentioning, because many cybersquatters seem to think it’s a .com-only deal, that the UDRP does of course also apply to .xxx domain names.
If you own, for example, the string “virgin” in another TLD, and use it for a porn site, you will actually be able to use it in Sunrise A to secure virgin.xxx, but you risk losing it to Virgin in a UDRP.
If you’ve “pre-registered” a domain with ICM already, it doesn’t seem that you’ll have any notable advantages during sunrise or landrush.
The registry plans to email these pre-registrants soon with instructions. More info on the new ICM site: XXXempt.com.
The sunrise policies were devised by IPRota.
DomainMonster plans to charge between $75 and $300 for .xxx domain names, a fair bit cheaper than the only other registrar to so far disclose its prices.
A single .xxx domain will cost $99.99, dropping to $89.99 and $74.99 if the customer has more than 10 or more than 25 items in their cart when they check out, according to CEO Matt Mansell.
DomainMonster’s pricing scheme offers discounts on all products – including non-domain services – when more than 10 are purchased at the same time, and this will also apply to .xxx.
For trademark holders wanting to register or block their names during the sunrise period, the company will charge $299.99, $289.99 and $249.99, all but $50 of which is non-refundable.
Grandfathering prices for existing porn sites without trademarks will cost $199.99, $179.99 and $149.99, with the same non-refundable component. Landrush fees will be the same.
The only other registrar I’m aware of to announce prices so far is Key-Systems. Regular .xxx names will cost $133 there, with landrush names checking in at about $250.
ICM Registry, the .xxx manager, will charge $60 for domains during general availability. I hear through the grapevine that its fee to “block” a trademark for 10 years is $162.
According to ICM, the ratio of pre-registered domain names to registrants works out to between 20 and 30 names per person, so it’s seems possible DomainMonster’s volume pricing has a market.
About 60 registrars have been approved to sell .xxx domain names so far.
ICANN’s Governmental Advisory Committee has called for a ban on domain names containing terms relating to the Red Cross and Olympics movements.
Both organizations have for some time been calling for their trademarks to be added to the list of specially reserved strings that nobody will be able to register under new top-level domains.
The GAC “strongly supports” these demands.
The GAC advises the ICANN Board to approve these requests and to direct staff to reflect the Board’s approval in the May 30, 2011 version of the Applicant Guidebook.
It’s special pleading, of course, but there’s plenty of precedent for the Olympics, Red Cross and Red Crescent being given special protection under national laws, as Dryden notes in her letter.
I’d guess that this is a bone ICANN may be willing to throw, given that it has more important unresolved issues still to discuss with the GAC, some of which could delay the new gTLD program.
The Applicant Guidebook’s current list of reserved names includes the names of ICANN and related organizations, several terms used in networking, and country names.
Questions have been raised about how ICANN accounts for the millions of dollars it receives in fees from .net domain name registrations.
The current .net registry agreement between ICANN and VeriSign was signed in June 2005. It’s currently up for renewal.
Both the 2005 and 2011 versions of the deal call for VeriSign to pay ICANN $0.75 for every .net registration, renewal and transfer.
Unlike .com and other TLDs, the .net contract specifies three special uses for these fees (with my emphasis):
ICANN intends to apply this fee to purposes including:
(a) a special restricted fund for developing country Internet communities to enable further participation in the ICANN mission by developing country stakeholders,
(b) a special restricted fund to enhance and facilitate the security and stability of the DNS, and
(c) general operating funds to support ICANN’s mission to ensure the stable and secure operation of the DNS.
However, almost six years after the agreement was executed, it seems that these two “special restricted funds” have never actually been created.
ICANN’s senior vice president of stakeholder relations Kurt Pritz said:
To set up distinctive organizations or accounting schemes to track this would have been expensive, complex and would have served no real value. Rather — it was intended that the ICANN budget always include spending on these important areas — which it clearly does.
He said that ICANN has spent money on, for example, its Fellowships Program, which pays to fly in delegates from developing nations to its thrice-yearly policy meetings.
He added that ICANN has also paid out for security-related projects such as “signing the root zone and implementing DNSSEC, participating in cross-industry security exercises, growing the SSR organization, conducting studies for new gTLDs”.
These initiatives combined tally up to an expenditure “in excess of the amounts received” from .net, he said.
It seems that while ICANN has in fact been spending plenty of cash on the projects called for by these “special restricted funds”, the money has not been accounted for in that way.
Interestingly, when the .net contract was signed in 2005, ICANN seemed to anticipate that the developing world fund would not be used to pay for internal ICANN activities.
ICANN’s 2005-2006 budget, which was approved a month after the .net deal, reads, with my emphasis:
A portion of the fees paid by the operator of the .NET registry will become part of a special restricted fund for developing country Internet communities to enable further participation in the ICANN mission by developing country stakeholders. These monies are intended to fund outside entities as opposed to ICANN staff efforts.
That budget allocated $1.1 million to this “Developing Country Internet Community Project”, but the line item had disappeared by time the following year’s budget was prepared.
Phil Corwin from the Internet Commerce Association estimates that the $0.75 fees added up to $6.8 million in 2010 alone, and he’s wondering how the money was spent.
“We believe that ICANN should disclose to the community through a transparent accounting exactly how these restricted funds have actually been utilized in the past several years,” Corwin wrote.
He points out that the contract seems to clearly separate the two special projects from “general operating funds”, which strongly suggests they would be accounted for separately.
Given that .net fees have been lumped in with general working capital for the last six years, it seems strange that the current proposed .net registry agreement still calls for the two special restricted funds.
The oddity has come to the attention of the ICA and others recently because the new proposed .net contract would allow VeriSign for the first time to offer differential pricing to registrars in the developing world.
The agreement allows VeriSign to “provide training, technical support, marketing or incentive programs based on the unique needs of registrars located in such geographies to such registrars”, and specifically waives pricing controls for such programs.
It seems probable that this amendment was made possible due to the .net contract’s existing references to developing world projects.
Corwin said ICA has nothing against such programs, but is wary that existing .net registrants may wind up subsidizing registrants in the developing world.