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ICANN ponders rejecting all closed generics

ICANN is thinking about rejecting all the remaining “closed generic” new gTLD applications from the current round.

According to minutes of a June 5 New gTLD Program Committee meeting published last night, ICANN is considering two options.

First, it could “prohibit exclusive generic TLDs in this round of the New gTLD Program and consult with the GNSO about developing consensus policy for future rounds”.

Or, it could initiate a “community process… to develop criteria to be used to evaluate whether an exclusive generic applicant’s proposed exclusive registry access serves a public interest goal.”

The NGPC has not yet reached a decision.

The rejection option would be fastest and easiest, but risks the wrath of companies that applied for closed generics — which were always envisaged when the new gTLD rules were being developed — in good faith.

Alternatively, developing a process to measure the applications against the “public interest” would be very time-consuming, possibly not even feasible, and would add even more delay to competing applicants.

This is one of the longest-delayed responses to the Governmental Advisory Committee’s April 2013 Beijing communique, which said “exclusive registry access should serve a public interest goal.”.

Closed generics, which ICANN now calls “exclusive access” gTLDs, are dictionary words that the applicant proposes to keep for itself, allowing no third parties to register names.

There are currently only six new gTLD applications that are stubbornly sticking to their original closed generic position.

Applicants for another 175 gTLDs have either changed their applications to allow third-party registrants or denied that they ever even planned to give themselves exclusive access.

Of the six hold-outs, three are delaying their respective contention sets while ICANN endlessly mulls the problem.

Here’s a table showing the affected strings.

Lifestyle Domain Holdings, Inc. .foodContested by Donuts and Ecyber Solutions.
Booking.com B.V..hotelsUncontested.
Wal-Mart Stores, Inc. .groceryWas contested by Safeway, now uncontested.
Hughes Satellite Systems Corporation.dvrUncontested.
Dish DBS Corporation.dataContested by M+M and Donuts.
Dish DBS Corporation.phoneContested by Donuts.

The applicants for the closed generics have each submitted responses explaining why they believe their proposals serve the public interest. They’re largely corporate legalese bibble.

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.berlin zone drops off a cliff

The number of domains in the .berlin zone file appears to have stabilized after falling off a cliff late last week.

The new gTLD, which was an early leader in the space, peaked at 151,295 names on June 10.

It was down by 68,841 to 82,481 domains on June 12 and has been relatively flat, down by just a dozen or so domains per day, ever since.

A possible explanation for the decrease is the expiration of domains that were given away for free a year ago, but the dates don’t quite tally.

On June 16 2014, the zone file rocketed by over 67,000 names, most of which were registered via InternetX.

The promotion was yanked just a few days later, with the dotBerlin registry citing unexpectedly high demand.

One of dotBerlin’s registration policies requires .berlin names to be “put to use” within 12 months of registration, in such a way that demonstrates the nexus with the Berlin community.

Given that most of the free domains were registered by a handful of speculators, it seems unlikely that there’s been a whole lot of development of those names.

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ICM claws back 68 .porn names it accidentally released

ICM Registry has recovered nine .porn and .adult domain names from their registrants after they were accidentally released into the market.

Domains such as ads.porn, hosting.adult and buy.porn were among those snapped up by registrants, despite the fact that they were supposed to be registry-reserved.

ICM CEO Stuart Lawley told DI that a list of 68 .porn/.adult names (34 strings in each of the two gTLDs) have been brought back into the registry’s portfolio.

Only nine had been registered in the less than 24 hours the names were in the available pool, he said.

Lawley said it was his own personal fault for not sending the reserved list to back-end provider Afilias.

The affected registrants have been offered a domain from ICM’s premium list up to the value of $2,500 for each of the names ICM took back, he said.

Only one registrant has so far declined the offer, Lawley said.

Konstantinos Zournas of OnlineDomain, who broke the news about ads.porn yesterday, identifies this former registrant as “James” and reported that he is taking legal advice.

This is not the first time that a registry has accidentally released reserved names into the pool, where they were subsequently snapped up by domainers.

In January, .CLUB Domains accidentally sold credit.club, a name it had planned to keep on its premium reserved list for $200,000, for $10.99.

In that case, .CLUB honored the purchase after the buyer agreed to develop the site, scoring many brownie points in the domain investor community.

Both .CLUB and ICM have terms in their agreements allowing domains accidentally released to be recovered.

In ICM’s case, the names it accidentally released were not premiums, but rather domains that the registry plans to use as part of its own business — not to be sold at any price.

It used buy.xxx as a cornerstone of its .xxx marketing, for example, and it plans to use buy.porn and buy.adult for the exact same purpose.

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US Congresspeople tell ICANN to ignore GAC “interference”

Kevin Murphy, June 12, 2015, Domain Policy

A bispartisan group of US Congresspeople have called on ICANN to stop bowing to Governmental Advisory Committee meddling.

Showing characteristic chutzpah, the governmental body advises ICANN that advice from governments should be viewed less deferentially in future, lest the GAC gain too much power.

The members wrote (pdf):

Recent reports indicate that the GAC has sought to increase its power at the expense of the multistakeholder system. Although government engagement in Internet governance is prudent, we are concerned that allowing government interference threatens to undermine the multistakeholder system, increasing the risk of government capture of the ICANN Board.

The letter was signed by 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, which is one of the House committees that most frequently hauls ICANN to Capitol Hill to explain itself.

Most of the signatories are from the Republican majority, but some are Democrats.

It’s not entirely clear where they draw the line between “engagement” and “interference”.

The letter highlights two specific pieces of GAC input that the signatories seem to believe constitute interference.

First, the GAC’s objection to Amazon’s application for .amazon. The letter says this objection came “without legal basis” and that ICANN “succumbed to political pressure” when it rejected the application.

In reality, the GAC’s advice was consensus advice as envisaged by the Application Guidebook rules. It was the US government that succumbed to political pressure, when it decided to keep its mouth shut and allow the rest of the GAC to reach consensus.

The one thing the GAC did wrong was filing its .amazon objection outside of the window envisaged by the Guidebook, but that’s true of almost every piece of advice it’s given about new gTLD applications.

Second, the Congresspeople are worried that the GAC has seized for its members the right to ban the two-letter code representing their country from any new gTLD of their choosing.

I’ve gone into some depth into how stupid and hypocritical this is before.

The letter says that it has “negative implications for speech and the world economy”, which probably has a grain of truth in it.

But does it cross the line from “engagement” to “interference”?

The Applicant Guidebook explicitly “initially reserved” all two-letter strings at the second level in all new gTLDs.

It goes on to say that they “may be released to the extent that Registry Operator reaches agreement with the government and country-code manager.”

While the rule is pointless and the current implementation convoluted, it comes as a result of the GAC engaging before the new gTLD program kicked off. It was something that all registries were aware of when they applied for their gTLDs.

However, the GAC’s more recent behavior on the two-letter domain subject has been incoherent and looks much more like meddling.

At the ICANN meeting in Los Angeles last October, faced with requests for two-character domains to be released, the GAC issued formal advice saying it was “not in a position to offer consensus advice on the use of two-character second level domain names”.

ICANN’s board of directors accordingly passed a resolution calling for a release mechanism to be developed by ICANN staff.

But by the time February ICANN meeting rolled around, it had emerged that registries’ release requests had been put on hold by ICANN due to letters from the GAC.

The GAC then used its Singapore communique to advise ICANN to “amend the current process… so that relevant governments can be alerted as requests are initiated.” It added that “Comments from relevant governments should be fully considered.”

ICANN interpreted “fully considered” to mean an effective veto, which has led to domains such as it.pizza and fr.domains being banned.

So it does look like thirteenth-hour interference but that’s largely because the GAC is often incapable of making its mind up, rarely talks in specifics, and doesn’t meet frequently enough to work within timelines set by the rest of the community.

However, while there’s undoubtedly harm from registries being messed around by the GAC recently, governments don’t seem to have given themselves any powers that they did not already have in the Applicant Guidebook.

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Canada shrugs over .sucks

The Canadian trade regulator has sent ICANN a big old “Whatever” in response to queries about the legalities of .sucks.

The response, sent by Industry Canada’s deputy minister John Knubley yesterday, basically says if the intellectual property lobby doesn’t like .sucks it can always take its complaints to the courts.

Other than opening and closing paragraphs of pleasantries, this is all Knubley’s letter (pdf) says:

Canada’s laws provide comprehensive protections for all Canadians. Canada has intellectual property, competition, criminal law and other relevant legal frameworks in place to protect trademark owners, competitors, consumers and individuals. These frameworks are equally applicable to online activities and can provide recourse, for example, to trademark owners concerned about the use of the dotSucks domains, provided that trademark owners can demonstrate that the use of dotSucks domains infringes on a trademark. Intellectual property rights are privately held and are settled privately by the courts.

There’s not much to go on in there; it could quite easily be a template letter.

But it seems that Vox Populi Registry has been cleared to go ahead with the launch of .sucks, despite IP owner complaints, at least as far as the US and Canadian regulators are concerned.

The Federal Trade Commission was equally noncommittal in its response to ICANN two weeks ago.

Vox Populi is based in Canada. It’s still not entirely clear why the FTC was asked its opinion.

ICANN had asked both agencies for comment on .sucks’ legality after its Intellectual Property Constituency raised concerns about Vox Pop’s “predatory” pricing.

Pricing for .sucks names in sunrise starts at around $2,000.

ICANN told DI in April that it was in “fact finding” mode, trying to see if Vox Pop was in breach of any laws or its Registry Agreement.

The .sucks domain is due to hit general availability one week from now, June 19, with a suggested retail price of $250 a year.

If anything, the $250 says much more about Vox Pop’s business model than the sunrise fees, in my opinion.

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