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Is .gay now safe from government blocking?

Kevin Murphy, March 6, 2011, Domain Policy

What are the chances of a .gay top-level domain being added to the internet, given the current state of play in the talks between ICANN and governments?

I think they’re looking pretty good.

While the details have yet to be ironed out, it’s looking like ICANN’s favored method for handling government objections to so-called “sensitive strings” would probably let a .gay slip through.

As you may recall, the ICANN Governmental Advisory Committee had proposed a mechanism for objecting to TLD strings that said in part:

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.

The ICANN board would then be able to treat this advice in the same way its bylaws allow it to treat any GAC advice – it would be free to disregard it, if it had a good reason.

ICANN has seemingly agreed that this process is fair, but has added its own caveats. This is what chair Peter Dengate Thrush just forwarded to GAC chair Heather Dryden (pdf):

A procedure for GAC review will be incorporated into the new gTLD process. The GAC may review the posted applications and provide advice to the ICANN Board. As discussed with the GAC, such advice would be provided within the 45-day period after posting of applications, with documentation according to accountability and transparency principles including whether the advice from the GAC is supported by a consensus of GAC members (which should include identification of the governments raising/supporting the objection).

While it’s certainly a concession to the GAC’s request to be allowed to provide advice about potentially objectionable strings, I think the addition of “transparency principles” is important.

The GAC’s original proposal would have maintained the black-box approach to advice-making that currently characterizes its role in ICANN. It reaches consensus in private.

For example, all we know about the GAC’s opposition to the .xxx TLD application is that “several governments” object to it. We don’t (officially, at least) know which governments.

Complicating matters, the GAC believes that referring to this minority position in one of its official Communiques makes it consensus “advice” on .xxx that ICANN must consider.

If ICANN’s new transparency requirements had been applied to the .xxx application, it would make the call it has to make next week – whether to reject the GAC advice and approve .xxx – much more well-informed.

Returning to .gay, if the GAC is going to be obliged to name (and, depending on your perspective, shame) the governments that officially object to the string, it leaves a lot less room for back-room horse-trading leading to amorphous “consensus” positions.

Let’s say, for example, that Saudi Arabia, Iran and the United Arab Emirates (three countries where the death penalty still applies to active homosexuals) were to object to the string.

How much support would that move receive from governments in less repressive parts of the world?

Which relatively liberal Western governments would be willing to put their names to a document that essentially implements homophobia in the DNS? Very few, I would imagine.

For such an objection to gather broader support there would have to be a real risk of “root fragmentation” – the threat that the Saudis et al could decide that, rather than blocking .gay, it would be easier to divorce themselves from ICANN entirely and set up their own competing DNS root.

But let’s remember that by the time .gay is live and available to block, there’s a good chance that .xxx – equally opposed by several nations – will have been in the root for a couple of years. The practice of gTLD blocking at the national level may well be the norm by that point.

So, let’s now say that the GAC’s advice, stating an objection to .gay and naming the limited number of objectors, is forwarded to the ICANN board. What happens then?

Absent some kind of objective scoring system, directors would each have to make a subjective decision. Do I want to give TLD veto power to a narrow, homogeneous subset of nations? Do I want lowest common denominator morality to dictate global internet policy?

I’d like to think that, faced with such a choice, most ICANN directors would vote with their consciences. I hope I’m not being naïve.

This is a scenario I’m exploring hypothetically here, of course, but these are the kinds of decisions that may have to be made for real over the coming few years.

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ICANN takes firm stance on new TLD delays

ICANN wants to draw a line under its talks with its Governmental Advisory Committee on new top-level domains at the San Francisco meeting next week.

In a letter to his GAC counterpart (pdf), ICANN chair Peter Dengate Thrush said that he thinks the San Francisco talks should be “final”.

He said that ICANN has agreed to compromise with the GAC wholly or partially on all but 23 of its 80 recommendations for the program.

He also said that these remaining issues should be the focus of the two days the board has set aside to consult with the GAC in San Francisco.

a narrowed focus in San Francisco on the issues that are still in contention would be a best use of the Board and GAC’s time during the two days of consultations, and should represent the final stages in our required consultation.

That appears to contrast with the GAC’s position, expressed in Brussels last week, that the SF talks should not be given the final “bylaws consultation” designation.

Nobody, possibly not even ICANN and the GAC, knows what a “bylaws consultation” consists of, but everybody knows that it is the last thing that needs to happen before the ICANN board can adopt a policy that overrules the formal advice of governments.

ICANN has already officially resolved that the consultation should happen March 17, but GAC chair Heather Dryden objected to that date in an email sent during Brussels.

According to Kieren McCarthy, who has apparently seen the email or parts of it, Dryden wrote:

We believe there is now insufficient time to receive a final written response to our advice from the Board – as well as then analyse and prepare an adequate consensus response from GAC members – to reach resolution of enough outstanding issues such that we could reasonably enter any meaningful bylaws consultation on 17 March in San Francisco.

To delay the consultation would very likely delay the next draft of the Applicant Guidebook, currently set for April 14, and thus the launch of the program itself.

It was not clear from Brussels, but ICANN’s position that March 17 is the date now appears to be firm. The just-published agenda for the March 18 board meeting carries this line item:

Outcome of Bylaw Consultation with the GAC on the new gTLD Program

Things that have not happened generally do not have an “outcome”.

Cybersquatting is the major issue still unresolved. Fifteen of the the 23 areas where the board still disagrees with the GAC deal with trademark protection in new TLDs.

ICANN has agreed to balance the Uniform Rapid Suspension policy – which comes into play following clear-cut cases of cybersquatting – somewhat more in favor of trademark holders.

The amount of money, time and effort required to make a URS case will be reduced, and it’s likely that registrants will have their domains locked by default if they do not respond to the complaint.

Complainants will also get first right of refusal to take over a domain whose registration has been suspended due to a URS proceeding.

But ICANN plans to deny the GAC’s requests for a “loser pays” model and a number of other URS-related tweaks.

The GAC had also advised that the Trademark Clearinghouse database should be expanded to include trademark+keyword registrations. This would allow Kodak, to use the GAC’s example, to prevent cybersquatters from registering not only kodak.tld but also kodakcameras.tld.

Dengate Thrush’s letter says that this “remains an area for discussion”, but ICANN still currently plans to diverge from GAC advice.

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Governments react to Brussels new TLDs meeting

Kevin Murphy, March 4, 2011, Domain Policy

ICANN’s Governmental Advisory Committee has issued an official Communique following its meeting with the ICANN board on new top-level domains, which wrapped up on Wednesday.

While acknowledging the talks were “sometimes challenging”, the GAC said (pdf) the consultation was useful and should be continued during the San Francisco meeting later this month.

There’s not a great deal to work with in the Communique if you like reading tea leaves, but these paragraphs go some way to negate a view I expressed yesterday that the GAC does not want ICANN to overrule its recommendations. With my emphasis:

While fully respecting the Board’s right not to accept GAC advice, the GAC is obliged to ensure that existing rights, the rule of law and the security and protection of citizens, consumers and businesses, and the principle of national sovereignty for governments are all maintained within the new environment, as well as respect for legitimate interests and sensitivities regarding terms with national, cultural, geographic and religious significance. The GAC is committed to taking whatever time is required to achieving these essential public policy objectives.

The GAC envisions that discussion of the issues involved will continue up to and through the ICANN/GAC meeting in San Francisco in March

That’s not incredibly encouraging language if you’re impatiently awaiting the launch of the new TLDs program and were banking on ICANN putting the GAC’s concerns to bed in SF.

But those who count themselves among the intellectual property constituency can probably take heart that the GAC seems to be still committed to fighting its corner.

The GAC now awaits the publication of ICANN’s official compromise positions, post-Brussels, which it plans to take to its members’ respective “stakeholders”.

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ICM picks new sunrise partner for .xxx launch

ICM Registry has hired IP Rota, a new London-based company, to handle trademark validation in the sunrise periods of the forthcoming .xxx top-level domain.

IP Rota is the work of NetBenefit co-founder Jonathan Robinson, who also currently sits on the boards of Nominet and Afilias, .xxx’s back-end partner.

The company replaces Valideus, which was originally recruited to design and implement ICM’s sunrise policies, apparently due to grumblings from rival registrars. ICM said:

Valideus was originally retained by ICM to assist with the design of the .XXX launch but graciously withdrew from implementation of the initial rights protection mechanism because of the potential for perceived conflict of interest with a related domain name registrar, Com Laude.

Com Laude is a registrar specialising in corporate brand protection. It shares ownership with Valideus.

ICM is planning three sunrise periods for .xxx, including one that would let trademark holders not in the porn business to pay a one-time fee to have their brand.xxx placed on a reserved list.

The .xxx TLD contract still has not been approved by ICANN, of course. Barring last-minute surprises, that could happen as soon as the ICANN board meeting, March 18.

The registry is IP Rota‘s first client.

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How will new TLDs affect your portfolio?

Kevin Murphy, March 3, 2011, Domain Sales

(Editor’s Note: this is a guest post by Shane Cultra, author of the popular domain investment blog DomainShane. I was interested in hearing new perspectives on new top-level domains, and Shane was good enough to provide his thoughts.)

It was inevitable. The growth of the internet and the ever increasing number of people using the web, was going to cause a shortage in domain names.

As the big three – .com, .net, and .org – reached the point that available domains were merely comprised of unpronounceable and hard-to-spell leftovers, internet users began looking for more.

Countries began to market their own ccTLDs as generics, trying to appeal to both local and international users alike. Domain name registries saw the dollar signs and began clamoring to introduce alternatives.

So now that they’re on their way, how will new TLDs affect the value of your domains? Will .web, .car, .love and all the other endless possible TLD options impact the value of your portfolio?

My answer to this question is simple: yes.

There is no doubt all the new TLDs will impact your portfolio’s value. If you own anything other than .com, I think the value of your domains will fall. I feel that .net and .org will fall the least.

The real answer comes down to how the search engines rank the new TLDs. The TLDs that hold the most value will be able to compete in both the US and the international search market.

If Google treats them well, then they will be in the upper tier. The problem is the more TLDs that Google ranks, the more choices a domain owner will have.

As we know, the more choices the lesser the value and chance of a sale. If there are only three shoes on the shelf from which to choose it bodes better for the seller than a shelf with 100 shoes.

In my opinion, the real money being made is by the companies selling these new TLDs. The new releases will leave the domain investing community and domain buyers in general “holding the bag”.

The .travel and .mobi TLDs showed early what will happen as people shy away from a TLD after a short period of time. Speculators were left with worthless domains.

In order for a new TLD to work it takes massive adoption. The local geographic community, the domain investing community, business, and the general public must be a part for it to succeed.

The new .co TLD has come as close as any in the last five years to getting over this hump; .tv, and .me, have also found their place.

A profitable endeavor for the companies managing the release , but only profitable for a handful of people that hold the best of the names.

So back to the original question, will this hurt the value of my portfolio? My second response to my “yes” answer is I think it will increase the value of your .coms.

Dot-com domains are king and will always be the king. They are scarce , wanted and all those that hold the same keyword in alternative TLDs wish they held the .com. Those that tell you different are either naïve or lying.

Domains are often compared to real estate and .com to beachfront property, and I think it’s a good analogy. Beachfront has continued to be considered the most-wanted and highest-priced real estate.

I would throw in big city real estate in this comparison too. You can still buy homes and land outside the cities and away from the beach. Homes just as nice or nicer. Areas of land that are twice as big but still don’t have the value of the beach and city.

When people think of the internet they immediately think .com. When they think of high priced real estate they think of the beach and city. Along with beach and city property, I believe people will always perceive the .com as the highest value.

This is how I am approaching my investment in newer TLDs. I am treading lightly. I continue to invest heavily in .com with a 10% investment in other TLDs. That 10% is invested in super high-quality keywords.

I have no plans to invest in lesser domains, as I think the only possible way to make a profit on my investment is development and I don’t feel comfortable developing domains outside of my field or keywords from random categories.

When I buy outside of .com, I tend to buy in my niche (the names of plants) as they are in my “comfort zone”. For example, I purchased hosta.me because hosta.com is taken and would cost me a ton of money.

I have all the photos and information to develop a site and with hosta being a very collectable plant I thought hosta.me would work. I also can target US Internet users using my webmaster tools – the audience I am trying to reach.

That same domain was a hand-register which tells me that although that has value to me, I would have very little chance of reselling that domain. In short, a bad investment for a flip. In my opinion, this will be the case with 98% percent of all the new TLDs so be very dot-careful.

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