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Crunch day for new TLDs

Kevin Murphy, September 24, 2010, Domain Registries

The ICANN board has kicked off a two-day retreat during which it will attempt to finalize the rules for applying for new top-level domains.

The big question for many is this: are more delays or the cards, or will ICANN finally put a firm timeline on the first new TLD application round?

One constituency that seems bent on more delays is the intellectual property community.

Dozens of organizations, including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola, told ICANN in late July that the current IP protections in version 4 of the Draft Applicant Guidebook are not good enough.

The proposed Uniform Rapid Suspension process has become bloated and burdensome and the Trademark Clearinghouse does not go far enough to proactively protect trademarks, they say.

Just this week, it emerged that the International Trademark Association has called for further studies into the potential economic harms of new TLDs, which could easily add a couple of quarters of delay.

But there are good reasons to believe ICANN is done with being pushed around by IP interests.

As I reported earlier this week, chairman Peter Dengate Thrush has recently publicly stated that the current state of intellectual property protection in the DAG is a compromise position reflecting the views of all stakeholders and that IP lawyers “have had their chance”.

It’s not just IP interests that will be affected by the ICANN board’s discussions this weekend. The board’s decisions on “vertical integration” will make or break business models.

The VI issue, which governs whether registrars can apply for new TLDs and whether registrars can act as registrars, is perhaps the most difficult problem in the DAG. The working group tasked with sorting it out failed to reach consensus after six months of debate.

The DAGv4 currently says, as an explicit placeholder, that there can be no more than 2% cross-ownership of a registry by a registrar and vice versa.

This would mean that registrars that want to get into the TLD game, such as Demand Media’s eNom, would not be allowed to apply.

It may also cause problems for publicly listed registries such as VeriSign and Neustar, or registries that already have registrar shareholders, such as Afilias.

The proposals on the table include raising the ownership cap to 15% to eliminating it altogether.

A move by ICANN to restrict ownership will certainly attract allegations of anti-competitive behavior by those companies excluded, while a move too far in the opposite direction could lead to accusations that the rules do not go far enough to protect registrants.

There are no correct answers to this problem. ICANN needs to find a balance that does the least harm.

Also up for debate will be the rules on how governments and others can object to new TLD applications on “morality and public order” grounds.

Following the report of a working group, which I blogged about here, it seems likely that the term “morality and public order” will be replaced entirely, probably by “Objections Based on General Principles of International Law”.

If the board adopts the recommendations of this “Rec6” working group, there will be no special provision in the Guidebook for governments to make objections based on their own national laws.

There’s also the suggestion that ICANN’s board should have to vote with a two-thirds super-majority in order to deny a TLD application based on Rec6 objections.

It’s another almost impossible problem. Some say the Rec6 recommendations as they currently stand are unlikely to appease members of the Governmental Advisory Committee.

In summary, ICANN’s board has just two days to define the competitive parameters of a market that could be worth billions, figure out how to politely tell some of the world’s largest IP rights holders to back off, and write the rule-book on international governmental influence in the new TLD process.

I predict a small boom in sales of coffee and pizza in the Trondheim region.

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Is Ella Koon the hottest Go Daddy Girl yet?

Kevin Murphy, September 23, 2010, Domain Registrars

Ella Koon Go Daddy has added yet another spokesmodel to its small army of Go Daddy Girls.

Ella Koon is a Hong Kong-based singer/actress/model described by Go Daddy CEO Bob Parsons thus: “She’s smart, she’s talented and she knows how to leverage the Internet.”

Those are the three most important qualities in any woman, as I’m sure you’ll agree.

Koon’s primary responsibilities will be promoting the registrar’s brand specifically to the Asian market by looking pretty and wearing a tight T-shirt.

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Christians defeated? No comment on .xxx

Kevin Murphy, September 23, 2010, Domain Registries

ICANN’s latest public comment period on the .xxx top-level domain closes today with nary a Christian in sight.

The latest forum is the sixth that ICM Registry has had to endure since it first filed its TLD application, and most of them have been marked by voluminous outcries orchestrated by US-based religious groups.

Organizations such as the Family Research Council have been responsible for tens of thousands of form-letter comments over the years, but this time they’re nowhere to be seen.

Their efforts lobbying the Bush administration were credited by some with killing off the TLD by back-channels a few years ago.

So have they given up, changed tactics, or did somebody just miss a memo? Beats me.

In other .xxx news, today I’ve also reported on recent developments at ICM, including a plan to create several free-to-list directory sites on “super-premium” .xxx domains. To find out more, head over to The Register.

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Revlon gets the UDRP bug

Kevin Murphy, September 22, 2010, Domain Services

Revlon has become the latest company to start aggressively enforcing its trademarks via the UDRP.

The company has over the last few months filed 24 complaints with WIPO, covering 29 domains, most of which appear to be parked.

Apart from a couple of typos, the domains all contain the Revlon trademark in full, along with another noun or two, and look like slam-dunk cases.

It has already won a couple of cases, such as revlonhairproducts.com, which I expect the panelist could have adjudicated in her sleep.

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Group wants trademark study before new TLDs launch

Kevin Murphy, September 21, 2010, Domain Services

The International Trademark Association has told ICANN it believes a study into the economic “harms” of launching new TLDs is “essential” before the program gets under way.

INTA president Heather Steinmeyer wrote, in a September 8 letter (pdf) published today (my emphasis):

We applaud the recommendation… to conduct a study to assess the harms associated with intellectual property abuse and related forms of consumer fraud in the domain name system, including how the current gTLDs have affected intellectual property and consumers since their introduction. Indeed trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

Steinmeyer offered INTA’s assistance with any such study.

The recommendation she refers to can be found in “An Economic Framework for the Analysis of the Expansion of Generic Top-Level Domain Names”, a report prepared for ICANN by three independent economists in June.

That report made a number of suggestions for possible further studies of the possible benefits and harms (although Steinmeyer only mentions the harms) of introducing new TLDs. It did not make any firm conclusions.

Following a public comment period that ended July 22, the status of that report appears to be ‘in limbo’.

The public comments have not yet been compiled into a summary and analysis document and as far as I can tell no other action has been taken on the report’s recommendations.

At least one ICANN director, chairman Peter Dengate Thrush, seems to consider the problem of balancing trademark protection and other parties’ interests pretty much resolved.

Just last week, in a fairly strongly worded statement at the Internet Governance Forum in Vilnius, Lithuania, he said:

The IP lawyers… have had their chance to make all these cases in a five-year process, and the intellectual property protections that have been put in place are the result of a delicate balance that has been wrought with everybody in the community, not just with the IP lawyers. IP lawyers always want more protections.

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