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ICANN overturns new gTLD objection decision!

Kevin Murphy, June 22, 2014, Domain Policy

ICANN has overturned a Community Objection decision, allowing a .med new gTLD applicant back into the game, after a Request for Reconsideration from the applicant.

It’s the first time ICANN has overruled an objection panel during the new gTLD program and the first time in over a decade any RfR of substance has been accepted by the ICANN board of directors.

Medistry lost a CO filed by the program’s Independent Objector, Alain Pellet, back in January.

Under program rules, that should have killed off its application for .med completely.

But the company filed an RfR — ICANN’s first and cheapest appeals mechanism — claiming that Pellet acted outside his jurisdiction by filing the objection when there was not at least one informal objection from a community member on the public record.

Its case, as outlined in its RfR, was quite compelling, as I outlined in a piece in March.

Medistry argued that the International Chamber of Commerce’s panelist, Fabian von Schlabrendorff, had cited two non-existent informal community objections in his decision.

One of them literally did not exist — and von Schlabrendorff went so far as to infer its existence from its absence — while the other was “advisory” in nature and was not intended as an objection.

In March, ICANN’s Board Governance Committee accepted Medistry’s RfR on a preliminary basis, to give it more time to consider whether the IO had acted outside of the new gTLD program’s rules.

Yesterday, the BGC came to its final decision (pdf):

The BGC concludes that, based on information submitted with this Request, there is substantial and relevant evidence indicating that the Objection was inconsistent with ICANN procedures, despite the diligence and best efforts of the IO and staff. Specifically, the Requester [Medistry] has provided the BGC with uncontroverted information demonstrating that the public comments on which the Objection was based were not, in fact, in opposition to the Requester’s application. Accordingly, the BGC concludes that ICANN not consider the Expert Determination at issue and that the Requester’s Application for .MED is therefore permitted to proceed to the next stage of process in the New gTLD Program.

In other words: 1) Pellet inadvertently acted outside of his remit 2) the ICC’s ruling on the objection is simply cast aside and 3) Medistry’s application is back in the .med contention set.

The main reason this RfR succeeded while all others to date have failed is that Medistry managed to provide new information, in the form of clarifying letters from the two non-existent informal objectors, that was not originally available.

The large majority of previous RfR’s have failed because the requester has failed to bring any new evidence to the table.

The public comments from [National Association of Boards of Pharmacies] and [American Hospital Association] that were the basis for the Objection were vague and open to a number of interpretations. Given that there is substantial and uncontroverted evidence from the authors of those public comments, indicating what NABP and AHA intended, the BGC cannot ignore this information in assessing the Request or reaching its determination.

I think ICANN is going easy on the ICC and von Schlabrendorff (how can something that does not exist be “open to a number of interpretations”?) but it seems that the RfR process has in this case nevertheless been a bit of a success, overturning an extremely dodgy decision.

The .med contention set also contains HEXAP and Google.

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Euro govs livid as ICANN takes .wine off ice

Kevin Murphy, June 22, 2014, Domain Policy

The new gTLD applications for .wine and .vin are now live again, raising the ire of European governments.

ICANN chair Steve Crocker has written to the European Commission, along with the governments of France, Spain and the US that the three applications are once again being processed.

That’s after a 60-day temporary freeze, ostensibly in order to give the governments more time to push applicants for geographic indicator protections, expired earlier this month.

Geographic indicators are terms such as “Champagne” and “Bordeaux” which are protected under European law — they have to be produced in those regions — but not in the US and other non-EU countries.

France is expected to point to the .wine controversy as evidence of how ICANN is deficient as an organization.

“The problem is it is totally opaque, there is no transparency at all in the process,” Axelle Lemaire, minister for digital affairs, told the Financial Times today.

France also reckons ICANN’s decision will impact transatlantic trade negotiations unrelated to the domain name industry, the FT reported.

Lemaire’s comments about transparency are odd, given that pretty much the entire debate — whether in person at ICANN meetings or through correspondence — has been put on to the public record by ICANN.

The issue seems to be rather than the ICANN process does not give national governments a means to push their agendas onto the industry unless all participating governments agree.

The Governmental Advisory Committee was unable to come to a consensus on .wine and .vin — EU states wanted strong protection for GIs, but the US, Canada and Australia disagreed.

Lacking GAC consensus, ICANN had no mandate to act on requests for individual government requests.

But when its board decided to move ahead on the new gTLDs in March, the GAC noted that its process for making the decision may have broken its bylaws.

The EC, UK, France, Spain, Italy, Portugal, Luxembourg and Switzerland then filed formal Requests for Reconsideration with ICANN, asking for the decision to be overturned.

Those RfRs were rejected by ICANN’s Board Governance Committee a month ago.

Last week Crocker wrote to governments on both sides of the debate to confirm that, with the 60 days expired and no outstanding GAC advice, .wine and .vin will proceed to contention resolution and contracting as normal.

The letters are all pretty much the same, with Crocker explaining the process to date and suggesting again that ICANN be not be the best forum for governments to hash our their disagreements over GI protections.

Crocker told (pdf) EC vice president Neelie Kroes:

should the GAC be in a position to provide any additional advice on this issue, we would welcome it. Similarly, should governments succeed in resolving these issues in other global trade fora such as the WTO [World Trade Organization] that, too, will be taken into account.

Expect the debate to continue this week at ICANN 50, the public meeting that kicked off in London yesterday.

The EU and its most-affected member states are not going to let this die.

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New gTLDs now outnumber the old TLDs

There are now more 2012-round new gTLDs alive on the internet than there are legacy TLDs.

With today’s addition of five new strings, including .brussels and .surf, there are now 312 delegated new gTLDs and 308 others in the DNS root zone file.

The legacy TLD count includes the original eight gTLDs such as .com and .gov, 285 ccTLDs (including 36 IDN ccTLDs), and 15 gTLDs added by ICANN in the 2000 and 2003 rounds.

With just shy of 1.2 million domains under management (including all the registry-reserved and freebies) the new gTLD program currently accounts for about 0.4% of all registered names.

About 140 new gTLDs are in general availability. The rest have been delegated but are either in sunrise periods or pre-sunrise periods.

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ICANN smacks new gTLDs for pre-sunrise auctions

Running a premium domain name auction before you’ve finished your new gTLD sunrise period is Officially Not Cool, according to ICANN’s compliance department.

People who won premium new gTLD domains in auctions that took place before sunrise periods now face the possibility of losing their names to trademark owners.

.CLUB Domains, and probably XYZ.com, operators of .club and .xyz, two of the highest-volume new gTLDs to launch so far, appear to be affected by the ICANN decision.

ICANN told .CLUB that its “winter auction“, which took place in late February, may have violated the rules about allocating or “earmarking” domains to registrants before sunrise takes place.

Meanwhile, NameJet has cancelled the auction for deals.xyz, which “sold” for $8,100 late last year, suggesting that .xyz’s pre-sunrise auction is also considered ultra vires.

ICANN told .CLUB that its auction sales “constitute earmarking” in violation of the rule stating that registries “must not allow a domain name to be allocated or registered prior to the Sunrise period”.

.CLUB had told its auction winners that a sunrise period registration would prevent them from getting the domain they wanted and that they would be refunded if a sunrise registrant emerged.

But ICANN evidently told the registry:

Irrespective of whether “[a]llocation was expressly conditioned upon any Sunrise claim,” or whether any Sunrise claim was made, the pre-selection, pre-registration or pre-designation to third parties, in this case via .Club Domains’ “winter auction,” constitutes improper allocation.

I kinda thought this would happen.

Back in November, when XYZ.com ran its first .xyz auction — about six months before its sunrise even started — CEO Daniel Negari told us he believed it was “comfortably within the rules“.

We said the auction “seems to be operating at the edge of what is permissible under the new gTLD program’s rights protection mechanisms, which state that no domains may be allocated prior to Sunrise.”

I’ve not yet been able to definitively confirm that .xyz is affected by this ICANN decision, but .club definitely is.

.CLUB Domains told its auction winners today that the names they won are now subject to a 60-day period during which they could be obtained by trademark owners.

If no trademark owner claims the name, .CLUB said it will give the auction winner a 10% rebate on their purchase price.

The email states:

We are placing the domain on hold for 60 days, during which time a Trademark Clearinghouse (TMCH) holder will have the opportunity to purchase the domain at Sunrise rates. Although, the domain is not currently in the TMCH, if a trademark holder should file in the TMCH over the next 60 days, the domain will be offered to that registrant. However, if the name is not claimed by filing in the TMCH over the next 60 days, your transaction will move forward as planned.

Although we disagree with ICANN compliance’s position on this matter, the actions we are taking are necessary to ensure that we are not offside with ICANN compliance in any way. We understand that you have been caught in the middle of this issue due to no fault of your own. Given these circumstances, we are offering you two options:

1) Should you decide to complete this transaction, we will issue you a payment of 10% of the purchase price after the transaction closes in 60 days, assuming the name is not registered by a TMCH mark holder because of the delay.

2) At any time during the 60 day period you have the option to rescind the auction bid and not purchasing the domain.

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dotBERLIN pulls plug on free domain giveaway

The .berlin registry has apparently halted the promotion that has given away tens of thousands of free domain names, citing unexpectedly high demand.

According to 101domain, a registrar that started giving away .berlin domains for free yesterday:

As of 1pm PST today, June 18th, the free .BERLIN promotion will unfortunately come to an end.

According to the dotBERLIN registry, demand was exceedingly above their anticipated volumes, so they have decided to pull the plug early.

The promotion, which led to domainers registered tens of thousands of names, was due to end on Friday.

Why has dotBERLIN pulled the plug? I have to wonder whether it is related to the company’s own registration policies, which are not particularly domainer-friendly.

The .berlin TLD started today at 121,193 names, according to its zone file, up 5,227 on the day.

Over 70,000 of those names were registered in the last two days, and most of those are believed to be freebies handed out by InternetX and, as of yesterday, 101domain.

As we reported yesterday, one domainer, DomainProfi, is responsible for over 23,000 of these registrations.

Another massive registrant, as DNW reported today, is Sedo-affiliated DomCollect, part of the same group (United Internet) as InternetX. It has over 30,000 .berlin names.

It’s difficult to see any of these names being developed or used in any meaningful way — they seem to be currently parked — yet the dotBERLIN registration policy may require it.

The English translation of the policy (pdf) states:

5.2. Conditions for the content and use of domain names

As the gTLD .BERLIN is a so-called “community based” gTLD, where the registration of domain names is subject to restrictions, a domain name must be put into use within 12 months of registration.

If the registrant sets up a web site which can be reached via the registered domain name, the content of this site must have be directly related to the authorisation to register

The first part of that seems simple: you have to “use” the domain within a year or risk losing it.

The “authorisation to register” appears to be the registrant’s self-declared “economic, cultural, historical, social or other connection to the German capital, Berlin”.

I interpret the two paragraphs together to read: “You must use the name in a manner that reflects your connection to Berlin”.

Does this mean parking is prohibited? There’s nothing explicit banning it, but I’d say it’s definitely a grey area. It seems to be down to the decision of the registry.

I asked dotBERLIN for clarification this morning but have not yet received one.

For the registrants, there seems to be little risk, however. They haven’t paid for their names and probably don’t intend to renew any that they can’t sell before renewal time.

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