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Second last-resort gTLD auction raises $14.3m

Kevin Murphy, September 18, 2014, Domain Registries

ICANN has raised $14.3 million auctioning off three new gTLDs — .buy, .tech and .vip.

It was the second batch of “last resort” auctions, managed by ICANN and Power Auctions, in which the winning bids are placed in a special ICANN fund.

Notably, while Google participated in all three auctions, it failed to win any, setting a reassuring precedent for any smaller applicants that are set to face the deep-pocketed giant in future auctions.

.tech was the biggest-seller, fetching $6,760,000 after nine rounds of bidding.

The winner was Dot Tech LLC, which beat Google, Minds + Machines, Donuts, NU DOT CO, and Uniregistry.

.buy went to Amazon for $4,588,888, beating Google, Donuts and Famous Four Media. The bidding lasted seven rounds.

Finally, .vip sold to Minds + Machines for $3,000,888 after Google, Donuts, I-Registry and VIP Registry dropped out.

The prices are in the same ball-park as we’ve inferred from previous, private auctions managed by Applicant Auction (a company affiliated with Power Auctions).

That’s notable because the first last resort auction, for .信息, fetched just $600,000 when it sold to Amazon back in June.

As far as we can tell, last-resort auctions do not necessarily keep prices low, even though the losing bidders in this week’s auctions will have walked away empty-handed.

In private auctions, losers leave holding a share of the winner’s bid.

This week, most of the $14.3 million raised will go into a special ICANN fund.

Akram Atallah, president of ICANN’s Global Domains Division said in a statement:

The proceeds from these Auctions will be separated and reserved until the Board determines a plan for the appropriate use of the funds through consultation with the community. We continue to encourage parties to reach agreements amongst themselves to resolve contention.

The ICANN community has been chatting about possible uses for auction funds for years.

Ideas such as subsidizing new gTLD applicants from poorer nations in future rounds and investing in internet infrastructure in the developing world have been floated.

After $1bn deal, Amazon registers Twitch domains in three gTLDs. Can you guess which three?

Kevin Murphy, August 27, 2014, Domain Registries

Amazon has paid almost a billion dollars for the gaming community Twitch and immediately set about defensively registering some domain names.

amazontwitch.com, amazontwitch.net, and amazontwitch.org were all registered via MarkMonitor on Monday, coinciding with the announcement of the acquisition.

The company even registered twitchamazon.com, but not the corresponding .net and .org.

But Amazon, a major new gTLD applicant itself, does not appear to have registered the string in any new gTLDs, despite being one of the most prolific defensive registrants.

The company owns the string “fire” in scores of new gTLDs and appears to have blanket-registered “prime” and “kindle” in pretty much every new gTLD sunrise to date.

Twitch, pre-acquisition, doesn’t seem to have involved itself in new gTLDs at all, though the string “twitch” has been registered in several.

Bad news for the owners of these domains?

Amazon and Google deal on .talk, .play, .drive and others

Google and Amazon have started making deals to settle their new gTLD contention sets.

Google won three contention sets against Amazon this week, judging by the latest withdrawals, while Amazon won two.

Amazon won .talk and .you after Google, the only other applicant, withdrew.

Neither company appears to have a “You” brand, unless you count YouTube, but the .talk settlement strongly suggests that Google Talk, the company’s instant messaging client, is on the way out.

When Google applied for .talk in 2012 it intended to give Talk users custom domains to act as a contact point, but in 2013 Google started to indicate that it will be replaced as a brand by Google Hangouts.

The withdrawal seems to suggest that the existence of a gTLD application, a relatively small investment, is not an overwhelming factor when companies consider product rebranding.

I wonder what effect a live, active TLD will have on similar decisions in future.

But Google won the two-horse races for .dev and .drive and after Amazon withdrew its applications.

Google has a product called Google Drive, while Amazon runs Amazon Cloud Drive. Both companies have developer programs, though Google’s is arguably the more substantial of the two.

Google has also won .play — Google Play is its app store — after Amazon, Radix and Star Registry’s withdrawals. Amazon does not have a Play brand.

Google has also withdrawn its application for .book, leaving six remaining applicants, including Amazon, in the contention set.

I don’t currently know whether these contention sets were settled privately or via a third-party auction.

Amazon snubs ICANN auction to win .coupon privately

Amazon has won the new gTLD .coupon, after Minds + Machines withdrew its application this week.

I understand that the two-way contention set was settled privately via a third party intermediary, possibly via some kind of auction, with M+M ultimately being paid off to withdraw its bid.

.coupon was the only ICANN-managed “auction of last resort” scheduled for July, following the $600,000 sale of .信息 last week.

The next batch of ICANN auctions is now not due to happen until August, unless of course ICANN rejigs its schedule in light of the .coupon settlement.

It’s not clear why Amazon has suddenly decided it prefers the idea of a private commercial settlement after all, but it appears to be good news for M+M, which will see the majority of the cash.

However, it could be related to the fact that .coupon, and dozens of other Amazon new gTLD applications, recently made the switch from being “closed generics” to more inclusive proposals.

Amazon had originally intended that itself and its subsidiaries would be the “only eligible registrants” for .coupon, but in March it changed the application, among many others.

Now, Amazon talks in vague terms about .coupon names being available to “eligible trusted third parties”, a term that doesn’t seem ready to define before the TLDs are actually delegated.

It seems to me, from Amazon’s revised applications, that .coupon and its other gTLDs will be locked down tight enough that they could wind up being effectively closed generics after all.

When Amazon publishes its first eligibility requirements document with ICANN, I expect members of the Governmental Advisory Committee will be watching closely.

ICANN snubs Belgium, gives Donuts the all-clear for .spa

ICANN has rejected demands by the Belgian government by giving Donuts the go-ahead to proceed with its application for .spa, which Belgium says infringes on a geographic name.

Noting that the Governmental Advisory Committee had submitted no consensus advice that Donuts .spa bid should be rejected, the ICANN board’s New gTLD Program Committee said last week “the applications will proceed through the normal process.”

That means the two-way contention set is presumably going to auction.

The English dictionary word “spa” derives from Spa, a small Belgian town with some springs.

The other applicant is Asia Spa and Wellness Promotion Council, which has made a deal with Spa to donate some of its profits to local projects and give the city some control over the registry.

Donuts refused to sign a similar deal, leading to Belgium last month asking ICANN to delegate the gTLD to ASWPC and not Donuts.

The GAC’s last word on .spa was this, from the recent Singapore meeting:

Regarding the applications for .spa, the GAC understands that the relevant parties in these discussions are the city of Spa and the applicants. The GAC has finalised its consideration of the .spa string and welcomes the report that an agreement has been reached between the city of Spa and one of the applicants.

There’s no ICANN fudging here; if the GAC wanted to issue a consensus objection it could have.

The question is: why didn’t it?

Why does the string “amazon”, which does not exactly match the name of a place in its local languages, qualify for a GAC objection, while “spa”, which exactly matches the name of a city, does not?

Amazon’s bid for .amazon is dead

ICANN has killed off Amazon’s application for the new gTLD .amazon, based on longstanding but extremely controversial advice from its Governmental Advisory Committee.

According to a New gTLD Program Committee resolution passed on Wednesday and published last night, the applications for .amazon and Chinese and Japanese translations “should not proceed”.

That basically means all three applications are frozen until Amazon withdraws them, wins some kind of appeal, manages to change the GAC’s mind, or successfully sues.

Here’s the last bit of the resolution:

Resolved (2014.05.14.NG03), the NGPC accepts the GAC advice identified in the GAC Register of Advice as 2013-07-18-Obj-Amazon, and directs the President and CEO, or his designee, that the applications for .AMAZON (application number 1-1315-58086) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5581) filed by Amazon EU S.à r.l. should not proceed. By adopting the GAC advice, the NGPC notes that the decision is without prejudice to the continuing efforts by Amazon EU S.à r.l. and members of the GAC to pursue dialogue on the relevant issues.

The NGPC noted that it has no idea why the GAC chose to issue consensus advice against .amazon, but based its deliberations on the mountain of correspondence sent by South American nations.

Peru and Brazil, which share the Amazonia region of the continent, led the charge against the bids, saying they would “prevent the use of this domain for the purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome”.

Amazon had argued that “Amazon” is not a geographic term and that it was against international law for governments to intervene and prevent it using its trademark.

ICANN commissioned a legal analysis that concluded that the organization was under no legal obligation to either reject or accept the applications.

Under the rules of the new gTLD program, the NGPC could have rejected the GAC’s advice, which would have led to a somewhat lengthy consultation process to resolve (or not) their differences.

The big question now is what Amazon, which has invested heavily in the new gTLD program, plans to do next.

A Reconsideration Request would be the simplest option for appeal, though almost certainly a futile gesture. An Independent Review Process complaint might be slightly more realistic.

There’s always the courts, though all new gTLD applicants have to sign legal waivers when they apply.

A fourth option would be for Amazon to negotiate with the affected governments in an attempt to get the GAC advice reversed. The company has already attempted this — offering to protect certain key words related to the region at the second level, for example — but to no avail.

ICANN puts .islam and other gTLD bids in limbo

Kevin Murphy, February 8, 2014, Domain Policy

Or should that be Barzakh?

Rather than making the tricky decision on whether to approve .islam and .halal new gTLD applications, ICANN seems to have place both bids into permanent limbo.

It’s also put off calls on applications for .spa, .amazon, .wine and .vin, due to objections from the Governmental Advisory Committee.

On .islam and .halal, ICANN chair Steve Crocker wrote to Turkish applicant Asia Green IT System to say that the New gTLD Program Committee will not address the bids until AGIT has worked out its differences with the Organization for Islamic Cooperation.

He noted that AGIT has expressed a willingness in the past to work with the OIC, but that the OIC has formally decided to object to the two applications. Crocker wrote:

There seems to be a conflict between the commitments made in your letters and the concerns raised in letters to ICANN urging ICANN not to delegate the strings. Given these circumstances, the NGPC will not address the applications further until such time as the noted conflicts have been resolved.

This is not a formal rejection of the applications, but ICANN seems to have placed them in a limbo that will only be resolved when AGIT withdraws from the program or secures OIC support.

There’s also delaying treatment for .wine and .vin, which have become the subject of a raging row between Europe on the one hand and the US, Canada and Australia on the other.

Europe wants these two wine-related gTLDs to be subject to strict rules on who can register domains containing geographic indicators, such as “Champagne”. The others don’t.

ICANN in response has commissioned a third-party study on GIs, which it expects to be able to consider at its Singapore public meeting next month. Again, a decision has been avoided.

The two applicants for .spa don’t have any closure either.

Spa is the name of a town in Belgium, whereas the two applicants — Donuts and Asia Spa and Wellness Promotion Council — intend to use the string in its English dictionary sense.

There was a bit of a scandal during the Buenos Aires meeting last November when it was suggested that Belgium was using its position on the GAC to shake down the applicants for money.

Belgium denied this, saying the city of Spa didn’t stand to gain financially from the deals that it was trying to make with applicants. Some money would go to “the community served by .spa”, Belgium said, without elaboration.

ICANN has now decided to put .spa on hold, but wants to know more about these talks:

ICANN will not enter into registry agreements with applicants for the identified string at this time. The NGPC notes concern about concluding the discussions with the applicants and will request the GAC to (1) provide a timeline for final consideration of the string, and (2) identify the “interested parties” noted in the GAC advice.

Finally, ICANN has yet again delayed making a call on Amazon’s application for .amazon — until at least Singapore — out of an abundance of legal caution.

The GAC recommended that ICANN should reject .amazon because a few Latin American states claim ownership of the string due to it being the same as the Amazon region they share.

Amazon and others claim that it would be in violation of international law that prevents governments interfering with the use of trademarks for the GAC to block .amazon.

ICANN’s NGPC said:

ICANN has commissioned an independent, third-party expert to provide additional analysis on the specific issues of application of law at issue, which may focus on legal norms or treaty conventions relied on by Amazon or governments. The analysis is expected to be completed in time for the ICANN Singapore meeting so that the NGPC can consider it in Singapore.

In my view, the .amazon issue is the one most likely to bring a lawsuit to ICANN’s doorstep, so the organization clearly wants to get its legal position straight before making a call one way or the other.

All these decisions were made on Wednesday. You can read the NGPC’s resolution here and the important details here.

.shopping ruled confusingly similar to .shop

Kevin Murphy, October 17, 2013, Domain Registries

An International Centre for Dispute Resolution panelist has ruled that .shop and .shopping are too confusingly similar to coexist on the internet.

The panelist was Robert Nau, the same guy who ruled that .通販 and .shop are confusingly similar.

Again, the objector is .shop applicant Commercial Connect, which filed String Confusion Objections against almost every new gTLD application related to buying stuff online.

The defendant in this case was Donuts, via subsidiary Sea Tigers LLC.

Here’s the key part of the decision:

the concurrent use of “shopping”, the participle, and the root word “shop”, in gTLD strings will result in probable confusion by the average, reasonable Internet user, because the two strings have sufficient similarity in sound, meaning, look and feel. The average Internet user would not be able to differentiate between the two strings, and in the absence of some other external information (such as an index or guidebook) would have to guess which of the two strings contains the information the user is looking to view.

The adopters of the applicable standard of review for string confusion hypothetically could have allowed an unlimited number of top level domain names using the same root, and simply differentiate them by numbers, e.g., <.shop1>, <.shop2>, <.shop3>, etc., or other modifiers, including pluralization, or other similar variations of a root word, or other modifiers before or after the root word. While that might allow for increased competition, as argued by Applicant, it would only lead to a greater level of confusion and uncertainty among average, reasonable Internet users. Accordingly, the Applicant’s argument that the concurrent use of a root word and its participle version in a string increases competition is not persuasive in this context, and is rejected.

So far, Commercial Connect has lost 15 of the 21 SCOs it filed, against strings as weird as .supply and .shopyourway. Four cases remain open.

There are nine applicants for .shop, including Commercial Connect. Uniregistry has also applied for .shopping, but did not receive an objection.

Reconsideration is not an appeals process: ICANN delivers another blow to Amazon’s gTLD hopes

Kevin Murphy, October 15, 2013, Domain Policy

Amazon has lost its appeal of a ruling that says its applied-for new gTLD .通販 is “confusingly similar” to .shop, with ICANN ruling that its Reconsideration mechanism is not an appeals process.

The e-commerce giant lost a String Confusion Objection filed by .shop applicant Commercial Connect in August, with panelist Robert Nau ruling that the two strings were too confusing to co-exist.

That’s despite one of the strings being written in Latin script and the other Japanese. The ruling was based on the similarity of meaning: 通販 means “online shopping”.

Amazon immediately filed a Reconsideration Request with ICANN.

Days earlier, Akram Atallah, president of ICANN’s Generic Domains Division, had described this process as one of the “avenues for asking for reconsidering the decision”.

Atallah was less clear on whether Reconsideration was applicable to decisions made by third-party panels — the new gTLD program’s Applicant Guidebook contains conflicting guidance.

ICANN’s Board Governance Committee, which handles Reconsideration Requests, has now answered that question: you can ask for Reconsideration of a new gTLD objection ruling, but you’ll only win if you can prove that there was a process violation by the panel.

In its decision, the BGC stated:

Although Commercial Connect’s Objection was determined by a third-party DRSP, ICANN has determined that the Reconsideration process can properly be invoked for challenges of the third-party DRSP’s decisions where it can be stated that either the DRSP failed to follow the established policies or processes in reaching the decision, or that ICANN staff failed to follow its policies or processes in accepting that decision.

That’s moderately good news as a precedent for applicants wronged by objections, in theory. In practice, it’s likely to be of little use, and it was of no use to Amazon. The BGC said:

In the context of the New gTLD Program, the Reconsideration process does not call for the BGC to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints.

As there is no indication that either the ICDR or the Panel violated any policy or process in accepting and sustaining Commercial Connect’s Objection, this Request should not proceed. If Amazon thinks that it has somehow been treated unfairly in the process, and the Board (through the NGPC) adopts this Recommendation, Amazon is free to ask the Ombudsman to review this matter.

While the BGC declined to revisit the substance of the SCO, it did decide that it’s just fine for a panelist to focus purely on the meaning of the allegedly confusing strings, even if they’re wholly visually dissimilar.

The Panel’s focus on the meanings of the strings is consistent with the standard for evaluating string confusion objections. A likelihood of confusion can be established with any type of similarity, including similarity of meaning.

In other words, Nau’s over-cautious decision stands: .通販 and .shop will have to enter the same contention set.

That’s not great news for Amazon, which will probably have to pay Commercial Connect to go away at auction, but it’s also bad news for increasingly unhinged Commercial Connect, whose already slim chances of winning .shop are now even thinner.

Commercial Connect had also filed a Reconsideration Request around the same time as Amazon’s, using the .通販 precedent to challenge a much more sensible SCO decision, which ruled that .shop is not confusingly similar to .购物, Top Level Domain Holdings’ application for “.shopping” in Chinese.

The BGC ruled that the company had failed to adequately state a case for Reconsideration, meaning that this objection ruling also stands.

The big takeaway appears to be that the BGC reckons it’s okay for objection panels to deliver decisions that directly conflict with one another.

This raises, again, questions that have yet to be answered, such as: how do you form contention sets when one string has been ruled confusingly similar and also not confusingly similar to another?

Vignes joins Artemis

Kevin Murphy, September 24, 2013, Domain Registries

Former OpenRegistry CEO Jean-Christophe Vignes has joined new gTLD applicant Artemis as director of domain operations, according to Artemis.

Artemis, which is one of the hopeful applicants for .secure, said “he will be in charge of building our Registry and Registrar capabilities for .secure”.

Vignes, a lawyer by trade, helped found registry service provider OpenRegistry a few years ago but left in July 2012 to go into private practice in Paris. He formerly worked for EuroDNS.

Artemis still needs to beat Amazon at auction or through some other means if it wants to win .secure, which Amazon wants to operate as a closed generic.