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Surprise! More new TLDs delay likely

Kevin Murphy, March 3, 2011, Domain Policy

The launch of ICANN’s new top-level domain program looks set to encounter more delays, after international governments said they needed more time for consultation and debate.

Three days of talks between the ICANN board of directors and its Governmental Advisory Committee, which concluded yesterday, resolved many of the GAC’s concerns with new TLDs, but not enough.

Obtaining final closure of these outstanding issues during the San Francisco meeting, March 17, now seems quite unlikely, especially if the GAC gets its way.

The meeting started on an optimistic tone on Monday, degenerated into stalemate on Tuesday, and ran over into an unscheduled third day yesterday, by which point the frustration was audible.

Prior to the meeting, the GAC had provided a “scorecard” that covered 12 areas of new TLD policy where it was still unhappy with ICANN’s positions.

ICANN, in return, had provided matching summary documents that outlined the GAC advice and summarized ICANN’s current thinking on each of the issues.

It became apparent over the first two days of the meeting that the ICANN board was willing to compromise on a number of matters, but that the GAC was unable to do the same, due to its need to consult with ministers and unnamed “advisers”.

One side often seemed to have done more homework than the other, particularly on the issue of trademark protection, where the GAC entered the room as a proxy for the trademark lobby, but without the granular background knowledge needed to answer ICANN’s questions.

Talks disintegrated on Tuesday afternoon, when it became clear that GAC members could not proceed before further consultations with their respective capitals, and that ICANN could not fully address their concerns without further clarifications.

Both sides of the aisle retreated into private discussions for the rest of the day, with the ICANN board later emerging with a list of areas it was prepared to accept GAC advice.

These positions had been more fully fleshed out when the meeting reconvened yesterday morning, but hopes of resolving the discussions by San Francisco appeared to be dashed by the GAC.

The ICANN board decided in January that March 17 will host a so-called “bylaws consultation”, during which ICANN tells the GAC where it has decided to disagree and overrule its advice.

But the GAC unexpectedly revealed yesterday that it does not want the March 17 meeting to have that “bylaws” designation.

A clearly frustrated Peter Dengate Thrush, ICANN’s chairman, asked repeatedly why, in light of the substantial strides forward in Brussels, the GAC had suddenly decided it needed more time:

what we’ve done is clarify and limit the work, so the work we now need to do in San Francisco is reduced and comes in with greater clarity. I don’t understand how more work and more clarity leads to the conclusion that you come to. So you have to help me with this.

The US representative, Suzanne Sene, said the GAC was “surprised” by the bylaws designation.

Actually, if we can go back to the January resolution, a sort of reaction we had at that time was some slight surprise actually that without having seen the GAC scorecard, you were already forecasting that you anticipated not being able to accept the advice contained in the scorecard.

Despite the generally civil tone of the talks, and Dengate Thrush’s opening and closing remarks – in which he said that the meeting was neither “adversarial” nor a “power struggle” – this part of the discussion came across more than most like a pissing contest.

ICANN officially rejecting GAC advice through a bylaws consultation would be unprecedented, and I get the distinct impression that it is something the GAC does not want to happen.

If you’re a government, being overruled by a bunch of DNS policy wonks in California is bad PR.

But if a mutually acceptable compromise is to be made without any advice being rejected, GAC reps need time to take ICANN’s concessions back to their superiors for input, and then to form their own consensus views. Thence the delay arises.

At the end of the meeting, it appeared that talks will be continuing in private in the run-up to the San Francisco meeting, which starts March 13. It also appears that the board and GAC will hold not one but two days of talks during the meeting.

What’s less clear to me is whether ICANN has already agreed that the “bylaws” designation will be removed from the March 17 meeting.

If it does, we’re looking at a few weeks more delays post-SF, while the GAC and board resolve their remaining differences, which could easily impact the planned April 14 publication of the next version of the Applicant Guidebook.

Winners and losers in the next Applicant Guidebook

Kevin Murphy, February 23, 2011, Domain Registries

Who’s going to be happy, and who won’t be, after ICANN publishes the next version of its Applicant Guidebook for new top-level domains in April?

We now have a rough idea of the answers to those questions, following the publication this week of ICANN’s analysis of comments received between November and January.

The 163-page document (pdf) outlines where ICANN is still open to changing its rules for applying for a TLD, and where it believes the book is firmly shut.

As you might expect, at this late stage in the game, most of the analysis is essentially “thanks, but no thanks”, reiterating the reasons why the Guidebook currently says what it says.

But there are strong indications of which changes will be made to the “next” version of the Guidebook, which is currently expected to hit the ICANN web site April 14.

Here’s a high-level analysis of the winners and losers.

Impatient Applicants

Companies and entrepreneurs that have been tapping their feet for the last couple of years, hit by delay after delay, can probably take comfort from the fact that ICANN is still making encouraging noises about its commitment to the new TLDs program.

Noting that some issues are still in need of further work, ICANN staff writes:

it is ICANN’s intention to reach resolution on these issues. It would be irresponsible to use community resources to run a process without the intention to see it through to conclusion.

ICANN continues to approach the implementation of the program with due diligence and plans to conduct a launch as soon as practicable along with the resolution of these issues

Beyond what I noted in a post earlier this afternoon, there are no clues about the timetable for actually launching the program, however.

Trademark Holders

It’s a mixed bag for the intellectual property lobby, but on balance, given the length of its wish-list, I expect the trademark crowd will be more disappointed than not.

In general, ICANN is firm that the rights protection mechanisms (RPMs) in the Guidebook are the result of community compromise, and not for changing.

This is sometimes the case even when it comes to issues ICANN plans to discuss with its Governmental Advisory Committee next week.

One of these is the Trademark Clearinghouse, the database of trademark rights to be used to reduce cybersquatting, of which ICANN says:

subject to further refinement through the GAC consultation and other comments received to date, the positions in the Clearinghouse proposals will be finalized substantially similar to as it was in the Proposed Final Applicant Guidebook.

On the Globally Protected Marks List, a mechanism trademark holders want included in the Guidebook, ICANN is suitably mysterious:

It is clear that the trademark interests have continued to raise the GPML as possible RPM. While this discussion may continue, no further progress or decisions have been made.

The most substantial concession ICANN appears ready to make to trademark holders concerns the Uniform Rapid Suspension mechanism, a cousin of the UDRP that will be used to address clear-cut cases of cybersquatting in new TLDs.

A major concern from the IP lobby has been that the URS is too slow and complex to meet its original goals. ICANN disagrees that it does not do the job, but plans to streamline it anyway:

Discussions are continuing and some additional implementation detail revisions will likely be made, for example, creating a form complaint that reduces the 5000-word limit to 500 words. The 500-word limit might not, however, be placed on the respondent, as the respondent will be required to describe the legitimate basis upon with the domain name is registered. The respondents word limit be decreased from 5,000 to something less, possibly 2,500 words, in order to decrease the examinations panel‘s time requirements and thereby enhance circumstances for a relatively loss cost process. (Remember that in the vast majority of cases, it is expected that the respondents will not answer.)

This will certainly be a topic of discussion at the ICANN-GAC meeting in Brussels on Monday, so I expect IP attorneys are even now briefing their governments on how these proposed changes won’t go far enough for whatever reason.

Domainers

There’s bad news if you’re a high-rolling domain investor, looking at bagging a new TLD or three, and you also have a few UDRP losses against your name.

The background check ICANN will carry out on applicants for their history of cybersquatting stays, and it will still use the three-losses-as-UDRP-respondent benchmark.

However, ICANN has recognized that UDRP decisions are not always final. If you lost a UDRP but subsequently won in court, that decision won’t count against you.

In addition, reverse domain name hijacking findings will now also count against applicants to the same degree as UDRP losses.

I believe both of those concessions capture so few entities as to be more or less irrelevant for most potential applicants.

“.brand” Applicants

ICANN is in favor of companies applying to run “innovative” TLDs, such as “.brands”, but it is reluctant to carve out exceptions to the rules for these applicants.

The organization does not plan to give .brands a pass when it comes to protecting geographic names, nor when it comes to the requirement to register domains through an accredited registrar.

This seems to mean, for example, that if Microsoft successfully obtains .microsoft and wants to register usa.microsoft to itself, it will have to ask the US government for permission.

It also means .brands will still have to seek ICANN accreditation, or work with an existing registrar, in order to sell domains to themselves. It’s an added cost, but not an unworkable one.

Would-be .brand applicants did, however, win one huge concession: If they decide to turn off their TLD, it will not be redelegated to a third-party. ICANN wrote, with my emphasis:

In the limited case of .brand and other TLDs that operate as single-registrant/single-user TLDs it would probably make sense to not force an outgoing operator to transition second-level registration data (since presumably the operator could just delete all the names as the registrant anyway and then there would be nothing to transition), and therefore ICANN will put forward proposed language for community review and feedback that would provide for alternative transition arrangements for single-registrant/single-user gTLDs.

If .microsoft was unsuccessful and Microsoft decided to stop running it, Google would not be able to take over the ICANN registry contract, for example.

Poor People/Cheapskates

Some commenters wanted ICANN to reduce application fees in cases where the applicant is from a poorer nation, a non-governmental organization, or when they intend to apply for multiple versions of the same TLD.

They’re all out of luck.

The $185,000 baseline application fee is to stay, at least for the first round. ICANN thinks it could be reduced in future rounds, once more uncertainty has been removed from the process.

Currently, $60,000 of each fee is set aside for a “risk” (read: litigation) war-chest, which will be presumably less of an issue after the first round is completed.

Special Interests

The International Olympic Committee and the Red Cross, as well as financial services organizations, may receive the special concessions they asked for in the next Guidebook.

The IOC and Red Cross may be given the same protections as afforded to ICANN, regional internet registries, and generic terms such as “example” and “test”.

ICANN is considering the nature of these protections, and if appropriate, might augment the reserved names lists in special cases such as requested by the International Olympic Committee (IOC) and the International Red Cross, both of which are globally invested in representing the public interest.

It also emerged that ICANN is working with the financial services industry to clarify some of the security-related language in the Guidebook.

Community Applicants

Sorry guys, ICANN intends to keep the threshold score for the Community Priority Evaluation at 14 out of 16. Nor will you get a bonus point for already showing your cards by starting community outreach two years ago. Winning a CPE is going to be as tough as ever.

*

This is just a brief, non-exhaustive overview of the changes that are likely to come in the next Applicant Guidebook, setting the stage for the GAC talks next week and the San Francisco ICANN meeting next month.

One thing seems pretty clear though: this is end-game talk.

New TLDs could come quicker than expected

Kevin Murphy, February 23, 2011, Domain Registries

New top-level domains may arrive a month earlier than previously projected, after ICANN revealed it is considering reducing the first-round application window to 60 days.

That’s one of a number of suggested changes to the new TLDs program that appear in documents published Monday (more on this later).

In the summary and analysis of public comments on November’s proposed final Applicant Guidebook, ICANN staff write (with my emphasis):

A set of commenters suggested that the application submission period should be 30 days. ICANN has not established the length of this period; however, it is expected that it the necessary steps leading up to and including the submission of an application will take some time to complete. ICANN’s intention is to ensure that the time period is sufficient for applicants to provide appropriate attention to these steps. The application period will be at least 60 days and no longer than 90 days.

A 60-day window would reduce the minimum estimated period between ICANN approving the guidebook and the first new TLDs going live from 15 months to 14 months.

ICANN currently expects to launch a four-month communication period after the Guidebook is approved, followed by the application window.

The most-straightforward TLDs could be approved in as little as eight months after applications close, and going through IANA to get into the root could take as little as 10 days.

If the Guidebook gets the nod in April, we could be looking at TLDs live by July 2012, with sunrise periods starting not too long thereafter, but that’s still the most optimistic outcome for applicants.

ICANN names date for Applicant Guidebook

Kevin Murphy, February 22, 2011, Domain Registries

ICANN has put a tentative date on the release of its Applicant Guidebook for new top-level domains.

In publishing its summary and analysis of the proposed final version of the AGB today, ICANN also issued this timetable:

Expected Path Forward
* Board-GAC Consultations: 28 Feb – 1 Mar 2011
* ICANN meeting: 14 – 18 Mar 2011
* Release of Applicant Guidebook: 14 Apr 2011

Note that it says “release”, not “approval”.

The nearest scheduled ICANN board of directors meeting to the release date is April 21.

ICANN prepares for trademark fight with GAC

Kevin Murphy, February 22, 2011, Domain Registries

ICANN thinks the benefits of new top-level domains will outweigh the costs, and it preparing for a scrap when it meets its Governmental Advisory Committee in Brussels next week.

In a number of briefing documents published yesterday, ICANN makes it clear that it does not think the new TLD program will create a huge economic burden on trademark holders.

Brussels is possibly the final major hoop ICANN has to jump through before its board of directors will be able to sign off the Applicant Guidebook and start accepting new TLD applications.

There are a number of areas where the GAC and ICANN disagree. Next week’s meeting is intended to identify those differences, and to try to find ways to resolve them.

The GAC’s biggest problem with the new TLD program, as its members made clear in Cartagena and subsequently, is that it’s not convinced new TLDs won’t cost brand holders a bundle.

What will be the damage caused by cybersquatting? How much money will big business be forced to spend on defensive registrations?

Nobody knows for sure, and none of the independent third-party economic reports commissioned by ICANN ventures anywhere near a comprehensive empirical study.

So the GAC wants another economic study done, to quantify the costs and benefits of new TLDs, and to figure out how voluminous defensive registrations is likely to be.

ICANN disagrees, saying essentially that more studies are pointless, and that demand for defensive registrations in new TLDs are likely to be low.

The Board position is that defensive registrations will increase but not in numbers projected by some trademark holders

Estimates from the Coalition Against Domain Name Abuse, CADNA, last year put the cost to brands of the new TLD program at $746 million. But ICANN isn’t buying that:

The Board also believes that economic studies do not provide evidence that new TLDs will result in demand for defensive registrations. Existing independent studies, that the Board is seeking to validate, indicate that defensive registrations occur only in the very largest, well-established registries only.

the Board is seeking (and will publish) independent corroboration that:

• trademark holders generally do not register their trademarks in all the current generic TLDs.

• Therefore, it is not expected that trademark owners, in general, register their trademarks in new gTLDs, and

• due to the expected costs to run a registry and the expected low number of defensive domain name registrations, there is no economic incentive for an applicant to obtain a TLD for the sole purpose of making money from defensive trademark registrations.

ICANN does not identify these “independent studies”, but the data points cited in the document (pdf) point to a February 2009 article published on CircleID by Paul Stahura, and a comment made on that article by Richard Tindal that cites third-party data.

The Stahura report is arguably the most comprehensive carried out on defensive registrations in existing open gTLDs, concluding that the current cost to trademark holders is very low indeed, and that the bulk of typosquatting and trademark enforcement goes on in .com.

The research suggested that each new TLD would create costs in the tens of thousands of dollars per year, across the whole universe of trademark interests. It used baseline registrar fees in its calculations, unlike the CADNA report, which used sunrise fees about a hundred times greater.

But the Stahura study is “independent” only in the respect that it was not commissioned by ICANN or carried out with its blessing or participation.

At the time it was published, Stahura was president of eNom owner Demand Media, which is expected to be a new TLD applicant. Tindal, apparently also cited in ICANN’s latest report, was senior vice president, registry, for Demand Media.

Independently validating the report’s conclusions will be important, if only to avoid accusations that ICANN is making its decisions based on the views of those who would benefit from new TLDs.

Another of ICANN’s newly published briefing documents (pdf) also address the specific trademark protection mechanisms called for in the Applicant Guidebook.

The GAC has not yet published, or provided ICANN with, its specific recommendations relating to these mechanisms (I understand that will come in the next day or two) but they are expected to call for a tightening of the rules governing the Trademark Clearinghouse and Uniform Rapid Suspension policy.

Unlike several parts of yesterday’s briefing papers, ICANN’s language when discussing these two mechanisms does not suggest to me that it is preparing to substantially compromise.

With trademarks just one of many issues under discussion, Brussels is shaping up to becoming very interesting indeed.

New TLD rulebook unlikely to get March nod

Kevin Murphy, February 9, 2011, Domain Registries

ICANN’s new top-level domains Applicant Guidebook is unlikely to get its final approval at ICANN’s March meeting, according to the senior staffer responsible for the program.

Senior vice president of stakeholder relations Kurt Pritz, who gave the keynote at today’s .nxt conference, later told me the Guidebook “probably won’t be approved in San Francisco”.

But impatient new TLD applicants may not have to wait too long afterward for the Guidebook to get the nod and the program to launch.

Pritz said that the Guidebook, currently in a “Proposed Final” version, will likely be revised following ICANN’s upcoming talks with its Governmental Advisory Committee.

But whatever emerges from the GAC consultation will not necessarily be opened for public comment, which would add a month or two of delay to the process. That will be for the board to decide.

Pritz indicated that the community needs to understand that one day ICANN will produce a version of the Guidebook that will be for voting, not commenting.

That’s likely to come sooner rather than later.

It seems to me to be quite likely that a version of the Guidebook emerging in the weeks following San Francisco will be submitted straight to the ICANN board of directors for approval.

During his keynote, which he gave following ICANN CEO Rod Beckstrom’s unexpected eleventh-hour cancellation, Pritz said he wanted “to reset expectations and what I think our job is going forward”.

“Public discussion needs to turn to: should we launch the new gTLD process or should we not?” he said during his remarks.

The keynote was upbeat, talking about the Guidebook being a “road map”, not a series of “road blocks”.

Referring to the recently relaunched .me and .co country-code TLDs, which have been successfully marketed as generic TLDs, Pritz said:

To a certain extent new TLDs are already off and running. There’s a first mover advantage there, so the rest of us need to catch up.

Native Americans want new TLD protection

Kevin Murphy, January 11, 2011, Domain Registries

The National Congress of American Indians, a Native American rights group, has asked ICANN for special protection for tribal names under the new top-level domains program.

In comments filed with ICANN today, the NCAI asks for the same level of protection given to countries and territories found on various UN lists, such as the ISO 3166-1 list of country names.

NCAI president Jefferson Keel wrote:

Allowing the approval of top level tribal domain names (such as .navajo or .seneca) without considering the protection of tribal governments would cause confusion, attributing certain information or views to a tribal government which would lack control while its name is being used. In our view, only tribal government websites should be authorized to use a tribal name gTLD, unless express consent is granted by the tribal government.

The letter appears to request that these protections are extended both to TLD strings and to names registered at the second level, although it’s not entirely clear on that point.

In other words, the NCAI appears to want not only “.navajo” reserved, but also to have “navajo” placed on the list of reserved strings that all TLD registries will have to abide by.

The latest list of tribes officially recognized by the US government has several hundred entries. If ICANN were to make the requested changes, more tribes would be protected than UN members.

Most of the push for protection of geographic terms has come from ICANN’s Governmental Advisory Committee, which does not have any Native American tribal representatives.

Keel’s comments were filed in response to the ongoing ICANN public comment period on the latest version of the Applicant Guidebook, which ends this Saturday.

Incumbents get the nod for new TLD apps

Kevin Murphy, December 27, 2010, Domain Registries

Domain name registries such as Neustar, VeriSign and Afilias will be able to become registrars under ICANN’s new top-level domains program, ICANN has confirmed.

In November, ICANN’s board voted to allow new TLD registries to also own registrars, so they will be able to sell domains in their TLD direct to registrants, changing a decade-long stance.

Late last week, in reply (pdf) to a request for clarification from Neustar policy veep Jeff Neuman, new gTLD program architect Kurt Pritz wrote:

if and when ICANN launches the new gTLD program, Neustar will be entitled to serve as both a registry and registrar for new gTLDs subject to any conditions that may be necessary and appropriate to address the particular circumstances of the existing .BIZ registry agreement, and subject to any limitations and restrictions set forth in the final Applicant Guidebook.

That doesn’t appear to say anything unexpected. ICANN had already made it pretty clear that the new vertical integration rules would be extended to incumbent gTLD registries in due course.

(However, you may like to note Pritz’s use of the words “if and when”, if you think that’s important.)

Neustar’s registry agreement currently forbids it not only from acting as a .biz registrar, but also from acquiring control of greater than 15% of any ICANN-accredited registrar (whether or not its sells .biz domains).

That part of the contract will presumably need to be changed before Neustar applies for official registrar accreditation or attempts to acquire a large stake in an existing registrar.

VeriSign and Afilias, the other two big incumbent gTLD registries, have similar clauses in their contracts.

ICANN sets date for GAC showdown

Kevin Murphy, December 23, 2010, Domain Registries

ICANN and its Governmental Advisory Committee will meet for two days of talks on the new top-level domains program in Geneva from February 28, according to GNSO chair Stephane Van Gelder.

As well as the Applicant Guidebook (AGB) for new TLDs, the meeting is also expected to address the GAC’s outstanding concerns with the .xxx TLD application.

While I’d heard Geneva touted as a possible location, this is the first time I’ve heard a firm date put to it. As well as Van Gelder, other sources have heard the same date.

Talks ending March 1 would give ICANN less than two weeks before its public meeting in San Francisco kicks off to get the AGB into GAC-compatible shape before the board votes to approve it.

Is that a realistic timeframe? I guess that will depend on how the GAC meeting goes, the depths of the concessions ICANN decides to make, how receptive the GAC is to compromise, and whether it is felt that more public comment is needed.

Also, as I speculated last week, ICANN may have to officially invoke the part of its bylaws that deals with GAC conflicts, which it does not yet appear to have done, if it wants to approve the Guidebook at the end of the San Francisco meeting in March.

If the program is approved in March, that would likely lead to applications opening in August.

There’s likely to be one ICANN board meeting between now and Geneva – its first meeting of the year is usually held in late January or early February – so there’s still time for ICANN to make changes to AGB based on public comment, and to get its process ducks in a row.

There’s also plenty of time for the GAC to provide its official wish-list or “scorecard” of AGB concerns, which I believe it has not yet done.

Van Gelder also wonders on his blog whether the Geneva meeting will take place in the open or behind closed doors.

ICANN’s director of media affairs, Brad White, put this question to ICANN chair Peter Dengate Thrush during a post-Cartagena interview. This was his answer:

We haven’t actually resolved the rules of engagement with the GAC on this particular meeting but the standard position for all organizations within ICANN is that they are open… On the other hand if at any point think we the negotiation could be assisted by a period of discussing things in private I guess we could consider that.

That looks like a “maybe” to me.

Possible new TLDs timeline revealed

Kevin Murphy, December 16, 2010, Domain Registries

ICANN’s decision to delay the approval of its new top-level domains Applicant Guidebook last week in Cartagena left one big question hanging:

When will the program open for applications?

ICANN had pencilled in May 30 for the launch, but the new delay appeared to make that impossible. In the absence of an announcement from ICANN, nobody really knows what the current timetable is.

A few possible answers have now emerged with the publication this week of ICANN staff briefing documents (pdf) used by the board to make their original decision to target May 2011.

An October 28 document entitled “New gTLD Launch Scenarios”, penned by ICANN’s Kurt Pritz and Carole Cornell, explores the board’s options for approving a launch timeline.

It notes that applications cannot be solicited until ICANN has finished its mandatory four-month outreach/marketing campaign, which in turn can’t kick off until the AGB has been approved.

I’ll let the rest speak for itself:

If the Board were to approve the Guidebook after the January/February meeting, the announcement and communications campaign launch would be made shortly thereafter. The first applications could be received as early as (but not earlier than) 1 July 2011.

If the Board elects that a full comment analysis and sixth version of the Guidebook be written, with approval at the Silicon Valley meeting, the approval would be followed by an April announcement and communications campaign launch. First applications could be received as early as (but no earlier than) August 2011.

And here’s a lovely graphic illustrating the options (click to enlarge):

New gTLD Launch Scenarios

Given that we now know that the ICANN board intends to meet with the Governmental Advisory Committee to address its outstanding issues in February, the final scenario – with a San Francisco approval and August launch – now seems more likely.

Most of the rest of the briefing document is heavily redacted.