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Porn set to steal the show in San Francisco

Kevin Murphy, January 28, 2011, Domain Registries

ICM Registry’s .xxx top-level domain looks set to grab the headlines at ICANN’s meeting in San Francisco, due to government-forced delays.

While ICANN is hoping to approve its new top-level domains program in March, that decision may wind up receiving less media attention than the final approval of the porn-only domain.

ICANN last month said that it wanted to hold a final consultation to resolve its differences with the Governmental Advisory Committee – which broadly objects to .xxx – in February 2011.

This referred to a proposed meeting between the GAC and the board, which has now been officially scheduled for February 28 in Brussels.

But a resolution carried by ICANN this week has pushed the consultation back to “no later than Thursday 17 March, 2011”, the day before its San Francisco meeting.

That would put the sign-off of ICM’s contract on the same billing as the planned final approval of the new top-level domains Applicant Guidebook and the launch of the new TLDs program.

San Francisco is set to be the focus of unprecedented media attention, due to its location and the likely presence of Bill Clinton. We’re probably looking at tighter stage management than usual.

With that in mind, I expect ICANN bosses won’t be too happy that porn-friendly .xxx is likely to steal away many column inches they would prefer devoted to new TLDs.

Porn in headlines gets clicks. Readers understand it, and you generally don’t need to explain to an editor what a TLD is. I know which story would be easier for me to sell.

Had ICANN put .xxx on the agenda for Brussels – which does not appear to have been ruled out yet – it could have wrapped up the ICM saga with a resolution quite quickly afterward.

That would have given ICM a week or so of undiluted media coverage, and the new TLDs program would not have had to share the spotlight with porn come San Francisco.

The question is: why is .xxx apparently not on the agenda for Brussels? Given ICANN’s previous decision to hold the meeting in February, responsibility seems to lie with the GAC.

Rumor has it that there’s a bit of a power struggle going on behind the scenes, with some elements of the GAC resistant to make Brussels the official final .xxx consultation.

Time will tell whether this position is firm or flexible.

ICANN sets March deadline for new TLDs

Kevin Murphy, January 28, 2011, Domain Registries

ICANN appears determined to put debates about its new top-level domains program to bed at its San Francisco meeting in March.

The resolutions from Tuesday’s ICANN board meeting, published this evening, give every indication that ICANN wants an end to the delays.

This seems to mean it will take a hard line with its Governmental Advisory Committee, with which it is due to meet in Brussels at the end of February.

The board resolved that it “intends to progress toward launching the New gTLD Program, as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook.”

It remains open, however, to take action on the GAC’s concerns, which include trademark protection and the treatment of geographic strings.

It wants the final GAC consultation, which is mandated by its bylaws, to take place March 17, the day before the board meets in San Francisco.

This is encouraging news for anybody who wants to apply for a new TLD, as it means ICANN would be able to launch the program shortly thereafter.

If that happens, it could be able to start accepting applications possibly as early as mid-July (although a late-August/early September window may be more likely).

More on this tomorrow.

Governments to take trademark concerns to ICANN

Kevin Murphy, January 24, 2011, Domain Registries

ICANN’s Governmental Advisory Committee will head to Brussels next month determined to persuade ICANN to strengthen the trademark protections in its new top-level domains program.

The GAC is set to take many of the concerns of the trademark lobby to its meeting with ICANN’s board of directors, UK GAC representative Mark Carvell said in an interview today.

“It’s very important that the interests of trademark holders are fully respected and that the costs that might flow to them are mitigated as much as possible,” he said.

“Their interests should not be undermined in any way that creates unnecessary burdens for them – it interferes with trade, business development and so on.”

The GAC is currently working on 12 “scorecards” that enumerate its concerns with the Applicant Guidebook for new TLDs, as well as more “overarching” issues with the program.

Carvell has been charged with writing the scorecard on trademark protection. He recently met with several large brand interests in London, as World Trademark Review reported last week.

I get the impression that the GAC’s position will be less hard-line than some of the IP lawyers WTR quoted, who want a wholesale return to their proposals of two years ago.

One protection the IP lobby wants restored to the Guidebook is the Globally Protected Marks List, which would take a lot of the cost out of defensive registrations in new TLDs.

The GPML was proposed by brand holders, but did not make it into the current version of the Guidebook.

“Whether we can simply go back to that, I doubt, but we may discuss it,” Carvell said. “I’d be hesitant to simply revert to a set of proposals that did not get full support.”

He added that protections granted in the launches of .eu and .co – which had a Specially Protected Marks List similar to the GPML – could also provide the basis for discussion.

Another protection, the Uniform Rapid Suspension policy, designed to allow trademark holders to quickly block blatant cases of cybersquatting, has been watered down quite a lot since its first iteration.

“The URS does not achieve its original objectives,” Carvell said. The GAC will push for it to be strengthened, not fundamentally revisited, he said.

“We don’t want the Trademark Clearinghouse completely remodeled, we’re not looking for the URS to be totally reshaped, we want to work with ICANN to improve these mechanisms,” he said.

The two-day Brussels meeting, scheduled for February 28, will not all be about trademarks, of course. Other issues include geographical name protection and the treatment of “controversial” strings.

There’s a feeling in some parts of the GAC that TLDs deemed so controversial they they are likely to be blocked by certain nations (think .sex, .gay etc) should be given an “early warning” dissuading them from continuing with their applications.

Unsurprisingly (given its role in overseeing the DNS root) but ironically (given its First Amendment) it is the US GAC representative who has been assigned work on this particular scorecard.

It seems to me that the list of concerns the GAC will take to Brussels is going to be quite substantial. We’re likely not talking about only minor edits to the Guidebook.

While ICANN may feel under some pressure to officially launch the new TLDs program at the close of its splashy San Francisco meeting in March, it’s my growing feeling that this may not be realistic.

If the GAC gets even half of what it intends to ask for, ICANN’s rules could well call for another public comment period before it can sign off on the Applicant Guidebook.

Carvell said that the GAC is very sensitive to the concerns of applicants, eager to launch their TLDs, saying the GAC has been placed “in a very unfortunate position”.

“Nobody wants this to go beyond San Francisco,” he said. “One would hope not, but we can’t rule out that possibility.”

He suggested that some of the GAC’s issues could be deferred in the interests of timing.

Trademark and geographic string protections refer directly to the content of the Guidebook, but other issues, such as economic analysis and supporting applications from developing countries, do not.

“It may be that some of these issues could be further explored and discussed in parallel with the launch,” he said, noting that there’s a four-month buffer period envisioned between the approval of the Guidebook and the opening of the first round of applications.

.XXX domain contract could get approved next Thursday

The application for the porn-only .xxx top-level domain is on the just-published agenda for ICANN’s board meeting next Thursday.

The line item reads merely “ICM Registry Application for .XXX sTLD”, but I’m told that ICM and ICANN staff have already negotiated a new contract that the board will be asked to consider.

If the board gives it the nod, it would keep the .xxx TLD on track for possible delegation at ICANN’s Cartagena meeting in early December, meaning sales could begin as early as the first quarter 2011.

According to last month’s Brussels resolution, the board has to first decide whether the contract complies with previous Governmental Advisory Committee advice, or whether new advice is required.

If ICM jumps that hurdle, the contract will be published for public comment (fun fun fun) for three weeks to a month, before returning to the board for a vote on delegation.

Also on the agenda for the August 5 board meeting is the issue of whether to give Employ Media the right to liberalize its .jobs TLD and start accepting generic domain registrations.

In the HR industry, the .jobs debate has been just as loud as the .xxx controversy was in the porn business. Some companies think the changes would be unfair on existing jobs sites.

There are a few other intriguing items on next Thursday’s agenda.

The board will discuss the “International Dimension of ICANN”, “Data & Consumer Protection” and “UDRP Status Briefing”, all of which strike me as rather enigmatic, among other topics.

The UDRP item may refer to the ongoing debate about whether ICANN needs to have contractual relations with its UDRP providers.

Will new TLDs be delayed by the trademark owner outcry?

Yesterday’s flood of criticism from big trademark holders has put another question mark next to ICANN’s plan to finalize the new top-level domain application process this year.

Heavy-hitters including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola filed strong criticisms of the trademark-protection mechanisms in version four of the Draft Applicant Guidebook, and urged ICANN to delay the new TLD launch until the perceived weaknesses are addressed.

The concerns were echoed by the Motion Picture Association of America, the International Olympic Committee, Nestle, the International Trademark Association, Lego, the World Intellectual Property Organization, the American Intellectual Property Law Association, News Corp, the BBC and the American Bankers Association, among others.

Two ICANN registrars, MarkMonitor and Com Laude, also threw in with the anti-DAGv4 crowd. Indeed, MarkMonitor appears to have orchestrated at least a part of the trademark owner commentary.

It’s clear that many IP owners feel they’re being ignored by ICANN. Some organizations, notably WIPO and Time Warner, filed scathing criticisms of how ICANN makes policy.

These aren’t insignificant entities, even if some of their comments read like cases of throwing toys out of the pram.

After conversations with others, I know I’m not the only one who believes that this outcry could add delay to the new TLD process.

It certainly casts doubt on comments made by ICANN chair Peter Dengate Thrush in Brussels last month to the effect that the trademark protection portions of the DAG were very close to being finalized.

Trademark owners, including most of the outfits listed above, are concerned that the Uniform Rapid Suspension policy, designed to create a faster and cheaper version of the UDRP, has become bloated and now in some cases could take longer than a UDRP proceeding.

They also don’t think the Trademark Clearinghouse, a database of brands maintained by ICANN that new TLD registries would be obliged to protect, goes far enough to protect their marks. The previously proposed Globally Protected Marks List seems like a preferred alternative.

ICANN currently hopes to have the final guidebook close to readiness by its public meeting in Cartagena, Colombia, this December. Its board of directors will meet over a weekend in September to try to knock the document into shape. I don’t envy that task.

There’s a possibility, of course, that ICANN will soldier on with its time-line regardless. Dengate Thrush indicated in an interview last month that he did not want trademark issues to delay the launch any more than they have already.

Asked about the IP lobby’s concerns with the speed of the URS, he told the World Trademark Review:

I have conceptually no problem with making sure that expedited processes are available. If this one turns out to be too slow, we’ll do something else. What we can’t have is the hold up of the entire process until this is resolved.

It’s wait and see time again, but at the very least I think it’s pretty clear that the new TLD launch timeline is more in doubt today than it was 24 hours ago.

Chinese TLDs now live, broad adoption achieved in just seven days

Check it out: 教育部。中国.

That’s one, but by no means the only, of the first live, fully Chinese-script domain names. It’s China’s Ministry of Education.

Previously, it had been announced that the .中国 internationalized country-code TLD would not go live until August.

But on Friday CNNIC said that 90% of China’s ministries have got their .中國 domains already, along with 95% of news websites, 90% of universities and 40% of China’s Top 500 enterprises.

Not only was that level of adoption achieved very quietly, it was also achieved very quickly. According to IANA, .中國 was delegated just seven days earlier, on July 9.

IANA also reports that .中國, the IDN for Hong Kong went live on July 12. Taiwan’s .中國 was delegated on July 14.

All of these Chinese-script TLDs were approved by ICANN’s board at the conclusion of the Brussels meeting last month.

It’s perhaps not surprising that ICANN did not broadly announce the latest delegations. It got burnt for pre-empting Arab nations’ publicity when the first IDN TLDs went live in May.

I wonder whether this will help CNNIC reverse the trend of declining registrations in its namespace. According to the latest statistics, the .cn has halved in size over the last year.

Loss-making M+M predicts December new TLD announcement

Top Level Domain Holdings, the parent company of Minds + Machines, has reported another six months of steep losses as it patiently waits for ICANN to launch its new TLD round.

The company, which is listed in London, reported revenue for the period to the end of April of £32,000 ($49,000), with a loss of £462,000 ($708,000).

TLDH still has almost £4m in cash and equivalents, so it’s not likely to go out of business before the new TLD round commences. Unless the round is delayed by litigation, of course.

M+M has apparently been tightening its belt a little since April. I’m aware of at least one key employee who is no longer working there.

TLDH says in its interim report that it expects ICANN to finalize its Applicant Guidebook in November and announce the application window for the first round in Cartegena in December.

While that’s definitely compatible with noises ICANN’s chairman was making in Brussels, I know I’m not the only person who believes this is a somewhat optimistic estimate.

The report also makes reference to the issue of registry-registrar integration, noting that the ICANN Nairobi resolution to prohibit cross ownership benefits M+M, which is not a registrar.

TLDH’s share price closed up 2% today.

Investors circle ICM as .xxx enters home straight

ICM Registry’s board of directors has approved a $5 million funding round, following the recent decision by ICANN to put the .xxx top-level domain onto the path to approval.

ICM president Stuart Lawley tells me he’s underwritten the whole round himself, already injecting another $500,000 of his own money into the company.

Venture capital investors have already approached the company, following the Brussels decision two weeks ago, according to Lawley.

In Brussels, ICANN’s board resolved to re-enter contract negotiations with ICM, following years of wrangling with ICANN’s appeals and independent review processes.

While .xxx’s approval and entry to the DNS root is not a slam-dunk, the only major hurdle appears to be ICANN’s Governmental Advisory Committee, and many believe the GAC is unlikely to stick its neck out on such a controversial issue.

While demand for .xxx domains is yet to be proven, there are already 162,000 pre-registrations, which would work out to a $10 million business, not including premium sunrise and landrush fees.

A report in Business Week last week said ICM could bring in $200 million per year in revenue on registrations alone.

I think that’s a pretty ambitious prediction, to be honest, and I can’t help but wonder in Business Week got ICM’s ten-year and one-year projections mixed up.

Even at $60 a pop, that’s still 3.3 million registered domains. The stars will have to align in unexpected ways for .xxx to reach that kind of penetration (pun intended).

ICM has previously projected near-term registrations in the low-mid hundreds of thousands.

ICM is currently owned by a close-knit group of investors, mainly Lawley’s circle and ICM’s management, with Lawley himself owning roughly 70% of the business.

Lego launches attack on new TLDs

Could little yellow plastic men be the death of the new top-level domain process?

Toymaker Lego has filed a scathing criticism of ICANN’s latest Draft Applicant Guidebook for prospective new TLD registries, saying it ignores trademark holders.

Lego, one of the most prolific enforcers of trademarks via the UDRP, said that the latest DAG “has not yet resolved the overarching trademark issue”.

DAG v4 contains new protections designed to make it easier for trademark holders to defend their rights in new TLD namespaces. But Lego reckons these protections are useless.

The Trademark Clearinghouse is NOT a rights protection mechanism but just a database. Such a database does not solve the overarching trademark issues that were intended to be addressed.

Lego also says that the Uniform Rapid Suspension service outlined in DAG v4 is much weaker than it wanted.

“It doesn’t seem to be more rapid or cheaper than the ordinary UDRP,” Lego’s deputy general counsel Peter Kjaer wrote.

Lego thinks that a Globally Protected Marks List, which was at one time under consideration for inclusion in the DAG, would be the best mechanism to protect trademarks.

ICANN still seems to ignore that cybersquatting and all kinds of fraud on the internet is increasing in number and DAG 4 contains nothing that shows trademark owners that ICANN has taken our concerns seriously.

The comment, which is repeated verbatim in a letter from Arla Foods also filed today, is the strongest language yet from the IP lobby in the DAG v4 comment period.

Rumblings at the ICANN meeting Brussels two weeks ago, and earlier, suggest that some companies may consider filing lawsuits to delay the new TLD process, if they don’t get what they want in the final Applicant Guidebook.

ICANN’s top brass, meanwhile, are hopeful of resolving the trademark issues soon, and getting the guidebook close to completion, if not complete, by the Cartagena meeting in December.

ICANN chair says new TLD guidebook could be final by December

Kevin Murphy, June 28, 2010, Domain Policy

Peter Dengate Thrush, chairman of the ICANN board, thinks there’s a chance that the Applicant Guidebook for new top-level domains could be ready by ICANN’s next meeting, set for Cartagena in early December.

The board resolved in Brussels on Friday to turn its September two-day retreat into a special meeting focussed on knocking the DAG into shape.

Shortly after the vote, Peter Dengate Thrush spoke at a press conference (emphasis mine).

Soon after the closing of the [DAG v4] public comment period was a regularly scheduled retreat for the board to go and do what boards do at retreats, and what we’ve decided today to do is to use that two-day retreat to see if we can’t make decisions on all the outstanding issues in relation to the new TLD program.

That’s probably reasonably ambitious, there may still be a couple left, but we want to get as many of them out of the way as we can. That means that when we come to the next ICANN meeting in Cartagena in December we hope to be very close if not actually able to hand out the Applicant Guidebook for that new process.

I asked him what outstanding issues needed to be resolved before the DAG can be finalized. Instead of a comprehensive list, he named two: IP protection and the Governmental Advisory Committee’s “morality and public order” concerns.

The IP issue is “close” to being resolved, he said, but “there may still be issues”.

On MOPO, he said there is “a potential conflict emerging” between GAC members who value free speech and those who are more concerned with their own religious and cultural sensitivities.

When I followed up to ask whether it was possible to reconcile these two positions, this is what he said:

What we’ve done is ask the GAC is how they would reconcile it… now they are saying that they can’t see how it can be done. We see that very much as a problem either for the GAC to change its advice, or to provide us with a mechanism whereby that can be reconciled.

The Brussels GAC Communique (pdf), has little to say on MOPO, delaying its advice until its official DAG v4 public comment filing.

MOPO has already created tensions between the GAC and the board. The conversation at their joint meeting on Tuesday went a little like this:

GAC: We don’t like this MOPO stuff. Please get rid of it.

BOARD: Okay. What shall we replace it with?

GAC: Erm…

BOARD: Well?

GAC: It’s not our problem. You think of something.

BOARD: Can you give us a hint?

GAC: No.

BOARD: Please? A little one?

GAC: We’ll think about it.

So can we expect the GAC to get its act together in time for Cartagena? That, too, seems ambitious.