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Centuries-old companies both fail community gTLD test

Kevin Murphy, August 11, 2016, Domain Policy

Two companies called Merck have separately failed ICANN Community Priority Evaluations, meaning the new gTLD .merck could be the first dot-brand to head to ICANN auction.

Merck KGaA applied for .merck for the Merck Group, a German chemicals company founded — staggeringly — in 1668, the same year Newton built the world’s first reflecting telescope.

Merck Registry Holdings Inc applied for the same string on behalf of Merck & Co, which was originally the US subsidiary of the German outfit. The US firm was seized by the US government and subsequently became independent during World War I.

Despite the substantial pedigrees of these multi-billion dollar businesses, neither were able to muster up the required 14/16 points to be considered a “Community” under ICANN CPE standards.

The German firm scored 11 points, the American 9.

The main failing in both evaluations, which were conducted by the Economist Intelligence Unit, was the existence of the other.

Both applicants defined their communities as their own companies and lost points because “.merck” did not uniquely identify all legitimate users of the string.

Both panels marked the applications down for “over-reaching substantially beyond the community” by not including the rival company in its community definition.

The US company also lost a couple of points for failing to come up with a list of registration restrictions.

As neither company has passed CPE, the next step of the ICANN process would have them attempt to resolve the contention set privately. Failing that, they would go to an ICANN last-resort auction.

Another possibility, an increasingly favored choice among CPE losers, would be an interminable series of ICANN process appeals and lawsuits.

Ombudsman trashes ICANN’s rejection of .gay “community”

Kevin Murphy, August 1, 2016, Domain Policy

ICANN’s outgoing Ombudsman fired a parting shot at his former employer last week with a scathing analysis of its rejection of .gay as a community gTLD.

ICANN should reject the decisions of two independent Economist Intelligence Unit panels, which found that Dotgay LLC’s application for .gay did not meet the strict definition of “community” under ICANN rules, LaHatte wrote.

“This is the time to recognise that even if the EIU evaluation did not achieve the appropriate number of points, that the community is real, does need protection and should be supported,” he wrote.

His recommendation appears on his personal blog, dated July 27, the same day his contract with ICANN expired. It has not appeared on the official ICANN Ombudsman blog.

The EIU is responsible for conducting Community Priority Evaluations for applicants who claim to be representing communities.

Its decisions have been unpredictable and to a degree inconsistent, but both times its panels looked at Dotgay’s .gay, they scored the application lower than the 14 out of 16 points required to pass the CPE.

Winning a CPE generally means you get the gTLD in question. Losing means you have to go to auction against competing applicants.

In the case of .gay, the other applicants are Top Level Design, Minds + Machines and Rightside.

Dotgay failed both times because its stated community — which includes straight people — does not match the string “gay”.

Nobody’s ever said that there’s no such thing as a gay community, they’ve just said there’s no such thing as a gay Community (big C) as defined by Dotgay LLC.

LaHatte’s recommendation does not delve into the nitty-gritty of the scoring process, but seems to criticize the system — and the flawed Request for Reconsideration system Dotgay has thrice unsuccessfully invoked — as “inadequate”. He wrote:

The role of the ombudsman is to deal with issues of fairness, and this encompasses issues such as respect for diversity and support for all parts of our community. Sometimes the mechanisms which we have put together to resolve challenges are simply inadequate…

But the issue that I want to emphasise in this recommendation is that it has always been open to ICANN to reject an EIU recommendation, especially when public interest considerations are involved. What is needed is to take a bold approach and demonstrate to the ICANN community, but also much more widely, to the world of Internet users, that ICANN has a commitment to principles of international law (see Article IV of the Bylaws), including human rights, fairness, and transparency.

The board will be very aware of the human rights initiatives undertaken in the light of the IANA transition and the careful evaluation of the accountability processes. But sometimes it is necessary to take a view which evaluates whether the decision taken corresponds with the bylaws and articles of incorporation. That view should be that ICANN supports the gay community and recognises that there is a community which requires protection and recognition, which has been marginalized, threatened and attacked, and which should be considered a genuine community notwithstanding the EIU recommendation.

He’s basically calling on ICANN’s board to cast aside the rules and previous practice in this particular instance and instead make a political statement, in my reading of the recommendation.

I don’t think ICANN will do that.

On a couple of occasions when Dotgay has suffered an ICANN-induced setback in the past, ICANN has put out statements reminding everyone that there will be a .gay, they only question is who runs it.

Because Dotgay filed a community application, it would be obliged to make .gay a restricted space. Its application talks about registrants having to be approved as eligible before they register.

But it also would have the strictest measures in place to address homophobia and harassment — something the other applicants may, but have not formally committed, to implement.

dotgay loses third .gay appeal

Kevin Murphy, July 1, 2016, Domain Services

Death warrant or portent of impending legal action?

dotgay LLC has lost its third attempt to get ICANN to reconsider tossing its application for community priority status in the fight for the .gay gTLD.

According to ICANN, on Sunday its Board Governance Committee threw out dotgay’s third Request for Reconsideration, an attempt to give the company an unprecedented third go at the Community Priority Evaluation process.

CPEs allow community gTLD applicants to avoid expensive auctions, but dotgay has lost two primarily on the grounds that its definition of community includes people who are not gay.

Its latest RfR was pretty weak, based on a technicality about which staffers at the Economist Intelligence Unit (which carries out the CPEs) were in charge of verifying its letters of community support.

The rationale for the BGC’s determination, which still needs to be rubber-stamped by the full ICANN board, has not been published yet.

But it seems from a blog post that ICANN now expects .gay to go to auction, where there are four competing applicants in total.

ICANN does not usually publish blog posts on RfR decisions, but in the .gay case it has been keen to avoid being accused of any motivation beyond a dogged pursuit of correct procedure.

So will dotgay go quietly? It remains to be seen.

While all new gTLD applicants had to sign a release promising not to sue ICANN, .africa applicant DotConnectAfrica sued earlier this year and managed to get a sympathetic judge who seems bent on allowing the case to go to trial.

The .web gTLD could go live in 2016

Kevin Murphy, April 27, 2016, Domain Registries

The new gTLD .web could be coming to the internet sooner than expected after two of the remaining barriers to delegation disappeared.

Following the withdrawal last week of an application for the plural .webs, an auction for .web could happen in the next couple of months, enabling a go-live date possibly in 2016.

.web, often considered the most desirable truly generic gTLD, has had a rough time of it in the 2012 ICANN new gTLD program.

There were seven applications for the string. Google, Web.com, Donuts, Radix, Afilias, Schlund Technologies, Nu Dot Co all applied.

The registrar Web.com (owner of Network Solutions, Register.com, et al) appears to be especially keen to get the domain, given that the string more or less matches its brand.

It perhaps should have been a straightforward auction shoot-out.

But, complicating matters, bespoke printing firm Vistaprint had filed two applications — one vanilla, one “community” based — for the plural version of the string, “.webs”.

Vistaprint runs a website development service called Webs.com. It’s the plural of the Web.com brand.

Web.com wasn’t happy about Vistaprint’s .webs applications, so it filed String Confusion Objections against both, arguing that .web and .webs were too confusingly similar to co-exist on the internet.

While there are now many examples of plurals and singulars living together (see .auto/s, .fan/s and .gift/s), the registrar won both of its SCO complaints, meaning Vistaprint’s two applications and the seven .web applicants were lumped together into the same contention set.

If two strings are in the same contention set, only one can survive to be ultimately delegated to the DNS.

Vistaprint appealed the SCO decisions, first with a Request for Reconsideration to the ICANN board (predictably unsuccessful) and then with an Independent Review Process complaint.

While the IRP was being mulled over, .web was in limbo.

The IRP was unsuccessful. The IRP panel ruled in October that ICANN had not violated its bylaws in accepting the SCO panel’s decision.

But it gave ICANN a nudge, suggesting that perhaps it could give Vistaprint leave to appeal the original SCO determinations via another mechanism.

In early March, the ICANN board proper decided that:

the Vistaprint SCO Expert Determination is not sufficiently “inconsistent” or “unreasonable” such that the underlying objection proceedings resulting in the Expert Determination warrants re-evaluation.

The board said that the .web/.webs contention set should be processed as normal; in other words: go to auction.

That removed the first barrier to the .web/.webs auction going ahead.

The second barrier was the fact that Visaprint had file two applications for .webs — one regular, one “community”.

By self-identifying as a “community”, Vistaprint qualified for the Community Priority Evaluation. A winning CPE means all competing applications — including the .web applications in this case — would be eliminated.

While the CPE process is far from perfect, I think the chances of Vistaprint winning would be pretty slim.

Perhaps Vistaprint agreed with me. Whatever the thought process, the company has withdrawn its “community” application. The withdrawal was reflected on the ICANN web site at the weekend, according to the little birds at DI PRO.

What this means is that the seven .web applications and Vistaprint’s remaining, non-community .webs application will be going to auction together.

It could be a private auction, where the proceeds are divvied up between the losers, or an ICANN “last resort” auction, where ICANN gets all the money.

Either way, the winning bidder is likely to pay a LOT of cash for their chosen string.

GMO Registry paid $41 million for .shop back in January. I’d be flabbergasted if .web wasn’t eight figures too.

If Vistaprint offers to pay more money for .webs than Web.com wants to pay for .web, Web.com will be eliminated from the race and Vistaprint will get .webs.

In that scenario, the remaining six .web applicants fight it out for control of the gTLD.

However, if Vistaprint loses against Web.com then all of the seven .web applicants fight it out at auction.

Depending on the identity of the winner and the timing of auctions and pre-delegation testing, it could slip into the root and possibly even become available before the end of the year.

That’s assuming no more surprises, of course.

UPDATE: This post originally incorrectly described the rules of the .web/.webs auction. It was updated with a correct explanation at 2120 UTC.

No, .kids isn’t a community either

Kevin Murphy, April 12, 2016, Domain Registries

DotKids Foundation has comprehensively lost is .kids Community Priority Evaluation.

The company’s CPE results came out at the weekend (pdf), showing a score of 6 out of the 16 available points, a long way short of the 14-point passing score.

Like other “community” new gTLD bids before it, .kids failed because the Economist Intelligence Unit panel decided that the application was an attempt to create a community rather than represent an existing one. It wrote:

The Panel determined that this application refers to a “community” construed to obtain a sought-after generic word as a gTLD string, and that the application is attempting to organize the various groups mentioned in the documentation through a gTLD.

The application scored a big fat 0/4 on the question of whether the community exists and, as a knock-on effect, another 0/4 on whether the .kids string represents the community.

It picked up 3/4 for its registration policies and 3/4 on community endorsement.

The CPE failure means DotKids will have to face rival Amazon at auction, where one imagines the not-for-profit foundation will have a hard time winning.

ICANN’s CPE pipeline currently only has one active application, where Merck KGaA is fighting to avoid an auction with rival Merck Registry Holdings, Inc.

The latter .merck, and Vistaprint’s .webs application, have both also been invited to CPE.