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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.

dotgay has a third crack at .gay appeal

Kevin Murphy, February 19, 2016, Domain Policy

dotgay LLC has filed another appeal with ICANN, hoping to get its community-based .gay application back in the race.

It submitted a third Request for Reconsideration (pdf) this week, arguing on a technicality that its bid should have another Community Priority Evaluation.

The company has already lost two CPEs based on the Economist Intelligence Unit CPE panel’s belief that its definition of “gay” is too broad because it includes straight people.

It’s also lost two RfRs, which are adjudicated by ICANN’s Board Governance Committee.

The newest RfR addresses not the core “not gay enough” issue, but a procedural error at the EIU it believes it has identified.

According to the filing, dotgay is in possession of emails from an EIU employee who was responsible for verifying some of the dozens of support letters it had received from dotgay’s backers (generally equal rights campaign groups).

The company argues, citing the BGC’s own words, that this employee was not one of the official CPE “evaluators”, which means the EIU broke its own rules of procedure:

considering the fact that the CPE Process Document – which is considered by the BGC to be “consistent with” and “strictly adheres to the Guidebook’s criteria and requirements”, it is clear that the verification of the letters should have been performed by an independent evaluator… and not by someone “responsible for communicating with the authors of support and opposition letters regarding verification in the ordinary course of his work for the EIU”.

It wants the CPE to be conducted again, saying “it is obvious that the outcome of a process is often, if not always, determined by the fact whether the correct process has been followed”.

It’s difficult to see how the outcome of a third CPE, should one be undertaken, could be any different to the first two. Who verifies the support letters doesn’t seem to speak to the reason dotgay hasn’t scored enough points on its other two attempts.

But the alternative for the company is an expensive auction with the other .gay applicants.

Another CPE would at least buy it time to pile more political pressure on ICANN and the EIU.

DotMusic fails the “not gay enough” community test

Kevin Murphy, February 11, 2016, Domain Policy

DotMusic’s Community Priority Evaluation for the .music gTLD has failed, after the CPE panel decided the company was just trying to exploit ICANN rules to get its hands on a valuable string.

In a decision (pdf) published last night, the company score 10 of the available 16 points, four points shy of a passing score. The panel wrote:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. As previously stated, the community as defined in the application does not have awareness and recognition among its members. Failing this kind of “cohesion,” the community defined by the application does not meet the [Applicant Guidebook’s] standards for a community.

The CPE fell apart at the first hurdle, with the panel awarding 0 out of 4 points on the “community establishment”.

It essentially ruled that the “music community” does not exist, despite frequent statements to the contrary from DotMusic and its legion of supporters.

DotMusic appears to have been condemned for the same reason as dotgay, the failed .gay community applicant.

While DotMusic and dotgay lost points on different criteria, their undoing in both cases was attempting to define a community that their respective panels judged overly broad.

DotMusic’s application included a list of 40 or more North American Industry Classification System categories of industry that it said were within its music community.

However, where it said “music lawyers” or “music accountants”, it referred to the NAICS codes for just “lawyers” and “accountants”, the panel noted.

This seems to have been responsible to a large extent for it losing its points on the “community establishment” criteria.

The CPE panel could said that while its proposed community members exhibited a “commonality of interest” there was no evidence of “cohesion” among them.

Further, no one preexisting organization could be said to cover the interests of the over-broad community as defined. The panel wrote:

There should, therefore, be at least one entity that encompasses and organizes individuals and organizations in all of the more than 40 member categories included by the application. Based on information provided in the application materials and the Panel’s research, there is no entity that organizes the community defined in the application in all the breadth of categories explicitly defined.

A knock-on effect of this was that DotMusic also dropped a point on the “community endorsement” criteria, despite having hundreds of letters of support from members of the music industry.

It dropped a further point because the string “music” only “identifies” but does not “match” its proposed community.

DotMusic will perhaps not take comfort from the fact that its losing score of 10 comprehensively beat rival community applicant Far Further by seven points.

With both community applications ruled invalid, .music should now head to auction, where there are eight applicants in total.

But .music is a bit of a passion project for DotMusic CEO Constantine Roussos — one of the few applicants who publicly announced his intention to apply long before it was possible to do so — so I think an appeal through the ICANN process is inevitable.

While DotMusic has support from powerful music industry figures, I don’t think that support extends to the kind of financial backing that will let it win a seven-to-eight-figure auction.

Don’t expect to see .music in your registrar storefront any time soon.