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ICM reveals .xxx launch dates, extends sunrise

Citing demand, ICM Registry has lengthened the .xxx sunrise period, which begins September 8, by three weeks. It will now end October 28, running for 50 days.

The new deadlines apply to all three sunrises, which will run concurrently.

Sunrise A-T – for porn publishers with trademarks.

Sunrise A-D – for porn publishers with matching domains in other TLDs.

Sunrise B – for anyone outside the porn business who wants to “turn off” their trademark in .xxx to prevent cybersquatting.

Successful Sunrise B applicants will see their chosen domains resolve to a standard information page explaining that the domain is not available for registration.

Post-launch, anyone can register a non-resolving domain that returns an NXDOMAIN response, but they’ll have to pay for it annually. Sunrise B applicants pay a one-time fee.

If applicants from Sunrise A and Sunrise B both apply for the same domains, the porn applicant will be given precedence, although they will be warned about possible trademark infringement.

If more than one Sunrise A applicant applies for the same domain, the fight will be taken to an auction, managed by Pool.com. Auction rules will be published at a later date.

The sunsrise is outlined in a policy document (pdf) ICM published on its web site today that sets out the rules for its pre-launch period.

The company has not yet announced details of its Charter Eligibility Dispute Resolution Procedure, nor its Rapid Evaluation Service, though it has said it expects them to cost between $750 and $1,500, depending on what deals it can come to with dispute resolution providers.

The Rapid Evaluation Service, previously referred to as “rapid takedown” will be an interesting one.

It’s expected to be a little like the Uniform Rapid Suspension process ICANN’s new gTLDs will have to implement, except it will only take about 48 hours to take down an obviously cybersquatted domain.

ICM says it expects to publish these policies before the sunrise begins.

Landrush is now expected to run November 8 until November 25. General availability will begin December 6.

Can ICANN make a trademark deal with the GAC?

Kevin Murphy, May 24, 2011, Domain Policy

The ICANN board and its Governmental Advisory Committee have yet to reach agreement on how to protect trademarks in new top-level domains, following their Friday teleconference.

The two parties are still stuck on at least four trademark protect issues, according to sources familiar with the talks, and the GAC is due to provide updated written advice to ICANN tomorrow.

Two of the areas still outstanding were previously marked “1A” in ICANN documents, meaning ICANN’s board believed the GAC’s concerns had already been resolved.

Trademark Claims

Details of the proposed Trademark Clearinghouse database and the related Trademark Claims service are still the subject of debate.

Trademark Claims provides an alert to a trademark holder if somebody tries to register their trademark in a new gTLD. The would-be registrant also gets a warning that they may be infringing rights.

As the Applicant Guidebook stands today, new gTLD managers will have to operate the service for the first 60 days of general availability, but the IP lobby and the GAC believe it should be permanent.

The sticking point for ICANN, as I understand it, is that there’s already a commercial market for brand protection services that have some overlap with Trademark Claims.

Several companies, such as MarkMonitor, CSC and Melbourne IT, offer services that alert customers when somebody appears to infringe their brand in a domain name.

If Trademark Claims ever made it into com and other gTLDs, it could effectively monopolize the brand watch services market. The Clearinghouse(s) will be ICANN contractors, after all.

Remember what happened when VeriSign announced its Wait List Service, which promised to effectively take over the existing domain back-order services market? It wasn’t pleasant.

Proof of Use

ICANN has already dropped its requirement for “substantive review”, but it still requires trademark holders to provide “proof of use” before they can add their marks to the Clearinghouse.

Without proof of use, companies will not be able to file Uniform Rapid Suspension complaints or defensively register their brands during new gTLD Sunrise periods.

The IP lobby and the GAC want this requirement scrapped. Any trademark of national effect should be enforceable using these rights protections mechanisms, they say.

One of the justifications is that some trademarks are obtained before the owner actually launches the product or service they pertain to.

If ICANN were to make these changes, there’s a good chance that bulk-registering bogus trademarks in loose jurisdictions may become an effective strategy for gaming the second level in new TLDs.

This has happened before, such as in .eu, and that wasn’t pleasant either.

Brand+Keyword

The current draft of the Applicant Guidebook only allows exact trademark matches into the Trademark Claims and Sunrise mechanisms.

But the the IP crowd (and, again, the GAC) thinks non-exact matches should be allowed in. In the .com space, the majority of cybersquatting nowadays is of course either a brand+keyword or a typo.

Millions are being needlessly spent on UDRP complaints over typos and brand+keyword domains, and the trademark lobby don’t want to risk having to spend even more.

But there could be implementation problems. Both types of variant could throw up lots of false positives during the Claims service, for example, creating conflicts where there aren’t any.

An automated system designed to scare off typosquatters could catch the generic domain goggles.tld as an infringement of Google’s trademark, to use an obvious example.

If brand+keyword Sunrise claims were allowed, holders of trademarks in generic terms could find themselves with a lucrative payday.

Any company that has a trademark on words such as “free”, “live”, “sexy” or anything that could act as a cool prefix, could have a field day during a Sunrise period.

Uniform Rapid Suspension

I understand a sticking point here continues to be the burden of proof required to make a URS case stick.

It’s currently “clear and convincing evidence”, but the IP lobby and the GAC want it reduced to “preponderance of evidence”, a lower burden.

To non-lawyers, the difference may seem trivial. Both standards are used in civil cases in many countries, but one’s a bit strong than the other.

“Preponderance of evidence” basically means “more likely true than not”, whereas “clear and convincing”… well, it’s a bit stronger than that.

The choice of burdens will have repercussions for years to come. Registrants in new gTLDs will know what they’re getting into, but if URS ever makes it into .com…

The Road to Singapore

It’s less than a month before ICANN’s next major meeting, and only a week until it plans to publish the next version of the Applicant Guidebook.

The ICANN board is due to meet face-to-face (and presumably in public) with the GAC on the first day of the meeting, June 19, but it seems that talks will be ongoing behind the scenes until then.

A great deal of progress has been made, but with complex issues still apparently unsettled (and there are more unresolved issues unrelated to trademarks) it’s little wonder that some are now wondering whether ICANN is as confident as it once was that June 20 is Guidebook Approval Day.

Don’t rush to defensively register .xxx domains

Trademark owners trying to figure out how to protect their brands in the .xxx top-level domain should wait for ICM Registry to reveal its full suite of anti-cybersquatting measures before deciding whether to defensively register a large portfolio of domains.

With registrar prices for sunrise trademark blocks currently hovering around the $300 mark, an especially aggressive enforcement strategy could rack up six-figure bills for large brand holders.

But it may turn out to be more cost-effective to use ICM’s post-launch enforcement mechanisms to fight cybersquatting.

So far, all we’ve seen from ICM is a white paper, prepared by its partner IPRota, that outlines the policies that will be in place during the pre-launch sunrise period.

But the company plans to have some of the most Draconian post-launch IP rights protections mechanisms of any new TLD to date.

If, as a registrant, you think the Uniform Rapid Suspension policy ICANN plans to enforce on new TLDs is tough, you’ll likely have a bigger problem with Rapid Takedown.

Rapid Takedown is expected to be modeled on the Digital Millennium Copyright Act. It will use UDRP experts, but will only take 48 hours to suspend a domain name. ICM has described it like this:

Rapid Takedown
Analysis of UDRP disputes indicates that the majority of UDRP cases involve obvious variants of well-known trademarks. ICM Registry does not believe that the clearest cases of abusive domain registration require the expense and time involved in traditional UDRP filings. Accordingly, ICM Registry will institute a rapid takedown procedure in which a response team of independent experts (qualified UDRP panelists) will be retained to make determinations within 48 hours of receipt of a short and simple statement of a claim involving a well-known or otherwise inherently distinctive mark and a domain name for which no conceivable good faith basis exists. Such determinations will result in an immediate termination of resolution of the domain name, but will not prejudice either party’s election to pursue another dispute mechanism. The claim requirements will be modeled after the Digital Millennium Copyright Act.

It remains to be seen how much this will cost complainants (assuming there is a cost), and there are other unanswered questions such as the duration of the suspension, the ability of the complaint to have the domain transferred and the registrant’s right of appeal.

But it’s clear that trademark holders will very likely have cheaper options than UDRP, which can cost as much as $1,500 for a single domain name.

In addition, ICM plans to permanently ban cybersquatters that are “found to have repeatedly engaged in abusive registration”. Abusers will lose their .xxx portfolios, even their non-infringing domains, and will not be able to register any more.

Combined with Rapid Takedown, and the high price of .xxx domains ($75 a year minimum so far), this will likely make cybersquatting a much less attractive proposition in .xxx than .com.

Trademark holders should wait for their full range of options to be revealed before panicking about high sunrise fees.

It may turn out to be more cost-effective to block just a few primary brands, and leave enforcement of other brands to post-launch mechanisms.

Three strikes UDRP rule worries Demand Media

Kevin Murphy, May 16, 2011, Domain Policy

Demand Media and the Internet Commerce Association have called for ICANN to drop the “three strikes and you’re out” ban on applying for new top-level domains.

In the current version of ICANN’s Applicant Guidebook, if you’ve lost three UDRP cases in the last four years you’re considered a cybersquatter and effectively barred from applying for a new TLD.

It’s not entirely clear, but it is quite possible that this provision may capture Demand Media and Go Daddy, which, via subsidiary companies, have lost several UDRP complaints.

In comments filed with ICANN yesterday, Demand senior vice president Jeff Eckhaus said that a simple “three strikes” benchmark does not prove a pattern of cybersquatting:

losing a few contested UDRP cases in what amounts to a tiny percentage of their total domain name portfolio certainly doesn’t seem to constitute a “pattern” as most people would define the term

by all reasonable standards, it is difficult to conclude that an entity or an individual has engaged in a history/pattern of cybersquatting when they own hundreds or thousands of domain names and have lost a few UDRP or similar proceedings.

The ICA, which represents high-volume registrants, also has a problem with the rule. Principal Phil Corwin wrote ICANN:

We continue to believe that the “three strikes” criteria is too inflexible and that applicant evaluation criteria should take into account the total size of an applicant’s domain portfolio as well as the percentage of adverse UDRP decisions rendered against them in comparison to all UDRP proceedings they have been involved with.

Demand also argues that three strikes is “extremely broad standard that we believe will unintentionally disqualify otherwise qualified applicants.”

That strikes me as quite a weak argument, which could be equally applied to any of the background checks in the Guidebook. A murder conviction will also “disqualify otherwise qualified applicants”.

I’m not sure it’s “unintentional” in either case. If you work from the assumption that ICANN expects Demand and other speculators to successfully apply for new TLDs, it is. If you assume it’s designed to make their lives more difficult, it isn’t.

But Corwin noted in his comments that ICANN can waive the ban in “exceptional circumstances”, and said he suspects this could be used to allow large registrars to pass the background checks.

In any event, as Andrew Allemann has pointed out at Domain Name Wire, the way the Guidebook is phrased there may well be a loophole that would allow Demand and others to slip through.

Go Daddy, which DNW also reports could be affected by the rule, does not appear to have filed any comments on the latest Applicant Guidebook yet.

Trademark lobby makes final new gTLD demands

With ICANN’s latest and potentially last call for comment on its new top-level domains program just hours away from closing, the arguments are shaping up along familiar lines.

Trademark protection is unsurprisingly still center stage, with loud calls for the Applicant Guidebook’s rights protection mechanisms to be amended more favorably to brand owners

Meanwhile, many of those strongly in favor of the new gTLD program launching soon have submitted more subdued, concise comments, merely urging ICANN to get a move on.

While there are still some fringe opinions, many within the intellectual property community are on the same page when it comes to rights protection mechanisms.

URS

The Uniform Rapid Suspension policy, which enables trademark holders to relatively quickly shut down obvious cases of cybersquatting, comes in for particular attention.

In the latest draft of the URS, as well as its sister policy, the Trademark Clearinghouse, brand owners have to present “proof of use” for the trademarks which they want to enforce.

The International Trademark Association, the Intellectual Property Constituency and others want this provision eliminated, saying it is inconsistent with many national trademark laws.

The also want the burden of proof lowered from the “clear and convincing evidence” standard, and want to expand the “loser pays” model, to provide an economic disincentive to cybersquatting.

In the latest version of the Applicant Guidebook, ICANN introduced a system whereby a cybersquatter has to pay the cost of a URS they lose, but only if the case comprises over 25 domains.

INTA, the IPC and others want this reduced to something like five domains, on the grounds that 25 is too high a bar and may actually encourage larger-scale squatting.

IP Claims

They also want the Clearinghouse’s IP Claims service, which serves a warning to registrants when they try to register potentially infringing domains, expanded beyond exact-match strings.

Currently, you’ll receive a warning about possible infringement if you try to register lego.tld or foxnews.tld, but not if you try to register legostarwars.tld or foxnewssucks.tld.

Many commenters want this changed to also include brand+keyword domains (fairly easy to implement in software, I imagine), or even typos (not nearly so easy).

This makes sense if you assume that cybersquatting patterns in new TLDs mirror those in .com, where brand+keyword squatting comprise the majority of UDRP cases.

But if you look at the about 100 UDRP cases to be filed so far in .co, it seems that brand-only cybersquatting is clearly the order of the day.

Depending on how this was implemented, it could also create a “chilling effect” whereby IP Claims notices are sent to legitimate registrants.

It seems likely that with a brand+keyword approach, if someone tried to register legourmetchef.tld, they could wind up with a notice that the domain infringes the Lego trademark.

The trademark lobby also wants this IP Claims service extended beyond the first 60 days of a new TLD’s life, on the grounds that the cybersquatting risk does not disappear after a TLD launches.

According to submissions from existing TLD registries and potential applicants, this could add to the costs of running a TLD, increasing prices for registrants.

GAC

Most of these demands are not new. But in many cases, the IP lobby now has the support of the ICANN Governmental Advisory Committee.

The GAC and ICANN are due to meet by teleconference this Friday, ostensibly for their “final” consultation before ICANN approves the Guidebook a little over a month from now.

But with the US and Europe now strategically aligned, it seems likely that ICANN will find itself under more pressure than ever before to concede to the demands of trademark holders.

How to protect your trademark in .xxx

ICM Registry today revealed the details of its policies for trademark holders that want to defensively register or block their .xxx domain names.

The company plans to kick off its sunrise period in early September. It will last 30 days, and will be followed a few weeks later by a 14-day landrush.

The date for general availability has not been set in stone, but is likely to be in early December.

Two sunrise periods will run concurrently. Sunrise A is for the adult entertainment industry, those who want to actually set up porn sites at .xxx domains. Sunrise B is for everyone else.

ICM is trying something new with .xxx, in response to non-porn brands that are worried about cybersquatting and also don’t want to actually own a .xxx domain name.

Under Sunrise B, non-porn trademark owners can pay a one-time fee to have their brand essentially turned off in .xxx.

These domains will all resolve to a standard placeholder page, informing visitors that the domain has been blocked.

Because the domains resolve, they will usually not be picked up by any ISP system whereby non-existent domains show advertisements instead of an error message.

The fees we’ve seen so far from registrars for this service range from $299 to $648, but ICM seems to think $200 to $300 is more realistic.

The blocks are expected to last forever, but because ICM’s registry agreement with ICANN only lasts for 10 years, it can only guarantee the blocks for that amount of time.

So while it looks like a $30 to $65 annual fee, over the lifetime of the TLD it may well steadily approach a negligible sum, if you’re thinking super-long-term.

To qualify for Sunrise B, you need a nationally registered trademark for the exact string you want to block. To use an example, Lego could block lego.xxx, but not legoporn.xxx.

ICM is currently planning a post-launch block service for brands that emerge in future, but it probably won’t have the flat one-time pricing structure, due to the registry’s own annual per-domain fees.

If you’re in the porn business, Sunrise A allows you to claim your brand if you have a trademark that is registered with a national effect.

It will also enable the “grandfathering” of porn sites in other TLDs that do not have a registered trademark. If you own example.com or example.co.uk, you’d qualify for example.xxx.

Lego could, for example, register legoporn.xxx using Sunrise A, because it already owns legoporn.com, but only if it actually intended to publish Lego-based pornography.

If it were to register legoporn.xxx in this way, and use it for non-porn purposes, it would be at risk of losing the domain under ICM’s planned Charter Eligibility Dispute Resolution Policy (CEDRP).

In the event that a Sunrise A applicant and a Sunrise B applicant both apply for the same string, the Sunrise A (porn) applicant will be given the option to withdraw their application.

If they don’t withdraw, they will be able to register the domain, trumping their non-porn rival.

Two Sunrise A applicants gunning for the same .xxx domain will have to fight it out at auction.

It’s probably worth mentioning, because many cybersquatters seem to think it’s a .com-only deal, that the UDRP does of course also apply to .xxx domain names.

If you own, for example, the string “virgin” in another TLD, and use it for a porn site, you will actually be able to use it in Sunrise A to secure virgin.xxx, but you risk losing it to Virgin in a UDRP.

If you’ve “pre-registered” a domain with ICM already, it doesn’t seem that you’ll have any notable advantages during sunrise or landrush.

The registry plans to email these pre-registrants soon with instructions. More info on the new ICM site: XXXempt.com.

The sunrise policies were devised by IPRota.

ICANN gets Boing-Boinged over URS

Boing-Boing editor Cory Doctorow caused a storm in a teacup yesterday, after he urged his legions of readers to complain to ICANN about copyright-based domain name seizures and the abolition of Whois privacy services in .net.

Neither change has actually been proposed.

The vast majority of the comments filed on VeriSign’s .net contract renewal now appear to have been sent by Boing-Boing readers, echoing Doctorow’s concerns.

Doctorow wrote: “Among the IPC’s demands are that .NET domains should be subject to suspension on copyright complaints and that anonymous or privacy-shielded .NET domains should be abolished.”

Neither assertion is accurate.

Nobody has proposed abolishing Whois privacy services. Nobody has proposed allowing VeriSign to seize domain names due to copyright infringement complaints.

What has happened is that ICANN’s Intellectual Property Constituency has asked ICANN to make the Uniform Rapid Suspension policy part of VeriSign’s .net contract.

URS is a variation of the long-standing UDRP cybersquatting complaints procedure.

It was created for the ICANN new gTLD Program and is intended to be cheaper and quicker for trademark holders than UDRP, designed to handle clear-cut cases.

While the URS, unlike UDRP, has a number of safeguards against abusive complaints – including an appeals mechanism and penalties for repeat reverse-hijacking trolls.

But the domainer community is against its introduction in .net because it has not yet been finalized – it could still be changed radically before ICANN approves it – and it is currently completely untested.

The IPC also asked ICANN and VeriSign to transition .net to a “thick” Whois, whereby all Whois data is stored at the registry rather than with individual registrars, and to create mechanisms for anybody to report fake Whois data to registrars.

Not even the IPC wants Whois privacy services abolished – chair Steve Metalitz noted during the Congressional hearing on new gTLDs last week that such services do often have legitimate uses.

The 10 dumbest moments from that new TLDs Congressional hearing

Kevin Murphy, May 9, 2011, Domain Policy

The US House of Representatives last week held an oversight hearing into ICANN’s new top-level domains program.

As I may have mentioned, the House Subcommittee on Intellectual Property, Competition and the Internet hearing was set up to be pretty one-sided stuff.

It was clear from the start that ICANN senior vice president Kurt Pritz was going to have his work cut out, given how the panel of five other witnesses was loaded against him.

But as the hearing played out, it quickly became apparent that the real challenge lay not with his fellow witnesses — most of whom were either sympathetic to ICANN from the outset or occasionally forced to leap to its defense — but with the members of the Subcommittee.

While some Congressmen had merely bought into the positions of the trademark lobby, others were so far out of their depth you couldn’t even see the bubbles.

Here, in purely my personal opinion and in no particular order, are the Top 10 Dumbest Moments.

1. Chairman Goodlatte buys the FUD

Subcommittee chairman Bob Goodlatte’s opening statement appeared to have been written with significant input from the intellectual property lobby.

At the very least, he seemed to have accepted some of the more extreme and questionable positions of that lobby as uncontroversial fact.

Two examples:

With every new gTLD that is created, a brand holder will be forced to replicate their internet domain portfolio.

The roll-out of these new gTLDs will also complicate copyright enforcement, making it harder and more costly to find and stop online infringers.

He also, on more than one occasion, advocated a “trademark block list” – the Globally Protected Marks List, an idea even the ICANN Governmental Advisory Committee has now rejected.

2. Whois privacy services are Bad

A couple of Congressmen and a couple of witnesses stated that Whois accuracy needs to be enforced more stringently by ICANN, and that Whois proxy/privacy services help criminals.

I took the liberty of doing Whois queries on the official campaign web sites of all 25 members of the Subcommittee, and found that 11 of them use privacy services.

That’s 44% of the committee. Studies have estimated that between 15% and 25% of all registrations use proxy/privacy services, so Congressmen appear to be relatively hard users.

Here’s the list:

Rep. Steve Chabot, Rep. Darrell Issa, Rep. Mike Pence, Rep. Jim Jordan, Rep. Ted Poe, Rep. Jason Chaffetz, Rep. Ben Quayle, Rep. Ted Deutch, Rep. Jerry Nadler, Rep. Zoe Lofgren, Rep. Tim Griffin.

It also turns out that dei.com, the domain name Rep. Issa bragged about owning during the hearing, has phoney data in its Whois record.

Issa Whois

You can report him to ICANN here, if you’re so inclined.

It’s likely, of course, that these domains were registered by their staff, but I think we’re allowed to hold Congressmen to at least the same high standard they expect of the rest of us.

3. New TLDs will help porn typosquatters

Mei-lan Stark, an IP lawyer from Fox and the International Trademark Association, used the recent UDRP case over myfox2detroit.com as an example of abuse that could happen in new TLDs.

The domain directed visitors to a porn-laden link farm and was rightly deemed by WIPO to be confusingly similar to myfoxdetroit.com, the genuine Fox 2 Detroit site.

But, as Pritz pointed out later in the hearing, myfox2detroit.com is a .com domain. It’s not in a “new” TLD.

Fox, it transpires, has not registered the string “myfoxdetroit” in any other gTLD. Neither have the cybersquatters. It’s clearly not a brand that is, or needs to be, on Fox’s defensive registrations list.

That said, the “typo” myfoxdetroit.co, along with several other Fox .co domains, has been actually cybersquatted, so maybe Stark had a point.

4. Say Watt?

Rep. Mel Watt, the Subcommittee’s ranking member, couldn’t get a handle on why the pesky foreigners aren’t able to use their own non-Latin scripts in existing gTLDs.

I was beating my head against my desk during this exchange:

[After Stark finished explaining that she thinks IDN gTLDs are a good idea]

Watt: So, you think other languages. And that can’t be done in the .com, .net lingo as well?

Stark: Not today. Not the way the system is currently.

Watt: Yeah, well, not the way it’s done today, but what’s the difference? You all keep talking about innovation. Changing somebody’s name is not innovation. Allowing somebody to use a different name is not innovation. That’s not adding anything new to life that I can tell. Mr DelBianco, Mr Metalitz, help me here.

DelBianco: You’re right, just adding a new label to an existing page or content doesn’t really truly create innovation. However, 56% of the planet cannot even type in the domain name…

Watt [interrupting]: That’s not a function of whether you call something “Steve” or whether you call it “net” is it? You can put the Steve in front of the net, or you can put it dot-net, dot-Steve, dot-Watt, Steve, Steven…. you haven’t really created anything new have you?

DelBianco: You haven’t there, but 56% of our planet can’t use our alphabet when they read and write…

Watt [interrupting]: Tell me how this is going to make that better as opposed to what we have right now.

DelBianco: For the first time an Arabic user could type an entire email address in all Arabic, or a web site address in all Arabic.

Watt [interrupting]: Why can’t the current system evolve to do that without new gTLDs?

To Watt’s credit, he did put the witnesses on the spot by asking if any of them were opposed to new gTLDs (none were), but by the time his five minutes were up he was in serious danger of looking like a stereotypically insular American politician.

5. New TLDs are like T-shirts (or something)

Almost everything the NetChoice Coalition’s Steve DelBianco said, whether you agree with his positions or not, was sensible.

But when he started producing props from under the table, including one of the bright yellow custom “TLD-shirts” that AusRegistry International has been printing at recent ICANN meetings, I was giggling too hard to follow his train of thought.

Apparently the new TLDs program is like a T-shirt printing machine because, well… a T-shirt printing machine is more complicated than a label maker, which was the visual simile DelBianco used last time he appeared before the Subcommittee.

It was fun to see Congressmen treated like five-year-old kids for a minute. God knows some of them deserved it.

6. New TLDs will cost Fox $12 million

Stark stated that Fox has about 300 trademarks that it will need to enforce in new TLDs. Given ICANN has predicted 400 new TLDs, and estimating $100 per defensive registration, she “conservatively” estimated that Fox will have to pay $12 million to protects its marks in the first round.

Really?

The same ICANN study that estimated 400 applications being filed in the first round also estimated that as many as 200 of them are likely to be “.brand” TLDs in which Fox will not qualify to register.

A substantial proportion of applications are also likely to have a “community” designation and a restricted registrant policy that, in many cases, will also exclude Fox.

Does Fox really also need to register 300 brands in every city TLD or linguistic TLD that will be approved? Does Fox News broadcast in Riga? Does it have a Basque language TV station?

Not even World Trademark Review was convinced.

7. China is going to take over the internets

The Subcommittee spent far too much time talking around this meme before deciding that China is a sovereign nation that can do pretty much whatever it wants within its own borders and that there’s nothing much a House committee can do about it.

8. Literally everything that came out of Rep. Issa’s mouth

Former car alarm entrepreneur Darrell Issa talked confidently, as if he was the guy on the committee with the geek credentials, but pretty much everything he said was witless, impenetrable waffle.

He started with the premise that it costs a “fraction of a fraction of a fraction of a fraction of a penny” to route traffic to an IPv6 address (why this is relevant, he didn’t say), then asked:

Why, when I go to Go Daddy, do I have to pay between $10 and $10,000 for a name and not from a tenth of a cent to 10 cents for a name?

Why in the world are there so many reserved [ie, registered] names? If I want a good name from Go Daddy… the good names, that I might want, have been already pre-grabbed and marketed in an upward way, higher. Why is it that they’re not driven down? Real competition would imply that those names are driven down to a penny for a user and prohibited from being camped on in order to resell.

Issa is a Republican, so I was quite surprised to hear him apparently advocate against the free market and the rule of supply and demand in this way, and with such a poor grasp of the economics.

Issa’s premise that it costs an imperceptible fraction of a cent to resolve a domain may be true, but only if you’re talking about a single resolution. VeriSign alone handles 57 billion such queries every day.

It adds up. And that’s just resolution, ignoring all the costs carried by the registries and registrars, such as payment processing, security, marketing, Whois (and, in the case of Issa’s domains, Whois privacy and accuracy enforcement), paying staff, rent, facilities, hardware, bandwidth…

Pritz told Issa as much, but he didn’t seem interested in the answer. He instead turned to CADNA’s Josh Bourne, to ask a meandering question that, after listening to it several times, I still don’t understand.

9. Rod Beckstrom gets paid millions

Rep. Maxine Waters was very concerned that ICANN CEO Rod Beckstrom has a salary of over $2 million, “guaranteed”.

She flashed up a copy of what I believe was probably Mike Berkens’ The Domains article about ICANN salaries, from early 2010, but she clearly hadn’t read beyond the headline.

Beckstrom’s salary is $750,000 per annum. He can (and does) get a bonus if he hits his undisclosed performance targets, but it still adds up to less than $1 million a year and pales in comparison to what he’s probably going to earn when he leaves ICANN.

As Berkens accurately reported, Beckstrom has a three-year contract, so he gets a minimum of $2.2 million in total over the period he’s employed as ICANN’s CEO.

People can (and do, continually) question whether he’s earning his money, particularly when he does things like not turning up to Congressional hearings, but his salary is not set at anywhere near the level the Subcommitee heard.

10. This is so important we need more hearings (btw, sorry I’m late)

Several Congressmen called for further hearings on new gTLDs. They’re shocked, shocked, that ICANN is considering doing such a thing.

Some of those calling for further scrutiny weren’t even in the room for much of the hearing, yet saw fit to decree that the subject was so important that they needed more time to investigate.

Whether this turns out to be just more political theater remains to be seen.

ICANN brings “loser pays” to domain disputes

Kevin Murphy, April 16, 2011, Domain Registries

ICANN has significantly strengthened brand-owner protections in new top-level domains by proposing, amongst other things, a new “loser pays” model for some cybersquatting disputes.

The Uniform Rapid Suspension process, which is designed to give trademark owners a quick, cheap way to take down obvious examples of cybersquatting, may now occasionally carry a response fee.

According to ICANN’s newly revised Applicant Guidebook, which was published early this morning:

A limited “loser pays” model has been adopted for the URS. Complaints listing twenty-six (26) or more disputed domain names will be subject to an Response Fee which will be refundable to the prevailing party. Under no circumstances shall the Response Fee exceed the fee charged to the Complainant.

In other words, if a somebody registers more than 25 domains that appear to infringe upon the trademarks of a single company, they will have to pay a few hundred dollars, refundable, if they want to defend their case. Judging from UDRP history, this will likely apply to very few people.

The number 25 comes from the May 2009 report of ICANN’s Implementation Recommendation Team, which devised many of the new gTLD program’s rights protection mechanisms.

This change is one of several made in the new Guidebook, addressing concerns raised by the Governmental Advisory Committee, which had consulted closely with the IP lobby.

The GAC didn’t get everything it wanted, however. It had asked for repeat cybersquatters to lose their right to respond under the URS, but ICANN declined, citing the need for due process.

But the Guidebook does now also require new TLD registry operators to offer two types of rights protection mechanism during their launch phase, as the GAC had requested.

Whereas earlier drafts mandated either a Trademark Claims service or a Sunrise period, now registries will have no choice: they have to offer both at a minimum.

The Trademark Claims services notifies registrants if they try to register a domain name that matches a trademark registered in a central Trademark Clearinghouse.

The registrant will have to certify that they’re not infringing any rights before they get the domain. If they do register it, the affected trademark holder will receive a notification that the domain has been registered and can choose to take action such as filing a URS claim.

The idea behind the service is to deter cybersquatters, possibly reducing brand owners’ costs from having to defensively register their names in all new TLDs.

The Sunrise period, which is now also mandatory, is not entirely dissimilar to the sunrise periods we’ve come to expect from new TLD launches over recent years.

The new Guidebook states that the Trademark Claims service must be offered for at least 60 days after a new TLD enters general availability and the Sunrise must be at least 30 days before.

The fact that both services are now mandatory has helped ICANN address the thorny question of what should constitute a valid trademark.

Earlier drafts of the Guidebook required trademarks to have been subject to “substantive review” – a check by a national authority that the trademark is for real and in use.

The worry was that speculators could game the system by picking up large numbers of trademarks in countries that give them away like candy. It’s happened before.

But the review requirement was criticized by the GAC and others as it excluded trademarks in much of the world outside of the US.

In response to these criticisms, ICANN has removed the reference to substantive review. Instead, the yet-to-be-decided manager of the Trademark Clearinghouse will be given the task of validating that each trademark submitted is legit.

Companies need only submit a declaration and a single piece of evidence of use in order to get into the Clearinghouse, thus enabling them to partake of the Sunrise.

No such validation will be required in order to participate in the Trademark Claims service, though brand owners will need to be listed in the Clearinghouse for both mechanisms.

Evidence of use will also be needed to file URS complaints, but that can be done separately at the time of filing, with no need for a Clearinghouse registration.

ICANN chairman Peter Dengate Thrush, himself an IP lawyer, once stated, possibly in jest, that no matter what you do, you can be certain that IP lawyers will demand more protections.

Whether the rights protections mechanisms included in the Guidebook are now sufficient to calm trademark interests’ nerves remains to be seen.

NAF sees rise in UDRP cases

Kevin Murphy, April 7, 2011, Domain Policy

The National Arbitration Forum saw a steep increase in the number of cybersquatting complaints filed under the Uniform Dispute Resolution Policy last year.

According to a NAF announcement, 2,177 cases were filed in 2010, up 24% on the previous year.

That seems to be roughly in line with the experience of the World Intellectual Property Organization, which recently reported a 28% increase in UDRP complaints to 2,696 last year.

On that basis, it appears that WIPO has ever so slightly widened the market share gap between itself and NAF.

Between 1999 and the end of last year, NAF had handled 15,763 domain disputes, compared to WIPO’s over 20,000.

A basic UDRP filing covering a few domain names with a single panelist presiding costs about $1,500 with both providers, not including lawyers’ fees and other expenses.

With roughly 35,000 complaints filed to date, we can estimate that the revenue from UDRP flowing to WIPO and NAF together has been in the ball park of $50 million in slightly over 11 years.