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Next new TLD guidebook due early November

Kevin Murphy, October 19, 2010, Domain Registries

The next version of ICANN’s Applicant Guidebook for wannabe new top-level domain registries could be published as early as the first week of November, and it could be proposed as the “final” draft.

In a note to the GNSO Council’s mailing list yesterday, ICANN senior vice president Kurt Pritz wrote:

There is a Board meeting on the 28th with new gTLDs as an agenda item, and right around that time, maybe a week later, the work on the Guidebook will be wrapped. Those two events will indicate both a Board and staff intent on whether to propose the Guidebook version as final.

In order for a 30-day public comment period to be completed prior to the start of ICANN’s meeting in Cartagena, Colombia, the Guidebook would have to be published before November 5.

That said, version four of the DAG had a 60-day comment period (and ICANN staff have yet to publish a summary and analysis of those comments three months after it closed).

As I’ve previously blogged, outstanding issues include humdingers such as the cross-ownership of registrar/registry functions, and the objections procedure formerly known as “morality and public order”.

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.

Round-up of the ICANN new TLDs comment period

Today is the deadline to file comments on version four of ICANN’s Draft Applicant Guidebook for prospective new top-level domain registries.

Of the few dozen comments filed, the majority involve special pleading in one way or another – everybody has something to lose or gain from the contents of the DAG.

That said, I’ve read all the comments filed so far (so you don’t have to) and lots of good points are raised. It’s clear that whatever the final Applicant Guidebook contains, not everybody will get what they want.

Here’s a non-comprehensive round-up, organized by topic.

Trademark Protection

Trademark holders were among the first to file comments on DAG v4. As I’ve previously reported, Lego was first off the mark with an attempt to convince ICANN that the concerns of the IP lobby have not yet been resolved.

Since then, a few more of the usual suspects from the IP constituency, such as Verizon and InterContinental Hotels, have filed comments.

The concerns are very similar: the Universal Rapid Suspension process for trademark infringements is too slow and expensive, the Trademark Clearinghouse does not remove cost or prevent typosquatting, not enough is done to prevent deadbeat registries.

Verizon, a long-time opponent of the new TLD program and a rigorous enforcer of its trademarks, used its letter to raise the issue of cybercrime and hit on pressure points relating to compliance.

It brings up the KnujOn report (pdf) released in Brussels, which accused ICANN registrars of being willfully blind to customer abuses, and the fact that ICANN compliance head David Giza recently quit.

Two IP-focused registrars also weighed in on trademark protection.

Com Laude’s Nick Wood filed a very good point-by-point breakdown of why the URS process has become too bloated to be considered “rapid” in the eyes of trademark holders.

Fred Felman of MarkMonitor covers the same ground on rights protection mechanisms, but also questions more fundamentally whether ICANN has shown that the new TLD round is even economically desirable.

Felman has doubts that new gTLDs will do anything to create competition in the domain name market, writing:

the vast majority of gTLDs currently being proposed in this round are gTLDs that hide traditional domain registration models behind a veil of purported innovation and creativity

Well, I guess somebody had to say it.

Fees

There are concerns from the developing world that $185,000, along with all the associated costs of applying for a TLD, is too steep a price to pay.

The “African ICANN Community” filed a comment a month ago asking ICANN to consider reducing or waiving certain fees in order to make the program more accessible for African applicants.

Several potential TLD registries also think it’s unfair that applicants have to pay $185,000 for each TLD they want to run, even if it’s basically the same word in multiple scripts.

Constantine Roussos, who intends to apply for .music, reiterated the points he brought up during the ICANN board public forum in Brussels last month.

Roussos believes that applicants should not have to pay the full $185,000 for each non-ASCII internationalized domain name variant of their primary TLD.

He wrote that he intends to apply for about six IDN versions of .music, along with some non-English Latin-script variants such as .musique.

Antony Van Couvering of registry consultant Minds + Machines and .bayern bidder Bayern Connect both echo this point, noting that many geographical names have multiple IDN variants – Cologne//Koeln/Köln, for example.

Roussos also notes, wisely I think, that it appears to be a waste of money paying consultants to evaluate back-end registry providers for applicants who choose to go with an recognized incumbent such as VeriSign, NeuStar or Afilias.

Another request for lower fees comes from the Japan Internet Domain Name Council, which thinks geographical TLD applications from small cities should receive a discount, as well as a waiver of any fees usually required to object to a third-party application.

Contended Strings and Front-Running

Of the known proposed TLDs, there are several strings that will very likely be contended by multiple bidders. This has led to maneuvering by some applicants designed to increase their chances of winning.

Roussos suggested that applicants such as his own .music bid, which have made their plans public for years, should be awarded bonus points during evaluation.

This would help prevent last-minute con artists stepping in with “copy-paste” bids for widely publicized TLDs, in the hope of being paid off by the original applicant, he indicated.

Roussos thinks the amount of work his .music has done in raising community awareness around new TLDs has earned the company extra credit.

It’s a thought echoed by Markus Bahmann, dotBayern’s chairman, and his counterpart at dotHamburg.

The opposing view is put forward by rival .bayern bidder Bayern Connect’s Caspar von Veltheim. He reckons such a system would put “insiders” at an unfair advantage.

M+M’s Van Couvering also said he opposes any applicant getting special treatment and added that M+M wants an explicit ban on trademark front-running included in the DAG.

Front-running is the practice of registering a TLD as a trademark in order to gain some special advantage in the new TLD evaluation process or in court afterward.

(M+M’s owner, Top Level Domain Holdings, has reportedly been front-running itself – attempting to defensively register trademarks in the likes of .kids, .books and .poker, while simultaneously trying to fight off similar attempts from potential rivals.)

Roussos of .music responded directly to M+M this afternoon, presenting the opposite view and promising to use its trademarks to defend itself (I’m assuming he means in court) if another .music applicant prevails.

Rest assured that if we, as .MUSIC are faced with the possibility of being gamed and abused in a manner that we find illegal, we will use our trademarks and other means necessary to do what we have to do to protect ourselves and our respective community.

He said .music is trademarked in 20 countries.

Morality and Public Order

This was a hot topic in Brussels, after the ICANN Governmental Advisory Committee agreed that it did not like the “MOPO” objection provisions of DAG v4, but could not think of a better replacement.

MOPO would give a way for governments to scupper bids if they do not like the morality implications. Anybody applying for .gay, for example, would have to deal with this kind of nonsense.

Jacob Malthouse of BigRoom, one of the would-be .eco bidders, reckons ICANN should treat the GAC the same as it treated the GNSO on the issue of vertical integration – remove MOPO from the DAG entirely in order to force the GAC to come up with something better.

The GAC had previously said it would address the MOPO issue in its comments on DAGv4, but its filing has not yet appeared on the ICANN site.

There’s a GNSO working group over here, but M+M’s Van Couvering notes that no GAC members have got involved post-Brussels.

Terrorism

Two commentators objected to the idea that an applicant could be rejected for involvement in “terrorism”, a term that DAGv4 does not define.

I reported on this a few days ago, but since then Khaled Fattal of the Multilingual Internet Group has filed a surprising rant that seems to indicate he has way more beef than really necessary.

Here’s a few quotes mined from the full comment:

it will alienate many in the international community who will choose not to take part in future ICANN processes including its New gTLDs, distrusting ICANN’s motives, or actively choosing to boycotting it, and causing many to seriously start re-considering alternatives.

as a Syrian born Arab American would I pass the IvCANN terrorism verification check as they are? After all Syria, my country of birth, is on the U.S. Government list of states sponsor of terrorism? And I admit, I do know an “Osama”, does that disqualify me? I Forgot to add, “Osama Fattal” a cousin. So would I pass or fail this check?

The arbitrary inclusion of terrorism as a measuring stick without any internationally recognized laws or standards is wrong and offensive to many around the world. If acted upon, it will be seen by millions of Muslims and Arabs as racist, prejudicial and profiling and would clearly indicate that ICANN has gone far beyond its mandate.

Vertical Integration and .brand TLDs

The issue of whether registries and registrars should be allowed to own each other is a thorny one, but there’s barely any mention at all of it in the DAGv4 comments filed so far.

The DAGv4 language on VI, which effectively bans it, is a place-holder for whatever consensus policy the GNSO comes up with (in the unlikely event that its working group ever gets its act together).

Most efforts on VI are therefore currently focused in the GNSO. Nevertheless, some commentators do mention VI in their filings.

Roussos of .music wants .music to be able to vertically integrate.

Abdulaziz Al-Zoman of SaudiNIC said VI limits should be removed to help applicants who need to turn to third-party infrastructure providers.

From the IP lobby, Celia Ullman of cigarette maker Philip Morris notes that there’s nothing in DAGv4 about single-registrant .brand TLDs. She writes:

would this mean that trademark owners owning a gTLD would need to open the registration procedure to second-level domain names applied for to third unrelated parties? In this case, what would be the incentive of actually registering and operating such a gTLD?

Clearly, the idea that a .brand would have to be open to all ICANN registrars on a non-discriminatory basis is enough to make any trademark attorney choke on their caviare.

JPNIC, the .jp ccTLD operator, also points out that DAGv4 says next to nothing about .brand TLDs and strongly suggests that the final Applicant Guidebook spells out just what a registry is allowed to do with its namespace (lawsuits are mentioned)

Disclaimer

I’ve paraphrased almost everybody in this article, and I’ve done it rather quickly. Despite my best efforts, some important nuance may have been lost in the act.

If you want to know what the commentators I’ve cited think, in their own words, I’ve linked to their comments individually throughout.

I may update this post as further comments are filed.

Will ICANN drop anti-terror rule from new TLD process?

Kevin Murphy, July 19, 2010, Domain Policy

ICANN has been chastised for prohibiting terrorists from applying for new top-level domains. Really.

Abdulaziz Al-Zoman of SaudiNIC has written to the organization to worry about the fact that “terrorism” has been added to the list of forbidden activities for new TLD applicants.

The word made its first appearance in version four of the Draft Applicant Guidebook, and was harshly criticized during the ICANN board’s public forum in Brussels last month.

Al-Zoman is primarily concerned that there is no definition of “terrorism” in the DAG.

While the international community is extensibly [sic] divided on who is a terrorist and who is a freedom fighter, and notwithstanding ICANN’s lack of definition whatsoever in the DAG 4 on terrorism, it is a surprise to me to see ICANN involving itself in the area of terrorism while its mandate is only being a global technical coordinator.

He has a point, of course.

Hamas is the probably the best example today: an elected government with a paramilitary wing, classified as a terrorist organization by the US and UK, among others.

In the old days, we could have used the IRA as an example: a bunch of extremists blowing up English pubs, backed by American money.

During the public comment forum in Brussels, ICANN’s Kurt Pritz gave every indication that the word “terrorism” will be yanked or defined in the next DAG. From the transcript:

I agree with you that certain terms, and especially that one that is so sensitive, either requires — it should be removed or it should be — you know, it should have additional definition.

He was responding to a somewhat hyperbolic statement from Khaled Fattal, CEO of the Multilingual Internet Names Consortium, which is worth quoting (again from the transcript).

For ICANN to invoke the term “terrorism” in this arbitrary manner threatens ICANN’s ability to effectively undertake its mandate of being the global technical coordinator of the Internet. It would also challenge its legitimacy as a global public service provider in the eyes of the international community if it continues on this path, but most importantly, alienate many of the international community.

Moreover, it raises many concerns as to whether ICANN is succeeding at truly internationalizing itself.

Furthermore, the arbitrary inclusion of terrorism as a measuring stick without any internationally recognized law or standard is wrong and if acted upon it can be understood or seen by Muslims and Arabs as racist and profiling.

Strong stuff.

Now, ICANN’s painted itself into a bit of a corner. To placate its critics, it can either adopt a definition of terrorism, or it can drop the word entirely.

The former idea is probably unworkable – Wikipedia’s attempt to define “terrorism” under international law is over 4,500 words – and the latter could lead to interesting headlines.

ICANN GIVES THUMBS UP TO TERROR DOMAINS

I think I’ll leave that one for Fox.

New TLD guidebook could be finalized at ICANN retreat

Kevin Murphy, June 21, 2010, Domain Policy

ICANN’s Draft Applicant Guidebook for new TLDs could become the Final Applicant Guidebook at an ICANN retreat before the next ICANN meeting.

Chairman Peter Dengate Thrush said at a press conference here in Brussels earlier that a private two-day board retreat this year, focused entirely on new TLDs, could “clear up any remaining issues” with the DAG.

I believe he was referring to the ICANN board’s scheduled September 24-25 retreat, although he may have had something else in mind.

Dengate Thrush said that we should not expect the board to pass as many resolutions relating to the DAG at the end of the Brussels meeting as it did at the end of Nairobi three months ago.

But he still expects DAG v4 will be the final draft published before the guidebook is finalized.

“The reality is that there are a number of overarching issues where the community has to reach consensus, and it’s difficult for us to put time limits on the community,” he said.

A few minutes ago, during an open mic session on new TLDs, Jon Nevett of Domain Dimensions questioned whether there should be a special ICANN meeting, before the retreat, to give the community a chance to help with the finalization process.

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