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Music industry gets its ass handed to it by gTLD panel

Kevin Murphy, October 7, 2014, Domain Registries

The music industry-backed application for the new gTLD .music today suffered a humiliating defeat at the hands of a Community Priority Evaluation panel.

The Far Further (.music LLC) application scored a pitiful 3 out of 16 possible points in the evaluation, missing the required 14-point passing threshold by a country and western mile.

CPE is a way for applicants representing genuine communities to avoid an auction. If one applicant in a contention set wins a CPE, all the others must withdraw their applications.

But in this case the CPE panel went so far as to accuse the applicant of attempting to get its hands on a nice generic string by creating a new community, rather than by representing an existing one:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. Moreover the applicant appears to be attempting to use the gTLD to organize the various groups noted in the application documentation, as opposed to applying on behalf of an already organized and cohesive community.

The application was backed by dozens of music industry trade groups and (by inference) thousands of their member associations and millions of individual members, spread over 150 countries.

But that wasn’t enough to persuade the CPE panel that “music” is even a “community” within the meaning of the ICANN new gTLD program’s Applicant Guidebook:

While the Panel acknowledges that many of the members in the proposed community share an interest in music, the AGB specifies that a “commonality of interest” is not sufficient to demonstrate the requisite awareness and recognition of a community among its members.

The panel pointed to the existence of legions of amateur musicians — estimated at 200 million — that do not identify with the community as defined in Far Further’s new gTLD application, which is restricted to the four million or so members of the application’s backers.

The panel found therefore that “there is no entity mainly dedicated to the entire community as defined by the applicant, nor does the application include reference to such an organization”.

The very fact that the Far Further application included reference to 42 trade groups, covering different facets of the music industry, seems to have counted against it. One overarching body dedicated to “music” in its entirety may have been enough to win the applicant some points.

The fact that the panel decided the community did not exist had a knock-on effect in other parts of the evaluation.

Has the community been around for a long time? No, because the community doesn’t exist. Is it a big community? No again, because the community doesn’t exist. And so on.

The only places Far Further managed to pick up points were on its registration policies, where it had promised to restrict registration to certain community members, and on community endorsement.

There are eight applicants for .music in total. One other, regular DI commenter Constantine Roussos’ DotMusic Limited, is also a Community application that is eligible for CPE.

It’s always seemed highly improbable that any .music applicant could pass CPE, but it’s looking even less likely for DotMusic after today’s result for Far Further.

.music, it seems, is heading to auction, where it is likely to fetch big bucks.

Roussos loses last .music LRO

Kevin Murphy, August 27, 2013, Domain Registries

Constantine Roussos’ DotMusic Ltd has lost its seventh and final Legal Rights Objection against rival .music applicants.

In the decision in DotMusic Ltd v DotMusic Inc, published (pdf) this hour, WIPO panelist Mark Partridge ruled:

the Panel is compelled to conclude that the Objector lacks enforceable rights. The term “.music” (or “dotMusic”) would in the Panel’s opinion be recognized as a generic designation for a top-level domain name directed at or relating to music and music-related services. As a result, the Panel is of the opinion that the Objector cannot own trademark rights in the terms “.music” (or “dotMusic”) per se as a matter of law, even if it has developed awareness of that term as being associated with it as the name of an entity.

That’s roughly in keeping with the first six DotMusic decisions and a not remotely surprising result.

The objections phase for .music is not over yet, however. There are still seven Community Objections pending, most of them filed by American Association of Independent Music, which is affiliated with Roussos’ bid.

There’s also the possibility that DotMusic and/or .music LLC (which also has industry backing) could apply for a Community Priority Evaluation, which would kill off all rivals at a stroke.

I’ve yet to hear a convincing argument why either application could win a CPE, so my guess is that .music is, eventually, heading to auction.

DotMusic loses LRO, and four other cases rejected

Kevin Murphy, July 31, 2013, Domain Policy

Constantine Roussos has lost his first Legal Rights Objection over the flagship .music gTLD.

The case, DotMusic v Charleston Road Registry (pdf) was actually thrown out on a technicality — DotMusic didn’t present any evidence to show that it was the owner of the trademarks in question.

But the WIPO panelist handling the case made it pretty clear that DotMusic wouldn’t have won on the merits anyway.

If any applicant can be said to have built a brand around a proposed generic-term gTLD, it’s Roussos. DotMusic has been promoting .music on social media an in the music industry for years.

The company also owns the string “music” in a number of second-tier TLDs such as .co, .biz and .fm.

It’s not a bogus, last-minute attempt to game the system, like the .home cases — filed using Roussos-acquired trademarks — that have been thrown out repeatedly over the last couple of weeks.

The panelist addressed this directly:

On the one hand, the Panel recognizes that there has been a real investment by the Objector and associated parties in the trademark registrations, domain name registrations, sponsorship and branding to create consumer recognition and goodwill entitled to protection. On the other hand, there is a circularity in the Objector’s position in that the rights upon which the Objector relies to defeat the application are to a certain extent conditional on the defeat of the Applicant and the Objector’s success in obtaining the <.music> gTLD string.

In other words, Catch-22.

The panelist decided that .music is generic, that Google’s proposed use of it is generic, and that obtaining a trademark on a gTLD should not be a legit way to exclude rival applicants for that gTLD.

One objective of the Objector has been to obtain precisely the type of competitive advantage (in this case in the application process for the <.music> gTLD string) that the doctrine of generic names is designed to prevent. However, as the Applicant proposes to use the <.music> gTLD string in a generic sense it is immune from this challenge.

On that basis, the LRO would have failed, had DotMusic managed to demonstrate standing to object in the first place.

Unfortunately, DotMusic didn’t present any evidence that it actually owned the trademarks in question, which were applied for by Roussos and assigned to his company CGR E-Commerce.

The objection failed on that basis.

Defender Security, which obtained trademarks on “.home” from Roussos, ran into the same problems proving ownership of the trademarks in its LROs on the .home gTLD.

Four other LROs were decided this week:

.mail (United States Postal Service v. GMO Registry)

The case (pdf) turned on whether USPS owns a trademark that exactly matches the applied-for string (it doesn’t) and whether the word “mail” should be considered generic (it is) rather than a source identifier (it isn’t).

It’s pretty much the same logic applied in the two previous .mail LROs.

.food (Scripps Networks Interactive v. Dot Food, LLC)

This is the first of two competitive LROs filed by Scripps — which runs TV stations including the Food Network — against its .food applicant rivals to be decided.

Scripps has a bunch of trademarks containing the word “food”, including a November 2011 registration in the US for “Food” alone, covering entertainment services.

The WIPO panelist found (pdf) that the trademark was legit, but decided that it was not enough to prevent Dot Food using the matching string as a gTLD.

The fact that rights protection mechanisms exist in the new gTLD program was key:

to the extent that registration and use of a particular second-level domain within the <.food> gTLD actually creates a likelihood of confusion, then Objector will have remedies available to it, including the established Uniform Domain Name Dispute Resolution Policy, the forthcoming Uniform Rapid Suspension System and relevant laws. The fact that such disputes at the second level may arise is inherent in ICANN’s new gTLD program and is not in the circumstances of this case sufficient to uphold the present legal rights objection.

Objector’s rights in the FOOD mark do not confer upon it the exclusive right to use of the word “food” in all circumstances, particularly where, as here, Applicant intends to use the <.food> gTLD in connection with the food industry. Such intended use of the word would appear to be only for its dictionary meaning and not because of Objector’s trademark rights.

.vip (i-Registry v. Charleston Road Registry)

It’s the second objection by .vip applicant to get thrown out. In this case the respondent was Google.

Like the first time, the WIPO panelist found that the i-Registry trademark had been obtained for the purposes of the new gTLD program and that Google’s use of it in its generic sense would not infringe its rights.

.cam (AC Webconnecting Holding v. Dot Agency)

The second and final LRO decision (pdf) in the .cam contention set.

AC Webconnecting, an operator of webcam-based porn sites, lost again on the grounds that it applied for its trademark just a month before ICANN opened up the new gTLD application window in January last year.

The company didn’t have time to, and produced no evidence to suggest that, it had used the trademark and built up goodwill around “.cam” in the normal course of business.

In other words, front-running doesn’t pay.

Second .music applicant is Demand Media partner

Far Further has come out as the second company to say it plans to apply to ICANN for the .music top-level domain.

It’s also, I believe, the first applicant to reveal that it has partnered with Demand Media registrar eNom for its back-end registry services.

Far Further is one of a number of likely applicants for .music. The only other applicant to go public to date is Constantine Roussos’ dotMusic.

The new company is headed by former Warner Music record producer Loren Balman, CEO, and former music journalist John Styll, president. Former PIR chief Alexa Raad of Architelos is advising.

Far Further says its .music will “provide the global music community a secure identifying Internet address that supports the promotion of music, the protection of intellectual property rights, and the advancement of global access to music education.”

It’s my belief that the successful .music applicant will be the one that can secure the support of organizations such as the Recording Industry Association of America and its overseas counterparts.

The RIAA’s concerns about piracy spreading through .music domains, however misplaced, suggest that any other applicant is likely to find itself on the receiving end of objections, if not lawsuits.

Support from such organizations would also be critical to any bid that plans to invoke a Community Priority Evaluation — a trump card that well-supported applications can play in the ICANN process.

Perhaps the most interesting revelation about Far Further is the company’s selection of eNom, and its Shared Registry System, as its back-end technology services provider.

eNom is of course the world’s second-largest domain name registrar, with over 11 million domains under management, but it has yet to enter the registry services market.

There’s still a bit of a question mark over eNom’s ability to pass ICANN’s background checks, due to its UDRP losses, but this may not be a problem if it is merely the back-end provider, rather than the applicant itself.

dotMusic and ICANN execs form TLD consultancy

Kevin Murphy, March 11, 2011, Domain Services

Just what the world needs, another top-level domain consultancy.

Constantine Roussos, best known his campaign for .music, has teamed up with ICANN veteran Tina Dam to launch MyTLD.com, promising to help applicants with their TLD bids.

Dam was senior director of internationalized domain names at ICANN, spearheading the IDN ccTLD Fast Track program, until she quit last December.

Those are good credentials, especially for supporting IDN TLD applicants.

Dam is currently critical of how ICANN’s Applicant Guidebook treats IDN TLDs, saying that the process is too expensive and does not effectively handle transliterations and translations.

Roussos is an entrepreneur, owner of music.us/.biz/.co, who has been pushing his own self-financed .music bid for the last couple of years.

A running joke at the recent .nxt conference was that he was once an “outsider” but has since been firmly institutionalized by the ICANN environment. He’s also critical of aspects of the Guidebook.

MyTLD.com is the latest of a series of companies to form over the last few months to provide consulting to potential TLD applicants.

Recently, domain investors Mike Berkens and Monte Cahn founded Right Of The Dot, which specializes in marketing and premium domain strategy.

And Alexa Raad, former CEO of the .org registry PIR, is currently plugging her new consulting play, Architelos.

dotMusic buys music.co

Kevin Murphy, March 9, 2011, Domain Sales

Constantine Roussos of dotMusic, which plans to apply for the .music top-level domain, has added to his collection of musical domain names with the purchase of music.co.

Roussos, who already owns music.us and music.biz, seems to have been the winning bidder, paying $30,000, when it was auctioned by Sedo late last month, but Whois records did not change until this Monday.

Remarkably, Music.co is already developed. It lets you play from a selection of godawful* music from an artist calling himself “Constantine”, including one track called “.music”.

The domain was previously owned by domainer Mike Mann, who snapped up dozens of premium generic terms in the .com.co namespace a few years ago in order to be grandfathered in when .co relaunched.

Roussos’ dotMusic initiative is currently the only applicant for the .music TLD to have gone public.

Of the other big sales from the Sedo auction, shop.co is now owned by a German search engine, Websuche, and pizza.co was sold to a California-based developer of discount codes web sites.

The domain download.co, which sold for $10,099, now redirects to what appears to be an affiliate marketing site for software called “Driver Detective”, which I was too scared to install.

Many of the other sales appear to have been made to other domainers.

(* I’m kidding. Probably.)

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