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New .jobs contract based on new gTLD agreement

Kevin Murphy, December 10, 2014, Domain Registries

ICANN and Employ Media are set to sign a new contract for operation of the .jobs registry which is based heavily on the Registry Agreement signed by all new gTLD registries.

.jobs was delegated in 2005 and its first 10-year RA is due for renewal in May 2015.

Because Employ Media, like all gTLD registries, has a presumption of renewal clause in its contract, ICANN has published the proposed new version of its RA for public comment.

It’s basically the new gTLD RA, albeit substantially modified to reflect the fact that .jobs is a “Sponsored TLD” — slightly different to a “Community” TLD under the current rules — and because .jobs has been around for nine years already.

That means it won’t have to sign a contract forcing it to run Sunrise or Trademark Claims periods, for example. It won’t have to come up with a Continued Operations Instrument — a financial arrangement to cover operating costs should the company go under — either.

Its commitments to its sponsor community remain, however.

ICANN said it conducted a compliance audit on Employ Media before agreeing to the renewal.

Employ Media remains the only gTLD registry to have been hit by a formal breach notice by ICANN Compliance. In 2011, it threatened to terminate its contract over a controversial proposal to all job aggregation sites to run on .jobs domains.

The registry filed an Independent Review Process complaint to challenge the ruling and ICANN eventually backed down in 2012.

The fight came about as a result of complaints from the .JOBS Charter Compliance Coalition, a group of jobs sites including Monster.com.

First new gTLD objection scalps claimed

Employ Media has killed off the Chinese-language gTLD .招聘 in the latest batch of new gTLD objection results.

Amazon and DotKids Foundation’s respective applications for .kids also appear to be heading into a contention set with Google’s bid for .kid, following the first String Confusion Objections.

All three objections were marked as “Closed, Default” by objection handler the International Center For Dispute Resolution a few days ago. No full decisions were published.

This suggests that the objectors have won all three cases on technicalities (such as the applicant failing to file a response).

Employ Media vice president for policy Ray Fassett confirmed to DI that the company has prevailed in its objection against .招聘, which means “recruitment” in Chinese and would have competed with .jobs.

The String Confusion Objection can be filed based on similarity of meaning, not just visual similarity.

What’s more, if the objector is an existing TLD registry like Employ Media, the only remedy is for the losing applicant to have their application rejected by ICANN.

So Hu Yi Global Information Resources, the .招聘 applicant, appears to be finished as far as this round of the new gTLD program is concerned.

But because there’s no actual ICDR decision on the merits of the case, it seems possible that it, or another company, could try for the same string in a future round.

In Google’s case, it had objected to both the Amazon and DotKids applications for .kids on string confusion grounds. The company is applying for .kid, which is obviously very similar.

The String Similarity Panel, which created the original pre-objection contention sets, decided that singular and plurals could co-exist without confusion. Not everyone agreed.

Because .kid is merely an application, not an existing TLD, none of the bids are rejected. Instead, they all join the same contention set and will have to work out their differences some other way.

Applicants are under no obligation to fight objections; they may even want to be placed in a contention set.

Trademark Clearinghouse to get tested out on three existing TLDs

Kevin Murphy, April 6, 2013, Domain Services

Three already-live TLDs are going to use the Trademark Clearinghouse to handle sunrise periods, possibly before the first new gTLDs launch.

BRS Media is set to use the TMCH, albeit indirectly, in its launch of third-level domains under .radio.am and .radio.fm, which it plans to launch soon as a budget alternative to .am and .fm.

The company has hired TM.Biz, the trademark validation firm affiliated with EnCirca, to handle its sunrise, and TM.biz says it will allow brand owners to leverage Clearinghouse records.

Trademark owners will be able to submit raw trademarks for validation as in previous sunrises, but TM.Biz will also allow them to submit Signed Mark Data (SMD) files, if they have them, instead.

Encrypted SMD files are created by the TMCH after validation, so the trademarks and the strings they represent are pre-validated.

There’ll presumably be some cost benefit of using SMD files, but pricing has not yet been disclosed.

Separately, Employ Media said today that it’s getting ready to enter the final stage of its .jobs liberalization, opening up the gTLD to essentially any string and essentially any registrant.

The company will also use the TMCH for its sunrise period, according to an ICANN press release, though the full details and timing have not yet been announced.

Unusually, .jobs is a gTLD that hasn’t already had a sunrise — its original business model only allowed vetted company-name registrations.

The TMCH is already accepting submissions from trademark owners, but it’s not yet integrated with registries and registrars.

ICANN drops .jobs shut-down threat

Kevin Murphy, December 14, 2012, Domain Registries

ICANN has withdrawn its breach notice against .jobs registry Employ Media, opening the floodgates for third-party job listings services in the gTLD.

In a letter sent to the company earlier this week, ICANN seems to imply that it was wrong when it threatened in February 2011 to shut down .jobs for breaking the terms of its registry agreement:

ICANN has concluded that Employ Media is not currently in breach, but is instead in good standing under the Registry Agreement, with respect to the issues raised in the 27 February 2011 Notice of Breach letter.

ICANN will not seek to impose restrictions on new or existing policy initiatives within .JOBS as long as such conduct is consistent with the .JOBS Charter and the terms of the Registry Agreement.

The surprising move presumably means that Employ Media will be dropping its Independent Review Panel proceeding against ICANN, which was due to start in-person hearings next month.

The original breach notice alleged that the registry had gone too far when it sold thousands of generic domain names to the DirectEmployers Association to use for jobs listings sites.

This .Jobs Universe project saw DirectEmployers launch sites such as newyork.jobs and nursing.jobs.

The project was criticized harshly by the .JOBS Charter Compliance Coalition, an ad hoc group of jobs sites including Monster.com, which lobbied ICANN to enforce the .jobs contract.

The .jobs gTLD was originally supposed to be for companies to advertise only their own job openings.

The reasoning behind ICANN’s change of heart now is a little fuzzy.

Ostensibly, it’s because it received a letter December 3 from the Society for Human Resources Management, Employ Media’s policy-setting “sponsoring organization”.

The letter states that all of DirectEmployers’ domain names are perfectly okay registrations — “being used consistently with the terms of the .JOBS Charter” — and have been since the .Jobs Universe project started.

The domain names were all registered by DirectEmployers executive William Warren, who is a SHRM member as required by .jobs policy, the letter states.

Nothing seems to have changed here — it’s been Employ Media and SHRM’s position all along that the registrations were legit.

So did ICANN merely sense defeat in the IRP case and get cold feet?

Read the letters here.

OpenSRS now offering .jobs and .aero

Tucows has started offering .jobs and .aero domain names through its OpenSRS reseller channel.

According to a blog posting, resellers will have to opt in to offering these gTLDs. Prices are $125/year for .jobs and $50/year for .aero.

It’s potentially good news for both registries, particularly .jobs. Both are restricted, sponsored gTLDs, but .jobs has a much less strict set of entry requirements than .aero.

The OpenSRS network has about 11,000 resellers, according to the company, which is largely responsible for Tucows being the third-largest ICANN-accredited registrar by domain volume.

Battle over .jobs to drag on into 2013

Employ Media’s fight to avoid losing its contract to run .jobs won’t be resolved this year, according to the latest batch of arbitration documents published by ICANN.

February 2013, two years after the the battle was joined, is now the absolute earliest the company could find out whether ICANN has the right to shut down .jobs due to an alleged contract breach.

As you may recall from deep in the mists of time (actually, February last year) ICANN threatened to terminate Employ Media’s contract due to the controversial .Jobs Universe project.

The registry gave thousands of .jobs domains, mostly geographic or vocational strings, to its partner, the DirectEmployers Association, which started competing against jobs listings sites.

A coalition of jobs sites including Monster.com complained about this on the basis that .jobs was originally designed for companies to list their own jobs, not to aggregate third-party listings.

The coalition believed that the .Jobs Universe project was essentially a fait accompli, despite Employ Media’s promise that all the names now allocated to DirectEmployers would be subject to an open RFP process.

ICANN eventually agreed with the coalition, issued a breach notice, and now it finds itself in arbitration under the auspices of the International Chamber of Commerce.

Employ Media demanded arbitration in May last year, but it has inexplicably taken until now for it, ICANN and the ICC to publish a draft timetable for the process.

A face-to-face hearing has now been scheduled for January 28 to February 8, 2013. Between now and December, it’s paper filings – claims and counterclaims – all the way.

Arbitration clauses were added as standard to ICANN’s registry agreements in order to create a cheaper, faster option than fighting out disagreements in the courts.

However, with both sides lawyered up and a process now likely to last at least two years, it’s easy to wonder just how much more efficient it will be.

It won’t be an easy decision for the ICC panel.

While I still believe Employ Media was a bit sneaky about how it won ICANN approval for the .Jobs Universe project – and it certainly disenfranchised other jobs sites – there’s no denying that .jobs is now a much healthier gTLD for registrants as a result of DirectEmployers’ involvement.

An ICANN win might actually be a bad thing.

ICANN demands the right to terminate .jobs

ICANN has asked the International Chamber of Commerce to rule that it has the right to terminate Employ Media’s .jobs contract.

It’s filed its response to Employ Media’s demand for arbitration over the disputed Universe.jobs service, which saw the registry vastly expand the .jobs space.

Employ Media “transcended the very intent behind creation of the TLD” with Universe.jobs, which allocated tens of thousands of .jobs domains to the DirectEmployers Association, ICANN said.

The organization wants the ICC to rule that it “may, but is not required to, terminate the Registry Agreement with Employ Media”, as it has already threatened.

Employ Media took ICANN to arbitration in May, after ICANN notified it that it was in breach of its registry agreement and they were not able to settle their differences in private talks.

The registry wants a declaration that it is not in breach.

But according to ICANN, Employ Media is still and has always been restricted to selling domains just to human resources professionals to promote jobs “within their own organizations”.

That’s despite ICANN’s approval of a contract amendment last year that allowed the registry to sell non-companyname .jobs domains.

This liberalization, ICANN says, did not allow the company to launch Universe.jobs, which monetizes at least 40,000 geographical and vocational .jobs through a massive third-party jobs board.

ICANN is now trying to frame the arbitration proceeding around a single question – was its breach notice “appropriate” or not?

The whole debacle is based around two interpretations of the .jobs Charter, which spells out who can register .jobs domains. This is what it says:

The following persons may request registration of a second-level domain within the .JOBS TLD:

– members of SHRM [the Society For Human Resources Management]; or

– persons engaged in human resource management practices that meet any of the following criteria: (i) possess salaried-level human resource management experience; (ii) are certified by the Human Resource Certification Institute; (iii) are supportive of the SHRM Code of Ethical and Professional Standards in Human Resource Management, as amended from time to time, a copy of which is attached hereto.

Employ Media’s interpretation is fairly literal and liberal – any signed-up SHRM member can register a .jobs domain and somebody at DirectEmployers is a member and therefore eligible.

Becoming a SHRM member is pretty straightforward and cheap. It’s not much of a barrier to entry.

ICANN argues that this interpretation is bogus:

Employ Media has espoused policies that allow a .JOBS domain name (or thousands of them) to be used for virtually any purpose as long as a human resource manager is propped up to “request” the domain. In doing so, Employ Media has failed to enforce meaningful restrictions on .JOBS registrations, as required by the Registry Agreement.

It further argues that Employ Media should have allocated premium .jobs domains through an “open, fair and transparent” process, rather than the “self-serving… backroom deal” with DirectEmployers.

Evidence now filed by ICANN shows that the two organizations have been arguing about this since at least November 2009, when Employ Media launched a Universe.jobs “beta”.

ICANN also now says that it has no problem with Universe.jobs, provided that Employ Media and SHRM amend their Charter policies to make the service retroactively compliant.

The more this dispute progresses and the more convoluted and expensive it becomes, the more it leaves me scratching my head.

You can download the latest arbitration documents from ICANN.

Anti-.jobs coalition keeps up pressure on ICANN

The .JOBS Charter Compliance Coalition, which wants ICANN to rein in .jobs registry Employ Media, has sent a couple of stern letters to ICANN recently.

Neither are especially exciting, but as ICANN has yet to publish them on its correspondence page I thought I’d make them available here.

The first (pdf), sent July 5, demands to know why ICANN has not yet provided an update to its forthcoming arbitration with Employ Media, which was due a few weeks ago.

ICANN and the registry are set to face off at the International Chamber of Commerce over the disputed Universe.jobs service, which ICANN believes was launched in breach of the .jobs Charter.

My understanding is that the arbitration is going ahead, but that ICANN has been granted an extension to the deadline to file its reply.

The second letter (pdf) notes that .jobs’ IANA listing was recently updated with language more friendly to Employ Media’s position that not only human resources managers qualify for .jobs domains.

It asks why this change was made, invoking the Documentary Information Disclosure Policy.

The Coalition is made up of independent jobs site operators unhappy that Employ Media appears to be using its position as the .jobs registry to compete with them.

ICANN tries to dodge .jobs legal fees

“Please don’t sue us!”

That’s the message some are taking away from the latest round of published correspondence between lawyers representing ICANN and .jobs registry Employ Media.

Employ Media last week said it will take ICANN to the International Chamber of Commerce, after they failed to resolve their dispute over the company’s controversial Universe.jobs venture.

Now ICANN has asked the registry’s executives to return to the negotiating table, apparently to reduce the risk of having to spend millions of dollars on lawyering.

In a letter (pdf) to Employ Media’s attorneys, ICANN outside counsel Eric Enson of Jones Day said that ICANN wishes to avoid “costly legal fees associated with arbitration or litigation”:

I again request a meeting among the business persons involved in this matter to discuss potential resolutions before spending more of ICANN’s funding on unnecessary litigation.

The latest round of published correspondence, like the last one, and the one before that, seems to contain a fair bit of legal posturing, with both sides accusing the other of conducting negotiations in “bad faith” for various reasons.

Filing the arbitration notice with the ICC might turn out to be a smart move by Employ Media, knowing how risk-averse and cash-conscious ICANN is.

ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain.

ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures.

But that may well turn out to be small beer compared to the price of losing arbitration against the .jobs registry.

Unlike the IRP, in which both parties pay their own lawyers no matter who wins, Employ Media’s contract states that the losing party in arbitration must pay the legal fees of the winner.

To go up against .jobs at the ICC and lose could hit ICANN’s coffers harder than the .xxx dispute, in other words. That’s not to say it would lose, but with matters as complex as this there is that risk.

It’s worth noting that Employ Media’s lead attorney has form when it comes to reaching into ICANN’s pockets – Crowell & Moring’s Arif Ali also represented ICM Registry in the .xxx IRP case.

.jobs takes ICANN to arbitration

Employ Media, manager of the .jobs top-level domain, has become the first registry operator to take ICANN to arbitration to fight off a shut-down threat.

The company in the last hour said it has filed a Request for Arbitration with the International Chamber of Commerce in Paris, after informal efforts to reach agreement with ICANN broke down.

Employ Media CEO Tom Embrescia said in a statement:

This filing was necessary to ward off ICANN’s unwarranted and unprecedented threat of contract termination. That action created immediate uncertainty about the .JOBS TLD on the Internet and caused significant duress on our business.

ICANN had threatened to terminate the .jobs registry agreement – which I believe is pretty much the only option available to it in the case of a perceived breach – in February.

The filing means .jobs can operate as normal until the situation is resolved.

The dispute is essentially about Universe.jobs, a jobs listing service operated by the DirectEmployers Association using tens of thousands of generic .jobs domain names granted to it by Employ Media.

The .JOBS Charter Compliance Coalition, made up of independent jobs boards, complained to ICANN that Universe.jobs went against the spirit and letter of the original .jobs Charter.

Employ Media says that Universe.jobs was essentially authorized when ICANN approved its Phase Allocation process for handing out generic domains last year.

Employ Media is represented by lawyers from Crowell & Moring, some of the same individuals responsible for ICM Registry’s defeat of ICANN at its Independent Review Panel last year.

The request for arbitration can be read here in PDF format.