ICANN finds no conflict of interest in .sport decision

ICANN has rejected claims that the .sport gTLD contention set was settled by an arbitrator who had undisclosed conflicts of interest with the winning applicant.
Its Board Governance Committee last week decided that Community Objection arbitrator Guido Tawil had no duty to disclose his law firm’s ties to major sports broadcasters when he effectively eliminated Famous Four Media from its fight with SportAccord.
Back in 2013, SportAccord — an applicant backed by pretty much all of the world’s major sporting organizations — won the objection when Tawil ruled that FFM’s fully commercial, open-registration bid could harms its members interests.
FFM complained with Requests for Reconsideration, Ombudsman complaints and then an Independent Review Process complaint.
It discovered, among other things, that Tawil’s law firm was helping broadcaster DirecTV negotiate with the International Olympic Committee (one of SportAccord’s backers) for Olympics broadcasting rights at the time of the Community Objection.
The IRP panel ruled in February this year that the BGC had failed to take FFM’s allegations of Tawil’s “apparent bias” into account when it processed Reconsideration requests back in 2013 and 2014.
So the BGC reopened the two Reconsideration decisions, looking at whether Tawil was required by International Bar Association guidelines to disclosed his firm’s client’s interests.
In a single decision (pdf) late last week, the BGC said that he was not required to make these disclosures.
In each of the three claims of bias, the BGC found that the connections between Tawil and the alleged conflict were too tenuous to have required disclosure under the IBA rules.
It found that the IOC and SportAccord are not “affiliates” under the IBA definition, which requires some kind of cross-ownership interests, even though the IOC is, judging by the .sport application, SportAccord’s most valued supporter.
The BGC also found that because Tawil’s firm was representing DirecTV, rather than the IOC, the relationship did not technically fall within the disclosure guidelines.
For these and other reasons, the BGC rejected FFM’s Reconsideration requests for a second time.
The decision, and the fact that FFM seems to have exhausted ICANN’s appeals mechanisms, means it is now more likely that SportAccord’s application will be allowed to continue negotiating its .sport Registry Agreement with ICANN, where it has been frozen for years.

ICANN loses another IRP — .sport gTLD fight reopens as panel finds “apparent bias”

The future of the .sport gTLD was cast into turmoil this week after an independent panel ruled that there was “apparent bias” in the decision that awarded the string to a group linked to the Olympics.
The new Independent Review Panel ruling found that ICANN broke its own bylaws by refusing to allow Famous Four Media to appeal a 2013 decision that essentially awarded .sport to rival bidder SportAccord.
FFM claims the expert panelist tasked with deciding SportAccord’s Community Objection had undisclosed conflicts of interest that made him much more likely to rule in favor of SportAccord, which is backed by the International Olympic Committee, than FFM, which is a purely commercial operator.
And the IRP panel did not disagree, ruling this week that ICANN should have taken FFM’s claims into account before rejecting its requests for an appeal in 2014.
The ruling means that ICANN may be forced to throw out the Community Objection decision from 2013 and order it to be re-tried with a new expert, potentially allowing FFM back into the .sport contest.
As usual with IRP cases, the ruling is a complex and very dry read, involving multiple layers of objections, appeals, panels and experts.
FFM and SportAccord were the only two applicants for .sport in the 2012 application round.
SportAccord, which has the backing of dozens of sporting organizations in addition to the IOC, claims to represent pretty much all organized sport and wants to run .sport with restrictions on who can register.
FFM, conversely, wants to keep it open to everyone with a passing interest in sport.
In an attempt to kick FFM out of the contest without a potentially expensive auction, SportAccord filed, and then won, a Community Objection in 2013.
To win, it had to prove that the interests of the sport community would be harmed if FFM got to run it. The objection expert panelist, Guido Tawil, came down on SportAccord’s side.
FFM naturally enough disagreed with his conclusion, and vowed to fight to overturn it.
The registry later discovered that Tawil had undisclosed ties to the IOC, which it said should have disqualified him from acting as an independent expert.
First, Tawil attended a conference of the International Bar Association in Rio de Janeiro in 2011 called “Olympic‐Size Investments: Business Opportunities and Legal Framework”, where he co‐chaired a panel entitled “The quest for optimising the dispute resolution process in major sport‐hosting events”.
Second, the law firm he works for, Argentina-based M & M Bomchil, counts DirecTV among its key clients and at the time of the Community Objection DirecTV was negotiating with the IOC for Latin America broadcasting rights for the Sochi 2014 and Rio 2016 Olympics, rights it subsequently obtained.
Third, a partner in Tawil’s law firm is president of Torneos y Competencias, a sports broadcaster with ties to DirecTV.
FFM has claimed: “Guido Tawil’s own legal practice and business is built around a company for whom IOC broadcasting rights are a core aspect of its business.”
While FFM filed two Requests for Reconsideration with ICANN in late 2013 and early 2014, raising the possibility of conflicts of interest and demanding ICANN have Tawil’s ruling thrown out, both were rejected by ICANN’s Board Governance Committee.
It also took its claims to the ICANN Ombudsman, who drafted (but did not finalize) a finding that agreed with FFM that the Community Objection should be retried with a new expert.
The subsequent IRP filing challenged the two RfR decisions and, two years later, the IRP panel has now ruled:

the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents.

The panel also said that ICANN should have taken the Ombudsman’s draft report into account.
It declared:

that the action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles, Bylaws and/or the Applicant Guidebook.

The panel has ordered ICANN to pay FFM’s share of the $152,673 IRP costs.
ICANN’s board will now have to consider the IRP decision, and it seems very possible that a new Community Objection review might be ordered.
On the face of it, it looks like a big win for FFM.
That does not mean that SportAccord will not prevail in its objection for a second time, even with a different presiding expert, however.
One fact in its favor is that it now has three years’ worth of evidence of how Famous Four conducts its business — selling domains at super-cheap prices, some say at the expense of the cleanliness of its namespaces — with which to attempt to show the likelihood of harm.
What seems certain is that the .sport gTLD is not going to see the light of day any time soon.
Read the ruling as a PDF here.

Famous Four exec moves to CentralNic

Famous Four Media has lost its chief marketing officer to CentralNic.
Andy Churley joined the London-based registry services provider as group marketing manager this month, according to press release.
He’s been with FFM for the first few years of its entry into the gTLD game, overseeing the launches of cheap TLDs such as .science, .download and .bid.
Previously, he was with the registrar Group NBT.
CentralNic now of course is also in the registrar business, having acquired Internet.bs and Instra over the last few years.

Famous Four VP goes solo, claims $400,000 sale

Former Famous Four Media VP of sales Richard Downs has launched a new consultancy business aimed at new gTLD registry operators.
The new company, GTLD Systems is offering a multitude of services but is mainly a way for smaller registries to outsource their sales and marketing operations.
Downs told DI an early success was a recent $400,000 deal, selling a few FFM premiums (in .review and .download) to a single end user. He says he has a pipeline that he hopes will bring his total sales to $1 million before the end of the year.
He said he’s sold over $3 million in premiums over the last few years at FFM.
Spain-based Downs said that he has three employees, one a Chinese-speaker, in three different western-European countries.
Among the services on offer are premium list creation and sales, registrar channel management, Chinese regulatory approval consulting, supplier negotiations and marketing consulting.
Downs was with FFM for about three years. Before that, he was in digital recruitment.

.hotel losers gang up to threaten ICANN with legal bills

The six losing applicants for the .hotel new gTLD are collectively threatening ICANN with a second Independent Review Process action.
Together, they this week filed a Request for Reconsideration with ICANN, challenging its decision earlier this month to allow the Afilias-owned Hotel Top Level Domain Sarl application to go ahead to contracting.
HTLD won a controversial Community Priority Evaluation in 2014, effectively eliminating all rival applicants, but that decision was challenged in an IRP that ICANN ultimately won.
The other applicants think HTLD basically cobbled together a bogus “community” in order to “game” the CPE process and avoid an expensive auction.
Since the IRP decision, the six other applicants — Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry — have been arguing that the HTLD application should be thrown out due to the actions of Dirk Krischenowski, a former key executive.
Krischenowski was found by ICANN to have exploited a misconfiguration in its own applicants’ portal to download documents belonging to its competitors that should have been confidential.
But at its August 9 meeting, the ICANN board noted that the timing of the downloads showed that HTLD could not have benefited from the data exposure, and that in any event Krischenowski is no longer involved in the company, and allowed the bid to proceed.
That meant the six other applicants lost the chance to win .hotel at auction and/or make a bunch of cash by losing the auction. They’re not happy about that.
It doesn’t matter that the data breach could not have aided HTLD’s application or its CPE case, they argue, the information revealed could prove a competitive advantage once .hotel goes on sale:

What matters is that the information was accessed with the obvious intent to obtain an unfair advantage over direct competitors. The future registry operator of the .hotel gTLD will compete with other registry operators. In the unlikely event that HTLD were allowed to operate the .hotel gTLD, HTLD would have an unfair advantage over competing registry operators, because of its access to sensitive business information

They also think that HTLD being given .hotel despite having been found “cheating” goes against the spirit of application rules and ICANN’s bylaws.
The RfR (pdf) also draws heavily on the findings of the IRP panel in the unrelated Dot Registry (.llc, .inc, etc) case, which were accepted by the ICANN board also on August 9.
In that case, the panel suggested that the board should conduct more thorough, meaningful reviews of CPE decisions.
It also found that ICANN staff had been “intimately involved” in the preparation of the Dot Registry CPE decision (though not, it should be noted, in the actual scoring) as drafted by the Economist Intelligence Unit.
The .hotel applicants argue that this decision is incompatible with their own IRP, which they lost in February, where the judges found a greater degree of separation between ICANN and the EIU.
Their own IRP panel was given “incomplete and misleading information” about how closely ICANN and the EIU work together, they argue, bringing the decision into doubt.
The RfR strongly hints that another IRP could be in the offing if ICANN fails to cancel HTLD application.
The applicants also want a hearing so they can argue their case in person, and a “substantive review” of the .hotel CPE.
The HTLD application for .hotel is currently “On Hold” while ICANN sorts through the mess.

Schilling, Famous Four rubbish Spamhaus “worst TLD” league

Uniregistry and Famous Four Media have trashed claims by Spamhaus that their gTLDs are are much as 75% spam.
FFM says it is “appalled” by the “wholly inaccurate” claims, while Uniregistry boss Frank Schilling said Spamhaus has “totally jumped the shark here.”
In a statement to DI today, FFM chief legal officer Oliver Smith said the spam-fighting organization’s recently launched World’s Worst TLDs list is “reckless”, adding that the numbers are:

not only wholly inaccurate, but are misleading and, potentially, injurious to the reputation of Famous Four Media and those TLDs it manages. It is particularly worrisome that Spamhaus’s “findings” seem to have been taken as gospel within certain corners of the industry, despite not being proffered with any analytical methodology in support of the same.

The Spamhaus report, which is updated daily, presents the 10 TLDs that are more spam than not.
The rank is based on a percentage of domains seen by Spamhaus that Spamhaus considers to be “bad” — that is, are advertised in spam or carry malware.
Today, Uniregistry’s .diet tops the chart with “74.4% bad domains”, but the scores and ranks can and do shift significantly day by day.
Spamhaus describes its methodology like this:

This list shows the ratio of domains seen by the systems at Spamhaus versus the domains our systems profile as spamming or being used for botnet or malware abuse. This is also not a list that retains a long history, it is a one-month “snapshot” of our current view.

The words “seen by the systems at Spamhaus” are important. If a domain name never crosses Spamhaus’s systems, it isn’t counted as good or bad. The organization is not running the whole zone file against its block-list to check what the empirical numbers are.
In important ways, the Spamhaus report is similar to the discredited Blue Coat report into “shady” TLDs last September, which was challenged by myself and others.
However, in a blog post, Spamhaus said it believes its numbers are reflective of the TLDs as a whole:

In the last 18-years, Spamhaus has built its data gathering systems to have a view of most of the world’s domain traffic. We feel the numbers shown on this list are representative of the actual full totals.

I disagree.
In the case of .diet, for example, if 74% of the full 19,000-domain zone was being used in spam, that would equate to 14,000 “bad” domains.
But the .diet zone is dominated by domains owned by North Sound Names, the Frank Schilling vehicle through which Uniregistry markets its premium names.
NSN snapped up well over 13,000 .diet names at launch, and Schilling said today that NSN owns north of 70% of the .diet zone.
That would mean either Uniregistry is a spammer, or Spamhaus has no visibility into the NSN portfolio and its numbers are way the hell off.
“Spamhaus’ assertion that 74% of the registrations in the .diet space are spam is a numerical impossibility,” Schilling said. “They totally jumped the shark here.”
NSN’s domains don’t send mail, he said.
He added that diet-related products are quite likely to appear in spam, which may help account for Spamhaus’s systems identifying .diet emails as spam. He said:

Spamhaus is a high-minded organization and we applaud their efforts but this report is so factually inaccurate it casts into doubt the validity of everything they release. Spamhaus should be smarter than this and at a minimum consult with registries (our door is open) to gain a better understanding of the subject matter they wrongly profess to be expert in.

Similarly, FFM’s .review gTLD was briefly ranked last week as the “worst” gTLD at 75.1% badness. With 66,000 domains, that would mean almost 50,000 names are spammy.
Yet it appears that roughly 25,000 .review domains are long-tail geo names related to the hotels industry, registered by a Gibraltar company called A Domains Limited, which appears to be run by AlpNames, the registry with close ties to FFM itself.
Again, if Spamhaus’s numbers are accurate, that implies the registrar and/or registry are spamming links to content-free placeholder web sites.
FFM’s Smith says the registry has been using Spamhaus data as part of its internal Registry Abuse Monitoring tool, and that its own findings show significantly less spam. Referring to .review’s 75% score, he said:

This simply does not accord with FFM’s own research, which relies heavily on data made available by Spamhaus. The reality is that, in reviewing registration data for the period 8 February to 8 March 2016, only 4.8% of registered domains have been blacklisted by Spamhaus – further, it is questionable as whether every single such listing is wholly merited. When reviewing equivalent data for the period of 1 January to 8 March 2016 across ALL FFM managed TLDs this rate averages out to a mere 3.2%.

I actually conducted my own research into the claims.
Between March 8 and March 15, I ran the whole .review zone file through the Spamhaus DBL and found 6.9% of the names were flagged as spam.
My methodology did not take account of the fact that Spamhaus retires domains from its DBL after they stop appearing in spam, so it doesn’t present a perfect apples-to-apples comparison with Spamhaus, which bases its scoring on 30 days of data.
All told, it seems Spamhaus is painting a much bleaker picture of the amount of abuse in new gTLDs than is perhaps warranted.
During ICANN meetings last week and in recent blog comments, current and former executives of rival registries seemed happy to characterize new gTLD spam as a Famous Four problem rather than an industry problem.
That, despite the fact that Uniregistry, Minds + Machines and GMO also feature prominently on Spamhaus’s list.
I would say it’s more of a low prices problem.
It’s certainly true that FFM and AlpNames are attracting spammers by selling domains for $0.25 wholesale or free at retail, and that their reputations will suffer as a result.
We saw it with Afilias and .info in the early part of the last decade, we’ve see it with .tk this decade, and we’re seeing it again now.

Two new gTLD registries open offices in China

Portfolio gTLD registries Famous Four Media and Minds + Machines have both announced that they’re formally entering the Chinese market.
Both companies are establishing “wholly foreign-owned enterprises” (WFOEs), a form of company that does not require local investment, on the mainland.
The moves are aimed at getting the registries’ respective gTLDs accredited by the Chinese government, something that is required before local registrants are allowed to use them.
In a press release, FFM senior legal counsel Oliver Smith said:

It was clear to us soon after launching our first domain registry that domain registrations from China comprised a strong proportion of the total. It was a natural progression of our strategy to build a physical presence in China. The accreditation process is complicated but well-structured and, thanks to the help of advice from the Chinese government, should be completed relatively quickly.

In some of Famous Four’s gTLDs, Chinese registrars are the overwhelming majority of the sales channel.
In .win, the registry’s biggest-seller, China was responsible for about 85% of registrations at the last count, for example.
Meanwhile, M+M is taking a slightly different route into the country.
It said today that while it also shortly plans to open a WFOE, it has also partnered with ZDNS, a local provider of proxy services for registries.
ZDNS was the company XYZ.com partnered with for its controversial launch into China. According to M+M, it’s also working with .CLUB Domains and some Chinese gTLD registries.
M+M is also using the specialist consultancy Allegravita for its marketing there.
Its local entity will be called Beijing Ming Zhi Mo Si Technology Company Limited (which may or may not translate to something like “Wise Mediation”).
M+M’s first Chinese launches will be .beer, .fashion, .fit, .law, .wedding, .work and .yoga, with .vip and .购物 (“.shopping”) coming later in the year.

Architelos: shadiest new gTLD is only 10% shady

Disputing the recent Blue Coat report into “shady” new gTLDs, domain security firm Architelos says that the shadiest namespace is just under 10% shady.
That’s a far cry from Blue Coat’s claim earlier this week that nine new gTLDs are 95% to 100% abusive.
Architelos shared with DI a few data points from its NameSentry service today.
NameSentry uses a metric the company calls NQI, for Namespace Quality Index, to rank TLDs by their abuse levels. NQI is basically a normalized count of abusive domains per million registered names.
According to Architelos CEO Alexa Raad, the new gTLD with the highest NQI at the end of June was .work.
Today’s NameSentry data shows that .work has a tad under 6,900 abusive domains — almost all domains found in spam, garnished with just one suspected malware site — which works out to just under 10% of the total number of domains in its zone file.
That number is pretty high — one in 10 is not a figure you want haunting your registry — but it’s a far cry from the 98.2% that Blue Coat published earlier this week.
Looking at the numbers for .science, which has over 324,000 names in its zone and 15,671 dodgy domains in NameSentry, you get a shadiness factor of 4.8%. Again, that’s a light year away from the 99.35% number published by Blue Coat.
Raad also shared data showing that hundreds of .work and .science domains are delisted from abuse feeds every day, suggesting that the registries are engaged in long games of whack-a-mole with spammers.
Blue Coat based its numbers on a sampling of 75 million attempted domain visits by its customers — whether or not they were valid domains.
Architelos, on the other hand, takes raw data feeds from numerous sources (such as SpamHaus and SURBL) and validates that the domains do actually appear in the TLD’s zone. There’s no requirement for the domain to have been visited by a customer.
In my view, that makes the NameSentry numbers a more realistic measurement of how dirty some of these new gTLDs are.

AlpNames claims to be second-largest new gTLD registrar

A little-known registrar with close ties to Famous Four Media says it is now the second-largest seller of new gTLD domains, after Go Daddy.
AlpNames said it has 500,000 new gTLD domains under management, overtaking Network Solutions into the number-two position.
Its number for February, the last month for which registry reports are available, has the registrar with a DUM of under 50,000.
The vast majority of the names it sells or gives away are in gTLDs in the Famous Four portfolio — namely .science, .party and .webcam.
It’s currently selling those for $0.49 each, a $0.24 markup on the current promotional registry fee.
Factoring out the ICANN transaction fee, AlpNames has a margin of just a few cents per name.
Previously, it has given away .science names for free.
AlpNames is Famous Four’s neighbor in Gibraltar and owns domains such as register.science, indicating a very close relationship between the two companies.

Famous Four following .sucks playbook with premium pricing for brands?

New gTLD registry Famous Four Media has slapped general availability prices of $500 and up on domain names matching famous brands.
The company plans to shortly introduce eight “premium” pricing tiers, ranging from $200 a year to $10,000 a year.
The first to launch, on July 8, will be its “brand protection tier”, which will carry a $498 registry fee.
Famous Four told its registrars that the tier “will provide an additional deterrent to cyber-squatters for well-known brands ensuring that domain names in this tier will not be eligible for price promotions”.
The gTLDs .date, .faith and .review will be first to use the tiered pricing structure.
It’s not entirely clear what brands will be a part of the $498 tier, or how the registry has compiled its list, but registrars have been given the ability to ask for their clients’ trademarks to be included.
I asked Famous Four for clarification a few days ago but have not yet had a response.
While other registries, such as Donuts, used tiered pricing for GA domains, I’m only aware of one other that puts premium prices on brands: .sucks.
Vox Populi has a trademark-heavy list of .sucks domains it calls Market Premium — formerly Sunrise Premium — that carry a $1,999-a-year registry fee.
Unlike Vox Pop, Famous Four does not appear to be planning a subsidy that would make brand-match domains available at much cheaper prices to third parties.
Famous Four’s gTLDs have seen huge growth in the last month or two, largely because it’s been selling domains at a loss.
.science, for example, has over 300,000 registrations — making it the third-largest new gTLD — because Famous Four’s registry fee has been discounted to just $0.25 from May to July.
The same discount applies to .party (over 195,000 names in its zone) and .webcam (over 60,000).
Those three gTLDs account for exactly half of the over 22,000 spam attacks that used new gTLD domains in March and April, according to Architelos’ latest abuse report.
With names available at such cheap prices, it would not be surprising if cybersquatters are abusing these gTLDs as much as the spammers.
Will intellectual property owners believe a $498+ reg fee is a useful deterrent to cybersquatting?
Or will they look upon this move as “predatory”, as they did with .sucks?