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Sorry, you still can’t sue ICANN, two-faced .africa bidder told

Kevin Murphy, September 9, 2019, Domain Policy

Failed .africa gTLD applicant DotConnectAfrica appears to have lost its lawsuit against ICANN.

A California judge has said he will throw out the portions of DCA’s suit that had not already been thrown out two years ago, on the grounds that DCA was talking out of both sides of its mouth.

DCA applied for .africa in 2012 but lost out to rival applicant ZA Central Registry because ZACR had the backing of African governments and DCA did not.

It filed an Independent Review Process complaint against ICANN in 2013 and won in 2015, with the IRP panel finding that ICANN broke its own bylaws by paying undue deference to Governmental Advisory Committee advice.

It also emerged that ICANN had ghost-written letter of government support on behalf of the African Union, which looked very dodgy.

DCA then sued ICANN in 2016 on 11 counts ranging from fraud to breach of contract to negligence.

The Los Angeles Superior Court decided in 2017 that five of those charges were covered by the “covenant not to sue”, a broad waiver that all new gTLD applicants had to sign up to.

But the remaining six, relating to ICANN’s alleged fraud, were allowed to go ahead.

ICANN relied in its defense on a principle called “judicial estoppel”, where a judge is allowed to throw out a plaintiff’s arguments if it can be shown that it had previously relied on diametrically opposed arguments to win an earlier case.

The judge has now found that estoppel applies here, because DCA fought and won the IRP in part by repeatedly claiming that it was not allowed to sue in a proper court.

It had made this argument on at least seven occasions during the IRP, Judge Robert Broadbelt found. He wrote in his August 22 ruling (pdf):

DCA’s successfully taking the first position in the IRP proceeding and gaining significant advantages in that proceeding as a result thereof, and then taking the second position that its totally inconsistent in this lawsuit, presents egregious circumstances that would result in a miscarriage of justice if the court does not apply the doctrine of judicial estoppel to bar DCA from taking the second position in this lawsuit. The court therefore exercises its discretion to find in favor of ICANN, and against DCA, on ICANN’s affirmative defense of judicial estoppel and to bar DCA from bringing or maintaining its claims against ICANN alleged in the [First Amended Complaint] in this lawsuit.

In other words, ICANN’s won.

The case is not yet over, however. DCA still has an opportunity to object to the ruling, and there’s a hearing scheduled for December.

Berkens says new gTLDs mostly suck but geos suck hardest

Kevin Murphy, August 12, 2019, Domain Sales

Ever since he cashed out his massive portfolio of domain names in a bulk sale to GoDaddy three and a half years ago, domain investor Mike Berkens has been dabbling in new gTLDs, and so far he’s not impressed.

In a recent conference speech and blog post, he revealed some of his experiences parking and trying to sell his new g names, and he has come down particularly harshly on geographic TLDs.

City TLDs such as .london, .nyc and .miami are “death” to a domain investor, he said at a domainer meetup in Asheville, North Carolina last week.

His portfolio of 29 .miami names has had just 532 type-in visits in the last year, and have not received a single offer, he wrote on TheDomains.com.

On the flip-side, Berkens told his audience that domain combinations that naturally fit together, such as online.dating, atlantic.city, moving.company and bank.loans are profitable from type-in traffic and can get thousands of visitors a year.

They can be profitable even when the registry charges a premium renewal fee, he said. The domain obama.care makes him $500 a year parked and has a $150 annual renewal, he said.

But when asked directly whether he would recommend new gTLDs to domain investors, Berkens said he would not, citing among other things the added risk of unregulated price increases in the new gTLD space.

Berkens made eight figures selling his portfolio of 70,000 names to GoDaddy in 2015, but the deal apparently did not include the new gTLD names he’d picked up along the way.

You can watch his 24-minute talk here.

Four presidents slam .amazon decision

Kevin Murphy, May 28, 2019, Domain Policy

The leaders of four of the eight governments of the Amazon region of South America have formally condemned ICANN’s decision to move ahead with the .amazon gTLD.

In a joint statement over the weekend, the presidents of Peru, Colombia, Ecuador and Bolivia, said they have agreed to “to join efforts to protect the interests of our countries related to geographical or cultural names and the right to cultural identity of indigenous peoples”.

These four countries comprise the Andean Community, an economic cooperation group covering the nations through which the Andes pass, which has just concluded a summit on a broad range of issues.

The presidents said they have “deep concerns” about ICANN’s decision to proceed towards delegating .amazon to Amazon the company, over the objections of the eight-nation Amazon Cooperation Treaty Organization.

ICANN is “setting a serious precedent by prioritizing private commercial interests over public policy considerations of the States, such as the rights of indigenous peoples and the preservation of the Amazon in favor of humanity and against global warming”, they said (via Google Translate).

ACTO had been prepared to agree to Amazon running .amazon, but it wanted effective veto power on the TLD’s policy-setting committee and a number of other concessions that Amazon thought would interfere with its commercial interests.

As it stands, Amazon has offered to block thousands of culturally sensitive domains and to give the ACTO nations a minority voice in its policy-making activities.

ICANN will soon open these proposed commitments to public comment, and will likely decide to put .amazon into the root not too long thereafter.

Amazon wins! ICANN on verge of approving .amazon despite government outrage

Amazon has one foot over the finish line in its seemingly endless battle for the .amazon gTLD.

ICANN last week nudged its application along to probably its final hurdle and gave the strongest indication yet that the controversial dot-brand will soon be delegated in the root.

Amazon has essentially won, beating off objections from the eight South American nations of the Amazon Cooperation Treaty Organization.

In a May 15 resolution, published late Friday, the ICANN board of directors resolved that there is “no public policy reason for why the .AMAZON applications should not be allowed to proceed”.

It now plans to approve the application for .amazon, along with the Chinese and Japanese translations, after Amazon’s “Public Interest Commitments” — enforceable voluntary commitments that would be incorporated into its registry contract — have been subject to 30-day public comment period.

These PICs would require Amazon to give each of the eight nations, and ACTO itself, one domain name under .amazon that they could use to provide non-commercial information about the region whose name the company shares.

Amazon would also have to block up to 1,500 culturally sensitive terms in each of the TLDs, so that nobody could use them.

There’d be a steering committee comprising Amazon and the ACTO members, which would get to decide which domains are blocked. Amazon would have the ultimate veto, but ACTO states could appeal by filing PIC Dispute Resolution Procedure complaint with ICANN.

The text of Amazon’s proposed PICs can be found in an April 17 letter to ICANN (pdf).

As far as I can tell, the public comment period has not yet been opened. If it has, it’s so well-hidden on the ICANN web site that even my voodoo powers have been ineffective in unearthing it.

It seems likely that it will attract comment from ACTO and its members, along with others with an interest in protecting the Amazon region.

Whether their comments will be enough to make ICANN change its mind about eventually delegating .amazon seems highly unlikely.

Amazon, in my view, has basically won at this point.

The victory comes over seven years after the original application was filed.

Amazon fought off a Community Objection from the Independent Objector in 2013, but its applications were rejected by ICANN after receiving consensus advice from the Governmental Advisory Committee.

The GAC reached consensus against Amazon only after the United States, which had been protecting what is one of its largest technology companies’ interests, caved to pressure from the rest of the committee.

But Amazon filed an Independent Review Process complaint, which in July 2017 came back in the company’s favor. The IRP panel ruled that the GAC’s advice had been flimsy and baseless, and that ICANN should un-reject the .amazon applications.

Since then, it’s been a fight between Amazon and ACTO, with ICANN trapped in the middle.

As far as ICANN is concerned, the GAC had only advised it to “facilitate” a resolution between the two parties. It does not appear to believe it was under an obligation to assure that both parties were happy with the outcome.

ACTO had wanted much stronger protections from Amazon including majority control of the policy steering committee and, hilariously, a button on every single .amazon web page linking to an ACTO site promoting the Amazon region.

The company rejected those requests, and instead put its own unilateral proposal to ICANN.

Following ICANN’s approval, it’s now very possible that Amazon could start using .amazon this year.

However, given the usual speed at which the company launches its delegated gTLDs, some time in the 2030s is just as likely.

Oh, the irony! Banned anti-Islam activist shows up on “Turkish” new gTLD domain

Kevin Murphy, April 23, 2019, Domain Policy

Tommy Robinson, who has been banned from most major social media platforms due to his anti-Islam “hate speech”, is now conducting business via a domain name that some believe rightfully belongs to the Muslim-majority nation of Turkey.

The registration could add fuel to the fight between ICANN and its governmental advisers over whether certain domains should be blocked or restricted.

Robinson, the nom de guerre of the man born Stephen Yaxley-Lennon, is the founder and former leader of the far-right English Defence League and known primarily for stirring up anti-Muslim sentiment in the UK for the last decade.

He’s currently, controversially, an adviser to the UK Independence Party. Former UKIP leader Nigel Farage, also a thoroughly unpleasant bloke, considers Robinson so far to the right he quit the party in response to the appointment.

Over the last year, Robinson has been banned from Twitter, Facebook and Instagram, and had his YouTube account placed under serious restrictions. This month, he was also banned from SnapChat, and the EDL he used to lead was among a handful of far-right groups banned from Facebook.

Since his personal Facebook page went dark in February, he’s been promoting his new web site as the primary destination for his supporters.

It features news about his activities — mainly his ongoing fights against social media platforms and an overturned contempt of court conviction in the UK — as well as summaries of basically any sufficiently divisive anti-Islam, anti-immigration, or pro-Brexit stories his writers come across.

The domain he’s using is tr.news, a new gTLD domain in a Donuts-owned registry. It was registered in December via GoDaddy.

Given it’s a two-character domain, it will have been registry-reserved and would have commanded a premium price. Other two-character .news domains are currently available on GoDaddy for between $200 and $10,000 for the first year.

It will come as no surprise at all for you to learn that the domain was transferred out of GoDaddy, which occasionally kicks out customers with distasteful views, to Epik, now de facto home of those with far-right views, a couple of weeks after the web site launched.

The irony of the choice of domain is that many governments would claim that tr.news — indeed any two-character domain, in any gTLD, which matches any country-code — rightfully belongs to Turkey, a nation of about 80 million nominal Muslims.

TR is the ISO 3166-1 two-character code for Turkey, and until a couple of years ago new gTLD registries were banned from selling any of these ccTLD-match two-letter domains, due to complaints from ICANN’s Governmental Advisory Committee.

Many governments, including the UK and US, couldn’t care less who registers their matching domain. Others, such as France, Italy and Israel, want bans on specific domains such as it.pizza and il.army. Other countries have asked for blanket bans on their ccTLD-match being used at all, in any gTLD.

When new gTLDs initially launched in 2012, all ccTLD matches were banned by ICANN contract. In 2014, ICANN introduced a cumbersome government-approval system under which governments had to be consulted before their matches were released for registration.

Since December 2016, the policy (pdf) has been that registries can release any two-letter domains, subject to a provision that they not be used by registrants to falsely imply an affiliation with the country or registry with the matching ccTLD.

Robinson is certainly not making such an implication. I imagine he’d be as surprised as his readers to learn that his new domain has a Turkish connection. It’s likely the only people who noticed are ICANN nerds and the Turkish themselves.

Would the Turkish people look at tr.news and assume, from the domain alone, that it had some connection to Turkey? I think many would, though I have no idea whether they would assume it was endorsed by the government or the ccTLD registry.

Would Turkey — a government whose censorship regime makes Robinson’s social media plight look like unbounded liberalism — be happy to learn the domain matching its country code is being used primarily to deliver divisive content about the coreligionists of the vast majority of its citizens? Probably not.

But under current ICANN policy it does not appear there’s much that can be done about it. If Robinson is not attempting to pass himself of as an affiliate of the Turkish government or ccTLD registry, there’s no avenue for complaint.

However, after taking the cuffs off registries with its December 2016 pronouncement, allowing them to sell two-letter domains with barely any restrictions, ICANN has faced continued complaints from the GAC — complaints that have yet to be resolved.

The GAC has been telling ICANN for the last two years that some of its members believe the decision to release two-character names went against previous GAC advice, and ICANN has been patiently explaining the process it went through to arrive at the current policy, which included taking GAC advice and government comments into account.

In what appears to be a kind of peace offering, ICANN recently told the GAC (pdf) that it is developing an online tool that “will provide awareness of the registration of two-character domains and allow for governments to report concerns”.

The GAC, in its most-recent communique, told ICANN its members would test the tool and report back at the public meeting in Montreal this November.

The tool was not available in December, when tr.news was registered, so it’s not clear whether Turkey will have received a formal notification that its ccTLD-match domain is now registered, live, and being used to whip up mistrust of Muslims.

Update April 30: ICANN informs me that the tool has been available since February, but that it does not push notifications to governments. Rather, governments can search to see if their two-letter codes have been registered in which gTLDs.