ICANN has beaten off a lawsuit from alternate root provider name.space for a second time, with a US appeals court ruling that the new gTLD program was not an illegal conspiracy.
name.space sued ICANN in 2012, claiming that the program broke competition laws and that “conflicted” ICANN directors conspired with the industry in an “attack” on its business model.
The company runs an alternate DNS root containing hundreds of TLDs that hardly anyone knows about, cares about, or has access to.
Almost 200 of the strings in its system had matching applications in the 2012 new gTLD round; many have since been delegated.
The company’s complaint asked for an injunction against all 189 matching TLDs.
But a court ruled against it in 2013, saying that name.space had failed to make a case for breaches of antitrust law.
Last week, an appeals court upheld that ruling, saying that the company had basically failed to cross the legal threshold from simply making wild allegations to showing evidence of an illegal conspiracy.
“We cannot… infer an anticompetitive agreement when factual allegations ‘just as easily suggest rational, legal business behavior.’,” the court ruled, citing precedent.
“Here, ICANN’s decision-making was fully consistent with its agreement with the DOC [US Department of Commerce] to operate the DNS and the Root,” it wrote. “In transferring control to ICANN, the DOC specifically required it to coordinate the introduction of new TLDs onto the Root. This is exactly what ICANN did in the 2012 Application Round”.
“The 2012 rules and procedures were facially neutral, and there are no allegations that the selection process was rigged,” the panel ruled.
The court further ruled that ICANN is not a competitor in the markets for domain names as registry, registrar or defensive registration services, therefore it could not be subject to antitrust claims for those markets.
A few other claims against ICANN were also dismissed.
In short, it’s a pretty decisive victory for ICANN. General counsel John Jeffrey said in a statement that ICANN is “pleased” to have won.
All the major documents in the case, including the latest opinion, can be downloaded here.
While the lawsuit has been making its way through the courts, the .space gTLD has actually been delegated and the domain name.space is owned by its new registry, Radix.
There’s some salt in the wounds.
Just one out of every 10 governments in the ICANN Governmental Advisory Committee is happy for people to register its country name in new gTLDs.
That’s according to a new GAC database detailing which countries want to keep tabs on how their names are being used.
Out of 80 GAC members contributing to the database, just eight have said registries can sell their country names with no restrictions.
The eight countries and territories are the UK, the USA, Denmark, Finland, Netherlands, Sweden, Guernsey and Pitcairn.
New gTLD registries will therefore be able to auction off, for example, finland.guru or pitcairn.news, to whoever wants them.
Another 10 governments — Belgium, Brazil, Bulgaria, Czech Republic, Georgia, Montenegro, New Zealand, Romania, Spain and Switzerland — have relinquished oversight in the case of dot-brand registries that have signed Specification 13 of the ICANN Registry Agreement.
So if Sony wants to register brazil.sony to itself, it can without restrictions.
Under the new gTLD Registry Agreement, all country and territory names in the six official UN languages have to be reserved by all registries unless they can reach agreement with the applicable government.
The 18 governments mentioned above have basically waived this right to be notified in whole or in part.
The remaining 62 governments say they still wish to be notified when a registry wants to release its name.
GAC chair Thomas Schneider told ICANN (pdf) that countries not yet listed in the database should be treated as if they’re still restricted, so the actual number is closer to 200.
In short, this database is not a lot of help to dot-brands and other registries that want to start using or selling country names.
Critics have pointed out that many governments wanting to regulate their names in new gTLDs have not done so in their own ccTLDs.
Of the 62, ownership of country names is mixed. Italy owns italy.it and italia.it, for example, while germany.de and deutschland.de appear to be in private hands.
Electronics firm Sharp wants to remove part of its new gTLD registry contract relating to Whois.
The company has filed a Registry Services Evaluation Process request to get its requirement to offer “searchable Whois” dropped. RSEP is the mechanism registries use to amend their contracts.
ICANN’s initial review has not found any security, stability or competition problems and has now opened the request up for public comment.
Because .sharp will be a dot-brand, all the domains would belong to Sharp and its affiliates, reducing the value of searchable Whois.
Searchable Whois is an enhanced Whois service that allows users to search on all fields (such as registrant, email address, etc) rather than just the domain name.
Such services are not mandatory under ICANN’s new gTLD rules, but applicants that said they would offer them could score an extra point in their Initial Evaluation.
In Sharp’s case, a one-point difference would not have affected the outcome of its IE. In any event, it did not score the extra point.
Sharp said it was requesting the change because it’s switching back-ends from GMO Internet to JPRS, which apparently does not or does not want to support searchable Whois.
With the minutes ticking down to the deadline for scores of dot-brands to sign registry agreements with ICANN, over 100 have not, according to ICANN’s web site.
New gTLD applicants had until July 29 to sign their contracts or risk losing their deposits.
I reported a week ago that roughly 170 would-be dot-brands had yet to sign on the dotted line, and my records show that only 35 have done so in the meantime.
Another four applications have been withdrawn.
One of the newly contracted parties is Go Daddy, which signed an RA for .godaddy last week. Others include .nike, .comcast and .mitsubishi.
Unless we see a flood of new contracts published over the next day or two, it seems likely well over 100 strings will soon be flagged as “Will Not Proceed” — the end of the road for new gTLD applications.
That may not be the final nail in their coffins, however.
Last week, ICANN VP Cyrus Namazi said that applicants that miss today’s deadline will receive a “final notice” in about a week. They’ll then have 60 days to come back to the process using the recently announced Application Eligibility Reinstatement process.
Eleven variants of .com and .net in non-Latin scripts joined the internet today.
Verisign’s whole portfolio of internationalized domain name new gTLDs were added to the DNS root at some point in the last 24 hours, and the company is planning to start launching them before the end of the year.
But the company has been forced to backtrack on its plans to guarantee grandfathering to thousands of existing [idn].com domains in the new domains, thereby guaranteeing a backlash from IDN domainers.
The eleven gTLDs are: .कॉम, .ком, .点看, .คอม, .नेट, .닷컴, .大拿, .닷넷, .コム, .كوم and .קוֹם. Scripts include Arabic, Cyrillic and Hebrew.
Verisign signed registry agreements with ICANN back in January, but has been trying to negotiate a way to allow it to give the owners of [idn].com domains first rights to the matching domain in the “.com” in the appropriate script.
The company laid out its plans in 2013. The idea was to reduce the risk of confusion and minimize the need for defensive registrations.
So what happened? Trademark lawyers.
Verisign CEO Jim Bidzos told financial analysts last week that due to conversations with the “community” (read: the intellectual property lobby) and ICANN, it won’t be able grandfather all existing [idn].com registrants.
All of the new IDN gTLDs will be subject to a standard ICANN Sunrise period, which means trademarks owners will have first dibs on every string.
If you own водка.com, and somebody else owns a trademark on “водка”, the trademark owner will get the first chance to buy водка.ком.
According to SeekingAlpha’s transcript, Bidzos said:
Based primarily on feedback from domain name community stakeholders, we have revised our IDN launch strategy. We will offer these new IDN top-level domains as standalone domain names, subject to normal introductory availability and rights protection mechanisms, available to all new gTLDs. This revised approach will not require ICANN approval and is designed to provide end users and businesses with the greatest flexibility and, for registrars, a simple and straightforward framework to serve the market.
Finally, we believe this approach should provide the best opportunity for increased universal acceptance of IDNs. We expect to begin a phased rollout of the IDNs towards the end of this year, and we’ll provide more information on our launch plans when appropriate.
Senior VP Pat Kane added on the call that the grandfathering provisions, which would have required ICANN approval, have been “taken out”.
The question now is whether Verisign will introduce a post-sunrise mechanism to give rights to [idn].com.
That would not be unprecedented. ICM Registry ran into similar problems getting its grandfathering program for .porn approved by ICANN. It wound up offering a limited, secondary sunrise period for existing .xxx registrants instead.