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New rules could stop registries ripping off big brands

Kevin Murphy, January 25, 2021, Domain Policy

New gTLD registries could be banned from unfairly reaching into the deep pockets of famous brands, under proposed rules soon to be considered by ICANN.

A recommendation approved by the GNSO Council last Thursday targets practices such as using reserved and premium lists to block trademark owners from registering their brands during sunrise periods, or charging them exorbitant fees.

It’s believed to target new TLDs that hope to copy controversial practices deployed by the likes of .sucks, .feedback and .top in the 2012 gTLD round.

The recommendations came in the final report of Review of All Rights Protection Mechanisms (RPMs) in All gTLDs working group, which suggests over 30 tweaks to policies such as Sunrise, Trademark Claims, Trademark Clearinghouse and Uniform Rapid Suspension.

While the recommendations almost all received full consensus of the working group, that’s largely because the group could not agree to any of the major changes that had been demanded by the intellectual property lobby.

The aforementioned RPMs will therefore not change a great deal for the next batch of new gTLD applicants.

Even the recommendation about not ripping off big brands is fairly weak, and may well be watered down to homeopathic levels by the forthcoming Implementation Review Team, which will be tasked with turning policy into practice.

This is the recommendation:

Sunrise Final Recommendation #1

The Working Group recommends that the Registry Agreement for future new gTLDs include a provision stating that a Registry Operator shall not operate its TLD in such a way as to have the effect of intentionally circumventing the mandatory RPMs imposed by ICANN or restricting brand owners’ reasonable use of the Sunrise RPM.

Implementation Guidance:

The Working Group agrees that this recommendation and its implementation are not intended to preclude or restrict a Registry Operator’s legitimate business practices that are otherwise compliant with ICANN policies and procedures.

The idea is that ICANN Compliance could come down on registries deploying unfair rules designed to rip off trademark owners.

Practices that have come in for criticism in the past, and are cited in the report, include:

.top’s attempt to charge Facebook $30,000 for facebook.top

.feedback registering thousands of brand-match domains to itself

.sucks placing brand-match domains in an expensive premium pricing tier

Famous Four Media doing the same thing

The working group could not agree on whether any of these should be banned, and it looks like the IRT will have a lot of wriggle room when it comes to interpret the recommendation.

Now that the GNSO Council has approved the RPM working group’s final report (pdf), it will be passed to the ICANN board of directors for consideration before the nitty-gritty work of translating words into reality begins.

Crackdown looms for new gTLD auction gaming

Kevin Murphy, January 21, 2021, Domain Policy

ICANN will be urged to consider taking a stronger position against companies who apply for new gTLDs simply to lose them at auction or immediately flip them to others.

A community working group, known as SubPro and tasked with developing rules for the next new gTLD round, delivered its final Final Report this week, and the one area that failed to gain a designation of “consensus” or stronger was private auctions.

In the 2012 application round, several companies applied for large portfolios of strings that look — in hindsight at least — like efforts to game the system by forcing rivals to auctions they planned to deliberately use.

Companies such as MMX made millions losing auctions during the round, some of which was reinvested in winning auctions for other TLDs.

Applicant Nu Dot Co was notable for losing every private auction it participated in, then quickly flipping its successful .web application when Verisign stepped up with a $135 million bankroll.

While it’s difficult to know the extent to which this was all planned in advance, it proved the business model — filing spurious applications for new gTLDs you have no intention of launching — could be lucrative in future rounds.

But SubPro has put forward a slew of recommendations that, should they pass the remaining hurdles of the policy development track, could bring in substantial sanctions for those applicants and registries found to be gaming the system.

The SubPro recommendations are heavily buttressed with square parentheses, indicating disputed text, and supplemented by some minority statements from members of the working group who think that private auctions should be banned outright in future application rounds.

But the headline recommendation, numbered 35.3, is this:

Applications must be submitted with a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the gTLD clause for all applications that they submit.

Far from merely providing a check-box assertion that they’re legit, which would itself be easily gamed, applicants would also find their applications scrutinized by ICANN and its external evaluators to check for signs of a lack of bona fides.

Factors used to determine shadiness could include how many applications for contested strings are applied for, how many private auctions are lost, whether the successful applicant has not launched its gTLD within two years, and whether contracts are flipped within the first year.

SubPro discussed penalties for gaming could include the loss of registry contracts, a ban from future rounds or straight-up monetary fines. But the group did not put forward any recommendations.

SubPro couldn’t seem to come to agreement on most of this. The recommendations were determined to have “strong support but significant opposition” during the group’s recent consensus call.

One strong objection came from a somewhat diverse group of SubPro participants comprising Alan Greenberg (At-Large), Christopher Wilkinson (At-Large), Elaine Pruis (Verisign), George Sadowsky (Afilias/ISOC), Jessica Hooper (Verisign), Jim Prendergast (consultant), Jorge Cancio (Swiss government, but signed in a personal capacity) and Kathryn Kleiman (non-commercial users). They said:

The recommendations in the final report are a mix of overly complex disclosures and attestations that needlessly complicate the program to allow for private auctions. And they will not work. The only way to prevent a repeat of the activity from the 2012 round is to ban private auctions

They also claimed that allowing private auctions would putter smaller, niche and community applicants at a disadvantage, and that ICANN’s reputation would be harmed if it was seen to be overseeing gaming.

The At-Large Advisory Committee also issued a strong objection to private auctions along the same lines:

We remain concerned about attempts to “game” the application process through use of private auction and share the ICANN Board’s concerns on the consequences of shuffling of funds between private auctions. The ability for a loser to apply proceeds from one private auction to fund their other private auctions only really benefits incumbent registry operators or multiple-string applicants and clearly disadvantages single-TLD/niche applicants. We believe there should be a ban on private auctions, and that by mandating ICANN only auctions, the proceeds of ICANN auction can be directed for uses in public interest

The assumption there of course is that an ICANN “last resort” auction, in which the winning bid is funneled into ICANN’s cash pile, would be spent on stuff genuinely in the public interest, rather than frittered away on secretly settling employee lawsuits or indulging in more expensive, self-important navel-gazing.

Perhaps unsurprisingly, the ICANN board of directors has indicated that it prefers the idea of last resort auctions to private auctions.

But SubPro has also made some recommendations that could potentially keep the price of last-resort bids down, completely redesigning the auction process compared to the 2012 round.

If the recommendations are implemented, applicants would have to submit bids towards the start of the application process, when they don’t even know who they’re bidding against.

After all the applications have been submitted, ICANN evaluators would group them all according to whether they’re identical or confusingly similar to each other, then inform each applicant in a contention set how many bidders — but not their identities — they’re up against.

Applicants would then have to submit a sealed bid stating the maximum price they’d be willing to pay for the gTLD in question. It would be only after “reveal day”, when ICANN publishes the applications themselves, that everyone would learn who they’re bidding against.

They’d then be able to engage in private resolutions (auctions could come into play at this point), but it would only be after contention resolution phases such as objections and Community Priority Evaluations were complete that applicants would find out who’d submitted the highest bid.

The winning bidder would pay the amount of the second-highest bid to ICANN.

The 400-page final report (pdf), along with the minority statements, will now be sent to the GNSO Council for approval, before it makes its way to the ICANN board.

Given how much work remains to be done on private auctions and other issues that I’ll get to in later coverage, it seems that a lot of the mechanics of how contention resolution will work will have to be devised by ICANN and the community during the Implementation Review Team and Operation Design Phase phases, along with at least one round of commentary on at least one edition of the next Applicant Guidebook.

The next round of new gTLDs has moved a step closer, but it’s still going to be well over a decade after the last application window before we see the next one.

Would-be new country wants to share another country’s ccTLD

Kevin Murphy, January 21, 2021, Domain Policy

What do you do if you’re the government of a country without a ccTLD, because the rest of the world does not recognize you as a country?

Perhaps the strangest solution to this predicament is to ask another country with a semantically meaningful ccTLD of its own if you can share that national resource.

And that’s reportedly what the government of Somaliland has done, reaching out to Sierra Leone for permission to use its .sl TLD.

According to the Somaliland Chronicle, its IT minister has written to his counterpart in Sierra Leone to propose “a commercial partnership with your esteemed office regarding the internet Top Level Domain”.

The east African country, which has its own government and a small degree of international recognition, is not currently acknowledged by the United Nations — it’s considered part of neighboring Somalia — and as such does not qualify for a ccTLD under International Standards Organization (and therefore ICANN) policies.

The minister has reportedly forbidden the use of Somalia’s .so domain, and the government itself uses a .org.

Sierra Leone, on the other side of the continent, uses .sl, which would also be the perfect choice for Somaliland if it were not already taken.

It’s not clear to what extent Somaliland wishes to share the ccTLD, but if it were to go as far as full joint ownership that would be unusual indeed.

Of course, the quickest way into the DNS root in its own right could be to apply for a memorable, relevant gTLD in ICANN’s next application round, which is probably not too many years away right now.

In 2012, there were several applications for geo-gTLDs representing regions that want, to a greater or lesser extent, independence.

This trail was over course blazed almost in 2003 by Catalonia’s .cat and now includes the likes of .scot (Scottish), .eus (Basques) and .krd (Kurds).

New gTLD consultants, start your engines.

153 registrars fingered for ICANN security probe

Kevin Murphy, January 18, 2021, Domain Registrars

Registrars will be asked to account for abusive domain names found on their services, under a new ICANN security audit.

ICANN says it will soon send requests for information to 153 registrars, asking them to provide documentation showing how they dealt with domains used for distribution of malware or spam.

Registrars will get audited if more than five domains under their sponsorship showed up on a number of block-lists ICANN uses (SpamHaus and the like) during November 2020.

ICANN is spinning the number of affected registrars as a very small percentage of the accredited base, but it really isn’t.

It said that “only” 153 out of 2,380 accredited registrars are affected, apparently willfully ignoring the fact that well over 1,700 of these registrars are shell accreditations used for drop-catching and belonging to just two companies: Web.com and NameBright.

Domains never stick around at drop-catch shells for long, and abusive registrants typically aren’t buying expensive names on the aftermarket, they’re prowling the budget registrars for sub-dollar bargains and bulk-reg tools.

Up to a couple hundred or other accredited registrars have no or negligible domains under management. Several more are corporate registrars with no retail front-end.

So we’re really looking at “only” 153 out of 500 to 600 active retail registrars that saw the required level of abuse, a much higher percentage than would be ideal.

The audit is part of ICANN’s regular Contractual Compliance Audit Program, which seeks to determine whether any registrars or registries are in breach of their contractual obligations.

Under the 2013 Registrar Accreditation Agreement, registrars are obliged to document their responses to abuse reports, keep the data for two years, and hand it over to ICANN on demand.

ICANN hopes to finish the audit by the third quarter this year.

ICANN axes Cancun again. Apparently there’s a pandemic

Kevin Murphy, January 18, 2021, Domain Policy

ICANN has formally confirmed that its seventieth public meeting will be online-only, disappointing restaurateurs and sex workers in Cancun, Mexico for the second year running.

The meeting will also be mercifully shorter, with two days cut from its running time. The new dates are March 22 to March 25. Thankfully, ICANN actually announced the date change this time around.

ICANN top brass had indicated as far back as October that Cancun was very unlikely to go ahead as an in-person meeting.

It will be the fourth consecutive meeting to be held via Zoom since the coronavirus pandemic began a year ago. My guess is it won’t be the last.

The next meeting this year is slated to take place in The Hague in late June, but I think only an strident optimist or denialist could imagine that actually happening.

It’s pandemic continuity versus gender diversity in ICANN’s board wish-list

Kevin Murphy, January 13, 2021, Domain Policy

ICANN’s Nominating Committee will be asked to pit two fundamentally opposed principles against each other when they pick three members of the organization’s board of directors this year.

Board chair Maarten Botterman has asked NomCom to prioritize continuity — keeping experienced directors in place — while also increasing gender diversity in the male-heavy current line-up.

Botterman this week sent a letter (pdf) to NomCom chair Ole Jacobsen, offering guidance virtually identical to that found in a December 2019 letter (pdf) to his predecessor.

The two most significant changes concern the impact on the board’s work of the coronavirus pandemic.

Noting that it typically takes a year or two for new directors to learn the ropes, and that it’s useful to have a staggered mix of tenures among the board, Botterman goes on to say:

Continuity is particularly important this year given the recent departure of the Board’s longest-serving, term- limited member and the ongoing challenges arising from the pandemic, including uncertainties about when the full Board may be next able to move from its current remote schedule to in-person meetings.

The long-serving member who left was presumably Chris Disspain, certainly one of the most active directors in recent years.

Later, Botterman’s letter contains an entirely new paragraph explaining what a time vampire ICANN directorship can be:

We underscore the significant time commitment required of Board members. Applicants must be able to devote weeks and long hours throughout the year to Board service, and even more because of the challenges caused by the pandemic. Among many other key initiatives, one focus in the upcoming year will be understanding and evaluating the expected recommendations from the policy development process on Subsequent Procedures regarding the next round of new gTLDs (as well as implementation of several Board-approved recommendations from community groups).

That, at least, should provide some comfort to those champing at the bit to get the next round of new gTLDs up and running — ICANN clearly expects it to happen at some point in the next four years.

So there’s a definite, newly emphasized focus on continuity at ICANN.

That’s good news for Lito Ibarra, Danko Jevtović and Tripti Sinha, the three NomCom appointees whose current terms end this coming October. Ibarra is on his second three-year term, the other two on their first. All are eligible for reselection.

The Botterman letter is less encouraging for Ibarra and Jevtović, who are men. ICANN is still seeking to increase gender diversity on its board, which only currently has five female voting members of 16 total directors.

While the wording is slightly different to the 2020 guidance, the essence is the same:

The ICANN community has also expressed strong support for efforts to increase diversity along several axes, especially including gender diversity, across the ICANN eco-system. Without compromising the fundamental requirement to have Board members with the necessary integrity, skills, experience, the Board would find it helpful to have greater gender diversity on the Board.

NomCom may find this pressure is relieved slightly by the fact that current ccNSO representative to the board, Nigel Roberts, is being replaced by Katrina Sataki of the Latvian ccTLD registry this October, following an election last month.

The Address Supporting Organization’s rep, Ron Da Silva, is also ending his current term this year. He’s up for reselection against nine other candidates, three of whom are female.

Here’s why two ICANN directors opposed extending Marby’s CEO contract

Kevin Murphy, January 7, 2021, Domain Policy

ICANN CEO Göran Marby’s personality came into question when the organization’s board of directors voted to prematurely extend his contract last year, it emerged this evening.

Back in October, the board voted to add two years to Marby’s current contract, which had been due to expire May 23, 2022, saying it would help with continuity and provide a “sense of calm” at the org.

But one director voted against the extension, and another abstained. Today, with the publications of the October 7 meeting’s minutes, we found out the whos and and whys.

Ihab Osman was the director who voted against the deal, telling the rest of the board that there should have been a formal review and plan to address Marby’s “communications style”, which has apparently come in for criticism.

He added that there should have been a global search for a CEO after Marby’s first six years (that is, in 2022). The minutes read:

Ihab stated that the decision to extend the President and CEO’s contract was taken without, in his view, a formalized professional performance review process reflecting on the past four years of the CEO’s service. He stated that he believed that not doing so was inconsistent with best practices for an organization of the size and importance as ICANN. Ihab noted that comments had been expressed about the CEO’s communication style and did not believe there was a formal plan to work on this issue. Ihab stated his belief that extending a contract that has two years before it is completed is premature, noting that organizations generally benefit from a global search for a CEO after a six-year tenure.

Osman is a Sudanese businessman who currently lists his employers as Saudi agricultural company NADEC and the US-Sudan Business Council.

The director who abstained from the vote was Mandla Msimang. She had procedural concerns, saying that the decision should have been subject to more input from other stakeholders. The minutes read:

Mandla explained that her abstention is not a reflection on the President and CEO. Mandla indicated that she abstained from voting because she did not agree with the process that has been followed to arrive at the decision. Mandla noted that she believes the process lacked a performance-based approach and lacked a more extensive input from key stakeholders, namely the org staff and the community.

South African Msimang is CEO of Nozala Investments, an investment vehicle focused on female-owned businesses.

Both she and Osman are Nominating Committee appointees whose first three-year terms on the ICANN board end in 2022.

While the minutes do not elaborate on the apparent criticisms of Marby’s “communications style”, it’s probably fair to say he’s a bit more confrontational and abrasive when compared to his predecessors.

Fadi Chehadé sometimes came across like a used-car salesman hiding behind a dubious veil of servile humility; Rod Beckstrom had baffling New Age hippy tendencies and often appeared out of his depth when it came to the minutiae of ICANN’s function.

As for Marby’s style… what do you think? Answers in the comments or privately to the usual address.

Rules for the next new gTLD round near the final straight

Kevin Murphy, January 7, 2021, Domain Policy

The ICANN working group tasked with creating policies for the next round of new gTLDs is wrapping up its work this week, setting up the battle lines for the next phase of the program’s development.

Members of the cross-constituency Subsequent Procedures for new gTLDs group, known as SubPro, have until a minute before midnight UTC Friday night to declare whether they’re not happy with any parts of the 373-page document (pdf).

It’s expected that some groups and individuals will have beef with some of the SubPro recommendations, which will be included in the Final Report as dissenting minority statements before it is sent off to the GNSO Council later this month.

The report, the product of five years of discussions, will largely affirm that the next new gTLD round will proceed along roughly the same lines as the 2012 round, with some of ICANN staff’s historical ad-libs being codified and a few new big concepts introduced.

New additions include the idea of a pre-evaluation process for registry service providers, enabling applicants to pick from a menu of pre-approved back-ends and avoid the cost of having their technical prowess evaluated for every string they apply for.

The price of applying could be kept artificially high, however, to discourage gTLD stockpiling, and the report will also recommend banning the coexistence of single/plural variants of the same word.

One area where there was definitely no consensus was the issue of “closed generics” — a non-brand string reserved for the sole use of the registry — it’s going to be up to the GNSO Council and ICANN to muddle through this one.

While the consensus call marks the end of the working group phase of new gTLD policy development, there are still many substantial hurdles to leap before the next application round opens.

In the last round, the policy was approved by the GNSO Council in 2007, and ICANN didn’t start accepting applications until the start of 2012.

it may not take five years between policy and launch this time, if only because many of the new recommendations are merely affirmations of the status quo, but there are new mechanisms ICANN will have to implement before the next round opens, and we should probably expect more than one comment period on iterations of the next Applicant Guidebook.

The road between now and the next round is still likely measured in years.

Net 4 India gets unwelcome Christmas gift from ICANN

Kevin Murphy, January 4, 2021, Domain Registrars

Struggling Indian registrar Net 4 India has been hit by its third notice of contract breach by ICANN, in a letter delivered Christmas Eve.

Net4 is on ICANN’s naughty list this time due to its alleged violations of ICANN’s transfer and expired domains policies. The breach notice is very similar to that delivered just two weeks earlier, concerning different domains.

ICANN reckons Net4, once India’s largest independent registrar, has in some cases been transferring domains to a partner registrar, OpenProvider, without the consent or knowledge of the registrant.

It’s been asking the company for records proving compliance, which Net4 has apparently not been providing. Therein lies the alleged breach.

Net4 has been persona non grata among many of its customers for several months, with complaints about billing and renewal failures, expirations, and a general lack of customer service availability compounded by the coronavirus pandemic.

The company has also been fighting an insolvency proceeding over millions of dollars in allegedly unpaid debts for years, which has been the subject of an ICANN breach notice for about 18 months.

The Christmas Eve breach notice gives Net4 until January 14 to turn over the relevant records or possibly face termination.

But that might prove moot — the December 10 notice had a deadline of December 31, so the wheels may already be in motion.

Fuji Xerox kills off gTLD after rebrand

Kevin Murphy, January 4, 2021, Domain Registries

Fuji Xerox has become the latest multi-billion-dollar company to ditch its dot-brand gTLD.

The Japanese-American company, a joint venture of Xerox and Fuji, has told ICANN it wants to terminate its registry contract for .fujixerox, and ICANN has indicated its intention to let the string die.

The gTLD was not in use, beyond the mandatory nic.fujixerox placeholder site.

That said, the termination appears to be primarily due to a rebranding as the joint venture fizzles out.

Fuji Xerox is, according to Wikipedia, the world’s oldest Japanese-American joint-venture company, at 59 years old. It’s in the document processing space and had $11 billion in annual revenue.

But the companies said last year they would end the relationship, with Xerox no longer providing its tech, leading to rebranding the company Fujifilm Business Innovation. The dot-brand is clearly no longer needed.

Xerox also owns .xerox, and it’s not using that either. There is no .fuji or .fujifilm.

.fujixerox the first dot-brand to jump off the cliff this year, and the 86th in total.