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.vip and .now clear objections

Kevin Murphy, August 23, 2013, Domain Registries

The latest batch of Legal Rights Objection results has seen two proposed new gTLDs — .vip and .now — emerge unscathed from the objections phase of the new gTLD program.

There are six applications for .vip and one of the applicants, I-Registry, had filed LROs against its competitors.

Starbucks (HK), a cable company rather than a coffee chain, had also filed LROs against each of its five rivals for .now.

With yesterday’s decisions, all 10 objections have now been rejected.

In the case of .vip, every applicant wants to run it as a generic term, but I-Registry had obtained a European trademark on its proposed brand.

But Starbucks’ .now was to be a dot-brand reflecting a pre-existing mark unrelated to domain names. WIPO panelists found that trademark did not trump the proposed generic use by other applicants, however.

Both strings will now head to contention resolution, where an auction seems the most likely way to decide the winners.

New gTLDs: 23 community objections withdrawn

Kevin Murphy, August 21, 2013, Domain Registries

Almost a quarter of Community Objections against new gTLDs have been terminated without a decision, according to International Chamber of Commerce documentation.

The withdrawals leave the way open for the applied-for gTLDs .insure, .realty, .realestate, .cruises, .careers and .bio to proceed unencumbered by any objections at all.

In total 23 Community Objections, of the original 104 reported by ICANN, have been dropped. Two of the original 23 Limited Public Interest Objections have also been terminated, according to the ICC.

The terminated Community Objections seem to fall into a few categories.

Objections against applications for .autoinsurance, .carinsurance, .health, .mail and .patagonia appear to have been stopped because the applications themselves were withdrawn.

The Independent Objector, Alain Pellet, has withdrawn one Limited Public Interest — .health — and three Community objections — .patagonia, .indians, .hospital.

These seem to have been yanked due to either application withdrawals, matching objections filed by third parties, or by Governmental Advisory Committee advice.

Applications facing one fewer objection — but not zero objections — include those for .insurance, .broker, .hoteis, .hoteles, .health, and .kid.

GAC advice remains a concern for many of the affected applicants, even those that no longer face the uncertainty and expense of the objection process.

Donuts seems to have fared best from the terminations. Its .careers and .cruise bids seem to be the only ones to have emerged uncontested and with no outstanding objections or GAC advice.

The terminations were revealed in an updated list of objections published by the ICC on Monday.

The updated data is now indexed and searchable on the all-new, super-duper DI PRO Application Tracker.

Registrar rapped for failing to transfer UDRP domain

Kevin Murphy, August 20, 2013, Domain Registrars

The domain name registrar Gal Comm has been warned by ICANN that it risks losing its accreditation for failing to transfer a cybersquatted name to Home Depot.

The compliance notice (pdf) concerns the domain name homedpeot.com, which was lost in a UDRP filed in early March and decided on April 21.

According to ICANN, Gal Comm, which has about 30,000 gTLD domains under management, failed to transfer the domain within 10 days of finding out about the decision, as required under the policy.

Whois records compiled by DomainTools show that the domain was instead deleted at in early April, and subsequently re-registered with a different registrar, where it’s currently under dubious-looking privacy.

According to the ICANN compliance notice, Gal Comm says that it deleted the domain because it received a Whois inaccuracy complaint about it.

Assuming that’s correct (and the Whois back in March was blatantly false) we have an interesting tension between policies that seems to have caused a slip-up at the registrar.

But registrars are supposed to lock domains they manage after they become aware of UDRP actions, so allowing the domain to delete seems to be a breach of the policy.

ICANN has given Gal Comm until September 10 to produce its records relating to the domain — and pay past-due accreditation fees — or face possible de-accreditation.

It’s very rare for ICANN to send compliance notices to registrars related to UDRP implementation.

String confusion in disarray as Demand’s .cam loses against Verisign’s .com

Kevin Murphy, August 20, 2013, Domain Policy

Demand Media is demanding an ICANN review of its objections policy, after its applied-for new gTLD .cam was beaten in a String Confusion Objection by .com registry Verisign.

A International Centre for Dispute Resolution panelist has ruled (pdf) that .cam and .com are too confusingly similar to coexist, meaning Demand’s bid for .cam must be rejected by ICANN.

But the ruling by Urs Laeuchli conflicts with two other ICDR panel decisions on .cam, which both found that the string is NOT confusingly similar to .com and therefore can be delegated.

So while Demand’s .cam bid, under a strict reading of the rules, is now supposed to be rejected, applications for identical strings filed by AC Webhosting and dotAgency can go ahead.

ICANN has been thrown a curve ball it is not yet fully prepared to deal with.

As Akram Atallah, president of ICANN’s Generic Domains Division, told DI last week, it’s possible that the policy or the implementation of that policy may need to be revisited by ICANN and the community.

United TLD, the Demand Media subsidiary that applied for .cam, is now calling for precisely that, with vice president of business and legal affairs Statton Hammock writing today:

String confusion objections are meant to be applicant agnostic and have nothing to do with the registration or use of the new gTLD. What matters in string confusion objections is whether a string is visually, aurally or, according to ICANN’s Applicant Guidebook, otherwise “so nearly resembles another that it is likely to deceive or cause confusion.” Individuals may disagree on whether .CAM and .COM are similarly confusing, but there can be no mistake that United TLD’s .CAM string, AC Webhosting’s .CAM string, and dotAgency Limited’s .CAM string are all identical. Either all three applications should move forward or none should move forward.

The .cam cases are not alone in presenting ICANN with SCO problems.

Last week, Donuts’ bid for .pets was ruled confusingly similar to Google’s .pet, despite previous ICDR cases finding that plurals and singulars are not too confusing to coexist.

Where the .cam panelists disagreed

While there were three .cam cases, two of them were decided by the same panelist. It seems that both panelists were provided with very similar sets of evidence in all three cases.

It’s relevant to note that neither panelist — unlike some of their colleagues in other cases — thought it was appropriate to apply trademark law such as the DuPont factors in their decisions.

They did, however, consider the expected use cases of .cam.

All three applicants take .cam as short for “webcam” or “camera” and would target registrants interested in those fields (a lot of the use will likely be pornographic — AC Webconnecting is a porn firm after all).

But all three applicants also want to run “open” gTLDs, with no registration restrictions.

ICDR panelist Murray Smith was in charge of both the AC Webconnecting and dotAgency cases. He addressed expected usage explicitly in dotAgency, and explained why:

It is not just the visual, phonetic and conceptual similarity between the words that must be taken into account. In my view the greater emphasis should be focused on the use of the disputed extensions in the context of modern Internet usage. It is this context that compels the conclusion that an average Internet user would not be confused and would know that a .com website is probably a commercial website while a .cam websites would be something more focused in a particular field.

In AC Webconnecting, he wrote:

I agree that a consumer would quickly realize that a .cam website is likely associated with photography or camera use and is different than a .com website in use generally by a myriad of commercial entities.

So he’s putting the “greater emphasis” on usage — a factor that is not explicitly mentioned in the Applicant Guidebook’s description of the SCO and which may quite often differ between applicants.

Right there, in Smith’s interpretation of his task, we have a reason why SCOs will produce different results for identical strings.

I find Smith’s thinking baffling for a couple of reasons.

First, “a consumer would quickly realize that a .cam website is likely associated with photography” seems to ignore the existence of a bazillion .com web sites that are also associated with photography.

When did “commercial entities” and “photography or camera use” become mutually exclusive? Is photographyblog.com not confusingly similar to photographyblog.cam?

Second, he ignores the fact that basically anyone will be able to register a .cam web site for basically any purpose. None of the applicants want to restrict the gTLD to camera-related stuff.

ICDR panelist Laeuchli, in the Demand Media .cam case, raised this precise point, saying:

“.com” and “.cam” would use the same channels appealing to a broad audience. Even though according to Applicant, its envisioned TLD will “likely appeal” to a specific audience, it plans to operate “.cam” as an open gTLD. This would lead to extensive overlap.

Panelist Smith has some other notions about confusion that seem to defy common sense. He wrote in the AC Webconnecting case:

The .com TLD is the most widely recognized string in the Internet world. No reasonable Internet user would fail to recognize the .com TLD. The very reputation of the .com name serves to limit the potential for an average Internet user to be confused by the proposed .cam TLD. It is indeed unlikely that an online consumer would confuse a .com website with a .cam website.

Does this not strike anyone else as bad thinking?

It seems to me to be a little like saying that it’s perfectly okay to market a brand of carbonated beverage called Cuke, because Coke is so famous that nobody could possibly be confused. I don’t know where the law stands on that issue, but I’m pretty sure Coke wouldn’t be happy about it.

There’s also some weirdness in Laeuchli’s decision in the Demand case.

He puts some weight on the similarity scores produced by the controversial Sword algorithm in his decision, but apparently without doing even the basic research. He writes in his findings:

No matter what the standards and purpose the ICANN SWORD algorithm includes, it has comparative value.

Since pairs such as “God” and “dog” (85%) reach similarity scores of 84% and higher, how much more similar would “cxm” and “cxm” be (x being replaced with a vowel)!

The answer is that, according to Sword, they’re less similar. Sword scores “cam” v “com” at 63%.

Laeuchli knows it’s 63%, because he makes reference to that fact in his summary of Verisign’s evidence. He doesn’t need to speculate about the number based on what “god” v “dog” scores (and if he did the “dog” v “god” query himself, why on earth didn’t he just query “com” v “cam” too?)

His finding that .cam and .com will cause probable confusion seems to be based largely on expert witness testimony provided by both Verisign and Demand, in which he found Verisign’s more persuasive.

This evidence seems to have largely comprised the opinions of linguists, examining mouth shapes and acoustic frequencies, and market research looking into internet user behavior. As none of it has been published, it’s difficult to judge which side had the better arguments.

But it’s undeniably about the similarity of the strings, rather than the proposed usage, which makes Demand Media’s statement today — that SCOs “are meant to be applicant agnostic and have nothing to do with the registration or use of the new gTLD” — quite confusing.

Demand lost its case based on the string similarity, whereas the other two applicants won theirs based on the usage.

Perhaps Demand senses that its .cam application will not be immediately rejected if ICANN reopens the debate about string similarity. If think it’s probably correct.

ICANN passes 92 new gTLDs

Kevin Murphy, August 16, 2013, Domain Registries

Ninety-two new gTLD applications received passing Initial Evaluation scores this week, as ICANN approaches the end of the long-running process.

With two weeks left on the official timetable, only 236 applications remain in IE. Another 1,574 have passed. With no failures this week, the number heading to Extended Evaluation remains at 14.

These are this week’s passing strings, with links to the corresponding application on DI PRO.

.villas .soccer .delivery .med .casino .sina .pamperedchef .case .weibo .kids .college .tech .newholland .life .yoga .world .barclaycard .report .casino .orange .shop .music .walter .srl .poker .shop .qtel .author .help .sap .consulting .starhub .stcgroup .stada .gives .srt .vuelos .zuerich .thd .vacations .taxi .pid .garden .news .industries .love .poker .taxi .express .athleta .pitney .phd .etisalat .mom .merck .earth .beer .safeway .actor .foundation .dclk .hamburg .home .studio .cologne .aquarelle .archi .kia .quest .buy .panerai .chat .band .spa .flickr .playstation .mobile .cash .jprs .saarland .kfh .condos .chintai .blog .cpa .sfr .sale .sky .erni .mih .visa .tickets