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Soon Verisign could sell .com domains direct

Kevin Murphy, October 22, 2012, Domain Registries

With little fanfare, ICANN last week formally approved new rules that could allow incumbent registry operators to own registrars that sell domains in their own gTLDs.

The policy would give the likes of Verisign, Neustar and Afilias the right to become affiliated with registrars that sell .com, .biz and .info names respectively.

These registries would have to sign up to the standard new gTLD registry agreement first, or submit to contract renegotiation in order to drop their current cross-ownership bans.

In either case, they would become bound by the new registry Code of Conduct, preventing them from offering preferential terms to their affiliated registrars.

The new rule came into effect following the ICANN board meeting on Thursday, at which this resolution was passed.

ICANN had already dropped cross-ownership restrictions for new gTLD registry operators, but held back from bringing in the same rules for incumbents due to concerns from competition authorities.

After exchanges of letters with the European Commission and US Department of Commerce, these concerns appear to have dried up, however. ICANN said in its resolution:

it appears that there is no longer any reason against extending the approved process to existing registry operators for their own TLDs.

This action will be an advantage for the ICANN community, as it will provide the opportunity for treating all registry operators equally with respect to cross-ownership restrictions.

Registries would have their requests for contract changes referred to competition authorities for comment before ICANN would approve them.

Based on previous comments, Verisign might have a struggle with respect to .com but the other incumbents might have an easier time renegotiating their deals.

Neustar has been particularly outspoken in its desire to get rid of the contractual language preventing it owning a .biz registrar, so we might see that company first to get into talks.

Both .biz and .info contracts are up for renewal before the end of the year.

Dengate Thrush quits TLDH

Kevin Murphy, October 18, 2012, Domain Registries

Peter Dengate Thrush, executive chairman of new gTLD portfolio applicant Top Level Domain Holdings, has decided to quit not much more than a year into the job.

According to a press release, Dengate Thrush will leave the company in January 2013, to be replaced by original chair Fred Krueger.

No reason for the departure was given.

When he joined TLDH, his share option package envisaged him sticking around until at least July 2014.

Dengate Thrush will continue to advise some of TLDH’s new gTLD applicant clients after he leaves, according to the press release.

His decision to join TLDH in July 2011, just a few weeks after helping to push through approval of the new gTLD program as ICANN’s chairman, was a nodal point in ICANN’s recent evolution.

It led directly to strict conflict of interest rules being put in place on ICANN’s board, which are now being criticized by some contracted parties for removing vital expertise from the board.

It also gave plenty of ammunition to those who criticize ICANN for being too focused on enriching its insiders.

TLDH has applied for 70 gTLDs, and its Minds + Machines subsidiary is the named back-end provider for several more.

Original .web gTLD applicant sues ICANN

Kevin Murphy, October 18, 2012, Domain Registries

Image Online Design, which unsuccessfully applied for the .web gTLD all the way back in 2000, has sued ICANN, alleging trademark infringement and breach of contract.

IOD, which says it has over 20,000 .web domains under management in an alternate root, says ICANN never officially rejected its .web bid, and that it should not have allowed other companies to apply for it.

It’s looking for an injunction preventing ICANN awarding .web to any other company, as well as seeking ICANN’s “profits” resulting from the alleged infringement of its mark.

There are seven .web applicants in the current round, but IOD is not among them.

The company paid $50,000 for its application in 2000, but it’s not happy with the $86,000 discount ICANN offered 2000-round applicants on their $185,000 fees if they wanted to resubmit their applications.

The IOD complaint claims:

Allowing other entities to file applications for a .web TLD while IOD’s .WEB TLD application was still pending is improper, unlawful and inequitable.

The complaint cites the November 2000 ICANN meeting in Marina Del Rey, during which the first proof-of-concept gTLDs were approved by ICANN’s board of directors.

It notes that then-chair Vint Cerf steered the board away from approving .web applications filed by Afilias and others because IOD was already operating .web in an alternate root at the time.

You can watch a video of that meeting here.

The complaint also alleges tenuous conflicts of interest between two .web applicants (Afilias and Google) and members of ICANN’s board of directors (current chair and vice-chair Steve Crocker and Bruce Tonkin in the case of Afilias, and long-gone chair Vint Cerf in the case of Google).

The suit comes just a few days after IOD’s fellow 2000 applicant and alternate root player, Name.Space, sued ICANN on similar grounds, trying to prevent 189 gTLDs being approved.

Here’s the IOD complaint.

EU plays down “unlawful” Whois data worries

Kevin Murphy, October 17, 2012, Domain Policy

The European Commission yesterday gave short shrift to recent claims that ICANN’s proposed Whois data retention requirements would be “unlawful” in the EU.

A recent letter from the Article 29 Working Party — an EU data protection watchdog — had said that the next version of the Registrar Accreditation Agreement may force EU registrars to break the law.

The concerns were later echoed by the Council of Europe.

But the EC stressed at a session between the ICANN board of directors and Governmental Advisory Committee yesterday that Article 29 does not represent the official EU position.

That’s despite the fact that the Article 29 group is made up of privacy commissioners from each EU state.

Asked about the letter, the EC’s GAC representative said:

Just to put everyone at ease, this is a formal advisory group concerning EU data privacy protection.

They’re there to give advice and they themselves, and we as well, are very clear that they are independent of the European Union. That gives you an idea that this is not an EU position as such but the position of the advisory committee.

The session then quickly moved on to other matters, dismaying privacy advocates in the room.

Milton Mueller of the Internet Governance Project tweeted:

By telling ICANN that it can ignore Art 29 WG opinion on privacy, European commission is telling ICANN it can ignore their national DP [data privacy] laws

Registrars hopeful that the Article 29 letter would put another nail into the coffin of some of ICANN’s more unpalatable and costly RAA demands also expressed dismay.

ICANN’s current position, based on input from law enforcement and the GAC, is that the RAA should contain new more stringent requirements on Whois data retention and verification.

It proposes an opt-out process for registrars that believe these requirements would put them in violation of local law.

But registrars from outside the EU say this would create a two-tier RAA, which they find unacceptable.

With apparently no easy compromise in sight the RAA negotiations, originally slated to be wrapped up in the first half of this year, look set to continue for many weeks or months to come.

Company files for injunction against 189 new gTLDs

Kevin Murphy, October 12, 2012, Domain Registries

Alternate root player Name.Space has sued ICANN for trademark infringement and anti-competitive behavior, saying “insiders” have conspired to keep it out of the new gTLD program.

If successful, the suit would prevent dozens of new gTLD applicants from having their applications approved.

The lawsuit, filed in California this week, follows a warning the company fired at ICANN this March.

While only ICANN is named as a defendant, the suit alleges that the new gTLD program was crafted by and is dominated by “ICANN insiders” and “industry titans”.

It wants an injunction preventing ICANN delegating any of the 189 gTLD strings that it claims it has rights to.

It also fingers several current and former ICANN directors, including current and former chairs Steve Crocker and Peter Dengate Thrush, over their alleged conflicts of interest.

Name.Space has been operating 482 diverse TLDs — such as .news, .sucks, and .mail — in a lightly used alternate root system since 1996.

Most people can’t access these zones and are unaware that they exist.

The company applied to have 118 of these strings added to the root in ICANN’s “proof of concept” gTLD expansion in 2000, when the application fee was $50,000, but was unsuccessful.

Now, the company claims the new gTLD program is “an attack on name.space’s business model and a mean by which to create and maintain market power in the TLD markets”.

The complaint (pdf) states:

Rather than adopting a procedure to account for the pending 2000 Application and facilitate the expansion of TLD providers in the DNS, ICANN has adopted a procedure so complex and expensive that it once again effectively prohibited newcomers from competing. It instead has permitted participation solely by ICANN insiders and industry titans.

If it had applied for all 118 again in this year’s round, it would have cost almost $22 million (though it would have qualified for an $83,000 discount on a single bid).

Name.Space is asking for damages and an injunction preventing ICANN from approving 189 gTLDs that match those it currently operates in its alternate root.

The full list of affected applications is attached to the complaint.