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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.

Hey, domainers, watch Frank Schilling tell you why ICANN is cool

Kevin Murphy, October 11, 2012, Domain Policy

I think this is the first time I’ve seen noted domainer Frank Schilling appearing in an ICANN-related video.

It was produced by Google during ICANN’s meeting in Prague a few months ago, and published on YouTube this week.

Alongside many familiar faces from the ICANN-policy-wonk side of the industry, you’ll also see Schilling, who is of course behind portfolio gTLD applicant Uniregistry, telling you:

What I like about ICANN is just that: it’s not controlled by anyone, yet it’s controlled by you. You control it just by contributing to the process. And it’s open to anyone in any language, anywhere in the world

I think the video pretty much nails it.

ICANN 45 starts in Toronto, Canada this weekend. You don’t need to be there to get involved.

Council of Europe has Whois privacy concerns too

Kevin Murphy, October 11, 2012, Domain Policy

The Council of Europe has expressed concern about the privacy ramifications of ICANN’s proposed changes to Whois requirements in the Registrar Accreditation Agreement.

In a letter this week (pdf), the Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to Personal Data (T-PD) said:

The Bureau of the T-PD took note of the position of the Article 29 Data Protection Working Parking in its comments of 26 September 2012 on the data protection impact of the revision of these arrangements concerning accuracy and data retention of the WHOIS data and fully shares the concern raised.

The Bureau of the T-PD is convinced of the importance of ensuring that appropriate consideration be given in the ICANN context to the relevant European and international privacy standards

The letter was sent in response to outreach from ICANN’s Non-Commercial Users Constituency.

The Article 29 letter referenced said that EU registrars risked breaking the law if they implemented ICANN’s proposed data retention requirements.

Earlier today, we reported on ICANN’s response, which proposes an opt-out for registrars based in the EU, but we noted that registrars elsewhere are unlikely to dig a two-tier RAA.