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New ICANN chief pours cold water on new gTLD trademark protection demands

Kevin Murphy, September 20, 2012, Domain Policy

Some of the enhanced trademark protection mechanisms being discussed currently by the IP lobby seem unlikely to be adopted by ICANN any time soon, if a response to Congress from new CEO Fadi Chehadé is any guide.

In a letter published tonight, Chehadé appears to rule out both the inclusion of ‘brand+keyword’ records in the Trademark Clearinghouse and an extension of the Trademark Claims service beyond 60 days.

These are two of the common demands to emerge recently from ICANN’s Business Consituency, Intellectual Property Constituency, and the so-called “brand summit” proposal.

The Chehadé letter was sent yesterday to the chairs and ranking members of the Judiciary Committees of both the House and Senate, in response to their August 7 letter.

On extending the Trademark Claims service — which alerts trademark owners when somebody registers a domain exactly matching their mark — beyond the current 60 days, he wrote:

For the first round of new gTLDs, ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service. The 60-day period was reached through a multi-year, extensive process with the ICANN community. One reason for this is that there are existing IP Watch services that address this needs. Those community members that designed the Trademark Claims process were cognizant of existing protections and sought to fill gaps, not replace existing services and business models.

While this obviously does not rule out an extension of Trademark Claims, it’s pretty clear from the letter that ICANN has no plans to do so without some form of community consent.

On the matter of brand+keyword protections, seen by the trademark community as a crucial component of a strong anti-cybersquatting regime, Chehadé wrote:

It is important to note that the Trademark Clearinghouse is intended be a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights.

He goes on to say that providing enhanced rights protection mechanisms is optional for new gTLD registries and may be one way that they can competitively differentiate themselves.

Indeed, large applicants such as Donuts, Uniregistry and Google say they will offer RPMs that go above and beyond what is required by ICANN.

Extended trademark claims and the brand+keyword protections are two of the changes to the current proposed mesh of mechanisms that the trademark community has found common ground on recently.

At the Melbourne IT trademark summit in Washington DC earlier this week, these two areas were among those that appeared to have the most consensus.

However, applicants for mass-market gTLDs are fervently opposed to changes being made to the Applicant Guidebook at this late stage.

Jon Nevett, co-founder of Donuts, said at the Melbourne IT event that “the Applicant Guidebook at this point should be deemed closed”.

He pointed out that, having paid ICANN about $350 million in application fees, applicants should be considered contracted parties and have their expectations respected.

Consumer Watchdog slams “outrageous” Google and Amazon keyword gTLD bids

Kevin Murphy, September 20, 2012, Domain Registries

Consumer Watchdog, a California-based consumer rights advocacy group, has attacked Google and Amazon’s new gTLD applications in a letter to an influential senator.

The organization has asked Sen. Jay Rockefeller, chair of the Senate Commerce, Science and Transportation Committee, to “thwart” the “outrageous” plans for single-registrant dictionary-word gTLDs.

Google and Amazon have separately applied for dozens of gTLDs — such as .music, .blog and .book — that they would exclusively use to market their own products and services.

Consumer Watchdog said in its letter (pdf):

If these applications are granted, large parts of the Internet would be privatized. It is one thing to own a domain associated with your brand, but it is a huge problem to take control of generic strings. Both Google and Amazon are already dominant players on the Internet. Allowing them further control by buying generic domain strings would threaten the free and open Internet that consumers rely upon. Consumer Watchdog urges you to do all that you can to thwart these outrageous efforts and ensure that the Internet continues its vibrant growth while serving the interests of all of its users.

As we reported yesterday, a number of domain name industry participants are planning to complain to ICANN about these applications on pretty much the same grounds.

Industry objection forming to Google and Amazon’s keyword gTLD land grab

Kevin Murphy, September 19, 2012, Domain Registries

Members of the domain name industry, led by Michele Neylon of Blacknight, plan to complain to ICANN about dozens of single-registrant new gTLD applications filed by Google and Amazon.

The signatories of a new letter are bothered by plans by these companies and others to hold dictionary word gTLDs for their own exclusive use, not allowing regular internet users to register domains.

While the letter does not call out applicants by name, it specifically mentions .blog, .music and .cloud as examples of potentially objectionable single-registrant gTLDs.

Google has applied for .blog and .cloud for its own use, among many others. Amazon has done the same for .cloud and .music and dozens of others. All three are heavily contested.

The letter is so far signed by 13 people, many of whom work for registrars. It states in part:

generic words used in a generic way belong to all people. It is inherently in the public interest to allow access to generic new gTLDs to the whole of the Internet Community, e.g., .BLOG, .MUSIC, .CLOUD. Allowing everyone to register and use second level domain names of these powerful, generic TLDs is exactly what we envisioned the New gTLD Program would do. In contrast, to allow individual Registry Operators to segregate and close-off common words for which they do not possess intellectual property rights in effect allows them to circumvent nation-states’ entrenched legal processes for obtaining legitimate and recognized trademark protections.

The ICANN Applicant Guidebook gives certain special privileges to single-registrant gTLDs.

In its discretion, ICANN can release such registries from the Code of Conduct, which obliges them to treat all accredited registrars on a non-discriminatory basis.

The condition for this exception is that “all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use”.

The measure was designed to capture dot-brand gTLDs such as .google and .amazon, where only the registry itself controls the second-level domain names.

But Google seems to want to benefit from the exception to the Code of Conduct while still offering second-level domains for use by its customers, at least in some applications.

In its .blog application, for example, it states:

Charleston Road Registry [the applying Google subsidiary] intends to apply for an exemption to ICANN’s Registry Operator Code of Conduct and operate the proposed gTLD with Google as the sole registrar and registrant. The proposed gTLD will specifically align with Blogger, an existing Google product, and will provide users with improved capabilities that meet their diverse needs.

The specialization goal of the proposed gTLD is to provide a dedicated second-level domain space for the management of a userʹs Blogger account.

However, the same application also states:

The mission of the proposed gTLD is to provide a dedicated domain space in which users can publish blogs. All registered domains in the .blog gTLD will automatically be delegated to Google DNS servers, which will in turn provide authoritative DNS responses pointing to the Google Blogger service. The mission of the proposed gTLD is to simplify the Blogger user experience. Users will be able to publish content on a unique .blog domain (e.g., myname.blog) which will serve as a short and memorable URL for a particular Blogger account.

“Google want .blog to be only for Blogspot users, which is insane,” Neylon told DI. “No one company should have control of a generic name space like that.”

“The new TLD project spent thousands of hours working on protecting IP rights, and then you get big companies blatantly abusing the system,” he said.

It’s not at all clear whether Google’s plan for .blog is a permitted use case. Does Google’s plan for .blog and other gTLDs mean third parties will be “controlling” and/or “using” .blog domains?

Or is its plan more akin to a dot-brand offering its customers vanity URLs, such as kevin.barclays or john.citi?

I err to the former interpretation.

When a new gTLD applicant asked ICANN for clarity on this matter last December, ICANN’s response was:

“Exclusive use” has its common meaning. The domain name must be exclusively used by the Registry Operator, and no unaffiliated (using the definition of “Affiliate” in the Registry Agreement) third-party may have control over the registration or use of the domain name.

Neylon said he plans to send the letter to ICANN management, board and new gTLD program Independent Objector next week. There’s no target number of signatures.

ICANN plans meeting on URS amid calls for RFP

Kevin Murphy, September 19, 2012, Domain Policy

ICANN wants to try to put the unresolved issues surrounding the Uniform Rapid Suspension system to bed and is planning a meeting in a couple of weeks time to solicit community input.

According to an email from chief of strategy Kurt Pritz to the GNSO Council and At-Large Advisory Committee, ICANN plans to hold a webinar, with a possible face-to-face option, in about two weeks.

The aim is to sort out the problems with URS, which was originally conceived as a faster, cheaper version of UDRP for clear-cut cases of cybersquatting that don’t require much thought to decide.

It’s currently neither fast enough for the trademark lobby’s liking, nor as cheap as ICANN had hoped.

ICANN had targeted a $300 to $500 fee to file URS complaints, but following conversations with the World Intellectual Property Organization and National Arbitration Forum it realized that the true cost was likely to be as much as triple that amount, more in line with UDRP fees.

The higher than expected costs are largely due to the additional registrant protections that were negotiated into the URS procedure over the last few years, which complicate matters.

At a session at the ICANN meeting in Prague this June, community members tried to figure out ways to make URS cheaper without compromising these protections.

Pritz’s email suggested that some of these ideas might work, but others might run counter to established policy.

Many parties on both side of the fence are coming to the realization that unless URS is in place, new gTLD registries that are contractually obliged to abide by it may not be able to launch.

Yesterday, at Melbourne IT’s summit on trademark protection in Washington DC, there were some calls for ICANN to just issue a request for proposals and see which provider offers the best price.

There are plenty of UDRP lawyers/panelists who believe URS cases can easily be handled in 15 minutes at $200, assuming most of the process is automated and the complaints are kept to a word limit.

Nuclear Iran campaign group sends ICANN list of demands (and they’re really, really stupid)

Kevin Murphy, September 19, 2012, Domain Policy

The campaign group United Against Nuclear Iran has called on ICANN to switch off internet access to Iran, due to an apparent misunderstanding of what it is ICANN does.

In a letter sent earlier this month and published yesterday, UANI told ICANN to “immediately cease and desist” from providing “ICANN/IANA access” to Iranian entities covered by US and EU sanctions.

The group is worried that these organizations are using the internet to help Iran with its goal of creating nuclear weapons.

The letter states:

Absent access to ICANN/IANA, the dictatorial regime of Iran would be severely impeded in pursuing its illegal and amoral activities. For each day that you knowingly continue to provide Iran sanction-designated persons and entities access to the worldwide web, ICANN/IANA will be increasingly complicit in the IRGC and Iranian regime’s nefarious behavior. ICANN/IANA must stop transacting with such Iranian entities and persons and deny them access to Unique Web Identifiers, and therefore, the worldwide web.”

The letter is stupid on so many levels it’s difficult to know where to begin.

It appears to assume that ICANN has the power and ability to shut down certain individual .ir and .com domain names, which are registered to and used by sanctioned entities.

The letter (pdf) states:

Prominent sanction-designated Iranian entities have acquired .ir Unique Internet Identifiers from ICANN/IANA through the RIPE NCC. For example, Iran’s nuclear brain trust, Malek Ashtar University holds the http://www.mut.ac.ir/ address. Major Iranian banks, including the country’s central bank, maintain active websites (e.g. http://www.cbi.ir, http://www.bank-maskan.ir, http://www.bmi.ir and http://www.banksepah.ir). Further, Khatam al-Anbia, which serves as the IRGC’s engineering arm with over 812 subsidiaries and is heavily involved in the construction of the Qom/Fordow nuclear weapons facilities, holds the web address of http://www.khatam.com. These sanction-designated entities could not gain such web access without ICANN/IANA.

You’ll immediately notice that UANI seems to think that RIPE NCC hands out .ir addresses, which it does not. RIPE is a Regional Internet Registry that deals exclusively with IP address blocks.

ICANN doesn’t have the power to shut down individual domains either. It has powers over the root zone — top-level domains — not second-level domains in individual TLDs.

Nor does ICANN appear to work with any of the organizations on the US list of sanctioned entities.

The .ir ccTLD is delegated to the Tehran-based Institute for Research in Fundamental Sciences, which is not sanctioned.

ICANN could, feasibly, shut down the whole of .ir, as long as Verisign and the US Department of Commerce — which have ultimate control over the root — played along, but that seems like overkill.

Is UANI asking ICANN to shut down the whole of the .ir space?

Apparently not. In fact, the group condemns censorship and appears to support the ability of regular Iranian citizens to access a free, unfettered internet. The letter states:

Unfortunately, ICANN/IANA and the Unique Internet Identifiers that it provides are misused by the sanction-designated Iranian entities and persons to facilitate their illicit operations, activities and communications including support for Iran’s rogue nuclear weapons program, Iran’s sponsorship of terrorism around the world, and the Iranian regimes brutal crackdown against its own people. Disturbingly, that crackdown includes the ruthless censorship of the Internet and other communication access, and the use of tracking technology to monitor, torture and kill freedom seeking dissidents.

Simply put, ICANN/IANA should not provide the internet communications means that the Iranian regime and the IRGC misuses to censor and deny Internet freedoms to its people, much less to support Iran’s illicit nuclear program or its sponsorship of terrorism.

A second, more or less identical letter (pdf) sent to RIPE NCC accused the organization of being the country-code manager for .ir, apparently based on a misunderstanding of this web page.

Netherlands-based RIPE has already responded, saying:

The RIPE NCC is in contact with the Dutch Ministry of Foreign Affairs to ensure that we operate in accordance with Dutch law and all applicable international sanctions. Our advice from the Ministry has been that the RIPE NCC is not in violation of these sanctions. However, we will investigate in cases where new information is provided to us and we will ensure that changing circumstances do not place the RIPE NCC in violation of sanctions.

UANI could have avoided embarrassing itself with a couple of phone calls, and I have to wonder why it did not.

Possibly because it can get New York Times column inches simply by throwing around accusations.