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Fight breaks out over .kiwi

Kevin Murphy, August 24, 2012, Domain Registries

New Zealand country-code manager InternetNZ has approved the creation of .kiwi.nz, setting the stage for a battle over the proposed new gTLD .kiwi.

InternetNZ announced the new second-level domain today. It’s designed to “increase choice” for New Zealanders who want to register their personal names as domain names.

But it stands to clash with .kiwi, a new gTLD applied for by Dot Kiwi Ltd, a New Zealand subsidiary of a Canadian company, which has partnered with Minds + Machines on the bid.

Dot Kiwi, which had objected to the .kiwi.nz domain, has branded InternetNZ’s move “dissappointing and lacking in common sense”, and suggested it is an attempt to capitalize on .kiwi’s advertising.

The applicant said in a statement:

Our opposition to InternetNZ’s confusing introduction of .kiwi.nzis well documented in repeated submissions we have made to them. Those submissions have been ignored. There will now be widespread confusion with the .kiwi.nz domain and the well-advertised forthcoming launch of the .kiwi domain.

But InternetNZ president Frank March said in a press release that the policy used to approve .kiwi.nz does not consider the possibility of confusion with proposed new gTLDs:

The policy for evaluating a new second-level domain takes into account existing second-level domains in .nz but not possible future changes, such as direct registration under .nz (which is currently being consulted on) or new generic Top Level Domains that may or may not be introduced at some point in the future.

The creation of the new second-level domain does not appear to give InternetNZ leverage to object to .kiwi, under a strict reading of the ICANN Applicant Guidebook.

For ccTLDs to file a String Confusion Objection against a new gTLD application, they must assert confusion with the TLD; the objection does not appear to cover 2LDs.

To date, there has been only one public comment filed with ICANN about .kiwi on confusion grounds.

Kiwis will get an opportunity to vote with their wallets, it seems.

Registrations under .kiwi.nz are expected to open September 11, but under InternetNZ policy .kiwi.nz will not actually go live until a minimum threshold of 500 domains has been passed, the company said.

Confirmed: .nxt conference canceled

Kevin Murphy, August 23, 2012, Domain Services

The .nxt conference on new gTLDs has indeed been canceled, according to organizer Kieren McCarthy.

The show was expected to run next week, August 29-31, in London, following two successful events in San Francisco last year.

It was originally expected to run in June, but was postponed in May due to ICANN-related program delays.

I had planned to hold off posting the news until I had the full details, but I’ve received several emails this morning from people wondering what was going on so I thought I’d share what I know.

McCarthy is currently phoning attendees individually to explain the situation, so if you’re already a paid-up delegate I expect you’ll be getting a call soon. An announcement is expected later today.

ARI Registry Services tweeted this morning that .nxt is not offering refunds, but I cannot confirm that at this time.

More when we get it…

What’s wrong with Melbourne IT’s new anti-cybersquatting plan?

Kevin Murphy, August 16, 2012, Domain Policy

Genuine question.

Melbourne IT, the Aussie registrar with the increasingly vocal brand-protection focus, has come up with a new scheme for protecting super-famous brands after new gTLDs start to launch.

It draws on elements of the abandoned Globally Protected Marks List, ICM Registry’s Sunrise B policy, .CO Internet’s launch program, and various recent demands from the intellectual property community.

It’s called the paper Minimizing HARM (pdf), where HARM stands for High At-Risk Marks.

The title may set off grammatical alarm bells, but the rest reads like the least-unreasonable proposition for protecting big brands from cybersquatters that I’ve come across in a long time.

What I like about it is that it’s actually contemplating ways to prevent gaming from the outset, which is something the IP lobby hardly ever seems to do when it demands stronger rights protection mechanisms.

The idea calls for the forthcoming Trademark Clearinghouse to flag a narrow subset of the trademarks in its database as High At-Risk Marks that deserve special treatment.

Melbourne IT has organizations such as PayPal and the Red Cross in mind, but getting on the list would not be easy, even for famous brands.

First, companies would have to prove they’ve had trademark protection for the brand in three of ICANN’s five geographic regions for at least five years — already quite a high bar.

Implemented today, that provision could well rule out brands such as Twitter, which is an obvious high-risk cybersquatting target but might be too young to meet the criteria.

Dictionary words found in any of UN’s six official languages would also be banned, regardless of how famous the brand is. As the paper notes, that would be bad news for Apple and Gap.

Companies would also have to show that their marks are particularly at risk from phishing and cybersquatting.

Five successful UDRP complaints or suspensions of infringing domains by a “top ten registrar” would be enough to demonstrate this risk.

But that’s not all. The paper adds:

In addition to meeting the minimum criteria above, the High At-Risk Mark will need to obtain a minimum total points score of 100, where one point is awarded for each legal protection in a jurisdiction, and one point is awarded for each successful UDRP, court action, or domain registrar suspension undertaken in relation to the mark.

That appears to be setting the bar for inclusion high enough that an OlympicTM pole-vaulter would have difficulty.

Once a brand made it onto the HARM list, it would receive special protections not available to other brands.

It would qualify for a “Once-off Registration Fee”, pretty much the same as ICM’s .xxx Sunrise B, where you pay once to block your exact-match domain and don’t get pinged for renewal fees every year.

Any third parties attempting to register an available exact-match would also have to have two forms of contact information verified by the gTLD registry before their names resolved.

The Trademark Claims service – which alerts mark owners when somebody registers one of their brands – would run forever for HARM-listed trademarks, rather than just for the first 60 days after a gTLD goes into general availability.

The always controversial Uniform Rapid Suspension service would also get tweaked for HARM trademarks.

Unless the alleged cybersquatter paid the equivalent of a URS filing fee (to be refunded if they prevail) their domains would get suspended 48 hours after the complaint was filed.

I’m quite fond of some of the ideas in this paper.

If ICANN is to ever adopt a specially protected marks list, which it has so far resisted, the idea of using favorable UDRP decisions as a benchmark for inclusion – which I believe Marque also suggested to ICANN back in February – is attractive to me.

Sure, there are plenty of dumb UDRP decisions, but the vast majority are sensible. Requiring a sufficiently high number of UDRP wins – perhaps with an extra requirement for different panelists in each case – seems like a neat way of weeding out trademark gamers.

The major problem with Melbourne IT’s paper appears to be that the system it proposes is just so complicated, and would protect so few companies, that I’m not sure it would be very easy to find consensus around it in the ICANN community.

I can imagine some registries and registrars might not be too enthusiastic when they figure out that some of the proposals could add cost and friction to the sales process.

Some IP owners might also sniff at the some of the ideas, just as soon as they realize their own trademarks wouldn’t meet the high criteria for inclusion on the HARM list.

Is Melbourne IT’s proposal just too damn sensible to pass through ICANN? Or is it riddled with obvious holes that I’ve somehow manged to miss?

Discuss.

More than half of new gTLD apps have comments

Kevin Murphy, August 14, 2012, Domain Registries

Over half of ICANN’s 1,930 new generic top-level domain applications have received comments, two days after the original deadline for having them considered expired.

There are 6,176 comments right now, according to the ICANN web site, and the DI PRO database tells me that they’ve been filed against 1,043 distinct applications covering 649 unique strings.

It looks like .sex is in the lead, with 275 comments — I’m guessing all negative — followed by its ICM Registry stablemates .porn (245) and .adult (254), due to the Morality in Media campaign.

The controversial dot-brand bid for .patagonia, which matches a region of Latin America, has been objected to 205 times.

Some that you might expect to have created more controversy — such as .gay (86) and .islam (21) — are so far not generating as many comments as you might expect.

Donuts has received the most comments out of the portfolio applicants, as you might expect with its 307 applications, with 685 to date.

Famous Four Media’s applications have attracted 416 and Top Level Domain Holdings 399.

Despite applying for .sexy, Uniregistry has a relatively modest 64 comments. That’s largely due to it managing to avoid being whacked by as many duplicate trademark-related comments as its rivals.

There have been 1,385 unique commenters (trusting everybody is being forthright about their identity) with as many as 486 affiliations (including “self” and variants thereof).

Afilias exec returns to ICANN board

Kevin Murphy, August 11, 2012, Domain Policy

Afilias chief technology officer Ram Mohan has been reappointed to ICANN’s board of directors for a fourth year.

He’s the Security and Stability Advisory Committee’s non-voting liaison, joining the board in 2009.

According to a notice (pdf) posted on ICANN’s web site yesterday, he’s been picked to continue in the role for another year.

Board liaisons, who are unpaid, serve annual terms and there are no limits on the number of years they can serve.

As arguably the most-conflicted person on the ICANN board in relation to new gTLDs, Mohan does not sit in on discussions of the program.