EU IDN not banned after all

The European Union request for the Greek-script ccTLD .ευ has not been thrown out, according to ICANN.
Last week DI reported that .ευ was the only one of three IDN ccTLD requests — the other two being Bulgaria’s .бг and Greece’s .ελ — to fail a test for confusing similarity on appeal.
.ευ was found to be confusingly similar to .EY and .EU, but only when in upper case.
The similarity panel’s decision would mean, I reported, that .бг and .ελ would be delegated but .ευ would not, under ICANN rules.
I wondered aloud what the Governmental Advisory Committee would think about that, given that it had lobbied for the creation of the appeals process in order to get an earlier rejection of .ευ overturned.
Shortly after publishing the article, ICANN reached out to say I was wrong and ask for a correction.
“We (ICANN) have not rejected the .ευ application,” a spokesperson said.
“Due to the unprecedented nature of the split results, the issue needs to be discussed at the senior management and Board level before a final decision is made,” he said.
The “split results” refers to the fact that there was found to be no confusing similarity with .ευ in lower case.
However, the ICANN rule I referred to says (which my emphasis):

The rule is that if the appearance of the selected string, in upper or lower case, in common fonts in small sizes at typical screen resolutions, is sufficiently close to one or more other strings, it is probable that a reasonable Internet user who is unfamiliar with the script perceives the strings to be the same or confuses one for the other.

That’s adapted almost verbatim from the original recommendations of the ccNSO. The only addition ICANN made was to add the clearly important clause “in upper or lower case” to the text.
It seemed pretty straightforward to me — confusing similarity exists regardless of case.
I pointed this out to ICANN last Wednesday and asked where I could find the rule that said the ICANN board or staff get to review a “split results” finding but have yet to receive a reply.

Two new gTLD confusion decisions thrown out

ICANN has reopened the contention sets for .cam and .通販 after deciding that two String Confusion Objection panels may have been wrong to reject certain applications.
Two rulings — that .cam is confusingly similar to .com and that .通販 is confusingly similar to .shop (really) — will now head to an appeals panel for a “final” determination.
The decision was made by the ICANN board’s New gTLD Program Committee this week at the ICANN 51 public meeting in Los Angeles.
The first case being reopened for scrutiny is Verisign versus Rightside, where the original SCO panel found that .cam and .com were too similar to coexist on the internet.
But a different panelist found that the two strings were not confusingly similar in objections filed by Verisign against two other applicants — Dot Agency and AC Webconnecting.
The opposing rulings meant that Rightside’s application would have been kicked out of the .cam contention set, which hardly seems fair.
This and many other “perceived inconsistencies” led to the ICANN board being pressured to come up with some kind of appeals process, which it agreed to do in February.
Verisign, unfairly in my view, was not given the opportunity to appeal the two .cam decisions that went against it, even though they were made by the same panelist for the same reasons.
The second, altogether more peculiar, case was .shop applicant Commercial Connect versus .通販 applicant Amazon.
The panelist in that case seemed to have checked his brain at the door that day, concluding that the two strings are confusingly similar simply because 通販 means “online shopping” in Japanese.
Another panelist, in a different case also involving Commercial Connect, had found that .购物 (Chinese for “shopping”) was not confusingly similar to .shop because duh.
ICANN’s NGPC has now decided that the two controversial decisions are “not being in the best interest of the New gTLD Program and the Internet community”.
Both .cam and .通販 will now be referred to a three-person panel at the International Center for Dispute Resolution, the same body that processed the original objections, for a final determination.

Bulgaria and Greece win IDN ccTLDs on appeal

Campaigns in Bulgaria and Greece to get ICANN to un-reject their Cyrillic and Greek-script ccTLD requests have proven successful.
The first decisions handed down by ICANN’s new Extended Process Similarity Review Panel this week said Bulgaria’s .бг and Greece’s .ελ are not “confusingly similar” to other ccTLDs after all.
However, a third appeal by the European Union over the Greek .ευ was rejected on the grounds that the string is too confusingly similar to .EV and .EY when in upper case.
Confusing strings should not be delegated, under ICANN rules, due to the risk of exacerbating the prevalence of security risks such as phishing attacks.
Bulgaria’s initial request for .бг was turned down in 2010 after a panel found it looks too similar to Brazil’s existing ccTLD, .br.
Greece’s bid for .ελ had been blocked for looking too much like .EA, a non-existent ccTLD that could be delegated to a new country in future.
While the initial panel’s process was pretty opaque, the newly published “extended” reviews appear to have employed a fairly scientific methodology to determine similarity.
Twenty American undergraduate student volunteers were shown pairs of strings briefly on screens designed to simulate web browsing. They then had to pick out which one they’d seen.
The volunteers were also shown pairs of similar-looking Latin-script ccTLDs that already exist, in order to establish a baseline for what should be considered an acceptable level of confusability.
The Greek and Bulgarian strings were both found to be less confusing than existing pairs of Latin-script ccTLDs and were therefore given the thumbs-up. The EU string flunked in upper case.
Under ICANN’s rules, it appears that .бг and .ελ can now proceed to delegation, while .ευ has been forever rejected.
The three reports can be downloaded here.
It will be interesting to see how the ICANN Governmental Advisory Committee will react to this.
It was pressure from the GAC — driven by the European Commission and Greece — back in 2012 that forced ICANN into creating the appeals process.
At ICANN’s meeting in Prague that year, the GAC said:

The GAC is of the view that decisions may have erred on the too-conservative side, in effect applying a more stringent test of confusability between Latin and non-Latin scripts than when undertaking a side by side comparison of Latin strings.

Now the EU seems to have been told that it still can’t have its requested ccTLD, and the standard applied was exactly the same standard as applies to Latin ccTLDs.
Will the GAC accept this determination, or stomp its feet?

GAC elects Swiss rep as new chair

ICANN’s Governmental Advisory Committee has elected Thomas Schneider of the Swiss government as its new chair.
The unprecedented, one-nation-one-vote secret ballot election at the ICANN 51 public meeting in Los Angeles today saw Schneider beat Lebanon’s Imad Hoballah by 61 votes to 37.
He will take over from Canadian incumbent Heather Dryden at the end of the week.
Schneider is deputy head of international affairs at the Swiss Federal Office of Communications (Ofcom).
He currently serves as one of the GAC’s three vice chairs.
The election was overseen by the Australian Continuous Improvement Group, which provides the GAC with ICANN-independent secretariat services.

Governments totally cool with two-letter domains

ICANN’s Governmental Advisory Committee does not plan to advise against the release of two-character domain names in new gTLDs.
In fact, judging by a GAC discussion at ICANN 51 in Los Angeles yesterday, the governments of many major nations are totally cool with the idea.
Under the standard Registry Agreement for new gTLD registries, all two-character domains (any combination of letters, numbers) must not be sold or activated in the DNS.
The blanket ban was designed to avoid clashes with two-letter ccTLD codes, both existing and future.
ICANN left the door open for registries to request the release of such names, however, and many companies have formally applied to do so via the Registry Services Evaluation Process.
Some registries want all two-character domains released, others have only asked for permission to sell those strings that do not match allocated ccTLDs.
There seems to have been an underlying assumption that governments may want to protect their geographic turf. That assumption may turn out to be untrue.
Representatives from the United States, Netherlands, Spain, Denmark, Australia, Austria and Iran all said yesterday that the GAC should not issue formal advice against the the two-character proposals.
No governments opposed that apparent consensus view.
“The use of the ‘US’ two-letter country code at the second level has not presented any technical or policy issues for the United States,” US rep Suzanne Radell said.
“We, in fact, do not require any approval for the use of US two-character country codes at the second level in existing gTLDs, and do not propose to require anything for new gTLDs,” she said.
She even highlighted domains such as us.com and us.org — which are marketed by UK-based CentralNic as alternatives to the .us ccTLD — as being just fine and dandy with the US government.
It seems likely that the GAC will instead suggest to ICANN that it is the responsibility of individual governments to challenge the registries’ requests via the RSEP process.
“What we see at the moment is that ICANN is putting these RSEP requests out for public comment and it would be open to any government to use that public comment period if they did feel in some instances that there was a concern,” Australian GACer Peter Nettlefold said.
I’ve not been able to find any government comments to the relevant RSEP requests.
For example, Neustar’s .neustar, which proposes the release of all two-character strings including country codes, has yet to receive a comment from a government.
Many comments in other RSEP fora appear to be from fellow dot-brand registries that want to use two-letter codes to represent the countries where they operate.

“Send registrars to jail!”, ICANN hears

ICANN is ramping up its focus on contractual compliance in the midst of calls for domain industry offenders to “go to jail”.
CEO Fadi Chehade yesterday revealed that he has has promoted chief contracting counsel Allen Grogan to the newly created role of chief contract compliance officer.
Grogan, who Chehade has worked with off and on since 1991, will report directly to him. Maguy Serad, who has been heading compliance under Chehade for the last couple of years, will now report to Grogan.
In a session with the GNSO Council at the ICANN 51 public meeting in Los Angeles yesterday, Chehade said the appointment was part of a new “strategic, analytical” approach to compliance.
It was hinted that the compliance focus may form part of Chehade’s address at the formal opening ceremony of ICANN 51 later today.
Ron Andruff of the Business Constituency made the “jail” comments in response.
“We need to see action, we need to see teeth,” he said. “We never see any really strong action taken and it’s time we did. It’s time we saw people go to jail for doing things, lose their contracts for doing things.”
“We’ve lived through 15 years of ICANN with all manner of transgressions, some very serious ones, but they all get slid off to the side and there’s never any mention of it,” he said.
“Should someone be the recipient of extremely strong actions — losing their contract, being thrown out the community — that would send a signal,” he said.
Andruff appeared to be relating comments made by the Intellectual Property Constituency’s Kristina Rosette, at a private Commercial Stakeholders Group meeting earlier that day.
However, Rosette was quick to take to Twitter to deny she’d said anything about jail time.

Um, I never said anything about people going to jail for compliance breaches. Yikes.

— Kristina Rosette (@kristinarosette) October 12, 2014

Chehade, in reply to Andruff, agreed with the need for action but clarified what he plans to do.
“It doesn’t mean to create a police force, that’s not what we need,” he said. “What we need is thoughtful, analytical analysis.”
“It doesn’t mean we’re going to take the job of all the global consumer protection agencies,” he said earlier in the session.
The notion of ICANN having the power to directly jail somebody is of course laughable — all of its power comes from its contracts with registrars and registries.
However, it’s not beyond the bounds of possibility that ICANN could refer registrars to law enforcement should it come across suspected illegality in the course of its compliance investigations.
ICANN Compliance currently employs 21 people and deals with 5,000 complaints per month, Chehade said.
In the last year, the number of breach, suspension and termination notices against registrars has been on the increase.
Notably, last November a registrar owned by “spam king” Scott Richter was terminated. Notorious domain “slammer” NameJuice faces possible termination this Friday based on a July suspension notice.

Gay community not gay enough to win new gTLD

An applicant for .gay has lost its chance to get exclusive rights to the new gTLD, partly because the self-defined gay community it wants to represent is not “gay” enough.
Dotgay LLC is one of four applicants, and the only “Community” applicant under ICANN rules, for .gay.
But the company yesterday failed in its attempt to pass a Community Priority Evaluation, scoring just 10 out of 16 available points and failing to reach the required 14-point passing threshold.
Most of its points were lost on the “Nexus between Proposed String and Community” criteria, where 4 points were available but Dotgay scored zilch.
The CPE panel concluded that the gay community described in the Dotgay application was too broad to be described by the string “gay”, because it includes lots of people who aren’t gay — such as transgender people or heterosexual campaigners for gay rights.
Under the CPE rules, applicants can score the maximum points if their chosen string “matches” the name of the community. Partial points can be won if it “identifies” the community.
The panel decided that it did neither:

Included in the application’s community definition are transgender and intersex individuals as well as “allies” (understood as heterosexual individuals supportive of the missions of the organizations that comprise the defined community). However, “gay” does not identify these individuals. Transgender people may identify as straight or gay, since gender identity and sexual orientation are not necessarily linked.8 Likewise, intersex individuals are defined by having been born with atypical sexual reproductive anatomy; such individuals are not necessarily “gay”. Finally, allies, given the assumption that they are heterosexual supporters of LGBTQIA issues, are not identified by “gay” at all. Such individuals may be an active part of the .GAY community, even if they are heterosexual, but “gay” nevertheless does not describe these individuals

Because “gay” was not found to identify the applicant-defined community, Dotgay lost 3 points. A knock-on effect was that it lost another 1 point for not “uniquely” identifying the community.
The applicant lost another two points on the “Community Endorsement” criteria — one point for not being backed by an organization recognized as representing all gays and another because the application had received informal objections from at least one significant community member.
The CPE decision means that rival applicants Top Level Design, Rightside and Minds + Machines are back in the game.
The .gay gTLD, assuming there are no successful appeals against the CPE, is now likely headed to auction.

Music industry gets its ass handed to it by gTLD panel

The music industry-backed application for the new gTLD .music today suffered a humiliating defeat at the hands of a Community Priority Evaluation panel.
The Far Further (.music LLC) application scored a pitiful 3 out of 16 possible points in the evaluation, missing the required 14-point passing threshold by a country and western mile.
CPE is a way for applicants representing genuine communities to avoid an auction. If one applicant in a contention set wins a CPE, all the others must withdraw their applications.
But in this case the CPE panel went so far as to accuse the applicant of attempting to get its hands on a nice generic string by creating a new community, rather than by representing an existing one:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. Moreover the applicant appears to be attempting to use the gTLD to organize the various groups noted in the application documentation, as opposed to applying on behalf of an already organized and cohesive community.

The application was backed by dozens of music industry trade groups and (by inference) thousands of their member associations and millions of individual members, spread over 150 countries.
But that wasn’t enough to persuade the CPE panel that “music” is even a “community” within the meaning of the ICANN new gTLD program’s Applicant Guidebook:

While the Panel acknowledges that many of the members in the proposed community share an interest in music, the AGB specifies that a “commonality of interest” is not sufficient to demonstrate the requisite awareness and recognition of a community among its members.

The panel pointed to the existence of legions of amateur musicians — estimated at 200 million — that do not identify with the community as defined in Far Further’s new gTLD application, which is restricted to the four million or so members of the application’s backers.
The panel found therefore that “there is no entity mainly dedicated to the entire community as defined by the applicant, nor does the application include reference to such an organization”.
The very fact that the Far Further application included reference to 42 trade groups, covering different facets of the music industry, seems to have counted against it. One overarching body dedicated to “music” in its entirety may have been enough to win the applicant some points.
The fact that the panel decided the community did not exist had a knock-on effect in other parts of the evaluation.
Has the community been around for a long time? No, because the community doesn’t exist. Is it a big community? No again, because the community doesn’t exist. And so on.
The only places Far Further managed to pick up points were on its registration policies, where it had promised to restrict registration to certain community members, and on community endorsement.
There are eight applicants for .music in total. One other, regular DI commenter Constantine Roussos’ DotMusic Limited, is also a Community application that is eligible for CPE.
It’s always seemed highly improbable that any .music applicant could pass CPE, but it’s looking even less likely for DotMusic after today’s result for Far Further.
.music, it seems, is heading to auction, where it is likely to fetch big bucks.

“Frustrated” Morocco denies it supported .tata gTLD

The Moroccan government claims that it did not give its support to the .tata dot-brand gTLD, which was granted to Tata Group, the massive Indian conglomerate, in July.
According to Boubker Seddik Badr, director of digital economy at Morocco’s ministry of trade, .tata “did not receive any endorsement from any Moroccan authority”.
In a September 17 letter (pdf), he expressed his “surprise and very deep frustration” that .tata had been approved by ICANN regardless.
Under ICANN rules, .tata was classified as a “geographic” string because it matches the name of a Moroccan province found on an International Standards Organization list of protected names.
But Tata’s application was finally approved — it was the last bid to pass through evaluation — after a period Extended Evaluation. Its evaluation report (pdf) reads:

The Geographic Names Panel has determined that your application falls within the criteria for a geographic name contained in the Applicant Guidebook Section 2.2.1.4, and the documentation of support or non-objection provided has met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.

The Guidebook states that letters of support or non-objection:

could be signed by the minister with the portfolio responsible for domain name administration, ICT, foreign affairs, or the Office of the Prime Minister or President of the relevant jurisdiction; or a senior representative of the agency or department responsible for domain name administration, ICT, foreign affairs, or the Office of the Prime Minister.

It’s not clear what documentation Tata provided in order to pass the geographic names review.
Tata Group is a family-owned, $103.27 billion-a-year conglomerate involved in everything from oil to tea to cars to IT consulting to airlines.
The company does not yet appear to have signed a Registry Agreement with ICANN for .tata.
ICANN is to hold its 52nd week-long public meeting in Marrakech, Morocco in February 2015.

Korean registrar suspended

ICANN has suspended the accreditation of Korean registrar Dotname Korea over failures to comply with Whois accuracy rules.
The company was told this week that it will lose the ability to sell names for three months.
“No new registrations or inbound transfers will be accepted from 7 October 2014 through 5 January 2015,” ICANN compliance chief Maguy Serad told the company (pdf).
The suspension follows breach notices earlier in the year pertaining to Dotname’s failure to show that it was responding adequately to Whois inaccuracy complaints.
Other breaches of the Whois-related parts of the 2013 Registrar Accreditation Agreement were also alleged.
The company has until December 16 to show compliance of face the possibility of termination.