Latest news of the domain name industry

Recent Posts

Trademarks may delay new TLD approval

Kevin Murphy, December 8, 2010, Domain Registries

The intellectual property lobby won a notable victory this week, after governments told ICANN they want it to delay approval of the new top-level domains program until it has more cybersquatting protections.

Some members of the Governmental Advisory Committee appear to have been lobbied hard by the IP community, and have taken its concerns on board more or less wholesale.

The UK representative, Mark Carvell of the Department for Business, Innovation and Skills, was most vocal during a meeting of the GAC and ICANN board here in Cartagena, Colombia yesterday.

He said of the proposed final Applicant Guidebook for new TLDs (which the GAC still pointedly refers to as the “DAG”, for Draft Applicant Guidebook):

Most representations we received came from brand owners, rights holders, they’re the ones being most agitated by this. I think they also recognized the potential opportunities, but the big issue for them was the costs…

The rights protection mechanisms are still not effective enough, that’s what’s coming to us in the Ministry… If you’re really hoping to sign off the guidebook this week, I think that’s something you really ought to reconsider.

Carvell pointed in particular to the proposed Trademark Clearinghouse and Uniform Rapid Suspension policies as needing work – this is essentially the IP lobby’s position also.

His views were supported by Germany, Norway and the Canadian GAC chair, among others.

A repeated refrain was “we’re not there yet”, which prompted ICANN vice-chair Dennis Jennings to push for a definition of “there”. What, in other words, would make the GAC happy enough to go ahead?

The GAC isn’t great when it comes to providing straight answers to those kinds of questions, but Carvell gave it a shot.

He said that currently the GAC does not believe that the benefits of new TLDs outweigh the costs. When it does, that would be the “key turning point”:

When we get to that position, that the benefits for businesses, for the global economy, for opportunities for business, are going to be greater, scaled-up, greater than the costs to brand owners and those who are going to have shell out big-time in order to effectively subsidize, in their view, perhaps subsidize the process.

The US representative, Suzanne Sene, added that “the whole issue is of feeling confident that benefits will outweigh the costs”.

That’s still worryingly free of a measurable benchmark, if you’re an impatient new TLD applicant.

In a further open meeting today, it became clear that the GAC is still putting forth the idea that there could be a “fast-track” or “trial” style TLD application round for “non-controversial” TLDs – presumably meaning TLDs of little interest to defensive trademark holders.

GAC chair Heather Dryden said today that “introducing a conservative first round is the best way to manage risk in the unknown”, an idea that was promptly challenged by TLD applicants including Minds + Machines CEO Antony Van Couvering.

I don’t get the feeling that the GAC has thought the idea through a great deal. In order to be half-way objective, it would presumably require the created of a second, parallel AGB for pre-approving applications. I don’t think the idea has legs.

But do the GAC’s objections mean that new TLD program, currently pencilled in to open the first application round May 30, 2011, will be delayed?

The GAC has not yet submitted its formal Cartagena advice (it should be published tomorrow), but it will presumably reflect the concerns raised over the last few days.

Under ICANN’s bylaws, the organization has to justify any decision to reject GAC advice and then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”

European Commission representative Bill Dee invoked that part of the bylaws during yesterday’s meeting, and ICANN chair Peter Dengate Thrush agreed that talks were needed.

Dengate Thrush said he was in favor of a GAC-board meeting over one or two days at some point between now and the San Francisco ICANN meeting next March, to thrash out their differences and Dryden seemed to agree.

If that meeting was held fairly soon, it would not necessarily mean ICANN misses the May 30 deadline.

The current proposed timeline contains a 30-day window between Friday and January 11 in which ICANN staff update the “approved” AGB according to the board’s directions.

There follows an obligatory four-month ICANN outreach and marketing campaign.

Conceivably, although scheduling may be a challenge, if the GAC and board meet and resolve their differences over the next 30 days or so, the May 30 deadline could be workable.

I think it might be quite unlikely that’s going to happen, however.

The ICANN board convenes to discuss and vote on the AGB this Friday. It will be very interesting to see how its resolution is worded, and whether it can both save face and serve the GAC.

New TLDs “not at risk”, but delay not ruled out

Kevin Murphy, December 6, 2010, Domain Registries

ICANN’s program to introduce new top-level domains has not been put at risk by the US government’s recent request for delay, according to both its chairman and chief executive.

Chairman Peter Dengate Thrush and CEO Rod Beckstrom sought to play down the significance of the Department of Commerce letter during a press conference here in Cartagena this afternoon.

Dengate Thrush said the sudden involvement of the US in the new TLD policy was not a surprise, but was “one more factor to take into account” that did not put the program as a whole at risk.

Beckstrom noted that the Commerce letter was submitted to the ongoing public comment period, and would be treated as such, saying “obviously along with other inputs received we will duly consider it”.

Dengate Thrush elaborated, saying ICANN was still considering how to formally respond to the letter.

Because it deals with both Affirmation of Commitments and AGB concerns, it appears that the two threads may be unpicked and dealt with separately.

Both men were obviously more coy about whether the US intervention could delay final approval of the Applicant Guidebook, which the ICANN board will vote on this Friday.

Currently, the plan is to open the first round of applications May 30. But it seems that’s a target, not a promise.

Observing that the AGB continues to stir up passions on both sides of the debate, Dengate Thrush said that it is unlikely that the board will be swayed either way by passion alone.

But if “getting it right” means adding a month or two of delay to the launch date of the program, then that’s what the board will have to do, he said.

A similar sentiment on the constructiveness of comments was put forward by outgoing director Harald Alvestrand during a session yesterday.

He indicated that comments that merely reiterate long-held and previously considered disagreements are unlikely to cause delays, but changed minds based on new information could carry weight.

With the comments of all three directors in mind, it’s probably a bit early to second-guess the board’s Friday decision.

Apparently they are being fed updates on new AGB comments as they are received, so they can be as informed as possible before convening.

My feeling is that a full picture of the decision the board faces is unlikely to emerge for a few days.

Beckstrom: ICANN accountable to world, not just US

Kevin Murphy, December 6, 2010, Domain Policy

ICANN chief Rod Beckstrom opened the organization’s 39th public meeting in Cartagena, Colombia, with a speech that touched on many of the organization’s recent controversies and appeared to take a strong stance against US government interference.

Everything from its political tangles with the International Telecommunications Union, to the recent calls for high-security top-level domains for financial services, to Beckstrom’s own controversial pet project, the proposed DNS-CERT, got a mention.

But probably Beckstrom’s strongest statement was the one which indirectly addressed recent moves by the US government to slam the brakes on ICANN’s new top-level domains program:

We are accountable to the world, not to any one country, and everything we do must reflect that.

Beckstrom acknowledged the controversies in the new TLDs policy, given last week’s strongly worded letter from the US Department of Commerce, which was highly critical of the program.

Commerce assistant secretary Lawrence Strickling has called on ICANN to delay the program until it has justified its decision under the Affirmation of Commitments.

But this morning, Beckstrom echoed sentiments expressed on the ICANN blog last week (my emphasis):

As is often the case with policy decisions in that multi-stakeholder model, not everyone is pleased, and this diversity of opinion contributes to the policy process. For example, last week we received a critical letter from the US Department of Commerce. As with all contributions, ICANN will give these comments careful consideration as part of the implementation of the GNSO policy. We welcome the transparent way that Commerce provided their comments through the public comment process.

How ICANN chooses to deal with the demands of its former master, the US government, is one of the Cartagena meeting’s Big Questions.

Another such question is how ICANN plans to deal with ongoing threats to its legitimacy from international bodies such as the International Telecommunications Union.

Addressing ITU secretary general Hamadoun Toure directly, Beckstrom said:

We have always sought to build our relationships based on mutual respect and integrity, taking into account the unique and distinct mandates entrusted to our organizations. The strengthening of communication between us is a personal priority for me.

Security

Security is one of ICANN’s watchwords, and Beckstrom is a security guy by trade. His speeches typically address the topic to a greater or lesser extent and Cartagena was no exception.

Security policies inherently create tensions. Take, for example, controversies about the strength and enforceability of of Whois policies, or Beckstrom’s own call for a DNS-CERT to oversee DNS risk.

This morning, he said:

The staff under my leadership is willing to go as far on security as the community is willing. And whatever security effort this community decides, we will do our utmost to implement and support, given sufficient resources. Because when it comes to security, how can we ever say we’ve done enough?

And now you need to tell us: where do you want us to go?

Of course, I am sure we can agree that when it comes to security, the question is not what do we want to do? Or what is popular or easy? It’s what do we owe the world? Because all of us care about the global public interest.

He took, in my view, a subtle swing at the Governmental Advisory Committee for putting security at the heart of its ongoing policy demands, while largely failing to cooperate with ICANN’s requests for information on security issues in their own jurisdictions. Beckstrom said:

We have asked GAC members to provide information about security activities in their countries. We appreciate the information some have shared but there have been few responses. As governments urge us to remain committed to security efforts, we in turn request that they help us by responding and working with the ICANN community on this vital mission.

I know there are some European ccTLD registries a bit miffed that ICANN has in recent months gone over their heads, direct to their governments, for this information, highlighting what a tricky political situation it is.

The speech also touched on internationalized domain names, with a shout-out to the recent launch of Russia’s Cyrillic ccTLD, and general global inclusion activities. I expect the text and audio to be published on the ICANN web site to be published shortly.

Bulgarians step up ICANN protest

Kevin Murphy, December 2, 2010, Domain Policy

A domain name registrar association from Bulgaria is laying the groundwork to appeal ICANN’s rejection of the country’s proposed Cyrillic top-level domain.

Uninet has filed a Documentary Information Disclosure Policy request, asking ICANN to publish its reasons for turning down the .бг (.bg) application and the criteria it used.

The domain, which had the backing of the Bulgarian government and people, was rejected in May on the grounds that it is “confusingly similar to an existing TLD”, believed to be Brazil’s .br.

In order to prepare for a future appeal, the Uninet organization wants ICANN to release:

1. The DNS Stability panel working criteria (or parts of it) that were applied to evaluate and subsequently reject the Bulgarian application.
2. The decision of the DNS Stability panel, used to reject the Bulgarian application.

While the ICANN panel’s decision isn’t exactly a state secret (even I have a copy), there seems to be a feeling in Bulgaria that ICANN may not have released all of its reasoning.

The document does not, for example, specify which TLD .бг is confusingly similar to.

It does, however, reveal just how strict ICANN is when it comes to evaluating IDN domains, including a default assumption that any two-letter string is confusing.

We note that two-character strings consisting of Unicode code points in the Latin, Greek, and Cyrillic script blocks are intrinsically confusable with currently defined or potential future country code TLD

We therefore apply a very conservative standard in our assessment of applied-for strings that consist of two Greek, Cyrillic, or Latin characters, including a default presumption of confusability to which exceptions may be made in specific cases.

Uninet said that the Bulgarian government plans to challenge the .бг decision if and when ICANN revises its existing IDN ccTLD Fast Track program to create an appeals process. It wrote:

Many people have criticized the lack of transparency and appeal options in this process, but after the ongoing public comment period we hope that it would be amended by the ICANN Board and the Bulgarian government (as a requester) will have the chance to apply for a re-evaluation of the proposed string.

In the meantime, the Bulgarian government’s IT ministry today started encouraging its citizens to write to ICANN to demand that its application is re-evaluated.

Several already have.

Porn group threatens lawsuits over new TLDs

Kevin Murphy, December 2, 2010, Domain Registries

Porn trade group the Free Speech Coalition has added its name to the list of organizations saying that ICANN could be sued over its new top-level domains program.

In her latest letter to ICANN, FSC executive director Diane Duke has made a last-ditch attempt to get the proposed .xxx TLD rejected, and not-so-subtly raises the threat of court action:

ICM Registry promises millions of dollars of income for ICANN, assuming that income is not consumed by the inevitable litigation which ICANN will find itself a party to if the proposal is adopted

But she also writes about lawsuits targeting the new TLD program itself.

ICM’s .xxx application is being handled under the rules established for “sponsored” TLDs in 2003, rather than the rules for gTLDs in the Applicant Guidebook that will be enforced in future.

As such, .xxx is not subject to challenges such as the “morality and public order objections” envisioned by the AGB, unlike potential future applications such as .porn. Duke wrote:

What about those in the adult community who wish to apply for a gTLD? With ICANN’s policy development in regards to “Morality and Public Order” will gTLDs be held to a higher standard than the sTLD? Does ICANN believe that it is not liable for this inequity? Any company prepared to invest the substantial moneys necessary to manage a gTLD will surely take ICANN to court to demand equitable standards for their TLD application.

She goes on to suggest that ICM itself may sue to block such applicants.

Does ICANN really believe that the litigious ICM will sit idly by while a .SEX or .PORN gTLD is introduced? Is ICANN so naive to believe that the purveyor of the “sponsored” TLD, who spent in excess of $10 million to bully its way through ICANN’s processes, will stop its threats of litigation with a mere approval of the sTLD?

Is the FSC privy to the TLD aspirations of others in the adult business? Or is this just a lot of hot air born out of desperation? I guess time will tell.

The FSC becomes the third organization to publicly threaten litigation in order to get what it wants out of ICANN.

As I’ve previously reported, the International Olympic Committee and the BITS financial trade group have already made similar noises.

ICANN expects to set aside $60,000 from every $185,000 TLD application fee to deal with “risks” including the expense of defending itself from lawsuits.

The ICANN board is expected to vote on the .xxx application and the new TLD program next Friday. I expect the number of organizations threatening lawsuits will be in double figures by then.