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Donuts will cut off sham .doctors

Kevin Murphy, October 17, 2016, Domain Registries

Donuts has outlined plans to suspend or delete .doctor domain names used by fake medical doctors.

Despite protestations from governments and others, .doctor will not be a restricted gTLD when it goes to general availability next week — anyone will be able to register one.

However, Donuts said last week that it will shut down phony doctor sites:

While we are firmly committed to free speech on the Internet, we however will be on guard against inappropriate or dangerous uses of .DOCTOR. Accordingly, if registrants using this name make the representation on their websites that they are licensed medical practitioners, they should be able to demonstrate upon request that in fact they hold such a license. Failure to so demonstrate could be considered a violation of the terms of registration and may subject the registrant to registrar and registry rights to delete, revoke, suspend, cancel, or transfer a registration.

A Donuts spokesperson said that the registry will have the right to conduct spot-checks on sites, but at first will only police the gTLD in response to complaints from others.

“We have the right to spot check, but no immediate plans to do so,” he said.

In a few fringe cases, the failure to present a license would not result in the loss of a domain.

For example, a “registrant is in a jurisdiction that doesn’t license doctors (if that exists)” or a “registrant that represents him/herself as a licensed medical doctor, but uses the site to sell cupcakes”, the spokesperson said.

ICANN’s Governmental Advisory Committee had wanted .doctor restricted to medical doctors, but Donuts complained noting that “doctor” is an appellation used in many other fields beyond medicine.

It can also be used in fanciful ways to market products, the registry said.

ICANN eventually sided with Donuts, allowing it to keep an open TLD as long as it included certain Public Interest Commitments in its registry contract.

.doctor goes to GA October 26.

Registrar accused of pimping prescription penis pills

Kevin Murphy, October 14, 2016, Domain Registrars

ICANN has implicated a Chinese domain name registrar in the online selling of medications, including Viagra and Cialis, without the required prescription.

The organization’s Compliance department filed a contract breach notice with Nanjing Imperiosus, which does business as DomainersChoice.com, today.

The move follows an allegation from pharmacy watchdog LegitScript in the US Congress that DomainersChoice is “rogue internet pharmacy operator”.

Because ICANN has no authority to police online pharmacies, it’s gone after the registrar based on an obscure part of the Registrar Accreditation Agreement.

Section 3.7.7 of the 2013 RAA says that domains must be registered to a third party, unless they’re used by the registrar in the course of providing its registrar services.

According to ICANN, DomainersChoice has refused to provide evidence that many of its domains are not in fact registered to itself and CEO Stefan Hansmann, in violation of this clause.

It cites 5mg-cialis20mg.com, acheterdutadalafil.com, viagra-100mgbestprice.net and 100mgviagralowestprice.net as examples of domains apparently registered to Hansmann and his company.

Historical Whois records show Hansmann and Nanjing Imperiosus as the registrant of these names until recently.

The domains all refer to erectile dysfunction medicines, which are usually only available in the US with a prescription.

A reverse Whois lookup reveals Hansmann’s name in the records for many more pharmaceuticals-related domains, some of which are for more serious medical conditions.

Several of the domains contain the words “without prescription” or similar, where the drug in question requires a prescription in the US.

Some of the domains do not currently resolve or no longer provide current Whois records and others have been recently transferred, but some resolve to apparently active e-commerce sites.

ICANN’s breach notice (pdf) doesn’t allege any illegal activity.

The same cannot be said for LegitScript CEO John Horton, who lumped DomainersChoice in with a few other registrars he believes are operating “illegal online pharmacies”.

Horton testified (pdf) before Congress last month that the registrar was playing host to 2,300 such sites.

The testimony was filed September 14, the same day ICANN began its compliance investigation.

ICANN’s notice, which alleges a handful of other relatively trivial breaches, asks that Hansmann provide a full list of domains registered in his and his company’s name via DomainersChoice.

It also demands evidence that the domains were either used to provide registrar services or were registered to a third party.

It wants all that by November 2, after which it may start to terminate the company’s RAA.

.xxx to get lower ICANN fees, accept the URS

Kevin Murphy, October 14, 2016, Domain Registries

ICM Registry has negotiated lower ICANN transaction fees as part of a broad amendment to its Registry Agreement that also includes new trademark protection measures.

The company’s uniquely high $2 per-transaction fee could be reduced to the industry standard $0.25 by mid-2018.

As part of the renegotiated contract, ICM has also agreed to impose the Uniform Rapid Suspension policy on its registrants.

URS is the faster, cheaper version of UDRP that allows trademark owners to have domain names suspended in more clear-cut cases of cybersquatting.

The $2 fee was demanded by ICANN when ICM first signed its RA in 2011.

At the time, ICANN said the higher fee, which had doubled from a 2010 draft of the contract, was to “account for anticipated risks and compliance activities”.

The organization seemed to have bought into the fears that .xxx would lead to widespread misuse — something that has noticeably failed to materialize — and was expecting higher legal costs as a result.

The companion TLDs .adult, .porn and .sex, all also managed by ICM, only pay $0.25 per transaction.

The overall effects on registrants, ICANN and ICM will likely be relatively trivial.

With .xxx holding at roughly 170,000 domains and a minimal amount of inter-registrar transfer activity, ICM seems to be paying ICANN under $400,000 a year in transaction fees at the moment.

Its registry fee is usually $62, though a substantial number of domains have been sold at lower promotional pricing, so the cost to registrants is not likely to change a great deal.

The reduction to $0.25 would have to be carried out in stages, with the earliest coming this quarter, and be reliant on ICM keeping a clean sheet with regards contract compliance.

Under the deal, ICM has agreed to adopt many of the provisions of the standard Registry Agreement for 2012-round gTLDs.

One of those is the URS, which may cause consternation among domainers fearful that the rights protection mechanism may one day also find its way into the .com registry contract.

ICM has also agreed to implement its existing policies on, for example, child abuse material prevention, into the contract as Public Interest Commitments.

The RA amendment is currently open for public comment at ICANN.

ICANN faces first post-transition test of UN power (for real this time)

Kevin Murphy, October 7, 2016, Domain Policy

The ICANN community and United Nations agencies are heading for a clash, with governments accused this morning of trying to bypass the ICANN policy-making process.

According to the leader of an ICANN volunteer working group, governments and UN-affilated intergovernmental organizations (IGOs) have circumvented the usual ICANN consensus-building process in order to extract the policies they want directly from the ICANN board of directors and staff.

It’s the first time since the IANA transition, which happened less than a week ago, that governments have been accused of exploiting their special access to the board, and it may become a hot topic at next month’s ICANN 57 meeting in India.

Governments and UN agencies now stand accused of “bypassing the ICANN community” in order to achieve their policy goals.

But the policy being debated is not directly linked to the IANA transition, nor to the thoroughly debunked notion that the UN has taken over ICANN.

Indeed, the issue in question — the permanent protection of IGO acronyms in gTLDs — is almost embarrassingly narrow and predates the announcement of the IANA transition by at least three years, going back to at least 2011.

Basically, the policy questions that look set to cause even more conflict between governments and others are: should IGO acronyms be protected, and if so, how?

IGO acronyms are strings such as WIPO, UNESCO and OECD.

The ICANN board punted this question in May 2014, when it received conflicting advice from the Governmental Advisory Committee and Generic Names Supporting Organization.

Since then, a GNSO Policy Development Process working group has been working on recommendations. It has not yet issued its initial findings, but is close.

Simultaneously and separately, members of ICANN’s board and staff have been quietly talking to a handful of GAC members and IGOs about the same issue in what has become known as the “small group”.

Because it’s small. And a group.

Yesterday, ICANN divulged the consensus of the small group in a letter (pdf) to the leaders of the GNSO Council.

Its recommendations conflict in almost every respect with what the GNSO working group intends to recommend.

The small group wants ICANN to create IGOs-acronyms-only versions of the Trademark Clearinghouse database, Trademark Claims service and UDRP and URS dispute resolution mechanisms — basically “functionally equivalent” mirrors of almost all of the rights protection mechanisms currently only available to trademark owners.

They would be administered at least partially by the GAC and at no cost to the IGOs themselves (presumably meaning ICANN would pick up the tab).

It seems like a disproportionate amount of faff considering the problem ICANN is trying to solve is the vanishingly small possibility that somebody attempts to cybersquat the United Nations Entity For Gender Equality And The Empowerment Of Women (UNWOMEN) or the Postal Union Of The Americas Spain And Portugal (PUASP).

A lot of it is also in direct opposition to what the GNSO WG plans to recommend, according to chair Phil Corwin and the current draft of the WG’s recommendations.

The WG currently plans to recommend that IGOs should be allowed to use the existing URS and UDRP mechanisms to take down or take over domains that use their acronyms in bad faith. It does not currently seem to recommend anything related to Trademark Claims.

A foundational disagreement relates to the status of IGOs under the law. While IGOs in the small group seem to think they are in a special category of entity that is not subject to regular trademark law, the WG hired expert legal counsel that determined the contrary.

Corwin, in his initial response to the small group letter, said that the implications of the debate go beyond how IGO acronyms should be protected.

IGOs carried out a “near boycott” of the GNSO PDP discussions, he wrote, preferring instead to talk to the small group “behind closed doors”. He wrote:

we continually urged members of the GAC, and IGOs, to participate in our WG. That participation was so sporadic that it amounted to a near-boycott, and when IGO representatives did provide any input they stressed that they were speaking solely as individuals and were not providing the official views of the organizations that employed them.

Of course, why should they participate in the GNSO policy processes when they are permitted to pursue their goals in extended closed door discussions with the Board, and when the Board seeks no input from the GNSO in the course of those talks?

He directly linked the timing of the small group report to the expiration last Friday of ICANN’s IANA functions contract with the US Department of Commerce, and suggested that the IGO acronym issue could be a litmus test for how ICANN and governments function together under the new oversight regime.

I note that transmission of the letter has been delayed until after the completion of the IANA transition, and that the post-transition role of governments within ICANN was a central controversy surrounding the transition.

What is at stake in this matter goes far beyond the relatively rare instance in which a domain registrant infringes upon the name or acronym of an IGO and the IGO seeks relief through a CRP [Curative Rights Protection mechanism]. The larger issue is whether, in a post-transition ICANN, the GAC and the UN agencies that comprise a large portion of IGOs, will participate meaningfully in GNSO policy activities, or will seek their policy aims by bypassing the ICANN community and engaging in direct, closed door discussions with the Board.

The financial effects of this seemingly interminable debate on the gTLD industry are probably pretty minor.

Currently, all new gTLDs have temporarily blocked, from launch, all of the IGO acronyms in question. That’s roughly 200 domains per gTLD that could otherwise be sold.

Many of the strings are three, four and five-letter acronyms that could fetch “premium” prices in the open market (though, in my judgement, not much more than a couple hundreds bucks in most cases).

A small number of the acronyms, such as WHO and IDEA, are potentially more valuable.

Off the top of my head and the back of an envelope, I’d put the cost to the industry as a whole of the IGO acronym blocks probably somewhere in the very low millions.

The harms being prevented are also very minor, in my view. With a small handful of exceptions, the IGOs in question are not attractive cybersquatting targets.

But, as is so often the case in ICANN matters, the arguments in this case boil down to matters of law, principle and process much more than practical impact.

Judge says IANA transition suit unlikely to succeed

Kevin Murphy, October 4, 2016, Domain Policy

A Texas judge refused demands for a temporary restraining order preventing the IANA transition going ahead last weekend because the suing state attorneys general were unlikely to succeed at trial.

That was one of several reasons Judge George Hanks refused the TRO, which had been requested by the Republican AGs of Texas, Arizona, Oklahoma and Nevada.

Hanks’ order on the motion, which was published last night (pdf), said the AGs:

have not shown that there is a substantial likelihood that they will prevail on the merits of this case. Nor have they shown that there is a substantial threat that an irreparable injury will be suffered. Nor have they shown that the threated injury outweighs the threatened harm to the United States. Finally, they have not shown that granting the injunction will not disserve the public interest.

The lawsuit claims that the IANA transition, which involves the US government removing itself from its oversight roles of ICANN and DNS root zone management, represents a threat to free speech and to the stability of the .mil and .gov TLDs.

The eleventh-hour complaint was filed on Thursday, after attempts by Senator Ted Cruz and his allies to block the transition via a Congressional funding bill failed.

But Hanks ruled that the AGs claims about potential future harms amounted to no more than “speculation” and “hearsay”.

He wrote: “counsel’s statements of what ‘might’ or ‘could’ happen are insufficient to support the extraordinary relief sought in this case.”

He also pointed to one significant logical inconsistency in their argument:

Even if the Court were to find that some past harm or bad acts by the Internet Corporation for Assigned Names and Numbers (“ICANN”) impacted the interests of the States in their respective websites and alleged rights at interest, the Court notes that these past harms happened under the exact regulatory and oversight scheme that the States now seek to preserve. This, along with the lack of evidence regarding any predictable or substantially likely events, greatly undermines the States’ request for they relief they seek.

The AGs are reportedly considering their options following the ruling, and may appeal.

But another school of thought holds that the suit was largely a political gesture designed to creating talking points for the Republican party ahead of next month’s presidential election, and could be allowed to fade away.