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New gTLDs: 23 community objections withdrawn

Kevin Murphy, August 21, 2013, Domain Registries

Almost a quarter of Community Objections against new gTLDs have been terminated without a decision, according to International Chamber of Commerce documentation.

The withdrawals leave the way open for the applied-for gTLDs .insure, .realty, .realestate, .cruises, .careers and .bio to proceed unencumbered by any objections at all.

In total 23 Community Objections, of the original 104 reported by ICANN, have been dropped. Two of the original 23 Limited Public Interest Objections have also been terminated, according to the ICC.

The terminated Community Objections seem to fall into a few categories.

Objections against applications for .autoinsurance, .carinsurance, .health, .mail and .patagonia appear to have been stopped because the applications themselves were withdrawn.

The Independent Objector, Alain Pellet, has withdrawn one Limited Public Interest — .health — and three Community objections — .patagonia, .indians, .hospital.

These seem to have been yanked due to either application withdrawals, matching objections filed by third parties, or by Governmental Advisory Committee advice.

Applications facing one fewer objection — but not zero objections — include those for .insurance, .broker, .hoteis, .hoteles, .health, and .kid.

GAC advice remains a concern for many of the affected applicants, even those that no longer face the uncertainty and expense of the objection process.

Donuts seems to have fared best from the terminations. Its .careers and .cruise bids seem to be the only ones to have emerged uncontested and with no outstanding objections or GAC advice.

The terminations were revealed in an updated list of objections published by the ICC on Monday.

The updated data is now indexed and searchable on the all-new, super-duper DI PRO Application Tracker.

Realtors withdraw five gTLD community objections

Kevin Murphy, August 8, 2013, Domain Registries

The US-based National Association of Realtors has withdrawn its Community Objections against five applicants for .realestate and .realty, according to well-placed sources.

The five separate objections, which had been combined into one action under the auspices of the International Chamber of Commerce’s International Centre for Expertise, were withdrawn today.

NAR is a million-member trade association — apparently the largest in the US — comprising real estate agents that agree to pay dues and abide by its code of conduct.

It owns a trademark on REALTORS® and, judging by its objection and web site, is not shy about letting you know it. In the States, only NAR members get to call themselves “realtors”.

It has applied for .realestate via a subsidiary, dotRealEstate LLC, and had objected to applications for .realestate from Donuts, Top Level Domain Holdings and Uniregistry, and applications for .realty from Donuts and smaller portfolio applicant Fegistry.

The objections were combined in May, with the consent of the responding applicants.

NAR argued (pdf) that the applied-for strings are synonymous with its community of members, and that the other applicants’ proposed open-house registration policies would tarnish their reputation.

To win a Community Objection, you have to show among other things that there’s a strong nexus between the string at issue and the “clearly delineated” community you purport to represent.

While the case seems to have been withdrawn before it was decided by the ICC panel, NAR’s rivals were zeroing in on this as a weak spot in its objections.

The Uniregistry response (pdf) is as amusingly brutal as you’d expect from company counsel John Berryhill, using the NAR’s own marketing materials and positions in previous lawsuits against it.

Uniregistry pointed for example to a video on NAR’s web site that says:

We need your help to ensure that the term ‘REALTOR’ continues to mean member of the National Association of Realtors, and not just any real estate agent.

Uniregistry took this as an admission from NAR that the nexus between the universe of “real estate” professionals and the NAR is not as strong as the organization had tried to make out.

In Donuts’ two responses (pdf and pdf) also attacked this angle, arguing

Objector and its members make up only a fraction of that “community”… myriad divergent interests and countless individuals and organizations populate the sphere of “realty” around the world. Objector does not claim to speak on behalf of any of them, but rather only its own membership in the United States.

Now that the objections have been withdrawn, and all the applications are still active, the .realestate and .realty contentions sets are both heading to auction or private settlement.

“Extortion” claims over new gTLD objection fees

Kevin Murphy, July 22, 2013, Domain Policy

The International Chamber of Commerce came in for quite a bit of criticism at ICANN 47 last week over claims that it is asking for deposits in excess of a million dollars to handle new gTLD objections.

Critics are worried that these high fees to arbitrate Community Objections will create a “chilling effect” that will dissuade communities affected by new gTLDs from objecting.

During a session early during the Durban meeting, Neustar VP Jeff Neuman said that the company had been “shocked” to receive a bill from the ICC for $190,000 for a single objection.

“Each one of the bidders had to put up $190,000,” he said. “It’s nothing better than extortion.”

Responding, ICANN new gTLD program manager Christine Willett said that ICANN has heard concerns from other applicants affected and has asked the ICC for a detailed rationale for its fees, which it will publish.

The ICC, she said, is “utilizing preeminent jurists to arbitrate and manage these cases” and that the estimated €450 per hour wage is “probably lower than what some of these jurists get in public fees”.

As we’ve noted previously, at €450 per hour it works out that each judge in the three-person panel would have to work on nothing but the objection, full-time, for over two weeks to justify the fee.

Later last week, during the Public Forum on Thursday, Mark Partridge of Partridge IP Law — who is WIPO panelist dealing with new gTLD Legal Rights Objections — had similar criticisms.

He said he was aware of a consolidated proceeding — where multiple objections have been bundled into the same case — where the ICC was asking for a total of €1.13 million.

A bit of back-of-the-envelope math suggests that the panelists in that case would have to work on the case full-time for a month at €450 an hour.

Partridge, noting that WIPO charges substantially less for LRO objections, said:

I’m also aware of not-for-profit associations that have found the amount of the required deposit to be prohibitive for that not-for-profit association to advance.

I’m still very concerned about the chilling effect that these high fees have going forward.

In response, Willett said that the Community Objection is substantially more complex than the LRO, and reiterated that

The prevailing party in a new gTLD gets its money back from the ICC. This may reduce the chilling effect, but only if a community is willing to put its money — if it even has the funds — on the line.

As we haven’t yet had any Community Objection decisions handed down yet, it’s pretty difficult to judge going into a case what the likely outcome would be. This may change in future rounds.

The ICC is also handled Limited Public Interest Objections, many of which have been filed by the ICANN-selected Independent Objector. If the objector loses his cases, the cost comes out of his budget, which was paid for by new gTLD applicants.

Is the ICC ripping off new gTLD objectors?

Kevin Murphy, June 27, 2013, Domain Policy

New gTLD applicants have reportedly complained to ICANN about the unexpectedly high cost of dealing with objections.

The International Chamber of Commerce has apparently been quoting objectors prices as high as €150,000 for a three-person panel to handle a formal community objection.

At $195,000, that’s almost $10,000 more than the original ICANN application fee.

Because Community Objections run on a loser-pays basis, the stakes are high indeed. An applicant could lose its application, most of its application fee, and still have to pay the objector’s fees.

The complaints emerged during a session with ICANN new gTLD program head Christine Willett at a meeting in Brussels earlier this week, according to consultant and occasional DI contributor Stephane Van Gelder.

Writing on the NetNames blog yesterday, Van Gelder quoted Willett as saying:

We are aware that ICC fees are more than people were expecting. Some applicants have been quoted around 50,000 Euros for a one expert panel and 150,000 Euros for a three expert panel. Although in the same order of magnitude as the cost estimate listed in the applicant guidebook, they are still higher. In some cases, significantly higher. In fact, we had one applicant write to us last week saying that their quoted expert fee was more than the ICANN fees for submitting their application in the first place! So we have reached out to ICC and are hoping they can provide some rationale for the costs they are quoting.

The Applicant Guidebook does not detail the fees charged by dispute resolution providers, but materials provided by the ICC (pdf) say that its admin costs are €12,000 and €17,000 for a one-person and three-person panel respectively. The hourly rate for the panelists is €450, it says.

With a €150,000 total cost, back of the envelope doodling suggests that each panelist expects to spend around 100 hours working on each case — over two weeks at seven hours a day.

By contrast, the World Intellectual Property Organization’s fees for handling Legal Rights Objections with a three-person panel start at $23,000 ($3,000 for WIPO, $20,000 for the panelists).

Rejected .gay gTLD objection ruled “unfair”

Kevin Murphy, June 27, 2013, Domain Policy

dotgay LLC could be hit by another formal new gTLD objection from gay Republicans.

ICANN Ombudsman Chris LaHatte today said that it was “unfair” that a community objection filed by GOProud, a gay lobby group, was rejected by the International Chamber of Commerce.

The ICC screwed up, it seems, judging by LaHatte’s decision.

Washington DC-based GOProud, which seeks to show that not all gay rights advocates have liberal views on other issues, had filed a community-based objection to dotgay’s .gay gTLD application.

While the substance of the objection is not known, I suspect it’s politically motivated. The other objection to dotgay’s application was filed by another gay Republican organization, the Metroplex Republicans of Dallas (formerly Log Cabin Republicans Dallas).

The ICC rejected the objection because it was about 500 words over the prescribed limit, but it sent the notification to the wrong email address, according to LaHatte’s blog.

Had GOProud received the notification, it would have had time to amend its objection to rectify the mistake. However, by the time it discovered the problem the filing deadline had passed.

LaHatte wrote:

there is some unfairness in the subsequent rejection given the apparent error in the use of the wrong email. It seems to me that it would be relatively easy to unwind that decision, and permit the late filing of the objection. I can of course only make a recommendation, but in this case where there is some unfairness I think the matter should be revisited.

The Ombudsman’s role is to handle complaints about unfairness in ICANN’s actions, so it’s not entirely clear what’s going to happen in this case, given that the ICC is an ICANN subcontractor.

LaHatte’s recommendation is certainly not binding in either case. Whether the ICC changes its mind may depend on whether ICANN asks it to or not.

dotgay is the New York-based applicant founded by Scott Seitz. It’s one of four companies applying for .gay.

The other three applicants — Top Level Domain Holdings, Top Level Design and Demand Media — have each received community objections from the International Lesbian Gay Bisexual Trans and Intersex Association, a dotgay supporter.