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ICANN loses another IRP — .sport gTLD fight reopens as panel finds “apparent bias”

Kevin Murphy, February 2, 2017, Domain Registries

The future of the .sport gTLD was cast into turmoil this week after an independent panel ruled that there was “apparent bias” in the decision that awarded the string to a group linked to the Olympics.

The new Independent Review Panel ruling found that ICANN broke its own bylaws by refusing to allow Famous Four Media to appeal a 2013 decision that essentially awarded .sport to rival bidder SportAccord.

FFM claims the expert panelist tasked with deciding SportAccord’s Community Objection had undisclosed conflicts of interest that made him much more likely to rule in favor of SportAccord, which is backed by the International Olympic Committee, than FFM, which is a purely commercial operator.

And the IRP panel did not disagree, ruling this week that ICANN should have taken FFM’s claims into account before rejecting its requests for an appeal in 2014.

The ruling means that ICANN may be forced to throw out the Community Objection decision from 2013 and order it to be re-tried with a new expert, potentially allowing FFM back into the .sport contest.

As usual with IRP cases, the ruling is a complex and very dry read, involving multiple layers of objections, appeals, panels and experts.

FFM and SportAccord were the only two applicants for .sport in the 2012 application round.

SportAccord, which has the backing of dozens of sporting organizations in addition to the IOC, claims to represent pretty much all organized sport and wants to run .sport with restrictions on who can register.

FFM, conversely, wants to keep it open to everyone with a passing interest in sport.

In an attempt to kick FFM out of the contest without a potentially expensive auction, SportAccord filed, and then won, a Community Objection in 2013.

To win, it had to prove that the interests of the sport community would be harmed if FFM got to run it. The objection expert panelist, Guido Tawil, came down on SportAccord’s side.

FFM naturally enough disagreed with his conclusion, and vowed to fight to overturn it.

The registry later discovered that Tawil had undisclosed ties to the IOC, which it said should have disqualified him from acting as an independent expert.

First, Tawil attended a conference of the International Bar Association in Rio de Janeiro in 2011 called “Olympic‐Size Investments: Business Opportunities and Legal Framework”, where he co‐chaired a panel entitled “The quest for optimising the dispute resolution process in major sport‐hosting events”.

Second, the law firm he works for, Argentina-based M & M Bomchil, counts DirecTV among its key clients and at the time of the Community Objection DirecTV was negotiating with the IOC for Latin America broadcasting rights for the Sochi 2014 and Rio 2016 Olympics, rights it subsequently obtained.

Third, a partner in Tawil’s law firm is president of Torneos y Competencias, a sports broadcaster with ties to DirecTV.

FFM has claimed: “Guido Tawil’s own legal practice and business is built around a company for whom IOC broadcasting rights are a core aspect of its business.”

While FFM filed two Requests for Reconsideration with ICANN in late 2013 and early 2014, raising the possibility of conflicts of interest and demanding ICANN have Tawil’s ruling thrown out, both were rejected by ICANN’s Board Governance Committee.

It also took its claims to the ICANN Ombudsman, who drafted (but did not finalize) a finding that agreed with FFM that the Community Objection should be retried with a new expert.

The subsequent IRP filing challenged the two RfR decisions and, two years later, the IRP panel has now ruled:

the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents.

The panel also said that ICANN should have taken the Ombudsman’s draft report into account.

It declared:

that the action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles, Bylaws and/or the Applicant Guidebook.

The panel has ordered ICANN to pay FFM’s share of the $152,673 IRP costs.

ICANN’s board will now have to consider the IRP decision, and it seems very possible that a new Community Objection review might be ordered.

On the face of it, it looks like a big win for FFM.

That does not mean that SportAccord will not prevail in its objection for a second time, even with a different presiding expert, however.

One fact in its favor is that it now has three years’ worth of evidence of how Famous Four conducts its business — selling domains at super-cheap prices, some say at the expense of the cleanliness of its namespaces — with which to attempt to show the likelihood of harm.

What seems certain is that the .sport gTLD is not going to see the light of day any time soon.

Read the ruling as a PDF here.

ICANN headed for GAC fight over IGO pleading

Kevin Murphy, April 10, 2013, Domain Policy

ICANN may be heading for a bust-up with its Governmental Advisory Committee over the issue of a special domain name block-list for intergovernmental organizations.

The board of directors this week indicated at a meeting with the GAC in Beijing that it’s prepared to deny the GAC’s official demand for IGO protection at second level in all new gTLDs.

The GAC wants the names and acronyms of hundreds of IGOs — any organization that qualifies for a .int domain name — blocked, so that nobody would be able to register them, in every new gTLD.

It would, for example, give the European Forest Institute the exclusive rights to efi.tld in all future gTLDs.

Other well-known cybersquatting targets such as the European Organisation for Astronomical Research in the Southern Hemisphere (ESO), the North Atlantic Salmon Conservation Organization (NASCO) and the International Conference on the Great Lakes Region of Africa (ICGLR), would also be protected.

Some potentially very useful operational domains, such as a who.tld, would be banned (because of the World Health Organization).

Clearly, the GAC’s demands are a solution looking for a problem, giving special protection to many organizations that simply don’t need it, potentially at the expense of legitimate users.

The GAC had indicated that clashes with legitimate uses could be handled in a similar way to country names will be controlled in new gTLDs, where registries have to request special permission from the governments concerned to release the domains to others.

This would open a whole can of worms, however, the implications of which were outlined in an April 1 letter from ICANN board chair Steve Crocker to the GAC.

The board’s case was also succinctly articulated by director Chris Disspain during the board’s meeting with the GAC on Tuesday, and worth quoting in full. Disspain said:

This would mean that the Church of England would require the approval of the Council of Europe to register coe.church. It means the government of Canada would require the approval of the Andean Community to register can.anything. It means the International Standards Organization would require the approval of the International Sugar Organization to register iso.anything.

Even if this is what you intended in principle, the implementation of this advice is extremely problematic.

Who at each IGO would make a decision about providing consent? How long would each IGO have to provide consent? Would no reply be equivalent to consent? What criteria would be used to decide whether to give consent or not? Who would draft that criteria? Would the criteria be consistent across all IGOs or would consent simply be granted at the whim of an IGO.

The board believes that all these issues make it extremely difficult, if not impossible, to accept the advice as is.

Rather than rejecting this advice we seek an acknowledgement from the GAC in its communique that there are issues to be worked through, and we seek agreement with the GAC that they will work with the board and staff on these issues from now until Durban [this July] when the board will make a decision?

Disspain added that despite a board decision in November to set the ball rolling on IGO protections, it most certainly has not already decided to grant the GAC’s request.

This is an excellent development in GAC-board relations, in my view.

Rather than quaking at GAC advice, or rush-approving it to meet new gTLD program deadlines, the board is schooling the GAC about the obvious flaws in its position, and inviting it to think about the problems in a bit more depth, hearing alternate views, before lobbing advice grenades.

It’s a stark contrast to its treatment of the GAC’s 2011 advice on International Olympic Committee and Red Cross/Red Crescent names, where the board agreed to special protections in order to get the new gTLD program out of the door, creating thousands of extra person-hours of work for the GNSO.

When the GAC issued its IOC/RC/RC advice, it assured ICANN that the organizations concerned were special cases.

Others warned — presciently, as it turned out — that such protections would be merely the top of a slippery slope that would lead to a much longer list of protected names.

An effect of ICANN’s strong position now is that the slope is less steep and less slippery.

What happens next with the IGO names depends on the GAC’s communique from the ongoing Beijing meeting.

If it decides to engage with ICANN to sort out the problems it’s trying to create, they have until Durban to come to a deal. If it stands firm, ICANN may have to invoke the part of its bylaws that allows it to overrule the GAC, which has only done once before, when it approved .xxx.

If the GNSO is irrelevant, ICANN itself is at risk [Guest Post]

Stéphane Van Gelder, December 1, 2012, Domain Policy

The weeks since October’s Toronto ICANN meeting have seen some extraordinary (and, if you care about the multi-stakeholder model, rather worrying), activity.

First, there were the two by-invitation-only meetings organised in November at ICANN CEO Fadi Chehadé’s behest to iron out the Trademark Clearinghouse (TMCH).

The TMCH is one of the Rights Protection Mechanisms (RPMs) being put in place to protect people with prior rights such as trademarks from the risk of seeing them hijacked as a spate of new gTLDs come online.

The first meeting in Brussels served as a warning sign that policy developed by the many might be renegotiated at the last minute by a few. The follow-up meeting in Los Angeles seemed to confirm this.

Two groups, the Intellectual Property Constituency (IPC) and the Business Constituency (BC), met with the CEO to discuss changing the TMCH scheme. And although others were allowed in the room, they were clearly told not to tell the outside world about the details of the discussions.

Chehadé came out of the meeting with a strawman proposal for changes to the TMCH that includes changes suggested by the IPC and the BC. Changes that, depending upon which side of the table you’re sitting on, look either very much like policy changes or harmless implementation tweaks.

Making the GNSO irrelevant

So perhaps ICANN leadership should be given the benefit of the doubt. Clearly Chehadé is trying to balance the (legitimate) needs of the IP community to defend their existing rights with the (necessary) requirement to uphold the multi stakeholder policy development model.

But then the ICANN Board took another swipe at the model.

It decided to provide specific protection for the International Olympic Committee (IOC), the Red Cross (RC), and other Intergovernmental Organisations (IGOs) in the new gTLD program. This means that gTLD registries will have to add lengthy lists of protected terms to the “exclusion zone” of domain names that cannot be registered in their TLDs.

RPMs and the IOC/RC and IGO processes have all been worked on by the Generic Names Supporting Organisation (GNSO). ICANN’s policy making body for gTLDs groups together all interested parties, from internet users to registries, in a true multi-stakeholder environment.

It is the epitome of the ICANN model: rule-based, hard to understand, at times slow or indecisive, so reliant on pro-bono volunteer commitment that crucial details are sometimes overlooked… But ultimately fair: everyone has a say in the final decision, not just those with the most money or the loudest voice.

The original new gTLD program policy came from the GNSO. The program’s RPMs were then worked on for months by GNSO groups. The GNSO currently has a group working on the IOC/RC issue and is starting work on IGO policy development.

But neither Chehadé, in the TMCH situation, or the Board with the IOC/RC and IGO protections, can be bothered to wait.

So they’ve waded in, making what look very much like top-down decisions, and defending them with a soupcon of hypocrisy by saying it’s for the common good. Yet on the very day the GNSO Chair was writing to the Board to provide an update on the GNSO’s IOC/RC/IGO related work, the Board’s new gTLD committee was passing resolutions side-stepping that work.

The next day, on November 27, 2012, new gTLD committee Chair Cherine Chalaby wrote:

The Committee’s 26 November 2012 resolution is consistent with its 13 September 2012 resolution and approves temporary restrictions in the first round of new gTLDs for registration of RCRC and IOC names at the second level which will be in place until such a time as a policy is adopted that may required further action on the part of the Board.

Continuing on the same line, Chalaby added:

The second resolution provides for interim protection of names which qualify for .int registration and, for IGOs which request such special protection from ICANN by 28 February 2013. (…) The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

A soothing “sleep on” message to both the community and the GNSO that the bottom-up policy development process is safe and sound, as long as no-one minds ICANN leadership cutting across it and making the crucial decisions.

Red alert!

Chehadé’s drive to get personally involved and help solve issues is paved with good intentions. In the real world, i.e. the one most of us live and work in, a hands-on approach by the boss generally has few downsides. But in the ICANN microverse, it is fraught with danger.

So is the Board deciding that it knows better than its community and cannot afford to wait for them to “get it”?

These latest episodes should have alarm bells ringing on the executive floor of ICANN Towers.

ICANN only works if it is truly about all interested parties getting together and working through due process to reach consensus decisions. Yes, this process is sometimes lengthy and extremely frustrating. But it is what sets ICANN apart from other governance organisations and make it so well suited to the internet’s warp-speed evolution.

Turn your back on it, act like there are valid circumstances which call for this ideology to be pushed aside, and you may as well hand the technical coordination of the internet’s naming and numbering system to the UN. Simple as that.

This is a guest post written by Stéphane Van Gelder, strategy director for NetNames. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.

ICANN massively expands the reserved domains list for new gTLDs

Kevin Murphy, November 28, 2012, Domain Policy

ICANN’s board of directors has given the Olympic and Red Cross brands – along with those of a batch of intergovernmental organizations — special second-level protection in new gTLDs.

Its new gTLD program committee this week passed two resolutions, one protecting the International Olympic Committee and Red Cross/Red Crescent, the other protecting IGOs that qualify for .int domain names.

New gTLD registries launching next year and beyond will now be obliged to block a list of names and acronyms several hundred names longer than previously expected.

Domain names including who.tld and reg.tld will be out of bounds for the foreseeable future.

In a letter to the GNSO, committee chair Cherine Chalaby said:

The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

The first ICANN resolution preempts an expected GNSO Council resolution on the Olympics and Red Cross — which got borked earlier this month — while the second is based on Governmental Advisory Committee advice coming out of the Toronto meeting in October.

The resolutions were not expected until January, after the GNSO Council had come to an agreement, but I’m guessing the World Conference on International Telecommunications, taking place in Dubai next week, lit a fire under ICANN’s collective bottoms.

The full text of the resolutions will not be published until tomorrow, but the affected organizations have already been given the heads-up, judging by the quotes in an ICANN press release today.

The press release also noted that the protections are being brought in before the usual policy-making has taken place because it would be too hard to introduce them at a later date:

In approving the resolutions, the New gTLD Program Committee made it clear it was taking a conservative approach, noting that restrictions on second-level registration can be lifted at a later time depending on the scope of the GNSO policy recommendations approved by the Board.

The new Reserved Names List will presumably be added to the Applicant Guidebook at some point in the not too distant future.

Meanwhile, Wikipedia has a list of organizations with .int domain names, which may prove a useful, though non-comprehensive, guide to some of the strings on the forthcoming list.

GNSO gives thumbs down to Olympic trademark protections in shock vote

Kevin Murphy, November 15, 2012, Domain Policy

ICANN’s GNSO Council voted against providing special brand protection to the Olympics and Red Cross today, in a shock vote that swung on a trademark lawyer’s conflict of interest.

A motion before the Council today would have temporarily protected the words “Olympic”, “Red Cross” and “Red Crescent” in various languages in all newly approved gTLDs.

The protections would be at the second level, in addition to the top-level blocks already in place.

The motion merely needed to secure a simple majority in both of the GNSO houses to pass, but it failed to do so despite having the unanimous support of registries and registrars.

Remarkably, the motion secured 100% support in the contracted parties house (registries and registrars) but only managed to scrape 46.2% of the vote in the non-contracted parties house, just one vote shy of a majority.

While the Non-Commercial Users Constituency predictably voted against the extra protections, it was an unnecessary abstention by an Intellectual Property Constituency representative that made the difference.

Trademark lawyer Brian Winterfeldt explained that he was abstaining — which essentially counts as a “no” vote — because the American Red Cross is his client so he had a conflict of interest.

The second IPC representative, newcomer Petter Rindforth, accidentally abstained also, before changing his vote to “yes” after it was explained that abstention was not an official constituency position.

Another member of the non-contracted parties house was absent from the meeting, potentially costing the motion another vote.

Half an hour later, when the Council had switched its attention to other business, Winterfeldt realized that his conflict of interest didn’t actually bar him from voting and asked if he could switch to a “yes”, kicking off a lengthy procedural debate about whether the vote should be re-opened.

In-at-the-deep-end Council chair Jonathan Robinson, in his first full meeting since taking over from Stephane Van Gelder last month, eventually concluded that because some councilors had already left the meeting it would be inappropriate to reopen the vote.

So the decision stands, for now at least: no special protections at the second level for the Olympics or Red Cross.

The Council is due to meet again December 20, when it may choose to revisit the issue. If it does, proponents of the motion had better hope the NCUC doesn’t request a deferral.

If today’s “no” vote is still in effect January 31, the ICANN board of directors may feel obliged to overrule the GNSO in order to approve the second-level reservations.

This wouldn’t look great for the vaunted bottom-up decision-making process, but the board is under a lot of pressure from the Governmental Advisory Committee to protect these two organizations, and it has already said that it favors temporary protections.

I suspect that the damage done today is not to the Olympics or Red Cross, which will probably get what they’ve been lobbying for for the last few years, but to the GNSO Council, which seems to have kicked off its new year on a divisive and embarrassingly bureaucratic note.