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Olympics wastes more money on ICANN nonsense

Kevin Murphy, May 14, 2012, Domain Policy

International Olympic Committee lawyers have lodged an official appeal of ICANN’s latest decision to not grant it extra-extra special new gTLD protection.

The [O]Lympic Cafe, close to both DI headquarters and the London 2012(TM) Olympic(TM) Park, which apparently found a novel solution when the IOC's lackeys came knocking.The IOC last week filed a Reconsideration Request asking the ICANN board to rethink an April 10 decision that essentially ignored the latest batch of “.olympic” special pleading.

As previously reported, ICANN’s GNSO Council recently spent a harrowing couple of meetings trying to grant the Olympic and Red Cross trademarks even more protection than they already get.

Among other things, the recommendations would have protected strings confusingly similar to “.olympic” at the top level in the new gTLD program.

But a month ago the ICANN board of directors’ newly created, non-conflicted new gTLD program committee declined to approve the GNSO Council’s recommendations.

The committee pointed out in its rationale that the application window is pretty much closed, making changes to the Applicant Guidebook potentially problematic:

a change of this nature to the Applicant Guidebook nearly three months into the application window – and after the date allowed for registration in the system – could change the basis of the application decisions made by entities interested in the New gTLD Program

It also observed that there was still at that time an open public comment period into the proposed changes, which tended to persuade them to maintain the status quo.

The decision was merely the latest stage of an ongoing farce that I went into much more detail about here.

But apparently not the final stage.

With its Reconsideration Request (pdf), the IOC points out that changes to the Applicant Guidebook have always been predicted, even at this late stage. The Guidebook even has a disclaimer to that effect.

The standard for a Reconsideration Request, which is handled by a board committee, is that the adverse decision was made without full possession of the facts. I can’t see anything in this request that meets this standard.

The IOC reckons the lack of special protections “diverts resources away from the fulfillment of this unique, international humanitarian mission”, stating in its request:

The ICANN Board Committee’s failure to adopt the recommended protection at this time would subject the International Olympic Committee and its National Olympic Committees to costly and burdensome legal proceedings that, as a matter of law, they should not have to rely upon.

Forgive me if I call bullshit.

The Applicant Guidebook already protects the string “.olympic” in over a dozen languages – making it ineligible for delegation – which is more protection than any other organization gets.

But let’s assume for a second that a cybersquatter applies for .olympics (plural) which isn’t specially protected. I’m willing to bet that this isn’t going to happen, but let’s pretend it will.

Let’s also assume that the Governmental Advisory Committee didn’t object to the .olympics application, on the IOC’s behalf, for free. The GAC definitely would object, but let’s pretend it didn’t.

A “costly and burdensome” Legal Rights Objection – which the IOC would easily win – would cost the organization just $2,000, plus the cost of paying a lawyer to write a 20-page complaint.

It has already spent more than this lobbying for special protections that it does not need.

The law firm that has been representing the IOC at ICANN, Silverberg, Goldman & Bikoff, sent at least two lawyers to ICANN’s week-long meeting in Costa Rica this March.

Which client(s) paid for this trip? How much did it cost? Did the IOC bear any of the burden?

How much is the IOC paying Bikoff to pursue this Reconsideration Request? How much has it spent lobbying ICANN and national governments these last few years?

What’s the hourly rate for sitting on the GNSO team that spent weeks coming up with the extra special protections that the board rejected?

How much “humanitarian” cash has the IOC already pissed away lining the pockets of lawyers in its relentless pursuit of, at best, a Pyrrhic victory?

The Olympics and the death of the GNSO, part deux

Kevin Murphy, March 26, 2012, Domain Policy

ICANN’s GNSO Council today narrowly voted to approve controversial special brand protections for the Olympic and Red Cross movements in the new gTLD program.

The vote this afternoon was scheduled as an “emergency” measure after the Council’s dramatic showdown at the ICANN public meeting in Costa Rica earlier this month.

Then, the Non-Commercial Stakeholders Group forced a deferral of the vote on the grounds that ICANN’s proper bottom-up policy-making processes had not been followed.

Today, a virtually identical motion barely squeaked through, turning on just a single vote after all six NCSG councilors abstained in protest.

It was a fairly tense discussion, as these things go.

“This is a sham of a proposal cooked up by a couple of lobbyists and shoved down the GNSO’s throat and that’s why I’m abstaining,” said Robin Gross, sitting in for absent councilor Wendy Seltzer.

“I’m abstaining to avoid the downfall of the GNSO Council,” said fellow NCSG councilor Rafik Dammak.

Essentially, the non-coms are upset that the decision to give special protection to the Olympics, Red Cross and Red Crescent appeared to be a top-down mandate from the ICANN board of directors last June.

(The board was itself responding to the demands of its Governmental Advisory Committee, which had been lobbied for special privileges by the organizations in question.)

ICANN policies are supposed to originate in the community, in a bottom-up fashion, but in this case the normal process was “circumvented”, NCSG councilors said.

Rather than bring the issue of special protection to the GNSO constituencies of which they are members, the IOC and Red Cross went directly to national governments in the GAC, they said.

The motion itself is to create a new class of “Modified Reserved Names” for the new gTLD program’s Applicant Guidebook, comprising solely of strings representing the Olympic and Red Cross.

Unlike the current version of the Guidebook, the International Olympic Committee and Red Cresent and Red Cross would actually be able to apply for their own brands as gTLDs.

The Guidebook would also give these Modified Reserved Names the same protection as ICANN itself in terms of string similarity – so Olympus might have a problem if it applies for a dot-brand.

Of course, the GNSO Council resolution does not become law unless it’s approved by the ICANN board of directors and implemented by staff in the Applicant Guidebook.

With the March 29 and April 12 application deadlines approaching, there’s a limited – some might say negligible – amount of time for that to happen if the GNSO’s work is to have any meaning.

That said, ICANN chair Steve Crocker said on more than one occasion during the Costa Rica meeting that he wants the board to be more flexible in its scheduling, so it’s not impossible that we’ll see an impromptu board meeting before Thursday.

Olympic showdown spells doom for ICANN, film at 11

Kevin Murphy, March 19, 2012, Domain Policy

ICANN’s 43rd public meeting, held in Costa Rica last week, was a relatively low-drama affair, with one small exception: the predicted death of ICANN’s Generic Names Supporting Organization.

The drama went down at the GNSO Council’s meeting last Wednesday – or “the day that everyone is going to remember as the downfall of the current GNSO Council” as vice-chair Jeff Neuman put it.

It had all the elements one might expect from an ICANN showdown: obscure rules of engagement, government meddling, special interests, delayed deadlines, whole oceans of acronym soup, commercial and non-commercial interests facing off against each other…

…and it was ultimately utterly, utterly pointless and avoidable.

The GNSO Council – which is responsible for forwarding community policies to ICANN’s board of directors – was asked to vote on a resolution giving special trademark protections to the International Olympic Committee and Red Cross and Red Crescent movements.

The resolution would have made it possible for the IOC/RC/RC organizations to apply for new gTLDs such as .olympic and .redcross while also disallowing confusingly similar strings from delegation.

The motion was created by a Drafting Team on the instruction of the ICANN board of directors, itself responding to a request from a heavily lobbied Governmental Advisory Committee.

The timing of the vote was crucial – the GNSO Council was not set to meet again until April 12, coincidentally the same date that ICANN stops accepting applications for new gTLDs.

If the vote didn’t happen last week, the IOC and Red Cross could have been basically banned from applying for new gTLDs until the second application round, years from now.

Confusingly similar strings would be eligible for delegation in the first round, however, which could mean both organizations would be locked out of the program permanently.

The resolution enjoyed broad support and was set to attract positive votes from every constituency group with the exception of the Non-Commercial Stakeholders Group.

The Non-Coms were unhappy that the Drafting Team recommendations underlying the resolution were, and still are, open for public comment.

While it’s not a unanimous view, they’re also ideologically opposed to the idea that the IOC and Red Cross should get special protection when a cheap way to object to confusing gTLDs already exists.

And the NCSG is far from alone in its concern that the decision to grant special privileges to these groups was a top-down decree from the ICANN board, lobbied for by the GAC.

Rather than simply voting “no”, however, the NCSG decided instead to force a deferral of the vote.

NCSG councilor Rafik Dammak said the resolution was “questionable on the merits and contrary to ICANN’s processes” and said the group had decided it had “no option but to defer this motion at least until the public comment period is closed”.

The GNSO Council has an unwritten but frequently used convention whereby any stakeholder group request to defer a vote until the next meeting is honored by the chair.

Barely a Council meeting goes by without one stakeholder group or another requesting a deferral. Usually, it’s requested to give a constituency group more time to study a proposal.

“The deferral request is intended to give people time to consider motions,” Council chair Stephane Van Gelder told Dammak. “The statement you just read is a statement against the motion itself.”

As Van Gelder noted, the NCSG did not have the usual excuse. Drafting Team chair Jeff Neuman had spent a few weeks prior to Costa Rica making damn sure that every stakeholder group, as well as the ICANN board, knew exactly what was coming down the pike.

As a veteran GNSO wonk, Neuman knew that a Non-Com deferral was likely. Even I predicted the move over a week before the Costa Rica meeting kicked off.

He was a little pissed off anyway. Neuman said:

For us to not be able to vote today is a failure. It’s a failure of the system under the guise of claiming you want more public comment. It’s a convenient excuse but in the end it’s a failure – nothing more, nothing less. This is a slap in the face to the governments that have asked us to decide.

You already know how you’re going to vote, it’s clear the vote is going to be no, so why don’t you stand behind your vote and vote now and vote no. That is what you really should be doing.

I want everyone to remember today – March 14, 2012 – because it this is the day that everyone going to remember as the downfall of the current GNSO Council as we know it and the policy process as we know it. Mark my words, it will happen. The GAC has asked us to act and we have failed to do so.

See? Drama.

Neuman noted that the deferral tradition is an unwritten politeness and called for the Council to vote to reject the NCSG’s request – an unprecedented move.

Van Gelder was clearly uncomfortable with the idea, as were others.

NCSG councilor Bill Drake said Neuman’s call for a vote on the deferral was “absolutely astonishing”.

“I never would have imagined I could say ‘well I don’t like this, this annoys me’ and so I’m going to demand we get a vote together and try to penalize a minority group that’s standing alone for some principle,” he said. “If that’s how we going to go about conducting ourselves perhaps this is the end of the Council.”

The Non-Com position also found support from other constituencies.

While Mason Cole of the Registrars Stakeholder Group said he would have voted in favor of the resolution, he said the way the policy was created looked like “a circumvention of the bottom-up policy development process”.

To cut a long story short (too late), after a spirited debate that lasted over an hour Van Gelder honored the NCSG deferral request, saying “something that we’ve always allowed in the past for everyone else should not be overturned in this instance”.

This would have pushed the vote out to the April 12 meeting — the NCSG would have effectively killed off the resolution purely by virtue of the new gTLD program timetable.

Neuman, however, had already invoked another quirk of the GNSO rules of engagement, demanding an emergency Council teleconference to vote on the resolution.

That’s now scheduled for March 26. Assuming the resolution is approved, the ICANN board will have just three days to rubber-stamp it before ICANN’s TLD Application System stops accepting new users.

If the Olympic or Red Cross organizations have any plans to apply for new gTLDs matching their brands, they’re going to have to be very quick.

Frankly, the IOC/RC issue has been a bit of a clusterfuck from beginning to end. This is one of those cases, it seems to me, in which every party involved is wrong.

The GAC was wrong to demand unnecessary special protections for these bodies back in June.

The ICANN board of directors was wrong to overturn established bottom-up policy when it gave the GAC what it wanted at the Singapore meeting.

The ICANN staff implementation that made it into the Applicant Guidebook last September was wrong and full of loopholes.

The Drafting Team was wrong (albeit through no fault of its own) to assume that it was refining established law rather than legislating.

The GNSO Council was wrong to consider a resolution on a policy that was still open for public comment.

The Non-Coms were wrong to abuse the goodwill of the Council by deferring the vote tactically.

There are probably a few typos in this article, too.

But does it spell the end of the GNSO?

I don’t think so. I suspect Neuman’s doomsaying theatrics may have also been somewhat tactical.

The GAC, which wields the hypothetical kill-stick, has yet to say anything about the drama. This may change if the GAC doesn’t get what it wants by the Prague meeting in June, but for now the GNSO is, I believe, safe.

Olympic-backed .sport bidder looking for partners

Kevin Murphy, September 2, 2011, Domain Registries

SportAccord, a worldwide coalition of sports federations with Olympic support, is looking for partners to help it with a possible .sport top-level domain bid.

In a request for proposals published today, the organization said it is looking not only for expertise and potential technical partners, but also financial backing:

The objective of SportAccord is to develop the best possible promotion of Sports Themed gTLDs by leveraging its unique relationship with its members, and to establish a usage policy that ensure respect of Sports key values.

SportAccord is therefore seeking to developing partnership with entities that could bring technical expertise and financial support to the common development of Sport themed gTLDs.

The 17-question RFP reveals that the organization has evidently done its homework.

Questions cover pertinent topics such as registrar integration, trademark protection, premium name monetization, and how to beat the ICANN threshold score for community-based applications.

The deadline for replying is September 30.

SportAccord, based in Lausanne, Switzerland, is an umbrella group comprising the international federations for over 100 sports, covering everything from football to tug of war.

The RFP states that the International Olympic Committee supports its gTLD initiative.

That’s an endorsement that may prove the deal-breaker for any .sport application. The IOC has been a vigorous defender of its rights in the new gTLD program.

Its lobbying efforts most recently compelled ICANN to build special protection for Olympic trademarks into the Applicant Guidebook itself (as well as lumbering the GNSO and ICANN staff with a bunch of unnecessary policy-development work).

Two other organizations have previously announced .sport applications

The loudest, Ron Andruff’s DotSport LLC, had appointed some of SportAccord’s member federations to its policy advisory council.

But SportAccord says in its RFP that “neither SportAccord nor any of its Members have made any commitment to support or participate in any sport themed gTLD.”

It looks like we may be looking at yet another push of the reset button on a well-lobbied gTLD.

The SportAccord RFP can be downloaded here.

Olympics make more new gTLD demands

Kevin Murphy, July 22, 2011, Domain Policy

The International Olympic Committee, fresh from its big win at ICANN Singapore, is pushing for more special protections in the new top-level domains program.

ICANN only approved the new gTLD program last month with the proviso that Olympic and Red Cross strings – .redcross and .olympic for example – would be banned as gTLDs in the first round.

The decision was a pretty obvious piece of political bone-throwing to the Governmental Advisory Committee, which had backed the IOC’s cause.

Now the IOC wants to ensure ICANN will ban .olympic and .olympiad in eight additional languages, including four non-Latin scripts, as well as “confusingly similar” strings such as .olympics.

I expect ICANN will probably grant this concession, even though the idea that somebody other than the IOC could successfully apply for .olympics under existing rules has always been ludicrous.

The IOC has probably already spent just as much money lobbying for these changes as it would have cost to file a slam-dunk legal rights objection, as already allowed by the Guidebook.

And that would only have been necessary, of course, in the vanishingly improbable scenario where somebody was stupid enough to pay $185,000 to apply for .olympics in the first place.

But the IOC now also wants all of its brands banned at the second level in all new gTLDs. This seems like a bigger ask, given that ICANN resolved to protect the Olympic marks “for the top level only”.

In a July 1 letter to ICANN (pdf), published today, an IOC lawyer includes suggested text for the Applicant Guidebook, to be included in the default registry agreement, stating:

In recognition of legislative and treaty protection for the Olympic designations, the labels “OLYMPIC” and “OLYMPIAD” shall be initially reserved at the second level. The reservation of an Olympic designation label string shall be released to the extent Registry Operator reaches agreement with the International Olympic Committee.

This would give the Olympic brand as much protection as country names at the second level.

The problem with this, of course, is that it sets the precedent for a specially protected marks list, which ICANN has resisted and which the GAC specifically has not asked for.

It’s a problem ICANN has arguably brought on itself, of course, given that it already specially protects “icann”, “iana” and a number of other strings on spurious technical stability grounds.

Olympics tells ICANN to abandon new TLD launch or get sued

Kevin Murphy, November 29, 2010, Domain Registries

The International Olympic Committee has threatened to sue ICANN unless it gives IOC trademarks special protection in its new top-level domains program.

The IOC’s critique of ICANN’s new Applicant Guidebook is the first to be filed by a major organization in the current public comment period.

The organization has accused ICANN of ignoring it, preferring instead to take its policy cues from the domain name industry, and said it should “abandon its current timeline” for the launch.

ICANN currently plans to start accepting TLD applications May 30, 2011.

Calling the guidebook “inherently flawed”, the IOC’s director general Urs Lacotte wrote:

If these critical issues are not fully resolved and ICANN chooses not to place the Olympic trademarks on the reserved names list, then the IOC and its National Olympic Committees are prepared to employ all available legislative, regulatory, administrative and judicial mechanisms to hold ICANN accountable for damage caused to the Olympic movement.

(That language looks like it could have been cut-n-paste from a separate letter from the financial services industry, which I reported on last week).

The IOC said that it has opposed the new TLD program 11 times – asking for its trademarks to be placed on the AGB’s reserved strings lists, but received no response.

Special pleading? Perhaps, but the IOC’s trademarks are already specifically protected by legislation in numerous countries, including the US, UK, Canada and China.

The IOC also wants stronger trademark protection mechanisms, such as mandatory typosquatting protections in sunrise periods and extending dispute proceedings to registrars.

Expect many more such missives to start showing up on the ICANN web site over the next 11 days before the ICANN board of directors meets to approve the AGB in Cartagena.

This may be the last chance many organizations get to ask for the changes they want in the AGB before the first round of new TLD applications opens, and I expect them to seize it with both hands.

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