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.hotel avoids auction with CPE win

A new gTLD applicant backed by the hotel industry has won a Community Priority Evaluation, meaning it gets to automatically win the .hotel contention set without going to auction.

If the decision stands, no fewer than six rival applicants for the string — including the likes of Donuts, Radix, Famous Four and Minds + Machines — are going to have to withdraw their applications.

It’s a bit of a shocker.

The CPE winner is HOTEL Top-Level-Domain, which scored 15 out of 16 available points in the CPE. The minimum required to vanquish all foes is 14 points.

The company will have spent a fair bit of cash fighting the CPE, but nothing compared to the millions of dollars an auction for .hotel would be likely to fetch.

Crucially, where HOTEL prevailed was on the “Nexus” criterion — demonstrating a link between the string and the community supporting the application — where four points are available.

In the first four CPE results to come through, back in March, each applicant scored a 0 on Nexus and none scored more than 11 points overall.

Dot Registry, which failed four CPEs (.inc, .llc, .corp and .llp) this week, also repeatedly flunked on this count.

HOTEL, however, scored a 3.

Rival applicants such as Donuts and M+M had argued that HOTEL’s stated community failed to take into account smaller hoteliers, such as bed and breakfast owners.

But the CPE panelist decided that the application did not “substantially overreach”:

The string nexus closely describes the community, without overreaching substantially beyond the community. The string identifies the name of the core community members (i.e. hotels and associations representing hotels). However, the community also includes some entities that are related to hotels, such as hotel marketing associations that represent hotels and hotel chains and which may not be automatically associated with the gTLD. However, these entities are considered to comprise only a small part of the community. Therefore, the string identifies the community, but does not over-reach substantially beyond the community, as the general public will generally associate the string with the community as defined by the applicant.

There’s no formal appeals mechanism for CPE, but rival applicants could try their luck with more general ICANN procedures such as Requests for Reconsideration.

HOTEL Top-Level-Domain is a Luxembourg-based entity, founded in 2008 to apply for the gTLD, backed by about a dozen international hotelier associations, including the International Hotel and Restaurant Association.

The IHRA counts 50 major hotel chain brands among its members and claims to be officially recognized by the UN for its lobbying work on behalf of the hospitality industry.

HOTEL intends to keep the .hotel gTLD restricted “initially” to only hotels as defined in the international standard ISO 18513.

Registrants will be verified against hotel industry databases. This will happen post-registration, but before the domain name can be activated in the DNS.

In other words, unless you’re a member of the hotel industry, you won’t be getting to use a .hotel domain name. Domainers are apparently not wanted.

All .hotel names will also be checked a year from registration to ensure that they have a web site displaying relevant content. Redirection to other TLDs may be allowed.

I was so convinced that the CPE was designed in such a way that it would be failed by all the applicants which had applied for it, I bet $50 (to go to an applicant-nominated charity) that none would.

If HOTEL wants to let me know which charity they want the $50 to go to, I’ll get it donated forthwith. I’m just glad I didn’t offer to eat my underwear.

Three more dot-brands dumped

Two companies have yanked three bids for dot-brand new gTLDs this week.

The German financial advisor Allfinanz Deutsche Vermögensberatung withdrew its applications for .allfinanzberatung and .allfinanzberater, which mean Allfinanz “advice” and “advisers”.

As well as being a bit of a mouthful, they both appear to be unnecessary given that the company also applied for .allfinanz by itself. That application has passed evaluation and is still active.

Meanwhile, in Finland, one of the world’s biggest elevator/escalator manufacturers, KONE, has withdrawn its equally unfathomable application for .kone.

Roughly 55 dot-brand applications have been withdrawn to date. Hundreds remain.

M+M profits by losing new gTLD auctions

Minds + Machines managed to make a profit in 2013, after years of losses, due to its participation in private new gTLD auctions, some of which it “lost”.

The company today reported operating profit of £776,000 for the year to December 31, compared to a £3.07 million loss in 2012, on revenue of £4.12 million. Profit after tax was £729,000.

“Profit was primarily a result from participating three private auctions,” CEO Antony Van Couvering said in a statement.

Chairman Fred Krueger added:

As we expected, private auctions have become the key method of settling contention between applications and we have benefited from this development, as it has enabled our cash to work on a leveraged basis: the domains we have lost in private auction (for example .property and .website) have helped finance new TLDs we have acquired such as .wedding and .garden.

Minds + Machines (then Top Level Domain Holdings) said last October that it had raised £2.97 million by losing the auctions for .lawyer and .website.

Excluding the auctions, it looks like the company made just £36,000 in revenue, all of which came from its registry back-end business.

How NetSol opts you in to cybersquatted .xyz names

Clear-cut cases of cybersquatting seem to be among those .xyz domain names that Network Solutions has registered to its customers without their explicit request.

Some of the domains I’ve found registered in .xyz, via NetSol to the registrants of the matching .com or .net names, include my-twitter.xyz, facebook-liker.xyz and googledia.xyz.

Domains including other brands, such as Rolex, Disney, iPhone, Amazon and Pepsi can also be found registered to third parties, via NetSol, in .xyz’s zone today.

They’re all registered via NetSol’s Whois privacy service, which lists the registrant’s “real” name in the Whois record, but substitutes mailing address, email and phone number with NetSol-operated proxies.

I think the chance of these names being paid for by the registrant is slim. It seems probable that many (if not all) of the squatty-looking names were registered via NetSol’s promotional program for .xyz.

As previously reported, NetSol has been giving away domain names in .xyz to owners of the matching .com names. Tens of thousands of .xyz names seem to have been registered this way in the last week.

The “registrants” did not have to explicitly accept the offer. Instead, NetSol gave them the option to “opt-out” of having the name registered on their behalf and placed into their accounts.

The effect of this has been to propel .xyz into the leading spot in the new gTLD league table. It had 82,236 names in today’s zone file. a clear 15,000 names ahead of second-place .club.

But it’s not clear how much, if any, support NetSol has received from the registry, XYZ.com. CEO Daniel Negari told Rick Schwartz, in a coy interview last week:

The Registry Operator is unable to “give away” free domain names. I never even saw the email that the registrar sent to its customers until I discovered it on the blogs.

The opt-out giveaway has also prompted speculation about NetSol’s right to register domains without the explicit consent of the registrant, both under the law and under ICANN contract.

Under the Registrar Accreditation Agreement, in order to register a domain name, registrars “shall require” the registrant “to enter into an electronic or paper registration agreement”.

That agreement requires the registrant to agree to, among many other things, the transfer or suspension of their domains if (for example) they lose a UDRP or URS case.

But that doesn’t seem to be happening with the opt-out names,

Barry Shein, president of The World, had shein.xyz registered on his behalf by NetSol on Saturday. He already owns shein.com, also registered with NetSol.

NetSol’s email informing him of the registration, which Shein forwarded to DI, reads as follows:

Dear Valued Network Solutions Customer,

Congratulations, your complimentary SHEIN.XYZ domain has arrived!

Your new .XYZ domain is now available in your Network Solutions account and ready to use. To go along with your new .XYZ domain, you have also received complimentary access to Professional Email and Private Registration for your .XYZ domain.

If you choose not to use this domain no action is needed and you will not be charged any fees in the future. Should you decide to keep the domain after your complementary first year, simply renew it like any other domain in your account.

We appreciate your business and look forward to serving you again.

Sincerely,

Network Solutions Customer Support
www.networksolutions.com

http://www.networksolutions.com/help/index.jsp

Importantly, a footnote goes on to describe how NetSol will take a refusal to opt out as “continued acceptance” of its registration agreement:

Please note that your use of this .XYZ domain name and/or your refusal to decline the domain shall indicate acceptance of the domain into your account, your continued acceptance of our Service Agreement located online at http://www.networksolutions.com/legal/static-service-agreement.jsp, and its application to the domain.

So, if you’re a NetSol customer who was picked to receive a free .xyz name but for whatever reason you don’t read every marketing email your registrar sends you (who does?) you’ve agreed to the registration agreement without your knowledge or explicit consent, at least according to NetSol.

I am not a lawyer, but I’ve studied enough law to know that this is a dubious way to make a contract. Lawyers I’ve shown this disclaimer to have laughed out loud.

Of course, because each registrant already owns a matching .com, they’ve already accepted NetSol’s registration agreement and terms of service at least once before.

This may allow NetSol to argue that the initial acceptance of the contract also applies to the new .xyz domains.

But there are differences between .com and .xyz.

Chiefly, as a new gTLD, .xyz registrants are subject to policies that do not apply to .com, such as the Uniform Rapid Suspension policy.

URS differs from UDRP in that there’s a “loser pays” model that applies to complaints involving over 15 domains.

So these .xyz registrants have been opted into a policy that could leave them out of pocket, without their explicit consent.

Of course, we’re talking about people who seem to be infringing famous trademarks in their existing .com names, so who gives a damn, right?

But it does raise some interesting questions.

Who’s the registrant here? Is it the person who owns the .com, or is it NetSol? NetSol is the proxy service, but the .com registrant’s name is listed in the Whois.

Who’s liable for cybersquatting here? Who would Twitter file a UDRP or URS against over my-twitter.xyz? Who would it sue, if it decided to opt for the courts instead?

.xyz is now the biggest new gTLD (kinda)

The controversial new gTLD .xyz is now officially the biggest, with 67,504 domains under management.

That’s according to today’s zone files, which see former number ones .club at 65,630 and .guru at 60,480.

Due to what appears to be an ICANN screw-up, there were no zone files available for any new gTLDs via the Centralized Zone Data Service yesterday, so I can’t tell you what the daily growth numbers are.

But .xyz had 36,335 names in its zone on Wednesday. It’s grown by 85% in two days.

That’s a shocking, unprecedented growth spurt.

The question is, of course, how many of these registrations are legit?

.xyz has come under a great deal of fire from domainers the last few days, after it emerged that the majority of its growth in the first days of general availability was questionable.

Network Solutions, it transpired, had seriously inflated .xyz’s numbers by registering .xyz names matching existing .coms on behalf of its customers without their permission and for no charge.

NetSol seems to have paid .xyz a few hundred thousand dollars for domain names its customers have not requested.

Data from today’s .xyz zone file is likely to reinforce the perception that most of .xyz’s apparent popularity is bogus.

I see that 56,019 domain names in .xyz today — 82% of the gTLD’s total — are using register.com name servers.

Those name servers belong to Web.com, NetSol’s parent company.

There were 27,000 such names on Wednesday. While .xyz as a whole has grown by about 31,000 names in two days, NetSol’s .xyz share has grown by about 29,000 names.

Nobody believes that NetSol, with its $40 retail price for .xyz (with a wholesale price I peg at around $6 to $7), could have obtained this market share with actual, paid-for sales.

I believe that the large majority of NetSol’s roughly 56,000 .xyz names are freebies, not reflective of buyer demand.

Many domainers are incandescent about this.

They look to registration numbers as a measurement of demand, which could be a predictor of the resale market for a TLD, so they’re upset at anything that looks like a manipulation of that number.

Daniel Negari, the charismatic CEO of .xyz, has borne the brunt of this criticism, despite the fact that there’s no evidence out there yet that .xyz supported or had prior knowledge NetSol’s mass giveaway.

Negari has so far refused to comment on the situation (he hasn’t responded to several inquiries from yours truly), which has only served to reinforce the suspicion that the registry was somehow complicit in NetSol’s promotion and used the registrar to artificially inflate its numbers.

I have no evidence one way or the other.

NetSol refused to even confirm the existence of the promotion when DI inquired earlier this week.