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Wanted: somebody to object to new gTLDs

Kevin Murphy, November 23, 2011, Domain Policy

ICANN is looking for somebody to object to new top-level domain applications.

It’s put out a call for an Independent Objector, whose job it will be to file formal objections to new gTLDs that he or she determines may not be in the public interest.

ICANN is looking for somebody with an in-depth knowledge of the new gTLD program and extensive experience in multinational organizations.

The IO has been a planned component of the new gTLD program for a couple of years.

The role is designed to provide a way to kill off “highly objectionable” applications in cases where the affected community may lack the resources or organization to pay for an objection.

Essentially, the IO looks at public comments filed with ICANN and decides whether opposition to a gTLD is substantial enough to warrant a formal objection.

The IO may only use two of the Applicant Guidebook’s objection mechanisms – the Community Objection and the Limited Public Interest (formerly “morality and public order”) Objection and not trademark or string confusion grounds.

My view is that we’re likely to see very few “highly objectionable” applications. And now that ICANN has agreed to fund some government objections, the IO is likely to wind up being a bit of an easy ride for whoever successfully applies for the job.

Interested parties have until December 22 to apply. The job description can be found here.

GMO wins .tokyo deal

Kevin Murphy, November 21, 2011, Domain Registries

GMO Registry says it has won local government backing to apply to ICANN for the city top-level domain .tokyo.

The company revealed the news on its Twitter feed today, linking to this Tokyo metropolitan government announcement confirming the story.

While perhaps best-known for its planned .shop application, GMO is probably the registry services company with the most announced new gTLD back-end contract wins to date.

It is also on board to provide the registry for the Japanese regional gTLDs .okinawa and .ryukyu, as well as the brand gTLDs .hitachi and .canon. It already runs Somalia’s .so and Indonesia’s .id ccTLDs.

GMO Registry parent GMO Internet is a pretty big deal in its native Japan. Publicly listed on the Tokyo Stock Exchange, it has annual revenue of well over half a billion dollars.

CADNA asks for new gTLDs second round

Kevin Murphy, November 18, 2011, Domain Policy

The Coalition Against Domain Name Abuse, having spent quite a lot of time and effort opposing ICANN’s new top-level domains program, wants ICANN to name the date for a second round.

In a letter to president Rod Beckstrom today, which was inspired by discussions at the recent What’s At Stake conference, CADNA president Josh Bourne writes:

We ask that the ICANN Board request an Issues Report to formally initiate a policy development process to determine when the next round of new gTLD applications will occur, thereby affirming its commitment to opening a second round in a timely manner.

As I’ve noted previously, ICANN has not named the date for the second round so far because it’s promised the Governmental Advisory Committee that it will review the first round first.

But businesses from outside the domain name industry are feeling like they’re being pressured into making a decision whether to apply for a gTLD they don’t necessarily want, Bourne says.

By not disclosing when it will open future rounds of new gTLD applications, ICANN is creating a condition of scarcity that will inevitably result in a massive land rush, where entities will scramble to apply for new gTLDs for the sole purpose of hypothetically “future-proofing” their identities in the new domain name space, without any immediate intentions to use their new gTLDs for innovative means.

Disclosing when it will open a second application round will not only alleviate the anxiety that businesses are feeling, it will give ICANN the chance to quell the animosity that has developed toward it among the business community.

The whole letter is worth a read. No matter what you think of CADNA, it’s difficult to argue with Bourne’s points (though please do so in the comments if you disagree).

Scare sales tactics are already a key source of mainstream hatred for the domain name industry at the second level. Now would be a good time to prevent the same thing happening at the top level too.

It will look very bad for ICANN in a few years’ time if the root is cluttered with useless, unused gTLDs created just because companies felt pressured into defensive applications.

YouPorn challenges new gTLDs with review demand

Kevin Murphy, November 17, 2011, Domain Registries

YouPorn operator Manwin is demanding a review of .xxx, and ICANN’s top-level domains program by association, in a new Independent Review Panel request.

It becomes only the second company ever, after .xxx manager ICM Registry, to file an IRP request with ICANN. The filing came at the same time as Manwin sued ICANN and ICM in California.

The IRP demand ostensibly focuses on .xxx, but it also suggests that the forthcoming new gTLD program has many of the same flaws as the process that led to .xxx’s approval.

IRP is the final, and most expensive, appeals process available within ICANN for companies that believe they’ve been wronged by the organization’s decisions.

It was first used by ICM in 2008-2009 to have the rejection of its .xxx application overturned.

To win an IRP, complainants have to convince an International Centre for Dispute Resolution panel (probably three retired judges) that ICANN violated its own bylaws when it made a harmful decision.

The only reason .xxx is in the root today is that an IRP decided by majority that ICANN broke the bylaws when it approved and then rejected the .xxx bid filed in the 2004 new gTLD round.

Manwin’s IRP claims that ICANN failed to “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD”.

It also claims that ICANN failed to enforce ICM’s compliance with its registry contract, allowing it to engage in “anticompetitive conduct” and help violate IP rights.

The company is basically miffed that it felt it was being forced to spend money in ICM’s sunrise period, and that it was not allowed to block its trademarks and variations of its trademarks.

One of its oddest claims, which is in the IRP as well as the lawsuit, is that ICM was selected in a “closed process” that did not consider alternative .xxx operators.

The 2004 gTLD round was of course open to any applicant, so there was nothing stopping anybody else from applying for .xxx. One gTLD, .tel, did in fact have multiple bidders.

Essentially, the IRP demand cuts to the heart of the domain name industry and the new gTLD concept in general, challenging many practices that have become norms.

Sunrise

Sunrise is “extortion”, according to Manwin.

As well as being opposed to the idea of paying for defensive registrations in general, Manwin also thinks that typos and brand+keyword domains should be eligible for blocking, presumably for free.

It also believes that porn companies should have been able to defensively block some .xxx domains (which ICM called “Sunrise B”) and register others for active use (“Sunrise A”).

Speculation

Manwin’s IRP says that ICM did not act in the best interests of its sponsored community (ostensibly the porn industry) when it sold premium .xxx domains to “known domain name speculators”.

Well-known domainers Frank Schilling and Mike Berkens have invested millions in .xxx, but Manwin says their profit motives show ICM broke its commitment to serve the adult industry only.

Schilling, who signed up to buy domains 33 domains including amateur.xxx before ICM’s registry contract had even been approved, is reportedly already leasing out some of his .xxx names to porn companies for five figures a month.

New gTLDs

Manwin seems to support what you might call a ‘string first, registry later’ model for delegating gTLDs.

It states in its lawsuit and IRP that ICANN should have opened up .xxx for competitive bidding, apparently ignoring the fact that the .xxx string was proposed by ICM, not ICANN.

In the IRP demand, it suggests that allowing gTLD applicants to select their own strings is in violation of ICANN’s bylaws. The complaint states:

[ICANN] gave ICM a permanent monopoly over the .XXX TLD without considering other candidates for registry operator and without making provision for considering other potential registry operators at the end of the initial term of the .xxx Registry Agreement.

If Manwin wins, ICANN could be forced into a situation where it must ask for string proposals from new gTLD applicants and then open up each proposed string to competitive bidding.

That’s not necessarily a bad idea, but it’s pretty much exactly the opposite of how the ICANN-approved new gTLD program is going to work.

The IRP and the lawsuit are also notable in that they target the alleged lack of economic studies that support .xxx and new gTLDs in general.

It states that ICANN “failed to conduct proper economic studies of the impact of the introduction of new TLDs, including the .xxx TLD”.

This is a frequent criticism leveled at ICANN by opponents such as the Association of National Advertisers and the newly formed Coalition for Responsible Internet Domain Oversight.

Manwin is being represented in the suit and IRP by the law firm Mitchell Silberberg & Knupp, the employer of Steve Metalitz, a well-known figure in ICANN’s intellectual property constituency.

Screen Actors Guild opposes new gTLDs

Kevin Murphy, November 16, 2011, Domain Policy

While it does not appear to be a member of the new Coalition for Responsible Internet Domain Oversight, the Screen Actors Guild has come out in opposition to new top-level domains.

The membership organization, which represents over 200,000 Hollywood actors, has asked US Secretary of Commerce John Bryson to persuade ICANN to delay the gTLD program until it can “demonstrate convincingly” that it will be in the public interest.

SAG national executive director David White wrote:

The ICANN proposal would unduly burden a diverse range of public and private brand holders, companies with whom our members are associated. This also presents an undue burden on our organization, as a globally recognized brand. Under this rule, many brand-holders would be forced to spend ever-greater amounts of time and resources simply to protect their brands.

Like many other opponents of the program, White also raises the conflicts-of-interest question that emerged following Peter Dengate Thrush’s move from ICANN’s chair to new gTLD applicant Minds + Machines.

SAG was not listed as a member of CRIDO, the huge cross-industry lobby group that formed to oppose new gTLDs last week, although its arguments are identical.

Staff changes at new gTLD consultancies

Kevin Murphy, November 16, 2011, Domain Services

There’s movement in the new top-level domains consultancy market this week, with new hires and departures at a couple of startups.

It’s been a case of one in, one out at Sedari, the registry management services company founded by Liz Williams this summer.

The company has hired Philip Sheppard, most recently director of public affairs for AIM, the European Brands Agency, as its new policy director.

Sheppard is an ICANN veteran from the IP/business side of the house, who has chaired multiple policy committees since becoming involved in 1999.

But Sedari has also lost another industry vet, Jothan Frakes, who’s decided to go freelance.

Elsewhere, FairWinds Partners, which shares management with the Coalition Against Domain Name Abuse, has also emerged publicly as a new gTLD consultancy.

The Washington DC-based company hope to use its track record of criticizing the new gTLD program to win the support of big brands skeptical about the ICANN process.

FairWinds said this week it’s taken on former ICANN director Michael Palage of Pharos Global, who has worked for both proponents and opponents of the program, apparently on a freelance basis.

Europe dislikes US-only IANA rule

Kevin Murphy, November 14, 2011, Domain Policy

The European Commission is disappointed that only US-based companies are eligible to apply to take over ICANN’s IANA contract, but has otherwise welcomed the new deal.

As I reported Friday, the US National Telecommunications and Information Administration has put the IANA contract, which gives ICANN its powers to create new top-level domains, up for rebid.

While ICANN is generally expected to be a shoo-in for the contract, the NTIA tilted the odds in its favor by refusing to consider bids from replacement candidates from outside the US.

The EC said in a statement today:

The Commission believes greater respect should be given by the IANA contractor to respecting applicable law (such as EU personal data protection laws)… In that context, it noted with regret that non-US companies are not allowed to compete for the forthcoming IANA contract.

Otherwise, the EC said it was happy with the new provisions in the IANA contract, which promise to enforce mandatory conflict of interests protections on the winning bidder.

Neelie Kroes, European Commission Vice-President for the Digital Agenda said in a press release:

The new IANA tender is a clear step forward for global internet governance. A more transparent, independent and accountable management of the Internet domain names and other resources will reinforce the Internet’s role as a global resource.

The EC is also pleased that ICANN/IANA “will have to provide specific documentation demonstrating how the underlying decision-making process was supportive of the public interest” when new gTLDs are approved.

How this provision will be implemented, and how much power it gives ICANN’s Governmental Advisory Committee to kill new gTLD applications, is perhaps the biggest question hanging over the contract today.

The current IANA contract expires at the end of March next year, shortly before the end of ICANN’s first new gTLDs application window.

Overstock.com slows down O.co rebranding

Kevin Murphy, November 14, 2011, Domain Registries

Overstock.com is throttling its transition to the O.co brand after discovering consumers typed o.com even after watching the company’s commercials, according to a report.

The company’s $350,000 purchase of and subsequent rebranding around the o.co domain was possibly the single biggest single marketing coup for .CO Internet, the .co registry, to date.

But now it intends to keep the Overstock.com brand in the US for the time being, while using O.co overseas and on a new iPad app, according to a report in AdAge.

The O.co Coliseum, the stadium in Oakland for which Overstock bought the naming rights, will continue to bear the O.co name.

AdAge quoted Overstock president Jonathon Johnson saying that “a good portion” of people viewing its commercials tried to visit o.com, which is a non-resolving registry-reserved name, instead.

“We were going too fast and people were confused, which told us we didn’t do a good job,” he told AdAge. “We’re still focused on getting to O.co, just at a slower pace… We’re not flipping back, we’re just refocusing.”

This is obviously bad news for commercial new top-level domain applicants, many of which will be looking for all-important anchor tenants to validate their brands at launch.

Marketing people like to refer to the measurable results of others before pulling the trigger on new initiatives. The O.co case is unlikely to create enthusiasm for new TLDs.

On the other hand, it’s commonly believed that when it comes to breaking the .com mindset in the US, it will take more than a trickle of new TLDs such as .co. It will take a flood.

.CO Internet has always taken the position that .co adoption will take time, and that the ICANN new gTLD program will help its cause by raising awareness of non-.com domains.

US puts ICANN contract up for rebid

Kevin Murphy, November 11, 2011, Domain Policy

The US government has put the IANA contract, which currently gives ICANN its powers to create new top-level domains, up for competitive bidding.

The National Telecommunications and Information Administration issued a request for proposals late yesterday, almost a week later than expected.

The Statement Of Work, which defines the IANA contractor’s responsibilities, is over twice at long as the current IANA contract, containing many deliverables and deadlines.

While the contract is open to bidders other than ICANN, ICANN is obviously the likely winner, so it’s fair to read the SOW in that context.

Notably, the section dealing with approving new gTLDs has been changed since the draft language released in June.

NTIA said previously that in order to delegate a new gTLD, ICANN/IANA “shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.”

The new SOW has dropped the “consensus support” requirement and instead states:

The Contractor must provide documentation verifying that ICANN followed its policy framework including specific documentation demonstrating how the process provided the opportunity for input from relevant stakeholders and was supportive of the global public interest.

This could be read as a softening of the language. No longer will ICANN have to prove consensus – which is not a requirement of the Applicant Guidebook – in order to approve a new gTLD.

However, the fact that it will have to document how a new gTLD is “supportive of the global public interest” may give extra weight to Governmental Advisory Committee objections.

If the GAC were to issue advice stating that a new gTLD application was not in “the global public interest”, it may prove tricky for ICANN to provide documentation showing that it is.

The SOW also addresses conflicts of interest, which has become a big issue for ICANN following the departure of chairman and new gTLD proponent Peter Dengate Thrush, and his subsequent employment by new gTLD applicant Minds + Machines, this June.

The SOW says that IANA needs to have a written conflicts of interest policy, adding:

At a minimum, this policy must address what conflicts based on personal relationships or bias, financial conflicts of interest, possible direct or indirect financial gain from the Contractor’s policy decisions and employment and post-employment activities. The conflict of interest policy must include appropriate sanctions in case on non-compliance, including suspension, dismissal and other penalties.

Overall, the SOW is a substantial document, with a lot of detail.

There’s much more NTIA micromanagement than in the current IANA contract. Any hopes ICANN had that the relationship would become much more arms-length have been dashed.

The SOW includes a list of 17 deadlines for ICANN/IANA, mainly various types of compliance reports that must be filed annually. The NTIA clearly intends to keep IANA on a fairly tight leash.

You can download the RFP documents here.

Massive group forms to kill off new gTLDs

Kevin Murphy, November 10, 2011, Domain Policy

ICANN’s new nemesis is called CRIDO.

Eighty-seven companies and trade groups have formed the Coalition for Responsible Internet Domain Oversight, a lobby group set up to kill ICANN’s “deeply flawed” top-level domains program.

It’s led by the Association of National Advertisers, which emerged this August as a vocal opponent of new gTLDs and has spent the last few months recruiting allies.

Its new domain, crido.org, is registered to the ANA’s PR firm and currently redirects to the ANA’s gTLD microsite.

The new group said in a press release today:

On behalf of its many constituencies and industries, CRIDO is committed to aggressively fighting ICANN’s proposed program, citing its deeply flawed justification, excessive cost and harm to brand owners, likelihood of predatory cyber harm to consumers and failure to act in the public interest, a core requirement of its commitment to the U.S. Department of Commerce.

If the ICANN program proceeds, CRIDO firmly believes, the loss of trust in Internet transactions will be substantial. In addition, the for profit and non-profit brand community will suffer from billions of dollars in unnecessary expenditures – money that could be better invested in product improvements, capital expenditures and job creation.

CRIDO’s members comprise 47 trade associations, most but not all American, and 40 companies, many of them major household names such as Coca-Cola, Burger King and Kellogg.

Together, they have signed a petition to the Department of Commerce, ICANN’s overseer in the US government, asking it put a halt to the new gTLDs program

The questions now are whether Commerce will do anything concrete to address the demands and, if not, whether CRIDO will decide to put its lawyers where its mouth is instead.

Here’s a handy table of all CRIDO’s members.

AssociationsCompanies
AAF-AmarilloAcxiom
AAF-DallasAdobe Systems Incorporated
AAF-Fort WorthAllstate Insurance Company
AAF Hampton RoadsAmerican Express
AdClub CincinnatiBrinker International
American Advertising Federation (AAF)Burger King Corporation
American Advertising Federation of Des MoinesThe Coca-Cola Company
American Apparel & Footwear Association (AAFA)Combe Incorporated
American Association of Advertising Agencies (4As)ConAgra Foods
American Beverage Association (ABA)Costco Wholesale Corporation
American Council of Life Insurers (ACLI)Darden Restaurants, Inc.
American Health Care Association (AHCA)Dell Inc.
American Insurance Association (AIA)Dunkin Brands, Inc.
American Intellectual Property Law Association (AIPLA)Educational Testing Service (ETS)
American Society of Association Executives (ASAE)Fidelity Investments
Association of Canadian Advertisers (ACA) Ford Motor Company
Association of National Advertisers (ANA)General Electric Company
Austin Advertising FederationHack Creative
Boise Advertising FederationHewlett-Packard Company
Cable Advertising Bureau (CAB)Hunter Douglas NA
Consumer Electronics Association (CEA)J.C. Penney Company, Inc.
Direct Marketing Association (DMA)Johnson & Johnson
European Association of Communications Agencies (EACA)Kellogg Company
European Publishers Council (EPC)La Quinta
Food Marketing Institute (FMI)Liberty Mutual
Grocery Manufacturers Association (GMA)MillerCoors
Idaho Advertising FederationMoney Mailer of Amarillo
Idaho Falls Advertising FederationNationwide Mutual Insurance Company
Intellectual Property Owners Association (IPO)Neon Sun Tanning Salon
Interactive Advertising Bureau (IAB)Nestle USA
IAB EuropeORCI
Lewis-Clark Valley Advertising FederationOSI Restaurant Partners, LLC
Magic Valley Advertising FederationPapa John’s
Mobile Marketing Association (MMA)Procter & Gamble
MPA - the Association of Magazine MediaPublicis Groupe
National Association of Broadcasters (NAB)Pulte Group
National Association of Manufacturers (NAM)Samsung
National Confectioners Association (NCA)US Bank
National Council of Chain Restaurants (NCCR)Vanguard
National Restaurant Association (NRA)Verge
Pocatello Advertising Federation
Promotion Marketing Association (PMA)
Radio Advertising Bureau (RAB)
Retail Industry Leaders Association (RILA)
Television Bureau of Advertising (TVB)
U.S. Chamber of Commerce
World Federation of Advertisers (WFA)