Two new gTLD applicants would get the opportunity to formally appeal String Confusion Objection decisions that went against them, under plans laid out by ICANN today.
DERCars and United TLD (Rightside), which lost SCOs for their .cars and .cam applications respectively, would be the only parties able to appeal “inconsistent” objection rulings.
DERCars was told that its .cars was too similar to Google’s .car, forcing the two bids into a contention set. But Google lost similar SCO cases against two other .cars applicants.
Likewise, Rightside’s .cam application was killed off by a Verisign SCO that stated .cam and .com were too similar, despite two other .cam applicants prevailing in virtually identical cases.
Now ICANN plans to give both losing applicants the right to appeal these decisions to a three-person panel of “Last Resort” operated by the International Centre for Dispute Resolution.
ICDR was the body overseeing the original SCO process too.
Notably, ICANN’s new plan would not give Verisign and Google the right to appeal the two .cars/.cam cases they lost.
Only the applicant for the application that was objected to in the underlying SCO and lost (“Losing Applicant”) would have the option of whether to have the Expert Determination from that SCO reviewed.
There seems to be a presumption by ICANN already that what you might call the “minority” decision — ie, the one decision that disagreed with the other two — was the inconsistent one.
I wonder if that’s fair on Verisign.
Verisign lost two .cam SCO cases but won one, and only the one it won is open for appeal. But the two cases it lost were both decided by the same ICDR panelist, Murray Lorne Smith, on the same grounds. The decisions on .cam were really more 50-50 than they look.
According to the ICANN plan, there are two ways an appeal could go: the panel could decide that the original ruling should be reversed, or not. The standard of the review is:
Could the Expert Panel have reasonably come to the decision reached on the underlying SCO through an appropriate application of the standard of review as set forth in the Applicant Guidebook and procedural rules?
The appeals panelists would basically be asked to decide whether the original panelists are competent or not.
If the rulings were not reversed, the inconsistency would remain in place, making the contention sets for .car, .cars and .cam stay rather confusing.
ICANN said it would pay the appeals panel’s costs.
The European Union has made ICANN’s close relationship with the US one of the targets of a new platform on internet governance.
In a new communication on internet governance (pdf), the European Commission said it will “work with all stakeholders” to:
- identify how to globalise the IANA functions, whilst safeguarding the continued stability and security of the domain-name system;
– establish a clear timeline for the globalisation of ICANN, including its Affirmation of Commitments.
The policy is being characterized as being prompted by former NSA contractor Edward Snowden’s revelations about widespread US spying on internet users.
EC vice president Neelie Kroes issued a press release announcing the policy, saying:
Recent revelations of large-scale surveillance have called into question the stewardship of the US when it comes to Internet Governance. So given the US-centric model of Internet Governance currently in place, it is necessary to broker a smooth transition to a more global model while at the same time protecting the underlying values of open multi-stakeholder governance of the Internet.
Despite this, the document does not contain any allegations that link ICANN to spying, or indeed any justification for the logical leap from Snowden to domain names.
The EU position is not dissimilar to ICANN’s own. Last October CEO Fadi Chehade used Snowden as an excuse to talk about putting ICANN’s relationship with the US back in the spotlight.
As I noted at the time, it all looks very opportunistic.
Internationalizing ICANN is of course a noble objective — and one that has been envisaged since ICANN’s very creation 15 years ago — but what would it look like it practice?
I’d be very surprised if what the Commission has in mind isn’t a scenario in which the Commission always gets what it wants, even if other stakeholders disagree with it.
Right now, the Commission is demanding that ICANN rejects applications for .wine and .vin new gTLDs unless applicants agree to new rights protection mechanisms for geographic indicators such as “Champagne”.
That’s something that ICANN’s Governmental Advisory Committee could not reach consensus on, yet the EU wants ICANN to act based on its unilateral (insofar as the EU could be seen as a single entity) advice.
The new EC policy document makes lots of noise about its support for the “multi-stakeholder process”, but with hints that it might not be the “multi-equal-stakeholder process” championed by Chehade.
For example, it states on the one hand:
Those responsible for an inclusive process must make a reasonable effort to reach out to all parties impacted by a given topic, and offer fair and affordable opportunities to participate and contribute to all key stages of decision making, while avoiding capture of the process by any dominant stakeholder or vested interests.
That sounds fair enough, but the document immediately goes on to state:
the fact that a process is claimed to be multistakeholder does not per se guarantee outcomes that are widely seen to be legitimate
it should be recognised that different stages of decision making processes each have their own requirements and may involve different sets of stakeholders.
Sound multistakeholder processes remain essential for the future governance of the Internet. At the same time, they should not affect the ability of public authorities, deriving their powers and legitimacy from democratic processes, to fulfil their public policy responsibilities where those are compatible with universal human rights. This includes their right to intervene with regulation where required.
With that in mind, what would an “internationalized” IANA look like, if the European Commission gets its way?
Right now, IANA may be contractually tethered to the US Department of Commerce, but in practice Commerce has never refused to delegate a TLD (even when Kroes asked it to delay .xxx).
Compare that to Kroes statement last September that “under no circumstance can we agree having .wine and .vin on the internet, without sufficient safeguards”.
Today’s policy news from the EC looks fine at a high level, but in light of what the EC actually seems to want to achieve in practical terms, it looks more like an attempt at a power grab.
New gTLDs get delegated on average 70 days after they sign their ICANN Registry Agreement, but the duration of the wait varies quite a lot by registry, according to DI research.
For the 145 delegated new gTLDs I looked at, the delegation has come 39 to 151 days after contract signing.
After signing an RA, registries have to enter into Pre-Delegation Testing before their strings are handed off to IANA, Verisign and the US Department of Commerce for delegation.
The Applicant Guidebook states that this transition to delegation phase is expected to take approximately two months. On average, ICANN seems to be only slightly missing that target.
The differing wait times could be attributed to any number of reasons. Difficulties during PDT, registry choice, geography and holidays could all see some take longer than others.
Donuts, which is responsible for almost two thirds of the gTLDs I looked at, seems to have refined the process to an art, getting its gTLDs delegated on average 62 days after contract signing.
There are currently 125 gTLDs that have contracts but have not yet been delegated, according to our records.
Here’s the table of delegation wait times, for those interested.
|xn--3bst00m||Eagle Horizon Limited||2013-09-13||2014-01-03||112|
|xn--ngbc5azd||International Domain Registry||2013-07-13||2013-10-23||102|
Who said shorter domains are more popular?
Donuts’ new .photography and .camera gTLDs, which both come out of their Early Access Period premium pricing phases this week, have seen .photography get more than twice as many registrations so far.
During their EAP and sunrise periods, where retail prices can range from $150 to $13,000, .camera has racked up 146 names to .photography’s 383.
There’s a difference of meaning here of course, which is reflected in the types of domains being registered; .camera names tend to be hardware-related, while .photography is heavy with personal names.
Donuts’ strategy of picking strings that already feature heavily at the end of the second level of .com seems to be reflecting the reality of registration patterns in new gTLDs too.
The photography-related gTLD space is going to an interesting one to watch.
We’re also waiting for the launch of .photo and .photos (.photos in two weeks, .photo in April), which will crowd the space further. These two are also likely to be the first plural/singular competitors.
ICANN seems to be considering an appeals process for new gTLD applicants that feel they’ve been wronged by dubious String Confusion Objection decisions.
But the process might be limited to applicants for .car, .cars and .cam.
In a resolution this Wednesday, ICANN’s New gTLD Program Committee said:
the NGPC is considering potential paths forward to address the perceived inconsistent Expert Determinations from the New gTLD Program String Confusion Objections process, including implementing a review mechanism. The review will be limited to the String Confusion Objection Expert Determinations for .CAR/.CARS and .CAM/.COM.
Why only those strings? I’m guessing it’s because the conflicting decisions would make for extremely confusing contention sets.
There were three SCOs against .cars applications, filed by Google, which has applied for .car. Google won one case but lost the other two.
That would mean that Google’s .car application would be in contention with one of the applicants but not the other two, hardly a fair outcome.
Similarly, Verisign objected to five .cam applications due to their similarity to .com. It won one and lost the other four.
The NGPC resolution calls for the publication, for comment, of a reviews process designed to untangle this mess. It does not appear to have been published yet.
But it seems that whatever ICANN has come up with will not apply to other applicants who feel they’ve been wronged by odd SCO, or other objection, decisions.