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Advertisers threaten to sue over new gTLDs

Kevin Murphy, August 4, 2011, Domain Policy

The Association of National Advertisers is threatening legal action unless ICANN “abandons” its recently approved new generic top-level domains program.

Its CEO, Robert Liodice, has written to his ICANN counterpart Rod Beckstrom outlining its litany of concerns about new gTLDs.

ANA’s strongly worded arguments will be familiar territory for anyone who has been following development of the program for the last few years.

It’s worried about cybersquatting, typosquatting, phishing, as well as the cost of defensive registrations and post-launch trademark enforcement.

The organization represents 400 companies that collectively spend $250 billion every year on their brands, according to the letter.

It also claims that ICANN shirked its duties by failing to adequately consider the economic impact of the program, and that it failed to develop it in a transparent, bottom-up manner.

Liodice wrote (pdf), with my emphasis:

ICANN must not ignore the legitimate concerns of brand owners and the debilitating effect on consumer protection and healthy markets its unsupervised actions will cause. Should ICANN refuse to reconsider and adopt a program that takes into account the ANA’s concerns expressed in this letter, ICANN and the Program present the ANA and its members no choice but to do whatever is necessary to prevent implementation of the Program and raise the issues in appropriate forums that can consider the wisdom, propriety and legality of the program.

The letter ends with a bunch of legal blah about ANA’s rights and remedies, a pretty obvious indication that it’s considering its legal position.

ICANN should “abandon” the program until ANA’s concerns have been addressed, Liodice wrote.

That’s not going to happen, of course.

There’s no way ICANN can put a halt to the program without basically admitting ANA’s analysis of it has merit.

If ANA wants to stop new gTLDs from going ahead, it’s going to need to do more than send a letter.

The letter is CC’d to the US Department of Commerce and several Congressmen, which suggests that we may see another Congressional hearing into the program before too long.

But will we see a lawsuit as well?

ICANN, at least, has anticipated the likelihood of having to defend itself in court for some time.

About 30% of the the $185,000 application fee – $30 million in a 500-application round – is allocated to various “risks”, of which a legal defense fund is one component.

I’d be surprised if ICANN’s legal team hasn’t war-gamed potential claims and defenses every time the Applicant Guidebook has been updated.

The next five months are going to be very interesting times.

Tucows expands into 200 TLDs with $2.5m deal

Kevin Murphy, August 2, 2011, Domain Registrars

Tucows has acquired EPAG Domainservices, a Bonn, Germany-based domain name registrar, for $2.5 million.

The deal is notable for the size of EPAG’s top-level domain catalog – it offers registrations in 200 TLDs compared to Tucows’ current 33.

Tucows hopes to offer all 200 to its 12,000-strong reseller channel before the end of the year, according to a press release.

CEO Elliot Noss said: “We expect that the deep expertise in registry integration we gain from EPAG will add invaluable bench-strength to our team as we prepare for ICANN’s roll-out of new TLDs.”

EPAG was previously owned by QSC, one of Germany’s largest ISPs.

The registrar has a portfolio of 400,000 customer domains under management, which Tucows is getting its hands on for an average of $6.25 per domain.

Tucows’ OpenSRS channel currently accounts for about 11 million domains, making it the third-largest registrar after Go Daddy and eNom.

More than half of EPAG’s registrations appear to be in ccTLDs. Webhosting.info puts its share of the ICANN gTLD market at 160,623 domains.

Final gTLD Applicant Guidebook expected this week

Kevin Murphy, July 25, 2011, Domain Policy

It’s been over a month since ICANN approved its new top-level domains program, but we still don’t have a final-final version of the Applicant Guidebook.

The resolution approving the program ICANN passed in Singapore called for a number of amendments to be made to the 352-page tome.

The current draft was published May 30, and so far ICANN has not said when the next version – likely to be the version used in the first round of applications – will be released.

I inquired, and now word has come from on high that ICANN’s new gTLD team hopes to have the English version of the new Guidebook published by the end of July – this coming weekend.

The Singapore resolution called for changes to the government Early Warning and Advice processes, added protection for Olympic and Red Cross trademarks, and a modification of the Uniform Rapid Suspension cybersquatting policy.

One has to wonder if the changes outlined in the resolution are the only changes that we’ll see – a month seems like a long time to make just a few fairly minor edits.

The resolution said the board “authorizes staff to make further updates and changes to the Applicant Guidebook as necessary and appropriate”.

The first round of new gTLD applications is set to open January 12.

ICANN fights government gTLD power grab

Kevin Murphy, July 22, 2011, Domain Policy

ICANN has opposed a US move to grant governments veto power over controversial new top-level domain applications.

Cutting to the very heart of Obama administration internet governance policy, ICANN has told the National Telecommunications and Information Administration that its recent proposals would “undermine the very principle of the multi-stakeholder model”.

The stern words came in ICANN’s response to the NTIA’s publication of revisions to the IANA contract, the contract that allows ICANN to retain its powers over the domain name system root.

The NTIA’s Further Notice Of Inquiry contained proposed amendments to the contract, including this:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was widely interpreted as a US attempt to avoid a repeat of the .xxx scandal, when ICANN approved the porn gTLD despite the unease voiced by its Governmental Advisory Committee.

As I noted in June, it sounds a lot like code for “if the GAC objects, you must reject”, which runs the risk of granting veto powers to the GAC’s already opaque consensus-making process.

In his response to the FNOI (pdf), ICANN chief Rod Beckstrom says that the NTIA’s proposal would “replace” the “intensive multi-stakeholder deliberation” that created the newly approved Applicant Guidebook.

He also pointed out the logical inconsistency of asking IANA to remain policy-neutral in one part of the proposed contract, and asking it to make serious policy decisions in another:

The IANA functions contract should not be used to rewrite the policy and implementation process adopted through the bottom-up decision-making process. Not only would this undermine the very principle of the multi-stakeholder model, it would be inconsistent with the objective of more clearly distinguishing policy development from operational implementation by the IANA functions operator.

NTIA head Larry Strickling has been pounding the “multistakeholderism” drum loudly of late, most recently in a speech in Washington and in an interview with Kieren McCarthy of .nxt.

In the .nxt interview, Strickling was quite clear that he believes ICANN should give extra authority to governments when it comes to approving controversial strings.

The NTIA concern – shared by other government entities including the European Commission – is that controversial strings could lead to national blocking and potentially internet fragmentation.

While Strickling declined to comment on the specific provisions of the IANA contract, he did tell .nxt:

If the GAC as a consensus view can’t support a string then my view is that the ICANN Board should not approve the string as to do so in effect legitimizes or sanctions that governments should be blocking at the root zone level. And I think that is bad for the Internet.

Where you’re dealing with sensitive strings, where you’ve engaged the sovereignty of nations, I think it is appropriate to tip the hat a little bit more to governments and listen to what they say. On technical issues it wouldn’t be appropriate but on this particular one, you’ve got to listen a little bit more to governments.

He also indicated that the US would not necessarily stand up for its principles if confronted by substantial objections to a string from other governments:

So we would be influenced – I can’t say it would be dispositive – if a large number of countries have a problem with a particular string, even if it was one that might not be objectionable to the United States government.

And that is out of interest of protecting the Internet’s root from widespread blocking at the top-level by lots of governments.

Does this mean that the US could agree to a consensus GAC objection to a .gay gTLD? A .porn? A .freespeech? It certainly sounds like it.

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.