Sorry, you still can’t sue ICANN, two-faced .africa bidder told

Failed .africa gTLD applicant DotConnectAfrica appears to have lost its lawsuit against ICANN.
A California judge has said he will throw out the portions of DCA’s suit that had not already been thrown out two years ago, on the grounds that DCA was talking out of both sides of its mouth.
DCA applied for .africa in 2012 but lost out to rival applicant ZA Central Registry because ZACR had the backing of African governments and DCA did not.
It filed an Independent Review Process complaint against ICANN in 2013 and won in 2015, with the IRP panel finding that ICANN broke its own bylaws by paying undue deference to Governmental Advisory Committee advice.
It also emerged that ICANN had ghost-written letter of government support on behalf of the African Union, which looked very dodgy.
DCA then sued ICANN in 2016 on 11 counts ranging from fraud to breach of contract to negligence.
The Los Angeles Superior Court decided in 2017 that five of those charges were covered by the “covenant not to sue”, a broad waiver that all new gTLD applicants had to sign up to.
But the remaining six, relating to ICANN’s alleged fraud, were allowed to go ahead.
ICANN relied in its defense on a principle called “judicial estoppel”, where a judge is allowed to throw out a plaintiff’s arguments if it can be shown that it had previously relied on diametrically opposed arguments to win an earlier case.
The judge has now found that estoppel applies here, because DCA fought and won the IRP in part by repeatedly claiming that it was not allowed to sue in a proper court.
It had made this argument on at least seven occasions during the IRP, Judge Robert Broadbelt found. He wrote in his August 22 ruling (pdf):

DCA’s successfully taking the first position in the IRP proceeding and gaining significant advantages in that proceeding as a result thereof, and then taking the second position that its totally inconsistent in this lawsuit, presents egregious circumstances that would result in a miscarriage of justice if the court does not apply the doctrine of judicial estoppel to bar DCA from taking the second position in this lawsuit. The court therefore exercises its discretion to find in favor of ICANN, and against DCA, on ICANN’s affirmative defense of judicial estoppel and to bar DCA from bringing or maintaining its claims against ICANN alleged in the [First Amended Complaint] in this lawsuit.

In other words, ICANN’s won.
The case is not yet over, however. DCA still has an opportunity to object to the ruling, and there’s a hearing scheduled for December.

Why you should never let a pizza joint apply for your billion-dollar dot-brand

A multi-billion dollar telecoms company has lost its two dot-brand gTLDs after apparently hiring a failed pizza restaurant to manage them.
For reals.
Several times a year, my friends at other domain news blogs will post cautionary tales about companies losing their domains after falling out with the consultant or developer who originally registered the names on their behalf.
I believe this story is the first example of the same thing happening at the top level, with two valuable dot-brand gTLDs.
It concerns the Saudi Arabian telco Etihad Etisalat, which does business as Mobily. It’s publicly traded, with millions of subscribers and 2018 revenue of the equivalent of $3.14 billion.
The two gTLDs we’re concerned with are .mobily and موبايلي. (.xn--mgbb9fbpob), the Arabic version of the brand.
Back in 2012, a Bahrain company called GreenTech Consultancy Company applied for both of these TLDs. The applications made it explicit that they were to be single-registrant dot-brands to be used by Mobily.
Quite what the relationship between Mobily and GreenTech was — if there even was one — isn’t particularly clear.
GreenTech’s shareholders were Anwar Ahmed and Asma Malik, two Pakistani nationals living in Bahrain, according to Bahrain business records.
Its web site is an laughable mess of broken English, shameful grammar, irrelevant and impenetrable technobabble (much of which appears verbatim on several other South Asian tech companies’ web sites), and a suggestion that the company is primarily in the business of selling satellite modems.
The site just stinks of bogosity. It looks like a dirt-cheap developer threw the site together during his lunch break for beer money.
Bahrain company records show that GreenTech shared a registration with a company called Greentech Pizzeria Restaurant. Same two directors, same address, same company number.
The consultancy company was formed in February 2012 — during the ICANN application window — and the pizza joint opened a bit over a year later.
Why a multi-billion dollar telecommunications company would entrust its brands to these guys, if that is in fact what happened, is a bit of a mystery.
From information that has recently emerged, which I’ll get to shortly, it appears that the true applicant was a Los Angeles-based gTLD consultancy called WiseDots, which in 2011 was co-founded by recently departed ICANN CFO Kevin Wilson and Herman Collins.
WiseDots employees Collins, Wael Nasr and Alan Bair were all at some point listed as primary or secondary contacts for the two applications, as was domain lawyer Mike Rodenbaugh of Rodenbaugh Law.
Wilson left WiseDots in May 2012 and rejoined three years later as CEO after a stint at Donuts. He’s currently listed as the Admin contact for both Mobily gTLDs in the IANA records.
It appears that Mobily signed a letter of intent with WiseDots on April 9, 2012, just three days before the ICANN application window closed, and that was later formalized into a contract in 2014, six months before GreenTech signed its contracts with ICANN.
Both applications made it through ICANN’s evaluation process with apparently no trouble — there were no objections on trademark or any other grounds — and the Registry Agreements were signed in December 2014.
It’s worth noting that neither contract contains Specification 13, which is required for a registry to operate as a dot-brand. If you want to run a dot-brand, you have to show ICANN that you own a trademark matching the string you’ve applied for.
GreenTech did actually submit requests for Spec 13 approval (pdf) — a week after the contracts were already signed — but at a later date both were either withdrawn or rejected by ICANN for reasons unknown.
Both requests include what appear to be scans of Saudi trademark certificates, but they’re both in Arabic and I’ve no idea who they’re assigned to. Presumably, Mobily, which may explain why GreenTech couldn’t get its Spec 13.
After the contracts were signed, it took exactly one full year — the maximum delay permitted by ICANN — before they were delegated and entered the DNS root.
A year after that, in December 2016, ICANN whacked GreenTech with a breach-of-contract notice (pdf), after the company apparently failed to pay its ICANN fees.
The fees had been “past due” for at least six months. It seems quite possible GreenTech had never paid its fees after delegation.
The breach was later escalated to termination, and the two parties entered mediation.
According to Nasr, in a letter to ICANN, Mobily had promised to pay the ICANN fees, but had reneged on its promise, causing the breach.
The issue was resolved, with GreenTech apparently agreeing to some “confidential” terms with ICANN, in November 2017.
It has now transpired, from Nasr’s letter and attached confidential joint-venture agreement, that GreenTech, WiseDots, Collins, Ahmad, Nasr and yet another consultant — an Egyptian named Ahmed El Oteify, apparently with Varkon Group — made a pact in August 2016 whereby the two gTLDs would be transferred into the control of a new jointly owned Bahrain company to be called MobileDots WLL, which in turn would be owned by a new jointly owned Delaware company called MobileDots LLC.
The TLD contracts would then be transferred to Mobily, according to Nasr.
“GreenTech and the two Mobiledots companies were intended to be intermediate conduits for the future transfer of the two Mobily licenses to Mobily as their eventual Registered Operator,” he wrote.
“At no point in time was GreenTech ever contemplated as the true operator of the ‘Mobily’ gTLD licenses. Indeed, GreenTech ran a defunct pizza restaurant, and was long ago de-registered by the Bahraini government for its numerous payments and filing defaults,” he wrote.
The Delaware company was created, but there does not appear to be an official record of the Bahrain company being formed.
According to Nasr, after Mobily stopped paying its ICANN dues the joint venture partners fell out with each other over how to finance the registries. This led to GreenTech asking ICANN to terminate its contracts, which I blogged about in May.
As is customary when a brand registry self-terminates, ICANN made a preliminary decision not to transfer the GreenTech contracts to a third party and opened it up to public comments.
Nasr’s letter is the first example of anyone ever actually using that public comment opportunity.
He argued that because of the JV agreement, ICANN should instead transfer .mobily and the Arabic version to MobileDots.
ICANN declined, saying “it is not within the remit of ICANN org to transfer the TLDs to a specific successor Registry Operator (such as Mobiledots L.L.C., as Mr. Nasr requests) through this termination process”.
As a further twist in the tale, on August 23 this year, just four days before the contract terminations were due to become effective, GreenTech withdrew its requests for reasons unknown.
But it seems ICANN has had enough.
Last Thursday, it told GreenTech (Wilson and Ahmed) that it is terminating its registry contracts anyway, “invoking certain provisions set forth in the previously agreed-upon confidential terms between ICANN org and GreenTech”.
Its termination notices do not reveal what these “confidential terms” are.
But, given that GreenTech stopped existing as a legal entity in February (according to Bahrain company records) it appears it would have been on fairly solid grounds to terminate anyway.
ICANN’s decision is not open for comment this time around, and IANA has been asked to delete both TLDs from the root as soon as possible.
The upshot of all this is that a massive Saudi telco has lost both of the dot-brands it may or may not have wanted, and a whole mess of gTLD consultants appear to be out of pocket.
And the moral of this story?
Damned if I know. Something to do with pizzas, probably.

More than 1,000 new gTLDs a year? Sure!

There’s no particular reason ICANN shouldn’t be able to add more than 1,000 new gTLDs to the DNS every year, according to security experts.
The Security and Stability Advisory Committee has informed ICANN (pdf) that the cap, which was in place for the 2012 application round, “has no relevance for the security of the root zone”.
Back then, ICANN had picked the 1,000-a-year upper limit for delegations more or less out of thin air, as a straw man for SSAC, the root server operators, and those who were opposed to new gTLDs in general to shake their sticks at. It was concluded that 1,000 should present no issues.
As it turned out, it took two and a half years for ICANN to add the first 1,000 new gTLDs, largely due to the manual elements of the application process.
SSAC is now reiterating its previous advice that monitoring the rate of change at the root is more important than how many TLDs are added, and that there needs to be a way to slam the brakes on delegations if things go titsup.
The committee is also far more concerned that some of the 2012 new gTLDs are being quite badly abused by spammers and the like, and that ICANN is not doing enough to address this problem.

.blog registry handover did NOT go smoothly

The transition of .blog between registry back-end providers ended up taking six times longer than originally planned, due to “a series of unforeseen issues”.
Registry Knock Knock Whois There today told registrars that the move from Nominet to CentralNic took 18 hours to complete, far longer than the two to three hours anticipated.
An “unexpected database error” was blamed at one point for the delay, but KKWT said it is still conducting a post-mortem to figure out exactly what went wrong.
During the downtime, .blog registrations, renewals, transfers and general domain management at the registry level would not have been possible.
DNS resolution was not affected, so registrants of .blog domains would have been able to use their web sites and email as usual.
The migration, which covered roughly 200,000 domains, wrapped up at around 0800 UTC this morning. It seems engineers at the two back-end providers, both based in the UK, will have been working throughout the night to fix the issues.
KKWT reported the new CentralNIC EPP back-end functioning as expected but that several days of “post-migration clean-up” are to be expected.
Eighteen hours is more than the acceptable 14 hours of monthly downtime for EPP services under ICANN’s standard Registry Agreement, but below the 24 hours of weekly downtime at which emergency measures kick in.
CentralNic already handles very large TLDs, including .xyz, but I believe this is the largest incoming migration it’s handled to date.
KKWT is owned by Automattic, the same company as WordPress.com.

Donuts slashes prices on a million domains

Donuts is to overhaul the pricing on 1.1 million registry-reserved “premium” domain names, taking hundreds of thousands out of premium status altogether.
The company said today that it has decided to reduce the registration cost of 250,000 domains across its 242 new gTLDs. Discounts as deep as 90% are possible, judging by the company’s pricing page.
A further 850,000 will have their premium tag removed and return to regular pricing.
Part of the overhaul relates to the Rightside acquisition, which closed in 2017. While Rightside’s portfolio of TLDs was substantially smaller than Donuts’, it had been much more aggressive on its premium pricing.
For the domains being moved to standard pricing, Donuts will give it one last shot at squeezing a premium price out of them, however.
The company said that from September 5 to November 1 there will be a “pre-sales” event, during which registrants can pay the current premium fee for the first year on the understanding that they will renew at the standard pricing.
For example, drunk.games currently commands a roughly $130-a-year registration fee at registrars. If you buy it during the pre-sales event you’ll pay $130 for the first year but only about $20 upon renewal.
Donuts says this unusual landrush-style event is designed to make the names more attractive to investors who want to get in before prices fall.
The full effect of the price changes takes effect November 5.
It’s worth noting that standard pricing at Donuts is actually going up across most TLDs, by as much as 9%, on October 1, so you may want to check what your actual renewal fee is before buying.
A searchable database of the newly priced inventory can be found here.

CIRA replaces CORE as emergency backup registry

ICANN has switched around its line up of emergency registry providers, swapping out CORE Association for CIRA.
The organization last night announced that its three newly contracted Emergency Back-End Registry Operators are Nominet, CNNIC, and CIRA.
EBEROs are failsafe registries that will take over any gTLD that has failed or is on the verge of failing outright, putting its customers domains at risk.
The EBERO is responsible for winding down these gTLDs in an orderly fashion, giving registrants the chance to migrate to a different TLD.
So far, only .wed has entered the program, when the project with the imaginative business model of making it impractical to renew domains went out of business in 2017.
Nominet now caretakes .wed under the EBERO program.
Both Nominet (.uk) and CNNIC (.cn) have been approved EBEROs since 2013, under five-year contracts with ICANN.
CORE was also approved in 2013, but appears to have lost its contract. It’s been replaced by CIRA, the Canadian Internet Registry Association.
“We are honoured to be among this select group of trusted registry operators,” Dave Chiswell, VP of product development for CIRA, said in a statement. He said CIRA only suffered eight hours of downtime when it migrated .ca to a new back-end platform recently.
A key reason for CIRA replacing CORE is very likely geography. When ICANN put out its request for proposals last year, it made a big deal about how it wanted coverage in Europe, Asia and North America — where most gTLD registries are concentrated.
CORE is based in Switzerland. CIRA is obviously based in Canada and CNNIC is Chinese.
Another side-effect of the contract renegotiations is that ICANN is now paying 30% less for the services of the three providers, according to a recent board resolution.
The three providers are contracted for five years.
Whether, and to what extent, they’ll ever actually be triggered to provide EBERO services is open to debate.
Currently, there are six gTLDs in advanced stages of ICANN compliance proceedings, putting them at risk of having their contracts revoked: .whoswho, and five Persian-themed strings.
It’s not inconceivable than one or more of these gTLDs could wind up in EBERO, but ICANN appears to be cutting the registries a lot of slack to resolve their issues.

The Amazon is burning. Is this good news for .amazon?

With the tide of international opinion turning against Brazil due to the ongoing forest fires in the Amazon, could we see governments change their tune when it comes to Amazon’s application for .amazon?
A much higher number of forest fires than usual are currently burning in the region, largely in Brazil, which critics led by environmentalists and French president Emmanuel Macron have blamed on relaxed “slash and burn” farming policies introduced by new Brazilian president Jair Bolsonaro.
The rain forest is an important carbon sink, said to provide 20% of the world’s oxygen. The more of it is lost, the harder it is to tackle climate change, the argument goes.
It’s been an important topic at the Macro-hosted G7 summit, which ends today. Even the bloody Pope has weighed in.
Arguably, the stakes are nothing less than the survival of human civilization and life on Earth itself.
And this is a story about domain names. Sorry. This is a blog about domain names. My hands are tied.
Amazon the company has been fighting governments over its application for .amazon, along with the Chinese and Japanese translations, for over six years.
ICANN’s Governmental Advisory Committee was responsible for killing off .amazon in 2013 after it decided by consensus that Amazon’s application should not proceed.
That decision was only reached after the US, under the Obama administration, decided to abstain from discussions.
The US had been protecting Amazon by blocking GAC consensus, but changed its tune partly in order to throw a bone to world leaders, including then-president of Brazil Dilma Rousseff, who were outraged by CIA analyst Edward Snowden’s revelations of widespread US digital espionage.
After ICANN dutifully followed the GAC advice and rejected Amazon’s gTLD applications, Amazon appealed via the Independent Review Process and, in 2017, won.
The IRP panel ruled that the GAC’s objection had no clear grounding in public policy that could be gleaned from the record. It told ICANN to re-open the applications and evaluate them objectively.
Ever since then, the GAC’s advice to ICANN has been that it must “facilitate a mutually acceptable solution” between Amazon and the eight nations of the Amazon Cooperation Treaty Organization.
ICANN has been doing just that, or at least attempting to, for the last couple of years.
But the two parties failed to come to an agreement. ACTO wants to have essential veto power over Amazon’s use of .amazon, whereas Amazon is only prepared to offer lists of protected names, a minority position in any policy-setting body, and some sweeteners.
In May this year, ICANN’s board of directors voted to move .amazon along towards delegation, noting that there was “no public policy reason” why it should not.
In June, the government of Colombia filed a Request for Reconsideration with ICANN, demanding it reevaluate that decision.
The RfR was considered by ICANN’s Board Accountability Measures Committee at its meeting August 14, but its recommendation has not yet been published. I’m expecting it to be posted this week.
There’s still opportunity for the GAC to cause mischief, or act as a further delay on .amazon, but will it, in light of some country’s outrage over Brazil’s policy over the rain forest?
One could argue that if the nation that has the largest chunk of Amazon within its borders seems to have little regard to its international importance, why should its claim to ownership of the string “amazon” get priority over a big brand that has offered to protect culturally significant words and phrases?
Remember, as the example of the US in 2012/13 shows us, it only takes one government to block a GAC consensus. If Brazil or Peru continue to pursue their anti-Amazon path, could France throw a spanner in the works, smoothing .amazon’s road to delegation?
Anything’s possible, I suppose, but my feeling is that most governments back ACTO’s position largely because they’re worried that they could find themselves in a similar position of having to fight off an application for a “geographic” string in the next gTLD application round.

China’s MySpace trainwreck sells its gTLD

A once-hot Chinese social networking company that now sells used cars instead has offloaded its gTLD.
The registry contract for .ren, the Pinyin for the Chinese “人”, meaning “people”, has been transferred from Beijing Qianxiang Wangjing Technology Development Co to ZDNS International.
The original registry is better known by the name Renren.
At the time the new gTLD was applied for in 2012, Renren was at the peak of its powers, discussed in the same breath as Facebook.
A social networking site with close to 60 million active monthly users in China, it had recently raised $800 million by floating on the New York Stock Exchange.
But it has fallen on hard times since, and the site was sold for just $20 million in cash and $40 million of stock last November.
A number of articles around the same time chart its downfall, calling it a “trainwreck”, a “digital ghost town” and, even more embarrassingly, “China’s answer to MySpace”
You get the idea.
Renren the company is still a going concern due to its now-core business of selling used cars in China, but the NYSE threatened to delist its stock a couple of weeks ago because its share price had been below $1 for more than 30 days.
Now, it seems it’s getting rid of its gTLD too.
.ren has been bought (presumably) by ZDNS International, the Hong Kong-based arm of DNS service provider ZDNS.
It’s not a dot-brand. The space is open to all-comers and is currently priced competitively with .com.
The gTLD’s fortunes tracked the site’s declining popularity. It’s been on the slide, volume-wise, for years.
It peaked at around 320,000 zone file domains in November 2016, comparable to other TLDs popular in China, but today stands at around 17,000.
It’s the second registry contract ZDNS has taken over recently. A month ago, I reported it has taken over .fans from CentralNic.
ZDNS was already providing back-end services for .ren.

Berkens says new gTLDs mostly suck but geos suck hardest

Ever since he cashed out his massive portfolio of domain names in a bulk sale to GoDaddy three and a half years ago, domain investor Mike Berkens has been dabbling in new gTLDs, and so far he’s not impressed.
In a recent conference speech and blog post, he revealed some of his experiences parking and trying to sell his new g names, and he has come down particularly harshly on geographic TLDs.
City TLDs such as .london, .nyc and .miami are “death” to a domain investor, he said at a domainer meetup in Asheville, North Carolina last week.
His portfolio of 29 .miami names has had just 532 type-in visits in the last year, and have not received a single offer, he wrote on TheDomains.com.
On the flip-side, Berkens told his audience that domain combinations that naturally fit together, such as online.dating, atlantic.city, moving.company and bank.loans are profitable from type-in traffic and can get thousands of visitors a year.
They can be profitable even when the registry charges a premium renewal fee, he said. The domain obama.care makes him $500 a year parked and has a $150 annual renewal, he said.
But when asked directly whether he would recommend new gTLDs to domain investors, Berkens said he would not, citing among other things the added risk of unregulated price increases in the new gTLD space.
Berkens made eight figures selling his portfolio of 70,000 names to GoDaddy in 2015, but the deal apparently did not include the new gTLD names he’d picked up along the way.
You can watch his 24-minute talk here.

Neustar takes control of two new gTLDs

Neustar has started taking over former dot-brand new gTLDs belonging to its former clients.
It recently took control of .compare and .select, which previously belonged to Australian insurance company iSelect.
Neustar had been the back-end registry provider for both TLDs.
As previously blogged, iSelect abandoned its primary dot-brand, .iselect, in June.
That was despite that fact that it was actually in use, with domains such as home.iselect, news.iselect and careers.iselect all resolving to web sites.
Now, the generic dot-brands .compare and .select have been assigned to the blandly named Registry Services LLC, a new Neustar subsidiary.
They’re not the first examples of dictionary words functioning as dot-brands being repurposed as generics.
Notably, XYZ.com took over .monster from Monster.com and ShortDot bought .bond from Bond University.
Neustar has not yet announced its plans for its two new acquisitions.