Almost 15,000 trademarks registered in TMCH

Kevin Murphy, November 4, 2013, Domain Services

The new gTLD program’s Trademark Clearinghouse has almost 15,000 trademarks registered, according to a spokesperson.

We’re told today that there’s an average of about two labels for each registered mark, and that about half of all the marks have been registered for multiple years.

The TMCH offers registrations for one, three or five years.

Trademarks in non-Latin scripts currently account for just 3% (so roughly 450) of the registrations, which may be a cause for concern given that IDNs gTLDs will be many of the first to launch Sunrise periods.

The TMCH spokesperson added that registrations of “previously abused labels”, under what we used to call the Trademark+50 policy, are currently “low” because the service was only recently launched.

Trademark Clearinghouse: early bird pricing ends tomorrow

Kevin Murphy, November 4, 2013, Domain Services

Trademark owners take note: you have less than 24 hours to get your marks registered in the Trademark Clearinghouse if you want to take advantage of early bird discounted pricing.

A TMCH spokesperson told DI today that the early bird offer ends at 1200 UTC November 5. Its “agents” (registrars) were notified a week ago and today were given a final 24-hour grace period, she said.

This may come as something of a surprise to mark owners who haven’t been paying attention.

When the Clearinghouse went live in March, the TMCH said that the early registration offer would end when the first Sunrise period for the first new gTLD went live.

At the time, ICANN rules stated that registries would have to give 30 days notice before launching a Sunrise.

But these rules recently changed, giving registries the ability to launch immediately as long as the Sunrise runs for at least 60 days rather than the original 30.

And with dotShabaka Registry, one of the first four new gTLDs to go live, opting for the 60-day Sunrise, that means early bird pricing is ending sooner than might have been expected.

Rather than direct discounts, the early bird offer instead awards extra “status points” that can be accumulated to secure lower bulk registration prices.

Trademark owners would have to submit quite a lot of trademarks, or use an agent that is passing the discounts on to its customers, in order to qualify for the lower prices.

Is ICANN ready to start rejecting some new gTLDs?

Kevin Murphy, November 4, 2013, Domain Policy

Is ICANN getting ready to give marching orders to new gTLD applicants? It seems likely given recent hints out of LA.

Currently, of the original 1,930 new gTLD applications, 125 have been withdrawn but only two or three have been rejected.

GCC’s .gcc and DotConnectAfrica’s .africa are both “Not Approved” while Nameshop’s .idn failed to pass its applicant support program tests and seems to have been put aside for this round.

But there are at least 22 active applications that are due to be hit with the ban hammer, by my reckoning. That’s not including those that may be killed off by Governmental Advisory Committee advice.

First, there are seven bids (so far) that have failed Community Objections or Legal Rights Objections filed against them, or have lost String Confusion Objections filed by existing TLD operators.

Applications such as Ralph Lauren’s .polo, Dish DBS’ .direct and Demand Media’s .cam have fallen foul of these three objection types, respectively.

Under the Applicant Guidebook rules, these applications are not allowed to proceed.

There are also 10 active applications for .home and five for .corp, two gTLD strings ICANN has said it will not approve due to their substantially higher risk of causing name collisions.

(Personally, I think these applicants should get full refunds — ICANN screwed up by not doing its homework on name collisions before opening the application window last year).

So far, ICANN seems to have been waiting for applicants to withdraw, rather than initiating a formal rejection.

But none of them actually have withdrawn.

The International Union of Architects, which won a Community Objection against Donuts over .architect in September, has noticed this too, and recently wrote to ICANN to find out what was going on.

Responding October 31, Generic Domains Division president Akram Atallah wrote (with my emphasis):

as a result of the objection determination, we have updated the status of the objection on the .ARCHITECT application to “Objector Prevailed” on the Objection Determinations page (http://newgtlds.icann.org/en/program-­‐status/odr/determination) of the New gTLD microsite. Additionally, we will be updating the overall status of this application on the New gTLD microsite (https://gtldresult.icann.org/application-­‐result/applicationstatus) pursuant to Section 1.1.2.9 of the Applicant Guidebook in the near future.

This suggests either a “Not Approved” status for .architect, or a new status we haven’t seen before, such as “Lost Objection”.

So could, for example, Demand Media’s .cam application be rejected? Demand lost a SCO filed by Verisign, but its two competitors for the string prevailed in virtually identical cases.

Would it be fair to reject one but not the others, without any kind of ICANN review or oversight?

Last week at the newdomains.org conference in Munich, I asked Atallah a question during a panel discussion about consistency in the new gTLD program, with reference to objections.

I was on stage and not taking notes, but my recollection is that he offered a not at all reluctant defense of subjectivity in panelists’ decision-making.

It was certainly my impression that ICANN is less troubled by inconsistent rulings than the applicants are.

In the .architect case, Atallah told the UIA that ICANN intends to implement objection rulings, writing:

ICANN will, of course, honor all panel decisions regarding objection determinations, unless directed to do otherwise by some action, for example, by virtue of Reconsideration Requests or other accountability mechanisms or action of the ICANN Board of Directors. To our knowledge, Spring Frostbite [Donuts] has not filed a Reconsideration Request or invoked an Independent Review Process with respect to this objection determination regarding the .ARCHITECT string.

Contention questions remain as ICANN reveals “last-resort” auction rules

Kevin Murphy, November 2, 2013, Domain Policy

ICANN has published a first draft of the rules for its “last resort” new gTLD auctions, but they do not yet address the contention created by controversial objection rulings.

The organization has hired Power Auctions to write the rules and manage the auctions.

They’ve agreed upon an “ascending clock” style, where the auctioneer sets upper and lower limits for each round of bidding. Applicants must bid within that range or withdraw — they cannot skip rounds.

A bid at the top of the round’s range is a “continue bid” that sees the applicant through to the next round. Lower, and it’s an “exit bid” that will count as a withdrawal if anyone else submits a higher bid.

When all but one applicants have withdrawn, the remaining applicant gets the gTLD, paying ICANN an amount equal to the highest exit bid submitted by a competitor in that round.

Unlike the private auctions that have been taking place for the last few months, losing applicants walk away empty-handed apart from a small application fee refund from ICANN.

Applicants’ bidding limits will be determined by their deposits. If your deposit is under $2 million, your bid ceiling is 10x your deposit, but if you put down $2 million deposit or more, there would be no upper limit.

It all seems fairly straightforward for direct, single-string contention sets.

Where it starts to get fuzzy is when you start thinking about “indirect” contention and multiple, connected auctions running simultaneously.

It’s a little tricky to explain indirect contention without diagrams, but let’s try an example, using .shop, instead.

There are nine applicants for .shop. These are all in direct contention with each other.

But one .shop applicant, Commercial Connect, won objections against applicants for “similar” strings — Amazon’s .通販 and Donuts’ .shopping.

Assuming ICANN upholds these objection findings, which seems increasingly likely given recent statements from generic domains president Akram Atallah, both .shopping and .通販 will be in direct contention with Commercial Connect’s .shop and in indirect contention with all the other .shop applications.

Complicating matters, while Amazon’s .通販 is uncontested, Donuts’ .shopping is also in direct contention with Uniregistry, which applied for the same string but did not lose an objection.

It will be quite possible for .shop, .shopping and .通販 to all be delegated, but only if Commercial Connect loses the auction for .shop or otherwise withdraws from the race.

The auction materials published by ICANN today are a bit fuzzy on what happens when indirect contention is in play. On the one hand it suggests that multiple applications can win an auction:

When a sufficient number of applications have exited the auction process, so that the remaining application(s) are no longer in contention with one another, and all the relevant string(s) can be delegated as gTLDs, the auction will be deemed concluded.

But the rules also say:

the rules set forth within this document will assume that there is direct contention only, a condition that holds for the substantial majority of Auctions. In the event that an Auction will include a Contention Set that does not satisfy this condition, ICANN or the Auction Manager may issue an Addendum to the Auction Rules to address indirect contention.

While it seems that the auctions for .shop, .shopping and .通販 would have to take place simultaneously due to the indirect contention, some weird edge cases have me confused.

ICANN’s list of indirect contention sets is currently empty.

It’s not at all clear to me yet whether, for example, Donuts’ .shopping application would be placed in the .shop auction or whether two separate auctions would be conducted.

That could be important because deposits — and therefore bidding limits — are specific to each auction.

Would Donuts have to stump up $4 million in deposits, rather than $2 million, just in order to win one string? Would Commercial Connect have to put down $6 million for three auctions for one string?

If the two .shopping applicants are placed in the .shop auction, and Commercial Connect withdraws first, would Donuts have to carry on bidding against the other eight .shop applicants, just to win .shopping?

I’m guessing not, but the rules don’t seem to envisage this scenario yet.

What about Uniregistry, which has an application for .shopping? Will ICANN force it into the .shop auction even though it’s not in direct contention with any .shop applicant?

If .shop and .shopping are two separate auctions, what happens if Commercial Connect withdraws from the .shop auction but not the .shopping auction? It would have little to gain — not being a .shopping applicant — but could it artificially bid up the .shopping set?

And could how these auctions play out have an impact on companies’ objection strategies in future rounds?

If Uniregistry, say, finds itself at a disadvantage because its .shopping competitor Donuts was objected to by Commercial Connect, maybe it would make sense for an entire direct contention set to cooperate to fight off an objection from an applicant for a similar string.

And if Commercial Connect finds itself financially hobbled by having to participate in three auctions rather than one, maybe that will discourage applicants from filing massive amounts of objections in future.

And another thing…

If you’re as confused as I am, ICANN is running a webinar November 7 at 2200 UTC in order to answer (hopefully) these kinds of questions.

dotShabaka Diary — Day 22, Sunrise has gone live!

Kevin Murphy, November 2, 2013, Domain Registries

In this penultimate entry in the dotShabaka Diary series, dotShabaka general manager Yasmin Omer officially announces the launch of the Sunrise period for شبكة., the first new gTLD to enter this phase.

Saturday 2 November 2013

It’s with great pleasure that I can finally say that we are the first new gTLD Registry Operator to commence its Sunrise Period! I’m truly excited about taking this TLD to the Arabic speaking world and revolutionising their Internet experience. So what’s happened since the last entry?

We received, and responded to, the TLD on-boarding Information Request from ICANN. New gTLD Registry Operators (and their Registry Services Providers) should be prepared to promptly provide ICANN with technical information regarding:

  • The Registry Operator’s provision of the zone file access service;
  • Bulk thin registration data access to ICANN;
  • Data Escrow – Registry Reporting Interface;
  • Implementation of the URS system;
  • EPP extensions for the TLD; and
  • EPP SLA Monitoring.

We requested the registration of our IDN Table on the IANA Repository of IDN Practices.

We obtained approval of our TLD Startup Information from ICANN. It’s certainly clear from our interactions with ICANN that the process of, and the requirements for, obtaining IBM’s acceptance of Sunrise dates and ICANN’s approval of TLD Startup Information, is yet to be defined. As a result, there was a delay in obtaining ICANN’s approval of our TLD Startup Information.

If you’re a new gTLD Registry Operator and you want your TLD Startup Information approved quickly, here are some tips:

  • Once you have a fair idea of when your Sunrise will commence (could be before you’re delegated), reach out to IBM independently and request a number of potential dates. The team at IBM has been very responsive by promptly accepting our Sunrise dates.
  • Include your eligibility policy for general registration with your TLD Startup Information. Yes, ICANN has explicitly stated that this is not a requirement they have imposed but it seems that they need it.
  • Remember that ICANN’s review is a legal review. Ensure that your policies very clearly demonstrate your compliance with the relevant requirements. Use diagrams.
  • Be prepared to respond to ICANN or IBM at any time – they’re both on opposite sides of the world to each other. ICANN thankfully ensure that the process is interactive, so be prepared to interact.

Good luck to everyone. We look forward to being joined by many more New gTLD Registry Operators in Sunrise.

Read previous and future diary entries here.