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Dot Registry backs .africa loser, batters on the ICANN lawsuit floodgates

Kevin Murphy, August 28, 2016, Domain Registries

Rejected community gTLD applicant Dot Registry has waded into the lawsuit between DotConnectAfrica and ICANN.

Filing an amicus brief on Friday in support of the unsuccessful .africa applicant, Dot Registry argues that chagrined new gTLD applicants should be allowed to sue ICANN, despite the legal releases they all signed.

The company is clearly setting the groundwork for its own lawsuit against ICANN — or at least trying to give that impression.

If the two companies are successful in their arguments, it could open the floodgates for more lawsuits by pissed-off new gTLD applicants.

Dot Registry claims applicants signed overly broad, one-sided legal waivers with the assurance that alternative dispute mechanisms would be available.

However, it argues that these mechanisms — Reconsideration, Cooperative Engagement and Independent Review — are a “sham” that make ICANN’s assurances amount to nothing more than a “bait-and-switch scheme”.

Dot Registry recently won an Independent Review Process case against ICANN that challenged the adverse Community Priority Evaluation decisions on its .inc, .llc, and .llp applications.

But while the IRP panel said ICANN should pay Dot Registry’s share of the IRP costs, the applicant came away otherwise empty-handed when panel rejected its demand to be handed the four gTLDs on a plate.

The ICANN board of directors has not yet fully decided how to handle the three applications, but forcing them to auction with competing applications seems the most likely outcome.

By formally supporting DotConnectAfrica’s claim that the legal waiver both companies signed is “unconscionable”, the company clearly reckons further legal action will soon be needed.

DotConnectAfrica is suing ICANN on different grounds. Its .africa bid did not lose a CPE; rather it failed for a lack of governmental support.

But both companies agree that the litigation release they signed is not legally enforceable.

They both say that a legal waiver cannot be enforceable in ICANN’s native California if the protected party carries out fraud.

The court seems to be siding with DotConnectAfrica on this count, having thrown out motions to dismiss the case.

Dot Registry’s contribution is to point to its own IRP case as an example of how ICANN allegedly conned it into signing the release on the assumption that IRP would be able to sort out any disputes. Its court brief (pdf) states:

although claiming to provide an alternative accountability mechanism, the Release, in practice, is just a bait-and-switch scheme, offering applicants a sham accountability procedure

Indeed, the “accountability” mechanism is nothing of the sort; and, instead of providing applicants a way to challenge actions or inactions by ICANN, it gives lip-service to legitimate grievances while rubber-stamping decisions made by ICANN and its staff.

That’s an allusion to the IRP panel’s declaration, which found no evidence that ICANN’s board of directors had conducted a thorough, transparent review of Dot Registry’s complaints.

Dot Registry is being represented by the law firm Dechert. That’s the current home of Arif Ali, who represented DotConnectAfrica in its own original IRP, though Ali is not a named lawyer in the Dot Registry brief.

Confused by new gTLDs? Allow this Nominet infographic to make your brain explode

Kevin Murphy, August 23, 2016, Domain Registries

There are over 1,000 new gTLDs out there right now, and figuring out what’s going on in the marketplace can be difficult.

So what better way to reduce confusion than to plot the 250 most populous TLDs into an infographic that vaguely resembles the iconic London Underground route map?

There must be thousands of better ways.

Regardless, the Tube map idea is the one Nominet decided to run with, and it released this beauty today.

Tube map

While the strings have been roughly organized by categories, there doesn’t seem to be much logic to the layout otherwise.

If one were to overlap the map on a map of London, there doesn’t appear to be much relationship between the string and the characteristics of the corresponding neighborhood.

DI World International Global Headquarters would be sandwiched between .lawyer and .marketing, or thereabouts, just to the north of Jack the Ripper’s stalking ground of .miami.

There is a Citizens Advice Bureau across the street, but I’m not sure that makes this area a hotbed of legal activity.

Market-leading .xyz would be up in Walthamstow somewhere, quite off the beaten track, .tokyo would be close to Chinatown, and .city is nowhere near the City.

I’m probably reading it wrong.

Anyway, the full map can be puzzled over in PDF format here, and you can read Nominet CEO Russell Haworth’s accompanying blog post here.

“Dave” becomes first .blog blogger

Kevin Murphy, August 19, 2016, Domain Registries

Blogging pioneer Dave Winer has become the first person to start blogging at a .blog domain name.

His new site, dave.blog, went live yesterday as a beneficiary of registry Knock Knock Whois There’s pioneer program.

The site is one of two pioneer .blog domains — the other being design.blog — highlighted by KKWT yesterday in publicity connected to the opening of its sunrise period.

Winer is the author of Scripting News, which has been around since 1997, one of the first must-read tech blogs.

He also made major contributions to the format and popularity of RSS syndication technology.

He was an outspoken critic of Google, which had planned to use blog in a “closed generic” fashion, linked closely to its Blogger service, writing in 2012:

I played a role in establishing blogs. How does Google get the right to capture all the goodwill generated in the word blog?

Yesterday he expressed relief that the .blog auction was actually won by KKWT, a subsidiary of WordPress owner Automattic, writing:

I’m glad to say that my friend Matt Mullenweg and Automattic are consistent champions of user and developer freedom. That’s why they host .blog for all to use. They could have said “blog” == “wordpress” — many companies would have — but they didn’t. That’s very good! I wish more big tech companies had that philosophy.

Winer said he will use his self-developed 1999.io blogging software on his new domain.

His allocation of dave.blog is arguably bad news for blokey British cable TV station Dave and disgraced former prime minister David “Call Me Dave” Cameron.

Next new gTLD round could start sooner than expected

Kevin Murphy, August 11, 2016, Domain Policy

The ICANN board of directors is wondering whether the next new gTLD application round should kick off sooner than expected.

Chair Steve Crocker reached out to the Generic Names Supporting Organization this week to ask whether the next round could start before all GNSO policy work has been completed.

Or, he asked, are there any “critical issues” that need to be resolved before ICANN starts accepting more applications.

Akram Atallah, head of ICANN’s Global Domains Division, said in May that 2020 is the earliest the next round could feasibly begin, but Crocker’s letter this week (pdf) suggests that that date could be brought forward.

Crocker asked “whether a future application process could proceed while policy work continues”.

There are a number of reviews that ICANN has committed to carry about before the next round starts.

There’s a consumer choice, competition and trust survey to be completed, for example, and a review of trademark protection mechanisms.

Atallah said in may that these would likely be complete by the end of 2017.

But the GNSO is also conducting policy work designed to highlight flaws and inefficiencies in the current 2012 and recommend changes and improvements.

It’s this so-called GNSO Policy Development Process (PDP) Working Group on New gTLD Subsequent Procedures (or NewgTLD-WG) that Crocker is interested in. He wrote:

assuming all other review activities are completed, it would be helpful to understand whether the GNSO believes that the entirety of the current Subsequent Procedures PDP must be completed prior to advancing a new application process under the current policy recommendations. The Board is cognizant that it may be difficult to provide a firm answer at this stage of the process as the reviews are still underway and the PDP is in its initial stages of work, but if any consideration has been given in relation to whether a future application process could proceed while policy work continues and be iteratively applied to the process for allocating new gTLDs, or that a set of critical issues could be identified to be addressed prior to a new application process, the Board would welcome that input.

The current plan for the NewgTLD-WG is to wrap up two years from now, in the third quarter of 2018 (though this may be optimistic).

Members of the group seem to think that we’re looking at a post-2020 next round with 10,000 to 15,000 applications.

It’s difficult to imagine a second round (or fourth, if you’re a pedant) beginning a whole lot earlier than 2020, given the snail’s pace ICANN and its community moves at.

The WG was chartered over half a year ago and the conversations going on are still at a depressingly high level.

Perhaps Crocker’s letter is an early indication that board will not be the significant drag factor on the process.

Centuries-old companies both fail community gTLD test

Kevin Murphy, August 11, 2016, Domain Policy

Two companies called Merck have separately failed ICANN Community Priority Evaluations, meaning the new gTLD .merck could be the first dot-brand to head to ICANN auction.

Merck KGaA applied for .merck for the Merck Group, a German chemicals company founded — staggeringly — in 1668, the same year Newton built the world’s first reflecting telescope.

Merck Registry Holdings Inc applied for the same string on behalf of Merck & Co, which was originally the US subsidiary of the German outfit. The US firm was seized by the US government and subsequently became independent during World War I.

Despite the substantial pedigrees of these multi-billion dollar businesses, neither were able to muster up the required 14/16 points to be considered a “Community” under ICANN CPE standards.

The German firm scored 11 points, the American 9.

The main failing in both evaluations, which were conducted by the Economist Intelligence Unit, was the existence of the other.

Both applicants defined their communities as their own companies and lost points because “.merck” did not uniquely identify all legitimate users of the string.

Both panels marked the applications down for “over-reaching substantially beyond the community” by not including the rival company in its community definition.

The US company also lost a couple of points for failing to come up with a list of registration restrictions.

As neither company has passed CPE, the next step of the ICANN process would have them attempt to resolve the contention set privately. Failing that, they would go to an ICANN last-resort auction.

Another possibility, an increasingly favored choice among CPE losers, would be an interminable series of ICANN process appeals and lawsuits.