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Domain industry blasts Congress TLD hearing

Executives from over a dozen domain name companies have slammed a US Congressional subcommittee for its plan to hold a one-sided hearing on new top-level domains.

A letter, drafted by AusRegistry International’s chief strategy officer, Krista Papac, says the hearing is “not fairly balanced” and “will present a distorted picture of the new gTLD process.”

As I reported earlier this week, the House Subcommittee on Intellectual Property, Competition and the Internet called at least four representatives of the trademark lobby to discuss new TLDs.

Kurt Pritz, ICANN’s senior vice president, is the only person testifying today who could be considered wholly supportive of the new gTLD program. The other witnesses are either advocates of trademark interests or more governmental involvement in ICANN.

Papac wrote:

It is unfortunate that of the six witnesses on the panel, none comes from the perspective of an entity that plans to run a new gTLD and could discuss the innovation, consumer choice, and job growth they will provide. Nor will the committee hear from representatives who might counter some potentially over-reaching views of the intellectual property interests, such as representatives of non-commercial entities, privacy experts, and existing domain name service providers.

The letter goes on to say that IP interests have already been heard, are afforded many protections in the program, and that new TLDs will bring benefits to the US economy.

It was signed by executives from Worldwide Media, eNom, EuroDNS, Right Of The Dot, auDA, Momentous, Othello Technology Systems, Network Solutions, AboutUs.org, Cronon, Domain Dimensions, Tucows, DomainTools, Donuts, Minds + Machines and others.

The hearing begins at 10am in Washington DC today. Coverage later.

Rules for registry-registrar mergers proposed

ICANN has revealed how it intends to enable incumbent domain name registries to also become registrars, ending a decade of cross-ownership restrictions.

The industry shake-up could allow companies such as VeriSign, Neustar and Afilias to become accredited registrars in their own top-level domains later this year.

Hypothetically, before long you could be able to go directly to VeriSign for your .com domains, to Afilias and Public Interest Registry for .info and .org, or to Neustar for .biz.

The changes could potentially also kick off a wave of consolidation in the industry, with registry operators buying previously independent registrars.

ICANN’s proposed process is straightforward, requiring just a few amendments to the registries’ existing contracts, but it could also call for governmental competition reviews.

Registries will have to agree to abide by a Code of Conduct substantially the same as the one binding on wannabe registries applying later this year under the new gTLD program.

The Code is designed to stop registries giving their affiliated registrars unfair advantages, such as lower prices or preferential access to data, over other ICANN-accredited registrars.

Registries would also have the option to adopt the registry contract from the new gTLD Applicant Guidebook wholesale, although I expect in practice this is unlikely to happen.

ICANN would be able to refer vertical integration requests to national competition authorities if it determined that cross-ownership could cause “significant competition issues”.

VeriSign would be the most likely to be hit by such a review, but it’s also the only registry that does not appear to have been particularly hamstrung over the years by the forced separation rules.

The proposed process for registries to request the contract changes has been posted to the ICANN web site and is now open for public comment.

Congress to hear from new TLD opponents

Kevin Murphy, May 2, 2011, Domain Policy

ICANN senior vice president Kurt Pritz is set to face a grilling at a Congressional hearing into new top-level domains on Wednesday, judging from the just-published witness list.

Of the other five panelists before the House Subcommittee on Intellectual Property, Competition and the Internet, all are quite critical of ICANN and/or its new gTLDs program:

Steve Metalitz, an IP lawyer and vice-chair of ICANN’s intellectual property constituency, which continues to push for even tougher rights protection mechanisms in the Applicant Guidebook.

Mei-lan Stark, senior VP of IP at Fox Group Legal, also closely involved with the International Trademark Association.

Steve DelBianco, executive director of NetChoice (of which VeriSign is a member), part of the ICANN business constituency. Last time he appeared before a Congressional committee, he called for more rights protections mechanisms and a slower new TLD rollout.

Michael Palage, lawyer/consultant and former ICANN board member. He has recently written articles calling for ICANN to pay more attention to its Governmental Advisory Committee (which, as we know, has a strong focus on IP protection nowadays).

Josh Bourne of the Coalition Against Domain Name Abuse, CADNA, one of the fiercest critics of the program. CADNA thinks new TLDs will cost businesses hundreds of millions of dollars in defensive registrations.

It’s a one-sided panel, with no strong proponents of new TLDs — such as likely applicants — among the witnesses.

Pritz is going to be in the firing line, and no mistake.

Pritz to defend ICANN in Congress

Kevin Murphy, April 27, 2011, Domain Policy

ICANN has confirmed that Kurt Pritz, its point man for the new top-level domains program, will represent the organization at a Congressional hearing next week.

As I reported yesterday, The House Subcommittee on Intellectual Property, Competition and the Internet will hold an “ICANN Generic Top-Level Domains (gTLD) Oversight Hearing” on May 4.

Pritz is senior vice president of stakeholder relations. He has led the development of the new gTLD Applicant Guidebook for the last few years.

Some, such as GNSO Council chair Stephane Van Gelder, have already expressed surprise that ICANN CEO Rod Beckstrom will not be attending.

The last time Congress dragged ICANN to Capitol Hill, in 2009, it was former CEO Paul Twomey who took the brunt of the questioning.

As Domain Name Wire recounts, ICANN took a good kicking on that particular occasion.

The focus of next week’s hearing is expected to be the intellectual property implications of new TLDs.

Aussies to back city TLD bids

Kevin Murphy, April 25, 2011, Domain Registries

Australian authorities are planning to back bids for .melbourne and .sydney top-level domains, according to a report in The Australian.

The article quotes an official from the New South Wales Premier’s Office saying there’s a plan to release a tender for the right to operate .sydney, and somebody from the City of Melbourne saying they’re “actively considering” .melbourne.

The report does not spell out the expected uses of the TLDs. I expect some of the strategy will depend on what business plans the successful registry operator comes up with.

The current draft of ICANN’s Applicant Guidebook protects city names, demanding applicants show proof of support or non-objection from the relevant public authorities.

The only exception is when the applied-for string matches a non-capital city name, but is not intended to represent that city.

That’s designed to allow brand or generic TLDs that match smaller place names — think .phoenix or .buffalo.

With the latest revision of the Guidebook, it is noted that it is up for national governments to decide what the appropriate entity to support a city TLD bid is, which could complicate matters,

There’s already a Facebook group devoted to a .melbourne application.

Registries could become registrars by summer

Kevin Murphy, April 24, 2011, Domain Registries

The big incumbent top-level domain registry operators could apply to also become registrars as early as June this year, according to a just-passed ICANN resolution.

Last November, ICANN decided to dump its longstanding policy of generally not allowing TLD registries to also own and operate registrars.

While the rule was designed primarily for TLDs won under the new gTLD program, it will also retroactively apply to operators of existing gTLDs.

Neustar (.biz) has already publicly stated its intention to vertically integrate, and is keen for ICANN to lift its current 15% registrar ownership restriction before the new gTLD program kicks off.

According to a resolution passed by ICANN’s board of directors on Thursday, Neustar is not the only registry operator to make such a request.

The board last week…

RESOLVED (2011.04.21.13), the Board directs the CEO to develop a process for existing gTLD registry operators to transition to the new form of Registry Agreement or to request amendments to their registry agreements to remove the cross-ownership restrictions. This process would be available to existing operators upon Board approval of the new gTLD Program.

ICANN currently plans to approve the gTLD program June 20 at its meeting in Singapore.

That gives CEO Rod Beckstrom and his team just two months to come up with a process for allowing the likes of VeriSign, Neustar and Afilias to either amend their contracts or move to the standard contract outlined in the new TLD program’s Applicant Guidebook.

I see a potential source of tension here.

The registry agreement template in the Guidebook has been described by some as an “adhesion contract” due to its heavy balance in ICANN’s favor.

Existing registries will very likely prefer to simply delete the cross-ownership restrictions in their current contracts and incorporate the new proposed Code of Conduct rules.

On the other hand, some have suggested that registries should be obliged to adopt the new Guidebook agreement in full, rather than amend their existing deals, in the interests of equitable treatment.

Registrars still signed up to ICANN’s 2001 Registrar Accreditation Agreement only get the option to upgrade wholesale to the 2009 agreement, it has been noted.

New TLDs timetable tightened

Kevin Murphy, April 19, 2011, Domain Registries

ICANN’s effort to squeeze out a process for approving new top-level domains has been about as easy and painless as giving birth, so it perhaps appropriate that it now expects to take at least nine months to gestate the very easiest applications.

The new version of the Applicant Guidebook, published Saturday, makes a number of changes to the expected new TLDs timetable, including the addition of an extra month to the minimum likely processing time for non-controversial strings.

This is not, as you might think, a result of the new objection powers granted to the Governmental Advisory Committee.

(UPDATE: On closer analysis, it appears that the timetable has in fact been rejiggered in order to give more time to the GAC’s Early Warning mechanism. Thanks to Mike, in the comments, for the correction.)

The Administrative Check part – the bit where ICANN goes through the applications to make sure they’ve all been correctly filed – that has been extended, from four weeks to eight.

ICANN has also shortened the first-round application-filing window by a month, to 60 days, off-setting the extended processing time.

New TLDs may start entering the root around the same time they were previously expected.

The timetable for the launch of new TLDs now looks a little like this:

June 20 – Applicant Guidebook approved in Singapore.

July-October 2011 – four-month communication/outreach period.

November-December 2011 – first-round application window

October 2012 – first new TLDs delegated to DNS root.

The new Guidebook advises applicants to avoid waiting to the last minute to file their applications, due to the complexity of the new TLD Application System (TAS) it’s created.

Given the application period is likely to end shortly after the end of year holiday period, I expect applicants will have plenty of impetus to get their applications in early without encouragement.

ICANN brings “loser pays” to domain disputes

Kevin Murphy, April 16, 2011, Domain Registries

ICANN has significantly strengthened brand-owner protections in new top-level domains by proposing, amongst other things, a new “loser pays” model for some cybersquatting disputes.

The Uniform Rapid Suspension process, which is designed to give trademark owners a quick, cheap way to take down obvious examples of cybersquatting, may now occasionally carry a response fee.

According to ICANN’s newly revised Applicant Guidebook, which was published early this morning:

A limited “loser pays” model has been adopted for the URS. Complaints listing twenty-six (26) or more disputed domain names will be subject to an Response Fee which will be refundable to the prevailing party. Under no circumstances shall the Response Fee exceed the fee charged to the Complainant.

In other words, if a somebody registers more than 25 domains that appear to infringe upon the trademarks of a single company, they will have to pay a few hundred dollars, refundable, if they want to defend their case. Judging from UDRP history, this will likely apply to very few people.

The number 25 comes from the May 2009 report of ICANN’s Implementation Recommendation Team, which devised many of the new gTLD program’s rights protection mechanisms.

This change is one of several made in the new Guidebook, addressing concerns raised by the Governmental Advisory Committee, which had consulted closely with the IP lobby.

The GAC didn’t get everything it wanted, however. It had asked for repeat cybersquatters to lose their right to respond under the URS, but ICANN declined, citing the need for due process.

But the Guidebook does now also require new TLD registry operators to offer two types of rights protection mechanism during their launch phase, as the GAC had requested.

Whereas earlier drafts mandated either a Trademark Claims service or a Sunrise period, now registries will have no choice: they have to offer both at a minimum.

The Trademark Claims services notifies registrants if they try to register a domain name that matches a trademark registered in a central Trademark Clearinghouse.

The registrant will have to certify that they’re not infringing any rights before they get the domain. If they do register it, the affected trademark holder will receive a notification that the domain has been registered and can choose to take action such as filing a URS claim.

The idea behind the service is to deter cybersquatters, possibly reducing brand owners’ costs from having to defensively register their names in all new TLDs.

The Sunrise period, which is now also mandatory, is not entirely dissimilar to the sunrise periods we’ve come to expect from new TLD launches over recent years.

The new Guidebook states that the Trademark Claims service must be offered for at least 60 days after a new TLD enters general availability and the Sunrise must be at least 30 days before.

The fact that both services are now mandatory has helped ICANN address the thorny question of what should constitute a valid trademark.

Earlier drafts of the Guidebook required trademarks to have been subject to “substantive review” – a check by a national authority that the trademark is for real and in use.

The worry was that speculators could game the system by picking up large numbers of trademarks in countries that give them away like candy. It’s happened before.

But the review requirement was criticized by the GAC and others as it excluded trademarks in much of the world outside of the US.

In response to these criticisms, ICANN has removed the reference to substantive review. Instead, the yet-to-be-decided manager of the Trademark Clearinghouse will be given the task of validating that each trademark submitted is legit.

Companies need only submit a declaration and a single piece of evidence of use in order to get into the Clearinghouse, thus enabling them to partake of the Sunrise.

No such validation will be required in order to participate in the Trademark Claims service, though brand owners will need to be listed in the Clearinghouse for both mechanisms.

Evidence of use will also be needed to file URS complaints, but that can be done separately at the time of filing, with no need for a Clearinghouse registration.

ICANN chairman Peter Dengate Thrush, himself an IP lawyer, once stated, possibly in jest, that no matter what you do, you can be certain that IP lawyers will demand more protections.

Whether the rights protections mechanisms included in the Guidebook are now sufficient to calm trademark interests’ nerves remains to be seen.

ICANN gives governments powers over new TLDs

Kevin Murphy, April 16, 2011, Domain Registries

ICANN has made some significant concessions to government demands in the newly published revision of its new top-level domains Applicant Guidebook.

After lengthy consultations with its Governmental Advisory Committee over the last few months, ICANN has updated the rulebook to address the vast majority of GAC concerns.

We’ve gone from the “proposed final Applicant Guidebook” published in November to the “April 2011 Discussion Draft” that appeared on the ICANN web site in the wee hours of this morning.

On first perusal, it appears that ICANN has walked the fine lines between GAC advice, hard-fought community consensus and common sense more or less successfully.

While the new Guidebook gives plenty of ground to the GAC, making it a more integral part of the new TLDs approval process, it avoids adopting some of its more problematic requests.

In this post, I’ll look at the powers ICANN has given to governments to object to TLDs.

Early Warning System

While ICANN has sensibly not given individual governments the right to veto TLDs they are not happy with, they do get substantially more input into the approval process than in previous drafts.

The major update to the Guidebook is a new Early Warning system that will allow governments to pre-object to TLDs they don’t like.

An Early Warning, which can only be filed by the GAC chair, is “an indication that the application is seen as potentially problematic by one or more governments.”

Applicants in receipt of such a warning will have 21 days to decide whether to drop out of the process, receiving a $148,000 refund, 80% of their $185,000 application fee.

But they won’t have to. The warning is just a heads-up that the GAC or some of its members may formally object at a later stage. A warning does not represent a GAC consensus position.

The Early Warning process will run for 60 days, at the same time as the public comment period that begins the day the applications are published.

Advice of Doom

Any applicants that decide to ignore such a warning face the possibility of receiving a formal GAC objection, which could come at any point in the first seven months after the applications are published.

This is now being called “GAC Advice on New gTLDs”. It could be quite a powerful tool:

GAC Advice on New gTLDs that includes a consensus statement from the GAC that an application should not proceed as submitted, and that includes a thorough explanation of the public policy basis for such advice, will create a strong presumption for the Board that the application should not be approved.

This is pretty close to a GAC veto, but it crucially requires GAC consensus. The Guidebook explains:

GAC Advice on New gTLDs should identify objecting countries, the public policy basis for the objection, and the process by which consensus was reached.

Even if the GAC reaches consensus, the ICANN board will be able to overrule its objections in accordance with its bylaws, in much the same way it just did with .xxx (in practice, I suspect .xxx may ultimately prove a fairly unique exception to the rule).

The Guidebook indicates that any wishy-washy, non-consensus, politician-speak advice given by the GAC will not be considered grounds for rejecting an application. The objection must be specific, grounded, and it must have support.

Importantly, ICANN has not conceded to the GAC’s request to allow applicants to amend their applications to remedy the GAC’s concerns.

As I noted earlier in the week, this could have led to companies gaming the system, and ICANN has ruled out amendments for precisely that reason.

Freebies

Individual governments will of course be allowed to object to any application using any of the other procedures that the Guidebook allows, such as the Community Objection.

ICANN’s problem is that these processes carry third-party fees, and governments don’t think they should have to pay these fees (for some reason that’s never been adequately explained).

Addressing this concern, the new Guidebook says that ICANN will cover each national government to the tune of $50,000 to fund a single objection.

That’s a total of potentially well over $1 million, funded from ICANN’s reserves. ICANN expects that governments will coordinate their objections to limit its costs.

Overall, it appears that ICANN has addressed pretty much everything the GAC wanted in terms of objections procedures. With a couple of reasonable exceptions, the GAC has received what it asked for.

Members may not be completely happy with ICANN’s decrees on what form GAC advice must take in order to have a useful impact, but in general it seems that this could well now be a closed issue.

In my next post, I’ll look at how intellectual property protection changes in the new Guidebook.

Governments dig in over new TLD objections

Kevin Murphy, April 13, 2011, Domain Registries

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.

ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.

The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.

Yeah, it’s getting a bit complex.

In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.

This is a preliminary analysis.

Controversial TLDs

The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.

ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.

The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.

The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.

The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.

Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.

Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.

Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”

This seems unworkable.

Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.

The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.

If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?

If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.

Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.

This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.

Trademark Protection

Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.

Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?

From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.

Registrar-Registry Cross Ownership

ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.

Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.

But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs

Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.

But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.

The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.

The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.

The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.

Law Enforcement

The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.

This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.

Geographic Names

If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.

The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.

If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.

More Delays?

The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.

If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.

It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.

But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.

The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.