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Should new gTLD objections have an appeals process?

Kevin Murphy, December 13, 2013, Domain Policy

That’s the question the ICANN Ombudsman is asking today.

Several new gTLD applicants that have lost objections — many in decisions that appear to diverge from ICANN’s rules or are inconsistent with other decisions — have been in touch to ask for redress, Ombudsman Chris LaHatte blogged this morning. He wrote:

The real problem as it seems to me, is that apart from the internal review procedures, there is no ability to seek an appeal from the panel decisions. A number of complainants had mentioned the need for an appeal process, emphasising that some of the decisions were in their view, inconsistent or not following the majority views.

LaHatte noted that his role is to decide issues of fairness in ICANN’s own decisions. As objections are all handled by third-party arbitration bodies, it’s not at all clear whether he has any authority at all over objection decisions.

Applicants have also been invoking the Reconsideration process en masse in an attempt to have successful objections overturned, but all Reconsideration requests to date have been rejected.

Reconsideration generally requires that the requester provide ICANN with new evidence that was not considered at the time of the original decision.

The ICANN Board Governance Committee, which handles Reconsideration, appears to be happy to leave objections in the hands of the arbitrators so far.

But the new gTLD objection process is a bit of a joke at the moment.

String Confusion Objection panelists have delivered inconsistent decisions, while Community Objection and Limited Public Interest Objection panels often seem to be making up rules as they go.

So should ICANN have an appeals process? If one is created it will undoubtedly be broadly used.

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Currently, of the original 1,930 new gTLD applications, 125 have been withdrawn but only two or three have been rejected.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

Is the ICC ripping off new gTLD objectors?

Kevin Murphy, June 27, 2013, Domain Policy

New gTLD applicants have reportedly complained to ICANN about the unexpectedly high cost of dealing with objections.

The International Chamber of Commerce has apparently been quoting objectors prices as high as €150,000 for a three-person panel to handle a formal community objection.

At $195,000, that’s almost $10,000 more than the original ICANN application fee.

Because Community Objections run on a loser-pays basis, the stakes are high indeed. An applicant could lose its application, most of its application fee, and still have to pay the objector’s fees.

The complaints emerged during a session with ICANN new gTLD program head Christine Willett at a meeting in Brussels earlier this week, according to consultant and occasional DI contributor Stephane Van Gelder.

Writing on the NetNames blog yesterday, Van Gelder quoted Willett as saying:

We are aware that ICC fees are more than people were expecting. Some applicants have been quoted around 50,000 Euros for a one expert panel and 150,000 Euros for a three expert panel. Although in the same order of magnitude as the cost estimate listed in the applicant guidebook, they are still higher. In some cases, significantly higher. In fact, we had one applicant write to us last week saying that their quoted expert fee was more than the ICANN fees for submitting their application in the first place! So we have reached out to ICC and are hoping they can provide some rationale for the costs they are quoting.

The Applicant Guidebook does not detail the fees charged by dispute resolution providers, but materials provided by the ICC (pdf) say that its admin costs are €12,000 and €17,000 for a one-person and three-person panel respectively. The hourly rate for the panelists is €450, it says.

With a €150,000 total cost, back of the envelope doodling suggests that each panelist expects to spend around 100 hours working on each case — over two weeks at seven hours a day.

By contrast, the World Intellectual Property Organization’s fees for handling Legal Rights Objections with a three-person panel start at $23,000 ($3,000 for WIPO, $20,000 for the panelists).

Rejected .gay gTLD objection ruled “unfair”

Kevin Murphy, June 27, 2013, Domain Policy

dotgay LLC could be hit by another formal new gTLD objection from gay Republicans.

ICANN Ombudsman Chris LaHatte today said that it was “unfair” that a community objection filed by GOProud, a gay lobby group, was rejected by the International Chamber of Commerce.

The ICC screwed up, it seems, judging by LaHatte’s decision.

Washington DC-based GOProud, which seeks to show that not all gay rights advocates have liberal views on other issues, had filed a community-based objection to dotgay’s .gay gTLD application.

While the substance of the objection is not known, I suspect it’s politically motivated. The other objection to dotgay’s application was filed by another gay Republican organization, the Metroplex Republicans of Dallas (formerly Log Cabin Republicans Dallas).

The ICC rejected the objection because it was about 500 words over the prescribed limit, but it sent the notification to the wrong email address, according to LaHatte’s blog.

Had GOProud received the notification, it would have had time to amend its objection to rectify the mistake. However, by the time it discovered the problem the filing deadline had passed.

LaHatte wrote:

there is some unfairness in the subsequent rejection given the apparent error in the use of the wrong email. It seems to me that it would be relatively easy to unwind that decision, and permit the late filing of the objection. I can of course only make a recommendation, but in this case where there is some unfairness I think the matter should be revisited.

The Ombudsman’s role is to handle complaints about unfairness in ICANN’s actions, so it’s not entirely clear what’s going to happen in this case, given that the ICC is an ICANN subcontractor.

LaHatte’s recommendation is certainly not binding in either case. Whether the ICC changes its mind may depend on whether ICANN asks it to or not.

dotgay is the New York-based applicant founded by Scott Seitz. It’s one of four companies applying for .gay.

The other three applicants — Top Level Domain Holdings, Top Level Design and Demand Media — have each received community objections from the International Lesbian Gay Bisexual Trans and Intersex Association, a dotgay supporter.

Late new gTLD objections “not unfair”

Kevin Murphy, June 10, 2013, Domain Policy

ICANN Ombudsman Chris LaHatte has ruled that the decision to accept formal new gTLD objections sent one minute after the filing deadline “does not create unfairness”.

The decision is a blow to at least one applicant, which had tried to have an objection against it kicked out for being late.

LaHatte received a complaint from the applicant, believed to be represented by Galway Strategy Group’s Jim Prendergast, last month.

The complainant said that an objection by a competing applicant was sent at 00:01:02 UTC on March 15, one minute and three seconds after the deadline laid out in ICANN’s Applicant Guidebook.

But the dispute resolution providers hired by ICANN to manage objections decided to give a little leeway, agreeing among themselves (with ICANN’s tacit consent) to a five-minute extension.

Now LaHatte has decided — entirely reasonably in my view — that this was not unfair.

He wrote: “It is my view that a five minute window is a proportionate response and does not create unfairness for the applicants, but does provide fairness given that it is only five minutes.”

He added that at least one other objection, which was filed much later, was rejected for its tardiness.

Ombudsman probing “late” new gTLD objections

Kevin Murphy, May 16, 2013, Domain Policy

ICANN’s Ombudsman Chris LaHatte has received complaints about some new gTLD objections that were apparently filed after the submission deadline but are being processed anyway.

Two companies have officially called on LaHatte to tell ICANN that “late complaints should not be received on the basis that the deadlines were well advertised and achievable”.

The issue seems to be that ICANN had set a deadline of 2359 UTC March 13 for objections to be filed, and some of them arrived slightly late.

The delays appear to have been a matter of mere minutes, and blamed on latency caused by heavy email attachments and other technical problems.

According to ICANN, the dispute resolution providers decided to give objectors a five-minute grace period, essentially extending the deadline from 2359 UTC to 0004 UTC the following day.

The recipients of these objections clearly now want to use this technicality to kill off the objections, avoiding the cost of having to defend themselves.

In a set of answers to questions posed verbally in Beijing last month, published last week (pdf), ICANN said:

ICANN is confident that the Dispute Resolution Service Providers are complying with the guidelines in the [Applicant Guidebook].

I don’t know which applications are affected by the issue, but the question at the Beijing public forum was posed by new gTLD consultant Jim Prendergast of the Galway Strategy Group.

He received applause, so I guess he wasn’t the only person in the room with an interest in the subject.

LaHatte, on his blog, is looking for feedback before making his decision.

At-Large votes to object to .health gTLD bids, but Afilias gets a pass

Kevin Murphy, March 15, 2013, Domain Policy

ICANN’s At-Large Advisory Committee has voted to object to three of the four applications for the .health gTLD.

Afilias, which is one of the applicants, will not receive an ALAC objection. By a single vote, ALAC decided not to go after its application.

Fourteen of the 15-member ALAC panel voted on Tuesday. For DotHealth LLC’s bid, the yes/no/abstain vote was 8/3/3; dot Health Ltd’s was 10/3/1, and Donuts’ was 10/3/1.

Afilias managed to get one extra “no” vote (its result was 7/4/3). so with only 50% of the voters voting “yes”, the motion to object failed.

The ALAC did not vote on .健康, which means “healthy” or “wellness” in Chinese, despite earlier indications that it would.

The identities of the voters and the way they voted does not appear to have been revealed.

The objections will be of the Community or Limited Public Interest variety, and paid for by ICANN.

Healthcare-related gTLDs are already the most controversial of those being applied for.

Each .health bid received four Governmental Advisory Committee Early Warnings late last year, and earlier this week the Independent Objector’s list of 24 objections was dominated by medically oriented strings.

Demand Media hit with first new gTLD objection

Kevin Murphy, March 11, 2013, Domain Policy

With the deadline for filing objections against new gTLD applications fast approaching, the first such objection has been revealed.

Starting Dot, which has applied for .immo and other strings, has filed a String Confusion Objection against Demand Media’s .immobilien bid, according to the International Center for Dispute Resolution.

“Immobilien” is German for “homes” in the real estate context, while “immo” is a shorthand for the same term in a number of European languages.

The objection itself does not appear to have been published, but one can only assume that it’s based on the similarity of meaning between the two strings, rather than visual or audible confusion.

While it’s the first objection to be published, based on conversations with many interested parties I’m expecting a LOT more.

The deadline for filing objections using any of the four available mechanisms, is Wednesday.

ALAC likely to object to five .health gTLDs

Kevin Murphy, February 18, 2013, Domain Policy

ICANN’s At-Large Advisory Committee is planning to formally object to four applications for the .health gTLD and one for .健康, which means “.healthy” in Chinese.

Bids backed by Afilias, Donuts, Famous Four Media and Straat Investments (the investment vehicle of .CO Internet CEO Juan Diego Calle), as well as China’s StableTone, are affected.

Dev Anand Teelucksingh, chair of the ALAC’s new gTLD review group, posted the following to an ALAC mailing list this weekend:

Objection statements on community grounds will be drafted for the applications for .health given that the four tests for community objection grounds were passed. The gTLD RG will attempt to put together the objection statements to the applications for .health in time for RALO [Regional At-Large Organization] review around 22 February 2013.

The ALAC is able to file objections to new gTLD bids, using funds provided by ICANN, on only the Community or Limited Public Interest grounds.

Of the four strings before it (.health, .nyc, .patagonia and .amazon) the ALAC review group decided that only a Community objection against .health met its criteria.

These are the only confirmed ALAC objections to date.

The ALAC had received a request to object from the International Medical Informatics Association, which said:

These five proposals are seen as problematic by the global health community for the following reasons:

  • None of the applicants demonstrates that the name will be operated in the public interest.
  • None of the applicants demonstrates adequate consumer protection mechanisms.
  • All of the applicants are commercial in nature and none represent the health community.

Two governments — France and Mali — both expressed concerns about .health on similar grounds by filing Early Warnings last November.

ICANN’s deadline for filing objections is March 13.

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