Fight over new sports gTLDs gets real ugly

The battle for contested new gTLDs .rugby and .basketball is turning nasty.
Roar Domains, a New Zealand marketing firm whose gTLD applications are backed by the official international bodies for both sports, is promising to pull out all the stops to kill off its competition.
The company, which is partnered with Minds + Machines on both bids, has told rival portfolio applicant Donuts that it will attack its applications for the two TLDs on at least three fronts.
Notably, Roar wants Donuts disqualified from the entire new gTLD program, and plans to lobby to have Donuts fail its background check.
The company told Donuts last month:

while we have no desire to join the chorus of voices speaking out against Donuts, it is incumbent on us to pursue the automatic disqualification of Applicant Guidebook Section 1.2.1, and every opposition and objection process available to us.

Applicant Guidebook section 1.2.1 deals with background checks.
Donuts came under more scrutiny than most on these grounds during the new gTLDs public comment period last year due to its co-founders being involved at the sharp end of domain investment over the last decade.
Demand Media and eNom, where founder Paul Stahura was a senior executive, have lost many UDRP cases over the years.
A mystery lawyer who refuses to disclose his clients started pursuing Donuts last August, saying the company is “unsuited and ineligible to participate in the new gTLD program.”
Separate (pseudonymous?) public comments fingered a former Donuts director for allegedly cybersquatting the Olympics and Disney.
While Roar has not claimed responsibility for these specific previous attacks, it certainly seems to be planning something similar in future.
In addition, Roar and International Rugby Board, which supports Roar’s application for .rugby, say they plan to official objections with ICANN about rival .rugby bids.
The IRB told Donuts, in a letter shortly before Christmas:

As the global representative of the sport and the only applicant vested with the trust and representation of the rugby community, we are unquestionably the rightful steward of .RUGBY.
…
Without the support of the global rugby community your commercialization efforts for .RUGBY will be thwarted. We are also preparing an objection to file against your application in accordance with ICANN rules to which you will be required to dedicate resources to formulate a response.

Roar and the IRB are also both lobbying members of ICANN’s Governmental Advisory Committee, which has the power to file potentially decisive GAC Advice against any application.
Roar told Donuts recently:

Roar serves as the voice and arm for FIBA [the International Basketball Federation] and IRB in the New gTLD area. We are pleased to have obtained four Early Warnings on behalf of our applications, and fully expect the GAC process to be completed to GAC Advice.

The Early Warnings against the two other .rugby applicants were filed by the UK government — the only warnings it filed — while Greece warned the two non-Roar .basketball applicants.
Roar is also involved with the International Basketball Federation (FIBA) on its .basketball bid.
While commercial interests obviously play a huge role, there’s a philosophical disagreement at the heart of these fights that could be encapsulated in the following question:
Should new gTLDs only be delegated to companies and organizations most closely affiliated with those strings?
In response to the UK’s Early Warning, Donut has written to UK GAC representative Mark Carvell asking for face-to-face talks and making the case for a “neutral” registry provider for .rugby.
Donuts told Carvell:

We believe gTLDs should be run safely and securely, and in a manner that is fair to all law-­abiding registrants, not only those predetermined as eligible. A neutral third party, such as Donuts, can be best capable of achieving this outcome.
…
Donuts believes a neutral operator is better able to ensure that the gTLD reflects the full diversity of opinion and content of all Internet users who are interested in the term “rugby.”
As the IRB is a powerful voice in rugby, an IRB‐managed registry might not be neutral in its operations, raising questions about its ability to impartially oversee the gTLD. For example, will IRB/Roar chill free speech by censoring content adversarial to their interests? How would they treat third parties who are interested in rugby but aren’t part of the IRB? What about IRB critics or potential rival leagues?

Despite these questions, no .rugby applicant has said it plans to operate a restricted registry. There are no applications for .basketball or .rugby designated as “Community” bids.
The IRB/Roar application specifically states “anyone can register a .rugby domain name.”
Both .basketball and .rugby are contested by Roar (FIBA/IRB/M+M), Donuts (via subsidiaries) and portfolio applicant Domain Venture Partners (aka Famous Four Media, also via subsidiaries).
Roar is a sports marketing agency that is also involved in bids for .baseball, .soccer, .football and .futbol. The New Zealand national team football captain, Ryan Nelsen, is on its board.
Here are the letters (pdf).

Enjoy your weekend — ICANN extends new gTLD comment period

ICANN has extended the public comment period on new gTLD applications by 45 days, after pressure from intellectual property interests and the US government.
The window to have comments considered by evaluators, which was set to close on Sunday, will now end September 26. ICANN said:

After review and discussion of the community’s input, and careful consideration of the implications and impacts the additional time may have on the processing of applications, we have extended the application comment period an additional 45 days.

That’s in line with what the Intellectual Property Constituency asked for last week, but rather less than the Association of National Advertisers wanted.
To date, over 5,500 comments have been filed, but about half of those can be attributed to the same five or six brands, most of which are using the same consultant-prepared language in their filings.
The most immediate consequence of the change today, I expect, is that all the predictably last-minute commenters in the ICANN community get to enjoy their weekends instead.
And I checked: September 26 is a Wednesday.

Infodump: what we learned about new gTLDs today

ICANN held a webinar today in which it detailed a whole lot of the current thinking about the evaluation phase of the new gTLD program, including some new deadlines and target dates.
Senior vice president and acting program head Kurt Pritz fought through a cold to give new gTLD applicants more information and clarification than they’d received since Prague in June.
These are some of the things we learned:

• Three applications have been withdrawn already. We don’t know which ones.
• There have been 49 requests to change applications. Again, we don’t know which ones yet. ICANN is in the process of finalizing a threshold check to allow or deny these changes, details of which it expects to publish soon.
• “Clarifying Questions” are the new buzzword. CQs — yes, they have an acronym — are additional questions the evaluators need to ask applicants before they can score parts of their application. The vast majority of applications are going to get at least one CQ. The two-week deadline to respond to these questions, as described in the Applicant Guidebook, will likely be ignored in many cases.
• About 90% of applications will get a CQ about their financial status. This mainly concerns their Continuing Operations Instrument, the super-complex and expensive back-up cash commitments each applicant had to secure. But applicants who got letters of credit don’t need to panic if their banks have recently had their ratings downgraded.
• Another 40% can expect to get questions about their technical plans. Some applicants may have relied too heavily on their back-end providers to describe their security plans, it seems.
• About half of all geographic gTLD applications have not yet supplied letters of support from the relevant government. This was already anticipated and is accounted for by Guidebook processes however, Pritz said.
• Don’t expect an answer to the metering question any time soon. Batching may be dead, but ICANN does not expect to figure out its replacement — a way to throttle new gTLDs’ go-live dates — until October. There’s an open comment period on this and plenty more jaw-wagging to come.
• Objections will come before Initial Evaluation results. This sucks if you’re a likely objector. The deadline for filing objections is January 12, 2013, but evaluation results are not expected until June 2013 at the earliest. This means the much cheaper option of waiting to see if an application is rejected before paying for an objection is no longer a viable strategy. But it’s good for applicants, which will get a little more visibility into their likelihood of success and their costs.
• Contention sets will probably be revealed in November. The String Similarity Panel, which decides which gTLDs are too similar to each other to co-exist, is not expected to give its results to ICANN until late October, four and a half months after the June 13 Reveal Day — so applicants won’t know the full size of their contention sets until probably a couple of weeks after that.
• The new gTLD public comment period will probably be extended. After several requests, ICANN is very probably going to give everyone more time to comment on the 1,930 1,927 applications, beyond the August 12 scheduled closing date. An announcement is likely on Friday.

GAC new gTLD veto refuses to die

ICANN’s Governmental Advisory Committee seems to be trying yet again to resurrect the government right of veto over controversial new top-level domain applications.
The GAC has proposed changes to the new gTLDs Applicant Guidebook that – at least on the face of it – would remove ICANN’s power to overrule GAC objections.
The changes would also make it much more likely that a gTLD application could be killed off due to the objections of a single nation.
If adopted, they would also make the already unpredictable process of anticipating the result of GAC objections considerably more ambiguous.
The supposedly “complete” Guidebook published by ICANN last month currently includes a warning that the GAC is working on its objecting rules, and that these will be included in future.
The GAC Communique (pdf) issued at the ICANN meeting in Dakar on Friday includes these proposed rules as an annex, and they’re not great if you’re a likely new gTLD applicant.
Consensus objections
If the GAC issues a consensus objection to an application, the Guidebook currently states that a “strong presumption” would be created that the application should fail.
But ICANN’s board would be able to overrule it with a so-called “Bylaws consultation”, the same process it used to approve .xxx earlier this year.
In its proposed revisions, the GAC inexplicably wants to delete the references to the Bylaws consultation.
My understanding is that the GAC is not proposing a change to the Bylaws, so the right of the board to initiate a consultation and overrule a GAC objection would still exist.
But the GAC seems to be asking for applicants to be given far less information about that process than they need, making its own powers appear greater than they are.
This could raise the psychological barrier to initiating a Bylaws consultation and create the perception that a consensus GAC objection always kills an application, which may not be the case.
The Dakar communique defines GAC consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”, which creates its own set of worries.
Non-consensus objections
A much bigger change is proposed to the way ICANN handles GAC “concerns” about an application.
This is GAC code for a non-consensus objection, where one or more governments has a problem with an application but the GAC as a whole cannot agree to object.
This is the objection mechanism that will very likely capture applications for gTLDs such as .gay, but it could basically cover any string for any reason.
Using the Guidebook’s current wording, there would be no presumption that this kind of application should be rejected. It would be in ICANN’s discretion to initiate a Bylaws consultation.
But the GAC wants something that sounds rather a lot like a Bylaws consultation made mandatory.
“The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns,” it says. “The ICANN Board is also expected to provide a rationale for its decision.”
This basically means that an application for .gay that was objected to by just two or three governments would have to undergo the pretty much the same level of scrutiny as .xxx did.
The political pressure on ICANN to kill the application would be much more intense than it would under the Guidebook’s current rules.
Here’s a table of the GAC’s proposed changes.
[table id=2 /]
In summary, the GAC wants to give more weight to fringe objections and to make the whole process potentially much more confusing for applicants.
I can’t see ICANN sensibly adding the GAC’s text to the Guidebook without at the very least some edits for clarity.