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Donuts backs away from .spa fight

Kevin Murphy, November 26, 2018, Domain Registries

Donuts has finally admitted defeat in its long-running fight to run the .spa gTLD, withdrawing its application and leaving rival Asia Spa and Wellness Promotion Council the victor.

ASWPC, run from Hong Kong by .asia’s Edmon Chung, has now entered into contracting with ICANN.

The company had won a Community Priority Evaluation back in 2015, with a passing score of 14 out of 16, which Donuts has been challenging ever since.

Donuts and ICANN were in a so-called Cooperative Engagement Process, a form of informal arbitration designed to stave off a more expensive Independent Review Process fight, from January 2016 until this month.

This meant ASWPC has been sitting twiddling its thumbs, unable to sign its contract or launch its TLD, for the better part of three years.

It’s not clear why Donuts decided not to go to a full-blown IRP. The company declined to comment for this article.

As a community applicant, the company had the backing of hundreds of spas worldwide.

It also had the backing of the Belgian government, which was important because spas are (little-known fact alert!) named after the tiny Belgian town of Spa.

It is believed that ASWPC promised up to 25% of its profits to Spa in order to gain this backing, but only from domains registered by Belgian, Dutch, Luxembourgish, French or German registrants.

ICANN snubs Belgium, gives Donuts the all-clear for .spa

ICANN has rejected demands by the Belgian government by giving Donuts the go-ahead to proceed with its application for .spa, which Belgium says infringes on a geographic name.

Noting that the Governmental Advisory Committee had submitted no consensus advice that Donuts .spa bid should be rejected, the ICANN board’s New gTLD Program Committee said last week “the applications will proceed through the normal process.”

That means the two-way contention set is presumably going to auction.

The English dictionary word “spa” derives from Spa, a small Belgian town with some springs.

The other applicant is Asia Spa and Wellness Promotion Council, which has made a deal with Spa to donate some of its profits to local projects and give the city some control over the registry.

Donuts refused to sign a similar deal, leading to Belgium last month asking ICANN to delegate the gTLD to ASWPC and not Donuts.

The GAC’s last word on .spa was this, from the recent Singapore meeting:

Regarding the applications for .spa, the GAC understands that the relevant parties in these discussions are the city of Spa and the applicants. The GAC has finalised its consideration of the .spa string and welcomes the report that an agreement has been reached between the city of Spa and one of the applicants.

There’s no ICANN fudging here; if the GAC wanted to issue a consensus objection it could have.

The question is: why didn’t it?

Why does the string “amazon”, which does not exactly match the name of a place in its local languages, qualify for a GAC objection, while “spa”, which exactly matches the name of a city, does not?

Belgium comes out against Donuts’ .spa bid

Kevin Murphy, April 15, 2014, Domain Policy

Belgium wants Donuts’ application for .spa rejected after the new gTLD applicant declined to sign a deal with the city of Spa.

In a March 20 letter to ICANN, published today, the Belgian deputy prime minister Johan Vande Lanotte said “negotiations between the stakeholders are closed”, adding that Belgium:

requests the Board of Directors of the ICANN to delegate the new “.spa” gTLD to the candidate who has a formal agreement with the local authorities of Spa and in respect of the public interest.

That’s the other applicant in the two-horse .spa race, Asia Spa and Wellness Promotion Council, which has promised to earmark up to 25% of its European profits to spa-related uses in the environs of Spa.

The letter was sent a week before the Governmental Advisory Committee issued its Singapore communique, which noncommittally noted that it “welcomes” the agreement between Spa and ASWPC.

ICANN may or may not be currently in receipt of firm, consensus GAC advice to accept or reject either of the remaining .spa applications.

In Beijing a year ago, the GAC put .spa on a list of gTLD strings where “further GAC consideration may be warranted” and asked ICANN to “not proceed beyond Initial Evaluation”.

At the Durban and Buenos Aires meetings last year the GAC said ICANN should not “proceed beyond initial evaluation until the agreements between the relevant parties are reached.”

Given that Donuts and Spa evidently cannot come to an agreement, ICANN presumably remains advised to keep one or both .spa applications on hold. The advice is pretty vague.

The string “spa” is not a geographic name within the rules of the new gTLD program. Donuts argues that it’s too generic nowadays to belong just to Spa.

Donuts plays the genericide card in showdown with Belgian government over .spa

Kevin Murphy, March 19, 2014, Domain Policy

Donuts has asked ICANN to approved its .spa new gTLD application over the objections of the Belgian government, saying the town of Spa no longer has exclusive rights to the string.

As we reported at the weekend, Spa is asking Donuts and rival applicant Asia Spa and Wellness Promotion Council for an up to 25% cut of profits from .spa, as well as the right to help manage the TLD at the registry’s expense.

ASWPC has agreed to these terms, but Donuts has not. It says it offered Spa extra protections for sensitive names, but does not want to hand over any managerial control or profit.

Yesterday, Donuts wrote to ICANN (pdf) to say that “spa” is now so generic that no interest would be served by ICANN enforcing the city’s demands. Here’s the meat of it:

While the City of Spa maintains a historical link to the word “spa”, that word long ago evolved as a globally recognized generic term by people who have never even heard of the city of its origin. The public interest served by making that term available to a global community of spa users far outweighs any risk of confusion with the city of the same name. And for those names that may cause confusion, Donuts has provided a rigorous series of additional protections and controls.

The City of Spa gave the word “spa” to the world many centuries ago, and the world has done a great deal with it. Just as attorneys for the City of Spa don’t fly around the world handing cease-­and-desist notices to resort operators and hot-­tub manufacturers, we do not believe it is appropriate for them to overrun ICANN procedure to try to exert control over how that term is used in the Internet’s global addressing system.

I’m going to raise my hand to say that I’d never heard of Spa before this particular controversy arose, and I expect that goes for most of the people reading this article. Donuts surely has a point.

But that’s not to say Spa doesn’t have a point too. There are plenty of governments that managed to squeeze concessions out of applicants for gTLDs matching place names in their territories, with little complaint from applicants; it’s just that the line was drawn at capital cities, something which Spa is not.

Donuts urges ICANN to give no weight to the Spa-ASWPC deal and to move both applications forward to the next stage of the process — contention resolution.

We may see some progress at the ICANN meeting in Singapore next week, when ICANN will surely press the Governmental Advisory Committee for further advice on this string.

Belgians do want a piece of Donuts’ new gTLD action

Kevin Murphy, March 16, 2014, Domain Policy

The Belgian government is blocking approval of Donuts’ bid for the new gTLD .spa until the company agrees to hand over up to 25% of its .spa profits to the community of the city of Spa.

It emerged in a letter from Spa published by ICANN this weekend that the city is also demanding a role in managing the TLD at the registry operator’s expense.

The gTLD has been applied for by Donuts and the Asia Spa and Wellness Promotion Council.

Not only does the string .spa match the name of the city, but also the English dictionary word “spa” is actually named after Spa, which has been known for centuries for its “healing” springs.

Despite this, Spa is not a capital city — it has roughly 10,000 inhabitants — so it does not qualify as a protected geographic string under the rules of ICANN’s new gTLD program.

Spa nevertheless wants a role in the TLD’s management, in order to protect the interests of itself and its local community, and wants some of the profits to benefit its local businesses.

According to the letter (pdf) from Spa outside attorney Phillippe Laurent, ASWPC has already signed a memorandum of understanding with the city. That MoU, published with the letter, states:

The turnover generated by the exploitation of the .SPA registry will be used in priority to defray reasonable out-of-pocket expenses incurred by the City as a result of its participation in the SPARC or any other of its activity related to the management and governance of the .SPA extension.

Additionally, 25% of the net profit generated by the domain names registered in the .SPA registry by any Belgian, Dutch, Luxembourgish, French or German person or entity will be earmarks to be contributed towards Internet and spa & wellness activities development in and for the City of Spa and its region, especially as related to the scope of the “.SPA” TLD, to be directed by the City of Spa.

The deal would also see ASWPC reserve 200 .spa domain names (included potential premiums such as poker.spa and golf.spa) for the city to do with as it pleases.

Donuts has refused to sign the MoU, saying it’s inconsistent with the Applicant Guidebook and sets a “bad precedent”. Spa has therefore refused to endorse its application.

The city has its national government on its side. In the April 2013 Beijing communique of the ICANN Governmental Advisory Committee, the GAC listed .spa as one of several bids needing “further consideration”.

This was reiterated in its Durban and Buenos communiques, with the GAC noting that “discussions” between “relevant parties” were “ongoing”.

Essentially, the GAC is delaying .spa from approval while Spa tries to get Donuts to agree to hand over part of its of .spa profits.

There was a somewhat testy exchange at the Buenos Aires meeting in November, after an ICANN director asked the GAC if it was appropriate for a governmental entity to try to get a financial benefit from an applicant.

The Belgian GAC representative responded later that “no money will flow to the city of Spa”, conceding that “a very small part of the profits of the registry will go to the community served by .spa”.

That now seems to be not entirely accurate.

The MoU sees Spa getting reimbursed for its self-imposed cost of inserting itself into the management of the registry, so some money will flow to it. But it will presumably be revenue-neutral to the city.

The issue of the 25% profit cut is a bit ambiguous though.

While the money would not flow directly into city coffers, the city would get the ability to direct how it was spent. Presumably, it could be spent on projects that Spa locals would otherwise look to the city to pay for.

With Donuts and Spa apparently at an impasse, ICANN recently told the GAC that it won’t sign contracts with either applicant, yet, but that it wants “a timeline for final consideration of the string”.

It also wants the GAC to “identify the ‘interested parties’ noted in the GAC advice.”

With Laurent’s letter and the MoU seemingly spelling out exactly what Spa wants and why, perhaps ICANN can move the issue closer to resolution at the Singapore meeting next week.

Is it a shakedown? Is it appropriate behavior for the GAC to hold an application hostage while it tries to obtain financial benefit for its local businesses? Or is Donuts unreasonably trying to exploit a city’s centuries-old cultural heritage for its own economic gain?

ICANN puts .islam and other gTLD bids in limbo

Kevin Murphy, February 8, 2014, Domain Policy

Or should that be Barzakh?

Rather than making the tricky decision on whether to approve .islam and .halal new gTLD applications, ICANN seems to have place both bids into permanent limbo.

It’s also put off calls on applications for .spa, .amazon, .wine and .vin, due to objections from the Governmental Advisory Committee.

On .islam and .halal, ICANN chair Steve Crocker wrote to Turkish applicant Asia Green IT System to say that the New gTLD Program Committee will not address the bids until AGIT has worked out its differences with the Organization for Islamic Cooperation.

He noted that AGIT has expressed a willingness in the past to work with the OIC, but that the OIC has formally decided to object to the two applications. Crocker wrote:

There seems to be a conflict between the commitments made in your letters and the concerns raised in letters to ICANN urging ICANN not to delegate the strings. Given these circumstances, the NGPC will not address the applications further until such time as the noted conflicts have been resolved.

This is not a formal rejection of the applications, but ICANN seems to have placed them in a limbo that will only be resolved when AGIT withdraws from the program or secures OIC support.

There’s also delaying treatment for .wine and .vin, which have become the subject of a raging row between Europe on the one hand and the US, Canada and Australia on the other.

Europe wants these two wine-related gTLDs to be subject to strict rules on who can register domains containing geographic indicators, such as “Champagne”. The others don’t.

ICANN in response has commissioned a third-party study on GIs, which it expects to be able to consider at its Singapore public meeting next month. Again, a decision has been avoided.

The two applicants for .spa don’t have any closure either.

Spa is the name of a town in Belgium, whereas the two applicants — Donuts and Asia Spa and Wellness Promotion Council — intend to use the string in its English dictionary sense.

There was a bit of a scandal during the Buenos Aires meeting last November when it was suggested that Belgium was using its position on the GAC to shake down the applicants for money.

Belgium denied this, saying the city of Spa didn’t stand to gain financially from the deals that it was trying to make with applicants. Some money would go to “the community served by .spa”, Belgium said, without elaboration.

ICANN has now decided to put .spa on hold, but wants to know more about these talks:

ICANN will not enter into registry agreements with applicants for the identified string at this time. The NGPC notes concern about concluding the discussions with the applicants and will request the GAC to (1) provide a timeline for final consideration of the string, and (2) identify the “interested parties” noted in the GAC advice.

Finally, ICANN has yet again delayed making a call on Amazon’s application for .amazon — until at least Singapore — out of an abundance of legal caution.

The GAC recommended that ICANN should reject .amazon because a few Latin American states claim ownership of the string due to it being the same as the Amazon region they share.

Amazon and others claim that it would be in violation of international law that prevents governments interfering with the use of trademarks for the GAC to block .amazon.

ICANN’s NGPC said:

ICANN has commissioned an independent, third-party expert to provide additional analysis on the specific issues of application of law at issue, which may focus on legal norms or treaty conventions relied on by Amazon or governments. The analysis is expected to be completed in time for the ICANN Singapore meeting so that the NGPC can consider it in Singapore.

In my view, the .amazon issue is the one most likely to bring a lawsuit to ICANN’s doorstep, so the organization clearly wants to get its legal position straight before making a call one way or the other.

All these decisions were made on Wednesday. You can read the NGPC’s resolution here and the important details here.

GACmail? Belgium denies .spa gTLD shakedown

Kevin Murphy, November 19, 2013, Domain Registries

The Belgian government has denied claims that the city of Spa tried to shake down new gTLD applicants for money in exchange for not objecting to their .spa applications.

The Belgian Governmental Advisory Committee representative said this afternoon that Belgium was “extremely unhappy” that the “disrespectful allusions” got an airing during a meeting with the ICANN board.

He was responding directly to a question asked during a Sunday session by ICANN director Chris Disspain, who, to be fair, didn’t name either the government or the gTLD. He had said:

I understand there is at least one application, possibly more, where a government or part a government is negotiating with the applicant in respect to receive a financial benefit from the applicant. I’m concerned about that and I wondered if the GAC had a view as to whether such matters were appropriate.

While nobody would talk on the record, asking around the ICANN 48 meeting here in Buenos Aires it became clear that Disspain was referring to Belgium and .spa.

It was not clear whether he was referring to Donuts or to Asia Spa and Wellness Promotion Council, which have both applied for the string.

The string “spa” was not protected by ICANN’s rules on geographic names, but the GAC in April advised ICANN not to approve the applications until governments had more time to reach a decision.

My inference from Disspain’s question was that Belgium was planning to press for a GAC objection to .spa unless its city got paid, which could be perceived as an abuse of power.

Nobody from the GAC answered the question on Sunday, but Belgium today denied that anything inappropriate was going on, saying Disspain’s assertion was “factually incorrect”.

There is a contract between Spa and an applicant, he confirmed, but he said that “no money will flow to the city of Spa”.

“A very small part of the profits of the registry will go to the community served by .spa,” he said.

This side-deal does not appear to be a public document, but the Belgian rep said that it has been circulated to GAC members for transparency purposes.

There are several applicants whose strings appeared on ICANN’s protected geo names list that have been required to get letters of non-objection from various countries.

Tata Group, for example, needed permission from Morocco for .tata, while TUI had to go to Burkina Faso for .tui. Both are the names of provinces in those countries.

It’s not publicly known how these letters of non-objection were obtained, and whether any financial benefit accrued to the government as a result.

.love dies as applicants pull five more new gTLD bids

Jewelry maker Richemont is the latest new gTLD applicant to withdraw one of its bids, yanking its application for .love.

The proposed gTLD was one of 14 single-registrant namespaces applied for by the company, and also the most heavily contested, with six other applicants competing.

Google, Donuts, TLDH and Uniregistry are also bidding. The string will almost certainly go to auction and may fetch a high price.

Richemont was the only applicant for .love as a “closed generic”, but the string was not among those listed in the Governmental Advisory Committee’s advice in the Beijing communique.

According to its application, Love is also a brand of bracelet produced by its Cartier jewelry business.

It’s the first application Richemont has withdrawn.

The New gTLD Application Tracker has also been updated today to reflect the withdrawals of .spa, .zulu, .free and .sale by Top Level Domain Holdings, which were announced last week but which ICANN has only just finished processing.

TLDH applies for 92 gTLDs, 68 for itself

Top Level Domain Holdings is involved in a grand total of 92 new generic top-level domain applications, many of them already known to be contested.

Sixty-eight applications are being filed on its own behalf, six have been submitted via joint ventures, and 18 more have been submitted on behalf of Minds + Machines clients.

Here’s the list of its own applications:

.abogado (Spanish for .lawyer), .app, .art, .baby, .beauty, .beer, .blog, .book, .casa (Spanish for .home), .cloud, .cooking, .country, .coupon, .cpa, .cricket, .data, .dds, .deals, .design, .dog, .eco, .fashion, .fishing, .fit, .flowers, .free, .garden, .gay, .green, .guide, .home, .horse, .hotel, .immo, .inc, .latino, .law, .lawyer, .llc, .love, .luxe, .pizza, .property, .realestate, .restaurant, .review, .rodeo, .roma, .sale, .school, .science, .site, .soccer, .spa, .store, .style, .surf, .tech, .video, .vip, .vodka, .website, .wedding, .work, .yoga, .zulu, 网址 (.site in Chinese), 购物 (.shopping in Chinese).

There’s a lot to note in that list.

First, it’s interesting to see that TLDH is hedging its bets on the environmental front, applying for both .eco (which we’ve known about for years) and .green.

This puts it into contention with the longstanding Neustar-backed DotGreen bid, and possibly others we don’t yet know about, which should make for some interesting negotiations.

Also, both of TLDH’s previously announced Indian city gTLDs, .mumbai and .bangaluru, seem to have fallen through, as suspected.

Other contention sets TLDH is now confirmed to be involved in include: .blog, .site, .immo, .hotel, .home, .casa, .love, .law, .cloud, .baby, .art, .gay, .style and .store.

The company said in a statement:

During the next six months, TLDH will focus its efforts on marketing and operations for geographic names such as dot London and dot Bayern where it has the exclusive support of the relevant governing authority, as well as any other gTLDs that TLDH has filed for that are confirmed to be uncontested on the Reveal Date. Discussions with other applicants regarding contested names will be handled on a case-by-case basis.