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ICANN loses another IRP — .sport gTLD fight reopens as panel finds “apparent bias”

Kevin Murphy, February 2, 2017, Domain Registries

The future of the .sport gTLD was cast into turmoil this week after an independent panel ruled that there was “apparent bias” in the decision that awarded the string to a group linked to the Olympics.

The new Independent Review Panel ruling found that ICANN broke its own bylaws by refusing to allow Famous Four Media to appeal a 2013 decision that essentially awarded .sport to rival bidder SportAccord.

FFM claims the expert panelist tasked with deciding SportAccord’s Community Objection had undisclosed conflicts of interest that made him much more likely to rule in favor of SportAccord, which is backed by the International Olympic Committee, than FFM, which is a purely commercial operator.

And the IRP panel did not disagree, ruling this week that ICANN should have taken FFM’s claims into account before rejecting its requests for an appeal in 2014.

The ruling means that ICANN may be forced to throw out the Community Objection decision from 2013 and order it to be re-tried with a new expert, potentially allowing FFM back into the .sport contest.

As usual with IRP cases, the ruling is a complex and very dry read, involving multiple layers of objections, appeals, panels and experts.

FFM and SportAccord were the only two applicants for .sport in the 2012 application round.

SportAccord, which has the backing of dozens of sporting organizations in addition to the IOC, claims to represent pretty much all organized sport and wants to run .sport with restrictions on who can register.

FFM, conversely, wants to keep it open to everyone with a passing interest in sport.

In an attempt to kick FFM out of the contest without a potentially expensive auction, SportAccord filed, and then won, a Community Objection in 2013.

To win, it had to prove that the interests of the sport community would be harmed if FFM got to run it. The objection expert panelist, Guido Tawil, came down on SportAccord’s side.

FFM naturally enough disagreed with his conclusion, and vowed to fight to overturn it.

The registry later discovered that Tawil had undisclosed ties to the IOC, which it said should have disqualified him from acting as an independent expert.

First, Tawil attended a conference of the International Bar Association in Rio de Janeiro in 2011 called “Olympic‐Size Investments: Business Opportunities and Legal Framework”, where he co‐chaired a panel entitled “The quest for optimising the dispute resolution process in major sport‐hosting events”.

Second, the law firm he works for, Argentina-based M & M Bomchil, counts DirecTV among its key clients and at the time of the Community Objection DirecTV was negotiating with the IOC for Latin America broadcasting rights for the Sochi 2014 and Rio 2016 Olympics, rights it subsequently obtained.

Third, a partner in Tawil’s law firm is president of Torneos y Competencias, a sports broadcaster with ties to DirecTV.

FFM has claimed: “Guido Tawil’s own legal practice and business is built around a company for whom IOC broadcasting rights are a core aspect of its business.”

While FFM filed two Requests for Reconsideration with ICANN in late 2013 and early 2014, raising the possibility of conflicts of interest and demanding ICANN have Tawil’s ruling thrown out, both were rejected by ICANN’s Board Governance Committee.

It also took its claims to the ICANN Ombudsman, who drafted (but did not finalize) a finding that agreed with FFM that the Community Objection should be retried with a new expert.

The subsequent IRP filing challenged the two RfR decisions and, two years later, the IRP panel has now ruled:

the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents.

The panel also said that ICANN should have taken the Ombudsman’s draft report into account.

It declared:

that the action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles, Bylaws and/or the Applicant Guidebook.

The panel has ordered ICANN to pay FFM’s share of the $152,673 IRP costs.

ICANN’s board will now have to consider the IRP decision, and it seems very possible that a new Community Objection review might be ordered.

On the face of it, it looks like a big win for FFM.

That does not mean that SportAccord will not prevail in its objection for a second time, even with a different presiding expert, however.

One fact in its favor is that it now has three years’ worth of evidence of how Famous Four conducts its business — selling domains at super-cheap prices, some say at the expense of the cleanliness of its namespaces — with which to attempt to show the likelihood of harm.

What seems certain is that the .sport gTLD is not going to see the light of day any time soon.

Read the ruling as a PDF here.

Applicants call for new gTLD objections appeals process

Kevin Murphy, November 6, 2013, Domain Policy

Twelve new gTLD applicants, representing many dozens of applications, have called on ICANN to create an appeals process for when Community Objections have debatable outcomes.

Writing to ICANN and the International Chamber of Commerce this week, the applicants focus on the recent decision in the .sport case, which they said proves that ICC panelists don’t fully understand the Community Objection policy as laid out in ICANN’s Applicant Guidebook.

The letter points to five “glaring errors” in the “fatally flawed” .sport decision, in which Olympics-backed applicant SportAccord prevailed over Famous Four Media’s competing application.

The signatories — which include Radix, United TLD, Donuts, Famous Four, TLDH and others — say that the ICC panelist simply assumed SportAccord represented the “sport” community and failed to pinpoint any “likelihood of material detriment” that would be caused by Famous Four’s .sport going ahead.

It seems to me that the latter arguments are much more well-founded.

While the letter tries to pick holes in the panelist’s finding that SportAccord represents enough of the “sport” community to be able to win the objection, the arguments are pretty tenuous.

The applicants use an definition of “community” found elsewhere in the Guidebook, for example, to attempt to show that the panelist failed to follow the guidelines for establishing a community in a Community Objection.

The panelist’s actual ruling uses the definition of “community” from the relevant part of the Guidebook and seems to follow it fairly closely. The applicants make a poor job of questioning his logic.

However, on “detriment”, the letter seems to be on much firmer ground.

It argues that the panelist deliberately lowered the bar from “likelihood of material detriment” to “possibility of material detriment” in order to hand SportAccord a victory.

The letter states:

If the Expert’s current logic is followed, every application, including the Objector’s own application, creates “possible” damage. In this case, an allegation of material detriment against any application would be upheld because there is future “possible” damage.

It also makes reference to the fact that the panelist appears to in many cases have been weighing the Famous Four application against SportAccord’s, which was not his job.

It reads in part: “The Expert did not identify a single objectionable or lacking aspect in the application that creates a likelihood of material detriment.”

The applicants call on ICANN to immediately create an appeals mechanism for Community Objections, and to ensure that ICC panelists are given training before making any more decisions.

Here’s the full list of signatories: Radix, United TLD, DotClub Domains, Top Level Design, Donuts, Top Level Domain Holdings, Priver Nivel, Fegistry, Employ Media, Famous Four Media, Merchant Law Group, DotStrategy.

Famous Four vows to fight .sport objection loss

Kevin Murphy, October 31, 2013, Domain Registries

Famous Four Media has promised to pursue “all available legal avenues” after losing a Community Objection over the .sport gTLD to its Olympic-backed rival.

The portfolio applicant lost out to SportAccord in an October 23 decision by International Chamber of Commerce panelist Guido Santiago Tawil, meaning its .sport application should be rejected by ICANN.

But Famous Four says it’s not over yet. In a statement today, the company said:

Famous Four Media shall pursue rigorously all available legal avenues available to it to have the decision independently reviewed by ICANN and/or others as the case may be, and reversed.

The logical first step of such a threat would be a Reconsideration Request, a relatively cheap way to challenge an ICANN decision with a virtually zero chance of succeeding.

That could be followed by a demand for an Independent Review Panel procedure, which would take much longer and cost significantly more. When ICM Registry won an IRP, the bill ran to millions.

Or Famous Four could try its luck in the courtroom, which could be flustered by the fact that all new gTLD applicants had to sign fairly one-sided legal waivers when they applied.

So what’s the company so worked up about?

It’s lost the chance to run .sport, because the ICC panelist ruled that SportAccord, which is backed by the International Olympic Committee and dozens of official sporting associations, represents the “sport” community and would be harmed if Famous Four were to run the TLD.

Famous Four had argued in its defense that SportAccord can only purport to represent a “subset” of this community — its sporting organization members — rather than everyone who has an interest in sport.

Rather amusingly, in its statement today, FFM linked to the IOC’s own marketing, which bears the slogan “Sport Belongs to All”, to prove its point:

it is Famous Four Media’s unshakable belief that this statement is true and just and that is why Famous Four Media applied for an open TLD – a top level domain that is open to everyone and offered to everyone on a level and equitable basis. Trying to claim ownership and representation of sport is akin to claiming representation for the human race.

An alternative reading would be to state that the IOC’s marketing slogan is, like all marketing slogans, bullshit.

But it actually cuts to the heart of the case itself, which Guido Santiago Tawil found in favor of SportAccord, writing:

The ICANN Guidebook does not require that an “entire” community agree on an objection to an application. In fact, it would be almost impossible for an institution to represent any community as a whole. If such was the requirement, there would be no reason to provide for the possibility of community objections.

It is difficult to imagine which other association may claim representation of the Sport Community besides an institution that represents, as Objector does, more than a hundred well-known sports federations and institutions related to sports.

Another key, and related, factor Community Objection panelists have to consider is whether a community is “clearly delineated”.

It’s here where the arguments that an applicant can use to win a Legal Rights Objection seem to fail under Community Objection scrutiny.

Famous Four said that “sport” is not clearly delineated along the lines defined by SportAccord — ie, members of its federations — because it doesn’t allow, say, hobbyists or the media to get involved.

Similar arguments were made in LROs.

Applicants regularly defended themselves against LROs — where the objector owns a trademark rather than purporting to represent a community — by pointing out all the non-infringing uses of the string.

That defense apparently doesn’t work in Community Objections, with the .sport ICC panelist ruling:

The fact that the media (which may constitute a different community) or viewers are unable to be part of this association is irrelevant to consider Objector as a delineated community. Otherwise, no community could be recognized under the ICANN gTLD proceedings since it would be easy for any Applicant to find secondary or not closed-related members outside of it.

In its response to the ruling today, FFM called this a “non sequitur”, adding:

It is not difficult to conceive of communities which are exclusive, and in all cases these do not consist of generic words like “sport.” One example already given by other commentators might be “.yorkuniversity.”

Another key pivot point in the .sport decision is “detriment”.

Objectors have to prove the “likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted.”

The panelist in this case chose to interpret this as “future ‘possible’ damage”, which he said was quite a low bar.

His reasoning, in finding that detriment to SportAccord was likely, seems to hinge quite a bit on the fact that SportAccord has also applied for the same gTLD.

While seemingly discarding “hypothetical” arguments about cybersquatting and such in an open-registration .sport gTLD, he said he “shares Objector’s argument that all domain registrations in a community-based ‘.sport’ gTLD will assure sports acceptable use policies.”

That thinking only works, I think, if you also have a community-based .sport application on the table.

As FFM characterized it today: “What he is in effect saying is that the .SPORT gTLD should be delegated: just not to dot Sport Limited. This was not his decision to make.”

This week at the newdomains.org conference in Munich I spoke to several people who believe some of the highly contested, super-premium new gTLDs will take years to resolve.

It seems that .sport is going to be one of those.

Under the ICANN rules, FFM is supposed to withdrawn its application now. That’s clearly not going to happen.

Panel says .sport and .sports are confusingly similar

Kevin Murphy, August 22, 2013, Domain Registries

Olympics-backed new gTLD applicant SportAccord has won a String Confusion Objection against Donuts, with an arbitration panel finding that .sport and .sports are too similar to coexist.

It’s the second SCO case involving a plural to go against Donuts, after the shock .pet/.pets decision last week.

While the judgment is sure to fuel the debate about singular and plural gTLD coexistence, the strings in question in this case do have some unique characteristics.

As panelist M Scott Donahey noted, .sport is both singular and a collective noun, making it essentially a plural and synonymous with .sports.

The sentences “I like sports” and “I like sport” both make sense and mean the same thing. The same could not be said for, for example, “I like car” or “I like pet”.

Donahey was also persuaded by the argument that because “sport” is also a French word meaning the same thing, the fact that “sports” and “sport” are pronounced the same in French means the two strings confusingly similar aurally. He wrote:

The convergence of all these similarities, the fact that the words look very similar in English and sound the same in French, and that the words can be used interchangeably as nouns in English to indicate the panorama of sporting activities, and that the words are interchangeable when used as adjectives in English, all lead the Expert to conclude that it is probable that confusion will arise in the mind of the average, reasonable internet user.

The panelist had access to the rulings in the .pets v .pet case (cited by SportAccord) and the .car v cars case (which went the other way and was cited by Donuts).

Donahey’s ruling is notable also because of what he explicitly declined to consider, namely: the possible harms that could be created by string confusion. He wrote:

Objector’s many references to possible fraud, deceit, cybersquatting or other types of abuse through the use of the gTLD proposed by Applicant are in the nature of a legal rights objection, and mere speculation, and are unworthy of any consideration by an Expert in a string confusion analysis.

In other words, he focused just on the visual, aural and semantic similarity of the two strings. It’s going to be hard for anyone to argue that he overstepped the bounds of an SCO, which has happened following other decisions.

All in all it seems like a pretty sensible decision (pdf). It’s hard to fault Donahey’s logic.

(As an aside, I’ve started to notice that the SCO decisions with the soundest reasoning seem to be coming from panelists, such as Donahey, with extensive experience adjudicating UDRP complaints).

If the ruling stands — that is, if ICANN does not reopen the plurals/singulars policy debate — Donuts’ application for .sports will be forced into a contention set with the two applications for .sport.

Who’s objecting to .sport, .health, .kids and more

Kevin Murphy, August 2, 2012, Domain Registries

Today, the number of comments filed with ICANN on new gTLD applications surpassed the number of applications themselves, and we’re now starting to see more significant objections.

At the time of writing, 1,939 comments have been filed on 584 applications by 834 unique individuals and organizations.

Here are some recent comments from notable organizations.

Save the Children

The international charitable non-governmental organization Save the Children has expressed concerns about all four .health applications.

Here’s a snippet:

The health Internet is a vital means of health information access worldwide. Thus, “.health” and health related top level domains should be trusted and reliable resources which take the public interest into account and are based on broad-based, multi-stakeholder consensus. In this regard, it is particularly worrying that the current applicants intend to sell the “.health” gTLD on a ‘first-come, first-served’, wholesale and auction basis, placing private interests ahead of the public interest.

We urge ICANN to postpone the assignment of “.health” until such time as following broad-based consultation of the health community, including the public and private sectors, adequate baseline conditions for their operation are elaborated and their implementation and observance is ensured.

The same comment was filed by International Medical Informatics Association, indicating an orchestrated campaign is underway.

All were filed as Community Objection Grounds, suggesting that .health could run into objection delays down the road.

But Save the Children, which has better things to do with its money, may not necessarily object itself. I’d say .health is a prime candidate for a community-based intervention by the Independent Objector.

I’m also expecting the Governmental Advisory Committee to take a healthy interest in these applications.

International Olympic Committee

The International Olympic Committee has, as expected, thrown its support behind the .sport application filed by SportAccord, which already has strong ties with the Olympic movement.

There are only two applications for .sport (though Donuts is going for .sports) and while SportAccord’s is a community-based bid, a successful Community Priority Evaluation is by no means assured.

However, if the IOC is half as belligerent about .sport as it has been about the new gTLD program in general then I expect Famous Four Media, the other .sport applicant, has a fight on its hands.

Notably, the IOC invokes ICANN’s new IANA contract to back up its claim that SportAccord should be the rightful owner of .sport:

new IANA contractual requirements require ICANN in connection with new gTLDs to document “how the process provided the opportunity for input from relevant stakeholders and was supportive of the global public interest. “ Therefore, SportAccord is the only applicant for the .SPORT gTLD which can serve the global public interest in connection with the operation of the gTLD on behalf of the global sports community.

Lego Juris

Lego Juris, the extremely brand-conscious producer of overpriced kids’ building blocks, has filed complaints about 80 applications, all of which appear to be the same form letter.

As you might imagine from the most prolific filer of UDRP complaints in history, Lego’s primary concern is cybersquatting and preventing the need for defensive registrations.

Here’s Lego’s comment:

While we of course support enhanced fair competition, we call on the evaluators to ensure the maintenance of a clean Internet space by impressing on the new registries the importance of not accepting second level names within their gTLDs that may be confusingly similar to our trade marks, especially from applicants believed to be registering in bad faith.

To avoid consumer confusion and the wasted resources of needless dispute resolution procedures, legal actions and defensive registrations (none of which benefit consumers), as well as proving to the entire community that the registries do wish to act in good faith in a clean space, we request that new registries develop “blocked” lists of brand names that should not be registered absent evidence of good faith. Such lists could take the form of “white lists” at the second level that could only be lifted if requested by and for the brand owner.

This comment was filed against .kids, .group, .inc, .gmbh, .discount, .deals, .direct and many, many more.

All of these comments, incidentally, are logged in the DI PRO new gTLD application database.

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