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Google abandons its .kid gTLD bid

Kevin Murphy, October 10, 2018, Domain Registries

Google has retreated from the interminable three-way battle for the .kids/.kid gTLDs.

The company this week withdrew its application for .kid, leaving the fight for .kids a two-horse race between Amazon and the not-for-profit DotKids Foundation.

Google’s application was intertwined with the two .kids applications due to a String Confusion Objection, which it won, drawing its bid into contention with DotKids and Amazon.

The contention set was, and arguably still is, due to be settled by an ICANN last-resort auction, but has been repeatedly postponed due to appeals to ICANN by DotKids, which doesn’t think it has the financial clout to beat its rivals.

Most recently, the auction was put on ice again after DotKids asked for ICANN money, then filed a Request for Reconsideration when ICANN refused.

Google’s .kid application had proposed an area for “kid-friendly content”. Registrants would have been vetted in advance of their domains going live to ensure they were established providers of such content.

Plural gTLDs to be banned over confusion concerns

Kevin Murphy, July 10, 2018, Domain Policy

Singular and plural versions of the same word are likely to be banned as coexisting gTLDs in future.

The ICANN community working group looking at rules for subsequent application rounds reckons having both versions of the same word online — something that is happening with more than 30 gTLDs currently — leads to “consumer confusion” and should not be permitted.

It’s one of the surprisingly few firm recommendations in the Initial Report on the New gTLD Subsequent Procedures Policy Development Process, which says:

If there is an application for the singular version of a word and an application for a plural version of the same word in the same language during the same application window, these applications would be placed in a contention set, because they are confusingly similar. An application for a single/plural variation of an existing TLD would not be permitted.

It adds that the mere addition of an S should not be disqualifying; .news would not be considered the plural of .new, for example.

Interestingly, the recommendation is based on advice received from existing registries, many of which fought for singular/plural coexistence during the 2012 round and already operate many such string pairs.

According to my database, these are the 15 plural/singular English string pairs (there are more if you include other languages) currently live in the DNS root:

.careers/.career
.photo/.photos
.work/.works
.cruise/.cruises
.review/.reviews
.accountant/.accountants
.loan/.loans
.auto/.autos
.deal/.deals
.gift/.gifts
.fan/.fans
.market/.markets
.car/.cars
.coupon/.coupons
.game/.games

Some of them are being managed by the same registries; others by competitors.

It’s tempting to wonder whether the newfound consensus that these pairs are confusing represents an attempt by 2012-round registries to slam the door behind them, if for no other reason than to avoid chancers trying to extort money from them by applying for plural or singular versions of other strings they currently manage.

But at an ICANN policy level, the plurals issue was indeed a gaping hole in the 2012 round.

All such clashes were resolved by String Confusion Objections, but only if one of the applicants chose to file such an objection.

These rulings mostly came down on the side of coexistence, but sometimes did not — .kid, .pet and .web were among those placed in direct contention with plural equivalents following aberrant SCO decisions.

Porn firm wins .cam after years of objections

Kevin Murphy, December 18, 2015, Domain Registries

The controversial new gTLD .cam has been won at auction by Dutch porn site operator AC Webconnecting, putting an end to over two years of back-and-forth objections.

Rival applicants Rightside and Famous Four Media both withdrew their applications earlier this week.

The contest for .cam was marked by several objections and appeals.

In 2013, Verisign filed and lost String Confusion Objections against AC Webconnecting and Famous Four, but won its near-identical objection against Rightside.

Verisign had claimed that .cam and .com are so similar-looking that confusion among internet users is bound to arise.

Because the SCO panels in the three cases returned differing opinions, Rightside was one of two applicants given the right to appeal by ICANN in October 2014.

I never quite understood why Verisign wasn’t also given the right to appeal.

Rightside won the right to stay in the .cam contention set almost a year later.

Despite all that effort, it did not prevail in the resulting auction.

Separately, back in 2013, AC Webconnecting filed and lost Legal Rights Objections against its two rivals, based on a “.cam” trademark it acquired purely for the purpose of fighting off new gTLD competitors.

I’d be lying if I said I knew a lot about the soon-to-be registry.

Based in Rotterdam, its web site comes across as a wholly safe-for-work web design firm.

However, it seems to be mainly in the business of operating scores, if not hundreds, of webcam-based porn sites.

Its application for .cam states that it will be for everyone with an interest in photography, however.

When it goes live, its most direct competitor is likely to be Famous Four’s .webcam, which already has an 18-month and 70,000-domain head start.

It remains to be seen whether its clear similarity to .com will in fact cause significant confusion.

.shop among four gTLDs heading to auction

Kevin Murphy, October 30, 2015, Domain Registries

The new gTLDs .shop, .shopping, .cam and .phone are all set to go to auction after their various delays and objections were cleared up.

It seems that .shop and .shopping contention sets remain merged, so only one string from one applicant will emerge victorious.

That’s due to a completely mad String Confusion Objection decision that ruled the two words are too confusingly similar to coexist in the DNS.

That SCO ruling was made by the same guy who held up both sets of applications when he ruled that .shop and .通販 (“.onlineshopping”) were also too confusingly similar.

The two rulings combined linked the contention sets for all three strings.

.通販 applicant Amazon appealed its SCO loss using a special process that ICANN created especially for the occasion, and won.

But .shop and .shopping applicants were not given the same right to appeal, meaning the auction will take place between nine .shop applicants and .shopping applicants Uniregistry and Donuts.

Donuts is an applicant for .shop and .shopping, meaning it will have to make its mind up which string it prefers, if it intends to win the auction.

If it’s a private auction, Donuts would presumably qualify for a share of its own winning bid. Weird.

(UPDATE: That was incorrect).

The other contention set held up by an inconsistent SCO decision was .cam, which was originally ruled too similar to .com.

Rightside won its appeal too, meaning it will be fought at auction between Famous Four, Rightside and AC Webconnecting.

.phone had been held up for different reasons.

It’s a two-way fight between Donuts and Dish DBS, a TV company that wanted to run .phone as a closed generic. Like almost all closed generic applicants, Dish has since changed its plans.

ICANN win leaves door open for plural gTLD rethink

Kevin Murphy, October 12, 2015, Domain Policy

ICANN has fought off an appeal by .webs gTLD applicant Vistaprint, in a case that considered the coexistence of singular and plural gTLDs.

While ICANN definitively won the Independent Review Process case, the IRP panel nevertheless invited its board of directors to consider whether Vistaprint should be given a chance to appeal a decision that ruled .webs too similar to .web.

Vistaprint runs a web site building service called Webs.com. It filed two applications for .webs — one “community” flavored, one vanilla — but then found itself on the losing end of a String Confusion Objection filed by rival Web.com, one of the many .web applicants.

It was one of the few instances where a SCO panel decided that a plural string was too confusingly similar to its singular for the two to coexist.

In many other cases, such as .auto(s), .fan(s) and .gift(s), the two strings have been allowed to be delegated.

Not wanting to have to fight for .webs at auction against eight .web applicants — which would likely cost eight figures to win — Vistaprint filed a Request for Reconsideration (which failed), followed by an last-ditch IRP complaint.

But its three-person IRP panel ruled on Friday (pdf) that ICANN did not violate its bylaws by accepting the SCO decision and subsequently rejecting the RfR.

However, the panel handed Vistaprint a silver lining that may eventually give the company what it wants. Even though ICANN won, Vistaprint may not necessarily have lost.

The panel wrote:

the Panel recommends that ICANN’s Board exercise its judgment on the question of whether an additional review mechanism is appropriate to re-evaluate the Third Expert’s determination in the Vistaprint SCO, in view of ICANN’s Bylaws concerning core values and non-discriminatory treatment, and based on the particular circumstances and developments noted in this Declaration, including (i) the Vistaprint SCO determination involving Vistaprint’s .WEBS applications, (ii) the Board’s (and NGPC’s) resolutions on singular and plural gTLDs, and (iii) the Board’s decisions to delegate numerous other singular/plural versions of the same gTLD strings.

In other words, ICANN has been invited to consider whether Vistaprint should be able to appeal, using a similar mechanism perhaps to that which was offered to other applicants that suffered from inconsistent, adverse SCO decisions.

At time when ICANN’s accountability is under international scrutiny, it’s highly likely that the board will give this recommendation some thought.

The IRP declaration does not reflect well on ICANN’s current level of accountability.

As usual, ICANN tried to wriggle out of accountability by attempting to castrate the panel from the outset, arguing again that IRP panels must be “deferential” to the board — that is, assume that its actions were correct by default — and that its declarations are “advisory” rather than “binding”.

And, as usual, the panel disagreed, saying previous IRP cases show this is now “settled” law. It said that it would evaluate the case “objectively and independently”, not deferentially.

But while it said its declaration was binding “in the sense that ICANN’s Board cannot overrule the Panel’s declaration” it agreed with ICANN that it only had the power to “recommend”, rather than order, remedies.

Acknowledging Vistaprint raised important public interest questions, the panel ordered ICANN to pay 40% of IRP costs.

The Vistaprint IRP was one of the things holding up the .web contention set, so Friday’s declaration moves the fabled gTLD one step closer to reality.

If the company gets the ability to appeal its SCO loss, it would add months to the .web runway. If it does not, it will have to remain in the .web contention set, which would head to auction.

.cam given the nod as Rightside wins confusion appeal

Kevin Murphy, September 4, 2015, Domain Registries

Rightside’s application for .cam will be un-rejected after the company beat Verisign in an appeal against a 2013 String Confusion Objection decision.

That’s right, .cam is officially no longer too confusingly similar to .com.

In a just-published August 26 decision (pdf) a three-person International Centre for Dispute Resolution panel overruled the original SCO panelist’s decision.

The new panel wrote:

Based on the average, reasonable Internet’s user’s experience, and the importance of search engines, in the [Final Review Panel]’s view, confusion, if any, between .COM and .CAM is highly likely to be fleeting. While a fleeting association may create some “possibility of confusion” or evoke an “association in the sense that the string brings another string to mind,” both such reactions are insufficient under the ICANN SCO standard to support a finding that confusion is probable.

It’s not quite as clear-cut a ruling as the .shop versus .通販 ruling last week, relying on the appeals panel essentially just disagreeing with some of the finer points of the original panel’s interpretation of the evidence.

Relating to one piece of evidence, the appeals panel found that the original panelist “improperly shifted the burden of proof” to Rightside to show that .cam was intended for camera-related uses.

Rightside was one of two applicants given the opportunity to appeal its SCO decision by ICANN last year, largely because two other .cam applicants managed to pass their Verisign objections with flying colors, creating obvious inconsistency.

Taryn Naidu, Rightside’s CEO, said in a statement:

We always felt strongly that the first panel’s decision was seriously flawed. How can .CAM in one application be different from the .CAM in another application when evaluated on the basis of string similarity? The fact is, it can’t.

It’s always struck me as unfair that Verisign did not get the chance to appeal the two SCOs it lost, given that the panelist in both cases was the same guy using the same thought processes.

The question now is: is the appeals panel correct?

I suppose we’ll find out after .cam goes on sale and unscrupulous domainers attempt to sell .cam names for inflated prices, hoping their would-be buyers don’t notice the difference.

The other two .cam applicants are AC Webconnecting and Famous Four Media. All three will now go to auction.

Panel throws out ludicrous .shop confusion ruling

Kevin Murphy, August 25, 2015, Domain Registries

The new gTLD strings .shop and .通販 are not too confusingly similar-looking to coexist on the internet.

While that may be blindingly obvious to anyone who is not already blind, it’s taken the ICANN process three years to arrive at this conclusion.

An August 18 ruling by a three-person International Centre for Dispute Resolution appeals panel has “reversed, replaced and superseded” a two-year-old decision by a lone String Confusion Objection panelist. The appeals panel found:

the [original] expert panel could not have reasonably come to the decision reached by it in connection with the underlying String Confusion Objection

The two strings indisputably have no visual or aural similarity, are in different languages, written in different scripts that look very different, and have different phonetic spellings and pronunciations.

.通販 is the Japanese for “.onlineshopping”, applied for by Amazon in the 2012 new gTLD round.

.shop is a contested string applied for by Commercial Connect and others.

The two strings were ruled dissimilar by the String Similarity Panel in February 2013, but Commercial Connect filed the SCO a few weeks later.

In an SCO, the complainant must show that it is “probable, not merely possible” that the two strings will get mixed up by internet users.

In August 2013, ICDR panelist Robert Nau ignored that burden of proof and inexplicably ruled that the two strings were too similar to coexist and should therefore be placed in a contention set.

Nau would later rule that .shop and .shopping are also confusingly similar.

The .通販 decision was widely criticized for being completely mad.

Amazon appealed the decision via the ICANN Request for Reconsideration, but predictably lost.

After much lobbying, last October ICANN’s board of directors created an appeals process for SCO decisions, but limited the appellant pool to Amazon with .通販 and applicants for .cam (which had been ruled similar to .com).

Now, 10 months later, we finally have a sane decision in the Amazon case. Its application will presumably now be removed from the .shop contention set.

Read the final ruling here.

Two new gTLD confusion decisions thrown out

Kevin Murphy, October 15, 2014, Domain Policy

ICANN has reopened the contention sets for .cam and .通販 after deciding that two String Confusion Objection panels may have been wrong to reject certain applications.

Two rulings — that .cam is confusingly similar to .com and that .通販 is confusingly similar to .shop (really) — will now head to an appeals panel for a “final” determination.

The decision was made by the ICANN board’s New gTLD Program Committee this week at the ICANN 51 public meeting in Los Angeles.

The first case being reopened for scrutiny is Verisign versus Rightside, where the original SCO panel found that .cam and .com were too similar to coexist on the internet.

But a different panelist found that the two strings were not confusingly similar in objections filed by Verisign against two other applicants — Dot Agency and AC Webconnecting.

The opposing rulings meant that Rightside’s application would have been kicked out of the .cam contention set, which hardly seems fair.

This and many other “perceived inconsistencies” led to the ICANN board being pressured to come up with some kind of appeals process, which it agreed to do in February.

Verisign, unfairly in my view, was not given the opportunity to appeal the two .cam decisions that went against it, even though they were made by the same panelist for the same reasons.

The second, altogether more peculiar, case was .shop applicant Commercial Connect versus .通販 applicant Amazon.

The panelist in that case seemed to have checked his brain at the door that day, concluding that the two strings are confusingly similar simply because 通販 means “online shopping” in Japanese.

Another panelist, in a different case also involving Commercial Connect, had found that .购物 (Chinese for “shopping”) was not confusingly similar to .shop because duh.

ICANN’s NGPC has now decided that the two controversial decisions are “not being in the best interest of the New gTLD Program and the Internet community”.

Both .cam and .通販 will now be referred to a three-person panel at the International Center for Dispute Resolution, the same body that processed the original objections, for a final determination.

ICANN reveals gTLD objections appeals process

Kevin Murphy, February 12, 2014, Domain Policy

Two new gTLD applicants would get the opportunity to formally appeal String Confusion Objection decisions that went against them, under plans laid out by ICANN today.

DERCars and United TLD (Rightside), which lost SCOs for their .cars and .cam applications respectively, would be the only parties able to appeal “inconsistent” objection rulings.

DERCars was told that its .cars was too similar to Google’s .car, forcing the two bids into a contention set. But Google lost similar SCO cases against two other .cars applicants.

Likewise, Rightside’s .cam application was killed off by a Verisign SCO that stated .cam and .com were too similar, despite two other .cam applicants prevailing in virtually identical cases.

Now ICANN plans to give both losing applicants the right to appeal these decisions to a three-person panel of “Last Resort” operated by the International Centre for Dispute Resolution.

ICDR was the body overseeing the original SCO process too.

Notably, ICANN’s new plan would not give Verisign and Google the right to appeal the two .cars/.cam cases they lost.

Only the applicant for the application that was objected to in the underlying SCO and lost (“Losing Applicant”) would have the option of whether to have the Expert Determination from that SCO reviewed.

There seems to be a presumption by ICANN already that what you might call the “minority” decision — ie, the one decision that disagreed with the other two — was the inconsistent one.

I wonder if that’s fair on Verisign.

Verisign lost two .cam SCO cases but won one, and only the one it won is open for appeal. But the two cases it lost were both decided by the same ICDR panelist, Murray Lorne Smith, on the same grounds. The decisions on .cam were really more 50-50 than they look.

According to the ICANN plan, there are two ways an appeal could go: the panel could decide that the original ruling should be reversed, or not. The standard of the review is:

Could the Expert Panel have reasonably come to the decision reached on the underlying SCO through an appropriate application of the standard of review as set forth in the Applicant Guidebook and procedural rules?

The appeals panelists would basically be asked to decide whether the original panelists are competent or not.

If the rulings were not reversed, the inconsistency would remain in place, making the contention sets for .car, .cars and .cam stay rather confusing.

ICANN said it would pay the appeals panel’s costs.

The plan (pdf) is now open for public comment.

Conflicting gTLD objection decisions to get appeals process?

Kevin Murphy, February 8, 2014, Domain Policy

ICANN seems to be considering an appeals process for new gTLD applicants that feel they’ve been wronged by dubious String Confusion Objection decisions.

But the process might be limited to applicants for .car, .cars and .cam.

In a resolution this Wednesday, ICANN’s New gTLD Program Committee said:

the NGPC is considering potential paths forward to address the perceived inconsistent Expert Determinations from the New gTLD Program String Confusion Objections process, including implementing a review mechanism. The review will be limited to the String Confusion Objection Expert Determinations for .CAR/.CARS and .CAM/.COM.

Why only those strings? I’m guessing it’s because the conflicting decisions would make for extremely confusing contention sets.

There were three SCOs against .cars applications, filed by Google, which has applied for .car. Google won one case but lost the other two.

That would mean that Google’s .car application would be in contention with one of the applicants but not the other two, hardly a fair outcome.

Similarly, Verisign objected to five .cam applications due to their similarity to .com. It won one and lost the other four.

The NGPC resolution calls for the publication, for comment, of a reviews process designed to untangle this mess. It does not appear to have been published yet.

But it seems that whatever ICANN has come up with will not apply to other applicants who feel they’ve been wronged by odd SCO, or other objection, decisions.