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Squabbling drug peddlers drag .pharmacy into brand bunfight

Kevin Murphy, September 29, 2016, Domain Policy

The .pharmacy new gTLD has been dragged into the ongoing trademark dispute between two pharmaceuticals giants called Merck.

Germany-based Merck KGaA has accused the .pharmacy registry of operating an unfair and “secretive” process to resolve competing sunrise period applications.

The domain merck.pharmacy was awarded to US rival Merck & Co, which was spun off from the German original a hundred years ago, after both Mercks applied for the domain during .pharmacy’s January-March 2015 sunrise.

Now Merck KGaA has become what I believe might be the first company to reveal an attempt to invoke ICANN’s Public Interest Commitments Dispute Resolution Procedure to get the decision reversed.

The National Association of Boards of Pharmacy, a US entity, operates .pharmacy as a tightly controlled gTLD with pre-registration credential validation.

When it launched for trademark owners in last year, it was vague about how contentions between owners of matching trademarks would be handled, according to Merck KGaA.

Merck KGaA claims that NABP awarded merck.pharmacy to Merck & Co and initially refused to disclose how it had arrived at its decision other than to say the German firm “met fewer criteria” than its rival.

After some back-and-forth between their lawyers, Merck KGaA was still not happy with NABP’s response to the dispute, so it decided to start filing compliance reports ICANN.

A year on, it tried to invoke the PICDRP.

Public Interest Commitments are addenda to ICANN Registry Agreements that bind the registries to certain behaviors, such as fighting malware and working with industry-specific regulatory bodies.

The PICDRP, heard by ICANN or an independent standing panel, is a way for third parties to challenge registries’ compliance with their contracts when they believe PICs have been violated.

No PICDRP disputes have actually made it before a panel to date, to my knowledge. Indeed, this is the first time I’ve heard of anyone even attempting to file one, though ICANN Compliance reports indicate about 20 were filed last year.

Merck KGaA claims that by not disclosing how it decided Merck & Co should win merck.pharmacy, NABP is in breach of the PIC that states:

Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.

It suspects that NABP was biased towards Merck & Co because the US firm is a $100,000+ contributor to its coffers.

NABP has denied any wrongdoing, saying it applied “objective criteria” to decide which Merck most deserved the name.

This June, over a year after the domain was awarded, Merck KGaA filed its PICDRP complaint with ICANN. Two weeks ago, ICANN responded saying the complaint had been rejected, saying:

The detailed review criteria used to resolve the contention for the registration of the domain name was part of an operational procedure that the registry operator applied to both applicants’ websites and was consistent with .pharmacy’s community restrictions in Specification 12 of the RA. As the internal operational procedure does not conflict with ICANN’s agreements and policies, it is deemed outside of ICANN’s scope of enforcement.

The decision seems to have been made by ICANN staff. No independent panel was appointed. The PICDRP grants ICANN “sole discretion” as to whether a panel is needed.

The only reason the dispute has come to light is that Merck KGaA has decided to challenge ICANN’s decision with a Request for Reconsideration. The RfR and 600-odd pages of exhibits are published here.

It’s the second concurrent RfR Merck has on the go with ICANN. The Mercks are also simultaneously fighting for the right to run .merck as a dot-brand gTLD.

Both applications for .merck went through the Community Priority Evaluation process, but both failed.

The next stage in resolving the contention said would have been an auction, but Merck KGaA has filed for Reconsideration on its CPE panel’s determination.

.blog gets 600 applications halfway through sunrise

Kevin Murphy, September 19, 2016, Domain Registries

WordPress developer Automattic has received over 600 applications for .blog sunrise registrations halfway through its sunrise period.

The company’s registry subsidiary, Knock Knock Whois There, said Friday that it has passed the 600 mark with about another 30 days remaining on the clock.

While it’s a poor performance by pre-2012 standards, if all the applications to date convert into registrations it’s still enough to put .blog into the top 10 most-popular sunrises of the current round.

According to DI’s data, the top three sunrise performers from the 2012 application round are .porn (2,091), .sucks (2,079) and .adult (2,049).

The most recent successful sunrise, by these standards, was GMO Registry’s .shop, which finished with 1,182 applications.

.blog’s sunrise ends October 17. It seems to be expecting to benefit from a late flood of applications, as is sometimes the case with sunrise periods.

General availability begins November 21.

L’Oreal shows cards on former “closed generic” gTLDs

Kevin Murphy, August 3, 2016, Domain Registries

Want to register a .beauty or .makeup domain name? L’Oreal will get to decide unilaterally whether “you’re worth it”.

The cosmetics maker has released the registration policies for its first former “closed generic” gTLD, .makeup, and they’re among the most restrictive in the industry.

Free speech appears to be the first victim of the policy — “gripe sites” are explicitly banned in the same breath as cybersquatting, 419 scams and the sale of counterfeit goods.

Domain investors and those who would hide their identity behind Whois privacy services appear to be unwelcome, too.

But perhaps most significantly, L’Oreal has also given itself the right to decide, in its sole discretion, whether a would-be registrant is eligible to own a .makeup domain.

Its launch policy reads:

Registrant Eligibility Requirements

To support the mission and purpose of the TLD, in order to register or renew a domain name in the TLD, Applicants must (as determined by the Registry in its sole and exclusive right):

  • Own, be connected to, employed by, associated with, or affiliated with a company that provides makeup and/or cosmetics related products, services, news, and/or content; or (ii) be an individual, association, or entity that has a meaningful nexus (as determined by the Registry in its sole discretion) with the cosmetics industry; and
  • Possess a bona fide intention to use the domain name in supporting the mission and purpose of the TLD.

Would-be registrants have to submit an “application” for the domain they want, and L’Oreal gets to decide whether to approve it or not.

Whether L’Oreal chooses to apply liberal or conservative standards here remains to be seen.

Like most new gTLD registries, the company plans to reserve many domains for the use of itself, partners, or future release.

The policies also give L’Oreal broad discretion to suspend or terminate names it decides violate the terms of the registration policy, which it says it can amend and retroactively apply at any time.

Using the domain counter to the mission statement of the gTLD is a violation. The mission statement reads:

The mission and purpose of the TLD is first and foremost to promote the beauty, makeup and cosmetics segments, through meaningful engagement with manufacturers, beauty enthusiasts, consumers, and retailers, using a domain space intended for use by individuals and/or companies within or associated with the various industries that provide, utilize, or bear a recognizable connection to makeup and cosmetic products and/or services.

L’Oreal has defined gripe sites — sites established primarily to criticize — as a security and stability concern that “may put the security of any Registrant or user at risk”, banning

other abusive behaviors that appear to threaten the stability, integrity or security of the TLD or any of its registrar partners and/or that may put the security of any Registrant or user at risk, including but not limited to: cybersquatting, sale and advertising of illegal or counterfeit goods, front-running, gripe sites, deceptive and⁄or offensive domain names, fake renewal notices, cross gTLD registration scams, traffic diversion, false affiliation, domain kiting⁄tasting, fast-flux, 419 scams.

If you want to set up a .makeup web site to criticize, say, L’Oreal for “body shaming” or for its animal testing policy, lots of luck to you.

The gTLD is owned by L’Oreal but seems to be being managed primarily by its application consultant, Fairwinds Partners.

It was originally designated as a single-registrant space, a so-called “closed generic” or “exclusive access” gTLD, in which only L’Oreal could register names.

But the company was forced to change its plans, under pain of losing its application, after the Governmental Advisory Committee persuaded ICANN to perform a U-turn on the permissibility of closed generics.

.makeup is due to start accepting pre-launch requests for Founders Program domains next Monday. General availability will start October 19.

Sunrise will kick off September 8, though L’Oreal warns that it has withheld generic terms such as “shop” from this period.

The company also owns .beauty, and I expect its terms there to be similar.

One and two-letter .at domains coming soon

Nic.at will next month start selling .at domains shorter than three character domains for the first time.

All one-character and two-character domains will be released, the ccTLD registry said, about 5,000 domains in total.

The released domains include those containing any of the 34 non-Latin letters Nic.at supports, it said.

Holders of trademarks valid in Austria before July 1 get the first crack at the names, during a August 29 to September 23 sunrise period.

During this phase, domains will cost €240 ($265) with a €120 ($132) application fee. Contested sunrise names will be auctioned in October.

Everything not grabbed by trademark interests will be put to a public auction from November 7, where the minimum bid will be €72 ($79).

If there’s anything left after that, it will be released into the general available pool for registration at standard .at prices.

Nic.at plans to dump all registered one and two-character domains into the .at zone file, so they can be used, at the same time on December 6.

Austria has no local presence requirements for ccTLD registration.

Given “at” has some semantic value in English, it could be a popular launch.

.shop pricing sunrise renewals at $1,000

If you’ve spent over $40 million on a gTLD, you need to make your money back somehow, right?

It’s emerged that GMO Registry, which paid ICANN a record $41.5 million for .shop back in January, plans to charge $1,000 renewal fees, wholesale, on domains registered during its upcoming sunrise period.

Trademark owners will seemingly have to pay over the odds for domains matching their trademarks, while regular registrants will have a much more manageable annual fee of $24.

The prices were disclosed in a blog post from the registrar OpenProvider last week, in which the company urged GMO to lower its prices.

Sunrise is due to start June 30, running for 60 days, so there’s still a chance prices could change before then.

It’s not the first registry to charge more for sunrise renewals than regular renewals.

Any company that bought a .sucks domain during sunrise was lumbered with a recurring $2,499 registry fee.

.green also had a $50 annual sunrise renewal premium before Afilias took over the gTLD in April.

Others have charged higher non-recurring sunrise fees. With .cars, the sunrise fee was $3,000, which was $1,000 more than the regular GA price.