dotShabaka Diary — Day 2

This is the second in DI’s series following the progress of شبكة. applicant dotShabaka Registry as it prepares to be one of the first new gTLD registries to launch.
The following journal entry was written by dotShabaka general manager Yasmin Omer:

Date: Saturday 10 August 2013
It has been nearly a month since we signed our Registry Agreement with ICANN and we are still confused about TMCH Integration Testing, which is a concern given it’s now seven weeks out from ICANN’s first delegation date.
Whilst we have access to the Sandbox LORDN file test environment, ICANN happened to mention that the ‘OT&E environment’ is available in this week’s webinar. That’s new information.
We still have no idea what the process is for TMCH integration testing or how we access the environment. Are there test cases? What’s the schedule?
The lack of information is a concern as we need to pass TMCH Integration to provide Sunrise notice. Let’s hope it’s not as complicated as PDT.
In other news, we received an email from Wendy Profit (Registry Product Manager) yesterday. It’s the first formal email we have received since signing our contract nearly a month ago.
The email contained a copy of the contract and a spreadsheet for contact details. Not sure if Wendy is indeed our account manager or if we even have one. We have sent an email asking her the same. Clearly we have a few questions for an Account Manager once we get one.

You can read past and future entries in this series here.

Trademarks still trump founders in latest TMCH spec

New gTLD applicants and ICANN seem to have failed to reach an agreement on how new registries can roll out founders programs when they launch.
A new draft of the Rights Protection Mechanism Requirements published last night, still appears to make it tricky for new gTLD registries to sell domain names to all-important anchor tenants.
The document (pdf), which tells registries what they must do in order to implement Sunrise and Trademark Claims services, is unchanged in many major respects from the original April draft.
But ICANN has published a separate memo (pdf) comprising a handful of asks made by applicants, which highlight where differences remain. Both are now open for public comment until September 18.
Applicants want text adding to the Requirements document that would allow them to give or sell a small number of domains to third parties — namely: anchor tenants — before and during Sunrise periods.
Their suggested text reads:

As set forth in Specification 5 of the Agreement, Registry Operator MAY activate in the DNS up to one hundred (100) names necessary for the operation and promotion of the TLD. Pursuant to these Requirements, Registry Operator MAY register any or all of such domain names in the TLD prior to or during the Sunrise Period to third parties in connection with a registry launch and promotion program for the TLD (a “Qualified Registry Launch Program”), provided that any such registrations will reduce the number of domain names that Registry Operator MAY otherwise use for the operation and promotion of the TLD as set forth in Specification 5.

The base new gTLD Registry Agreement currently allows up to 100 names to be set aside before Sunrise only on the condition that ownership stays in the hands of the registry for the duration of the registration.
Left unaltered, that could complicate deals where the registry wants to get early registrants through the door to help it promote its gTLD during the critical first few months.
A second request from applicants deals with the problem that Sunrise periods also might interfere with preferred allocation programs during the launch of community and geographic gTLDs.
An example given during the recent ICANN Durban meeting was that of the .london registry giving first dibs on police.london to the Metropolitan Police, rather than a trademark owner such as the Sting-fronted band.
The applicants have proposed to allow registries to request “exemptions” to the Requirements to enable this kind of allocation mechanism, which would be offered in addition to the standard obligatory RPMs.
Because these documents are now open for public comment until September 18, that appears to be the absolute earliest date that any new gTLD registry will be able to give its mandatory 30-day pre-Sunrise warning.
In other words, the hypothetical date of the first new gTLD launch appears to have slipped by a couple of weeks.

dotShabaka wants to be the first new gTLD to launch, but big problems remain

Having been the first to sign a contract with ICANN two weeks ago, new gTLD registry dotShabaka is also desperate to be the first to launch, but faces big obstacles.
The company, International Domain Registry, is a spin-off of AusRegistry, with many of the same directors and staff, but executives insist it is an entirely separate entity and will become more so with time.
It was awarded, uncontested and unobjected, the Arabic TLD شبكة., which means “.web” and transliterates to “.shabaka”. It will do business under the trading name dotShabaka Registry.
According to the Registry Agreement published by ICANN last week, it was signed on July 13, one day before the other three registries to so far get contracts.
“It was a lot of work to make sure we were the first to sign, and we intend to be the first to delegation,” general manager Yasmin Omer told DI last week.
“The best-estimate timeline published by ICANN in Durban is our timeline, that’s our target,” she added.
The timeline she’s referring to (pdf) is the one that says the first new gTLD could hit the root as early as September 5, with the first Sunrise period kicking off a month later.
Omer is slightly less optimistic about the timing, however, saying that “mid-September” is looking more likely, due to the requirements of the Pre-Delegation Testing period that dotShabaka is currently in.
The company is doing preliminary PDT work right now and expects to start testing properly in the first week of August.
But PDT is not the only thing standing in dotShabaka’s — and other new gTLD applicants’ — path to delegation.
Right now, the Trademark Clearinghouse and the 2013 Registrar Accreditation Agreement are the big barriers, Omer said.
TMCH requirements not ready
The TMCH is a problem because ICANN has still not finalized the TMCH’s RPM Requirements document, a set of rules that each new gTLD registry must adhere to in their Sunrise and Trademark Claims phases.
“A group within NTAG and the Registries Stakeholder Group has been negotiating this document with ICANN for some time now, going back and forth,” Omer said. “It’s all fine for those who intend on launching later on, but this document has yet to be finalized and that really harms us.”
A draft of the Requirements document (pdf) was published in April, and Omer said she expects ICANN to take a more up-to-date draft to public comment.
A standard 42-day comment period, starting today, would end mid-September.
As we reported in April, the Requirements raises questions about whether registries would, for example, be able to create lists of reserved premium domains or whether trademark owners would always get priority.
dotShabaka faces an additional problem with the TMCH because its gTLD is an Arabic string and there are been very little buy-in so far from companies in the Arabic-speaking world.
A couple of weeks ago, TMCH execs admitted that of the over 5,000 trademarks currently registered in the TMCH, only 13 are in Arabic.
In Durban, they said that the TMCH guidelines were not yet available in Arabic.
Part of the problem appears to be that a rumor was spread that the TMCH does not support non-Latin scripts, which executives said is not remotely true.
With so little participation from the Arabic trademark community, an early شبكة. launch could mean a woefully under-subscribed Sunrise period — 30 days to protect just a handful of companies.
“There’s no knowledge of the TMCH in the region,” Omer said.
“We’re currently putting our heads together to think of mechanisms to overcome this,” she said. “We don’t just want to be first to delegate and have it sit there idly, we want to be first to market as well.”
dotShabaka has been doing its own press in the region and claims to have taken thousands of expressions of interest in the gTLD, indicating that there is a market if awareness can be raised.
Registrars are a problem
Signing the 2013 Registrar Accreditation Agreement is a requirement for any registrar that want to sell new gTLDs, and that includes IDNs. Only seven registrars have publicly signed it to date.
According to Omer, the 2013 RAA’s stricter requirements are “not helping us in the region”.
Its provisions related to insurance can be “prohibitive to those located to those located in North Africa and the Middle East”, she said by way of an example.
In addition, there are only about seven accredited registrars in the region, all on older RAA versions, she said.
dotShabaka has already signed up Go Daddy and others to carry شبكة., so getting the TLD into the channel is not a problem.
But while Go Daddy will have an Arabic landing page for the TLD it will not have a full Arabic-language registration process and shopping cart ready in time for شبكة.’s planned launch window launch.
This makes me wonder whether there’s a risk that domain savvy Westerners are more likely to get a crack at the best شبكة. names before the Arab world is fully aware of the launch.
But Omer said that dotShabaka is doing its own outreach and that it’s committed to improving the “horrible” online experience for Arabic speakers that exists today.
“It’s not just about the TLD, it’s about the cause, it’s about an Arabic internet,” she said. “Yes there are issues and yes there are barriers, but we want to build more robust Arabic domain name market.”

Trademark Clearinghouse cutting it fine for new gTLD launches

The Trademark+50 rights protection mechanism for new gTLDs is late, potentially complicating the lives of trademark professionals.
During a session with registries and registrars at ICANN 47 in Durban today, executives from IBM and Deloitte, which are managing the Trademark Clearinghouse, laid out their go-live expectations.
The TMCH is the central repository of trademark records that will support the mandatory Sunrise periods and Trademark Claims services during new gTLD launches.
Trademark+50 is the system approved by ICANN earlier this year that will also trigger Claims notices for up to 50 strings trademark owners have won at UDRP or in court.
IBM and Deloitte said that they hope to have a Sunrise sandbox ready for registry testing by the end of July, with a production environment live by August 9 and Claims following a month later.
These were hopes, not commitments, they stressed.
When asked about Trademark+50, an IBM representative acknowledged that it had to be ready before any new gTLD started its Claims period but said it is going to take “months” to implement.
“It’ll be in time, it’ll be before Claims start,” he said.
“It’s probably going to be difficult to reach before the middle of September,” another TMCH exec said. “We know it cannot be the week before Claims starts, it cannot be two weeks or three weeks before Claims starts.”
ICANN still hasn’t finalized its set of requirements for Trademark+50, but the TMCH executives said they hope to get that settled in Durban this week, possibly this evening.
So what’s going to be impact of the expected TMCH go-live schedule? It doesn’t seem likely to delay the launch of the first new gTLDs.
ICANN doesn’t expect the first Trademark Claims period to begin until November, which gives the first registries two months to test their systems against Trademark+50. Tight, but doable.
The real impact might be on trademark owners.
ICANN’s current earliest projection for a new gTLD being delegated is September 5. On that date, the first registry could choose to give trademark owners the 30-day mandatory Sunrise warning.
So the first Sunrise period would start October 5 or thereabouts.
That’s where it starts getting tricky.
See, the TMCH’s early bird pricing ends the day the first Sunrise period begins, so there’s certain to be a mad rush by trademark owners to get their trademarks registered in the first week of October.
Even if many brands aren’t too worried about being protected in the IDN gTLDs that will launch first, they’ll want to secure the discount if they have a large portfolio of trademarks.
And history has shown most trademark owners leave Sunrise registrations to the last minute. That’s why pretty much every Sunrise period to date has been extended — the registry can’t cope with the influx.
In the case of the TMCH, however, they’re also going to be battering a Trademark+50 system that’s been in production for no more than a couple of weeks and will, software being software, likely be full of bugs.
It could get messy.
“When IP owners find out that this is not going to be in production a week or two or a few weeks before the first [new gTLD] goes into Claims, they’re going to go ballistic,” Neustar VP Jeff Neuman said at the session today.
At the very least, it looks like trademark owners will have only a brief window to add their extra strings — which could amount to hundreds in many cases — to their TMCH records before the first Sunrise.
That scenario is mostly speculation, of course, based on a first delegation date that ICANN admits is “hypothetical” and the TMCH’s tentative schedule outlined today.
IBM and Deloitte execs are expected to provided a fuller explanation of the current state of play during a dedicated session in Durban on Wednesday at 11am local time.

Guest post: Pritz on policy vs implementation and the brother-in-law test

A current, important debate in internet governance and operation of the multi-stakeholder model asks: when do the bottom-up policy-making volunteers let go and when do the staff policy implementers take over?
Drawing that line to the satisfaction of everyone seems impossible. That is because there is no bright line — the development and implementation of policy is a task requiring the constant attention and cooperation of policy makers and implementation teams.
Is an ICANN action a policy position? Or is it a mere implementation detail? Labels almost never work, especially one-word labels. Since when are ICANN issues black or white?
We’ve stopped discussing the issues, it is easier to discuss the labels: is it “policy” or “implementation”?
The multi-stakeholder model depends on communication, consideration and collaboration
ICANN has a rich history of its stakeholders butting heads with the Board and both butting heads with the staff: long lines at microphones, speaking in hyperbole, and wringing of hands that the multi-stakeholder model has failed. ICANN also has a rich history of staff-stakeholder collaboration in the formulation of policy and in the implementation of policy.
The initial Inter-Registrar Transfer Policy was little more than a framework. Then a team of ICANN staff and TLD registry operators met over a period of months and developed the implementation model. It really didn’t matter where the policy making ended and the implementation started. There was a resolve that there should be an easy-to-follow way for registrants to transfer names and there was teamwork to get that accomplished.
There are parallels in the “real” world. In 1990, the United States enacted the American with Disabilities Act (ADA). The ADA itself was little more than a framework also: American employers should make “reasonable accommodation” for those with a “disability.” What was a reasonable accommodation? And what qualified as a disability?
Over a period of many years, those questions have been answered through a series of many court cases and regulations. But in 1990 employers were trying to figure that out.
At the time, we worked on developing clear criteria that would let our employees know what was covered by the ADA. After failing at that, we developed an approach to treat employees as you would your brother-in-law. You are deferential to your brother-in-law (because you have to face your sister) but not totally deferential (after all, he is making love to her). You just treat him better than the letter of the law requires.
So when your employee comes up to you and asks for better lighting at his workstation, you don’t try to parse whether you are required to accommodate near-sighted employees. You say, this is my brother-in-law, and I will listen to his request and carefully consider it.
This is how a public participation model works. The stakeholders are not strangers to one another and the model only works if there is mutual trust and respect.
If someone says, “I want to be heard,” she is generally listened to. (That doesn’t mean discussion is never ending. If that same person wants to be heard again, and says the same thing without change, she will be disregarded. If she continually repeats the same demand and content, she will be shunned.)
Policy versus Implementation should be Policy and Implementation
Take the example currently debated. There is a new gTLD policy element (approved in 2009) that states:

Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.

How does one implement that? The implementation of trademark rights protection mechanisms were developed after years of community/staff consultation, “implementability” studies, draft positions, memoranda describing potential solutions and the reasoning behind them, debate, and discussion.
When things were apparently settled, new parties joined the ICANN discussion — they were welcomed as were their opinions. ICANN was richer because there were new participants in the model. New implementation models were written. Finally, there was an indication the discussion was spent. The work was “said and done.”
Then, apparently, not all was said-and-done. After the gTLD program was launched, there were new suggestions and participants. ICANN decided to entertain those ideas. After a round of community feedback, a subset of the new suggestions was recommended by ICANN for inclusion into the implementation plan for new gTLDs.
ICANN’s policy makers, the GNSO, weighed in, agreeing with many of the conclusions but picking one of the recommendations and saying, “we’d like to talk a bit more about this one because we don’t fully understand its implications and effects.” (Unfortunately, the GNSO didn’t say exactly that, it sounded more to me like, “this item is policy and therefore it cannot be implemented without our consensus opinion.”)
Now, if my brother-in-law says he wants to talk about something some more, even if he doesn’t give a good reason, I am ready to indulge him. But ICANN did not indulge the GNSO. Now, we are in a policy versus implementation discussion: what work is the province of policy makers, and the province of implementers? The GNSO is considering ICANN Bylaw changes to ensure they are heeded.
Bylaw changes are not the lynchpin to multi-stakeholder model success. Putting rules in place for how and when to listen never work. There will always be exceptions. (Another whole piece can be written on how the rules governing communications between ICANN and its Governmental Advisory Committee have failed to facilitate the success of the multi-stakeholder model.)
Processes and procedures (as they are currently described in the Bylaws) are important. We must have clear rules for creation of consensus policy, with timelines and borders to ensure that issues are addressed and rights are respected.
But the operation of the multi-stakeholder model is more complicated than following those processes. The success of the model depends on the mutual trust and respect of the participants, and the ability to actively listen and to understand what is meant, even if that is not exactly what is said.
Rather than create new rules or discuss how one side can prevent the other from abusing its position, the volunteers, staff and Board should look inwardly to improve its own listening and communicating.
You’re my brother-in-law. I am ready (more than ready) to disagree with you, but first I am going to listen to what you have to say.
This is a guest post written by Kurt Pritz, ICANN’s former chief strategy officer. He is currently an independent consultant working with new gTLD applicants and others.

GNSO still breathing as ICANN retracts “flawed” Trademark+50 thinking

The Generic Names Supporting Organization isn’t dead after all.
ICANN’s Board Governance Committee has retracted a document related to new gTLD trademark protections that some on the GNSO Council believed spelled the end of the multistakeholder model as we know it.
The BGC, in rejecting a formal Reconsideration Request related to the “Trademark+50” mechanism, had used a rationale that some said was overly confrontational, legalistic and gave ICANN staff the ability to ignore community input more or less at will.
We reported on the issue in considerable detail here.
The committee on Friday retracted the original rationale, replacing it with one (pdf) that, while still containing some of the flawed reasoning DI noted last month, seems to have appeased the GNSO Council.
Neustar policy VP Jeff Neuman, who raised the original concerns, told the Council: “I believe the rationale is much more consistent with, and recognizes, the value of the multi-stakeholder model.”
The BGC did not change its ultimate decision — the Reconsideration Request has still been rejected and Trademark+50 is still being implemented in the new gTLD program.

The True Historie of Trademark+50 and the Deathe of the GNSO (Parte the Thirde)

ICANN’s decision to press ahead with the “Trademark+50” trademark protection mechanism over the objections of much of the community may not be the end of the controversy.
Some in the Generic Names Supporting Organization are even complaining that ICANN’s rejection of a recent challenge to the proposal may “fundamentally alter the multi-stakeholder model”.
Trademark+50 is the recently devised adjunct to the suite of rights protection mechanisms created specially for the new gTLD program.
It will enable trademark owners to add up to 50 strings to each record they have in the Trademark Clearinghouse, where those strings have been previously ruled abusive under UDRP.
Once in the TMCH, they will generate Trademark Claims notices for both the trademark owner and the would-be registrant of the matching domain name during the first 60 days of general availability in each new gTLD.
Guinness, for example, will be able to add “guinness-sucks” to its TMCH record for “Guinness” because it has previously won guinness-sucks.com in a UDRP decision.
If somebody then tries to register guinness-sucks.beer, they’ll get a warning that they may be about to infringe Guinness’ trademark rights. If they go ahead and register anyway, Guinness will also get an alert.
Trademark+50 was created jointly by ICANN’s Business Constituency and Intellectual Property Constituency late last year as one of a raft of measures designed to strengthen rights protection in new gTLDs.
They then managed to persuade CEO Fadi Chehade, who was at the time still pretty new and didn’t fully appreciate the history of conflict over these issues, to convene a series of invitation-only meetings in Brussels and Los Angeles to try to get other community members to agree to the proposals.
These meetings came up with the “strawman solution”, a list of proposed changes to the program’s rights protection mechanisms.
Until two weeks ago, when DI managed to get ICANN to publish a transcript and audio recording of the LA meetings, what was said during these meetings was shrouded in a certain degree of secrecy.
I don’t know why. Having listened to the 20-hour recording, I can tell you there was very little said that you wouldn’t hear during a regular on-the-record public ICANN meeting.
Everyone appeared to act in good faith, bringing new ideas and suggestions to the table in an attempt to find a solution that was acceptable to all.
The strongest resistance to the strawman came, in my view, from the very small number (only one remained by the end) of non-commercial interests who had been invited, and from the registrars.
The non-coms were worried about the “chilling effect” of expanding trademark rights, while registrars were worried that they would end up carrying the cost of supporting confused or frightened registrants.
What did emerge during the LA meeting was quite a heated discussion about whether the IPC/BC proposals should be considered merely “implementation” details or the creation of new “policy”.
That debate spilled over into 2013.
Under the very strictest definition of “policy”, it could be argued that pretty much every aspect of every new rights protection mechanism in the Applicant Guidebook is “implementation”.
The only hard policy the GNSO came up with on trademarks in new gTLDs was back in 2008. It reads:

Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.

Pretty much everything that has come since has been cobbled together from community discussions, ad hoc working groups, ICANN staff “synthesis” of public comments, and board action.
But many in the ICANN community — mainly registries, registrars and non-commercial interests — say that anything that appears to create new rights and/or imposes significant new burdens on the industry should be considered “policy”.
During the LA meetings, there was broad agreement that stuff like extending Trademark Claims from 60 to 90 days and instituting a mandatory 30-day notice period before each Sunrise period was “implementation”.
Those changes won’t really incur any major new costs for the industry; they merely tweak systems that already have broad, if sometimes grudging, community support.
But the attendees were split (IPC/BC on the one side, most everyone else on the other) about whether Trademark+50, among other items, was new policy or just an implementation detail.
If something is “policy” there are community processes to deal with it. If it’s implementation it can be turned over to ICANN staff and forgotten.
Because the registries and registrars have an effective veto on GNSO policy-making and tend to vote as a bloc, many others view a “policy” label as a death sentence for something they want done.
A month after the strawman meetings, in early December, ICANN staff produced a briefing paper on the strawman solution (pdf) for public comment. Describing what we’re now calling Trademark+50, the paper stated quite unambiguously (it seemed at the time):

The inclusion of strings previously found to be abusively registered in the Clearinghouse for purposes of Trademark Claims can be considered a policy matter.

Chehade had previously — before the strawman meetings — strongly suggested in a letter to members of the US Congress that Trademark+50 was not doable:

It is important to note that the Trademark Clearinghouse is intended be a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights.

Personally, I doubt then-new Chehade wrote the letter (at least, not without help). It mirrors Beckstrom-era arguments and language and contrasts with a lot of what he’s said since.
But it’s a pretty clear statement from ICANN’s CEO that the expansion of Trademark Claims to Trademark+50 night expand trademark rights and, implicitly, is not some throwaway implementation detail.
Nevertheless, a day after the staff briefing paper Chehade wrote to GNSO Council chair Jonathan Robinson in early December to ask for “policy guidance” on the proposal.
Again, there was a strong suggestion that ICANN was viewing Trademark+50 as a policy issue that would probably require GNSO input.
Robinson replied at the end of February, after some very difficult GNSO Council discussions, saying “the majority of the council feels that is proposal is best addressed as a policy concern”.
The IPC disagreed with this majority view, no doubt afraid that a “policy” tag would lead to Trademark+50 being gutted by the other GNSO constituencies over the space of months or years.
But despite ICANN staff, most of the GNSO Council and apparently Chehade himself concluding that Trademark+50 was policy, staff did a U-turn in March and decided to go ahead with Trademark+50 after all.
An unsigned March 20 staff report states:

Having reviewed and balanced all feedback, this proposal appears to be a reasonable add-on to an existing service, rather than a proposed new service.
…
It is difficult to justify omission of a readily available mechanism which would strengthen the trademark protection available through the Clearinghouse. Given that the proposal relies on determinations that have already been made independently through established processes, and that the scope of protection is bounded by this, concerns about undue expansion of rights do not seem necessary.

This caught the GNSO off-guard; Trademark+50 had looked like it was going down the policy track and all of a sudden it was a pressing reality of implementation.
Outraged, the Non-Commercial Stakeholders Group, which had been the strongest (if smallest through no fault of their own) voice against the proposal during the strawman meetings filed a formal Reconsideration Request (pdf) with ICANN.
Reconsideration Requests are one of the oversight mechanisms built into ICANN’s bylaws. They’re adjudicated by ICANN’s own Board Governance Committee and never succeed.
In its request, the NCSG told a pretty similar history to the one I’ve just finished relating and asked the BGC to overturn the staff decision to treat Trademark+50 as implementation.
The NCSG notes, rightly, that just because a domain has been lost at UDRP the string itself is not necessarily inherently abusive. To win a UDRP a complainant must also demonstrate the registrant’s bad faith and lack of rights to the string at issue.
To return to the earlier example, when notorious cybersquatter John Zuccarini — an unambiguously bad guy — registered guinness-sucks.com back in 2000 he told Guinness he’d done it just to piss them off.
That doesn’t mean guinness-sucks.beer is inherently bad, however. In many jurisdictions I would be well within my rights to register the domain to host a site criticizing the filthy brown muck.
But if I try to register the name, I’m going to get a Trademark Claims notice asking me to verify that I’m not going to infringe Guinness’ legal rights and advising me to consult a lawyer.
Chilling effect? Maybe. My own view is that many people will just click through the notice as easily as they click through the Ts&Cs on any other web site or piece of software.
Either way, I won’t be able to claim in court that I’d never heard of Guinness^TM, should the company ever decide to sue me.
Anyway, the NCSG’s Reconsideration Request failed. On May 16 the BGC issued a 15-page determination (pdf) denying it.
It’s this document that’s causing consternation and death-of-the-GNSO mutterings right now.
Last week, Neustar’s lead ICANN wonk Jeff Neuman asked for the Reconsideration Request to be put on the agenda of the GNSO Council’s June 13 meeting. He wants BGC representatives to join the call too. He wrote:

This decision was clearly written by legal counsel (and probably from outside legal counsel). It was written as a legal brief in litigation would be written, and if upheld, can undermine the entire bottom-up multi-stakeholder model. If ICANN wanted to justify their decision to protect their proclamation for the 50 variations, they could have done it in a number of ways that would have been more palatable. Instead, they used this Reconsideration Process as a way to fundamentally alter the multi-stakeholder model. It not only demonstrates how meaningless the Reconsideration process is as an accountability measure, but also sends a signal of things to come if we do not step in.

He has support from other councilors.
I suspect the registries that Neuman represents on the Council are not so much concerned with Trademark+50 itself, more with the way ICANN has forced the issue through over their objections.
The registries, remember, are already nervous as hell about the possibility of ICANN taking unilateral action to amend their contracts in future, and bad decision-making practices now may set bad precedents.
But Neuman has a point about the legalistic way in which the Reconsideration Request was handled. I spotted a fair few examples in the decision of what can only be described as, frankly, lawyer bullshit.
For example, the NCSG used Chehade’s letter to Congress as an example of why Trademark+50 should be and was being considered “policy”, but the BGC deliberately misses the point in its response, stating:

The NCSG fails to explain, however, is how ICANN policy can be created through a proclamation in a letter to Congress without following ICANN policy development procedures. To be clear, ICANN cannot create policy in this fashion.

Only a lawyer could come up with this kind of pedantic misinterpretation.
The NCSG wasn’t arguing that Chehade’s letter to Congress created a new policy, it was arguing that he was explaining an existing policy. It was attempting to say “Hey, even Fadi thought this was policy.”
Strike two: the NCSG had also pointed to the aforementioned staff determination, since reversed, that Trademark+50 was a policy matter, but the BCG’s response was, again, legalistic.
It noted that staff only said Trademark+50 “can” be considered a policy matter (rather than “is”, one assumes), again ignoring the full context of the document.
In context, both the Chehade letter and the March staff document make specific reference to the fact that the Implementation Recommendation Team had decided back in 2009 that only strings that exactly match trademarks should be protected. But the BGC does not mention the IRT once in its decision.
Strike three: the BGC response discounted Chehade’s request for GNSO “policy guidance” as an “inartful phrase”. He wasn’t really saying it was a policy matter, apparently. No.
Taken as a whole, the BGC rejection of the Reconsideration Request comes across like it was written by somebody trying to justify a fait accompli, trying to make the rationale fit the decision.
In my view, Trademark+50 is quite a sensible compromise proposal with little serious downside.
I think it will help trademark owners lower their enforcement costs and the impact on registrars, registries and registrants’ rights is likely to be minimal.
But the way it’s being levered through ICANN — unnecessarily secretive discussions followed by badly explained U-turns — looks dishonest.
It doesn’t come across like ICANN is playing fair, no matter how noble its intentions.

Will the Trademark Clearinghouse kill off premium domains?

Rules proposed for the new Trademark Clearinghouse threaten to cut off some of new gTLD registries major sources of early revenue, according to registry providers.
Premium domain sales and founders programs are among the now industry-standard practices that would be essentially banned under the current draft of the TMCH rules, they say.
The potential problems emerged in a draft TMCH Requirements document circulated to registries 10 days ago and vigorously discussed during a session at the ICANN meeting in Beijing last week.
The document lists all of the things that new gTLD registries must and must not, and may and may not, do during the mandatory Sunrise and Trademark Claims rights protection launch periods.
One of the bits that has left registries confused is this:

2.2.4 Registry Operator MUST NOT allow a domain name to be reserved or registered to a registrant who is not a Sunrise-Eligible Rights Holder prior to the conclusion of the Sunrise Period.

What this means is that trademark owners get first dibs on pretty much every possible string in every gTLD.
“Trademark owners trump everything,” Neustar business affairs veep Jeff Neuman said during the Beijing meeting. “Trademark owners trump every possible use of every possible name.”
It would mean, for example, that if a new gTLD wanted to allocate some names to high-profile anchor tenants during a “founders program”, it would not be able to do so until after the Sunrise was over.
Let’s say the successful applicant for .shop wants to reserve the names of hundreds of shop types (book.shop, food.shop, etc) as premium names, to allocate during its founders program or auction later.
Because the .shop Sunrise would have to happen first, the companies that the own rights to, for example, “wallpaper” or “butcher” (both real US trademarks) would have first rights to wallpaper.shop and butcher.shop, even if they only planned to defensively park the domains.
Because there’s likely to be some degree of gaming (there’s a proof-of-use requirement, but the passing threshold is pretty low), registries’ premium lists could be decimated during Sunrise periods.
If ICANN keeps its TMCH Requirements as they are currently written, new gTLD registries stand to lose a lot of early revenue, not to mention control over launch marketing initiatives.
However, if ICANN were to remove this rule, it might give unscrupulous registries the ability to circumvent the mandatory Sunrise period entirely by placing millions of strings on their premium lists.
“Registries should have discretion to schedule their start-up phases according to their business plans so long as rights protection processes are honored, so that’s the balancing we’ve tried to do,” ICANN operations & policy research director Karen Lenz said during Beijing.
“It’s trying to allow registries to create requirements that suit their purposes, without being able to hollow out the rights protection intention,” she said.
The requirements document is still just a draft, and discussions are ongoing, she added.
“It’s certainly not our intention to restrict business models,” Lenz said.
Registries will get some flexibility to restrict Sunrise to certain registrants. For example, they’ll be able to disqualify those without an affiliation to the industry to which the gTLD is targeted.
What they won’t be able to do is create arbitrary rules unrelated to the purpose of the TLD, or apply one set of rules during Sunrise and another during the first 90 days of general availability.
The standard Registry Agreement that ICANN expects all new gTLDs to sign up to does enable registries to reserve or block as many names as they want, but only if those names are not registered or used.
It seemed to be designed to do things like blocing ‘sensitive’ strings, rather like when ICM Registry reserved thousands of names of celebrities and cultural terms in .xxx.
The Requirements document, on the other hand, seems to allow these names being released at a later date. If they were released, the document states, they’d have to be subject to Trademark Claims notices, but not Sunrise rules.
While that may be a workaround to the premium domains problem, it doesn’t appear to help registries that want to get founders programs done before general availability.
It seems that there are still many outstanding issues surrounding the Trademark Clearinghouse — many more than discussed in this post — that will need to be settled before new gTLDs are going to feel comfortable launching.

ICANN cancels New York new gTLD party

ICANN has decided to call off its big New York City new gTLD launch “party”, DI has learned.
The high-profile media event, scheduled for April 23, was set to feature an appearance from mayor Michael Bloomberg and was expected to be a coming-out party for new gTLDs.
The original plan was for ICANN to sign the first registry agreements with new gTLD applicants during the event, but that notion was later scrapped due to ongoing contract talks.
However, during the public forum at the ICANN Beijing meeting last week, CEO Fadi Chehade said that the event was still going ahead.
That, according to an ICANN email sent to registries and registrars today, appears to be no longer the case. The email cited “current timelines” as the reason for delaying the event.
The Registry Agreement and Registrar Accreditation Agreement still under discussion between ICANN and contracted parties, and there are other factors in play such as the Governmental Advisory Committee’s wide-ranging advice from Beijing and continued uncertainties about the Trademark Clearinghouse.
With so much up in the air, a public awareness-raising event for the program may have been seen as premature.
A second, private set of meetings between ICANN and domain name companies, also scheduled for April 23 in New York, is still going ahead, according to the ICANN email.
Following on from discussions held over the last few months, the New York talks will focus on improving the image and professionalism of the domain name industry, one of Chehade’s pet projects.
Talks will cover items such as: forming a DNS industry trade association, a possible trust-mark scheme, conferences and media/analyst outreach.

Trademark Clearinghouse to get tested out on three existing TLDs

Three already-live TLDs are going to use the Trademark Clearinghouse to handle sunrise periods, possibly before the first new gTLDs launch.
BRS Media is set to use the TMCH, albeit indirectly, in its launch of third-level domains under .radio.am and .radio.fm, which it plans to launch soon as a budget alternative to .am and .fm.
The company has hired TM.Biz, the trademark validation firm affiliated with EnCirca, to handle its sunrise, and TM.biz says it will allow brand owners to leverage Clearinghouse records.
Trademark owners will be able to submit raw trademarks for validation as in previous sunrises, but TM.Biz will also allow them to submit Signed Mark Data (SMD) files, if they have them, instead.
Encrypted SMD files are created by the TMCH after validation, so the trademarks and the strings they represent are pre-validated.
There’ll presumably be some cost benefit of using SMD files, but pricing has not yet been disclosed.
Separately, Employ Media said today that it’s getting ready to enter the final stage of its .jobs liberalization, opening up the gTLD to essentially any string and essentially any registrant.
The company will also use the TMCH for its sunrise period, according to an ICANN press release, though the full details and timing have not yet been announced.
Unusually, .jobs is a gTLD that hasn’t already had a sunrise — its original business model only allowed vetted company-name registrations.
The TMCH is already accepting submissions from trademark owners, but it’s not yet integrated with registries and registrars.