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Trademark+50 costs $75 to $200 a pop

Kevin Murphy, October 15, 2013, Domain Services

The Trademark Clearinghouse has started accepting submissions under the new “Trademark+50” service, with prices starting at about $76.

It’s now called the Abused DNL (for Domain Name Label) service.

It allows trademark owners to add up to 50 additional strings — which must have been cybersquatted according to a court or a UDRP panel — to each record they have in the TMCH.

To validate labels found in court decisions, it will cost mark owners $200 and then $1 per abused string. For UDRP cases, the validation fee is $75.

If you’re on the “advanced” (read: bulk) fee structure, the prices drop to $150 and $50 respectively.

To add a UDRP case covering 25 domains to the Abused DNL would cost $100 in the first year and $25 a year thereafter, for example.

Adding a trademark to the TMCH costs between $95 and $150 a year, depending on your fee structure.

Trademark+50 coming in October

Kevin Murphy, September 10, 2013, Domain Policy

The controversial “Trademark+50” anti-cybersquatting service for new gTLDs is set to go live October 11 or thereabouts, ICANN announced last night.

Trademark+50 is the name given to a function of the Trademark Clearinghouse that enables trademark owners to obtain protection for strings that they’ve previously won at UDRP proceedings.

The service will be limited to 50 strings per trademark, with the total number of strings only limited by the total number of trademarks submitted.

ICANN said:

Rights holders may submit these domain name labels for association with existing Clearinghouse records as early as 11 October 2013. Once previously-abused labels have been verified, they will be integrated into the Trademark Claims service. ICANN expects this to occur by 18 October 2013, ahead of the earliest anticipated new gTLD Claims period.

In July at ICANN’s meeting in Durban, an IBM rep said that a Trademark+50 launch would be “difficult to reach before the middle of September”, which seems to have proven correct.

Pricing for Trademark+50, which we assume will entail a great degree of manual validation, does not appear to have been published yet.

Strings added to the IBM-run TMCH database under Trademark+50 will be eligible for Trademark Claims notifications, but not Sunrise periods, when new gTLDs launch.

Critics have repeatedly raised Trademark+50 as an example of ICANN going outside of its usual community-based policy-development processes in order to push through an unpopular mechanism.

Non-commercial users have criticized the system because it assumes that all strings won at UDRP are inherently cybersquatty, whereas the UDRP itself also requires the domain to have been used in bad faith.

Trademark owners have been able to submit their marks to the TMCH for several months, but Trademark+50 was a later addition to the new gTLD program’s rights protection mechanisms.

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

Kurt Pritz, July 11, 2013, Domain Policy

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

Kevin Murphy, July 2, 2013, Domain Policy

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.

GNSO wins minor victory in Trademark+50 dispute

Kevin Murphy, June 6, 2013, Domain Policy

The ICANN board has rescheduled an important decision for trademark owners, apparently at the behest of members of the Generic Names Supporting Organization Council.

The board’s New gTLD Program Committee was due to vote June 11 on whether to approve the rejection of a Reconsideration Request filed by the Non-Commercial Stakeholders Group.

But the item has been removed from the agenda and will now instead be discussed at a new June 18 meeting that appears to have been specially scheduled for the purpose.

The rescheduling follows an appeal by GNSO Councillor Jeff Neuman directly to the committee and other senior ICANNers.

Neuman and others were concerned that a June 11 decision would preempt a discussion of the issue slated for the Council’s June 13 meeting, which would have been very bad for board-GNSO relations.

For the full background, read this post.

Essentially, Neuman and other councilors are worried that ICANN seems to be riding roughshod over the GNSO in an attempt to make a proposal known as “Trademark+50” a part of the new gTLD program.

Trademark+50 is a mechanism that will greatly expand the number of strings trademark owners can submit to the Trademark Clearinghouse and get limited protection for.

The NCSG’s Reconsideration Request had asked ICANN to reconsider its classification of the proposal as an “implementation” change that didn’t require GNSO “policy” review.

But the ICANN board’s Board Governance Committee, which adjudicates such matters, last month rejected the request in what I would describe as a sloppily argued and disconcertingly adversarial decision.

It’s now up to the New gTLD Program Committee, acting for the full board, to rubber-stamp the rejection, clearing the path for Trademark+50 to become law for new gTLD registries.

Rescheduling the decision won’t change the outcome, in my view. Trademark+50 is very probably a done deal.

But voting before the GNSO Council even had a chance to put its concerns to the board would have given fuel to the argument that ICANN ignores the GNSO when it is politically expedient to do so.

ICANN may have dodged a bullet for now, but the dispute continues.

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