Surprise! More new TLDs delay likely

The launch of ICANN’s new top-level domain program looks set to encounter more delays, after international governments said they needed more time for consultation and debate.
Three days of talks between the ICANN board of directors and its Governmental Advisory Committee, which concluded yesterday, resolved many of the GAC’s concerns with new TLDs, but not enough.
Obtaining final closure of these outstanding issues during the San Francisco meeting, March 17, now seems quite unlikely, especially if the GAC gets its way.
The meeting started on an optimistic tone on Monday, degenerated into stalemate on Tuesday, and ran over into an unscheduled third day yesterday, by which point the frustration was audible.
Prior to the meeting, the GAC had provided a “scorecard” that covered 12 areas of new TLD policy where it was still unhappy with ICANN’s positions.
ICANN, in return, had provided matching summary documents that outlined the GAC advice and summarized ICANN’s current thinking on each of the issues.
It became apparent over the first two days of the meeting that the ICANN board was willing to compromise on a number of matters, but that the GAC was unable to do the same, due to its need to consult with ministers and unnamed “advisers”.
One side often seemed to have done more homework than the other, particularly on the issue of trademark protection, where the GAC entered the room as a proxy for the trademark lobby, but without the granular background knowledge needed to answer ICANN’s questions.
Talks disintegrated on Tuesday afternoon, when it became clear that GAC members could not proceed before further consultations with their respective capitals, and that ICANN could not fully address their concerns without further clarifications.
Both sides of the aisle retreated into private discussions for the rest of the day, with the ICANN board later emerging with a list of areas it was prepared to accept GAC advice.
These positions had been more fully fleshed out when the meeting reconvened yesterday morning, but hopes of resolving the discussions by San Francisco appeared to be dashed by the GAC.
The ICANN board decided in January that March 17 will host a so-called “bylaws consultation”, during which ICANN tells the GAC where it has decided to disagree and overrule its advice.
But the GAC unexpectedly revealed yesterday that it does not want the March 17 meeting to have that “bylaws” designation.
A clearly frustrated Peter Dengate Thrush, ICANN’s chairman, asked repeatedly why, in light of the substantial strides forward in Brussels, the GAC had suddenly decided it needed more time:

what we’ve done is clarify and limit the work, so the work we now need to do in San Francisco is reduced and comes in with greater clarity. I don’t understand how more work and more clarity leads to the conclusion that you come to. So you have to help me with this.

The US representative, Suzanne Sene, said the GAC was “surprised” by the bylaws designation.

Actually, if we can go back to the January resolution, a sort of reaction we had at that time was some slight surprise actually that without having seen the GAC scorecard, you were already forecasting that you anticipated not being able to accept the advice contained in the scorecard.

Despite the generally civil tone of the talks, and Dengate Thrush’s opening and closing remarks – in which he said that the meeting was neither “adversarial” nor a “power struggle” – this part of the discussion came across more than most like a pissing contest.
ICANN officially rejecting GAC advice through a bylaws consultation would be unprecedented, and I get the distinct impression that it is something the GAC does not want to happen.
If you’re a government, being overruled by a bunch of DNS policy wonks in California is bad PR.
But if a mutually acceptable compromise is to be made without any advice being rejected, GAC reps need time to take ICANN’s concessions back to their superiors for input, and then to form their own consensus views. Thence the delay arises.
At the end of the meeting, it appeared that talks will be continuing in private in the run-up to the San Francisco meeting, which starts March 13. It also appears that the board and GAC will hold not one but two days of talks during the meeting.
What’s less clear to me is whether ICANN has already agreed that the “bylaws” designation will be removed from the March 17 meeting.
If it does, we’re looking at a few weeks more delays post-SF, while the GAC and board resolve their remaining differences, which could easily impact the planned April 14 publication of the next version of the Applicant Guidebook.

US may break up ICANN powers

The US government is considering taking away some of ICANN’s powers.
The Department of Commerce today kicked off the process of reviewing the so-called IANA contract, from which ICANN currently derives its control over the domain name system root zone.
As I predicted yesterday, Commerce has published a Notice of Inquiry in the Federal Register. It wants input from the public before it officially opens the contract for rebidding.
ICANN has operated the IANA functions, often regarded as intrinsic to and inseparable from its mission, for the last decade. But the contract expires September 30 this year.
Significantly, Commerce now wants to know whether the three IANA functions – IP address allocation, protocol number assignments, and DNS root zone management – should be split up.
The NOI says:

The IANA functions have been viewed historically as a set of interdependent technical functions and accordingly performed together by a single entity. In light of technology changes and market developments, should the IANA functions continue to be treated as interdependent? For example, does the coordination of the assignment of technical protocol parameters need to be done by the same entity that administers certain responsibilities associated with root zone management?

I’m speculating here, but assuming ICANN is a shoo-in for the domain names part of the IANA deal, this suggests that Commerce is thinking about breaking out the IP address and protocol pieces and possibly assigning them to a third party.
The NOI also asks for comments about ways to improve the security, stability and reportable metrics of the IANA functions, and whether relationships with other entities such as regional internet registries and the IETF should be baked into the contract.
The timing of the announcement is, as I noted yesterday, interesting. It could be a coincidence, coming almost exactly five years after the IANA contract last came up for review.
But ICANN’s board of directors and its Governmental Advisory Committee will meet in Brussels on Monday to figure out where they agree and disagree on the new top-level domains program.
While it’s an ICANN-GAC meeting, the US has taken a prominent lead in drafting the GAC’s position papers, tempered somewhat, I suspect, by other governments, and will take a key role in next week’s talks.
Hat tip: @RodBeckstrom.

Xvid founder tries to seize $55k sale Xvid.com

The founder of Xvid.org, a popular if legally dubious video codec, is trying to get his hands on the domain name Xvid.com.
Michael Militzer, who launched the Xvid project in 2001, has filed a UDRP complaint with the World Intellectual Property Organization.
Xvid.com was registered in 2000, and spent much of the last decade as a placeholder site, but changed hands early last year. It’s now developed, with links to video software.
In a thread on DigitalPoint, it is claimed that the current registrant paid $55,000 for the domain. It may prove to have been a poor investment.
There’s plenty of UDRP precedent suggesting that buying a domain name corresponding to a trademark can be considered bad faith, even when the original registration preceded the trademark filing.
Millitzer obtained his US trademark on the word “Xvid” in 2008. Historical Whois records show the domain has only been registered to its current owner since 2010.
There’s an irony here: Xvid has been accused in the past of infringing intellectual property rights in the form of MPEG’s patents.

IANA contract up for rebid this week?

As ICANN’s leadership heads off to Brussels to kick off two days of unprecedented talks about new top-level domains with international governments, one nation has an ace up its sleeve.
The US government could be just a day or two away from putting the IANA contract, from which ICANN derives much of its power over domain names, up for public discussion and rebidding.
It’s a matter of record that the IANA contract expires at the end of September, and that it will have to be renewed this year if ICANN wants to continue functioning as it is today.
But could the rebid process kick off as early as this week? It seems likely. The timing is right, especially if the US wants to make a statement.
It was February 21, 2006, five years ago this week, that the US Department of Commerce put out a “Request For Information” that led to the current five-year IANA deal with ICANN being signed.
No new RFI has been released yet. But Commerce could choose to pull rank, putting pressure on ICANN to recognize its authority, by issuing such a document this week.
There’s also the possibility that Commerce will issue not an RFI but instead a “Notice Of Inquiry”, a different type of public procurement procedure notice that would kick off not just a rebidding process but a whole lot of public argument about ICANN’s role in internet governance.
Over the years, it has not been unheard of for the US government to occasionally remind ICANN that it has a special relationship with it, particularly before important governance decisions are made.
Most recently, shortly before the ICANN meeting in Cartagena last December, Larry Strickling, assistant secretary at Commerce, warned that the new TLDs program wasn’t shaping up quite how the US expected.
Next week, Commerce’s Suzanne Sene is one of several Governmental Advisory Committee representatives expected to take a lead role in the ICANN-GAC negotiations.
One way or the other, the IANA contract is up for renewal this year, and the process may soon start that could see the function, hypothetically at least, change hands this September.
IANA, for Internet Assigned Numbers Authority, is responsible for the high-level management of IP address allocations, protocol numbers, and top-level domains.
If a gTLD or ccTLD wants to make a change to its DNS records it has to go to IANA, in much the same way as domain owners such as you and me have to go to our registrar.
IANA decides whether to redelegate a ccTLD to a new registry, for example. When .co liberalized recently, it only did so after IANA approved the transfer of the domain to .CO Internet from a Bogota university.
It’s also responsible for making the call on adding new TLDs to the root. Assigning the IANA function to an entity other than ICANN could, for example, add latency to the go-live date of new TLDs.
For the last decade, IANA has been pretty much an ICANN in-house department. It’s not at all clear to me what would happen if IANA was contracted to a third party, especially one that disagreed with ICANN’s decisions.
Both the European Commission and the Internet Architecture Board have recently indicated that they believe the IANA-ICANN relationship could be due a rethink, as Milton Mueller of the Internet Governance Project noted last summer.

Wanted: official ICANN tweeter

ICANN is looking to beef up its media relations department, and has put out its feelers for someone to take over its Twitter and Facebook accounts.
The organization has posted a job opening to its hiring page for a media and marketing coordinator, reporting to director of marketing and outreach Scott Pinzon and head flack Brad White.
Responsibilities include writing “blogs, tweets, and status updates on ICANN’s behalf for Twitter, Facebook, LinkedIn, and other platforms”.
I believe that currently @ICANN is usually authored by Pinzon.
The role also includes more traditional media relations activities, such as writing press releases and fielding calls from journalists and bloggers.
ICANN has also started looking to fill an opening for a publications manager for its marketing department. I believe both positions are new.
Also of note: ICANN is no longer advertising for a compliance director, raising hopes in some quarters that it has finally found a replacement for David Giza, who left unexpectedly last July. UPDATE: it’s back.

ICANN cancels Jordan meeting

ICANN will not hold its 41st public meeting in Amman, Jordan, apparently due to safety concerns in the region, which is experiencing a rash of sometimes violent protest.
In an email to the GNSO Council half an hour ago, ICANN vice president of policy development support David Olive wrote:

The ICANN June meeting will not take place in Jordan. A decision was made and the Jordanian host has already been contacted about this change.
In a day or so, there will be a formal ICANN announcement concerning this matter as well information on the location for the next meeting.

The rumor currently circulating on Twitter and mailing lists is that Singapore is a likely replacement candidate. Singapore, like Jordan, recently received an IDN ccTLD in its local script.
Following popular revolutions in Tunisia and Egypt over the last several weeks, many Middle Eastern nations, including Jordan, have experienced anti-government protests, some of which have turned violent.
ICANN has been very sensitive to the security of its delegates since many stakeholders stayed at home rather than attend its terrorist-threatened meeting in Nairobi, Kenya, a year ago.

Rumor sites fair game under UDRP

Could Apple shut down MacRumors.com using the Uniform Dispute Resolution Policy?
That seems like a fair interpretation of a recent WIPO decision over the domain name LegoRumors.com, which was handed over to Lego Juris, maker of the popular toys.
LegoRumors.com leads to blog-style news site, not many months old, that reports on Lego products.
The site is a bit of a mess – poorly written, spammy, and ad-heavy. You’d have to be nuts to think it was an official Lego site.
It does appear to contain original content, and does not look to me like the kind of clear-cut cybersquatting that the UDRP was intended to address.
Lego succeeded in seizing the domain, regardless. The WIPO panelist (in a decision that could also have used a run through a spell-checker) found:

The disputed domain name consists of two different words, one consisting of the Complainants registered trademark and other of a generic term “rumors”. The Panel considers that the addition of the generic denomination, especially when added to a famous trademark is not sufficient to avoid confusion.

Pay attention, “rumors” sites.
The panelist also found that the domain name was registered in bad faith, on the basis that the registrant clearly was aware of Lego’s trademark (because he’s writing about Lego) and because the site contained sponsored links to potential competitors.
Apply this logic to MacRumors.com, which knowingly uses an Apple trademark in its domain name, writes about Apple products, and currently shows ads for BlackBerry and Adobe products that compete with Apple.
I’m not suggesting for a second that MacRumors is in any danger of losing its domain, but if the UDRP was implemented equitably, this case could be seen as scary precedent.

UDRP reform effort begins

ICANN has kicked off a review of its Uniform Dispute Resolution Policy, the occasionally controversial process used to adjudicate cybersquatting complaints.
The GNSO Council on Thursday voted to ask ICANN staff for a so-called “Issues Report” on UDRP, indicating that reform of the process is likely.
This is the relevant portion of the resolution, passed unanimously:

RESOLVED #2, the GNSO Council requests an Issues Report on the current state of the UDRP. This effort should consider:
* How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process.
* Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated. The Issue Report should include suggestions for how a possible PDP on this issue might be managed.

Issues Reports commissioned by the Council are expected within 15 days, and 15 days after that the Council is expected to vote on whether to kick off a Policy Development Process.
A PDP could lead to changes to the UDRP that would be binding on all ICANN-accredited registrars and their customers.
While the UDRP has proven very effective at dealing with clear-cut cases of cybersquatting over the last 12 years, critics claim that it is often interpreted too broadly in favor of trademark interests.
If you read this blog regularly, you’ll know I frequently report on unfathomable UDRP decisions, but these are generally the exception rather than the rule.
Unrelated to UDRP, the GNSO Council has also voted against asking ICANN for an Issues Report on registry/registrar best practices for mitigating domain abuse.
Business interests wanted registrars to take more measures (voluntarily) to curb activities such as phishing, but registrars think this kind of rule-making is beyond the scope of the GNSO.
After a lot of heated debate and arcane procedural wrangling, the Council decided instead to ask for a “discussion paper”, a term that has no meaning under ICANN’s rules, meaning a PDP is less likely.

Four more ICANN 40 sponsors revealed

Iron Mountain, IronDNS, RegistryPro and the Public Interest Registry have added their names to the list of companies prepared to fork out big bucks to sponsor ICANN’s San Francisco meeting.
That brings the total number of ICANN 40 sponsors revealed so far to five, after VeriSign’s unprecedented $500,000 “Diamond” deal.
The new sponsors have splashed out more modest fees. Of the six tiers of sponsorship available, all four have opted for least expensive two.
Iron Mountain, IronDNS and RegistryPro have all chosen the same tiers as they have before, but they are likely paying more since ICANN has doubled its list prices since last year.
Meanwhile, .org manager PIR has downgraded to a $25,000 “Silver” package, having been a “Gold” sponsor at the Cartagena meeting.
The deadline for signing sponsorship deals and handing over artwork is February 15.

Renew a domain, lose a UDRP?

Renewing a domain name could land you in hot water if you’re hit with a UDRP complaint, if some current thinking at the National Arbitration Forum gains traction.
In the recent NAF decision over FreeGeek.com, panelists argued that if a domain was not originally registered in bad faith (because no trademark existed at the time) renewing the domain after a trademark had been obtained could nevertheless be used to demonstrate bad faith.
Showing that a disputed domain was registered and used in bad faith is of course one of the three pillars of UDRP.
Free Geek Inc runs its web site at freegeek.org. It wanted the .com equivalent, which was registered in 2001, six years before the company acquired a US trademark on its brand.
FreeGeek.com is owned by by Kevin Ham’s company, Vertical Axis. The registration has been renewed every year since 2001.
The three NAF panelists were split on whether renewals post-2007 should be considered evidence of bad faith.

Two of the panelists agree that Respondent should be charged with exercising some diligence at renewal to determine if there are outstanding marks which conflict; one does not.

That’s a disturbing statement, if you’re interested in registrant rights – two panelists basically want domain investors to relinquish their domains if somebody else subsequently acquires a trademark.
What’s more, the panelists’ position appears to be based on a dodgy interpretation of recent UDRP precedent. The decision goes on to say:

The Chair of the Panel is concerned that the Respondent renewed its registration after the trademark was applied for and the USPTO registered the mark. In RapidShare AG and Christian Schmid v. Fantastic Investment Limited… a panel in which the Chair participated, found that “bad faith” could include renewal of a domain name after the issuance of the mark.

It’s a dodgy interpretation because the referenced case, rapidshare.net, does not in fact discuss renewals at all.
In that case, bad faith was actually shown to have arisen due to the domain (which had survived a UDRP just a few months earlier) being bought by a new registrant, not due to a renewal.
What we seem to have here is a case of a couple of NAF panelists thinking about trying to expand the scope of the UDRP. There’s a ton of precedent concluding that renewals are not relevant when establishing whether a domain was registered in bad faith.
With that in mind, you’d think the case would have been a slam-dunk win for the complainant. Not so.
In fact, Ham prevailed on the basis that he had acquired rights to the domain by simply parking it, which constituted a legitimate commercial use.

This panel, in contrast to other panels, finds that the use of this model and evidence of the use is enough to justify a factual finding that Respondent has used the name for commercial purposes
…
Respondent has clearly demonstrated that it acquired rights in the name by usage even if the usage has been limited to a “pay-per-click” links page. Such usage does not itself signal a lack of rights and legitimate interests and can constitute a bona fide offering of goods or services according to Policy

If there are any recent UDRP cases that show just how random a process it is, this is the one.