.food could be heading for limbo after closed generic applicant wins auction

The future of the .food gTLD is up in the air after single-registrant applicant Lifestyle Domain Holdings won its contention set.
The applicant, a subsidiary of Scripps Networks, is the sole remaining .food applicant after withdrawals from Donuts and Dot Food LLC.
It’s also a recalcitrant “closed generic” applicant, which continues to insist it has the right to exclude all third-party registrants from the .food namespace.
The company seems to have won .food at auction, even though ICANN recently slapped a ban on closed generics in the current application round.
Scripps will not be able to launch .food any time soon, unless it changes its planned registration policies.
The company may have essentially just paid to have .food placed on hold until the next new gTLD round.
Scripps runs a cable TV station in the US called Food Network, which it says is famous. It also runs Food.com, which it describes as “the third largest food site on the web”.
The current version of its application states:

Applicant intends to function in such a way that all domain name registrations in the TLD shall be registered to and maintained by Applicant and Applicant will not sell, distribute or transfer control of domain name registrations to any party that is not an Affiliate of Applicant

When ICANN asked applicants if they would like to revise their closed generic applications to allow third-party registrants, due to adverse Governmental Advisory Committee advice, Scripps was one of half a dozen applicants to decline.
Audaciously, the company told ICANN that an open registration policy for .food would hurt its brand:

To open the top level domain means that anyone could register a domain for a small annual amount of money and exploit, confuse and infringe upon the brand equity and goodwill of the famous FOOD, FOOD NETWORK and FOOD.COM brands established by Scripps with more than twenty years and hundreds of millions of dollars in investment.

Yes, Scripps thinks that when people think of “food”, they automatically think of the “third largest food web site” or a cable TV network that gets a 0.21% audience share in the UK.
A nonsense position, in other words.
So will Scripps get to run .food as a closed dot-brand? Probably not.
In June, ICANN ruled that the remaining closed generics applications (.food, .hotels, .grocery, .dvr, .data, and .phone) had the choice of either withdrawing, dropping their exclusivity plans, or carrying their applications over to the next gTLD application round.
Having just paid its competing applicants to go away, one assumes that Scripps’ withdrawal is off the cards.

ICANN finally publishes THAT .africa letter, makes me look like an idiot

ICANN has finally published the letter it controversially drafted for the African Union Commission in order to help it express support for ZA Central Registry’s .africa bid.
Having now read the draft letter for the first time, on balance I’d have to say my previous opinions on its contents were more wrong than right.
The letter was central to claims by rival .africa applicant DotConnectAfrica that ICANN treated ZACR preferentially during the evaluation of both applications.
It was drafted by ICANN staffer Trang Nguyen around June 25, 2013, and sent to ZACR.
It was then edited by ZACR and the AUC, signed by the AUC, and returned to ICANN, whereupon it was forwarded to the new gTLD’s program’s Geographic Names Panel at InterConnect Communications.
The GNP took the letter as an official endorsement of ZACR’s bid, enabling it to pass the Geographic Names Review and proceed to the next stage of the program.
Having seen (and published) the signed AUC letter, I opined here in July that it looked like it had been mostly been written by ZACR and/or the AUC.
I no longer believe that.
It’s now proven that the AUC redraft goes far beyond the “minor edits” that have been claimed by DCA and others — for starters, it’s 40% longer — but a lot of the text that I believed to be ZACR’s work turns out in fact to have come from ICANN.
I’ve put the two letters into a single document (pdf), so you can do a side-by-side comparison if you wish.
There’s still no question that ZACR had African government support for its bid and DCA did not. The dispute centers entirely on whether InterConnect had received expressions of support in the correct format.
An Independent Review Process panel declined to issue an opinion on whether ICANN did anything wrong by drafting the letter, though it is mentioned in its final declaration.
ICANN itself says that it did nothing wrong by drafting the letter, and had DCA had any governmental support it would have done exactly the same thing for it.
The draft letter was among hundreds of pages of documents published last night by ICANN following a Documentary Information Disclosure Process request filed by DI a little over a month ago.

ICANN will post more uncensored .africa info

ICANN has committed to post more unredacted documents from its Independent Review Process case with DotConnectAfrica, following a request from DI.
The organization told DI today that it will publish the documents on its web site by August 31, in response to our July 27 Documentary Information Disclosure Request.
I’d asked ICANN to publish, unredacted, the entire declaration of the IRP panel, along with all equally unredacted exhibits and hearing transcripts.
Aware that ICANN enjoys invoking its “Defined Conditions for Non-Disclosure” in order to stop material being released sometimes, I added “that the public interest and transparency benefits to ICANN of disclosing this information far outweigh any benefit that could be accrued by invoking the Defined Conditions for Non-Disclosure”.
In response, ICANN said today (pdf) that it evaluates the public interest when processing DIDP requests, adding:

we have determined that to the extent additional information warrants disclosure and can be released without further consultation with third parties ICANN will publish that unredacted information no later than 31 August 2015. We will send you an email notification upon that publication. To the extent that disclosure of some information designated as confidential by third parties may be warranted and requires further consultation with third parties, or consultation with other third parties not previously consulted, ICANN has already initiated that consultation process. ICANN will publish such further unredacted information promptly upon, and to the extent that we receive, authorization from the relevant parties to release the information, and will send you an email notification upon that publication.

Since the DIDP was filed, ICANN has published over 700 pages of redacted transcripts from two in-person IRP hearings that took place in May.
Today, it also published a letter from DCA’s competing .africa applicant, ZA Central Registry, comprising an ultimately unsuccessful request for a couple of seats at the hearing.
What has not yet been published are the IRP exhibits showing exactly what ICANN did to oil the gears for ZACR’s application.
Due to Kieren McCarthy’s articles at The Register and ICANN’s subsequent admissions, we know that ICANN staff drafted a letter that the African Union Commission could use to express its support for ZACR in the correct format.
However, the IRP exhibits that would give clarity into what exactly ICANN sent and why remain redacted.
Communications between ICANN and InterConnect, which ran the Geographic Names Panel, and references to the Kenyan government’s did-they-didn’t-they support for DCA also remain redacted.

US gives ICANN an extra year to complete transition

US government oversight of ICANN and the domain name system will end a year later than originally expected.
The National Telecommunications and Information Administration said last night that it has extended ICANN’s IANA contract until September 30, 2016, giving the community and others more time to complete and review the transition proposals.
NTIA assistant secretary Larry Strickling wrote that “it has become increasingly apparent over the last few months that the community needs time to complete its work, have the plan reviewed by the U.S. Government and then implement it if it is approved.”
Simultaneously, NTIA has finally published a proposal — written by ICANN and Verisign — for how management of the DNS root will move away from hands-on US involvement.
The extension of the IANA contract from its September 30, 2015 end date was not unexpected. The current contract allows for such extensions.
As we recently reported, outgoing ICANN CEO Fadi Chehade had guessed a mid-2016 finalization of the transition.
Regardless, expect op-eds in the coming days to claim this as some kind of political victory against the Obama administration.
Part of the reason for the extension, beyond the fact that the ICANN community hasn’t finished its work yet, is legislation proposed in the US.
The inappropriately named DOTCOM Act, passed by the House but frozen for political reasons in the Senate by Tea Party presidential hopeful Sen Ted Cruz, would give Congress 30 legislative days (which could equal months of real time) to review the IANA transition proposals.
There are basically three prongs to the transition, each with very long names.
The “Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (IANA) Functions from the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) to the Global Multistakeholder Community” is the first.
That was created by the multistakeholder IANA Stewardship Transition Coordination Group (ICG) and deals with how the IANA contract will be managed after the US government goes away.
The second prong comes from the Cross Community Working Group on Enhancing ICANN Accountability, which deals with how ICANN itself can improve its accountability to the internet community without the Damoclean sword of US intervention hanging over it.
The CCWG’s latest draft report would strengthen the ICANN board against capture by, for example, making certain bylaws harder to amend and giving the community the right to fire directors.
Both of these proposals are currently open for public comment here.
The third prong, which only appears to have been published this week, deals with the nuts and bolts of how changes to the DNS root zone are made.
The current system is a tripartite arrangement between IANA, NTIA and Verisign.
When a TLD operator needs a change to the DNS root — for example adding a name server for its TLD — the request is submitted to and processed by IANA, sent to NTIA for authorization, then actually implemented on the primary root server by Verisign.
Under the new proposal (pdf) to phase the NTIA out of this arrangement, the NTIA’s “authorization” role would be temporarily complemented by a parallel “authentication” role.
The proposal is not written in the clearest English, even by ICANN standards, but it seems that the current Root Zone Management System would be duplicated in its entirety and every change request would have to be processed by both systems.
The output of both would be compared for discrepancies before Verisign actually made the changes to the root.
It seems that this model is only being proposed as a temporary measure, almost like a proof of concept to demonstrate that the NTIA’s current authorization role isn’t actually required and won’t be replaced in this brave new world.

Did Chehade really quit ICANN for this?

ICANN CEO Fadi Chehade will become a senior adviser with a private equity firm after he leaves ICANN next March.
He blogged today that he will take the role with Boston-based ABRY Partners and “provide guidance to ABRY’s partners and their companies’ leaders on digital strategy”.
Chehade, back in June, had described the ICANN CEO role as a “better job that I’ve ever had, or will ever have”.
He had years left on his contract.
My first thought is: really? This is the gig you quit ICANN for?
I’m drawn down the path of thinking that rather than finding the job of his dreams elsewhere, the dude is just suffering from ICANN burnout.
Chehade suggests in his post that ABRY is not a full-time job, writing: “I expect to add other roles to my portfolio and will update you all as appropriate.”
ABRY, at first glance, does not appear to have any significant connection to the domain name industry or to ICANN itself.

ICANN gets hacked, again

ICANN has been hacked again and your user names and passwords may have been compromised.
The organization said tonight that it thinks “usernames/email addresses and encrypted passwords for profile accounts created on the ICANN.org public website were obtained by an unauthorized person.”
The stolen information includes “user preferences for the website, public bios, interests, newsletter subscriptions, etc”, ICANN said.
No critical systems seem to have been affected, ICANN said.
ICANN said that an “external service provider” was responsible for the hashed passwords that were nabbed.
It recommends an abundance of caution: changing passwords, or simply (and unrealistically) not using the same password across multiple sites.
ICANN gets hacked constantly. It’s barely even news any more. Many of the stories can be found with this search.

African Union slams “dysfunctional” IRP as ICANN tries to fend off cover-up claims

The African Union Commission has criticized ICANN’s “dysfunctional accountability process” that has kept the proposed .africa gTLD in limbo for the last few years.
In a communique yesterday (pdf), the AUC also reiterated that .africa applicant ZA Central Registry has the support of both the AUC and its member states, and that governments used almost every avenue available to them to object to the rival DotConnectAfrica bid.
The letter reads:

The Africa region, African Internet stakeholders, the ZACR and AUC are the unfortunate victims of a dysfunctional accountability process and an independent review panel that did not delve more deeply to understand the new gTLD process, the role of governments in that process, and how the ICANN multistakeholder model functions in general.

A few weeks ago, an Independent Review Process panel controversially ruled that ICANN had treated DCA’s application unfairly, in violation of its bylaws, when it accepted Governmental Advisory Committee advice to reject it.
The panel said that ICANN should have at least asked the GAC for the rationale behind its advice, something that the new gTLD program’s rules did not require it to do.
One of the issues at the heart of the subsequent debate is whether ICANN inappropriately helped out ZACR’s bid by drafting an AUC letter of support and then tried to cover its actions up by inappropriately redacting information from the IRP ruling before publication.
On Friday, ICANN published a new version of the ruling that had these references restored, while retaining redactions related to the actions of Kenyan government officials.
We know what the still-redacted text says because Kieren McCarthy, writing for The Register, obtained a clean copy and published it a couple of weeks ago.
ICANN also promised to publish its reasoning if it makes redactions to any documents in future.
In a blog post on Friday, general counsel John Jeffrey said that ICANN helping the AUC draft its letter of support was not a unique case, nor was it inappropriate:

ICANN staff has helped many applicants and their supporters understand how to properly document support. Not only did we make a template support letter publicly available to all as part of the New gTLD Program Applicant Guidebook (see Appendix to Module 2), we have answered questions, received through our customer service channel, as to how interested parties can document support for a given gTLD application. In the case of ZA Central Registry, ICANN appropriately assisted the applicant in documenting support from the AUC.
Our actions surrounding the .AFRICA applications were not unique, since we assist any applicant who requests assistance, or who needs clarification in learning how best to document support or other matters. We have provided assistance to all applicants regarding their applications to the maximum extent possible.

On the claims that ICANN tried to “cover up” this assistance by redacting the IRP’s ruling and previous IRP filings, Jeffrey said that the information was covered by a confidentiality agreement agreed to by itself and DCA and endorsed by the IRP panel.
He said that ICANN was “motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible.”
He said ICANN attempted to reach out to those affected by the “confidential” parts of the ruling to seek permission to remove the redactions.
But McCarthy also seems to have seen emails exchanged between DCA and ICANN, and he says that ICANN redacted it over DCA’s objections.
McCarthy further says that ICANN only became interested in removing the redactions after he had already published the clean version of the ruling at The Reg — five days after the initial publication by ICANN.
Jeffrey’s post, which refers to “erroneous reporting” in an apparent allusion to McCarthy’s articles, nevertheless fails to address this claim, lending credibility to the cover-up allegations.
The .africa gTLD has been contracted to ZACR, but DCA’s rejected application has been returned to evaluation per the IRP’s ruling, where it is broadly expected to fail for want of governmental support.
Disclosure #1: I recently filed a Documentary Information Disclosure Policy request seeking the release of all the unredacted exhibits in DCA v ICANN. Given ICANN’s wont to usually respond to such requests only at the end of the full 30 days permitted by the policy, I should not expect to see an answer one way or the other until the last week of August.
Disclosure #2: As regular readers may already be aware, due to my long-held and never-disguised view that DCA was mad to apply for .africa without government support, I was once accused of being a part of a “racial conspiracy” against DCA on a blog I believe to be controlled by DCA. Naturally, after I stopped laughing, this libelous allegation pissed me off no end and enhanced my belief that DCA is nuts. Around the same time DCA also, under its own name, filed an “official complaint” (pdf) with ICANN, omitting the race card, alleging that I was part of a conspiracy against it.

New gTLDs not an illegal conspiracy, court rules

ICANN has beaten off a lawsuit from alternate root provider name.space for a second time, with a US appeals court ruling that the new gTLD program was not an illegal conspiracy.
name.space sued ICANN in 2012, claiming that the program broke competition laws and that “conflicted” ICANN directors conspired with the industry in an “attack” on its business model.
The company runs an alternate DNS root containing hundreds of TLDs that hardly anyone knows about, cares about, or has access to.
Almost 200 of the strings in its system had matching applications in the 2012 new gTLD round; many have since been delegated.
The company’s complaint asked for an injunction against all 189 matching TLDs.
But a court ruled against it in 2013, saying that name.space had failed to make a case for breaches of antitrust law.
Last week, an appeals court upheld that ruling, saying that the company had basically failed to cross the legal threshold from simply making wild allegations to showing evidence of an illegal conspiracy.
“We cannot… infer an anticompetitive agreement when factual allegations ‘just as easily suggest rational, legal business behavior.’,” the court ruled, citing precedent.
“Here, ICANN’s decision-making was fully consistent with its agreement with the DOC [US Department of Commerce] to operate the DNS and the Root,” it wrote. “In transferring control to ICANN, the DOC specifically required it to coordinate the introduction of new TLDs onto the Root. This is exactly what ICANN did in the 2012 Application Round”.
“The 2012 rules and procedures were facially neutral, and there are no allegations that the selection process was rigged,” the panel ruled.
The court further ruled that ICANN is not a competitor in the markets for domain names as registry, registrar or defensive registration services, therefore it could not be subject to antitrust claims for those markets.
A few other claims against ICANN were also dismissed.
In short, it’s a pretty decisive victory for ICANN. General counsel John Jeffrey said in a statement that ICANN is “pleased” to have won.
All the major documents in the case, including the latest opinion, can be downloaded here.
While the lawsuit has been making its way through the courts, the .space gTLD has actually been delegated and the domain name.space is owned by its new registry, Radix.
There’s some salt in the wounds.

Most governments keep restrictions on country names in new gTLDs

Just one out of every 10 governments in the ICANN Governmental Advisory Committee is happy for people to register its country name in new gTLDs.
That’s according to a new GAC database detailing which countries want to keep tabs on how their names are being used.
Out of 80 GAC members contributing to the database, just eight have said registries can sell their country names with no restrictions.
The eight countries and territories are the UK, the USA, Denmark, Finland, Netherlands, Sweden, Guernsey and Pitcairn.
New gTLD registries will therefore be able to auction off, for example, finland.guru or pitcairn.news, to whoever wants them.
Another 10 governments — Belgium, Brazil, Bulgaria, Czech Republic, Georgia, Montenegro, New Zealand, Romania, Spain and Switzerland — have relinquished oversight in the case of dot-brand registries that have signed Specification 13 of the ICANN Registry Agreement.
So if Sony wants to register brazil.sony to itself, it can without restrictions.
Under the new gTLD Registry Agreement, all country and territory names in the six official UN languages have to be reserved by all registries unless they can reach agreement with the applicable government.
The 18 governments mentioned above have basically waived this right to be notified in whole or in part.
The remaining 62 governments say they still wish to be notified when a registry wants to release its name.
GAC chair Thomas Schneider told ICANN (pdf) that countries not yet listed in the database should be treated as if they’re still restricted, so the actual number is closer to 200.
In short, this database is not a lot of help to dot-brands and other registries that want to start using or selling country names.
Critics have pointed out that many governments wanting to regulate their names in new gTLDs have not done so in their own ccTLDs.
Of the 62, ownership of country names is mixed. Italy owns italy.it and italia.it, for example, while germany.de and deutschland.de appear to be in private hands.

Booking.com uses .africa precedent to challenge .hotels ruling

Booking.com has become the first new gTLD applicant to publicly cite the recent .africa Independent Review Process ruling in an attempt to overturn an adverse ICANN decision.
The challenge relates to the decision by ICANN, under the rules of the new gTLD program, to place applications for .hotels and .hoteis into a contention set due to their potential for visual confusion.
The two strings are heading to auction, where the winner will likely have to fork out millions.
In a missive to ICANN (pdf) last week, Booking.com outside attorney Flip Petillion said that the .africa IRP ruling shows that ICANN has to revisit its decision-making over .hotels.
The letter highlights a wider issue — how can ICANN follow community-established rules whilst sticking to its rather less well-defined Bylaws commitment to be “fair”?
Petillion wrote:

ICANN — and the BGC — has maintained the position 1) that the fact the process established by ICANN was followed is sufficient reason to reject that challenge and 2) that the fact that the process allowed neither for Booking.com to be heard nor for a review of the decision by the ICANN Board is of no relevance.
In the interim, IRP panels have confirmed that this process-focussed position is unsustainable. The ICANN Board has an overriding responsibility for making fair, reasoned and non-discriminatory decisions under conditions of full transparency.

He cites the .africa IRP decision to support this assertion.
Booking.com is the applicant for .hotels, while a different company, Travel Reservations (formerly Despegar Online), has applied for .hoteis, the Portuguese translation.
While both applicants are happy for the two gTLDs to co-exist on the internet, ICANN’s third-party String Similarity Review panel, part of the new gTLD evaluation process, ruled that they cannot.
They’re just too similar — in standard browser sans-serif fonts they can be indistinguishable — and would likely lead to user confusion, the panel decided in February 2013.
Booking.com challenged this decision with a Request for Reconsideration, which was dismissed.
It then filed an IRP, but that concluded this March with the panel awarding a grudging win to ICANN, which it orders should split the costs of the case.
In April, the ICANN board adopted the IRP panel’s findings, saying that the two applicants should remain in the contention set.
Booking.com, along with Travel Reservations, filed a second RfR, challenging the board’s decision, but this was rejected by ICANN’s Board Governance Committee in June.
The ICANN board has not yet formally adopted the BGC’s recommendations — I expect it to consider them at its next scheduled meeting, July 28 — hence Booking.com’s last-ditch attempt to get ICANN to change its mind.
Petillion wrote:

Simply following the processes and procedures developed by ICANN cannot alone be sufficient grounds for declining to review a decision. If the requirements of fairness, reasoned decision making, non-discrimination and transparency have not been met in the implementation of the process and procedures, the ICANN Board must, when invited to, conduct a meaningful review.

In the .africa case, the IRP panel ruled that ICANN should have asked the Governmental Advisory Committee for its rationale for objecting to DotConnectAfrica’s .africa bid, even though there’s nothing in the new gTLD rules or ICANN Bylaws specifically requiring it to do so.
However, in the Booking.com case, the IRP panel raised serious questions about whether the String Similarity Review rules were consistent with the Bylaws, but said that the time to challenge such rules had “long since passed”.
In both cases, ICANN followed the rules. Where the two panels’ declarations diverge is on whether you can win an IRP challenging the implementation of those rules — for DotConnectAfrica the answer was yes, for Booking.com the answer was no.
In a new gTLD program that has produced long lists of inconsistencies; IRP panel decisions appear to be but the latest example.
The question now is how the ICANN board will deal with the BGC recommendation to reject Booking.com’s latest RfR.
If it summarily approves the BGC’s resolution, without doing some extra due diligence, will it be breaking its Bylaws?