ICANN compliance not broken, Ombudsman rules

Ombudsman Chris LaHatte has rejected a complaint from spam research firm KnujOn — and 173 of its supporters — claiming that ICANN’s compliance department is failing consumers.
In a ruling posted online today, LaHatte said there was “no substance” to complaints that a small number of “bad” registrars, notably BizCN, have been allowed to run wild.
KnujOn’s Garth Bruen is a regular and vocal critic of ICANN compliance, often claiming that it ignores complaints about bad Whois data and fails to enforce the Registrar Accreditation Agreement, enabling fake pharma spamming operations to run from domains sponsored by ICANN-accredited registrars.
This CircleID blog post should give you a flavor.
The gist of the complaint was that ICANN regularly fails to enforce the RAA when registrars allow bad actors to own domain names using plainly fake contact data.
But LaHatte ruled, based on a close reading of the contracts, that the Bruen and KnujOn’s supporters have overestimated registrars’ responsibilities under the RAA. He wrote:

the problem is that the complainants have overstated the duties of the registrar, the registrant and the role of compliance in this matrix.

He further decided that allegations about ICANN compliance staff being fired for raising similar issues were unfounded.
It’s a detailed decision. Read the whole thing here.

Chehade talks up split from US oversight

ICANN CEO Fadi Chehade used his keynote address at the newdomains.org conference this morning to discuss his plans to divorce the organization from US governmental oversight.
With a split from the US recurring theme in his recent speeches, Chehade nevertheless warned that there were risks that such a move could create a dangerous governance vacuum.
“The current ICANN contract that gives the US government a unique role in the root management function is not sustainable,” he said. “It’s just not sustainable.”
That seems to be a reference to the IANA contract, in which the US has essentially a veto on ICANN’s decisions regarding root zone changes such as new gTLD delegations.
“I think we need to think together how we grow from that and how we globalize that contract,” he said. “But we need to be very careful about creating a vacuum or uninteded consequences that would destabilize the root of the internet.”
While Chehade noted that a split from the US has always been envisaged, he said that the revelations about US internet surveillance made by NSA defector Edward Snowden has provided a catalyst to speed it up.
When Brazilian president Dilma Rousseff recently called for a “multilateral” (read: inter-governmental, (read: ITU)) approach to internet governance, Chehade and an ICANN team traveled to Brazil to persuade her to instead focus on the creation of a “multistakeholder” model instead.
There’s now a “coalition” of the “I*” groups (ICANN, IETF, etc), big-name companies such as Disney, and governments such as Brazil, focused on creating multistakeholder solutions to problems — such as spam and cyber-bullying — that are not in ICANN’s purview Chehade said.
There’s a multistakeholder meeting planned for April or May next year (I’ve heard both dates), to be hosted by Brazil, that will look at internet governance post-Snowden.
This meeting is about “allowing ICANN to not expand its remit”, according to Chehade. He said: “We don’t want to expand our remit.”
What we seem to be looking at here is the creation for a new organization, of which ICANN could be a member, that will allow stakeholders to coordinate responses to tricky cross-border internet problems.
While ICANN seems to be taking the leading role in its creation, it doesn’t sound like ICANN is trying to get into issues beyond naming and addressing, judging by Chehade’s speech this morning
Chehade also talked up ICANN’s support for the domain name industry.
He admitted that ICANN has caused a lot of problems for new gTLD applicants over the course of the gTLD program, but promised that this will change, with ICANN taking a more “background” role.
“You need less risk and more stability from the ICANN side,” he said. “You have suffered for a long time from a lot of instability, a lot of unknowns.”
Increased automation, internationlization and professionalism from ICANN will serve this goal, he said.
ICANN’s compliance department, he added, should “not be the policeman for the industry but be customer service for the registrants”, he said.

First URS case decided with Facebook the victor

Facebook has become the first company to win a Uniform Rapid Suspension complaint.
The case, which dealt with the domain facebok.pw, took 37 days from start to finish.
This is what the suspended site now looks like:

The URS was designed for new gTLDs, but .PW Registry decided to adopt it too, to help it deal with some of the abuse it started to experience when it launched earlier this year.
Facebook was the first to file a complaint, on August 21. According to the decision, the case commenced about three weeks later, September 11, and was decided September 26.
I don’t know when the decision was published, but World Trademark Review appears to have been the first to spot it.
It was pretty much a slam-dunk, uncontroversial decision, as you might imagine given the domain. The standard is “clear and convincing evidence”, a heavier burden than UDRP.
The registrant did not respond to the complaint, but Facebook provided evidence showing he was a serial cybersquatter.
The decision was made by the National Arbitration Forum’s Darryl Wilson, who has over 100 UDRP cases under his belt. Here’s the meat of it:

IDENTICAL OR CONFUSINGLY SIMILAR
The only difference between the Domain Name, facebok.pw, and the Complainant’s FACEBOOK mark is the absence of one letter (“o”) in the Domain Name. In addition, it is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus the “.pw” is of no consequence here. The Examiner finds that the Domain Name is confusingly similar to Complainant’s FACEBOOK mark.
NO RIGHTS OR LEGITIMATE INTERESTS
To the best of the Complainant’s knowledge, the Respondent does not have any rights in the name FACEBOOK or “facebok” nor is the Respondent commonly known by either name. Complainant has not authorized Respondent’s use of its mark and has no affiliation with Respondent. The Domain Name points to a web page listing links for popular search topics which Respondent appears to use to generate click through fees for Respondent’s personal financial gain. Such use does not constitute a bona fide offering of goods or services and wrongfully misappropriates Complainant’s mark’s goodwill. The Examiner finds that the Respondent has established no rights or legitimate interests in the Domain Name.
BAD FAITH REGISTRATION AND USE
The Domain Name was registered and is being used in bad faith.
The Domain Name was registered on or about March 26, 2013, nine years after the Complainant’s FACEBOOK marks were first used and began gaining global notoriety.
The Examiner finds that the Respondent has engaged in a pattern of illegitimate domain name registrations (See Complainant’s exhibit URS Site Screenshot) whereby Respondent has either altered letters in, or added new letters to, well-known trademarks. Such behavior supports a conclusion of Respondent’s bad faith registration and use. Furthermore, the Complainant submits that the Respondent is using the Domain Name in order to attract for commercial gain Internet users to its parking website by creating a likelihood of confusion as to the source, sponsorship or affiliation of the website. The Examiner finds such behavior to further evidence Respondent’s bad faith registration and use.

The only remedy for URS is suspension of the domain. According to Whois, it still belongs to the respondent.
Read the decision in full here.

ICANN helps bust Russian child porn ring

ICANN recently helped break up a Russian child pornography ring.
That’s according to a remarkable anecdote from CEO Fadi Chehade, speaking during a session at the Internet Governance Forum in Bali, Indonesia today.
The “investigative effort” took “months” and seems to have entailed ICANN staff sifting through company records and liaising with law enforcement and domain name companies on three continents.
Here’s the anecdote in full:

We participated in a global effort to break down a child pornography ring.
You think: what is ICANN doing with a child pornography ring? Well, simple answer: where does child pornography get put up? On a web site. Where’s that web site hosted? Well, probably at some hosting company that was given the web site name by a registrar that is hopefully a registrar or reseller in the ICANN network.
We have a public responsibility to help with that.
We have some of the smartest people in the world in that space.
It took us months to nail the child pornography ring.
It took us through LA to Panama. We had to work with the attorney general of Panama to find the roots of that company. One of our team members who speaks Spanish went into public company records until he found, connected — these are investigative efforts that we do with law enforcement — then we brought in the registrars, the registries… and it turned out that this ring was actually in Russia and then we had to involve the Russian authorities.
ICANN does all of this work quietly, in the background, for the public interest.

Wow.
At first I wasn’t sure what to make of this. On the one hand: this obviously excellent news for abused kids and ICANN should be congratulated for whatever role it took in bringing the perpetrators to justice.
On the other hand: is it really ICANN’s job to take a leading role in covert criminal investigations? Why are ICANN staffers needed to trawl through Panamanian company records? Isn’t this what the police are for?
ICANN is, after all, a technical coordination body that repeatedly professes to not want to involve itself in “content” issues.
Session moderator Bertrand de La Chappelle, currently serving out his last month on the ICANN board of directors, addressed this apparent disconnect directly, asking Chehade to clarify that ICANN is not trying to expand its role.
In response, Chehade seemed to characterize ICANN as something of an ad hoc coordinator in these kinds of circumstances:

There are many topics that there is no home for them to be addressed, so ICANN gets the pressure. People come to us and say: “Well you solve this, aren’t you running the internet?”
We are not running the internet. We do names and numbers. We’re a technical community, that’s what we do.
But the pressure is mounting on us. So it’s part of our goal to address the larger issues that we’re not part of, is to frankly keep us focused on our remit. In fact, ICANN should become smaller, not bigger. It should focus on what it does. The only area we should get bigger in is involving more people so we can truly say we’re legitimate and inclusive.
The bigger issues and the other issues of content and how the internet is used and who does what, we should be very much in the background. If there is a legal issue, if we are approached legally by an edict of a court or… if it’s a process we have to respond to it.
We don’t want to be instigating or participating or leading… we don’t, we really don’t.

A desire to make ICANN smaller doesn’t seem to tally with the rapid expansion of its global footprint of hubs and branch offices and the planned doubling of its staff count.
Indeed, the very next person to speak on today’s panel was Chehade’s senior advisor and head of communications Sally Costerton, who talked about her team doubling in size this year.
I don’t personally subscribe to the idea that ICANN should be shrinking — too much is being asked of it, even if it does stick to its original remit — but I’m also not convinced that it’s the right place to be be carrying out criminal investigations. That’s what the cops are for.

US raises ITU bogeyman as Chehade pushes for exit

ICANN CEO Fadi Chehade and a US ambassador today both talked up the multistakeholder model as a cure to concerns about PRISM and related surveillance programs.
But the US warned against using the spying scandal to push internet governance into the hands of “centralized intergovernmental control”, which I’m taking to mean the International Telecommunications Union.
Chehade and Ambassador Danny Sepulveda, US coordinator for international communications and information policy, were speaking at the opening ceremony of the Internet Governance Forum in Bali, Indonesia.
Chehade went first, telling the audience that ICANN plans to set up legal structures in other countries in addition to the US, following on from the three-hub strategy he put in place earlier this year.
It’s part of his effort to internationalize ICANN, he said.
“While we are a California corporation today there is nothing that precludes us from being also, in addition to that, a legal organization in other places, and we intend to do that in order to make ICANN a more international organization,” he said.
He went on to say something that could be interpreted as his intention to get rid of or renegotiate the Affirmation of Commitments with the US government:

We also believe our commitment to the world should be indeed to the world and not to any particular stakeholder, and we will work towards that and change that.

Minutes later, Sepulveda took the stage to more or less agree with Chehade — at least at a high level — whilst simultaneously warning about too much governmental control over the internet.
He said:

The internet today is no more any one country’s than any others. It is no more any one stakeholder’s than any others.
…
We support an open dialogue on the modernization and evolution of the multistakeholder system that enables the operation of the global internet. Bottom-up, inclusive, cooperative efforts to empower users and enable innovation, free from arbitrary government control, is what the US has been pulling for all along.

He directly addressed the Montevideo declaration, which I wrote about earlier today, which he said was a call “to modernize the internet’s governing system and make it more inclusive”.
The declaration, he said, “should be seen as an opportunity to seek that broad inclusion and for organizing multistakeholder responses to outstanding internet issues”.
“We must work together with these organizations, in good faith, on these important issues,” he said.
“We should however guard against recent arguments for centralized intergovernmental control of the internet that have used recent news stories about intelligence programs for their justification,” he said.
This seems to be a reference to the ITU, the standard US bogeyman when it comes to control over ICANN.
Watch Chehade’s speech here, then fast forward to 1:25 to hear Sepulveda’s response.

ICANN using PRISM as excuse to break from the US

ICANN CEO Fadi Chehade, with backing from government leaders, is using the recent revelations about the PRISM mass surveillance program to try to speed up ICANN’s split from the US.
Speaking to an American radio station, Chehade said yesterday:

I think the current role the United States has with ICANN was always envisaged to change. The timing of that was the question — not if, it was just when. I think now it is clear that we need to talk about changing that role and evolving it to become a more global role where all stakeholders, not just governments, have an equal footing in the governance of the Internet. So the timing has been put into clear focus right now, that is what’s happening.

He was speaking from the latest Internet Governance Forum in Bali, where today he reiterated his calls for “all governments and all stakeholders” to work together “on equal footing”.
Similar rhetoric has been dribbling out of ICANN for the last couple of weeks.
Earlier this month, Chehade met in Montevideo, Uruguay, with the leaders of the five Regional Internet Registries, the World Wide Web Consortium, the IETF, ISOC and the IAB to discuss “current issues affecting the future of the Internet.”
They came out with the Montevideo Declaration, which states in part:

They reinforced the importance of globally coherent Internet operations, and warned against Internet fragmentation at a national level. They expressed strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance.
They identified the need for ongoing effort to address Internet Governance challenges, and agreed to catalyze community-wide efforts towards the evolution of global multistakeholder Internet cooperation.
They called for accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.

The first and third paragraphs, taken together, suggested that ICANN was yet again ready to start talking about casting off the US government’s special oversight role, and that it would use Edward Snowden’s PRISM revelations as a way back into the conversation.
Milton Mueller of the Internet Governance Project first blogged about this, talking about ICANN “abandoning the US government”, prompting much media speculation about America’s future role in internet governance.
Chehade has been on the road, it seems, since Montevideo, first stopping off in Brazil to lend his encouragement to President Dilma Rousseff’s proposal for an April 2014 conference to discuss internet governance in light of the Snowden revelations.
Rousseff herself was targeted by the NSA and has become one of the most vocal government leaders in criticizing the US spy programs.
Lately it seems Chehade has been in India, where he told the Economic Times:

When any government decides to use a resource like the internet in ways that erodes the public trust, it is very regrettable. I feel like I’m the public trustee of the internet. All of us should be equal stewards of the public trust.
So when any one takes it away, it distresses all of us. It is not just by the recent revelations about PRISM, but there are other revelations that are coming out as well. Countries are employing millions of people to track the movements of their fellow citizens.
…
I would argue that the recent developments have emboldened people to make sure all stakeholders are participating on equal footing, including all governments.

All of this posturing raises a few basic questions, the first of which is: what does PRISM have to do with ICANN?
The answer, it seems, is “nothing”.
The PRISM revelations have implicated the likes of Google, Microsoft and Facebook — all apparently cooperating with the NSA’s mass gathering of data on civilian internet users — but no domain name players.
If the Guardian were to report tomorrow that major infrastructure players such as Verisign or Go Daddy were also involved, I would not be in the least surprised, but so far I have yet to see a connection between the domain name business and NSA spying.
In that light, if ICANN were to sever its special relationship with the US, there would be presumably no impact whatsoever on PRISM or any other surveillance program.
Chehade’s current campaign therefore seems to be politically opportunistic at best and a distraction from the underlying problem of US human rights violations at worst.
But what is meant when people speak of “splitting from the US” anyway?
It seems to me there are three important areas where the US government has undue power over ICANN: jurisdiction, the Affirmation of Commitments and the IANA contract.
ICANN is based in California and subject to US federal law. While that continues to be the case, it will always be subject to the possibility of having its work thwarted by a US court or spurious lawsuit.
It also hampers ICANN’s ability to do business with some nations unencumbered by US trade embargoes, though ICANN is usually able to secure the requisite licenses when it needs to.
It’s also always going to be at risk of being hauled over the coals by Congress every couple of years, due to lobbying by US special interest groups, which interferes with its credibility as a global organization.
ICANN has already started setting up shop in other parts of the world. New “hub” offices in Istanbul and Singapore are being characterized as being on equal footing with the LA headquarters.
But that characterization seems disingenuous.
The Affirmation of Commitments, signed by the US Department of Commerce and former ICANN CEO Rod Beckstrom in 2009 and largely negotiated under his predecessor Paul Twomey, is one of ICANN’s principal governing documents.
One of ICANN’s commitments under the AoC is to “remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community”.
Being US-based is baked into ICANN’s governance. If the US has to go, the AoC has to go, which means all the other accountability and review obligations in the AoC also have to go.
The third prong of US control is the IANA contract and the trilateral relationship between ICANN, Verisign and the US National Telecommunications and Information Administration.
The NTIA, essentially, controls the DNS root. Verisign actually manages the boxes it runs on, but it only makes changes — such as adding new gTLDs or redelegating ccTLDs to new registries — with NTIA authorization. That authorization, in turn, is basically a rubber stamp on an IANA/ICANN recommendation.
To the best of my knowledge, NTIA has never abused its authority to overrule an ICANN determination, or pressured ICANN into making a US-friendly recommendation.
But the process by which ICANN recommends changes to the root is pretty opaque.
I have to wonder why, for example, it took two years for Iran’s IDN ccTLD to get approved by ICANN’s board. Only the lack of any outcry from Iran suggests to me that the delay was benign.
When ICANN was founded in 1998, the original plan was for control of the root to enter ICANN’s hands before the end of the Clinton administration (ie 2000), but over the years that plan has been abandoned by the US.
The IANA contract was put up for renewal in 2011 — with a strict provision that only US-based organizations were able to apply — and then-CEO Beckstrom also pushed for more ICANN independence.
In 2011, Beckstrom was making many of the same noises Chehade is today, saying that the IANA function should be a looser “cooperative agreement” rather than a US procurement contract.
In March that year, calling for such an agreement he said at ICANN’s San Francisco meeting:

When all voices are heard, no single voice can dominate an organization – not even governments. Not even the government that facilitated its creation.

The NTIA’s response was, basically, to give Beckstrom the finger.
It said in June 2011 that it “does not have the legal authority” to do what was asked of it, then produced an IANA contract that gave itself and governments in general much greater powers to micromanage ICANN.
After delays, rejections and giving ICANN the general runaround, the NTIA finally signed off on its new IANA contract in July last year, on the final day of Beckstrom’s tenure as CEO.
It lasts until September 30, 2015, with two two-year renewals options.
If Chehade wants to unshackle ICANN from the US, the IANA contract will have to be a cornerstone of that project.
But NTIA’s past performance makes that possibility seem unlikely, unless Chehade can rally enough political pressure from the likes of Brazil and India to change his own government’s mind.
He faces an uphill battle, in other words, and at the end of the day whether breaking from the US government would be a good thing or not depends entirely on what, if anything, replaces it.
Whatever happens, let’s not pretend that ICANN’s independence has anything to do with PRISM, and let’s not allow ICANN to distract us from the wholesale violations of our rights that the US government is perpetrating.

Ralph Lauren can’t have .polo, panel rules

Ralph Lauren’s application for the dot-brand .polo is likely at an end, after the International Chamber of Commerce ruled that it would infringe the rights of polo players.
The Community Objection to the gTLD was filed by the US Polo Association, the governing body of the sport in the US, and supported by the Federation of International Polo, along with seven national and 10 regional US-based polo associations.
The FIP letter was crucial in ICC panelist Burkhard Hess’ decision to find against Ralph Lauren, persuading him that there was “substantial opposition” from a “clearly delineated” polo-playing community.
The word “polo” was often used in straw man arguments when the new gTLD program and its objection mechanisms were being designed. Who gets .polo? Ralph Lauren? Volkswagen? Nestle? The sport?
Well, now we know: according to the ICC, the sport will probably trump any dot-brand.
The precedent might be bad news for Donuts and Famous Four Media, which are facing Community Objections from the international governing bodies of rugby and basketball on .rugby and .basketball.
However, none of those applications are for dot-brand spaces.
Under the Community Objection rules, the objector has to show that the gTLD would harm its interests is delegated.
In the case of .polo, the panelist found detriment largely due to the fact that Ralph Lauren’s plan was for a single-registrant space from which the sports associations would be excluded.
With open, unrestricted .basketball and .rugby applications, it’s likely to be much harder for the objectors to prove that the gTLDs would damage the sport.

What does Neelie Kroes know about multistakeholderism?

European Commission vice president Neelie Kroes wants “your ideas on how the Internet should be governed and what Europe’s role should be.”
In a survey launched last week, Kroes, who has special responsibility for the “digital agenda” in Europe, criticized ICANN’s “multi-stakeholder” process.
She solicited suggestions on how governments should be treated within ICANN, and asked “How can a move from unilateral to multilateral accountability be realised?”
Kroes said on her blog (link in original):

we also must have a clearer view of what we mean when we speak of “multi-stakeholder processes”. I worry that without a clear definition, everyone will claim that their decision processes are inclusive and transparent, when in practice they are not – as was shown recently, when the Governmental Advisory Committee of ICANN pressed on regardless – in spite of the EU’s legitimate concerns on new domain names.

Let’s parse this.
On the one hand, Kroes is stating that ICANN’s process is not “inclusive and transparent”.
On the other, she’s linking to her own demands for special privileges for the European Commission in the debate over whether wine producers need special protections in the new gTLDs .wine and .vin.
I reported on Kroes letter a month ago.
As the letter and the public record makes plain, the GAC had originally asked ICANN for more time in order to consider whether the .wine protections were warranted.
In the end, the GAC was unable to reach a consensus on the matter and advised ICANN accordingly.
With no GAC consensus, ICANN has no mandate to act.
But Kroes wants ICANN to delay the .wine and .vin applications anyway, based on little more than the European Commission’s unilateral demands.
Is her definition of a “multi-stakeholder” process one in which individual governments get to override the consensus of dozens of governments? It certainly looks that way.
And it wouldn’t be the first time Kroes has tried to usurp the multi-stakeholder process in order to get what she wants.
Back in June 2011, she called for ICANN to be reformed because she didn’t like the fact that ICANN did not accept all the GAC’s advice when it approved the new gTLD program.
A month earlier, she privately wrote to the US Department of Commerce — which controls the DNS root server — to ask that it refuse to delegate the recently approved .xxx gTLD.
That would have been an unprecedented and worrying move by Commerce, and naturally it declined.
But the fact that Kroes even asked makes me wonder how serious she is about “multistakeholderism”.
It’s a newish term, poorly defined, but reason dictates that it means you can’t always get what you want.
Kroes blog post is available here. More information about her call for comments can be found here.

Reconsideration is not an appeals process: ICANN delivers another blow to Amazon’s gTLD hopes

Amazon has lost its appeal of a ruling that says its applied-for new gTLD .通販 is “confusingly similar” to .shop, with ICANN ruling that its Reconsideration mechanism is not an appeals process.
The e-commerce giant lost a String Confusion Objection filed by .shop applicant Commercial Connect in August, with panelist Robert Nau ruling that the two strings were too confusing to co-exist.
That’s despite one of the strings being written in Latin script and the other Japanese. The ruling was based on the similarity of meaning: 通販 means “online shopping”.
Amazon immediately filed a Reconsideration Request with ICANN.
Days earlier, Akram Atallah, president of ICANN’s Generic Domains Division, had described this process as one of the “avenues for asking for reconsidering the decision”.
Atallah was less clear on whether Reconsideration was applicable to decisions made by third-party panels — the new gTLD program’s Applicant Guidebook contains conflicting guidance.
ICANN’s Board Governance Committee, which handles Reconsideration Requests, has now answered that question: you can ask for Reconsideration of a new gTLD objection ruling, but you’ll only win if you can prove that there was a process violation by the panel.
In its decision, the BGC stated:

Although Commercial Connect’s Objection was determined by a third-party DRSP, ICANN has determined that the Reconsideration process can properly be invoked for challenges of the third-party DRSP’s decisions where it can be stated that either the DRSP failed to follow the established policies or processes in reaching the decision, or that ICANN staff failed to follow its policies or processes in accepting that decision.

That’s moderately good news as a precedent for applicants wronged by objections, in theory. In practice, it’s likely to be of little use, and it was of no use to Amazon. The BGC said:

In the context of the New gTLD Program, the Reconsideration process does not call for the BGC to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints.
…
As there is no indication that either the ICDR or the Panel violated any policy or process in accepting and sustaining Commercial Connect’s Objection, this Request should not proceed. If Amazon thinks that it has somehow been treated unfairly in the process, and the Board (through the NGPC) adopts this Recommendation, Amazon is free to ask the Ombudsman to review this matter.

While the BGC declined to revisit the substance of the SCO, it did decide that it’s just fine for a panelist to focus purely on the meaning of the allegedly confusing strings, even if they’re wholly visually dissimilar.

The Panel’s focus on the meanings of the strings is consistent with the standard for evaluating string confusion objections. A likelihood of confusion can be established with any type of similarity, including similarity of meaning.

In other words, Nau’s over-cautious decision stands: .通販 and .shop will have to enter the same contention set.
That’s not great news for Amazon, which will probably have to pay Commercial Connect to go away at auction, but it’s also bad news for increasingly unhinged Commercial Connect, whose already slim chances of winning .shop are now even thinner.
Commercial Connect had also filed a Reconsideration Request around the same time as Amazon’s, using the .通販 precedent to challenge a much more sensible SCO decision, which ruled that .shop is not confusingly similar to .购物, Top Level Domain Holdings’ application for “.shopping” in Chinese.
The BGC ruled that the company had failed to adequately state a case for Reconsideration, meaning that this objection ruling also stands.
The big takeaway appears to be that the BGC reckons it’s okay for objection panels to deliver decisions that directly conflict with one another.
This raises, again, questions that have yet to be answered, such as: how do you form contention sets when one string has been ruled confusingly similar and also not confusingly similar to another?

dotShabaka Diary — Day 17, Collisions plan is a dog’s breakfast

The seventeenth installment of dotShabaka Registry’s journal, charting its progress towards becoming one of the first new gTLDs to go live, written by general manager Yasmin Omer.

Thursday 10 October 2013
As regular readers of this journal will know, we have been frustrated by the lack of certainty surrounding the new gTLD program.
Other industries would have picketed the building of the regulator with suitably angry placards being waved and a catchy song. Unfortunately in the domain name industry, angry blogs serve as a replacement to chaining ourselves to Fadi’s swivel chair.
So as a compromise, I ask readers to hum their favourite protest tune while reading our latest tale of woe.
Flippant commentary aside, the document ICANN released on name collisions yesterday (New gTLD Collision Occurrence Management) is a perfect example of what many applicants find challenging about ICANN staff’s use of the public comment process.
Despite the many detailed studies undertaken by a number of applicants and reported through the public comment process, it would appear that many of the recommendations or proposed solutions have been ignored by ICANN staff and the NGPC in favour of something that resembles a ‘dog’s breakfast’.
You’ll recall that ICANN made some suggestions to mitigate the risk of name collisions. There were three categories: High (dead men walking), Uncategorised (deer in headlights) and Low (phew ).
There was going to be a study about something at sometime that would decide stuff and the aforementioned deer would roam free. There was going to be a TLD tasting period during which time registries got to play spammer to unsuspecting ISPs (I wonder if I can get a refund like domain tasters used to, if I don’t get enough traffic?).
A comment period was had and people duly commented. Neither the original suggestions nor the comments seem to have any connection with what appeared in the document we read yesterday. The actions and processes discussed in the document are completely new. Oh, and the Board approved them.
A thought for those in the industry: are we so inured to this kind of procedural disdain that one more example simply doesn’t make us angry anymore?
So what of the document? Is it good for us and the industry? Well there is no low or uncategorised risk grouping anymore. Everyone is in the same bucket of riskiness. Depending on who you are, that might be good for you.
The TLD tasting period, where a TLD was delegated and emails were sent to every poor soul who made the mistake of looking up a non-existing TLD, is gone. That is definitely good. An outreach program with network operators and ISPs seems like an eminently sensible idea. A spam campaign chasing random DNS queries seems like a mad idea.
Now to the grim news – there will be another study (isn’t there always) and another process (if it’s implementation can we just… oh never mind).
The study will tell us which strings from the DITL data set (and other unnamed sets) are risky and why and what we should do with them. Such risk will be contextual to the TLD in question. There’s no detail on how many strings we are talking about. There’s no criteria for the string’s presence in the list (number of queries, type of queries, known risks etc). That sounds like a large chunk of work. No matter how it is automated.
The process to be determined is how the strings and suggested mitigations are delivered to and managed by registries. There’s potentially a lot of future system development and labour costs on the horizon for TLD operators.
Many TLDs will not need to wait for this completed work to delegate. However they must accept from ICANN a list of names they can’t delegate until the process/study and their personalised list of names is completed.
Firstly ICANN has to decide if you can take this option up. How will they do that you ask? I would point you to the very clear decision tree located within the document, only it appears to have been left out. Coming soon.
Second, ICANN has to create and send you the standby extra cautious list. Now we are getting nervous. Just how many names will be on this list? Will there be any filtering or common sense applied? Is the extra cautious list subject to comment? Does it exist already?
There’s also a new process that allows someone who suffers harm from the delegation of a second level domain to have it blocked for a period of up to 2 years. When one thinks through such a process it seems most likely that this harm is only determined after the delegation, not prior. Therefore Registries may be in a position where they need to un-delegate a domain already in use by a registrant.
That could be a rude shock to some innocent registrants. The principle of doing this bothers us. The practical and legal implication of doing this bothers us. And the lack of any detail around how this process is managed, most definitely bothers us.
Whenever I hear process and study I also hear delay. In fact the modus operandi of those opposing the gTLD program has not been to fight it, but to suggest one more study and another process, knowing the effect such activities will have.
So here we are, certain in our uncertainty that one day – soon or not so soon – we will be delegated.
We can’t be the only ones who have internal jokes about the randomness of ICANN policy development. They help us make light of the otherwise business crippling proclamations we receive with no warning.
Don’t you wish, just for once, those jokes weren’t so true?

Read previous and future diary entries here.