Applicants spank IO in .health objections

Donuts and Dot Health LLC have beaten back objections filed by ICANN’s Independent Objector over the .health gTLD.
In simultaneous separate rulings by the same three-person International Chamber of Commerce panel, it was decided that the string “health” is not intrinsically offensive.
The IO, in his Limited Public Interest Objections, had argued that health is a human right protected by international law, and that .health should be managed with certain safeguards to protect the public.
But the ICC panels sided with the applicants, finding that in order for an objector to prevail in a LPI objection he must show that the string itself contravenes international law.
The panels used a strict reading of the Applicant Guidebook and supporting documentation to come to their conclusions. In the Donuts case, the panel ruled:

The Panel has no hesitation in finding that the string “health” is not objectionable in and of itself. It is obvious to the Panel that the word “health” does not conflict with any generally accepted legal norms relating to morality and public order of the same nature as the first three grounds ICANN listed in AGB Section 3.5.3.

The LPI objection was created in order to prevent gTLDs from being delegated where the string itself endorses ideas such as racism, slavery or child abuse.
ICANN has said that applications for such strings “may well be rare or non-existent”.
The panels sharply dismissed claims that IO, Alain Pellet, and a staff member were conflicted due to their previous work for the World Health Organization.
The Donuts ruling is here and the Dot Health ruling is here.

The plurals debate is over as ICANN delegates 17 more new gTLDs

Another 17 new gTLDs were delegated to the DNS root last night, most of them belonging to Donuts.
Notably, Donuts now runs .photos and .careers, the first two delegated gTLDs where live applications also exist for the singular form of the string.
Uniregistry is currently contracted and awaiting the delegation of .photo, while dotCareer is already contracted for .career.
The debate about whether ICANN should permit singular and plural versions of the same string to coexist is now surely over.
Just a week ago, the Internet Association — a trade group comprising Amazon, Google, AOL, Yahoo, Salesforce, Zynga and many others — called on ICANN to rethink its policy of coexistence.
Calling the policy a “violation of user trust”, the Association said (pdf), “the existence of these domain names poses significant risks to the DNS, Internet companies, and their users”.
The Association noted that the Governmental Advisory Committee had strong concerns about singular and plural coexistence, due to the risk of consumer confusion.
String Confusion Objection panels have reached quite different conclusions about whether adding an “s” makes a string confusingly similar to another.
Personally, while I’m all for competition, I believe coexistence will lead to parasitical business models that will bring the domain name industry into further disrepute.
I know for a fact that some registries are considering the merits of tailgating their confusingly similar competitors.
But it seems ICANN’s decision was final.
There’s currently no mechanism for ICANN to un-approve a gTLD once it’s been delegated — failing serious wrongdoing by the registry — so it’s difficult to see how it could now decide that plural and singular forms of the same string should be mutually exclusive.
While I’m sure the Internet Association and others will carry on complaining, I think they’re now talking to deaf ears.
There were 17 new gTLDs delegated yesterday in total, 15 of which were in Donuts portfolio.
Donuts has also added the following to its portfolio: .cab, .camp, .academy, .center, .company, .computer, .domains, .limo, .management, .recipes, .shoes, .systems and .viajes (Spanish for “travel”).
CONAC, the China Organizational Name Administration Center had .政务 (“government”) and .公益 (“public interest”) delegated.

ICANN publishes accelerated gTLD auction timeline

ICANN has cut the anticipated length of its “last resort” new gTLD auctions in half, last night publishing a schedule that would take 10 months and end in early 2015.
The draft schedule and auction rules, put together by selected auctioneer Power Auctions, would see 10 monthly batches of auctions, with 20 contention sets resolved per month.
The revised rules, which are open for public comment, read:

It is anticipated that Auctions will be conducted once per month to resolve 20 Contention Sets per Auction, with the intention to complete all Auctions within one (1) year from the date of the first Auction.

It’s still anticipated that auctions will begin in March 2014.
That’s a lot better for applicants than the original plan, which was to limit each applicant to only five auctions per month. Due to Donuts’ large portfolio, that would have stretched the process out to April 2016.
An accompanying schedule (pdf) published last night actually batches up 201 of the remaining contested gTLDs into 10 buckets, so most applicants now know where they stand.
It’s good news for applicants that have high priority numbers but are in contention sets with applicants with low priority numbers — they’ll get bumped to the front of the queue.
For example, dot Buy Limited drew 1,883 in the prioritization lottery, but will be in the first monthly auction because it’s up against Amazon, with priority number 128, for .buy.
There’s still no news about how ICANN will handle indirect contention, however.
While the schedule has placed the likes of .unicom and .unicorn — which were found similar by evaluation panels — in the same auction, it does not yet reflect the results of objections that should (in theory) place different strings in the same contention set.

Should new gTLD objections have an appeals process?

That’s the question the ICANN Ombudsman is asking today.
Several new gTLD applicants that have lost objections — many in decisions that appear to diverge from ICANN’s rules or are inconsistent with other decisions — have been in touch to ask for redress, Ombudsman Chris LaHatte blogged this morning. He wrote:

The real problem as it seems to me, is that apart from the internal review procedures, there is no ability to seek an appeal from the panel decisions. A number of complainants had mentioned the need for an appeal process, emphasising that some of the decisions were in their view, inconsistent or not following the majority views.

LaHatte noted that his role is to decide issues of fairness in ICANN’s own decisions. As objections are all handled by third-party arbitration bodies, it’s not at all clear whether he has any authority at all over objection decisions.
Applicants have also been invoking the Reconsideration process en masse in an attempt to have successful objections overturned, but all Reconsideration requests to date have been rejected.
Reconsideration generally requires that the requester provide ICANN with new evidence that was not considered at the time of the original decision.
The ICANN Board Governance Committee, which handles Reconsideration, appears to be happy to leave objections in the hands of the arbitrators so far.
But the new gTLD objection process is a bit of a joke at the moment.
String Confusion Objection panelists have delivered inconsistent decisions, while Community Objection and Limited Public Interest Objection panels often seem to be making up rules as they go.
So should ICANN have an appeals process? If one is created it will undoubtedly be broadly used.

Islamic states to “officially object” to .islam

The Organization for Islamic Cooperation has decided to “file an official objection to the use of gTLDs .Islam and .Halal”, following a summit of 56 foreign ministers.
In a resolution (pdf) from the OIC’s high-level summit in Guinea this week, the organization also said it will become “an effective member” of ICANN, closely monitoring its work.
As previously reported, ICANN’s Governmental Advisory Committee was unable to reach a consensus to object to .islam and .halal, leaving it to ICANN’s board of directors to decide whether to approve them.
The OIC’s resolution is expected to become an important input to that decision-making process, after GAC chair Heather Dryden asked ICANN to take note of the Guinea meeting’s output.
The resolution also calls for the OIC to investigate how to run its own Islamic gTLDs.
The OIC has of course missed the boat by several months if it wants to file an objection to these gTLDs within the rules of the new gTLD program.
Instead, it’s going to have to hope that its entreaties to the ICANN board will be effective.

ICANN will have to make a call on .islam

ICANN is going to have to decide whether to approve the new gTLDs .islam and .halal, after the Governmental Advisory Committee punted the issue.
GAC chair Heather Dryden told ICANN chair Steve Crocker last week (pdf) that the GAC will not provide ICANN with the clarity it so wanted on the two controversial gTLDs.
“[T]he GAC concluded its discussions on these applications with the advice provided in the Beijing Communiqué,” Dryden said. “Accordingly, no further GAC input on this matter can be expected.”
ICANN is therefore left with the following advice:

The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

My take on this is that the GAC has provided what is often called a “non-consensus” objection, which I believe triggers one of the vaguest parts of the Applicant Guidebook.
One of the three types of GAC Advice on New gTLDs reads:

The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

It seems pretty obvious now that ICANN’s board — nowadays its New gTLD Program Committee — is expected to make a decision whether to accept or reject .islam and .halal.
It would be the first time that ICANN has had to decide whether to reject a gTLD for public policy reasons without the full backing of the GAC in this application round.
It faced a similar conundrum in the 2003 round — albeit using different rules of engagement — when it had to decide the fate of .xxx (which it obviously chose to approve).
The applicant for .islam and .halal is Turkey-based Asia Green IT System.
The Organization for Islamic Cooperation, which claims to represent 1.6 billion Muslims, does not support the bids. It backed two formal Community Objections to the applications, which both failed.
The OIC’s Council of Ministers is meeting this week in Conakry, Guinea, and is expected to come out with some kind of formal statement opposing Islamic-oriented gTLDs that lack support.
The strength of that statement may prove decisive when ICANN comes to consider the issue.

IPO warns about premium loopholes in new gTLD trademark protection

It seems like it’s been an age since we last heard the intellectual property lobby pushing for stronger rights protection mechanisms in new gTLDs, but they’re back just in time for the first launches.
The Intellectual Property Owners Association has written to ICANN this week to warn about loopholes in the standard new gTLD Registry Agreement related to premium name reservations that the IPO said “will adversely affect trademark rights holders”.
The letter (pdf) makes reference to two specific parts of the contract.
Specification 5 enables registries to reserve up to 100 names “necessary for the operation or promotion of the TLD” in section 3.2 and an unlimited number of names in section 3.3.
Section 3.3 is vague enough that I’m aware of new gTLD applicants that still don’t know whether it allows them to reserve an unlimited number of “premium” names or not.
However, most new gTLD registries I’ve talked to appear to be convinced that it does. DotKiwi’s recently announced premium plan seems to be taking advantage of 3.3.
The IPO is worried that massive lists of premium names will wind up containing lots of strings matching trademarks, which will prevent mark holders from defensively registering during Sunrise.
Worse, the IPO said it could lead to registries milking trademark owners for huge fees to register their “premium” marks. It said:

such reservations would invite the abuse of protected marks. For instance, Registry Operators may reserve the marks of protected brands to leverage premium sales. Further, Registry Operators may use this ability to release names to market competitors of the brand owners.

The counter argument, of course, is that owners of spurious trademarks on generic terms could game Sunrise periods to get their hands of potentially valuable domain names (cf. the .eu sunrise)
The IPO wants ICANN to expand the Trademark Clearinghouse to send Trademark Claims notices to new gTLD registries when they reserve a name matching a listed trademark.
It also wants a new dispute procedure that mark owners could use to get names released from reserved status. It would be like UDRP, but modified to allow for registries to reserve dictionary words related to their gTLD strings, the IPO said.
If my sense of the mood of ICANN’s leadership during last month’s Buenos Aires meeting is anything to go by, I can’t see these last-minute requests for changes to RPMs getting much traction, but you never know.

Nominet drops libel lawsuit against domain blogger

UK registry Nominet has withdrawn its lawsuit against a domainer who had allegedly published “defamatory” remarks about CEO Lesley Cowley on his blog.
The defamation complaint was filed against Graeme Wingate over his blog Avoid.co.uk in January.
Nominet said yesterday that it “continues to refute entirely the untrue allegations made” on the site, which focuses on Cowley’s “dishonest” behavior surrounding Direct.uk and the ongoing controversy related to the 2008 board-level scandal and subsequent employment tribunal of former policy chief Emily Taylor.
Cowley said in a statement:

With a major programme of work underway to transform the .uk namespace, this action is now an unwelcome distraction. I refute the allegations entirely, but recognise that a far better use of the team’s time and energy is to focus on steering Nominet safely through a period of unprecedented change.

Nominet will pay Wingate’s costs.
It’s difficult to see this as anything other than a win for Wingate, who has continued to blog throughout the legal proceedings.
Wingate stood unsuccessfully for a seat on Nominet’s board of directors this year, alongside fellow Nominet critic Lucien Taylor, husband to Emily.

Why ICANN should stop taking the “Malvinas” issue seriously [RANT]

Here in the UK, we have something not very nice called the British National Party.
It’s a perfectly legal political party but, as the name may suggest, it has an overtly racist manifesto, garners few votes, and holds next to no power.
Voting BNP is frowned upon in polite company. Don’t expect too many dinner party invitations if you’re a supporter. It’s even legal here for employers to discriminate against card-carrying members.
The most unpleasant manifesto promise of the BNP is to “encourage the voluntary resettlement” of “immigrants”.
Britain, the BNP says, should be for its “indigenous people”, which it has described as “the people whose ancestors were the earliest settlers here after the last great Ice Age”.
That’s about 10,000 years ago. It’s basically the BNP’s way of rationalizing its racism with a cut-off point for what constitutes an “immigrant” that falls well before anyone with brown skin showed up.
None of this has anything to do with domain names, of course.
I only mention the BNP because its ludicrous views always spring to my mind whenever I hear an Argentinian activist raise the issue of the Falkland Islands at an ICANN meeting.
This happened quite a lot at the Public Forum of the ICANN 48 meeting in Buenos Aires, Argentina last Thursday.
It wasn’t the first time the Falklands have been discussed at an ICANN meeting but, on home turf, many locals who would not otherwise consider attending decided to show up to make their views known.
Argentinians call the Falklands archipelago, a British Overseas Territory situated in the southern Atlantic about 500km to the east of Argentina, the “Malvinas”.
Originally settled by France in the late 18th century, Britain has controlled the islands more or less continuously since 1834 and at intervals as far back as 1765, before Argentina existed.
Spain was in charge for a few decades from 1767 and then Argentina, after its independence, had a hold for a few years from 1829.
The only time Argentina has had a claim recently was during a two-month period in 1982, when Argentina invaded, starting a pointless war that claimed the lives of 255 British and 649 Argentinian service personnel, wounding a few thousand more.
In case this history lesson is new to you, I should point out that the Falklands are not and have never in living memory been in any way “occupied” by the UK.
The islanders are all British citizens and have the right of self-determination: they want to be British. According to the 2013 electoral roll, only 18 Argentinians live there, of a population of almost 3,000.
So it really boils my piss when I have to listen to Argentinians take to the mic at ICANN meetings to demand — demand — that ICANN transfers the Falklands ccTLD, .fk, to Argentina’s ccTLD operator, Nic.ar.
It turns my piss to steam when members of the ICANN board of directors humor these demands — vowing to take their concerns seriously or, even worse, agreeing with the use of terms like “occupation”.
This happened quite a lot on Thursday.
The ring-leader of the Argentine position is a guy called Sergio Salinas Porto. He’s president of Internauta Argentina, an organization of Argentinian internet users.
He seems to be a bit of a one-trick pony when it comes to public statements at ICANN meetings. The Latino Paul Foody, maybe. It’s possible that I’m giving him more credibility than he deserves.
He made similar demands at the ICANN meetings in Senegal in 2011 and Costa Rica last year. This time, however, he seems to have managed to drag some of his supporters with him.
The real-time interpretation provided by ICANN is not good enough to quote from directly at any length, but Internauta published its list of demands on its web site after the Public Forum. Among them (machine-translated from the original Spanish):

That the Argentine authorities (legal and technical secretariat – NIC.ar) will deliver the administration of ccTLDs .fk and .gs.
That all ccTLDs involving debate on issues of sovereignty and further promote colonialist acts or harboring or see these acts are protected from any administrative or factual act by ICANN are reviewed.

It also wants the Falklands referred to as the “Malvinas”, alongside “Falklands”, in ICANN documentation, and for .fk to fall into the Latin-American, rather than European, ICANN region.
But the key demand here is that control of a ccTLD that is currently delegated to a territory’s government — the Falkland Islands Government in this case — is transferred to the government of another country, based on emotive arguments such as “occupation” and “colonialism”.
At the mic, Salinas Porto reiterated these points almost word for word, judging by the ICANN interpreter’s translation — asking for the redelegation and using the same emotive arguments.
The demand was restated by multiple Argentinian commenters.
It was restated so many times that session moderator Bertrand de La Chappelle — who had graciously allowed Salinas Porto to jump to the front of the queue for the mic — took no small amount of flak from Internauta’s supporters for trying to hurry people along in the interests of timing.
One talked of “a dark and colonial power”, another talked of “decolonization”, one said he felt “invaded” by ICANN, a fourth said that “the Malvinas islands were taken by a colonial power by force”.
This is pure chutzpah.
It may be true that the Falklands were seized militarily by Britain. My history is not good enough to pass comment. Whatever happened, it was 180 years ago. Everyone involved is long dead.
Argentina indisputably seized the islands militarily during my lifetime. The records on this are pretty good. Living servicemen on both sides today bear the physical and emotional scars of Argentina’s folly.
Now consider that Argentina was among a coalition of Latin American nations that recently used the Governmental Advisory Committee to kill off the application from Patagonia Inc for the new gTLD .patagonia.
That was based on the governments’ claims that Patagonia — a region that covers areas of Argentina and Chile — should be a protected term in the domain name system. They have sovereignty, they claim.
Yet the Patagonia region was claimed by Argentina during the so-called “Conquest of the Desert”, an act of “colonization” that involved the “genocide” of over 1,000 indigenous people and dislocation of 15,000 more. That’s even more people than killed in 1982.
And Argentina did this act of colonization in 1870, three decades after the British took over the Falklands, which had no indigenous peoples (if you’re not counting the penguins).
If there’s a serious question about the ownership of .fk, shouldn’t the same logic should apply to .patagonia? Argentina can’t have it both ways, can it?
If the cut-off point for ownership of a territory is pre-1834, then Argentina can have no claim over .patagonia.
It’s a ludicrous thing to say, I know. I can barely believe I’m making the argument, it’s so silly. I feel almost Amish, or BNP, or one of the Conkies, to try to use an arbitrary cut-off date like that.
That’s probably why nobody from the UK took the mic at the ICANN Public Forum on Thursday to respond to Salinas Porto and Internauta’s supporters.
Maybe they didn’t want to provide oxygen to the illusion that there is a real debate here (in which case they’re smarter than me), or maybe they were far too polite to risk insulting their host nation by joining in on the trivialization of a political conflict that has resulted in the death and maiming of so many (in which case I’m embarrassing myself here).
But at least three members of the ICANN board did address the issue, vowing to treat the issue seriously and therefore compelling me to respond, regardless.
Notably, CEO Fadi Chehade, who grew up in Beirut, Lebanon, said it was a “very worthy question”, adding:

This was a chance for us to hear your views and appreciate your feelings about this. I must tell you on a personal basis, unlike living the history of colonialism I lived under a colonizer, personally, so I’m personally familiar with how you feel. But this is a very serious matter that requires some review and some thinking. I can assure you that we have listened to you and we will take your input as great learning for us.

Now, it’s quite possible that this was just the latest instance of Chehade “doing a Chehade” and telling his perceived audience what he perceived they wanted to hear.
His predecessor, Rod Beckstrom, was similarly accommodating to Salinas Porto during the Costa Rica meeting in 2012.
Chehade did not actually commit ICANN to address the issue.
But the Brits were in the audience too. And I think it’s fair to say that when we hear Argentinians bang on about the “Malvinas” — and we hear the ICANN board pay them heed — we either a) get angry or b) shake our heads and tut.
At the start of this article I compared the Argentinian argument to the BNP. To avoid doubt, I’m not saying that it’s racist. I could not begin to construct such an argument. I am saying that it’s silly, and probably based more on Argentinian nationalism than it is on any deficiencies in ICANN policy.
When ICANN in future responds to Argentinian arguments about the Falklands, these are some things to bear in mind:

• ICANN does not decide, and is not qualified to decide, what arbitrary subdivisions of our planet are or are not worthy of a ccTLD delegation.
• ICANN long ago decided to take its cues from the International Standards Organization, which in turn looks to the United Nations, when assembling its list of ccTLD identifiers.
• ICANN, via its IANA department, always pays attention to the wishes of the local populace when it decides whether to redelegate a ccTLD to a new operator.

These three bullet points are the only things an ICANN director needs to know when responding to anyone who uses the word “Malvinas” in a Public Forum statement.
“Taking it seriously” should only be an option if you’re trying to be polite.

GAC gives ICANN a way out on IGO acronyms

The ICANN Governmental Advisory Committee has reiterated its call for the protection of intergovernmental organization acronyms in the new gTLD program, but seems to have given ICANN a way to avoid a nasty confrontation.
In its official Communique from the just-concluded meeting in Buenos Aires, Argentina, the GAC provided the following advice concerning IGOs:

The GAC, together with IGOs, remains committed to continuing the dialogue with NGPC [ICANN’s New gTLD Program Committee] on finalising the modalities for permanent protection of IGO acronyms at the second level, by putting in place a mechanism which would:
1. provide for a permanent system of notifications to both the potential registrant and the relevant IGO as to a possible conflict if a potential registrant seeks to register a domain name matching the acronym of that IGO;
2. allow the IGO a timely opportunity to effectively prevent potential misuse and confusion;
3. allow for a final and binding determination by an independent third party in order to resolve any disagreement between an IGO and a potential registrant; and
4. be at no cost or of a nominal cost only to the IGO.

This seems to be a departure from the GAC’s its Durban Communique, in which it had demanded “preventative” measures be put in place to stop third parties registering IGO acronyms.
As we reported earlier this week, the GNSO Council unanimously approved a resolution telling ICANN to remove IGO acronyms from existing block-lists, something the GAC had been demanding.
Now, it seems that ICANN has been given a relatively simple and less confrontational way of accepting the GAC’s watered-down advice.
The Trademark Claims alerts service and Uniform Rapid Suspension dispute resolution process combined would, by my reading, tick all four of the GAC’s boxes.
IGO acronyms do not currently qualify for either, because they’re not trademarks, but if ICANN can figure out a way to allow these strings into the Trademark Clearinghouse, it can probably give the GAC what it wants.
In my view, such a move wouldn’t trample on anyone else’s rights, it would not represent the kind of overkill the GAC originally wanted, nor would it be in conflict with the GNSO’s consensus resolution (which seems to envisage a future in which these acronyms get TMCH protection).
ICANN may have avoided the sticky situation I pondered earlier this week.