ICANN threatens to shut down .jobs

In an unprecedented move, ICANN has threatened to cancel a top-level domain registry operator’s contract.
Employ Media, the .jobs registry, faces losing its TLD if it does not shut down Universe.jobs, the controversial jobs board operated by its partner, the DirectEmployers Association.
In a letter to the company (pdf), ICANN general counsel John Jeffrey wrote:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.
…
We are calling on Employ Media to take immediate actions to implement restricted registration policies that support the purpose for which the .JOBS top-level domain was established, and to cancel registrations and/or disavow themselves of the benefits of any registrations that are owned by related parties, if any.

The move comes following a complaint filed by the so-called .JOBS Charter Compliance Coalition, made up of jobs board such as Monster.com and CollegeRecruiter.com.
They’re annoyed that the registry licensed 40,000 premium geographic and vocational .jobs domains to DirectEmployers for Universe.jobs, which has started to compete with them.
Jeffrey wrote:

It appears that Employ Media and SHRM, through the Direct Employers Association, intend to use the .JOBS TLD primarily to compete with other internet job boards. Such use is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community.

The deal came as a result of a change to the .jobs registry contract, made through ICANN’s Registry Services Evaluation Process, that allowed Employ Media to lift a rule that restricted registered domain names only to the names of companies.
What the RSEP didn’t do was change the .jobs Charter, which restricts “who” may register .jobs domains. Yet, weirdly, the Charter is partly the basis for ICANN’s threat.
Jeffrey refers to the Charter restrictions, which are easily circumvented, as “specious” and “do not serve the international human resource management community”.
This is the Charter that ICANN approved back in 2005, and which hasn’t changed since, remember.
To come back into compliance, ICANN wants Employ Media to shut down Universe.jobs and get back to selling company-name registrations.
I think it’s likely Employ Media will appeal, possibly by taking the case to arbitration, as its contract allows.

Government domain veto watered down

A US proposal to grant governments the right of veto over new top-level domains has been watered down by ICANN’s Governmental Advisory Committee.
Instead of giving the GAC the ability to block any TLD application on public policy grounds, the GAC’s official position would now allow the ICANN board of directors to make the final decision.
The move means the chances of a .gay application being blocked, to use the most obvious example, are much lower.
The original US position, which was was leaked last month, read:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

If this policy had been adopted, all potentially controversial TLDs could have found themselves pawns of the GAC’s back-room negotiations.
A petition against the US proposal has so far attracted almost 300 signatures.
The newly published official GAC position is based on the language in the US document, but it has been tempered substantially. It now reads:

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.
GAC advice could also suggest measures to mitigate GAC concerns. For example, the GAC could advise that additional scrutiny and conditions should apply to strings that could impact on public trust (e.g. ‘.bank’).
In the event the Board determines to take an action that is not consistent with GAC advice pursuant to Article XI Section 2.1 j and k, the Board will provide a rationale for its decision.

This still gives the GAC a key role in deciding the fate of TLD applications, but it’s one that can be overruled by the ICANN board.
To use the .gay example, the GAC could still advise ICANN that the string has been objected to by a handful of backward nations, but it would be up to the ICANN board to decide whether homophobia is a useful policy to embrace in the DNS.
The GAC proposals, which you can read here, are not policy yet, however.
ICANN and the GAC will meet in Brussels next week to figure out what GAC advice is worth implementing in the new TLDs program.
UPDATE: via @gTLDNews, I’ve discovered that US Department of Commerce assistant secretary Lawrence Strickling recently addressed this topic in a speech.
He seems to believe that ICANN “would have little choice but to reject the application” if the GAC raised a consensus objection. According to his prepared remarks, he said:

We have proposed that the ICANN Board use the already-existing GAC process to allow governments collectively to submit objections to individual applications to top level domains. The GAC already operates on a consensus basis. If the GAC reaches a consensus view to object to a particular application, that view would be submitted to the Board.
The Board, in its role to determine if there is consensus support for a given application (as it is expected to do for all matters coming before it), would have little choice but to reject the application.

Does he have a point?
ICANN has never explicitly rejected GAC advice; the forthcoming San Francisco meeting is probably going to be the first time it does so.
My reading of the ICANN bylaws is that the board is able to reject GAC advice whenever it wants, as long as it provides its rationale for doing so.

Winners and losers in the next Applicant Guidebook

Who’s going to be happy, and who won’t be, after ICANN publishes the next version of its Applicant Guidebook for new top-level domains in April?
We now have a rough idea of the answers to those questions, following the publication this week of ICANN’s analysis of comments received between November and January.
The 163-page document (pdf) outlines where ICANN is still open to changing its rules for applying for a TLD, and where it believes the book is firmly shut.
As you might expect, at this late stage in the game, most of the analysis is essentially “thanks, but no thanks”, reiterating the reasons why the Guidebook currently says what it says.
But there are strong indications of which changes will be made to the “next” version of the Guidebook, which is currently expected to hit the ICANN web site April 14.
Here’s a high-level analysis of the winners and losers.
Impatient Applicants
Companies and entrepreneurs that have been tapping their feet for the last couple of years, hit by delay after delay, can probably take comfort from the fact that ICANN is still making encouraging noises about its commitment to the new TLDs program.
Noting that some issues are still in need of further work, ICANN staff writes:

it is ICANN’s intention to reach resolution on these issues. It would be irresponsible to use community resources to run a process without the intention to see it through to conclusion.
…
ICANN continues to approach the implementation of the program with due diligence and plans to conduct a launch as soon as practicable along with the resolution of these issues

Beyond what I noted in a post earlier this afternoon, there are no clues about the timetable for actually launching the program, however.
Trademark Holders
It’s a mixed bag for the intellectual property lobby, but on balance, given the length of its wish-list, I expect the trademark crowd will be more disappointed than not.
In general, ICANN is firm that the rights protection mechanisms (RPMs) in the Guidebook are the result of community compromise, and not for changing.
This is sometimes the case even when it comes to issues ICANN plans to discuss with its Governmental Advisory Committee next week.
One of these is the Trademark Clearinghouse, the database of trademark rights to be used to reduce cybersquatting, of which ICANN says:

subject to further refinement through the GAC consultation and other comments received to date, the positions in the Clearinghouse proposals will be finalized substantially similar to as it was in the Proposed Final Applicant Guidebook.

On the Globally Protected Marks List, a mechanism trademark holders want included in the Guidebook, ICANN is suitably mysterious:

It is clear that the trademark interests have continued to raise the GPML as possible RPM. While this discussion may continue, no further progress or decisions have been made.

The most substantial concession ICANN appears ready to make to trademark holders concerns the Uniform Rapid Suspension mechanism, a cousin of the UDRP that will be used to address clear-cut cases of cybersquatting in new TLDs.
A major concern from the IP lobby has been that the URS is too slow and complex to meet its original goals. ICANN disagrees that it does not do the job, but plans to streamline it anyway:

Discussions are continuing and some additional implementation detail revisions will likely be made, for example, creating a form complaint that reduces the 5000-word limit to 500 words. The 500-word limit might not, however, be placed on the respondent, as the respondent will be required to describe the legitimate basis upon with the domain name is registered. The respondents word limit be decreased from 5,000 to something less, possibly 2,500 words, in order to decrease the examinations panel‘s time requirements and thereby enhance circumstances for a relatively loss cost process. (Remember that in the vast majority of cases, it is expected that the respondents will not answer.)

This will certainly be a topic of discussion at the ICANN-GAC meeting in Brussels on Monday, so I expect IP attorneys are even now briefing their governments on how these proposed changes won’t go far enough for whatever reason.
Domainers
There’s bad news if you’re a high-rolling domain investor, looking at bagging a new TLD or three, and you also have a few UDRP losses against your name.
The background check ICANN will carry out on applicants for their history of cybersquatting stays, and it will still use the three-losses-as-UDRP-respondent benchmark.
However, ICANN has recognized that UDRP decisions are not always final. If you lost a UDRP but subsequently won in court, that decision won’t count against you.
In addition, reverse domain name hijacking findings will now also count against applicants to the same degree as UDRP losses.
I believe both of those concessions capture so few entities as to be more or less irrelevant for most potential applicants.
“.brand” Applicants
ICANN is in favor of companies applying to run “innovative” TLDs, such as “.brands”, but it is reluctant to carve out exceptions to the rules for these applicants.
The organization does not plan to give .brands a pass when it comes to protecting geographic names, nor when it comes to the requirement to register domains through an accredited registrar.
This seems to mean, for example, that if Microsoft successfully obtains .microsoft and wants to register usa.microsoft to itself, it will have to ask the US government for permission.
It also means .brands will still have to seek ICANN accreditation, or work with an existing registrar, in order to sell domains to themselves. It’s an added cost, but not an unworkable one.
Would-be .brand applicants did, however, win one huge concession: If they decide to turn off their TLD, it will not be redelegated to a third-party. ICANN wrote, with my emphasis:

In the limited case of .brand and other TLDs that operate as single-registrant/single-user TLDs it would probably make sense to not force an outgoing operator to transition second-level registration data (since presumably the operator could just delete all the names as the registrant anyway and then there would be nothing to transition), and therefore ICANN will put forward proposed language for community review and feedback that would provide for alternative transition arrangements for single-registrant/single-user gTLDs.

If .microsoft was unsuccessful and Microsoft decided to stop running it, Google would not be able to take over the ICANN registry contract, for example.
Poor People/Cheapskates
Some commenters wanted ICANN to reduce application fees in cases where the applicant is from a poorer nation, a non-governmental organization, or when they intend to apply for multiple versions of the same TLD.
They’re all out of luck.
The $185,000 baseline application fee is to stay, at least for the first round. ICANN thinks it could be reduced in future rounds, once more uncertainty has been removed from the process.
Currently, $60,000 of each fee is set aside for a “risk” (read: litigation) war-chest, which will be presumably less of an issue after the first round is completed.
Special Interests
The International Olympic Committee and the Red Cross, as well as financial services organizations, may receive the special concessions they asked for in the next Guidebook.
The IOC and Red Cross may be given the same protections as afforded to ICANN, regional internet registries, and generic terms such as “example” and “test”.

ICANN is considering the nature of these protections, and if appropriate, might augment the reserved names lists in special cases such as requested by the International Olympic Committee (IOC) and the International Red Cross, both of which are globally invested in representing the public interest.

It also emerged that ICANN is working with the financial services industry to clarify some of the security-related language in the Guidebook.
Community Applicants
Sorry guys, ICANN intends to keep the threshold score for the Community Priority Evaluation at 14 out of 16. Nor will you get a bonus point for already showing your cards by starting community outreach two years ago. Winning a CPE is going to be as tough as ever.
*
This is just a brief, non-exhaustive overview of the changes that are likely to come in the next Applicant Guidebook, setting the stage for the GAC talks next week and the San Francisco ICANN meeting next month.
One thing seems pretty clear though: this is end-game talk.

New TLDs could come quicker than expected

New top-level domains may arrive a month earlier than previously projected, after ICANN revealed it is considering reducing the first-round application window to 60 days.
That’s one of a number of suggested changes to the new TLDs program that appear in documents published Monday (more on this later).
In the summary and analysis of public comments on November’s proposed final Applicant Guidebook, ICANN staff write (with my emphasis):

A set of commenters suggested that the application submission period should be 30 days. ICANN has not established the length of this period; however, it is expected that it the necessary steps leading up to and including the submission of an application will take some time to complete. ICANN’s intention is to ensure that the time period is sufficient for applicants to provide appropriate attention to these steps. The application period will be at least 60 days and no longer than 90 days.

A 60-day window would reduce the minimum estimated period between ICANN approving the guidebook and the first new TLDs going live from 15 months to 14 months.
ICANN currently expects to launch a four-month communication period after the Guidebook is approved, followed by the application window.
The most-straightforward TLDs could be approved in as little as eight months after applications close, and going through IANA to get into the root could take as little as 10 days.
If the Guidebook gets the nod in April, we could be looking at TLDs live by July 2012, with sunrise periods starting not too long thereafter, but that’s still the most optimistic outcome for applicants.

Trojan TLDs to get more scrutiny

ICANN has proposed a new policy for its new top-level domain program that would make it harder for community-based TLDs to liberalize their registration policies after they launch.
The idea is to prevent a replay of the recent .jobs controversy, in which registry Employ Media substantially altered its business model after failing to sell enough .jobs domains.
Because the Applicant Guidebook gives “community” TLD applications an opportunity to avoid a potentially costly auction if their TLD is contested by multiple applicants, there’s a risk of gaming.
Under the current rules, a company could win a contested TLD without paying big bucks, by promising to restrict it to a narrowly defined community of registrants.
It could later attempt to change its rules via ICANN’s Registry Services Evaluation Process to broaden or limit its potential customer base, potentially harming others in the community.
I call these Trojan TLDs.
Employ Media, for example, restricted .jobs domains to the names of companies, but now has licensed thousands of geographical and vocational generic names to a partner, over the objections of major jobs search engines such as Monster.com.
Under ICANN’s proposed policies (pdf), community TLDs would still have to pass through the RSEP, but they’d also be subject to a review under the Community Priority Evaluation.
The CPE is already in the Guidebook. It will be used to score applications based on the strength of community support. To avoid an auction, you need to score 14 out of 16 points.
ICANN now suggests that the CPE criteria could also be used to evaluate what it calls a “Community gTLD Change proposal” made by a TLD registry post-launch.
The new score would be used to determine whether to accept or reject the change:

If the sum of all identified score changes for the first three CPE criteria is zero or positive, the recommendation would be to accept the proposal, regardless of any relevant opposition identified. If the sum is minus one, the recommendation would be to accept the proposal, unless there is relevant opposition from a group of non-negligible size, in which case the recommendation would be to reject the proposal. If the sum is minus two or lower, the recommendation would be to reject the proposal.

The ICANN board would be able to deviate from the CPE recommendation, as long as it stated its reasons for doing so, and the registry would have the right to appeal that decision under the existing Reconsideration Request process.
These rules would apply to all new TLDs that designate themselves as community-based, apparently regardless of whether they successfully passed the CPE during the application process.
The rules are presented as a “discussion draft”, but I don’t think they’re going to be opened to official public comment.

ICANN names date for Applicant Guidebook

ICANN has put a tentative date on the release of its Applicant Guidebook for new top-level domains.
In publishing its summary and analysis of the proposed final version of the AGB today, ICANN also issued this timetable:

Expected Path Forward
* Board-GAC Consultations: 28 Feb – 1 Mar 2011
* ICANN meeting: 14 – 18 Mar 2011
* Release of Applicant Guidebook: 14 Apr 2011

Note that it says “release”, not “approval”.
The nearest scheduled ICANN board of directors meeting to the release date is April 21.

ICANN prepares for trademark fight with GAC

ICANN thinks the benefits of new top-level domains will outweigh the costs, and it preparing for a scrap when it meets its Governmental Advisory Committee in Brussels next week.
In a number of briefing documents published yesterday, ICANN makes it clear that it does not think the new TLD program will create a huge economic burden on trademark holders.
Brussels is possibly the final major hoop ICANN has to jump through before its board of directors will be able to sign off the Applicant Guidebook and start accepting new TLD applications.
There are a number of areas where the GAC and ICANN disagree. Next week’s meeting is intended to identify those differences, and to try to find ways to resolve them.
The GAC’s biggest problem with the new TLD program, as its members made clear in Cartagena and subsequently, is that it’s not convinced new TLDs won’t cost brand holders a bundle.
What will be the damage caused by cybersquatting? How much money will big business be forced to spend on defensive registrations?
Nobody knows for sure, and none of the independent third-party economic reports commissioned by ICANN ventures anywhere near a comprehensive empirical study.
So the GAC wants another economic study done, to quantify the costs and benefits of new TLDs, and to figure out how voluminous defensive registrations is likely to be.
ICANN disagrees, saying essentially that more studies are pointless, and that demand for defensive registrations in new TLDs are likely to be low.

The Board position is that defensive registrations will increase but not in numbers projected by some trademark holders

Estimates from the Coalition Against Domain Name Abuse, CADNA, last year put the cost to brands of the new TLD program at $746 million. But ICANN isn’t buying that:

The Board also believes that economic studies do not provide evidence that new TLDs will result in demand for defensive registrations. Existing independent studies, that the Board is seeking to validate, indicate that defensive registrations occur only in the very largest, well-established registries only.
…
the Board is seeking (and will publish) independent corroboration that:
• trademark holders generally do not register their trademarks in all the current generic TLDs.
• Therefore, it is not expected that trademark owners, in general, register their trademarks in new gTLDs, and
• due to the expected costs to run a registry and the expected low number of defensive domain name registrations, there is no economic incentive for an applicant to obtain a TLD for the sole purpose of making money from defensive trademark registrations.

ICANN does not identify these “independent studies”, but the data points cited in the document (pdf) point to a February 2009 article published on CircleID by Paul Stahura, and a comment made on that article by Richard Tindal that cites third-party data.
The Stahura report is arguably the most comprehensive carried out on defensive registrations in existing open gTLDs, concluding that the current cost to trademark holders is very low indeed, and that the bulk of typosquatting and trademark enforcement goes on in .com.
The research suggested that each new TLD would create costs in the tens of thousands of dollars per year, across the whole universe of trademark interests. It used baseline registrar fees in its calculations, unlike the CADNA report, which used sunrise fees about a hundred times greater.
But the Stahura study is “independent” only in the respect that it was not commissioned by ICANN or carried out with its blessing or participation.
At the time it was published, Stahura was president of eNom owner Demand Media, which is expected to be a new TLD applicant. Tindal, apparently also cited in ICANN’s latest report, was senior vice president, registry, for Demand Media.
Independently validating the report’s conclusions will be important, if only to avoid accusations that ICANN is making its decisions based on the views of those who would benefit from new TLDs.
Another of ICANN’s newly published briefing documents (pdf) also address the specific trademark protection mechanisms called for in the Applicant Guidebook.
The GAC has not yet published, or provided ICANN with, its specific recommendations relating to these mechanisms (I understand that will come in the next day or two) but they are expected to call for a tightening of the rules governing the Trademark Clearinghouse and Uniform Rapid Suspension policy.
Unlike several parts of yesterday’s briefing papers, ICANN’s language when discussing these two mechanisms does not suggest to me that it is preparing to substantially compromise.
With trademarks just one of many issues under discussion, Brussels is shaping up to becoming very interesting indeed.

.CO quiet on Super Bowl sales

Judging from its CEO’s latest blog post, .CO Internet doesn’t want to talk about how many new .co domain names were registered following its Super Bowl commercial with Go Daddy.
I take this as a sign that the event did not have an earth-shattering impact on its registration numbers.
Making some basic assumptions, reading between the lines, and using some back-of-the-envelope math, I estimate that the number of new .co domains registered was likely less than 50,000.
That’s not terrible, but I think it could take quite some time for the company to see a return on its investment, given that its margins on the promotional pricing would have been pretty thin and that at least a quarter of those registrations will likely disappear a year from now.
I doubt it made enough cash on the day to pay for Joan Rivers’ boob job.
But in Juan Calle’s post, he makes it clear that .CO is playing the long game. He wrote:

The most common success metric that many registries use is the total number of domain names registered. Although we are certainly enjoying our incredible growth – the number of .CO domains registered is simply not a metric we believe is robust enough to measure the kind of impact we fully plan and expect to have in the world over the long term.

You can be fairly sure that if .CO had doubled the size of its customer base last week, or broke through the million-domain milestone, Calle would not be talking in these terms.
He’s not keen on using secondary market prices to define success either, saying he expects it will be four or five years before the .co aftermarket matures.
Sedo’s .co auction, which ended yesterday, saw the majority of domains fail to meet their lofty reserves. But that’s not necessarily a slight on .co – auction activity in general has been sluggish recently.
Calle has some fetal ideas about how to measure the success of a TLD. He wrote:

To gauge the impact of the .CO extension, I think we will need to consider a combination of factors. Imagine, if you will, a sort of “Gross Domain Product” or “GDP,” measuring not only the total number of .CO registrations, but the number of websites developed, and the broader value of the economic activity happening within the .CO space.

It’s an interesting idea, but there’s a reason why most people judge TLDs based on their number of registrations. It goes something like: registrations = revenue = profit.
Selling domains is generally a registry’s only revenue stream. A registry with few registrations won’t turn a profit, and stands less of a chance of staying in business.
And for the aftermarket, a TLD retaining a large number of registered and renewing domains over the long term means there’s demand, which leads to higher prices.
Fortunately for .co, it is off to a great start, with probably something approaching 700,000 domains under its belt in just seven months, if my envelope-back is reliable.
Calle’s post gives every indication that the company plans to keep up its aggressive marketing spend, so the TLD stands, I think, a pretty good chance of breaking through the one million domains mark this year.

ICANN confirms TLD delays after sponsorship closes

ICANN has officially confirmed that it does not intend to launch the new top-level domains program at its meeting in San Francisco next month.
The news came just one day after the organization stopped accepting sponsorship deals, at the new controversially higher rate, for the meeting.
In a blog post, ICANN’s Jamie Hedlund said that a vote on the new TLD program would not be possible due to the upcoming consultation with the Government Advisory Committee in Brussels.
He wrote:

In addition to the Brussels consultation, the bylaws-defined consultation will take place on 17 March, the day before the Silicon Valley–San Francisco Board Meeting. Because of the timing of the bylaws consultation, the Board will not approve or announce the new gTLD program at that Board Meeting.

Now, the timing of this announcement could just be a coincidence, it could be related to ICANN’s fast-approaching deadline for publishing meeting documents, but the fact that it came the day after the sponsorship deadline for SF passed raised an eyebrow chez DI.
ICANN has known about the timing of the GAC consultation since at least January 25, when its board of directors approved the March 17 schedule.
Chairman Peter Dengate Thrush was quoted as saying new TLDs were likely off the menu for SF as early as February 3, and senior vice president Kurt Pritz echoed that view a week ago.
With March 18 no longer a possibility for the Applicant Guidebook getting approved, what does that mean for the new TLDs timetable?
Some observers believe that we’ll have to wait for the ICANN meeting in Amman, Jordan, in June, which could see the first-round application window open in October.
I’m not convinced we’ll have to wait that long. It seems possible that ICANN will eschew the fanfare of a public meeting and approve the final draft of the Guidebook over the phone whenever it’s ready.
The first new TLDs are expected to go live on the internet approximately 15 months after the Guidebook gets the nod.

VeriSign’s upcoming battle for the Chinese .com

Could VeriSign be about to face off against China for control of the Chinese version of .com? That’s an intriguing possibility that was raised during the .nxt conference last week.
Almost as an aside, auDA chief Chris Disspain mentioned during a session that he believes there are moves afoot in China to apply to ICANN for “company”, “network” and “organization” in Chinese characters. In other words, .com, .net and .org.
I’ve been unable to find an official announcement of any such Chinese application, but I’m reliably informed that Noises Have Been Made.
VeriSign has for several quarters been open about its plans to apply for IDN equivalents of its two flagship TLDs, and PIR’s new CEO Brian Cute recently told me he wants to do the same for .org.
While neither company has specified which scripts they’re looking at, Chinese is a no-brainer. As of this week, the nation is the world’s second-largest economy, and easily its most populous.
Since we’re already speculating, let’s speculate some more: who would win the Chinese .com under ICANN’s application rules, VeriSign or China?
If the two strings were close enough to wind up in a contention set, could VeriSign claim intellectual property rights, on the basis of its .com business? It seems like a stretch.
Could China leapfrog to the end of the process with a community application and a demand for a Community Priority Evaluation?
That also seems like a stretch. It’s not impossible – there’s arguably a “community” of companies registered with the Chinese government – but such a move would likely stink of gaming.
Is there a technical stability argument to be made? Is 公司. (which Google tells me means “company” in Chinese) confusingly similar to .com?
If these TLDs went to auction, one thing is certain: there are few potential applicants with deeper pockets than VeriSign, but China is one of them.
UPDATE: VeriSign’s Pat Kane was good enough to post a lengthy explanation of the company’s IDN strategy in the comments.