IP lawyers call for halt to new TLDs

Some trademark interests are ratcheting up the rhetoric in opposition to ICANN’s new top-level domains program, with one company calling for it to be scrapped altogether.
While ICANN’s extended public comment period on the proposed final Applicant Guidebook does not end until the weekend, a Danish bloc of companies has already made its objections known.
The most vociferous views so far this week have come from Lundbeck, a drug company that researches treatments for diseases such as Alzheimer’s and Parkinson’s.
Lundbeck trademark counsel Søren Ingemann Larsen accused ICANN of operating “fake” comment periods that ignore feedback from the trademark lobby.
In a cap-happy missive, he said the program should be “HALTED” until ICANN can prove the domain market lacks competition, then “cancelled” if such proof is not forthcoming.

The fact of the matter is that the only entities that are in favour of the Program are the ones who can make money out of it, and that is ICANN and the Registrars. The “internet community”, including private users and brand owners, are NOT interested.

Lundbeck, which has brands such as “Cipralex” and “Xenazine”, does not appear to be a major target for cybersquatters, judging by how many UDRP complaints it has filed (none).
It did however join CADNA, the Coalition Against Domain Name Abuse, at the same time as prolific UDRP user Lego Juris, last November.
Lego, and a few other companies submitting virtually identical comments to ICANN this week, have reiterated criticisms of the program’s trademark protections expressed in previous months.
But they have now also seized upon elements of the latest independent economic report into the costs and benefits of new TLDs, which ICANN published last month.
One extract Lego and the others quote questions whether new TLDs are needed to provide some of the services proposed by community TLD wannabes:

Are there other ways to achieve the primary objectives of the proposed gTLD, such as: (a) second-level domain names; (b) certificates; (c) software tags; and (d) filters that look at content beyond the URL and any tags? How do the alternatives, if any, compare in terms of their likely effectiveness in achieving the primary objectives of the gTLD and the costs they would impose on different members of the Internet community?

It’s an interesting argument – that a community TLD could just as well operate as a second-level domain – not one I recall reading in a long while. I don’t think it has legs.

Native Americans want new TLD protection

The National Congress of American Indians, a Native American rights group, has asked ICANN for special protection for tribal names under the new top-level domains program.
In comments filed with ICANN today, the NCAI asks for the same level of protection given to countries and territories found on various UN lists, such as the ISO 3166-1 list of country names.
NCAI president Jefferson Keel wrote:

Allowing the approval of top level tribal domain names (such as .navajo or .seneca) without considering the protection of tribal governments would cause confusion, attributing certain information or views to a tribal government which would lack control while its name is being used. In our view, only tribal government websites should be authorized to use a tribal name gTLD, unless express consent is granted by the tribal government.

The letter appears to request that these protections are extended both to TLD strings and to names registered at the second level, although it’s not entirely clear on that point.
In other words, the NCAI appears to want not only “.navajo” reserved, but also to have “navajo” placed on the list of reserved strings that all TLD registries will have to abide by.
The latest list of tribes officially recognized by the US government has several hundred entries. If ICANN were to make the requested changes, more tribes would be protected than UN members.
Most of the push for protection of geographic terms has come from ICANN’s Governmental Advisory Committee, which does not have any Native American tribal representatives.
Keel’s comments were filed in response to the ongoing ICANN public comment period on the latest version of the Applicant Guidebook, which ends this Saturday.

Ready to apply for a gTLD? No, you’re not. Not even remotely

Editor’s Note: This is a guest post by Kieren McCarthy.
So, yes, it’s been a long, drawn-out and dispiriting exercise to get to the point where the structure of the internet will be radically changed forever.
But even if the US government invades ICANN’s offices in Los Angeles, trademark lawyers kidnap Rod Beckstrom, and Marilyn Cade clones herself 100 times, nothing can stop the raw reality that 2011 is the year of the gTLD. It’s happening. So stop sulking and start getting excited about it.
It’s been a long 30 months since Paris in June 2008. Plenty of time to talk and plan and consider the future. The biggest negative impact of this delay however has not been on the process but on the gTLD applicants themselves who have started to persuade themselves they know what they’re doing.
We don’t need a four-month communication period, they cry, we are ready to go. We have been ready to go for two years!
The sad truth however is that you’re not. You’re not even remotely ready to face a brave new world of internet extensions that fit around its users, rather than the other way around.
Sure, you know the rules in the Applicant Guidebook. Well, most of them. And you know how the application process will work (but you don’t though, do you?). But that’s all just paperwork, as soon as you get through the doors of bureaucracy there standing in the brilliant light will be hundreds of thousands of internet users clamoring to hear what you have to tell them, basking in the glory of a new dawn.
Except they won’t.
Instead you are more likely to find yourself coming out of a cinema in a bad part of town just as the sun sets, looking for a taxi and realizing you haven’t got enough cash left to get home.
Make no mistake: new internet extensions are the future of this extraordinary global network. VeriSign doesn’t drop half a million dollars for a one-hour session at an ICANN meeting if it’s doesn’t think it’s critical to its future. But there was a long gap between the invention of the steam engine and the Japanese bullet train. The Wright Brothers took off in 1903 but it took 32 years for the DC-3 to bring air travel to commercial travelers.
The big boys will be fine of course; they have the money and resources to flex and change. But if you are not VeriSign or GoDaddy, how are you going to ensure that your internet dream isn’t just a pipe-dream or, worse still, a nightmare?
The answer is terrifying simple: talk to people.
The fact is that no one knows how the domain name market will pan out in the next few years. There are plenty of ideas, some new, some radical. Some of these will take root; others will fade or fail. The only way to get a sense of what will be a rapidly changing market is to find out what everyone else thinks. You need to talk to everyone, and they need to talk to you.
The other side of this coin is learning from the past. We have had two previous extensions of the internet namespace, albeit much smaller. But those that started up the dot-infos and dot-names were once in the same place as new applicants will be in six months’ time: full of ideas and staring at an uncertain path forward.
The domain name industry, though still maturing, is also not an empty space anymore. There are enough established companies and there have been enough conferences and meetings about that market for relationships to be formed. A status quo of sorts is in place, and a collective sense of how things work has emerged.
Even so, was it only me that listened to person after person in 2010 call ICANN’s economic studies inaccurate and incomplete and thought: “Not one of you has the same idea about the industry you live within.”
How much do new gTLD applicants know or even understanding the different sides of this industry?
If you go to ICANN meetings, you may know some of the politics of it. You may even have grasped some of the multitude of processes that accompany internet infrastructure. But you won’t have got a feel for the sheer business of the internet.
If you come from the domainer industry, chances are you have a sense of the intrinsic value of domains and what makes them move or not move. But even the CEO of Oversee.net, Jeff Kupietsky, said this time last year there needs to be some kind of organized effort to turn what is an ad hoc market into something more stable. Domainers know how auctions work – but not how to build the factory to make the products that are sold.
If you have run a registry in the past, you may have a leg up. But how do you differentiate between useful lessons from the past, and old ways of thinking that will put you at a competitive disadvantage?
How many of those wonderful, market-tested systems have in fact been dangerously patched and cobbled together over the past decade? How will you recognize the market-changing products when they appear?
And, of course, the biggest, the most unknown and yet the most crucially important aspect of new gTLDs: marketing.
In an industry where the epitome of marketing prowess is a woman making double entendres in a tight T-shirt, we all have much to learn from the marketing crowd. When you enter the market alongside 499 other new extensions, you better be damn sure you have a plan to persuade people why they should choose yours.
So what is the solution? Well a big part of one solution is to attend the first ever conference that is dedicated to figuring out this new market.
The .nxt conference on 9-10 February in San Francisco will feature everyone from ICANN’s CEO and the ICANN staff in charge of running the process, to the established players, the visionaries as well as the heretics, the observers and the advisers.
Over two days, you will get a masterclass in what we all collectively know, and are still figuring out, about new internet extensions. It’s the one place where you can check your assumptions and learn about others’. Miss that opportunity and in 12 months’ time you’ll be wondering how you managed to get it all so wrong.
Kieren McCarthy is an author and consultant, formerly ICANN’s general manager of public participation. He is a founder of the Global Internet Business Coalition and general manager of the .nxt conference.

Coalition complains to ICANN about Universe.jobs

The .JOBS Charter Compliance Coalition thinks Employ Media is violating its own policies by allowing Universe.jobs to be launched, and has complained to ICANN.
Coalition chief John Bell said the group, which comprises jobs sites such as Monster.com and CareerBuilder.com, “filed a formal notice” with ICANN’s compliance department December 17.
That was just one week after ICANN’s board of directors, at the Cartagena meeting, passed a resolution calling for ICANN staff to “closely monitor” the registry for charter violations.
“We are confident that ICANN is taking our claims seriously and we are looking forward to a favorable decision,” Bell said.
Universe.jobs was turned on by the DirectEmployers Association last week, using hundreds of generic domains, after ICANN give the registry the all-clear to start selling non-company-name domains.
The issue is whether this independent jobs board, which is fed traffic from domains such as usa.jobs, texas.jobs and marketing.jobs, is a permissible use of .jobs domains.
The Coalition thinks it isn’t. Employ Media thinks it is.
The Coalition has also apparently complained about NativeAmerican.jobs, another employer-independent jobs site, on behalf of NativeAmericanJobs.com.

Three new ccTLDs (including .sx) up for grabs

IANA quietly created three new country-code top-level domains shortly before Christmas, to represent the new nations created by the breakup of the Netherlands Antilles last year.
The new ccTLDs are: .bq for Bonaire, Saint Eustatius and Saba, .cw for Curacao and .sx for Sint Maarten (Dutch part). All three appeared in IANA’s database December 20.
None of the strings are currently delegated. The governments of the respective nations will have to apply to IANA if they want to start using their TLDs on the internet.
The days of chancers moving in to colonize island ccTLDs (eg .nu) may have passed, but there are still opportunities for domain name businesses to make a buck here.
The most recent new ccTLD, .me, was assigned to Montenegro in 2007. The registry’s partners include Go Daddy and Afilias.
I’m sure overseas domain name companies are already sniffing around the newly minted countries.
But these nations are small, and they don’t seem to have lucked out by being assigned strings with much secondary semantic value, so I can’t imagine we’re looking at high-volume TLDs.
Sint Maarten’s .sx may be an exception, due to its resemblance to “.sex”, which is quite likely, I think, to be created as a gTLD under ICANN’s upcoming new TLDs program.
If and when .sx is delegated, the country will have to bear this potential for confusion in mind when it’s designing its registration policies.
Will it want to keep its national brand respectable, or will it cash in on possible future typosquatting?
The Netherlands Antilles officially split in October. It took about three months for the three strings to be added to the ISO 3166 list (pdf), and another week for IANA to add the ccTLDs to its database.
The string AN, for the dissolved country, has also been deleted from the 3166 list. What happens to .an the ccTLD is a whole other story.

Universe.jobs launches with hundreds of premium domains

The controversial Universe.jobs project has soft-launched, offering jobs listings at hundreds of premium geographic and vocational .jobs domains.
Country and state domains such as usa.jobs, gbr.jobs and texas.jobs, as well as industry domains such as firefighter.jobs and journalist.jobs are live and resolving.
If you visit, say, usa.jobs or rus.jobs, you’ll be presented with a bunch of job listings from the USA or Russia. If you visit retail.jobs, you’ll be bounced to usa.jobs/retail (at least, I was).
Even combinations, such as texas.nursing.jobs, seem to work.
I’ve no idea how many domains have been activated this way, but since all the geographics seem to be active I’m guessing it’s at least several hundred at the second-level.
The site, which is presented as a service of the DirectEmployers Association’s National Labor Exchange, currently says it’s in beta.
But the big questions now are: is this legit, and who owns the domains?
Employ Media, the .jobs registry, had to fight ICANN and mainstream commercial jobs boards in order to drop the contractual restrictions that previously limited .jobs to company names.
But some argued that, despite the relaxation of the string restrictions, employer-independent jobs sites such as Universe.jobs would still be verboten under Employ Media’s charter.
The .JOBS Charter Compliance Coalition, made up of newspaper associations and boards such as Monster.com, tried to get ICANN to reconsider its decision, but failed (kinda).
While the Coalition’s Reconsideration Request was unsuccessful, ICANN did say it will start to monitor Employ Media for compliance with its charter more closely.
More interestingly, perhaps, during the ICANN investigation Employ Media abruptly dropped plans to create a “self-managed” class of domains – names registered to itself, but “used” by third parties such as DirectEmployers.
Did it make good on its promise? It’s difficult to be certain, because the Whois for the many of the domains in question seems to be broken.
I’ve been able to establish that some older domains, such as usa.jobs and nursing.jobs, currently belong to DirectEmployers, but trying to figure out who owns some of the more recently registered geographical .jobs names is an excruciating process.
The Whois link buried at the bottom of the official Employ Media web site directs you to the Whois service provided by VeriSign (which runs the back-end registry infrastructure for .jobs).
VeriSign’s tool does not return the name of the registrant, only details such as the registration date, associated name servers, and the URL of the appropriate registrar’s Whois server.
In the case of all these geo domains, the registrar appears to be NameShare. The Whois server URL given by VeriSign points to a second tool, at whois.nameshare.com, that doesn’t work.
If you try to query, for example, usa.jobs (after filling out the Captcha) you get this message:

[r3] Error Message: Unsupported TLD .jobs

If you visit the NameShare homepage, you will be able to find a third .jobs Whois tool, at whois-jobs.nameshare.com/whois/. This doesn’t seem to work properly either.
This tool will tell you that the domain usa.jobs belongs to DirectEmployers.
However, almost every other Universe.jobs-related domain that I queried returned a “not found” message, even when the domain resolves and the VeriSign tools says it’s been registered for over a month.
I’m not sure what’s going on. Some kind of technical problem, no doubt.

ICANN rejects Bulgarian IDN info request

A Bulgarian domain name association has had its request for information about ICANN’s rejection of the domain .бг itself rejected.
As I blogged last month, Uninet had filed a Documentary Information Disclosure Policy request with ICANN, asking it to publish its reasons for rejecting the Cyrillic ccTLD.
The organization wants to run .бг, which is broadly supported in Bulgaria, despite the fact that ICANN has found it would be confusingly similar to Brazil’s .br.
Uninet believes it needs more information about why the string was rejected, in advance of a planned appeal of its rejection under the IDN ccTLD Fast Track process.
But the group has now heard that its request “falls under multiple Defined Conditions of Nondisclosure set forth in the DIDP” because it covers internal communications and “trade secrets”, among other things.
ICANN’s response suggests instead that Uninet contact the Bulgarian government for the information.
I’m told that Uninet may now file a Reconsideration Request in order to get the data it needs, although I suspect that’s probably optimistic.
Ironically, neither Uninet’s request nor the ICANN response (pdf) have been published on its DIDP page.

UK domain chief awarded OBE

Lesley Cowley, chief executive of .uk registry Nominet, has been awarded the OBE in the Queen’s New Year’s Honours List, the company has just announced.
She joins singer Annie Lennox, astronaut Piers Sellers, actor Burt Kwuok and hundreds of others in receiving the award this year.
For non-Brits, the OBE, short for Officer of the Order of the British Empire, is a fairly prestigious award dedicated to recognizing public service.
Cowley’s is “for services to the Internet and e.Commerce”.
Some sort of nod was inevitable, given Nominet’s key role in keeping the UK internet running, but I’m slightly surprised it has come so early in her career.
Don’t worry, you won’t have to call her “ma’am” if you see her at the next ICANN meeting, but she will be able to order new business cards with “OBE” after her name.
The full list of New Years Honours recipients can be downloaded from Direct.gov.uk.

Incumbents get the nod for new TLD apps

Domain name registries such as Neustar, VeriSign and Afilias will be able to become registrars under ICANN’s new top-level domains program, ICANN has confirmed.
In November, ICANN’s board voted to allow new TLD registries to also own registrars, so they will be able to sell domains in their TLD direct to registrants, changing a decade-long stance.
Late last week, in reply (pdf) to a request for clarification from Neustar policy veep Jeff Neuman, new gTLD program architect Kurt Pritz wrote:

if and when ICANN launches the new gTLD program, Neustar will be entitled to serve as both a registry and registrar for new gTLDs subject to any conditions that may be necessary and appropriate to address the particular circumstances of the existing .BIZ registry agreement, and subject to any limitations and restrictions set forth in the final Applicant Guidebook.

That doesn’t appear to say anything unexpected. ICANN had already made it pretty clear that the new vertical integration rules would be extended to incumbent gTLD registries in due course.
(However, you may like to note Pritz’s use of the words “if and when”, if you think that’s important.)
Neustar’s registry agreement currently forbids it not only from acting as a .biz registrar, but also from acquiring control of greater than 15% of any ICANN-accredited registrar (whether or not its sells .biz domains).
That part of the contract will presumably need to be changed before Neustar applies for official registrar accreditation or attempts to acquire a large stake in an existing registrar.
VeriSign and Afilias, the other two big incumbent gTLD registries, have similar clauses in their contracts.

ICANN sets date for GAC showdown

ICANN and its Governmental Advisory Committee will meet for two days of talks on the new top-level domains program in Geneva from February 28, according to GNSO chair Stephane Van Gelder.
As well as the Applicant Guidebook (AGB) for new TLDs, the meeting is also expected to address the GAC’s outstanding concerns with the .xxx TLD application.
While I’d heard Geneva touted as a possible location, this is the first time I’ve heard a firm date put to it. As well as Van Gelder, other sources have heard the same date.
Talks ending March 1 would give ICANN less than two weeks before its public meeting in San Francisco kicks off to get the AGB into GAC-compatible shape before the board votes to approve it.
Is that a realistic timeframe? I guess that will depend on how the GAC meeting goes, the depths of the concessions ICANN decides to make, how receptive the GAC is to compromise, and whether it is felt that more public comment is needed.
Also, as I speculated last week, ICANN may have to officially invoke the part of its bylaws that deals with GAC conflicts, which it does not yet appear to have done, if it wants to approve the Guidebook at the end of the San Francisco meeting in March.
If the program is approved in March, that would likely lead to applications opening in August.
There’s likely to be one ICANN board meeting between now and Geneva – its first meeting of the year is usually held in late January or early February – so there’s still time for ICANN to make changes to AGB based on public comment, and to get its process ducks in a row.
There’s also plenty of time for the GAC to provide its official wish-list or “scorecard” of AGB concerns, which I believe it has not yet done.
Van Gelder also wonders on his blog whether the Geneva meeting will take place in the open or behind closed doors.
ICANN’s director of media affairs, Brad White, put this question to ICANN chair Peter Dengate Thrush during a post-Cartagena interview. This was his answer:

We haven’t actually resolved the rules of engagement with the GAC on this particular meeting but the standard position for all organizations within ICANN is that they are open… On the other hand if at any point think we the negotiation could be assisted by a period of discussing things in private I guess we could consider that.

That looks like a “maybe” to me.