What next for new TLDs? Part 1 – Unresolved Issues

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.
But for how long? And what has to happen now before ICANN starts accepting applications?
In short, what the heck happened in Cartagena last week?
In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.
In this first post I will look at the issues that ICANN has explicitly tagged as unresolved, with special reference to trademarks.
Unresolved Issues
ICANN chairman Peter Dengate Thrush, explaining the board’s resolution on new TLDs on Friday, said:

The intention has been, as much as possible, to indicate those areas where the board feels that the work that has been done is sufficient to move to closure… What we’ve also tried to do is indicate which areas are still clearly open for consideration.

The resolution names only two issues that are explicitly still open for further policy development: geographic strings and “morality and public order” objections. I’ll discuss these in a future post.
Issues considered already reflecting “the negotiated position of the ICANN community” include “trademark protection, mitigating malicious conduct, and root-zone scaling”.
But does this mean that the trademark issue, easily the most contentious of these three “overarching issues” is really sufficiently “closed” that we’ll see no more changes to those parts of the AGB?
I don’t think so. While the Cartagena resolutions say trademark protection has been addressed, it also says “ICANN will take into account public comment including the advice of the GAC.”
It may be too late for the IP community to affect changes directly, beyond the comments they’ve already filed, but the GAC, which has already aligned itself with the trademark lobby, may be able to.
Beyond the text of the resolution, ICANN chair Peter Dengate Thrush said in an interview with ICANN head of media relations Brad White:

We’ve spent a lot of time with the trademark community and come up with three new independent mechanisms for protecting trademark rights on the internet. So the sense of board and the sense of the community is that that’s probably a sufficient effort in developing mechanisms. What we now might look at is how we might enhance, tweak and improve those processes, but we’re not going to convene another process to look at yet another kind of solution for intellectual property rights.

In other words, according to Dengate Thrush, ICANN isn’t planning to create any new IP rights protection mechanisms in the AGB, but these mechanisms, such as Uniform Rapid Suspension and the Trademark Clearinghouse, could be still be modified based on comments received from the trademark lobby over the last week or so.
Most of the outcry from the IP lobby recently has called for the specifics of these two mechanisms to be tilted more in favor of trademark interests; there’s been little call for any new mechanisms.
Trademark rights protections also account for two of the 11 issues that the Governmental Advisory Committee has tagged “outstanding” which “require additional discussion”, by my reading.
More on the GAC bottleneck in part two of this post.

Government ‘cybersquatting’ case rattles India

Cybersquatting mischief is making headlines in India today, after the nation’s main opposition party accused the government of directing a confusingly similar domain name to its own site.
According to various reports, the opposition Bharatiya Janata Party served a “legal notice” on the ruling Indian National Congress party over the domain name bjp.com.
The BJP hosts its primary site at bjp.org. According to the party, the .com domain has been redirecting users to the Congress’ own site. Today, it resolves to a page parked at Sedo.
The contested domain is currently registered behind eNom’s privacy protection service. It appears to have changed hands several times over the years, most recently to an Indian.
Unless the BJP has some other evidence connecting its rival to the domain, it looks like this may be a case of cheap political point-scoring.

Revlon gets the UDRP bug

Revlon has become the latest company to start aggressively enforcing its trademarks via the UDRP.
The company has over the last few months filed 24 complaints with WIPO, covering 29 domains, most of which appear to be parked.
Apart from a couple of typos, the domains all contain the Revlon trademark in full, along with another noun or two, and look like slam-dunk cases.
It has already won a couple of cases, such as revlonhairproducts.com, which I expect the panelist could have adjudicated in her sleep.

Group wants trademark study before new TLDs launch

The International Trademark Association has told ICANN it believes a study into the economic “harms” of launching new TLDs is “essential” before the program gets under way.
INTA president Heather Steinmeyer wrote, in a September 8 letter (pdf) published today (my emphasis):

We applaud the recommendation… to conduct a study to assess the harms associated with intellectual property abuse and related forms of consumer fraud in the domain name system, including how the current gTLDs have affected intellectual property and consumers since their introduction. Indeed trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

Steinmeyer offered INTA’s assistance with any such study.
The recommendation she refers to can be found in “An Economic Framework for the Analysis of the Expansion of Generic Top-Level Domain Names”, a report prepared for ICANN by three independent economists in June.
That report made a number of suggestions for possible further studies of the possible benefits and harms (although Steinmeyer only mentions the harms) of introducing new TLDs. It did not make any firm conclusions.
Following a public comment period that ended July 22, the status of that report appears to be ‘in limbo’.
The public comments have not yet been compiled into a summary and analysis document and as far as I can tell no other action has been taken on the report’s recommendations.
At least one ICANN director, chairman Peter Dengate Thrush, seems to consider the problem of balancing trademark protection and other parties’ interests pretty much resolved.
Just last week, in a fairly strongly worded statement at the Internet Governance Forum in Vilnius, Lithuania, he said:

The IP lawyers… have had their chance to make all these cases in a five-year process, and the intellectual property protections that have been put in place are the result of a delicate balance that has been wrought with everybody in the community, not just with the IP lawyers. IP lawyers always want more protections.

ICANN urged to kill new TLD morality veto

ICANN has been asked to eliminate references to “morality and public order” objections from its new top-level domain application process.
A cross-constituency working group has advised ICANN’s board of directors to scrap the term and to ensure that whatever replaces it does not enable individual governments to veto new TLDs based on their own local laws.
The so-called “MOPO” or “MAPO” part of the Draft Applicant Guidebook attracted criticism because ICANN’s Governmental Advisory Committee seemed to want to use it to grant themselves the right to block any TLD application they deemed too controversial.
The fear from the GAC was that if nations started blocking whole TLDs at their borders, it could ultimately lead to the fragmentation of the DNS root.
The fear elsewhere was that some edgy TLD applications, such as .gay or .sex, could be rejected due to the unilateral objections of backward regimes, harming freedom of speech.
But if ICANN incorporates the working group’s new recommendations into the next version of the DAG, that probably won’t be allowed to happen.
The group this week forwarded an interim report to the ICANN board for its consideration. While incomplete, it already carries a few recommendations that managed to find consensus.
Notably, the report recommends that, “National law not based on international principles should not be a valid ground for an objection”, which would seem to scupper any chances of Uganda or the Holy See blocking .gay, for example.
The working group has so far failed to reach consensus on how governmental objections should be registered and processed, but one option is:

The Applicant Guidebook should allow individual governments to file a notification (not an objection) that a proposed TLD string is contrary to their national law. The intention is that an “objection” indicates an intent to block, but a “notification” is not an attempt to block, but a notification to the applicant and the public that the proposed string is contrary to the government’s perceived national interest. However, a national law objection by itself should not provide sufficient basis for a decision to deny a TLD application.

The working group, which counted a few GAC members among its number, has managed to unanimously agree that the awkward term “morality and public order” should be dumped.
One possible contender to replace it is “Objections Based on General Principles of International Law”.
The group has also discussed the idea that a supermajority vote could be required if the board decides to reject a TLD application based on a MOPO objection.
The report is a work in progress. The working group expects to send an updated document to the ICANN board shortly before its retreat later this month.
Whether any of this will be acceptable to the GAC as a whole is up for debate.

DNS Made Easy whacked with 50Gbps attack

The managed DNS service provider DNS Made Easy was knocked offline for 90 minutes on Saturday by a distributed denial of service attack estimated at 50Gbps.
This could be the largest DDoS attack ever. The largest I’ve previous heard reported was 49Gbps.
The company, which promises 100% uptime, tweeted that the attack lasted eight hours, but only saw one and a half hours of downtime.
Here are some tweets from the company, starting on Saturday afternoon:

Out of China. Over 20 Gbps…. Don’t really know how big actually. But it’s big. We know it’s over 20 Gbps
Update…. Over 50 Gbps… we think. Since core Tier1 routers are being flooded in multiple cities…..
Trying to organize emergency meeting with all Tier1 providers. We probably have over 50 senior network admins looking into this.
This is flooding the provider’s backbones. By far the largest attack we have had to fight in history.

And, post-attack:

The good: Not everyone was down, not all locations were down at once. The bad: There were temporary regional outages.
Almost back to normal in all locations. Full explanation, details, and SLA credits will be given to all users as soon as possible.
We did not see a 6.5 hour long outage. That would be ultra-long. DDOS attack was 8 hours. Less than 1.5 hours of actual downtime.

It will prove costly. The company’s service level agreement promises to credit all accounts for 500% of any downtime its customers experience.
Quite often in these cases the target of the attack is a single domain. Twitter and Facebook have both suffered performance problems in the past after attackers went after a single user for political reasons.
For a DNS provider, any single domain they host could be such a target. I’d be interested to know if that was the case in this incident.

SnapNames lawsuit: “halvarez” was chasing $1.5 million bonus

Howard Nelson Brady, the former SnapNames VP and alleged shill-bidder known as “halvarez”, was chasing a $1.5 million performance-related bonus, according to a lawsuit filed yesterday.
SnapNames and its parent, Oversee.net, have sued Brady for $33 million, claiming he used the pseudonym “Hank Alvarez” and his privileged access to SnapNames’ auction platform to artificially inflate the sale prices of auctioned domain names.
According to the complaint, Brady started his alleged shill-bidding in order to boost SnapNames’ revenues and boost his potential “earn-out” from the June 2007 acquisition of SnapNames by Oversee.
“The purchase of the SnapNames business was based almost entirely on projections extrapolated from past revenues of SnapNames, which had been artificially inflated by Defendant Brady’s shill-bidding,” the complaint says.
Oversee further claims that, following the acquisition, Brady set about embezzling money from the company by buying domains using his “halvarez” account and then refunding himself some of the purchase price.
The company alleges he made $175,000 that way, before suspicious activity was noticed on his account.
“Hank Alvarez” had a mail drop, a Paypal account, and sometimes sent emails to Brady, which were then forwarded to other members of staff, the lawsuit claims.
The lawsuit is seeking a mountain of cash. Clearly, Oversee and SnapNames are not pulling any punches when it comes to attempting to restore their reputation.
The bulk of the $33 million is made up of punitive damages, but Oversee also wants Brady’s entire salary and other compensation for the period while the alleged activities were taking place.
You can read the complaint in PDF format here.

Comwired buys DNS.com for relaunch

Comwired has acquired the domain name DNS.com in order to relaunch as a provider of managed enterprise DNS services.
The company announced this morning that it bought the domain, first registered in 1991 and previously parked, for an undisclosed amount.
The transaction appears to have happened at the end of last month and the site is already live.
With the acquisition, Comwired looks like it’s targeting the market for high-availability DNS resolution currently occupied by the likes of Neustar, Afilias and Dynamic Network Services.
The company was perhaps previously best-known for the geographic traffic-splitting service it offered to domainers and others.
The Whois record for DNS.com still shows a Moniker private registration, which I speculate would not be an exactly comforting sight for would-be enterprise customers.

DNS is sexy? Dyn thinks so

Dynamic Network Services has launched a marketing campaign aimed at convincing people that DNS is “sexy”.
The company, which provides managed DNS services as Dyn.com, evidently has its tongue in its cheek, but has plastered the “DNS is Sexy” slogan across its web site anyway.
It has even registered DNSisSexy.com to bounce users to its corporate pages.
There’s a list of ten reasons why this frankly bizarre proposition might be true, including:

7. Standard features like DNSSEC on our Dynect Platform defend you from would be cyber criminals that want to steal your important information online. Bye bye identity theft!

Feeling sexy yet? Me neither.
How about:

9. Recursive DNS like our free Internet Guide, can protect your family and friends from unwanted Web content with customized defense plans.

Feeling sexy now? No?
Still, Go Daddy managed to mainstream domain name registration by incorporating boobs quite heavily in its TV campaigns, and everybody is interested in the ongoing sex.com and .xxx sagas, so it’s not beyond the bounds of possibility that Dyn could do the same for managed DNS.
To be honest, I can’t quite visualise it.
Dyn is asking people to tweet their reasons why DNS is “sexy” including the hashtag #dnsissexy. I’ve done mine.

Bizarre domain suggestion tool

There are plenty of available domain name suggestion tools out there, but BizNameWiz has to be the strangest I’ve seen.
The press release says it uses a “unique and creative algorithm”.
No kidding. I’ll let these screengrabs speak for themselves. (continue reading)