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Congressmen say new gTLDs need more comments

Kevin Murphy, August 8, 2012, Domain Policy

Senior members of the US Congress have asked ICANN to prove that it’s giving the internet community enough opportunity to comment on its 1,930 new gTLD applications.
A letter from the chairs and ranking members of the House and Senate judiciary committees sent to ICANN yesterday basically implies rather heavily that, again, ICANN’s new gTLD program outreach sucks.
Sens. Leahy and Grassley, and Reps. Smith and Conyers write:

many members of the public outside the ICANN community are unaware that the New gTLD program is underway. Of those who are aware, few know about the public comment process or comprehend that their opportunity to participate in this forum is scheduled to end in less than a week.

Probably not coincidentally, the letter comes soon after requests for more time to comment from the Association of National Advertisers and the Intellectual Property Constituency.
The IPC wants another 30-45 days added to the comment period, which is currently set to close — at least for comments that will be forwarded to evaluators — this Sunday.
The Leahy letter highlights the need for comment on “potentially sensitive names like ‘.church’, ‘.kids’, and ‘.sucks'”, which should be a cause for concern for at least seven gTLD applicants.
Given who’s pulling the strings here, it’s not surprising that the letter also highlights the demands from IP interests for stronger rights protection mechanisms, such as a permanent Trademark Clearinghouse service.
They write:

ICANN’s current policy only requires the Clearinghouse to be available for the first 60 days after a registry launches. Moreover, the Clearinghouse will only give notice when someone registers a website that is identical to a trademark; not when the website contains the trademark in a varied form.
As an example, this means that a nonprofit such as the YMCA will receive notice only if a user registers a website such as www.yrnca.give or www.ymca.charity within the first 60 days of the “.give” or” .charity” registry. The YMCA would not receive notice if a person registers those names after 60 days, or if someone registers a closely related name such as www.ymcaDC.charity.

(To which I add, as an aside: and what if Intel wants to register www.buymcafee.shop?)
I think the Congressmen/ANA/IPC have a point, anyway, at least about the lack of commenting from people outside the tightly knit ICANN community.
A lot of data was released on Reveal Day, and much more has been released since.
There are 1,930 new gTLD applications.
The public portions weigh in at almost 400 MB in HTML format and generally run to between 15,000 and 50,000 words apiece.
The 20,000 published application attachments (which MD5 hashing reveals comprise close to 3,000 unique files) are currently taking up about 6 GB of space on the DI PRO server (where subscribers can cross-reference them to see which files show up in which applications).
It’s a lot to read.
That must be at least part of the reason there hasn’t been a single community-based objection comment about Google’s single-registrant .blog application yet.
For me, that’s the benchmark as to whether anyone in the real world is paying attention to this program.
I mean, seriously: no bloggers are concerned about Google using .blog as an exclusive promo tool for its third-rate blogging platform?
What’s worrying the Congressmen is that ICANN’s expensive Independent Objector is not allowed to object to an application unless there’s been at least one negative comment about it
The IO can file community-based objections on behalf of those who cannot afford to do it themselves, but it’s not at all clear yet what the cut-off date for the IO to discover these comments is.
Hopefully, when ICANN reveals its proposed evaluation timetable this week, some of these questions will be answered.

DI launches new gTLD application tracker with built-in string similarity checker

Kevin Murphy, June 15, 2012, Domain Tech

I’m excited to announce the launch of a comprehensive new gTLD application tracking service, featuring a unique built-in string similarity checker, right here on DI.
The service will provide the foundation for all of DI’s new gTLD program analysis over the coming months and years, and is designed to bring together all the best information about each application under one roof.
DI PRO subscribers can start playing with it now here.
All 1,930 applications can currently be searched and sorted by applicant, string, back-end registry provider, and status.
New gTLD application database
Users can also cross-reference applications in contention sets and read salient extracts from each application.
The gTLD application database will shortly be linked to the existing PROfile service, meaning DI PRO subscribers will have access to a database of over 3,000 domain name industry companies.
More features and bid-by-bid analysis will be added as the program progresses, but the feature I’m most excited about today is the string similarity checker, which is already built into every application profile.
This tool checks for visual and phonetic similarity with other applications, existing gTLDs and ccTLDs, as well as strings that are specially protected by the ICANN Applicant Guidebook.
Semantic similarity functionality will be added in the next few days.
Similarity is important for two reasons:
1) the String Similarity Panel, which will create new contention sets based on similar but not identical strings in a couple of months, and
2) the String Confusion Objection, which enables applicants to force rivals into the same contention set based on visual, aural or semantic similarity.
In testing, it’s already thrown up some possible future objections and contention sets that I had not previously considered, and early beta testers — applicants themselves — tell me they think it’s fantastic.
Here’s a screenshot from one of the .sex applications, to give you a taste.
New gTLD Database
Note that, unfortunately, the string similarity feature does not currently support the relatively small number of IDN string applications.
If you’re not already a DI PRO subscriber, you can sign up instantly here using PayPal. If you have any questions about the service, please email subs@domainincite.com.

Olympics wastes more money on ICANN nonsense

Kevin Murphy, May 14, 2012, Domain Policy

International Olympic Committee lawyers have lodged an official appeal of ICANN’s latest decision to not grant it extra-extra special new gTLD protection.
The [O]Lympic Cafe, close to both DI headquarters and the London 2012(TM) Olympic(TM) Park, which apparently found a novel solution when the IOC's lackeys came knocking.The IOC last week filed a Reconsideration Request asking the ICANN board to rethink an April 10 decision that essentially ignored the latest batch of “.olympic” special pleading.
As previously reported, ICANN’s GNSO Council recently spent a harrowing couple of meetings trying to grant the Olympic and Red Cross trademarks even more protection than they already get.
Among other things, the recommendations would have protected strings confusingly similar to “.olympic” at the top level in the new gTLD program.
But a month ago the ICANN board of directors’ newly created, non-conflicted new gTLD program committee declined to approve the GNSO Council’s recommendations.
The committee pointed out in its rationale that the application window is pretty much closed, making changes to the Applicant Guidebook potentially problematic:

a change of this nature to the Applicant Guidebook nearly three months into the application window – and after the date allowed for registration in the system – could change the basis of the application decisions made by entities interested in the New gTLD Program

It also observed that there was still at that time an open public comment period into the proposed changes, which tended to persuade them to maintain the status quo.
The decision was merely the latest stage of an ongoing farce that I went into much more detail about here.
But apparently not the final stage.
With its Reconsideration Request (pdf), the IOC points out that changes to the Applicant Guidebook have always been predicted, even at this late stage. The Guidebook even has a disclaimer to that effect.
The standard for a Reconsideration Request, which is handled by a board committee, is that the adverse decision was made without full possession of the facts. I can’t see anything in this request that meets this standard.
The IOC reckons the lack of special protections “diverts resources away from the fulfillment of this unique, international humanitarian mission”, stating in its request:

The ICANN Board Committee’s failure to adopt the recommended protection at this time would subject the International Olympic Committee and its National Olympic Committees to costly and burdensome legal proceedings that, as a matter of law, they should not have to rely upon.

Forgive me if I call bullshit.
The Applicant Guidebook already protects the string “.olympic” in over a dozen languages – making it ineligible for delegation – which is more protection than any other organization gets.
But let’s assume for a second that a cybersquatter applies for .olympics (plural) which isn’t specially protected. I’m willing to bet that this isn’t going to happen, but let’s pretend it will.
Let’s also assume that the Governmental Advisory Committee didn’t object to the .olympics application, on the IOC’s behalf, for free. The GAC definitely would object, but let’s pretend it didn’t.
A “costly and burdensome” Legal Rights Objection – which the IOC would easily win – would cost the organization just $2,000, plus the cost of paying a lawyer to write a 20-page complaint.
It has already spent more than this lobbying for special protections that it does not need.
The law firm that has been representing the IOC at ICANN, Silverberg, Goldman & Bikoff, sent at least two lawyers to ICANN’s week-long meeting in Costa Rica this March.
Which client(s) paid for this trip? How much did it cost? Did the IOC bear any of the burden?
How much is the IOC paying Bikoff to pursue this Reconsideration Request? How much has it spent lobbying ICANN and national governments these last few years?
What’s the hourly rate for sitting on the GNSO team that spent weeks coming up with the extra special protections that the board rejected?
How much “humanitarian” cash has the IOC already pissed away lining the pockets of lawyers in its relentless pursuit of, at best, a Pyrrhic victory?

How the world’s biggest brands use new gTLDs

Kevin Murphy, April 18, 2012, Domain Registries

DomainIncite PRO is excited to reveal the results of the domain name industry’s first in-depth study into how the world’s biggest brands use new generic top-level domains.
In March and April 2012, we surveyed the domain name ownership and usage patterns of the world’s 100 most-valuable brands — representing over $1.2 trillion in brand value, according to Interbrand — in six gTLDs introduced since 2001.
As well as confirming the long-held belief that brand owners see little value in defensive registrations — many not even choosing to benefit from residual traffic — the survey also revealed which brands are more likely to develop their sites, which are most vulnerable to cybersquatting, and which appear to care the least about enforcing their brands.
We also examined how “cybersquatters” use the domain names they register, with some surprising results.
Privacy/proxy registration is not nearly as prevalent as many believe, our study found, and a significant portion of registrants have made no effort to monetize the domains they own that match famous brand names.
This extensive, fully illustrated report includes:
A comparison of defensive registration trends across 100 brands in six new gTLDs. How many domains are owned by the respective brands and how many are owned by third parties? How many are reserved by the registry and how many are still available for registration?

A breakdown of usage trends by gTLD in .asia, .biz, .info, .jobs, .mobi and .pro. When brand owners register domains in new gTLDs, how likely are they to develop content on those domains, and what can new gTLD registries do to encourage this desirable behavior?
An analysis of cybersquatting behavior in over 100 domain names registered to entities other than the brand owner. How much do brand owners have to worry about their brands being impaired by damaging behavior such as redirection to competing web sites or porn?
Full survey results. Subscribers have full access to the survey results, which include details of which brand-domains belong to third parties, which exhibit potentially damaging behavior, and which are currently available for registration.
DI PRO subscribers can click here for the full report.
Non-subscribers can learn how to subscribe instantly here.

ICANN reopens defensive registration debate

Kevin Murphy, April 13, 2012, Domain Policy

ICANN’s board of directors wants more policy work done on the problem of defensive domain name registrations.
In a resolution passed at a meeting on Tuesday, the board’s newly created New gTLD Program Committee, made up exclusively of non-conflicted directors, said it:

directs staff to provide a briefing paper on the topic of defensive registrations at the second level and requests the GNSO to consider whether additional work on defensive registrations at the second level should be undertaken

The decision was made following the debate about “defensive” gTLD applications ICANN opened up in February, prompted by a letter from US Department of Commerce assistant secretary Larry Strickling.
That in turn followed the two Congressional hearings in December, lobbied for and won by the Association of National Advertisers and its Coalition for Responsible Internet Domain Oversight.
So this week’s decision is a pretty big win for the intellectual property lobby. It’s managed to keep the issue of stronger second-level trademark protection in new gTLDs alive despite ICANN essentially putting it to bed when it approved the new gTLD program last June.
The GNSO could of course decide that no further work needs to be done, so the champagne corks should probably stay in place for the time being.
At the same meeting on Tuesday, the ICANN board committee voted to disregard the GNSO Council’s recent decision to grand extra protections to the International Olympic Committee, Red Cross and Red Crescent movements. The rationale for this decision has not yet been published.

The Olympics and the death of the GNSO, part deux

Kevin Murphy, March 26, 2012, Domain Policy

ICANN’s GNSO Council today narrowly voted to approve controversial special brand protections for the Olympic and Red Cross movements in the new gTLD program.
The vote this afternoon was scheduled as an “emergency” measure after the Council’s dramatic showdown at the ICANN public meeting in Costa Rica earlier this month.
Then, the Non-Commercial Stakeholders Group forced a deferral of the vote on the grounds that ICANN’s proper bottom-up policy-making processes had not been followed.
Today, a virtually identical motion barely squeaked through, turning on just a single vote after all six NCSG councilors abstained in protest.
It was a fairly tense discussion, as these things go.
“This is a sham of a proposal cooked up by a couple of lobbyists and shoved down the GNSO’s throat and that’s why I’m abstaining,” said Robin Gross, sitting in for absent councilor Wendy Seltzer.
“I’m abstaining to avoid the downfall of the GNSO Council,” said fellow NCSG councilor Rafik Dammak.
Essentially, the non-coms are upset that the decision to give special protection to the Olympics, Red Cross and Red Crescent appeared to be a top-down mandate from the ICANN board of directors last June.
(The board was itself responding to the demands of its Governmental Advisory Committee, which had been lobbied for special privileges by the organizations in question.)
ICANN policies are supposed to originate in the community, in a bottom-up fashion, but in this case the normal process was “circumvented”, NCSG councilors said.
Rather than bring the issue of special protection to the GNSO constituencies of which they are members, the IOC and Red Cross went directly to national governments in the GAC, they said.
The motion itself is to create a new class of “Modified Reserved Names” for the new gTLD program’s Applicant Guidebook, comprising solely of strings representing the Olympic and Red Cross.
Unlike the current version of the Guidebook, the International Olympic Committee and Red Cresent and Red Cross would actually be able to apply for their own brands as gTLDs.
The Guidebook would also give these Modified Reserved Names the same protection as ICANN itself in terms of string similarity – so Olympus might have a problem if it applies for a dot-brand.
Of course, the GNSO Council resolution does not become law unless it’s approved by the ICANN board of directors and implemented by staff in the Applicant Guidebook.
With the March 29 and April 12 application deadlines approaching, there’s a limited – some might say negligible – amount of time for that to happen if the GNSO’s work is to have any meaning.
That said, ICANN chair Steve Crocker said on more than one occasion during the Costa Rica meeting that he wants the board to be more flexible in its scheduling, so it’s not impossible that we’ll see an impromptu board meeting before Thursday.

ICANN adds 266 new gTLD applicants in a week

Kevin Murphy, March 24, 2012, Domain Registries

Remember that last-minute rush I was telling you about?
ICANN has revealed that it now has 556 registered users in its Top-Level Domain Application System, up from 290 just a week ago.
Each TAS account can be used to apply for 49 new gTLDs (not 50 as previously reported), so we’re looking at anywhere from 0 to 27,244 new gTLD applications.
Based on what I’ve heard from consultants, I estimate that the true number of applications represented by these 556 accounts could be over 1,000.
Companies applying for dot-brand gTLDs are in many cases also applying for a couple of keyword gTLDs related to their vertical industry too, I hear.
Fairwinds Partners, which has been mostly working with skeptical brands, said this week that its clients on average are applying for 2.7s gTLD each.
Applied across all the TAS accounts registered to date, that would mean 1,501 applications.
The deadline for new TAS registrations is this Thursday, March 29, at 2359 UTC. That’s 1659 in ICANN’s native California and 1959 on America’s east coast.
Remember that while the UK switches from GMT (which is the same as UTC) to BST tomorrow morning, UTC does not observe daylight savings and remains the same.

Olympic showdown spells doom for ICANN, film at 11

Kevin Murphy, March 19, 2012, Domain Policy

ICANN’s 43rd public meeting, held in Costa Rica last week, was a relatively low-drama affair, with one small exception: the predicted death of ICANN’s Generic Names Supporting Organization.
The drama went down at the GNSO Council’s meeting last Wednesday – or “the day that everyone is going to remember as the downfall of the current GNSO Council” as vice-chair Jeff Neuman put it.
It had all the elements one might expect from an ICANN showdown: obscure rules of engagement, government meddling, special interests, delayed deadlines, whole oceans of acronym soup, commercial and non-commercial interests facing off against each other…
…and it was ultimately utterly, utterly pointless and avoidable.
The GNSO Council – which is responsible for forwarding community policies to ICANN’s board of directors – was asked to vote on a resolution giving special trademark protections to the International Olympic Committee and Red Cross and Red Crescent movements.
The resolution would have made it possible for the IOC/RC/RC organizations to apply for new gTLDs such as .olympic and .redcross while also disallowing confusingly similar strings from delegation.
The motion was created by a Drafting Team on the instruction of the ICANN board of directors, itself responding to a request from a heavily lobbied Governmental Advisory Committee.
The timing of the vote was crucial – the GNSO Council was not set to meet again until April 12, coincidentally the same date that ICANN stops accepting applications for new gTLDs.
If the vote didn’t happen last week, the IOC and Red Cross could have been basically banned from applying for new gTLDs until the second application round, years from now.
Confusingly similar strings would be eligible for delegation in the first round, however, which could mean both organizations would be locked out of the program permanently.
The resolution enjoyed broad support and was set to attract positive votes from every constituency group with the exception of the Non-Commercial Stakeholders Group.
The Non-Coms were unhappy that the Drafting Team recommendations underlying the resolution were, and still are, open for public comment.
While it’s not a unanimous view, they’re also ideologically opposed to the idea that the IOC and Red Cross should get special protection when a cheap way to object to confusing gTLDs already exists.
And the NCSG is far from alone in its concern that the decision to grant special privileges to these groups was a top-down decree from the ICANN board, lobbied for by the GAC.
Rather than simply voting “no”, however, the NCSG decided instead to force a deferral of the vote.
NCSG councilor Rafik Dammak said the resolution was “questionable on the merits and contrary to ICANN’s processes” and said the group had decided it had “no option but to defer this motion at least until the public comment period is closed”.
The GNSO Council has an unwritten but frequently used convention whereby any stakeholder group request to defer a vote until the next meeting is honored by the chair.
Barely a Council meeting goes by without one stakeholder group or another requesting a deferral. Usually, it’s requested to give a constituency group more time to study a proposal.
“The deferral request is intended to give people time to consider motions,” Council chair Stephane Van Gelder told Dammak. “The statement you just read is a statement against the motion itself.”
As Van Gelder noted, the NCSG did not have the usual excuse. Drafting Team chair Jeff Neuman had spent a few weeks prior to Costa Rica making damn sure that every stakeholder group, as well as the ICANN board, knew exactly what was coming down the pike.
As a veteran GNSO wonk, Neuman knew that a Non-Com deferral was likely. Even I predicted the move over a week before the Costa Rica meeting kicked off.
He was a little pissed off anyway. Neuman said:

For us to not be able to vote today is a failure. It’s a failure of the system under the guise of claiming you want more public comment. It’s a convenient excuse but in the end it’s a failure – nothing more, nothing less. This is a slap in the face to the governments that have asked us to decide.
You already know how you’re going to vote, it’s clear the vote is going to be no, so why don’t you stand behind your vote and vote now and vote no. That is what you really should be doing.
I want everyone to remember today – March 14, 2012 – because it this is the day that everyone going to remember as the downfall of the current GNSO Council as we know it and the policy process as we know it. Mark my words, it will happen. The GAC has asked us to act and we have failed to do so.

See? Drama.
Neuman noted that the deferral tradition is an unwritten politeness and called for the Council to vote to reject the NCSG’s request – an unprecedented move.
Van Gelder was clearly uncomfortable with the idea, as were others.
NCSG councilor Bill Drake said Neuman’s call for a vote on the deferral was “absolutely astonishing”.
“I never would have imagined I could say ‘well I don’t like this, this annoys me’ and so I’m going to demand we get a vote together and try to penalize a minority group that’s standing alone for some principle,” he said. “If that’s how we going to go about conducting ourselves perhaps this is the end of the Council.”
The Non-Com position also found support from other constituencies.
While Mason Cole of the Registrars Stakeholder Group said he would have voted in favor of the resolution, he said the way the policy was created looked like “a circumvention of the bottom-up policy development process”.
To cut a long story short (too late), after a spirited debate that lasted over an hour Van Gelder honored the NCSG deferral request, saying “something that we’ve always allowed in the past for everyone else should not be overturned in this instance”.
This would have pushed the vote out to the April 12 meeting — the NCSG would have effectively killed off the resolution purely by virtue of the new gTLD program timetable.
Neuman, however, had already invoked another quirk of the GNSO rules of engagement, demanding an emergency Council teleconference to vote on the resolution.
That’s now scheduled for March 26. Assuming the resolution is approved, the ICANN board will have just three days to rubber-stamp it before ICANN’s TLD Application System stops accepting new users.
If the Olympic or Red Cross organizations have any plans to apply for new gTLDs matching their brands, they’re going to have to be very quick.
Frankly, the IOC/RC issue has been a bit of a clusterfuck from beginning to end. This is one of those cases, it seems to me, in which every party involved is wrong.
The GAC was wrong to demand unnecessary special protections for these bodies back in June.
The ICANN board of directors was wrong to overturn established bottom-up policy when it gave the GAC what it wanted at the Singapore meeting.
The ICANN staff implementation that made it into the Applicant Guidebook last September was wrong and full of loopholes.
The Drafting Team was wrong (albeit through no fault of its own) to assume that it was refining established law rather than legislating.
The GNSO Council was wrong to consider a resolution on a policy that was still open for public comment.
The Non-Coms were wrong to abuse the goodwill of the Council by deferring the vote tactically.
There are probably a few typos in this article, too.
But does it spell the end of the GNSO?
I don’t think so. I suspect Neuman’s doomsaying theatrics may have also been somewhat tactical.
The GAC, which wields the hypothetical kill-stick, has yet to say anything about the drama. This may change if the GAC doesn’t get what it wants by the Prague meeting in June, but for now the GNSO is, I believe, safe.

Six hot topics for new gTLD applicants at ICANN 43

Kevin Murphy, March 11, 2012, Domain Policy

Hundreds of stakeholders are gathering in San Jose, Costa Rica today for the first official day of ICANN’s 43rd public meeting.
While the news that the US government has deferred the renewal of ICANN’s IANA contract for another six months has set the most tongues wagging so far, there’s a lot more going on.
In this in-depth DomainIncite PRO ICANN 43 preview, we take a look at:

  • Why many attendees think the shock IANA news is a personal slight against ICANN CEO Rod Beckstrom.
  • How protecting the Olympic and Red Cross trademarks could lead to the new gTLD application window being extended.
  • Why the Governmental Advisory Committee is pushing for greater powers to reject new gTLD applications.
  • Which companies have applied for the potentially lucrative Trademark Clearinghouse contract (and which one is our favorite to win), and why unanswered questions have the IP community worried.
  • What criteria new gTLDs will be judged against after they launch.
  • Why critical talks between ICANN and domain name registrars could lead to the retail price of domain names doubling, and why that probably won’t happen any time soon.

DomainIncite PRO subscribers can read the full analysis here. Non-subscribers can find subscription information here.

Olympic gTLD showdown coming in Costa Rica

Kevin Murphy, March 5, 2012, Domain Policy

While the ICANN public meeting in Dakar last October was notable for a heated clash between governments and the domain name industry, the Costa Rica meeting next week may be characterized by these two recent enemies uniting against a common enemy.
ICANN staff.
Members of the Generic Names Supporting Organization, the Governmental Advisory Committee and the At-Large Advisory Committee all appear to be equally livid about a last-minute new gTLD program surprise sprung by ICANN late last week.
The hitch relates to the ongoing saga about special brand protection for the International Olympic Committee, Red Cross and Red Crescent movements in the new gTLD program.
The need to develop rights protection mechanisms for essentially just three organizations has always been a slightly ridiculous and unnecessary premise, but recently it has assumed symbolic proportions, cutting to the heart of the multistakeholder model itself.
Now, following a perplexing eleventh-hour ICANN mandate, Costa Rica is likely to see some fierce debate about the ICANN decision to kick off the new gTLD program last June.
We expect the GNSO and the GAC to show a relatively united front against ICANN staff on the IOC/RC issue. The At-Large Advisory Committee is also set to throw a bomb or two.
There’s even an outside chance that upcoming talks could wind up adding delay to the next phase of the new gTLD program itself…
The full text of this pre-ICANN 43 policy analysis is available to DomainIncite PRO subscribers here.