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Strickling urges ICANN to bolster trademark protection for all gTLDs

Kevin Murphy, October 5, 2012, Domain Policy

US Department of Commerce assistant secretary Larry Strickling has called on ICANN to create more trademark protection mechanisms across new and existing gTLDs.
In a letter to ICANN yesterday, Strickling, head of the National Telecommunications and Information Administration, also expressed concerned about the slow progress on implementing the Uniform Rapid Suspension and Trademark Clearinghouse systems.
The URS has run into a problem because no provider ICANN has approached to date wants to run it for the $300 to $500 filing fee.
Meanwhile, the way ICANN plans to implement the Clearinghouse has been hit by criticism from registries, registrars and new gTLD applicants, many of which believe it is too inflexible.
Strickling told ICANN that “it is imperative that all fees associated with the URS remain low”, and suggested that cost savings could be achieved through integration with the Clearinghouse.
But he also called for stronger trademark protections in general, above and beyond what the ICANN community has already decided to implement.

Industry stakeholders have presented a variety of suggestions to reduce the cost of defensive registrations (e.g. trademark blocking mechanisms) and others have suggested enhanced safeguards for new gTLDs targeted at creative sectors.
While not taking a position in support of any specific proposal at this time, NTIA does believes that ICANN should continue and open and transparent dialogue between all actors in order to find solutions to these issues which have come into clearer focus since the release of the 1,930 applications this past June.

The letter was sent due to NTIA’s meeting with the 30-odd so-called “brand summit” companies — almost all household names — last month.
Among other things, they want the Clearinghouse to alert them whenever somebody registers a domain name containing their trademarks, instead of just exact matches.
The counter-argument from the domain industry is that such a proposal would create millions of false positives, due to dictionary words, run-ons and acronyms.
An example recently aired by attorney John Berryhill is the Yellow Pages trademark on “YP”, which would be triggered in the Clearinghouse whenever PayPal registered its brand as a domain name.
The brand summit companies also want a blanket trademark blocking system based on ICM Registry’s .xxx Sunrise B process, under which they pay a one-off fee to block their mark in a gTLD forever.
Opponents point out that such systems may be appropriate in single TLDs, but problems could arise when applied to all TLDs. Different companies have rights to the same strings in different fields.
Strickling appears to be aware of the problems that could be caused if the trademark community gets everything it wants. In the letter, he urges mutual understanding, writing:

Whatever process ICANN follows, trademark holders should provide clear, fact-based descriptions of the challenges they encounter in the global DNS and registries and registrars should clarify issues relating to the technical feasibility and costs of implementing any additional protections.

It’s a nice idea, but attempts to reach a sane solution have so far been unsuccessful.
Melbourne IT’s HARM proposal, which would give special rights to particularly vulnerable brands, was shot down by trademark owners as too limited during a meeting in Washington DC last month.

Worldwide domains up to 240 million

Kevin Murphy, October 2, 2012, Domain Registries

There are now more than 240 million registered domain names on the internet, according to Verisign.
Its latest Domain Name Industry Brief reports that a net of 7.3 million names were added across all TLDs in the second quarter, a 3.1% sequential increase, up 11.9% on Q2 2011.
Verisign’s own .com and .net hit 118.5 million domains by the end of June, up 1.6% sequentially and 7.8% year-over-year. Renewals were at 72.9%, down from 73.9% in Q1.
The company reported that new .com and .net registrations in the period totaled 8.4 million.

European privacy watchdog says ICANN’s Whois demands are “unlawful”

Kevin Murphy, September 28, 2012, Domain Policy

European Union privacy officials have told ICANN that it risks forcing registrars to break the law by placing “excessive” demands on Whois accuracy.
In a letter to ICANN yesterday, the Article 29 Working Party said that two key areas in the proposed next version of the Registrar Accreditation Agreement are problematic.
It’s bothered by ICANN’s attempt to make registrars retain data about their customers for up to two years after registration, and by the idea that registrars should re-verify contact data every year.
These were among the requests made by law enforcement, backed up by the Governmental Advisory Committee, that ICANN has been trying to negotiate into the RAA for almost a year.
The letter (pdf) reads:

The Working Party finds the proposed new requirement to re-verify both the telephone number and the e-mail address and publish these contact details in the publicly accessible WHOIS database excessive and therefore unlawful. Because ICANN is not addressing the root of the problem, the proposed solution is a disproportionate infringement of the right to protection of personal data.

The “root cause” points to a much deeper concern the Working Party has.
Whois was designed to help people find technical and operational contacts for domain names, it argues. Just because it has other uses — such as tracking down bad guys — that doesn’t excuse infringing on privacy.

The problem of inaccurate contact details in the WHOIS database cannot be solved without addressing the root of the problem: the unlimited public accessibility of private contact details in the WHOIS database.

It’s good news for registrars that were worried about the cost implications of implementing a new, more stringent RAA.
But it’s possible that ICANN will impose the new requirements anyway, giving European registrars an opt-out in order to comply with local laws.
The letter is potentially embarrassing for the GAC, which seemed to take offense at the Prague meeting this June when it was suggested that law enforcement’s recommendations were not being balanced with the views of privacy watchdogs.
During a June 26 session between the GAC and the ICANN board, Australia’s GAC rep said:

I don’t come here as an advocate for law enforcement only. I come here with an Australian government position, and the Australian government has privacy laws. So you can be sure that from a GAC point of view or certainly from my point of view that in my positions, those two issues have been balanced.

That view was echoed during the same session by the European Commission and the US and came across generally like a common GAC position.
The Article 29 Working Party is an advisory body set up by the EU in 1995. It’s independent of the Commission, but it comprises one representative from the data privacy watchdogs in each EU state.

ICANN sets deadline to sort out Olympic shambles

Kevin Murphy, September 17, 2012, Domain Policy

ICANN’s board of directors has set itself a deadline to come to a decision on special new gTLD protections for the International Olympic Committee and Red Cross.
It’s looking rather like the IOC, Red Cross and Red Crescent are going to get more of the concessions they’ve been asking for for the last few years, including protection at the second level.
In a resolution passed last week, the ICANN board urged the Generic Names Supporting Organization to make recommendations before January 31 next year, and indicated that it would take matters into its own hands if GNSO consensus cannot be found.

Resolved, the Board thanks the GNSO for its continued attention and ongoing work on this topic, and requests that the GNSO continue its work on a policy recommendation on second-level protections for the IOC and Red Cross/Red Crescent names on an expedited basis.
Resolved (NG2012.09.13.01), if it is not possible to conclude the policy work prior to 31 January 2013, the Board requests that the GNSO Council advise the Board by no later than that date if it is aware of any reason, such as concerns with the global public interest or the security or stability of the DNS, that the Board should take into account in making its decision about whether to include second level protections for the IOC and Red Cross/Red Crescent names

The GNSO has a working group looking at the problem, which is currently deciding whether to recommend starting a formal Policy Development Process.
Given that new gTLDs are expected to start launching in less than a year, and given that PDPs take forever to wrap up, if they ever do, it’s also trying to decide whether to recommend that the IOC/RC/RC marks should be protected in the interim.
Exact matches of the Olympic and Red Cross names, as well as a limited number of translations, would be “reserved” or otherwise removed from sale by each new gTLD registry.
The ICANN board appears to be leaning towards granting these interim protections. In last week’s resolution, it stated:

the Board favors a conservative approach, that restrictions on second-level registration can be lifted at a later time, but restrictions cannot be applied retroactively after domain names are registered.

The IOC/RC/RC debate has been going on since June 2011, when the ICANN board gave the organizations temporary top-level protection in new gTLDs and then passed the hot potato to the GNSO.
The GNSO working group tasked with sorting through the resulting policy mess was subsequently hindered by procedural posturing and acrimony at the Council level and an unreceptive board.
There’s a parallel argument going on at the moment with intergovernmental organizations demanding the same or greater protection, too. Expect IGOs to react with further (mock?) outrage if the IOC/RC/RC get special treatment.
Recently unredacted ICANN board briefing documents reignited the IGO debate last week.

Secret ICANN briefing fuels IGO new gTLDs debate

Kevin Murphy, September 10, 2012, Domain Policy

The Universal Postal Union, newly installed .post registry manager, has launched a withering attack on ICANN for protecting some intergovernmental organizations and not others.
Its salvo follows the release of briefing materials — previously redacted — that ICANN’s board was given when it approved the new gTLD program at the Singapore meeting in June 2011.
The UPU says that the documents show that ICANN engaged in “ex post facto attempts at justifying legally-flawed decisions” when it decided to give extra protection to the Olympics and Red Cross/Red Crescent movements.
As you may recall, these protections were granted by the ICANN board when the program was approved, following lobbying of the Governmental Advisory Committee by both organizations.
In the current round, nobody was allowed to apply for gTLDs such as .redcross or .olympic, or translations in dozens of languages. There are also ongoing talks about extending this protection to the second level.
Some have argued that this would lead to a “slippery slope” that would resurrect the problematic Globally Protected Marks List, something ICANN and the GAC have denied.
They have maintained that the IOC/RC/RC movements are unique — their marks are protected by international treaty and many national laws — and no other groups qualify.
Other IGOs disagree.
Almost 40 IGOs, including the United Nations and International Telecommunications Union, are lobbying for an additional 1,108 strings to be given the same protection as the Olympics.
If they get what they want, four applied-for gTLDs could be rejected outright and dozens of others would be put at risk of failing string similarity reviews.
According to the UPU’s latest letter, ICANN’s newly disclosed rationale for giving only the IOC/RC/RC organizations special privileges was based on a flawed legal analysis:

most of the recommendations contained in documents such as the Unredacted Paper seem to reflect, in an unambiguous way, ex post facto attempts at justifying legally-flawed decisions in order to narrow even further the necessary eligibility “criteria” for protection of certain strings, apparently so that only two organizations would merit receiving such safeguards under the new gTLD process.

In other words, according to the UPU and others, ICANN found itself in a position in June 2011 where it had to throw the GAC a few bones in order to push the new gTLD program out of the door, so it tried to grant the IOC/RC/RC protections in such a way that the floodgates were not opened to other organizations.
You can read the unredacted ICANN briefing materials here. The UPU letter, which deconstructs the document, is here.
It’s worth noting that the Applicant Guidebook already gives IGOs the explicit right to file Legal Rights Objections against new gTLD applications, even if they don’t have trademark protection.

What’s wrong with Melbourne IT’s new anti-cybersquatting plan?

Kevin Murphy, August 16, 2012, Domain Policy

Genuine question.
Melbourne IT, the Aussie registrar with the increasingly vocal brand-protection focus, has come up with a new scheme for protecting super-famous brands after new gTLDs start to launch.
It draws on elements of the abandoned Globally Protected Marks List, ICM Registry’s Sunrise B policy, .CO Internet’s launch program, and various recent demands from the intellectual property community.
It’s called the paper Minimizing HARM (pdf), where HARM stands for High At-Risk Marks.
The title may set off grammatical alarm bells, but the rest reads like the least-unreasonable proposition for protecting big brands from cybersquatters that I’ve come across in a long time.
What I like about it is that it’s actually contemplating ways to prevent gaming from the outset, which is something the IP lobby hardly ever seems to do when it demands stronger rights protection mechanisms.
The idea calls for the forthcoming Trademark Clearinghouse to flag a narrow subset of the trademarks in its database as High At-Risk Marks that deserve special treatment.
Melbourne IT has organizations such as PayPal and the Red Cross in mind, but getting on the list would not be easy, even for famous brands.
First, companies would have to prove they’ve had trademark protection for the brand in three of ICANN’s five geographic regions for at least five years — already quite a high bar.
Implemented today, that provision could well rule out brands such as Twitter, which is an obvious high-risk cybersquatting target but might be too young to meet the criteria.
Dictionary words found in any of UN’s six official languages would also be banned, regardless of how famous the brand is. As the paper notes, that would be bad news for Apple and Gap.
Companies would also have to show that their marks are particularly at risk from phishing and cybersquatting.
Five successful UDRP complaints or suspensions of infringing domains by a “top ten registrar” would be enough to demonstrate this risk.
But that’s not all. The paper adds:

In addition to meeting the minimum criteria above, the High At-Risk Mark will need to obtain a minimum total points score of 100, where one point is awarded for each legal protection in a jurisdiction, and one point is awarded for each successful UDRP, court action, or domain registrar suspension undertaken in relation to the mark.

That appears to be setting the bar for inclusion high enough that an OlympicTM pole-vaulter would have difficulty.
Once a brand made it onto the HARM list, it would receive special protections not available to other brands.
It would qualify for a “Once-off Registration Fee”, pretty much the same as ICM’s .xxx Sunrise B, where you pay once to block your exact-match domain and don’t get pinged for renewal fees every year.
Any third parties attempting to register an available exact-match would also have to have two forms of contact information verified by the gTLD registry before their names resolved.
The Trademark Claims service – which alerts mark owners when somebody registers one of their brands – would run forever for HARM-listed trademarks, rather than just for the first 60 days after a gTLD goes into general availability.
The always controversial Uniform Rapid Suspension service would also get tweaked for HARM trademarks.
Unless the alleged cybersquatter paid the equivalent of a URS filing fee (to be refunded if they prevail) their domains would get suspended 48 hours after the complaint was filed.
I’m quite fond of some of the ideas in this paper.
If ICANN is to ever adopt a specially protected marks list, which it has so far resisted, the idea of using favorable UDRP decisions as a benchmark for inclusion – which I believe Marque also suggested to ICANN back in February – is attractive to me.
Sure, there are plenty of dumb UDRP decisions, but the vast majority are sensible. Requiring a sufficiently high number of UDRP wins – perhaps with an extra requirement for different panelists in each case – seems like a neat way of weeding out trademark gamers.
The major problem with Melbourne IT’s paper appears to be that the system it proposes is just so complicated, and would protect so few companies, that I’m not sure it would be very easy to find consensus around it in the ICANN community.
I can imagine some registries and registrars might not be too enthusiastic when they figure out that some of the proposals could add cost and friction to the sales process.
Some IP owners might also sniff at the some of the ideas, just as soon as they realize their own trademarks wouldn’t meet the high criteria for inclusion on the HARM list.
Is Melbourne IT’s proposal just too damn sensible to pass through ICANN? Or is it riddled with obvious holes that I’ve somehow manged to miss?
Discuss.

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.