Reconsideration is not an appeals process: ICANN delivers another blow to Amazon’s gTLD hopes

Amazon has lost its appeal of a ruling that says its applied-for new gTLD .通販 is “confusingly similar” to .shop, with ICANN ruling that its Reconsideration mechanism is not an appeals process.
The e-commerce giant lost a String Confusion Objection filed by .shop applicant Commercial Connect in August, with panelist Robert Nau ruling that the two strings were too confusing to co-exist.
That’s despite one of the strings being written in Latin script and the other Japanese. The ruling was based on the similarity of meaning: 通販 means “online shopping”.
Amazon immediately filed a Reconsideration Request with ICANN.
Days earlier, Akram Atallah, president of ICANN’s Generic Domains Division, had described this process as one of the “avenues for asking for reconsidering the decision”.
Atallah was less clear on whether Reconsideration was applicable to decisions made by third-party panels — the new gTLD program’s Applicant Guidebook contains conflicting guidance.
ICANN’s Board Governance Committee, which handles Reconsideration Requests, has now answered that question: you can ask for Reconsideration of a new gTLD objection ruling, but you’ll only win if you can prove that there was a process violation by the panel.
In its decision, the BGC stated:

Although Commercial Connect’s Objection was determined by a third-party DRSP, ICANN has determined that the Reconsideration process can properly be invoked for challenges of the third-party DRSP’s decisions where it can be stated that either the DRSP failed to follow the established policies or processes in reaching the decision, or that ICANN staff failed to follow its policies or processes in accepting that decision.

That’s moderately good news as a precedent for applicants wronged by objections, in theory. In practice, it’s likely to be of little use, and it was of no use to Amazon. The BGC said:

In the context of the New gTLD Program, the Reconsideration process does not call for the BGC to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints.
…
As there is no indication that either the ICDR or the Panel violated any policy or process in accepting and sustaining Commercial Connect’s Objection, this Request should not proceed. If Amazon thinks that it has somehow been treated unfairly in the process, and the Board (through the NGPC) adopts this Recommendation, Amazon is free to ask the Ombudsman to review this matter.

While the BGC declined to revisit the substance of the SCO, it did decide that it’s just fine for a panelist to focus purely on the meaning of the allegedly confusing strings, even if they’re wholly visually dissimilar.

The Panel’s focus on the meanings of the strings is consistent with the standard for evaluating string confusion objections. A likelihood of confusion can be established with any type of similarity, including similarity of meaning.

In other words, Nau’s over-cautious decision stands: .通販 and .shop will have to enter the same contention set.
That’s not great news for Amazon, which will probably have to pay Commercial Connect to go away at auction, but it’s also bad news for increasingly unhinged Commercial Connect, whose already slim chances of winning .shop are now even thinner.
Commercial Connect had also filed a Reconsideration Request around the same time as Amazon’s, using the .通販 precedent to challenge a much more sensible SCO decision, which ruled that .shop is not confusingly similar to .购物, Top Level Domain Holdings’ application for “.shopping” in Chinese.
The BGC ruled that the company had failed to adequately state a case for Reconsideration, meaning that this objection ruling also stands.
The big takeaway appears to be that the BGC reckons it’s okay for objection panels to deliver decisions that directly conflict with one another.
This raises, again, questions that have yet to be answered, such as: how do you form contention sets when one string has been ruled confusingly similar and also not confusingly similar to another?

18 Comments Tagged: .shop, .通販, amazon, commercial connect, ICANN, reconsideration, string confusion objection, top level domain holdings, 购物

ITU says numeric .tel domains “may be confusing”

The International Telecommunication Union has warned ICANN that numeric .tel domain names, due to be released by Telnic tomorrow, “may confuse customers or cause undue conflicts”.
In a letter to ICANN, Malcolm Johnson, director of the ITU’s Telecommunication Standardization Bureau, said that there’s a risk that numbers-only .tel name could be confused with the E.164 numbering plan.
Johnson asked ICANN to explain how these numbers will be allocated and used:

ITU must express its concern about TELNIC’s recent announcement launching an “all numeric .tel domains” service from 15 October 2013. This raises a number of policy, legal, and practical implications on the potential usage of all-digit strings, not only under .TEL domain, but also under any future telephony-related new gTLDs
…
We are seeking this clarification as the digit strings appear similar to telephone numbers and could be used in a manner similar to telephone numbers, which may confuse customers or cause undue conflicts arising from their use.

E.164 is the standard for phone numbers worldwide. The ITU has been angsty about the potential for clashes ever since .tel was first proposed back in 2000.
Indeed, Telnic promised when it applied in 2003 not to allow numbers in .tel, precisely in order to calm these fears.
But when it asked for this self-imposed ban to be lifted in 2010, the ITU didn’t have anything to say (at least, it did not respond to ICANN’s public comment period).
Read Johnson’s letter here (pdf).

6 Comments Tagged: .tel, ICANN, itu, telnic

dotShabaka Diary — Day 18, More TMCH uncertainty

The eighteenth installment of dotShabaka Registry’s journal, charting its progress towards becoming one of the first new gTLDs to go live, written by general manager Yasmin Omer.

Friday 11 October 2013
We are not sure if anyone else has noticed, but there are differences between the published documentation for Rights Protection Mechanisms, Trademark Clearinghouse and the transition to delegation process. This has created confusion.
To seek clarification, we sent the following questions to ICANN for a response:
Issue 1
IBM confirmed in an email on the 4th of October that شبكة. has passed TMDB testing. The message was:
“…confirm that all tests are ok and have asked to forward your certification request to ICANN.”
Based on this correspondence, it is our understanding that we are at the “Email ICANN CSC – Confirm Tests Completed” stage of the process as outlined in IBM’s TMCH swim lane diagram (pdf).
The next action in the process is ICANN’s – “CSC Sends Request to Registry Services for Actual Sunrise and Claims Start/End Dates”. Our understanding is that the reference to Registry Services is the Registry Services department of ICANN. The CSC will not be able to complete the next action “CSC Updates Existing Line in .csv File with Actual S&C Start/End Dates” until the Registry Operator submits its notice to ICANN (after it is delegated).
Can you please confirm there is no formal step where ICANN (or IBM) provides the Registry Operator with a “pass” certificate or other formal confirmation.
Issue 2
Section 2.1.1 of the RPM Requirements Document (pdf) states that the Registry Operator must provide TLD Startup Information to ICANN and the TMCH Sunrise and Claims Operator. However, section 2.1.2 states that such information must be submitted through the customer service portal.
Can you confirm that submission of the TLD Startup Information through the portal serves to satisfy the requirement to provide TLD Startup Information to ICANN and the TMCH Sunrise and Claims Operator as specified in Section 2.1.1?
Issue 3
Section 2.1.1.1 states that the TLD Startup Information needs to include confirmation that the registry operator has completed testing.
Does this confirmation need to be in a specific form?
Will an email from IBM suffice? If so, who must the email be from i.e. project manager and what must it state specifically?
Issue 4
Section 2.1.1.2 states that the TLD Startup Information needs to include confirmation that the TMCH Sunrise and Claims Operator has accepted the start and end dates prior to the Registry Operator providing the TLD Startup Information. This step of the process is not described in the Process Document.
Does this confirmation need to be in a specific form?
Does IBM have a SLA with ICANN to ensure such confirmation is provided within a specific timeframe to ensure that a Registry Operator’s ability to submit its TLD Startup Information is not compromised by delays?
Issue 5
For clarity can you incorporate the requirements of section 2.1 of the RPM Requirements Document into the TMDB Registration and Access to Production Platform Process swim lane diagram?
Issue 6
Please outline the process for our back-end registry services provider to gain access to the TMCH production environment. 
If this process involves IBM or other external parties please also provide service level expectations so we can include allowance in scheduling of Sunrise and other launch periods
We will let you know when we get a response.

Read previous and future diary entries here.

Comment Tagged: dotshabaka diary

DotGreen calls it quits with “impossible” gTLD auction looming

DotGreen, the first public and easily most visible applicant for the new gTLD .green, has withdrawn its application, saying it has become “impossible” to continue.
In a statement sent to DI tonight, founder and CEO Annalisa Roger said:

While DotGreen supported the New gTLD program, we believe we exhausted all options within the framework of the New gTLD applicant guidebook and the multi-stakeholder model for procuring .green management. DotGreen remains locked in contention facing an auction among three registry competitors from the Internet industry. Unfortunately it is impossible for DotGreen to proceed within these circumstances.
Today we withdrew DotGreen Community, Inc.’s application for the .green TLD.

DotGreen was founded in 2007 and had built up a small following of supporting environmental organizations. A charitable organization, the plan was to use the proceeds from the registry to fund worthy projects.
A prominent applicant from well before the ICANN application window opened, it held regular eco-themed events during ICANN meetings and even recruited its CFO/COO, Tim Switzer, from its back-end provider, Neustar.
(Switzer is chair of the New gTLD Applicants Group, NTAG, but is expected to resign as a result of the withdrawal.)
But it’s facing competition for .green from portfolio applicants Demand Media, Afilias, and Top Level Domain Holdings.
“It is tough for a single-string applicant,” Roger said. “An auction, sorry, it’s not the appropriate scenario for the .green TLD for several reasons. It really the undermines the authenticity and the faith that the community has put in us and the multi-stakeholder model.”
There’s no way the company could win at auction against three big portfolio applicants, she said.
Despite the company name, DotGreen Community’s application was not a “Community” application under ICANN rules and the only way out of contention was going to be private settlement or auction.
It also faced the uncertainty of Governmental Advisory Committee advice, which had classified the string as requiring extra safeguards for “consumer protection” purposes, causing indefinite delays.
It seems the final decision was financial — the cost of delays and an auction too much for the start-up to bear. It’s a pity really — there was some genuine enthusiasm for the cause behind this bid.
The .green gTLD will now go to which one of the remaining three applicants stumps up the most cash at auction.

22 Comments Tagged: .green, dotgreen, ICANN, new gTLDs, withdrawals

More Extended Evaluation passes this week

Four new gTLD applications passed Extended Evaluation this week, and two that were stuck in Initial Evaluation finally made it through, ICANN just revealed.
The Extended Evaluation successes were DotPay’s application for .pay, Commercial Connect’s application for .shop, CompassRose.life’s application for .life and GED Domains’ application for .ged.
The dot-brands .adac (Allgemeiner Deutscher Automobil-Club) and .jio (Affinity Names) passed IE.
Commercial Connect is notable for being 2000-round applicant trying again. It failed on its technical evaluation first time through.

Comment Tagged: extended evaluation, ICANN, initial evaluation, new gTLDs

Donuts’ first gTLD sunrise slated for October 29

Donuts has reportedly become the first new gTLD registry to announce its first sunrise periods.
According to BrandShelter, part of the KeyDrive registrar group, nine of Donuts gTLDs will enter sunrise on October 29.
The nine are: .camera, .clothing, .equipment, .guru, .holdings, .lighting, .singles, .ventures and .voyage.
The sunrise periods will last 60 days, BrandShelter said.
I’m seeking confirmation and additional information from Donuts and will provide an update later.
UPDATE: Donuts’ Jon Nevett, in the comments, states that the dates are “estimates”.

7 Comments Tagged: .camera, .clothing, .equipment, .guru, .holdings, .lighting, .singles, .ventures, .voyage, donuts, sunrise

Third Bulgarian new gTLDs conference planned

Domain Forum, the Bulgarian new gTLDs conference, will run for a third time on November 1 in Sofia.
The one-day event, which will be free to attend and conducted in English, will have a focus this year on Cyrillic internationalized domain names, according to organizers.
Much of the agenda has yet to be finalized but confirmed speakers include consultant Stephane Van Gelder, Blacknight CEO Michele Neylon and Afilias business development director Francesco Cetraro.
Organizer UNINET also hopes to have an ICANN VP keynoting.
Domain Forum will take place at the National Palace of Culture in central Sofia.

Comment Tagged: domain forums, idns, new gTLDs

Domain Name Association opens membership

The new Domain Name Association, which hopes to represent the interests of the domain name industry as a whole, has opened its doors to new members.
The DNA formed in January, named an interim board in April, and has spent the last several months conducting outreach and establishing its corporate structure, goals and membership rules.
Membership prices range from $1,000 to $50,000, with the make-up of the final board (estimated to be fewer than 20 directors) determined by which companies pay for the more expensive membership tiers.
Paying $50,000 will guarantee you a seat on the board, for example, while paying $5,000 makes your company eligible for, but not guaranteed, one of two reserved seats.
Speaking at the Digital Marketing & gTLD Strategy Congress in London two weeks ago, interim DNA chair Adrian Kinderis made no bones about the fact that the DNA is pay-to-play; it’s “not a democracy”.
It’s a trade group in the usual sense, in other words, borrowing nothing from ICANN’s multistakeholder model.
That said, ICANN CEO Fadi Chehade encouraged its creation and ICANN seems to generally support its goal.
That goal is to represent the entire domain name industry — registrars, registries, resellers, etc. Its mission statement is pretty succinct:

Promote the interest of the domain name industry by advocating the use, adoption, and expansion of domain names as the primary tool for users to navigate the Internet.

Promoting new gTLDs is its first priority.
The DNA operates two web sites: thedna.org for its members and whatdomain.org for internet end users.

1 Comment Tagged: dna, domain name association, new gTLDs

Some gTLD applicants welcome ICANN’s clash plan

Some new gTLD applicants, including two of the bigger portfolio applicants, have grudgingly accepted ICANN’s latest name collisions remediation plan as a generally positive development.
ICANN this week scrapped its three-tier categorization of applications, implicitly accepting that it was based on a flawed risk analysis, and instead said new gTLDs can be delegated without delay if the registries promise to block every potentially impacted second-level domain.
You may recall that yesterday dotShabaka Registry said on DI that the plan was a “dog’s breakfast” and criticized ICANN for not taking more account of applicants’ comments.
But others are more positive, if not exactly upbeat, welcoming the opportunity to avoid the six-month delays ICANN’s earlier mitigation plan would have imposed on many strings.
Uniregistry CEO Frank Schilling congratulated ICANN for reframing the debate, in light of Verisign’s ongoing campaign to persuade everyone that name collisions will be hugely risky. He told DI:

There has been a great deal of FUD surrounding name collisions from incumbent registry operators who are trying to negatively shape the utility of the new gTLDs they will be competing against.
I think it was important for ICANN to take control of the conversation in the name of common sense. These types of collisions are ultimately minor in the grand scheme and they occur each and every day in existing namespaces like .com, without the internet melting down.
I think anything that shapes conversation in a way that accelerates the process and sides with common sense is good, I have not yet thought of how this latest change can be gamed to the downside of new G’s.

Uniregistry has 51 remaining new gTLD applications, 20 of which were categorized as “uncalculated risk” and faced considerable delays under ICANN’s original plan.
Schilling’s take was not unique among applicants we talked on and off the record.
Top Level Domain Holdings is involved with 77 current applications as back-end provider — and as applicant in most of them — and also faced “uncalculated” delay on many.
CEO Antony Van Couvering welcomed ICANN’s plan less than warmly and raised questions about the future studies it plans to conduct, criticizing ICANN’s apparent lack of trust in its community:

Basically the move is positive. I characterize it as getting out of jail in exchange for some community service — definitely a trade I’ll make.
On the other hand, the decision betrays ICANN’s basic lack of confidence in its own staff and in the ICANN community. You can see this in the vagueness of the study parameters, because it’s not at all clear what the consultant will be studying or what criteria will be used to make any recommendations — or indeed if anything can be said beyond mere data collection.
But more important, they are hiring an outside consultant when the world’s experts on the subject are all here already, many willing to work for free. ICANN either doesn’t think it can trust its community and/or doesn’t know how to engage them. So they punt on the issue and hire a consultant. It’s a behavior you can see in poorly-run companies anywhere, and it’s discouraging for ICANN’s future.

Similar questions were posed and answered by ICANN’s former new gTLD program supremo Kurt Pritz, in a comment on DI last night. Pritz is now an independent consultant working with new gTLD applicants and others.
He speculated that ICANN’s main concern is not appeasing Verisign and its new allies in the Association of National Advertisers, but rather attempting to head off future governmental interference.
Apparently speaking on his own behalf, Pritz wrote:

The greatest concern is the big loss: some well-spoken individual going to the US Congress or the European Commission and saying, “those lunatics are about to delegate dangerous TLDs, there will be c-o-l-l-i-s-i-o-n-s!!!” All the self-interested parties (acting rationally self-interested) will echo that complaint.
And someone in a governmental role will listen, and the program might be at jeopardy.
So ICANN is taking away all the excuses of those claiming technical risk. By temporarily blocking ALL of the SLDs seen in the day-in-the-life data and by putting into place a process to address new SLD queries that might raise a risk of harm, ICANN is delegating TLDs that are several orders of magnitude safer on this issue than all of the hundreds of TLDs that have already been delegated.

Are you a new gTLD applicant? What do you think? Is ICANN’s plan good news for you?

11 Comments Tagged: ICANN, name collisions, new gTLDs

dotShabaka Diary — Day 17, Collisions plan is a dog’s breakfast

The seventeenth installment of dotShabaka Registry’s journal, charting its progress towards becoming one of the first new gTLDs to go live, written by general manager Yasmin Omer.

Thursday 10 October 2013
As regular readers of this journal will know, we have been frustrated by the lack of certainty surrounding the new gTLD program.
Other industries would have picketed the building of the regulator with suitably angry placards being waved and a catchy song. Unfortunately in the domain name industry, angry blogs serve as a replacement to chaining ourselves to Fadi’s swivel chair.
So as a compromise, I ask readers to hum their favourite protest tune while reading our latest tale of woe.
Flippant commentary aside, the document ICANN released on name collisions yesterday (New gTLD Collision Occurrence Management) is a perfect example of what many applicants find challenging about ICANN staff’s use of the public comment process.
Despite the many detailed studies undertaken by a number of applicants and reported through the public comment process, it would appear that many of the recommendations or proposed solutions have been ignored by ICANN staff and the NGPC in favour of something that resembles a ‘dog’s breakfast’.
You’ll recall that ICANN made some suggestions to mitigate the risk of name collisions. There were three categories: High (dead men walking), Uncategorised (deer in headlights) and Low (phew ).
There was going to be a study about something at sometime that would decide stuff and the aforementioned deer would roam free. There was going to be a TLD tasting period during which time registries got to play spammer to unsuspecting ISPs (I wonder if I can get a refund like domain tasters used to, if I don’t get enough traffic?).
A comment period was had and people duly commented. Neither the original suggestions nor the comments seem to have any connection with what appeared in the document we read yesterday. The actions and processes discussed in the document are completely new. Oh, and the Board approved them.
A thought for those in the industry: are we so inured to this kind of procedural disdain that one more example simply doesn’t make us angry anymore?
So what of the document? Is it good for us and the industry? Well there is no low or uncategorised risk grouping anymore. Everyone is in the same bucket of riskiness. Depending on who you are, that might be good for you.
The TLD tasting period, where a TLD was delegated and emails were sent to every poor soul who made the mistake of looking up a non-existing TLD, is gone. That is definitely good. An outreach program with network operators and ISPs seems like an eminently sensible idea. A spam campaign chasing random DNS queries seems like a mad idea.
Now to the grim news – there will be another study (isn’t there always) and another process (if it’s implementation can we just… oh never mind).
The study will tell us which strings from the DITL data set (and other unnamed sets) are risky and why and what we should do with them. Such risk will be contextual to the TLD in question. There’s no detail on how many strings we are talking about. There’s no criteria for the string’s presence in the list (number of queries, type of queries, known risks etc). That sounds like a large chunk of work. No matter how it is automated.
The process to be determined is how the strings and suggested mitigations are delivered to and managed by registries. There’s potentially a lot of future system development and labour costs on the horizon for TLD operators.
Many TLDs will not need to wait for this completed work to delegate. However they must accept from ICANN a list of names they can’t delegate until the process/study and their personalised list of names is completed.
Firstly ICANN has to decide if you can take this option up. How will they do that you ask? I would point you to the very clear decision tree located within the document, only it appears to have been left out. Coming soon.
Second, ICANN has to create and send you the standby extra cautious list. Now we are getting nervous. Just how many names will be on this list? Will there be any filtering or common sense applied? Is the extra cautious list subject to comment? Does it exist already?
There’s also a new process that allows someone who suffers harm from the delegation of a second level domain to have it blocked for a period of up to 2 years. When one thinks through such a process it seems most likely that this harm is only determined after the delegation, not prior. Therefore Registries may be in a position where they need to un-delegate a domain already in use by a registrant.
That could be a rude shock to some innocent registrants. The principle of doing this bothers us. The practical and legal implication of doing this bothers us. And the lack of any detail around how this process is managed, most definitely bothers us.
Whenever I hear process and study I also hear delay. In fact the modus operandi of those opposing the gTLD program has not been to fight it, but to suggest one more study and another process, knowing the effect such activities will have.
So here we are, certain in our uncertainty that one day – soon or not so soon – we will be delegated.
We can’t be the only ones who have internal jokes about the randomness of ICANN policy development. They help us make light of the otherwise business crippling proclamations we receive with no warning.
Don’t you wish, just for once, those jokes weren’t so true?

Read previous and future diary entries here.

4 Comments Tagged: dotshabaka diary, name collisions, new gTLDs