Google, L’Oreal execs tapped for new gTLD summit

Executives from Google, L’Oreal and The Boston Globe have been lined up to speak at the new gTLD marketing conference taking placing New York next month.
Hal Bailey, director of Google’s domains business, will speak on the panel “Domains in 2015, 2020, 2025: A View of the dot Future” at the Digital Marketing & gTLD Strategy Congress, according to organizers.
L’Oreal’s chief digital officer has dropped out of the conference, but he has been replaced by Brigitte King, senior vice president of the company’s digital business.
L’Oreal and Google are two of the new gTLD applicants currently under fire for applying for so-called “closed generic” gTLDs, which could make for some interesting discussions.
King will chair the conference and deliver a keynote entitled “The L’Oreal Story: Building Beauty Brands with Digital, Data and Direct Relationships”. L’Oreal has applied for 13 new gTLDs.
The Boston Globe, which has applied for .boston, is sending Jeff Moriarty, it vice president for digital products, and industry IP lawyer Bart Lieben to talk about the newspaper’s plans for the gTLD.
Momentum Consulting, which is organization the dot-brand focused event, says it has 80 confirmed attendees and is on target to have more than its expected 120 by the time ticket sales close.
DI will also be in attendance. I’m hosting a fireside chat with ICANN’s Sally Costerton, head of stakeholder relations.
The conference runs March 11-12 in New York City.

2 Comments Tagged: boston globe, Digital Marketing & gTLD Strategy Congress, dot-brand, google, l'oreal

Closed gTLD debate threatens Google and Amazon

Howls of criticism about Google, Amazon and others’ plans to grab huge swathes of new gTLD real estate and keep it to themselves seem to have spurred ICANN into action.
A public comment period opened this week seeks community feedback (indirectly) on applications such as Amazon’s .music, L’Oreal’s .beauty and Google’s .blog, among many others.
These gTLDs have all been proposed with “single-registrant” business models, in which the registry controls all second-level domains and regular registrars cannot sell them to anyone else.
It’s the “dot-brand” model, but applied to generic dictionary words for which the applicants have no trademark rights.
Scores of such applications have been made, notably by Google and Amazon, but they have drawn criticism from many in the ICANN community, such as a small group of registrars and others led by Blacknight Solutions.
Members of the Governmental Advisory Committee, most vocally Australia, have also expressed serious concerns about the model, saying it could be anti-competitive.
ICANN’s board of directors is currently mulling over these complaints, and has thrown the issue open to public comment to aid in its deliberations.
What it wants from you is:

proposed objective criteria for:

• classifying certain applications as “closed generic” TLDs, i.e., how to determine whether a string is generic, and
• determining the circumstances under which a particular TLD operator should be permitted to adopt “open” or “closed” registration policies.

The way the public comment request is phrased should be quite worrying to applicants for closed generic gTLDs.
It seem to assume that ICANN should be classifying gTLDs, something it has steadfastly refused to do for all of the years these kinds of debates have been raging.
What is a “closed generic” anyway?
The DI PRO New gTLD Application Tracker classifies gTLD applications into three buckets: Open, Restricted and Single-Registrant.
We made no attempt to segregate dot-brands from other Single Registrant bids, precisely because there’s currently no such thing as a dot-brand under ICANN’s rules.
There doesn’t seem to be much community concern about the apps we have classified as “Restricted” — applications for .lawyer that propose to vet registrants for their lawyerly credentials, for example.
The concern is all directed at Single Registrant bids. We have 912 of these in our database.
Many of these are dot-brands, where the applied-for string is an exact match with a famous trademark, but many are for dictionary words for which the applicant has no preexisting rights.
In order to sanely operate a dot-brand, applicants must request an exemption to the ICANN rules that oblige them to offer their gTLDs via accredited registrars on a non-discriminatory basis.
This Code of Conduct is a part of the base Registry Agreement for new gTLDs, but it contains a carve-out for single-registrant applicants:

Registry Operator may request an exemption to this Code of Conduct, and such exemption may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator demonstrates to ICANN’s reasonable satisfaction that (i) all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use, (ii) Registry Operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an Affiliate of Registry Operator, and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest.

This provision was added specifically in order to enable “dot-brands” to exist.
It would be pretty weird if, for example, L’Oreal was forced to make .loreal domains available via hundreds of registrars. By requesting an exception, L’Oreal has the chance to keep .loreal in-house.
However, because ICANN deliberately has made no distinction between commonly used words and brands (.amazon could be both), L’Oreal was also able to apply for .beauty as a single-registrant gTLD.
It’s not really a loophole — the possibility of companies applying for closed generics was envisaged by ICANN and the policy-making community long before the application window even opened.
Make no mistake, this is well-trodden ground. ICANN had plenty of opportunities to address the issue before the new gTLD application window opened a year ago and it quite consciously decided not to.
The feeling over the last couple of years has been that objection mechanisms such as the Community Objection, as well as GAC Advice, would be sufficient to close down these problematic gTLDs bids.
During the year-long community discussion about registry-registrar vertical integration, the possibility of closed generics was acknowledged and heavily debated.
The GNSO’s Vertical Integration Working Group failed to reach consensus on almost everything, but most of the recommendations emerging from it included some Code of Conduct exemptions for dot-brands.
Some in the WG suggested that the exemptions should only apply to true dot-brands (ie, those back up by a trademark) but ICANN decided against referring to trademarks when it wrote the Code of Conduct due to the very real possibility that it would encourage gaming by speculators.
That problem has not disappeared. While there’s no such gaming in the current batch of applications, there will be second and third and fourth application rounds that the rules being hastily debated at the last minute right now will also (presumably) apply to.
What do closed generic applicants want?
Some ICANN community members assumed that it would be the big domainer-backed companies (later emerging as Donuts, Uniregistry et al) that would attempt these kinds of land-grabs.
But that (so far) hasn’t turned out to be the case. The domainers have generally proposed registration policies that are super, super liberal in comparison to Google, Amazon and other closed-generic applicants.
I believe it’s partly because it’s these massively powerful e-commerce companies that are the ones making the land-grabs, and the scale of the grabs, that the issue of closed generics has reemerged now.
There are two broad use cases of concern here.
First, the .beauty scenario: L’Oreal keeps all the second-level .beauty domains to itself, essentially converting the word “beauty” into a brand name as far as the DNS is concerned.
Second, the .blog scenario: Google implements a policy that all .blog domains must use its Blogger service, potentially to the detriment of competitors such as WordPress or Tumblr.
In both scenarios, the bids could be rejected in their entirety as a result of formal objections, ICANN board action or Governmental Advisory Committee advice.
If the applications were approved, ICANN could also subjectively apply the ill-defined “public interest” test outlined above to force compliance with the Code of Conduct.
But that would merely lead to the bizarre scenario where 1,700 accredited registrars all qualify to sell .music domain names, but the only potential customer is Amazon.com’s intellectual property management department (which wants to run .music as a single-registrant gTLD).
As ICANN points out in its public comments request, the Code of Conduct regulates who can sell domain names in new gTLDs, not who they can sell them to.
The .blog scenario is a little different.
This is what Google, which has applied via its Charleston Road Registry subsidiary, has proposed (with my emphasis):

Should ICANN grant Charleston Road Registry’s exemption to the Code of Conduct, and the proposed gTLD operate with Google as the sole registrar and registrant, members of the public will not be able to directly register domain names in this new gTLD. Users will, however, be given the opportunity to make use of a vanity second-level domain as a memorable identifier linked to content in Blogger.

In other words, Google will “own” all the second-level .blog domains, but will allow Blogger customers to “use” them.
It looks like what it is: a transparently bogus attempted workaround of the Code of Conduct, designed to let Google exclude rival blogging services and independent, self-managed bloggers from .blog.
(Disclosure: DI is an independent, self-managed blog.)
However, I can’t see how what Google has proposed could possibly qualify for an exemption, which is only supposed to be granted provided the registry does not “transfer control or use of any registrations in the TLD to any third party”.
If sanity prevails, Google probably won’t qualify for an exemption.
But that won’t stop it tying .blog to Blogger.
The Code of Conduct, remember, is only concerned with equal, non-discriminatory access for accredited registrars. It does not speak to registry services or registry policies.
Google could possibly still have a registry policy stating that all .blog domains must point to Blogger.
In addition, Google could make the registration fee $0, making it unattractive for most registrars to carry (though I guess registrars could use it as a loss-leader, they wouldn’t be able to up-sell hosting and other services if all .blog domains have to use Blogger).
In conclusion
Applicants for closed generics paid millions of dollars to apply, using the rules set down in the Applicant Guidebook at the time, and I can’t see them being too happy about this eleventh hour surprise.
However, there can be little doubt that ICANN, if its role is to protect the public interest and consumer trust, has to seriously tackle the issue of closed generics.
But it has to address it in 2011.

10 Comments Tagged: close generics, code of conduct, dot-brand, ICANN, new gTLDs, single-registrant

.web lawsuit thrown out of court, “too generic” to be a trademark

A California lawsuit that threatened to scupper all seven applications for the .web new gTLD has been thrown out.
The judge in Image Online Design v ICANN yesterday granted ICANN’s motion to dismiss the case, saying that IOD had no claim for breach of contract and, significantly, that “.web” is too generic to be a trademark.
Here’s the money quote:

This court agrees with ICANN that the mark .WEB used in relation to Internet registry services is generic and cannot enjoy trademark protection.

IOD applied for .web during ICANN’s proof-of-concept new gTLD round in 2000, but was not approved.
It sued ICANN last October, claiming breach of contract and trademark infringement and interference with its business.
The company has been running .web in an alternate DNS root, where hardly anyone uses it, since the 1990s.
Unfortunately for IOD, when it applied in 2000 it signed a document releasing ICANN from all legal liability in relation to the application, so the judge yesterday ruled that it could not sue for breach of contract.
The court also upheld the longstanding position of the US courts that top-level domains cannot be trademarks.
The US Patent & Trademark Office is of the view that TLDs do not indicate the source of goods or services; only the second-level domain does.
IOD had argued in court that, with the imminent introduction of dot-brands, the USPTO expects to modify its position. The judge in this case, Dean Pregerson, agreed in part, stating:

For instance, if ICANN were to introduce the TLD .APPLE, the user would arguably expect that that TLD is administered by Apple Inc. In such a case, the TLD might be considered a source indicator. If Sony tried to administer the TLD .APPLE, Apple Inc. would likely argue and possibly prevail on a trademark infringement claim.
This said, it appears to the court that today only the most famous of marks could have a source indicating function as a TLD. Some marks, such as .WEB, might remain generic even if they were famous, since .WEB in connection with registry services for the World Wide Web appears to refer to the service offered, rather than to only a particular producer’s registry service.
…
the mark .WEB is not protectable under traditional trademark analysis because it “seems to represent a genus of a type of website” and thus answers the question “What are you?” rather than “Who vouches for you?”

IOD’s other claims were also thrown out. Read the court’s order here.
The ruling means that a similar lawsuit filed by fellow 2000-round new gTLD applicant Name.Space, which is looking for an injunction against 189 gTLD applications, may be on shaky ground too.

3 Comments Tagged: ICANN, image online design, iod, name.space, new gTLDs, trademarks

ICANN’s new gTLD Public Interest Commitments idea: genius or pure crazy?

ICANN has given new gTLD applicants a month to draft their own death warrants.
Okay, that might be a little hyperbolic. Let’s try again:
ICANN has given each new gTLD applicant 28 days to come up with a list of voluntary “Public Interest Commitments” that, if breached, could lead to the termination of their registry contracts.
The proposed, far-reaching, last-minute changes to the basic new gTLD Registry Agreement were introduced, published and opened for public comment on Tuesday.
PICs — as all the cool kids are calling them — are designed to appease ICANN’s Governmental Advisory Committee, which wants applicants to be held accountable to statements made in their gTLD applications.
If an applicant said in its application for .lawyer, for example, that only actual lawyers will be able to register a .lawyer domain name, the GAC wants ICANN to be able to step in and enforce that promise if the registry changes its registration policies at a later date.
Public Interest Commitments are the way ICANN proposes to let applicants state clearly what they commit to do and not to do, either by flagging parts of their existing application as binding commitments or by writing and submitting entirely new commitments.
Submitting a set of PICs would be voluntary for applicants, but once submitted they would become a binding part of their Registry Agreement, assuming their gTLD is approved and delegated.
“These are commitments you’re making to the community, to the governments, to everybody that can object to your applications, these are not commitments you’re making with ICANN,” ICANN COO Akram Atallah said on Tuesday’s webinar.
Registries would be subject to a new dispute policy (the Public Interest Commitment Dispute Resolution Process or PICDRP) that would enable third parties to file official complaints about breaches.
“We’re allowing third parties that are affected to be able to bring these claims, and then based upon the outcome of the dispute resolution process ICANN will enforce that third party dispute resolution result,” ICANN general counsel John Jeffrey said.
Registries that lost a PICDRP would have to “implement and adhere to any remedies ICANN imposes” up to and including the termination of the registry contract itself.
ICANN is asking applicants to submit their PICs before March 5, just 28 days after revealing the concept.
How PIC (probably) would work
Let’s take an example new gTLD application, selected entirely at random.
Donuts has applied for .dentist.
While the applied-for string suggests that only dentists will be able to register domain names, like all Donuts applications the gTLD would actually be completely open.
The government of Australia has filed a GAC Early Warning against this bid, stating that “does not appear to have proposed sufficient protections to address the potential for misuse”.
The Aussies want Donuts to detail “appropriate mechanisms to mitigate potential misuse and minimise potential consumer harm” or risk getting a potentially lethal GAC Advice objection to its bid.
If Donuts were so inclined, it could now attach a PIC to its .dentist bid, outlining its commitment to ensuring that .dentist is not abused by amateur dental surgery enthusiasts.
The PIC would be subject to public review and comment. If, subsequently, Donuts won the .dentist contention set, the PIC would be attached to its .dentist Registry Agreement and become binding.
Donuts may even stick to its commitments. But the moment some Marathon Man-inspired nutter managed to slip through the cracks, Donuts would be open to PICDRP complaints, risking termination.
What’s good about this idea?
From one perspective, PIC is a brilliantly clever concept.
The proposed solution doesn’t require applicants to amend their applications, nor would it require lengthy contractual negotiations during the gTLD approval and delegation process.
Applicants could merely attach their commitments to the base registry agreement, sign it, and be on their merry way.
This means fewer delays for applicants and relatively little additional up-front work by ICANN.
On an ongoing basis, the fact that PICs would be enforceable only by third parties via the PICDRP means fewer headaches for ICANN compliance and fewer debacles like the aborted attempt to bring .jobs into line.
Finally, it’s also completely voluntary. If applicants don’t want to file a PIC, they don’t have to. Indeed, most applicants aren’t even in a position where they need to think about it.
Do I sense a “but”?
But I can’t see these proposals going down too well in applicant land.
ICANN is, essentially, giving applicants one short month to bind themselves to a completely new, almost completely unknown dispute resolution process.
Repeat: the PICDRP does not yet exist.
Indications were given that it will be modeled on existing dispute resolution procedures in the Applicant Guidebook, but there’s no actual text available to review yet.
We do know that the process would be designed to enable third parties to file complaints, however. Agreeing to PICDRP could therefore potentially open up applicants to competitive or nuisance complaints.
The “remedies” that ICANN could impose when a PICDRP case is lost are also currently rather vague.
While the nuclear option (termination) would be available, there’s no information yet about possible lesser remedies (financial penalties, for example) for non-compliance.
I’ve talked to enough domain name industry lawyers over the years to guess that most of them will take a very dim view of PIC, due to these uncertainties.
One of the guiding principles of the new gTLD program from the outset was that it was supposed to be predictable. ICANN has veered away from this principle on multiple occasions, but these eleventh-hour proposed changes present applicants with some of the biggest unknowns to date.
The timeline doesn’t work
The raison d’être for the PIC concept is, ostensibly, to enable applicants to avoid not only potential GAC Advice but also official objections by other third parties.
But according to ICANN documentation, applicants are being asked to submit their PICs by March 5. ICANN will publish them March 6. They’d then be open for public review until April 5 before becoming final.
But the deadline for filing objections is March 13. That deadline also applies to objections filed by governments (though not GAC Advice, which is expected to come in mid-late April).
Judging by this timeline, potential objectors would have to decide whether to file their objections based on PICs that have been published for just one week and that could be amended post-deadline.
Unless ICANN extends the objection filing window, it’s difficult to see how PIC could be fit for its stated purpose.
On the bright side
I believe that only a small percentage of applicants will be affected by PIC.
Out of 1,917 applications and 1,409 strings, GAC governments filed just 242 Early Warnings against 145 strings. Some of those warnings merely tell the applicant to withdraw its bid, which no amount of PIC will cure.
I expect that very few, if any, applicants without Early Warnings will bother to file PICs, unless of course the objections deadline is moved and PIC becomes an effective way to avoid objections.
For those with Early Warnings, an alternative strategy would be to lobby friendly GAC members — demonstrably flexible to lobbying, judging by the Early Warnings — to ensure that they do not receive full, consensus GAC Advice against their applications.
That would be risky, however, as there’s currently no way of knowing how much weight ICANN’s board of directors will give to non-consensus GAC Advice against applications.

6 Comments Tagged: gac, governmental advisory committee, ICANN, new gTLDs, public interest commitments

Alagna leaves CentralNic

CentralNic’s North American manager, Joe Alagna, has left the company.
Alagna said in a blog post today that he’s leaving the new gTLD back-end hopeful after 13 years there, but did not give his reasons for leaving or state his destination.
CentralNic is the named back-end provider for 60 new gTLD applications and currently runs several pseudo-TLDs, selling subdomains of domains such as gb.com, us.com and uk.com.

Comment Tagged: centralnic

Sunrise for .pw extended by a week

The sunrise period for the liberalizing ccTLD .pw has been extended by a week until February 15.
.PW Registry said that the extension comes due to demand; it will allow further time for trademark owners to defensively register their brands.
The company, owned by the Directi, has about 80 accredited registrars listed on its web site, many of them specialists in brand protection.
It also recently signed up some big mass-market registrars, including volume number two eNom. Market leader Go Daddy has yet to accredit, judging by the .PW web site.
While .pw is the ccTLD for Palau, the registry is positioning it as a competitor to .pro, meaning “Professional Web”. Unlike .pro, however, there are no registration restrictions.
Directi is an applicant for over 30 new gTLDs, almost all contested, so the .pw launch could in some respects be seen as a test run for its bigger TLDs, should it win any of its contention sets.

2 Comments Tagged: .pw, .pw registry, directi, sunrise

Frank Schilling’s Uniregistry gets accredited as a registrar

Portfolio new gTLD applicant Uniregistry has taken the first step towards bringing its proposed new gTLDs to market by getting accredited as a registrar by ICANN.
Uniregistrar Corp shares its Cayman Islands address with Uniregistry.
The company’s web site states:

Uniregistrar is a new ICANN accredited registrar designed to let you create domain names in the new top level domain extensions offered by Uniregistry.
Beginning in 2014 anyone will be able to create and manage their domain names using the simple site we plan to create here. The names offered by Uniregistrar will be shorter, clearer, easier to use and manage than the .com .net or .org names you know from the past.

Given that its IANA number does not yet appear on the official list, the accreditation must have been granted pretty recently.
Uniregistrar is already accredited to sell .asia, .biz, .com, .info, .jobs, .mobi, .name, .net, .org, .pro, .travel and .xxx names, suggesting that the company plans to sell more than just its own TLDs.
Schilling’s existing accredited registrar, iRegistry, which is used primarily (or exclusively) to manage Name Administration’s massive portfolio of domains, is only accredited in .com, .net, .org and .xxx.
Uniregistry is an applicant for 54 new gTLDs, including .auction, .sexy, .christmas and .blackfriday.
Unlike the current regime, under ICANN’s rules for new gTLDs, “vertical integration” — where a registry can own a registrar that sells domains in its TLDs — is permitted.

2 Comments Tagged: ICANN, new gTLDs, uniregistrar, uniregistry

Verisign raises .name prices

Verisign plans to add 10% to the price of a .name domain name, judging by published correspondence.
In a price list sent to ICANN last week, the maximum registry fee for a one-year registration at the second level in .name will be set at $6.60 from August 1, 2013.
It appears to be the first such price increase in .name since the current registry contract was signed back in 2007. That contract set the fee at $6, with maximum hikes of 10% a year.
The new price list (pdf) is rather extensive, also covering products such as email forwarding and .name’s rather expensive wildcard-based defensive registrations.
Links to Verisign’s current pricing for these services are currently broken, so I can’t tell right now whether they’re going up, down, or staying the same.
It’s the second price increase Verisign has announced since it lost the right to hike the registry fee for .com last year. It is also raising .net prices later this year.

Comment Tagged: .name, verisign

Go Daddy claims half-boobed Super Bowl ads success

Go Daddy reckons its two commercials broadcast in the US during the Super Bowl last night were the most successful in the company’s history, according to two key metrics.
The company said in a press release:

Last night’s ads delivered more new customers and more overall sales, as compared to any other Super Bowl campaign in the company’s history.

Go Daddy has been advertising during the game for nine years. This year was the third in which is has partnered with .CO Internet, the .co registry, on one of the ads.
One of the ads was shameless, vintage, attention-grabbing Go Daddy — primarily comprising a lingering shot of a passionate kiss between an attractive female model and a male geek archetype.
The other, which advertised .co, largely eschewed mammary glands in favor of the “Underpants Gnomes” theory of domain name advertising, in which registering a domain somehow leads to fabulous wealth.
ICM Registry used a similar tactic in its launch advertising late 2011.

The Super Bowl is the season finale of a little-played fringe sport known as “American Football”.
Viewers of the annual US broadcast traditionally pay special attention to the regular commercial interludes because the brief, fleeting moments of actual sport are so soul-sappingly tedious.

1 Comment Tagged: .co, .co internet, go daddy, super bowl

Jiwani quits as president of RegistryPro

Karim Jiwani, president of Afilias unit RegistryPro, has quit to explore new opportunities in the domain name business.
Jiwani, whom we profiled in depth recently, joined Afilias when it acquired RegistryPro, the .pro registry, a year ago, so the move is not entirely surprising.
Prior to RegistryPro, he headed up Afilias’ business in Europe.
“Mr. Jiwani plans to pursue other opportunities in the expanding domain industry,” Afilias said.

Comment Tagged: .pro, afilias, registrypro