Governments dig in over new TLD objections

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.
ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.
The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.
Yeah, it’s getting a bit complex.
In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.
This is a preliminary analysis.
Controversial TLDs
The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.
ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.
The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.
The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.
The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.
Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.
Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.
Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”
This seems unworkable.
Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.
The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.
If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?
If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.
Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.
This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.
Trademark Protection
Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.
Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?
From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.
Registrar-Registry Cross Ownership
ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.
Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.
But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs
Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.
But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.
The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.
The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.
The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.
Law Enforcement
The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.
This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.
Geographic Names
If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.
The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.
If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.
More Delays?
The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.
If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.
It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.
But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.
The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.

7 Comments Tagged: applicant guidebook, gac, governmental advisory committee, ICANN, new TLDs

New TLDs make it into election manifesto

Welsh nationalist Plaid Cymru has become possibly the first political party to make getting a new top-level domain an election manifesto promise.
Plaid’s manifesto for the Welsh Assembly elections, published today (pdf), says: “We will continue to support the creation of a Welsh cultural and linguistic internet domain dotCymru.”
One of the party’s core goals is further independence from the UK, so it makes perfect sense for it to throw its weight behind the dotCYM initiative.
Wales is, of course, currently represented under the umbrella of .uk, along with England, Scotland and Northern Ireland.
dotCYM had planned to apply for .cym, but had to change it due to ICANN’s rules that forbid TLDs that match three-letter strings on the ISO 3166 list, on which CYM is reserved for the Cayman Islands.
The word “Cymru” is Welsh for “Wales”, pronounced “cumri”.
(via @antonyvc)

1 Comment Tagged: .cymru, ICANN, new TLDs, plaid cymru

CentralNIC says .la business as usual

CentralNIC, which manages .la as a “city top-level domain” for Los Angeles, says recent moves to “reclaim” the domain for Laos will not affect its offerings.
As I blogged Friday, Laos has recruited Vietnamese experts to help LANIC, the delegated sponsor of .la, bring the registry back to the nation.
According to a press release from Vietnamese registrar Dot VN, LANIC wants to “retrieve and manage the Laotian country code Top Level Domain (ccTLD) .LA”.
But UK-based CentralNIC, which currently manages the registry, seems to disagree with the extent of the transition. A company spokesperson provided this statement:

We saw this [Dot VN] press release and understand it relates to work in the Lao PDR with LANIC assisting them on their Lao IDN and the development of a server in Laos for the release of the second level domain extensions, such as .com.la, .edu.la, .gov.la – which are reserved specifically by LANIC to serve the Lao people.
LA Registry works under a mandate from LANIC to develop the .LA address outside the Lao PDR and will continue to do so.

The Dot VN press release does not refer to Laotian IDNs or third-level domains. Nor does any coverage I’ve found elsewhere. Dot VN did not respond to a request for comment.
According to this presentation (pdf), LANIC was planning “to move the ccTLD dot la primary server and registry data base to Lao PDR” as recently as last June.

3 Comments Tagged: .la, centralnic, dot vn, lanic, laos, vnnic

VeriSign to offer different prices to different registrars?

VeriSign may be able to offer differential pricing for .net domain names under the just-published draft .net registry contract.
The current .net agreement expires at the end of June, but VeriSign has a presumptive right of renewal.
The newly negotiated contract has a new “Special Programs” clause would enable VeriSign to offer pricing incentives to registrars in “underserved geographies” not available to other registrars.
Here’s the meat of the paragraph:

Registry Operator may for the purpose of supporting the development of the Internet in underserved geographies provide training, technical support, marketing or incentive programs based on the unique needs of registrars located in such geographies to such registrars, so long as Registry Operator does not treat similarly situated registrars differently or apply such programs arbitrarily. Registry Operator may implement such programs with respect to registrars within a specific geographic region, provided, that (i) such region is defined broadly enough to allow multiple registrars to participate and (ii) such programs do not favor any registrar in which Registry Operator may have an ownership interest over other similarly situated registrars within the same region.

Later, the part of the contract that limits VeriSign’s registry fee and requires uniform pricing among all registrars has been amended to specifically exclude these special programs.
The contract does seem to envisage differential registrar pricing, within certain geographic parameters, perhaps enabling VeriSign to stimulate growth in low-penetration markets.
It’s probably too early to speculate, given that we don’t know what incentives VeriSign has in mind, but it’s not difficult to imagine a scenario where particularly attractive pricing could cause a bunch of shell companies to emerge in, say, Africa or Asia.
For now, the provision would only apply to .net domains, but VeriSign has been known to use .com as a venue for dry runs of services it wants to offer in .com. The .com contract is up for renewal next year.
The proposed .net contract (pdf) contains a number of other changes (pdf), some of which mirror language found in other registry contracts, some of which are new.
There’s a provision for VeriSign to be able to “prevent” the registration of certain names, such as those that would have led to the Conficker worm spreading, in order to protect the security of the internet.
Some of the things that have not changed are also quite interesting.
With ICANN’s recent “vertical integration” decision, which will allow registries and registrars to own each other, you’d think the .net contract renegotiation would be the perfect opportunity for VeriSign to signal its intentions to get into the registrar business, as Neustar already has.
But it has not. The contract contains the same prohibitions on cross ownership as the earlier version.
And as Domain Name Wire noted, the new contract would allow VeriSign to continue to increase its prices by 10% every year until 2017.
That could lead to a maximum of about $9 per domain per year, including ICANN fees, by the time the deal is next up for renewal, if VeriSign exercised the option every year.
There’s an ICANN public comment period, open until May 10.

6 Comments Tagged: .net, ICANN, verisign

Japanese quake victims get free .org renewals

The Public Interest Registry and 15 domain name registrars are working together to auto-renew .org domains that expired during the aftermath of the recent Japanese earthquake and tsunami.
According to a PIR press release, registries and registrars will waive their renewal fees for one year.
The deal is only good for .org domains registered to a Japanese address that were due to expire between March 11 and June 11 this year.
Participating registrars include: Go Daddy, Ascio, INDOM, WebNic.cc, Net 4 India, Discount Domains, Fabulous, Blacknight, Dotster, Moniker, Spirit Domains, Advanced Internet Technologies, Japan Registry Services, PSI-Japan, Network Solutions, and NameSecure.
Additional details can be found at the PIR web site.

Comment Tagged: earthquake, japan, pir, public interest registry

Why ICANN’s CEO did not vote on .xxx

President and CEO Rod Beckstrom has explained his decision to abstain from voting on ICM Registry’s .xxx top-level domain when it came before the ICANN board last month.
As expected, Beckstrom provided substantially the same explanation for his abstention as he did at the Brussels meeting last June – not on the merits of .xxx, but because he had legal concerns.
Specifically, he abstained because he objected to one of the majority findings of an Independent Review Panel, which forced .xxx back to the table last year after ICANN had tried to reject it.
Beckstrom wrote, in a recently published statement (pdf):

while I accept the contribution to ICANN’s accountability and transparency provided by the existence and the use of the independent panel review process, I nonetheless remain concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs.

This refers to the “business judgment rule”, a piece of California law under which courts give deference to the judgment of company directors, unless their decisions were made in bad faith.
If an IRP panel – the last port of appeal for companies upset with ICANN’s decisions – were required to use this rule, it would substantially raise the bar for a successful complaint.
But the panel in the case of ICM Registry versus ICANN (the only such panel to date) decided, by a 2-1 vote, that ICANN’s actions should be “appraised not deferentially but objectively.”
This allowed ICM to win its case by merely showing ICANN had acted outside its bylaws, and not necessarily in bad faith.
The dissenting IRP panelist, Dickran Tevrizian, wrote: “The rejection of the business judgment rule will open the floodgates to increased collateral attacks on the decisions of the ICANN Board of Directors”.
However, the IRP did not specifically rule that ICANN “should not use business judgment” as Beckstrom’s statement suggests, just that the IRP was not obliged to defer to it.
Beckstrom’s statement also gives a shout-out to the Governmental Advisory Committee:

In addition, I note the concerns of the GAC, which while not expressed as a clear decision, was nonetheless directional.

As I previously blogged, ICANN approved the .xxx contract over the objections of some members of the GAC, using the fact that the GAC’s official advice was vague enough to be worked around without explicitly rejecting it.
Beckstrom, incidentally, did not even sign the .xxx contract with ICM, which I believe is a first for an ICANN registry contract. It was instead signed by general counsel John Jeffrey.
(via InternetNews.me)

Comment Tagged: governmental advisory committee, ICANN, icm registry, independent review panel, xxx

Laos to reclaim .la from Los Angeles?

An effort has kicked off in the south-east Asian nation of Laos to “reclaim and relaunch” the .la top-level domain, which is currently being marketed to businesses in Los Angeles.
According to a press release from Dot VN, the “exclusive registrar” for Vietnam’s .vn ccTLD, the two governments came to an agreement to move .la late last month. Dot VN said:

On March 23, Mr. Nguyen Thanh Hung – Deputy Minister of Information and Communications of Vietnam and Mr. Padaphet Sayakhot – Deputy of Laos National Posts and Telecommunications Management Agency signed a memorandum for Vietnam to support Laos to retrieve and manage the Laotian country code Top Level Domain (“ccTLD”) “.LA”.

The announcement talks about a transition plan under which VNNIC, the .vn registry, will temporarily take over the management of .la domain names on behalf of LANIC, the nominal .la registry.

Under the current plan Vietnam will support LANIC in the management and operation of the ccTLD “.LA” by hosting the registry platform in Hanoi while concurrently training LANIC staff, with the eventual goal of turning over complete management of “.LA” to LANIC by 2012.

Today, .la domains are sold from www.la as “the internet address for Los Angeles” and “the first city top-level domain”, equivalent to possible future TLDs such as .paris and .rome.
That site, as well as the the name servers for .la, are currently operated by CentralNIC, the London-based registry services provider, under an agreement with a company called LA Registry Pte Ltd.
But according to IANA records, LANIC has been the designated .la sponsoring organization, as well as its technical and administrative contact, since 2002.
That being the case, there will presumably be no requirement for a lengthy IANA redelegation request if any transition is to take place.
Dot VN’s statement does not mention CentralNIC or existing registrants at all. I’ve been unable to obtain clarification from either company so far, but will provide a follow-up when I do.
LANIC’s web site, incidentally, is currently a parked page.
Local news coverage from the region, in Vietnamese, can be found here and here.

3 Comments Tagged: .la, .vn, centralnic, dot vn, iana, lanic, vnnic

Surf any .com with a text message?

A company called DotGo has launched a service it says will enable mobile phone users to access specially built web-based services using SMS text messaging.
This is (borderline) relevant to the domain name industry because DotGo has obtained the phone numbers that spell out DOTCOM, DOTORG, DOTNET, DOTEDU and DOTGOV when typed on handsets.
Using the system, developers use the company’s custom markup language to create a text-based service, for example a news feed, which they dump into their web server’s root directory.
Consumers can then access this service by sending the name of the service’s domain, minus the extension, to the number 368266 (DOTCOM).
So for cnn.com, you’d send the message “cnn” to 368266. CNN would then reply with a list of headlines from its RSS feed, say. You’d then reply with the number of the story you want to read.
Or you could text “weather 94110” to the same number to quiz weather.com about the forecast in San Francisco.
If this sounds overly complicated, there are a few demos you can try in a normal browser that may explain it better.
The DotGo service has been around for about 18 months, but it’s only today that the company has launched its suite of tools for developers.
The service appears to be ad-supported, free to both developers and users at the basic level with subscription-based upgrades available.
It’s all very clever, but will anyone want to use it? I hear there’s a thing called an “iPhone” nowadays that does a pretty good job at bringing the web to mobile users.
The service seems to be only available in the US (though the web site is pretty vague on that count) and no, DOTMOBI isn’t an option.

Comment Tagged: dotgo

Two-letter domain bx.com for sale

BX.com, an e-commerce software vendor, is inviting offers for its domain name, bx.com.
The company said in a press release that it intends to rebrand itself around its main product, pureCommerce, and is soliciting offers for the domain via sealed bid.
Two-letter .com domains are obviously a scarce commodity. There are only 676 possible combinations, excluding numerals, and they’ve all been long registered.
Many have changed hands, typically with six-figure sums attached, such as li.com, which sold for $500,000 in 2007, and jf.com, which sold for $101,000 a few months ago.
Apparently trying to pump up the price, BX.com’s press release contains this statement:

Companies, both inside and outside of the US, have pursued the BX.COM domain over the years. Most recently, offers have come from the competitors of The Blackstone Group, whose stock symbol is BX, as well as from Chinese multinational corporations.

If the company did not have such well-established rights in the domain – it’s owned it since 1995 – that would look a lot like evidence of a bad-faith shakedown to many UDRP panelists.

1 Comment Tagged: bx.com

NAF sees rise in UDRP cases

The National Arbitration Forum saw a steep increase in the number of cybersquatting complaints filed under the Uniform Dispute Resolution Policy last year.
According to a NAF announcement, 2,177 cases were filed in 2010, up 24% on the previous year.
That seems to be roughly in line with the experience of the World Intellectual Property Organization, which recently reported a 28% increase in UDRP complaints to 2,696 last year.
On that basis, it appears that WIPO has ever so slightly widened the market share gap between itself and NAF.
Between 1999 and the end of last year, NAF had handled 15,763 domain disputes, compared to WIPO’s over 20,000.
A basic UDRP filing covering a few domain names with a single panelist presiding costs about $1,500 with both providers, not including lawyers’ fees and other expenses.
With roughly 35,000 complaints filed to date, we can estimate that the revenue from UDRP flowing to WIPO and NAF together has been in the ball park of $50 million in slightly over 11 years.

7 Comments Tagged: cybersquatting, naf, national arbitration forum, udrp, wipo