Afilias hints at more legal action over .web

As Verisign does everything but declare outright victory in last week’s Independent Review Process result, .web rival Afilias is now strongly hinting that its lawyers are not quite ready to retire.

John Kane, VP of Afilias (now Altanovo) said in a statement that Afilias is prepared to “take all actions necessary to protect our rights in this matter”.

This matter is of course the contested 2015 auction for the new gTLD .web, which was won by Nu Dot Co with $135 million of Verisign’s money.

Afilias thinks the winning bid should be voided because Verisign’s involvement had been kept a secret. The IRP panel stopped short of doing that, instead forcing ICANN’s board of directors to make a decision.

The earliest they’re likely to do this is at ICANN 71 later this month.

But with one IRP down, Afilias is now reminding ICANN that the board’s ultimate decision will also be “subject to review by an IRP Panel.”

So if ICANN decides to award .web to Verisign, Afilias could challenge it with another IRP, adding another two years to the go-live runway and another couple million dollars to the lawyers’ petty cash jar.

None of which should overly bother Verisign, of course, if one subscribes to the notion that its interest in .web is not in owning it but rather in preventing its competitors from owning it and aggressively marketing it against .com.

But Verisign also put out a statement reviewing the IRP panel’s decision last week, reiterating that it believes Afilias should be banned from the .web contest and banned from making any further complaints about Verisign’s bid.

While Afilias spent its press release focusing on trashing ICANN, Verisign instead focused its blog post on trashing Afilias.

According to Verisign, Afilias is no longer competent to run a registry (having sold those assets to Donuts) and is just looking for a payday by losing a private auction.

“Afilias no longer operates a registry business, and has neither the platform, organization, nor necessary consents from ICANN, to support one,” Verisign claims.

Afilias could of course outsource its would-be .web registry, as is fairly standard industry practice, either to Donuts or any other back-end operator.

Comment Tagged: .web, afilias, altanovo, auction, donuts, ICANN, irp, verisign

ShortDot plans domain blocking service for brands

Acquisitive new gTLD registry ShortDot is planning a trademark-blocking service along the same lines as those offered by some of its rivals.

The company has applied to ICANN for permission to start a new service called ShortBlock, which it compared to blocking offerings such as Donuts’ Domain Protected Marks List.

Such services block trademarked strings from being registered across a portfolio of gTLDs for a price lower than would be charged for individual defensive registrations.

ShortBlock would also permit typo-blocking, ShortDot’s request states.

Similar services are offered by MMX and .CLUB, both of which will shortly be part of GoDaddy.

ShortDot currently has five gTLDs in its portfolio: .cyou, .sbs, .icu, .bond and .cfd.

Its back-end provider is CentralNic. It says it plans to launch ShortBlock just as soon as ICANN approves its Registry Services Evaluation Process request.

Comment Tagged: shortblock, shortdot, trademarks

No more acquisitions for Nominet

Nominet isn’t in the market for buying up other companies any more.

The .uk registry said today that its board of directors has dissolved its mergers and acquisitions committee, which means no more deals in the rapidly consolidating domain name space for the foreseeable future.

The company said the board has “agreed to a proposal to dissolve the M&A Committee in recognition that this type of activity is unlikely to form a central component in the corporate strategy moving forward.”

It’s also dissolved its Cyber Advisory Panel, which looked for potential business opportunities in the internet security space.

The moves come a couple of months after member pressure forced the resignation or sacking of five members of Nominet’s board, including its CEO, in part because of a perception that diversification was harming the core .uk domains business.

But a spokesperson confirmed that the M&A ban is “across the board”, including core and non-core sectors. The decision may be revisited in future, but there are no plans to do so right now.

The PublicBenefit.uk campaign that forced the change of strategic direction had also called for lower .uk prices, more profit sent to public benefit causes, and for greater member engagement.

At its May board meeting, Nominet also agreed to an as-yet-unspecified pricing promotion, an emphasis on public benefit contributions in its budget, and the creation of a UK Registry Advisory Council.

A call for applications for seats on this Council will go out next week.

Comment Tagged: .uk, acquisitions, mergers, nominet, publicbenefit.uk

Afilias leftovers rebrand as Altanovo

The non-registry bits of Afilias that were not acquired by Donuts in the acquisition deal announced last December have been rebranded as Altanovo Inc.

The new Delaware company owns the registrar 101domain, the mobile device software company DeviceAtlas, and the Irish new gTLD application vehicle Afilias Domains No. 3 Ltd, now renamed Altanovo Domains Ltd.

Altanovo Domains is the entity currently fighting ICANN and Verisign for the right to run the .web gTLD.

Afilias’ registry business, including .info, its portfolio of new gTLDs and its .org-running registry back-end business, joined Donuts earlier this year.

Altanovo means “new height”, the company says on its new web site.

Comment Tagged: .web, 101domain, afilias, altanovo

American Gen Z not interested in ICANN?

ICANN seems to be having trouble recruiting American youngsters into its cult community.

The org today said that it’s extended the deadline for its NextGen program, which is trying to attract and throw money at a dozen under-30s from North America to attend its October public meeting.

It’s the second North American meeting in a row before which ICANN has had to extend the deadline for applications.

Ordinarily, the NextGen program offers 18-30 years-old students and academics in the internet policy field free travel and lodgings for an ICANN meeting, along with up to $200 for a visa and $500 to cover incidentals.

ICANN typically picks 12 to 15 participants for each meeting. Successful applicants have “mentors” and are obliged to actually participate, giving a short presentation on their relevant academic work.

It’s currently fifty-fifty whether ICANN 72 goes ahead in Seattle this October or becomes the sixth meeting in a row to be held on Zoom, so pandemic-related travel restrictions probably have some bearing on interest in the NextGen program.

But pre-pandemic ICANN 66, the last to be held in the USA, also had to extend its application deadline and ultimately attracted only 11 successful applicants, one below the usual minimum threshold.

(It’s quite difficult, incidentally, to get quality statistics on the NextGen program. The list of North American participants for ICANN 66 is just a copy-paste of the African participants for ICANN 65, and the out-of-date numbers on the official stats page incorrectly have Mexico, Central America and the Caribbean islands categorized as North American (which they’re not, according to ICANN’s geographic regions policy).)

So what is it keeping younger North Americans away from ICANN?

If anything, one would assume a greater interest from academics in the region, given ICANN’s historical connection to the US government and its uniquely interesting position under the law.

Comment Tagged: ICANN, icann 72, nextgen

Honey Salt stops responding to .sucks cybersquatting complaints

.sucks cybersquatter Honey Salt has stopped responding to UDRP and URS complaints related to the affiliated Everything.sucks web site.

Three UDRP decisions and one URS decisions resolved since early April have stated that the shadowy Turks & Caicos company defaulted or did not respond to the complaints.

It lost all four cases, all on pretty much the same grounds, losing its domains or having them suspended as a result.

Panelists concluded that while Everything.sucks presents itself as a grassroots free-speech wiki populated by user-generated content, in reality it’s just stuffed with undated, anonymous, context-free comments scraped from third-party web sites and designed to pressure brand owners into buying their .sucks domains.

Honey Salt has been hit with 19 UDPR and URS complaints covering 27 .sucks domains since last September. It’s lost all bar one of those that have been decided, an early UDRP in which the panelist bought its free-speech defense.

With the precedent that Everything.sucks is a cybersquatting enterprise pretty solidly set, it presumably doesn’t make much sense for Honey Salt to pay expensive lawyers to put up a defense any more.

In earlier cases, when Honey Salt was still responding, the company was represented by Orrick, Herrington & Sutcliffe, the US law firm that has also worked for .sucks registry Vox Populi.

1 Comment Tagged: cybersquatting, honey salt, momentous, rebel, trademarks, udrp, urs, vox populi

.web ruling hands Afilias a chance, Verisign a problem, and ICANN its own ass on a plate

ICANN has lost yet another Independent Review Process case, and been handed a huge legal bill, after being found to have violated its own rules on transparency and fairness.

The decision in Afilias v ICANN has failed to definitively resolve the issue of whether the auction of the .web gTLD in 2016, won by a shell applicant called Nu Dot Co backed by $135 million of Verisign’s money, was legit.

ICANN’s now urging NDC, Afilias and other members of the .web contention set to resolve their beefs privately, which could lead to big-money pay-days for the losing auction bidders at Verisign’s expense.

For ICANN board and staff, the unanimous, three-person IRP panel decision is pretty damning, with the ruling saying the org “violated its commitment to make decisions by applying documented policies objectively and fairly”.

It finds that ICANN’s board shirked its duty to consider the propriety of the Verisign/NDC bid, allowing ICANN staff to get perilously close to signing a registry contract with an applicant that they knew may well have been in violation of the new gTLD program rules.

Despite being named the prevailing party, it’s not even close to a full win for Afilias.

The company had wanted the IRP panel to void the NDC/Verisign winning bid and award .web to itself, the second-highest bidder. But the panel did not do that, referring the decision instead back to ICANN.

As the loser, ICANN has been hit with a $1,198,493 bill to cover the cost of the case, which includes Afilias’ share of $479,458, along with another $450,000 to cover Afilas’ legal fees connected to an earlier emergency IRP request that ICANN “abusively” forced Afilias into.

The case came about due to a dispute about the .web auction, which was run by ICANN in July 2016.

Six of the seven .web applicants had been keen for the contention set to be settled privately, in an auction that would have seen the winning bid distributed evenly among the losing bidders.

But NDC, an application vehicle not known to be particularly well-funded, held out for a “last resort” auction, in which the winning bid would be deposited directly into ICANN’s coffers.

This raised suspicions that NDC had a secret sugar daddy, likely Verisign, that was covertly bankrolling its bid.

It was not known until after NDC won, with a $135 million bid, that these suspicions were correct. NDC and Verisign had a “Domain Acquisition Agreement” or DAA that would see NDC transfer its .web contract to Verisign in exchange for the money needed to win the auction (and presumably other considerations, though almost all references to the terms of the DAA have been redacted by ICANN throughout the IRP).

Afilias and fellow .web applicant Donuts both approached ICANN before and after the auction, complaining that the NDC/Verisign bid was bogus, in violation of program rules requiring applicants to notify ICANN if there’s any change of control of their applications, including agreements to transfer the gTLD post-contracting.

ICANN has never decided at the board level whether these claims have merit, the IRP panel found.

The board did hold a secret, off-the-books discussion about the complaints at its retreat November 3, 2016, and concluded, without any type of formal vote, that it should just keep its mouth shut, because Afilias and Donuts had already set the ball rolling on the accountability mechanisms that would ultimately lead to the IRP.

More than half the board was in attendance at this meeting, and discussions were led by ICANN’s top two lawyers, but the fact that it had even taken place was not disclosed until June last year, well over three and a half years after the fact.

Despite the fact that the board had made a conscious, if informal, choice not to decide whether the NDC/Verisign bid was legit, ICANN staff nevertheless went ahead and started contracting with NDC in June 2018, taking the .web contention set off its “on-hold” status.

Talks progressed to the point where, on June 14, ICANN had sent the .web contract to NDC, which immediately returned a signed copy, and all that remained was for ICANN to counter-sign the document for it to become binding.

ICANN VP Christine Willett approved the countersigning, but four days later Afilias initiated the Cooperative Engagement Process accountability mechanism, the contract was ripped up, and the contention set was placed back on hold.

“Thus, clearly, a registry agreement with NDC for .WEB could have been executed by ICANN’s Staff and come into force without the Board having pronounced on the propriety of the DAA under the Guidebook and Auction Rules,” the IRP panel wrote.

This disconnect between the board and the legal staff is at the core of the panel’s criticism of ICANN.

The board had decided that Afilias’ claim that NDC had violated new gTLD program rules was worthy of consideration and had informally agreed to defer making a decision, but the staff had nevertheless gone ahead with contracting with a potentially bogus applicant, the panel found.

In the opinion of the Panel, there is an inherent contradiction between proceeding with the delegation of .WEB to NDC, as the Respondent [ICANN] was prepared to do in June 2018, and recognizing that issues raised in connection with NDC’s arrangements with Verisign are serious, deserving of the Respondent’s consideration, and remain to be addressed by the Respondent and its Board, as was determined by the Board in November 2016. A necessary implication of the Respondent’s decision to proceed with the delegation of .WEB to NDC in June 2018 was some implicit finding that NDC was not in breach of the New gTLD Program Rules and, by way of consequence, the implicit rejection of the Claimant’s [Afilias’] allegations of non-compliance with the Guidebook and Auction Rules. This is difficult to reconcile with the submission that “ICANN has taken no position onw hether NDC violated the Guidebook”.

The upshot of the panel’s ruling is to throw the issue back to ICANN, requiring the board to decide once and for all whether Verisign’s auction gambit was kosher.

If you’ll excuse the crude metaphor, ICANN’s board has been told to shit or get off the pot:

The evidence in the present case shows that the Respondent, to this day, while acknowledging that the questions raised as to the propriety of NDC’s and Verisign’s conduct are legitimate, serious, and deserving of its careful attention, has nevertheless failed to address them. Moreover, the Respondent has adopted contradictory positions, including in these proceedings, that at least in appearance undermine the impartiality of its processes.

…

[The panel r]ecommends that the Respondent stay any and all action or decision that would further the delegation of the .WEB gTLD until such time as the Respondent’s Board has considered the opinion of the Panel in this Final Decision, and, in particular (a) considered and pronounced upon the question of whether the DAA complied with the New gTLD Program Rules following the Claimant’s complaints that it violated the Guidebook and Auction Rules and, as the case may be, (b) determined whether by reason of any violation of the Guidebook and Auction Rules, NDC’s application for .WEB should be rejected and its bids at the auction disqualified;

At the same time as the decision was published last night — shortly after midnight UTC and therefore helpfully too late to make it into today’s edition of ICANN’s godawful new email subscriptions feature — ICANN issued a statement on the outcome.

“In its Final Declaration, the IRP panel ruled that the ICANN Board, and not an IRP panel, should decide which applicant should become the registry operator for .WEB,” CEO Göran Marby said.

“The ICANN Board will consider the Final Declaration as soon as feasible, within the timeframe prescribed in the Bylaws, and remains hopeful that the relevant .WEB applicants will continue to seek alternatives to resolve the dispute between them raised during the IRP,” the statement concludes.

That should be of concern to Verisign, as any non-ICANN resolution of the .web battle is inevitably going to involve Verisign money flowing to its competitors.

But my first instinct strikes me that this a is a low-probability outcome.

It seems to me much more likely at first glance that ICANN will rule the NDC/Verisign ploy legitimate and proceed to contracting again.

For it to declare that using a front organization to bid for a gTLD is against the rules would raise questions about other applications that employed more or less the same tactic, such as Automattic’s successful bid, via an intermediary, for .blog, and possibly the 100-ish applications Donuts and Rightside cooperated on.

The ICANN bylaws say the board has to consider the IRP’s findings at its next meeting, for which there’s currently no published date, where feasible.

I should note that, while Donuts acquired Afilias last December, the deal did not include its .web application, which is why both the panel’s decision and this article refer to “Afilias” throughout.

1 Comment Tagged: .web, accountability, afilias, donuts, ICANN, irp, ndc, new gTLDs, transparency, verisign

Verisign hopeful after decision reached in .web gTLD case

The fate of .web has been decided, over 20 years after it was first applied for, and Verisign thinks it might emerge triumphant.

The company said last night that the ICANN Independent Review Panel handling the case of Afilias v ICANN reached a decision May 20 and delivered it to Verisign the following day.

Verisign says the panel “dismissed Afilias’ claims for relief seeking to invalidate the .web auction and to award the .web TLD to Afilias, concluding that such issues were beyond its jurisdiction.”

Sounds good for Verisign so far. Afilias wanted its $135 million bid for .web, submitted via an intermediary called Nu Dot Co, thrown out due to claims that ICANN violated its own bylaws by not sufficiently vetting the bidder.

But Verisign goes on to say “the panel’s ruling recommends that ICANN’s Board of Directors consider the objections made about the .web auction and then make a decision on the delegation of .web”.

It adds that the panel found that ICANN violated its fairness and transparency commitments:

With respect to ICANN, the ruling finds that certain actions and/or inaction by ICANN in response to Afilias’ objections violated aspects of ICANN’s bylaws related to transparency and fairness. These findings are particular to ICANN’s actions and not conduct by Verisign. Verisign anticipates that ICANN’s Board will review the panel’s ruling and proceed consistent with the panel’s recommendation to consider the objections and make a decision on the delegation of .web.

Based on Verisign’s statements, it seems that ICANN lost, but Afilias didn’t win.

The revelation was buried in a Securities and Exchange Commission filing on an unrelated financial matter last night. Hat tip to @jintlaw for spotting and tweeting about it.

It’s the most eagerly anticipated IRP ruling since 2011’s .xxx case, but in stark contrast to Rod “let’s draft this tweet” Beckstrom-era ICANN, where the decision was posted in a matter of hours, the 2021 org has not yet posted the panel’s findings or made a public statement acknowledging the ruling.

Verisign says it intends to “vigorously pursue” .web, but “can provide no assurance” as to which way the ICANN board of directors will swing.

21 Comments Tagged: .web, afilias, auction, ICANN, irp, ndc, new gTLDs, nu dot co, transparency, verisign

As .spa launches, former partner pisses in the champagne

The world’s newest gTLD is due to hit its landrush launch phase tomorrow, but a disgruntled former business partner is warning that it plans to get all the registrations cancelled.

DotPH, the ccTLD registry for the Philippines, reckons it is owed half of the equity in .spa under a 2012 agreement, and has been warning registrars that to sell .spa domains would be to breach three injunctions it has secured through a Hong Kong court.

The latest such injunction (pdf), dated April 23, in part prevents the registry, Asia Spa and Wellness Promotion Council:

(whether directly or indirectly and whether by itself or via its agents or service providers (viz. registrars and registry backend) (“Agents/Service Providers”), employees and/or associated corporate entities whatsoever) be restrained from entering into any agreements for the sale, lease or other use or disposal of any .spa sub-domains (“Launch Agreements”) and/or causing, procuring or giving consent to the Agents/Service Providers to enter into any Launch Agreements

The injunctions are being interpreted differently by DotPH and ASWPC.

DotPH told participating registrars — there are at least 36 of them, according to the ASWPC web site — in a May 12 letter (pdf) from its lawyers:

ASWPC must stop selling .spa domains – by itself, or by or through its agents including Registrars… ASWPC cannot allow or permit any of its Registrars to sell any .spa domains.

It goes on to say:

Our clients will seek orders to cancel all registrations accepted by the .Spa Registry in breach of the Court order. You should alert any existing registrants, and any intending registrants of the Court order, and of the likelihood that any .spa domains registered are likely to be cancelled – unless they have a contract dating before 19 April 2021 requiring ASWPC, or you, to register their domains.

ASWPC’s interpretation appears to differ, in that it does not believe registrars are bound by the injunction, due to the chain of contracts between registry and registrant.

DotPH says that the Hong Kong High Court is next due to consider the case in August.

The .spa landrush phase is due to run from 1600 UTC May 26 until October 1. It’s ostensibly a community-based gTLD, but has eligibility policies that make it open to essentially anyone.

Comment Tagged: .spa, aswpc, community, dotph, landrush, lawsuit, new gTLDs

ICANN chair reins in new gTLD timeline hopes

Don’t get excited about the next round of new gTLDs launching any time soon.

That’s my takeaway from recent correspondence between ICANN’s chair and brand-owners who are apparently champing at the bit to get their teeth into some serious dot-brand action.

Maarten Botterman warned Brand Registry Group chair Cole Quinn that “significant work lies ahead” before the org can start accepting applications once more.

Quinn had urged ICANN to get a move on last month, saying in a letter that there was “significant demand” from trademark owners.

The last three-month application window ended in March 2012, governed by an Applicant Guidebook that said: “The goal is for the next application round to begin within one year of the close of the application submission period for the initial round.”

That plainly never happened, as ICANN proceeded to tie itself in bureaucratic knots and recursive cycles of review and analysis.

Any company that missed the boat or was founded in the meantime has been unable to to even get a sniff of operating its own dot-brand, or indeed any other type of gTLD.

Spelling out some of the steps that need to be accomplished before the next window opens, Botterman wrote:

the 2012 Applicant Guidebook must be updated with more than 100 outputs from the SubPro PDP WG; we will need to apply lessons learned from the previous round, many of which are documented in the 2016 Program Implementation Review, and appropriate resources for implementing and conducting subsequent rounds must be put in place. At present it appears that WG recommendations will benefit from an Operational Design Phase (ODP) to provide the Board with information on the operational implications of implementing the recommendations. As part of such an ODP, the Board may also task ICANN org to provide an assessment of some of the issues of concern that the Board raised in its comments on the Draft Final Report, as well as those topics that did not reach consensus and were thus not adopted by the GNSO Council. The outcome of such an assessment could also add to the work that would be required before launching subsequent rounds.

…

The Board notes your views regarding SAC114. We are aware of discussions that took place during ICANN70 and the Board is in communication with the Security and Stability Committee (SSAC) and its leadership, as per the ‘Understand’ phase of the Board Advice Process. As with all advice items received, the Board will treat SAC114 in accordance with that process.

Breaking that down for your convenience…

The reference to “more than 100 outputs from the SubPro PDP WG” refers to the now six-year old Policy Development Process for New gTLD Subsequent Procedures working group of the GNSO.

SubPro delivered its final report in January and it was adopted by the GNSO Council in February.

ICANN asked the Governmental Advisory Committee for its formal input a few weeks ago, has opened the report for a public comment period that ends June 1, and will accept or reject the report at some point in the future.

SubPro’s more significant recommendations include the creation of a new accreditation mechanism for registry back-end service providers and a gaming-preventing overhaul of the contention resolution process.

The “the 2016 Program Implementation Review” is a reference to a self-assessment of the 2012 round that the ICANN staff carried out six years ago, producing a 215-page report (pdf).

That report contains about 50 recommendations covering areas where staff thought the system of actually processing new gTLD applications could possibly be improved or streamlined in subsequent rounds.

The Operational Design Phase (ODP) Botterman refers to is a brand-new phase of ICANN bureaucracy that is currently untested. It fits between GNSO Council approval of recommendations and ICANN board consideration.

The ODP is basically a way for ICANN staff to insert itself into the process, between community policy-making and community policy-approval, to make sure the GNSO’s tenuous consensus-building exercise has not produced something too crazily complicated, ineffective or expensive to implement.

Staff denies this is a power-grab.

The ODP is currently being deployed to assess proposed changes to Whois privacy policy, and ICANN has already stated multiple times that it will also be used to vet SubPro’s work.

Botterman’s reference to “issues of concern that the Board raised in its comments on the Draft Final Report” seems to mean this September 2020 letter (pdf) to SubPro’s chairs, in which the ICANN board outlined some of its initial concerns with SubPro’s proposed policies.

One fairly important concern was whether ICANN has the power under its bylaws (which have changed since 2012) to enforce Public Interest Commitments (now called Registry Voluntary Commitments) that SubPro thinks could be used to make some sensitive gTLDs more trustworthy.

The reference to SAC144 may turn out to be a big stumbling block too.

SAC114 is the bombshell document (pdf) submitted by the Security and Stability Advisory Committee in February, in which ICANN’s top security community members openly questioned whether allowing more new gTLDs is consistent with ICANN’s commitment to keep the internet secure.

While SAC114 seems to reluctantly acknowledge that the program will likely go ahead regardless, it asks that ICANN do more to address so-called “DNS abuse” before proceeding.

Given that the various factions within the ICANN community can’t even agree on what “DNS abuse” is, how ICANN chooses to “understand” SAC114 will have a serious impact on how much further the runway to the next round gets extended.

In short, Botterman is warning brand owners not to hold their breath anticipating the next application window. I think I even detect some serious skepticism as to whether demand is really as high as Quinn claims.

And quite beyond the stuff Botterman outlines in his letter, there’s presumably going to be at least one round of review and revision on the next Applicant Guidebook, as well as the time needed for ICANN to build or upgrade the systems it needs to process the applications, to hire evaluators and resolution providers, and to make sure it conducts a sufficiently long and broad global marketing program so that potential applicants in the developing world don’t feel left out. And that’s a non-exhaustive list.

Introducing competition into the registry space is of course one of ICANN’s foundational raisons d’être.

After the org was founded in September 1998, it took less than two years before it opened up the first new gTLD application round.

It was another three years before the second round launched.

It then took eight and a half years for the 2012 window to open.

It will be well over a decade from then before anyone next gets the opportunity to apply for a new gTLD. It’s entirely feasible that we’ll see an applicant in the next round headed by somebody who wasn’t even born when the first window opened.

3 Comments Tagged: dot-brands, ICANN, new gTLDs, odp, sac114, ssac, subpro, trademarks