Donuts .web claims “discredited”, ICANN tells court

Donuts’ attempt to delay tomorrow’s .web gTLD auction is based on a now “discredited” reading of a single email from rival bidder Nu Dot Co, ICANN told a California court yesterday.
Supporting ICANN’s opposition to Donuts’ motion for a temporary restraining order, two top NDC executives also swore under penalty of perjury that the company is not under new ownership or management.
The filings were made in response to Donuts’ lawsuit, filed Friday, which seeks over $10 million damages and a TRO against the .web auction.
Donuts believes that NDC has been taken over by an as-yet unknown third party with a vested interest in keeping the auction proceeds out of the hands of its competitors by forcing an ICANN-run last-resort auction.
Its belief is based on a June 7 email from NDC CFO Jose Rasco that alludes to COO Nicolai Bezsonoff no longer being with the company and makes reference to unspecified “powers that be” that are now in charge of the company.
By not disclosing the alleged change of control to ICANN, NDC broke Application Guidebook rules, Donuts claims.
But according to ICANN and NDC, this is all nonsense. ICANN told the court:

three separate ICANN bodies – ICANN’s staff, ICANN’s Ombudsman, and ICANN’s Board – have already looked into the alleged change in Nu Dotco’s ownership or management. All three found no credible evidence that any such change had occurred within Nu Dotco, and therefore nothing supported a delay of the Auction. Plaintiff’s TRO application, filed nearly three months after the Auction was scheduled and just two business days before bidding is set to officially begin, relies solely on a strained, and now completely discredited, interpretation of the Nu Dotco CFO’s June 7 email. However, the evidence accompanying this opposition – sworn declarations from ICANN and Nu Dotco executives – confirms that Nu Dotco has not made any change in its ownership or management, much less a “disqualifying” change that should derail the Auction processes already under way or the official start of bidding.

Rasco and Nicolai Bezsonoff both swear in accompanying declarations that the managers and members (ie owners) of NDC have not changed since the original 2012 application.
NDC, according to its .web application, is owned by two Delaware shell companies — Domain Marketing Holdings, LLC and NUCO LP, LLC — both of which appear to have been created in order to provide a layer of separation between NDC and its actual investors.
Rasco and Bezsonoff say that these two companies remain the only owners of NDC requiring their identities to be disclosed to ICANN.
There’s no comment in either declaration about whether either of those two companies has undergone a change in control.
What we seem to have here, amusingly, is NDC using exactly the same legal tricks as Donuts to hide the ultimate beneficiaries of its gTLD applications.
Donuts, you may recall, applied for 307 new gTLDs via 307 distinct shell LLCs with randomly generated names. Not only that, but each of those LLCs is owned by one of two other shell companies — 201 belonged to Dozen Donuts LLC, 106 belonged to Covered TLD LLC.
Donuts never formally disclosed in its ICANN applications (or, to my recollection, publicly confirmed) that business partner Rightside had the right to buy any of the Covered TLD strings — including .web, it seems — a right Rightside has exercised many times since.
Rightside basically got the same layer of identity insulation that whoever’s pulling the strings at NDC is getting now.
That irony is not pointed out in ICANN’s latest court filing, which can be read here (pdf). The Rasco and Bezsonoff declarations can be read here and here.
The applicants for .web are NDC, Radix, Donuts, Schlund, Afilias, Google and Web.com. Vistaprint’s bid for .webs is also in the auction.
Unless Donuts gets its TRO, the auction will begin at 1400 UTC tomorrow and we could find out how much .web sold for later that day.

Donuts files $10 million lawsuit to stop .web auction

Donuts has sued ICANN in an attempt to block the auction of the .web gTLD this Wednesday.
The gTLD portfolio registry filed a lawsuit in California on Friday, seeking over $10 million in damages and a temporary restraining order to stop the auction going ahead.
The complaint alleges breach of contract, negligence and unfair competition and seeks a court declaration that the covenant not to sue signed by all new gTLD applicants is unenforceable.
According to Donuts, ICANN breached its duties by not fully investigating the allegation that rival .web applicant Nu Dot Co has undergone a change of control and has a new, wealthier owner.
NDC is the only applicant in the eight-strong .web/.webs contention set that refuses to resolve the contest privately.
A private auction would enrich all losing applicants to the tune of many millions of dollars.
By forcing a “last resort” ICANN auction, NDC has ensured that ICANN will be the only party to benefit from the auction proceeds.
Last-resort auction funds are placed in a separate ICANN account, currently worth over $100 million, which will be spent according to a currently undecided policy created by the ICANN community.
But Donuts’ complaint strongly implies that ICANN is forcing the auction to go ahead because it stands to benefit financially.
Donuts repeats the allegation from its recent joint Request for Reconsideration with Radix that NDC should be forced to disclose to ICANN, via a gTLD application change, the names of its alleged new directors.
It cites again a redacted email from NDC director Jose Ignacio Rasco which talks about fellow listed director Nicolai Bezsonoff no longer being involved with the application but that “several” new directors were.
It adds a quote about Rasco talking about “powers that be”, which Donuts takes to mean he is answering to someone else.
NDC is not listed in the lawsuit, which focuses on ICANN’s obligations under the new gTLD program application contract.
Donuts alleges, for example, that ICANN has a duty to fully investigate whether NDC has indeed changed directors.
ICANN’s Board Governance Committee said last week that ICANN staff had talked to and emailed Rasco about the allegations. Donuts says it should have at least talked to Bezsonoff too.
Donuts also claims that ICANN is not allowed to go ahead with a last-resort auction while there are still outstanding “accountability mechanisms” — including the RfR, which has not yet been formally closed out by the full ICANN board.
The lawsuit also reveals that Donuts simultaneously filed a complaint using ICANN’s less legally formal Independent Review Process, though documentation for that is not yet available.
ICANN’s most recent statement on .web, which just confirms that the .web auction will go ahead this coming Wednesday, was also posted on Friday. It’s not clear if that was posted before or after ICANN became aware of the lawsuit.
All new gTLD applicants had to agree not to sue ICANN when they applied, but Donuts argues that this is unfair and unenforceable.
DotConnectAfrica has had some success with this argument, though Donuts does not cite that case in its own complaint.
There’s been some speculation about the motives of Donuts and others in trying to delay the auction.
The lawsuit will not force NDC into a private auction, but it might buy Donuts and the other applicants more time to consider their strategies.
I’m getting into speculative territory here, but if NDC’s strategy is to win the .web auction as a Trojan horse for its alleged new owner, perhaps revealing the identity of that new owner would make it less likely to insist on a last-resort auction.
If NDC’s alleged new owner has a time-sensitive need for the revenue .web could bring (which could be the case if, for example, the owner was Neustar) perhaps the prospect of a long lawsuit and IRP case could make it more likely to accept a private auction.
If the alleged new owner was revealed to be Verisign — a company more likely than most to acquire .web simply in order to bury it — perhaps that revelation could spur remaining applicants into pooling their resources to defeat it.
It it was a big tech firm from outside the domain industry, perhaps that would strengthen Google’s resolve to win the auction.
That’s all just me talking off the top of my head, of course.
I have no idea whether or not NDC even has new backers, though its behavior in avoiding private auction goes against character and certainly raises eyebrows.
The Donuts complaint, filed as its subsidiary Ruby Glen LLC, can be read here (pdf).

.web auction to go ahead after ICANN denies Donuts/Radix appeal

The new gTLD .web seems set to go to auction next week after ICANN rejected an 11th-hour delay attempt by two applicants.
ICANN’s Board Governance Committee said yesterday that there is no evidence that applicant Nu Dot Co has been taken over by a deep-pocketed third party.
The BGC therefore rejected Donuts’ and Radix’s joint attempt to have the July 27 “last resort” auction delayed.
Donuts and Radix had argued in a Request for Reconsideration earlier this week that Nu Dot Co has changed its board of directors since first applying for .web, which would oblige it to change the application.
Its failure to do so meant they auction should be delayed, they said.
They based their beliefs on an email from NDC director Jose Ignacio Rasco, in which he said one originally listed director was no longer involved with the application but that “several others” were.
There’s speculation in the contention set that a legacy gTLD operator such as Verisign or Neustar might now be in control of NDC.
But the BGC said ICANN had already “diligently” investigated these claims:

in response to the Requesters’ allegations, ICANN did diligently investigate the claims regarding potential changes to Nu Dot’s leadership and/or ownership. Indeed, on several occasions, ICANN staff communicated with the primary contact for Nu Dot both through emails and a phone conversation to determine whether there had been any changes to the Nu Dot organization that would require an application change request. On each occasion, Nu Dot confirmed that no such changes had occurred, and ICANN is entitled to rely upon those representations.

ICANN staff had asked Rasco via email and then telephone whether there had been any changes to NDC’s leadership or control, and he said there had not.
He is quoted by he BGC as saying:

[n]either the ownership nor the control of Nu Dotco, LLC has changed since we filed our application. The Managers designated pursuant to the company’s LLC operating agreement (the LLC equivalent of a corporate Board) have not changed. And there have been no changes to the membership of the LLC either.

The RfR has therefore been thrown out.
Unless further legal action is taken, the auction is still scheduled for July 27. The deadline for all eight applicants (seven for .web and one for .webs) to post deposits with ICANN passed on Wednesday.
As it’s a last resort auction, all funds raised will go into an ICANN pot, the purpose of which has yet to be determined. The winning bid will also be publicly disclosed.
Had the contention set been settled privately, all losing applicants would have made millions of dollars of profit from their applications and the price would have remained a secret.
NDC is the only applicant refusing to go to private auction.
The applicants for .web are NDC, Radix, Donuts, Schlund, Afilias, Google and Web.com. Vistaprint’s bid for .webs is also in the auction.
The RfR decision can he read here (pdf).

One and two-letter .at domains coming soon

Nic.at will next month start selling .at domains shorter than three character domains for the first time.
All one-character and two-character domains will be released, the ccTLD registry said, about 5,000 domains in total.
The released domains include those containing any of the 34 non-Latin letters Nic.at supports, it said.
Holders of trademarks valid in Austria before July 1 get the first crack at the names, during a August 29 to September 23 sunrise period.
During this phase, domains will cost €240 ($265) with a €120 ($132) application fee. Contested sunrise names will be auctioned in October.
Everything not grabbed by trademark interests will be put to a public auction from November 7, where the minimum bid will be €72 ($79).
If there’s anything left after that, it will be released into the general available pool for registration at standard .at prices.
Nic.at plans to dump all registered one and two-character domains into the .at zone file, so they can be used, at the same time on December 6.
Austria has no local presence requirements for ccTLD registration.
Given “at” has some semantic value in English, it could be a popular launch.

Is Verisign .web applicant’s secret sugar daddy?

The fiercely contested .web gTLD is being forced into a last-resort auction and some people seem to think a major registry player is behind it.
Two .web applicants — Radix (pdf) and Schlund (pdf) — this week wrote to ICANN to demand that the .web auction, currently planned for July 27, be postponed.
They said the sale should be delayed to give applicants time “to investigate whether there has been a change of leadership and/or control” at rival applicant Nu Dot Co LLC.
Nu Dot Co is a new gTLD investment vehicle headed up by Juan Diego Calle, who launched and ran .CO Internet until it was sold to Neustar a couple of years ago.
I gather that some applicants believe that Nu Dot Co’s .web application is now being bankrolled by a larger company with deeper pockets.
The two names I’ve heard bandied around, talking to industry sources this week, are Verisign and Neustar.
Nobody I’ve talked to has a shred of direct evidence either company is involved and Calle declined to comment.
So is this paranoia or not?
There are a few reasons these suspicions may have come about.
First, the recent revelation that successful .blog applicant Primer Nivel, a no-name Panama entity with a Colombian connection, was actually secretly being bankrolled by WordPress, has opened eyes to the possibility of proxy bidders.
It was only after the .blog contention set was irreversibly settled that the .blog contract changed hands and the truth become known.
Some applicants may have pushed the price up beyond the $19 million winning bid — making the rewards of losing the private auction that much higher — had they known they were bidding against a richer, more motivated opponent.
Second, sources say the .web contention set had been heading to a private auction — in which all losing applicants get a share of the winning bid — but Nu Dot Co decided to back out at the last minute.
Under ICANN rules, if competing applicants are not able to privately resolve their contention set, an ICANN last-resort auction must ensue.
Third, this effective vetoing of the private auction does not appear to fit in with Nu Dot Co’s strategy to date.
It applied for 13 gTLDs in total. Nine of those have already gone to auctions that Nu Dot Co ultimately lost (usually reaping the rewards of losing).
The other four are either still awaiting auction or, in the case of .corp, have been essentially rejected for technical reasons.
It usually only makes sense to go to an ICANN last-resort auction — where the proceeds all go to ICANN — if you plan on winning or if you want to make sure your competitors do not get a financial windfall from a private auction.
Nu Dot Co isn’t actually an operational registry, so it doesn’t strictly have competitors.
That suggests to some that its backer is an operational registry with a disdain for new gTLD rivals. Verisign, in other words.
Others think Neustar, given the fact that its non-domains business is on the verge of imploding and its previous acquisition of .CO Internet from Calle.
I have no evidence either company is involved. I’m just explaining the thought process here.
According to its application, two entities own more than 15% of Nu Dot Co. Both — Domain Marketing Holdings, LLC and NUCO LP, LLC — are Delaware shell corporations set up via an agent in March 2012, shortly before the new gTLD application filing deadline.
Many in the industry are expecting .web to go for more than the $41.5 million GMO paid for .shop. Others talk down the price, saying “web” lacks the cultural impact it once had.
But it seems we will all find out later this month.
Responding to the letters from Schlund and Radix, ICANN yesterday said that it had no plans to postpone the July 27 last-resort auction.
All seven applicants had to submit a postponement form by June 12 if they wanted a delay, ICANN informed them in a letter (pdf), and they missed that deadline.
They now have until July 20 to either resolve the contention privately or put down their deposits, ICANN said.
The applicants for .web, aside from Nu Dot Co, are Google, Donuts, Radix, Schlund, Web.com and Afilias.
Due to a string confusion ruling, .webs applicant Vistaprint will also be in the auction.

China conference leads to 49% .vip spike

The Global Domain Industry Conference, held in China over the weekend, has led to a huge boost in .vip domain sales.
Registry Minds + Machines told the markets this morning that the recently launched gTLD hit 404,892 as of 1600 UTC yesterday, up 49% from Friday.
CEO Toby Hall confirmed to DI that China is very much behind the spike, and that the conference helped raise the profile of .vip.
Billings and orders have now hit $5.5 million, up from $3.2 million on May 22, M+M said. That number includes sunrise and premium sales.
At GDS, M+M sold eight .vip domains auction for a total of $232,000 before auction commissions, which very likely inspired the spike in base-fee registrations.
Photos of GDS published on social media yesterday show a packed auditorium, with hundreds of attendees.

what did they say on 2016 Global Domain Industry Summit? what did you care? find it : https://t.co/wTRKX1Fbxq pic.twitter.com/xQNMZNGUxl

— 西部数码 (@westdotcn) June 6, 2016

While M+M makes much of the fact that it has not used a “freenium” strategy for .vip — which it says may lead to better renewal rates than competitors — retail prices are still pretty damn cheap.
At West.cn, its leading Chinese registrar, a .vip can be had today for about $3. It’s closer to $10 at GoDaddy.
Today’s batch of zone files have not yet been published by ICANN for verification, but yesterday there were 245,872 names in .vip.

WordPress reveals IT bought .blog for $19 million

WordPress.com owner Automattic has outed itself as the bankroll behind the winner of the .blog auction and the new owner of the forthcoming new gTLD.
Founder Matt Mullenweg also revealed that the company paid around $19 million for the domain at private auction in February 2015, about $1 million more than the amount DI estimated at the time.
Until now, the winning .blog applicant, which fought off competition from eight competitors including Google, M+M, Radix and Donuts, was only known as Primer Nivel.
Primer Nivel is a Panamanian company previously described to DI as an investment vehicle with links to Colombian registrar My.co.
To the best of my knowledge, Automattic’s involvement with the bid has never even been hinted at, but Automattic founder Matt Mullenweg said in a blog post last night that it has been involved since well before the auction took place.

It’s now public that Automattic is the company behind Knock Knock Whois There LLC, the registry for the new .blog TLD. (And a great pun.) We wanted to stay stealth while in the bidding process and afterward in order not to draw too much attention, but nonetheless the cost of the .blog auction got up there (people are estimating around $20M).

An earlier version of the blog post put the price at “about $19m”, as captured by Google.

ICANN approved the reassignment of the .blog contract from Primer Nivel to Knock Knock WHOIS There on April 29.
In the original Primer Nivel application, only My.co CEO Gerardo Aristizabal and VP of business development Carlos Neira were listed as shareholders of 15% or more of the company in its answer to question 11 of the application form.
ICANN processed a change request to the question 11 answer in March 2014, but did not publish the result of the change. It may merely have been a change of personal contact information.
One has to wonder whether, had WordPress’ involvement in Primer Nivel been public, the .blog auction could have fetched even more.
One might imagine that Google, which competes with WordPress with its Blogger service, would have viewed .blog as more threatening in a rival’s hands.
But Primer Nivel and now Automattic/KKWT appear to have no intention to make .blog a WordPress-exclusive gTLD. The original application stated that it would be open to all, and ICANN has since banned so-called “closed generics”.
The registry has already opened a web site at kkwt.domains, which is currently pitching the product to accredited registrars.
It says it plans to go to general availability and “activate” 250,000 .blog domains before the end of the year.
Automattic obtained an ICANN registrar accreditation back in October 2010 but to date has not sold a single domain via that accreditation.
It offers WordPress.com hosting customers domain registrations, but I believe it does so as a GoDaddy reseller.
.blog is currently in “transition to delegation” and it’s probably only a matter of days before it is delegated to the internet.
Mullenweg blogged that the sunrise period is expected to start in August, with and October landrush.
Pricing is expected to be in line with current industry standards, including premium tiers.
The gTLD has always been one of my favorites, and having WordPress backing it will almost certainly make it more successful than if the registry were an independent third party, possibly raising the profile of new gTLDs as a whole.

.web has an auction date

The .web gTLD will go to auction July 27, according to ICANN.
The organization released an updated auction schedule (pdf) on Wednesday night that also slates .kids/.kid for an auction on the same day.
Both auctions have confusing “indirect contention” elements, where two strings were ruled confusingly similar.
With .web, it’s lumped in with Vistaprint’s application for .webs, which lost a String Confusion Objection filed by Web.com.
Under ICANN rules, .webs is confusingly similar to to Web.com’s .web, but not to the other six .web applications.
This means that Vistaprint and Web.com basically are fighting a mini contention set auction to see who gets their applied-for gTLD.
If Web.com wins the auction for .web, Vistaprint cannot have .webs. However, if any other .web applicant wins, Vistaprint can go ahead with .webs.
Either way, there will be a .web delegated this year. Google, Donuts, Radix, Afilias, Schlund Technologies, Nu Dot Co are all contenders.
In the case of .kids/.kid, the one applicant for .kid — Google — won SCOs against DotKids Foundation and Amazon by default because both .kids applicants failed to respond to the complaints.
DotKids Foundation recently lost a Community Priority Evaluation, enabling the auction to go ahead.
Because Google is in contention with both .kids applicants, only one of the two strings will ultimately be delegated — .kids and .kid will not coexist.
The only other scheduled auction right now is that of .doctor, which is planned for May 25. Radix, Donuts and The Medical Registry will fight it out in this rather less complex battle.
It’s worth noting that if any of these contention sets unanimously choose to resolve their differences via private auction, none of the ICANN auctions will go ahead.

The .web gTLD could go live in 2016

The new gTLD .web could be coming to the internet sooner than expected after two of the remaining barriers to delegation disappeared.
Following the withdrawal last week of an application for the plural .webs, an auction for .web could happen in the next couple of months, enabling a go-live date possibly in 2016.
.web, often considered the most desirable truly generic gTLD, has had a rough time of it in the 2012 ICANN new gTLD program.
There were seven applications for the string. Google, Web.com, Donuts, Radix, Afilias, Schlund Technologies, Nu Dot Co all applied.
The registrar Web.com (owner of Network Solutions, Register.com, et al) appears to be especially keen to get the domain, given that the string more or less matches its brand.
It perhaps should have been a straightforward auction shoot-out.
But, complicating matters, bespoke printing firm Vistaprint had filed two applications — one vanilla, one “community” based — for the plural version of the string, “.webs”.
Vistaprint runs a website development service called Webs.com. It’s the plural of the Web.com brand.
Web.com wasn’t happy about Vistaprint’s .webs applications, so it filed String Confusion Objections against both, arguing that .web and .webs were too confusingly similar to co-exist on the internet.
While there are now many examples of plurals and singulars living together (see .auto/s, .fan/s and .gift/s), the registrar won both of its SCO complaints, meaning Vistaprint’s two applications and the seven .web applicants were lumped together into the same contention set.
If two strings are in the same contention set, only one can survive to be ultimately delegated to the DNS.
Vistaprint appealed the SCO decisions, first with a Request for Reconsideration to the ICANN board (predictably unsuccessful) and then with an Independent Review Process complaint.
While the IRP was being mulled over, .web was in limbo.
The IRP was unsuccessful. The IRP panel ruled in October that ICANN had not violated its bylaws in accepting the SCO panel’s decision.
But it gave ICANN a nudge, suggesting that perhaps it could give Vistaprint leave to appeal the original SCO determinations via another mechanism.
In early March, the ICANN board proper decided that:

the Vistaprint SCO Expert Determination is not sufficiently “inconsistent” or “unreasonable” such that the underlying objection proceedings resulting in the Expert Determination warrants re-evaluation.

The board said that the .web/.webs contention set should be processed as normal; in other words: go to auction.
That removed the first barrier to the .web/.webs auction going ahead.
The second barrier was the fact that Visaprint had file two applications for .webs — one regular, one “community”.
By self-identifying as a “community”, Vistaprint qualified for the Community Priority Evaluation. A winning CPE means all competing applications — including the .web applications in this case — would be eliminated.
While the CPE process is far from perfect, I think the chances of Vistaprint winning would be pretty slim.
Perhaps Vistaprint agreed with me. Whatever the thought process, the company has withdrawn its “community” application. The withdrawal was reflected on the ICANN web site at the weekend, according to the little birds at DI PRO.
What this means is that the seven .web applications and Vistaprint’s remaining, non-community .webs application will be going to auction together.
It could be a private auction, where the proceeds are divvied up between the losers, or an ICANN “last resort” auction, where ICANN gets all the money.
Either way, the winning bidder is likely to pay a LOT of cash for their chosen string.
GMO Registry paid $41 million for .shop back in January. I’d be flabbergasted if .web wasn’t eight figures too.
If Vistaprint offers to pay more money for .webs than Web.com wants to pay for .web, Web.com will be eliminated from the race and Vistaprint will get .webs.
In that scenario, the remaining six .web applicants fight it out for control of the gTLD.
However, if Vistaprint loses against Web.com then all of the seven .web applicants fight it out at auction.
Depending on the identity of the winner and the timing of auctions and pre-delegation testing, it could slip into the root and possibly even become available before the end of the year.
That’s assuming no more surprises, of course.
UPDATE: This post originally incorrectly described the rules of the .web/.webs auction. It was updated with a correct explanation at 2120 UTC.

.mobile will be restricted after Donuts loses auction to Dish DBS

The contention set for the new gTLD .mobile has been resolved, seemingly by private auction, with Dish DBS emerging victorious.
The portfolio registry withdrew its application at the weekend, leaving the satellite TV provider the only remaining applicant.
This means that .mobile will be a restricted gTLD, available only to vetted members of the mobile telephony industry.
Dish had originally proposed .mobile as a so-called “closed generic”, in which it would be the registry and only registrant, but changed its application last year.
It’s a similar story to .phone, which Dish also won.
Dish applied for 13 gTLDs. It withdrew two applications, and 10 others are either in pre-delegation testing or ICANN contracting.