ICANN gets Boing-Boinged over URS

Boing-Boing editor Cory Doctorow caused a storm in a teacup yesterday, after he urged his legions of readers to complain to ICANN about copyright-based domain name seizures and the abolition of Whois privacy services in .net.
Neither change has actually been proposed.
The vast majority of the comments filed on VeriSign’s .net contract renewal now appear to have been sent by Boing-Boing readers, echoing Doctorow’s concerns.
Doctorow wrote: “Among the IPC’s demands are that .NET domains should be subject to suspension on copyright complaints and that anonymous or privacy-shielded .NET domains should be abolished.”
Neither assertion is accurate.
Nobody has proposed abolishing Whois privacy services. Nobody has proposed allowing VeriSign to seize domain names due to copyright infringement complaints.
What has happened is that ICANN’s Intellectual Property Constituency has asked ICANN to make the Uniform Rapid Suspension policy part of VeriSign’s .net contract.
URS is a variation of the long-standing UDRP cybersquatting complaints procedure.
It was created for the ICANN new gTLD Program and is intended to be cheaper and quicker for trademark holders than UDRP, designed to handle clear-cut cases.
While the URS, unlike UDRP, has a number of safeguards against abusive complaints – including an appeals mechanism and penalties for repeat reverse-hijacking trolls.
But the domainer community is against its introduction in .net because it has not yet been finalized – it could still be changed radically before ICANN approves it – and it is currently completely untested.
The IPC also asked ICANN and VeriSign to transition .net to a “thick” Whois, whereby all Whois data is stored at the registry rather than with individual registrars, and to create mechanisms for anybody to report fake Whois data to registrars.
Not even the IPC wants Whois privacy services abolished – chair Steve Metalitz noted during the Congressional hearing on new gTLDs last week that such services do often have legitimate uses.

The 10 dumbest moments from that new TLDs Congressional hearing

The US House of Representatives last week held an oversight hearing into ICANN’s new top-level domains program.
As I may have mentioned, the House Subcommittee on Intellectual Property, Competition and the Internet hearing was set up to be pretty one-sided stuff.
It was clear from the start that ICANN senior vice president Kurt Pritz was going to have his work cut out, given how the panel of five other witnesses was loaded against him.
But as the hearing played out, it quickly became apparent that the real challenge lay not with his fellow witnesses — most of whom were either sympathetic to ICANN from the outset or occasionally forced to leap to its defense — but with the members of the Subcommittee.
While some Congressmen had merely bought into the positions of the trademark lobby, others were so far out of their depth you couldn’t even see the bubbles.
Here, in purely my personal opinion and in no particular order, are the Top 10 Dumbest Moments.
1. Chairman Goodlatte buys the FUD
Subcommittee chairman Bob Goodlatte’s opening statement appeared to have been written with significant input from the intellectual property lobby.
At the very least, he seemed to have accepted some of the more extreme and questionable positions of that lobby as uncontroversial fact.
Two examples:

With every new gTLD that is created, a brand holder will be forced to replicate their internet domain portfolio.
…
The roll-out of these new gTLDs will also complicate copyright enforcement, making it harder and more costly to find and stop online infringers.

He also, on more than one occasion, advocated a “trademark block list” – the Globally Protected Marks List, an idea even the ICANN Governmental Advisory Committee has now rejected.
2. Whois privacy services are Bad
A couple of Congressmen and a couple of witnesses stated that Whois accuracy needs to be enforced more stringently by ICANN, and that Whois proxy/privacy services help criminals.
I took the liberty of doing Whois queries on the official campaign web sites of all 25 members of the Subcommittee, and found that 11 of them use privacy services.
That’s 44% of the committee. Studies have estimated that between 15% and 25% of all registrations use proxy/privacy services, so Congressmen appear to be relatively hard users.
Here’s the list:
Rep. Steve Chabot, Rep. Darrell Issa, Rep. Mike Pence, Rep. Jim Jordan, Rep. Ted Poe, Rep. Jason Chaffetz, Rep. Ben Quayle, Rep. Ted Deutch, Rep. Jerry Nadler, Rep. Zoe Lofgren, Rep. Tim Griffin.
It also turns out that dei.com, the domain name Rep. Issa bragged about owning during the hearing, has phoney data in its Whois record.

You can report him to ICANN here, if you’re so inclined.
It’s likely, of course, that these domains were registered by their staff, but I think we’re allowed to hold Congressmen to at least the same high standard they expect of the rest of us.
3. New TLDs will help porn typosquatters
Mei-lan Stark, an IP lawyer from Fox and the International Trademark Association, used the recent UDRP case over myfox2detroit.com as an example of abuse that could happen in new TLDs.
The domain directed visitors to a porn-laden link farm and was rightly deemed by WIPO to be confusingly similar to myfoxdetroit.com, the genuine Fox 2 Detroit site.
But, as Pritz pointed out later in the hearing, myfox2detroit.com is a .com domain. It’s not in a “new” TLD.
Fox, it transpires, has not registered the string “myfoxdetroit” in any other gTLD. Neither have the cybersquatters. It’s clearly not a brand that is, or needs to be, on Fox’s defensive registrations list.
That said, the “typo” myfoxdetroit.co, along with several other Fox .co domains, has been actually cybersquatted, so maybe Stark had a point.
4. Say Watt?
Rep. Mel Watt, the Subcommittee’s ranking member, couldn’t get a handle on why the pesky foreigners aren’t able to use their own non-Latin scripts in existing gTLDs.
I was beating my head against my desk during this exchange:

[After Stark finished explaining that she thinks IDN gTLDs are a good idea]
Watt: So, you think other languages. And that can’t be done in the .com, .net lingo as well?
Stark: Not today. Not the way the system is currently.
Watt: Yeah, well, not the way it’s done today, but what’s the difference? You all keep talking about innovation. Changing somebody’s name is not innovation. Allowing somebody to use a different name is not innovation. That’s not adding anything new to life that I can tell. Mr DelBianco, Mr Metalitz, help me here.
DelBianco: You’re right, just adding a new label to an existing page or content doesn’t really truly create innovation. However, 56% of the planet cannot even type in the domain name…
Watt [interrupting]: That’s not a function of whether you call something “Steve” or whether you call it “net” is it? You can put the Steve in front of the net, or you can put it dot-net, dot-Steve, dot-Watt, Steve, Steven…. you haven’t really created anything new have you?
DelBianco: You haven’t there, but 56% of our planet can’t use our alphabet when they read and write…
Watt [interrupting]: Tell me how this is going to make that better as opposed to what we have right now.
DelBianco: For the first time an Arabic user could type an entire email address in all Arabic, or a web site address in all Arabic.
Watt [interrupting]: Why can’t the current system evolve to do that without new gTLDs?

To Watt’s credit, he did put the witnesses on the spot by asking if any of them were opposed to new gTLDs (none were), but by the time his five minutes were up he was in serious danger of looking like a stereotypically insular American politician.
5. New TLDs are like T-shirts (or something)
Almost everything the NetChoice Coalition’s Steve DelBianco said, whether you agree with his positions or not, was sensible.
But when he started producing props from under the table, including one of the bright yellow custom “TLD-shirts” that AusRegistry International has been printing at recent ICANN meetings, I was giggling too hard to follow his train of thought.
Apparently the new TLDs program is like a T-shirt printing machine because, well… a T-shirt printing machine is more complicated than a label maker, which was the visual simile DelBianco used last time he appeared before the Subcommittee.
It was fun to see Congressmen treated like five-year-old kids for a minute. God knows some of them deserved it.
6. New TLDs will cost Fox $12 million
Stark stated that Fox has about 300 trademarks that it will need to enforce in new TLDs. Given ICANN has predicted 400 new TLDs, and estimating $100 per defensive registration, she “conservatively” estimated that Fox will have to pay $12 million to protects its marks in the first round.
Really?
The same ICANN study that estimated 400 applications being filed in the first round also estimated that as many as 200 of them are likely to be “.brand” TLDs in which Fox will not qualify to register.
A substantial proportion of applications are also likely to have a “community” designation and a restricted registrant policy that, in many cases, will also exclude Fox.
Does Fox really also need to register 300 brands in every city TLD or linguistic TLD that will be approved? Does Fox News broadcast in Riga? Does it have a Basque language TV station?
Not even World Trademark Review was convinced.
7. China is going to take over the internets
The Subcommittee spent far too much time talking around this meme before deciding that China is a sovereign nation that can do pretty much whatever it wants within its own borders and that there’s nothing much a House committee can do about it.
8. Literally everything that came out of Rep. Issa’s mouth
Former car alarm entrepreneur Darrell Issa talked confidently, as if he was the guy on the committee with the geek credentials, but pretty much everything he said was witless, impenetrable waffle.
He started with the premise that it costs a “fraction of a fraction of a fraction of a fraction of a penny” to route traffic to an IPv6 address (why this is relevant, he didn’t say), then asked:

Why, when I go to Go Daddy, do I have to pay between $10 and $10,000 for a name and not from a tenth of a cent to 10 cents for a name?
…
Why in the world are there so many reserved [ie, registered] names? If I want a good name from Go Daddy… the good names, that I might want, have been already pre-grabbed and marketed in an upward way, higher. Why is it that they’re not driven down? Real competition would imply that those names are driven down to a penny for a user and prohibited from being camped on in order to resell.

Issa is a Republican, so I was quite surprised to hear him apparently advocate against the free market and the rule of supply and demand in this way, and with such a poor grasp of the economics.
Issa’s premise that it costs an imperceptible fraction of a cent to resolve a domain may be true, but only if you’re talking about a single resolution. VeriSign alone handles 57 billion such queries every day.
It adds up. And that’s just resolution, ignoring all the costs carried by the registries and registrars, such as payment processing, security, marketing, Whois (and, in the case of Issa’s domains, Whois privacy and accuracy enforcement), paying staff, rent, facilities, hardware, bandwidth…
Pritz told Issa as much, but he didn’t seem interested in the answer. He instead turned to CADNA’s Josh Bourne, to ask a meandering question that, after listening to it several times, I still don’t understand.
9. Rod Beckstrom gets paid millions
Rep. Maxine Waters was very concerned that ICANN CEO Rod Beckstrom has a salary of over $2 million, “guaranteed”.
She flashed up a copy of what I believe was probably Mike Berkens’ The Domains article about ICANN salaries, from early 2010, but she clearly hadn’t read beyond the headline.
Beckstrom’s salary is $750,000 per annum. He can (and does) get a bonus if he hits his undisclosed performance targets, but it still adds up to less than $1 million a year and pales in comparison to what he’s probably going to earn when he leaves ICANN.
As Berkens accurately reported, Beckstrom has a three-year contract, so he gets a minimum of $2.2 million in total over the period he’s employed as ICANN’s CEO.
People can (and do, continually) question whether he’s earning his money, particularly when he does things like not turning up to Congressional hearings, but his salary is not set at anywhere near the level the Subcommitee heard.
10. This is so important we need more hearings (btw, sorry I’m late)
Several Congressmen called for further hearings on new gTLDs. They’re shocked, shocked, that ICANN is considering doing such a thing.
Some of those calling for further scrutiny weren’t even in the room for much of the hearing, yet saw fit to decree that the subject was so important that they needed more time to investigate.
Whether this turns out to be just more political theater remains to be seen.

ICANN brings “loser pays” to domain disputes

ICANN has significantly strengthened brand-owner protections in new top-level domains by proposing, amongst other things, a new “loser pays” model for some cybersquatting disputes.
The Uniform Rapid Suspension process, which is designed to give trademark owners a quick, cheap way to take down obvious examples of cybersquatting, may now occasionally carry a response fee.
According to ICANN’s newly revised Applicant Guidebook, which was published early this morning:

A limited “loser pays” model has been adopted for the URS. Complaints listing twenty-six (26) or more disputed domain names will be subject to an Response Fee which will be refundable to the prevailing party. Under no circumstances shall the Response Fee exceed the fee charged to the Complainant.

In other words, if a somebody registers more than 25 domains that appear to infringe upon the trademarks of a single company, they will have to pay a few hundred dollars, refundable, if they want to defend their case. Judging from UDRP history, this will likely apply to very few people.
The number 25 comes from the May 2009 report of ICANN’s Implementation Recommendation Team, which devised many of the new gTLD program’s rights protection mechanisms.
This change is one of several made in the new Guidebook, addressing concerns raised by the Governmental Advisory Committee, which had consulted closely with the IP lobby.
The GAC didn’t get everything it wanted, however. It had asked for repeat cybersquatters to lose their right to respond under the URS, but ICANN declined, citing the need for due process.
But the Guidebook does now also require new TLD registry operators to offer two types of rights protection mechanism during their launch phase, as the GAC had requested.
Whereas earlier drafts mandated either a Trademark Claims service or a Sunrise period, now registries will have no choice: they have to offer both at a minimum.
The Trademark Claims services notifies registrants if they try to register a domain name that matches a trademark registered in a central Trademark Clearinghouse.
The registrant will have to certify that they’re not infringing any rights before they get the domain. If they do register it, the affected trademark holder will receive a notification that the domain has been registered and can choose to take action such as filing a URS claim.
The idea behind the service is to deter cybersquatters, possibly reducing brand owners’ costs from having to defensively register their names in all new TLDs.
The Sunrise period, which is now also mandatory, is not entirely dissimilar to the sunrise periods we’ve come to expect from new TLD launches over recent years.
The new Guidebook states that the Trademark Claims service must be offered for at least 60 days after a new TLD enters general availability and the Sunrise must be at least 30 days before.
The fact that both services are now mandatory has helped ICANN address the thorny question of what should constitute a valid trademark.
Earlier drafts of the Guidebook required trademarks to have been subject to “substantive review” – a check by a national authority that the trademark is for real and in use.
The worry was that speculators could game the system by picking up large numbers of trademarks in countries that give them away like candy. It’s happened before.
But the review requirement was criticized by the GAC and others as it excluded trademarks in much of the world outside of the US.
In response to these criticisms, ICANN has removed the reference to substantive review. Instead, the yet-to-be-decided manager of the Trademark Clearinghouse will be given the task of validating that each trademark submitted is legit.
Companies need only submit a declaration and a single piece of evidence of use in order to get into the Clearinghouse, thus enabling them to partake of the Sunrise.
No such validation will be required in order to participate in the Trademark Claims service, though brand owners will need to be listed in the Clearinghouse for both mechanisms.
Evidence of use will also be needed to file URS complaints, but that can be done separately at the time of filing, with no need for a Clearinghouse registration.
ICANN chairman Peter Dengate Thrush, himself an IP lawyer, once stated, possibly in jest, that no matter what you do, you can be certain that IP lawyers will demand more protections.
Whether the rights protections mechanisms included in the Guidebook are now sufficient to calm trademark interests’ nerves remains to be seen.

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.

Surprise! More new TLDs delay likely

The launch of ICANN’s new top-level domain program looks set to encounter more delays, after international governments said they needed more time for consultation and debate.
Three days of talks between the ICANN board of directors and its Governmental Advisory Committee, which concluded yesterday, resolved many of the GAC’s concerns with new TLDs, but not enough.
Obtaining final closure of these outstanding issues during the San Francisco meeting, March 17, now seems quite unlikely, especially if the GAC gets its way.
The meeting started on an optimistic tone on Monday, degenerated into stalemate on Tuesday, and ran over into an unscheduled third day yesterday, by which point the frustration was audible.
Prior to the meeting, the GAC had provided a “scorecard” that covered 12 areas of new TLD policy where it was still unhappy with ICANN’s positions.
ICANN, in return, had provided matching summary documents that outlined the GAC advice and summarized ICANN’s current thinking on each of the issues.
It became apparent over the first two days of the meeting that the ICANN board was willing to compromise on a number of matters, but that the GAC was unable to do the same, due to its need to consult with ministers and unnamed “advisers”.
One side often seemed to have done more homework than the other, particularly on the issue of trademark protection, where the GAC entered the room as a proxy for the trademark lobby, but without the granular background knowledge needed to answer ICANN’s questions.
Talks disintegrated on Tuesday afternoon, when it became clear that GAC members could not proceed before further consultations with their respective capitals, and that ICANN could not fully address their concerns without further clarifications.
Both sides of the aisle retreated into private discussions for the rest of the day, with the ICANN board later emerging with a list of areas it was prepared to accept GAC advice.
These positions had been more fully fleshed out when the meeting reconvened yesterday morning, but hopes of resolving the discussions by San Francisco appeared to be dashed by the GAC.
The ICANN board decided in January that March 17 will host a so-called “bylaws consultation”, during which ICANN tells the GAC where it has decided to disagree and overrule its advice.
But the GAC unexpectedly revealed yesterday that it does not want the March 17 meeting to have that “bylaws” designation.
A clearly frustrated Peter Dengate Thrush, ICANN’s chairman, asked repeatedly why, in light of the substantial strides forward in Brussels, the GAC had suddenly decided it needed more time:

what we’ve done is clarify and limit the work, so the work we now need to do in San Francisco is reduced and comes in with greater clarity. I don’t understand how more work and more clarity leads to the conclusion that you come to. So you have to help me with this.

The US representative, Suzanne Sene, said the GAC was “surprised” by the bylaws designation.

Actually, if we can go back to the January resolution, a sort of reaction we had at that time was some slight surprise actually that without having seen the GAC scorecard, you were already forecasting that you anticipated not being able to accept the advice contained in the scorecard.

Despite the generally civil tone of the talks, and Dengate Thrush’s opening and closing remarks – in which he said that the meeting was neither “adversarial” nor a “power struggle” – this part of the discussion came across more than most like a pissing contest.
ICANN officially rejecting GAC advice through a bylaws consultation would be unprecedented, and I get the distinct impression that it is something the GAC does not want to happen.
If you’re a government, being overruled by a bunch of DNS policy wonks in California is bad PR.
But if a mutually acceptable compromise is to be made without any advice being rejected, GAC reps need time to take ICANN’s concessions back to their superiors for input, and then to form their own consensus views. Thence the delay arises.
At the end of the meeting, it appeared that talks will be continuing in private in the run-up to the San Francisco meeting, which starts March 13. It also appears that the board and GAC will hold not one but two days of talks during the meeting.
What’s less clear to me is whether ICANN has already agreed that the “bylaws” designation will be removed from the March 17 meeting.
If it does, we’re looking at a few weeks more delays post-SF, while the GAC and board resolve their remaining differences, which could easily impact the planned April 14 publication of the next version of the Applicant Guidebook.

Winners and losers in the next Applicant Guidebook

Who’s going to be happy, and who won’t be, after ICANN publishes the next version of its Applicant Guidebook for new top-level domains in April?
We now have a rough idea of the answers to those questions, following the publication this week of ICANN’s analysis of comments received between November and January.
The 163-page document (pdf) outlines where ICANN is still open to changing its rules for applying for a TLD, and where it believes the book is firmly shut.
As you might expect, at this late stage in the game, most of the analysis is essentially “thanks, but no thanks”, reiterating the reasons why the Guidebook currently says what it says.
But there are strong indications of which changes will be made to the “next” version of the Guidebook, which is currently expected to hit the ICANN web site April 14.
Here’s a high-level analysis of the winners and losers.
Impatient Applicants
Companies and entrepreneurs that have been tapping their feet for the last couple of years, hit by delay after delay, can probably take comfort from the fact that ICANN is still making encouraging noises about its commitment to the new TLDs program.
Noting that some issues are still in need of further work, ICANN staff writes:

it is ICANN’s intention to reach resolution on these issues. It would be irresponsible to use community resources to run a process without the intention to see it through to conclusion.
…
ICANN continues to approach the implementation of the program with due diligence and plans to conduct a launch as soon as practicable along with the resolution of these issues

Beyond what I noted in a post earlier this afternoon, there are no clues about the timetable for actually launching the program, however.
Trademark Holders
It’s a mixed bag for the intellectual property lobby, but on balance, given the length of its wish-list, I expect the trademark crowd will be more disappointed than not.
In general, ICANN is firm that the rights protection mechanisms (RPMs) in the Guidebook are the result of community compromise, and not for changing.
This is sometimes the case even when it comes to issues ICANN plans to discuss with its Governmental Advisory Committee next week.
One of these is the Trademark Clearinghouse, the database of trademark rights to be used to reduce cybersquatting, of which ICANN says:

subject to further refinement through the GAC consultation and other comments received to date, the positions in the Clearinghouse proposals will be finalized substantially similar to as it was in the Proposed Final Applicant Guidebook.

On the Globally Protected Marks List, a mechanism trademark holders want included in the Guidebook, ICANN is suitably mysterious:

It is clear that the trademark interests have continued to raise the GPML as possible RPM. While this discussion may continue, no further progress or decisions have been made.

The most substantial concession ICANN appears ready to make to trademark holders concerns the Uniform Rapid Suspension mechanism, a cousin of the UDRP that will be used to address clear-cut cases of cybersquatting in new TLDs.
A major concern from the IP lobby has been that the URS is too slow and complex to meet its original goals. ICANN disagrees that it does not do the job, but plans to streamline it anyway:

Discussions are continuing and some additional implementation detail revisions will likely be made, for example, creating a form complaint that reduces the 5000-word limit to 500 words. The 500-word limit might not, however, be placed on the respondent, as the respondent will be required to describe the legitimate basis upon with the domain name is registered. The respondents word limit be decreased from 5,000 to something less, possibly 2,500 words, in order to decrease the examinations panel‘s time requirements and thereby enhance circumstances for a relatively loss cost process. (Remember that in the vast majority of cases, it is expected that the respondents will not answer.)

This will certainly be a topic of discussion at the ICANN-GAC meeting in Brussels on Monday, so I expect IP attorneys are even now briefing their governments on how these proposed changes won’t go far enough for whatever reason.
Domainers
There’s bad news if you’re a high-rolling domain investor, looking at bagging a new TLD or three, and you also have a few UDRP losses against your name.
The background check ICANN will carry out on applicants for their history of cybersquatting stays, and it will still use the three-losses-as-UDRP-respondent benchmark.
However, ICANN has recognized that UDRP decisions are not always final. If you lost a UDRP but subsequently won in court, that decision won’t count against you.
In addition, reverse domain name hijacking findings will now also count against applicants to the same degree as UDRP losses.
I believe both of those concessions capture so few entities as to be more or less irrelevant for most potential applicants.
“.brand” Applicants
ICANN is in favor of companies applying to run “innovative” TLDs, such as “.brands”, but it is reluctant to carve out exceptions to the rules for these applicants.
The organization does not plan to give .brands a pass when it comes to protecting geographic names, nor when it comes to the requirement to register domains through an accredited registrar.
This seems to mean, for example, that if Microsoft successfully obtains .microsoft and wants to register usa.microsoft to itself, it will have to ask the US government for permission.
It also means .brands will still have to seek ICANN accreditation, or work with an existing registrar, in order to sell domains to themselves. It’s an added cost, but not an unworkable one.
Would-be .brand applicants did, however, win one huge concession: If they decide to turn off their TLD, it will not be redelegated to a third-party. ICANN wrote, with my emphasis:

In the limited case of .brand and other TLDs that operate as single-registrant/single-user TLDs it would probably make sense to not force an outgoing operator to transition second-level registration data (since presumably the operator could just delete all the names as the registrant anyway and then there would be nothing to transition), and therefore ICANN will put forward proposed language for community review and feedback that would provide for alternative transition arrangements for single-registrant/single-user gTLDs.

If .microsoft was unsuccessful and Microsoft decided to stop running it, Google would not be able to take over the ICANN registry contract, for example.
Poor People/Cheapskates
Some commenters wanted ICANN to reduce application fees in cases where the applicant is from a poorer nation, a non-governmental organization, or when they intend to apply for multiple versions of the same TLD.
They’re all out of luck.
The $185,000 baseline application fee is to stay, at least for the first round. ICANN thinks it could be reduced in future rounds, once more uncertainty has been removed from the process.
Currently, $60,000 of each fee is set aside for a “risk” (read: litigation) war-chest, which will be presumably less of an issue after the first round is completed.
Special Interests
The International Olympic Committee and the Red Cross, as well as financial services organizations, may receive the special concessions they asked for in the next Guidebook.
The IOC and Red Cross may be given the same protections as afforded to ICANN, regional internet registries, and generic terms such as “example” and “test”.

ICANN is considering the nature of these protections, and if appropriate, might augment the reserved names lists in special cases such as requested by the International Olympic Committee (IOC) and the International Red Cross, both of which are globally invested in representing the public interest.

It also emerged that ICANN is working with the financial services industry to clarify some of the security-related language in the Guidebook.
Community Applicants
Sorry guys, ICANN intends to keep the threshold score for the Community Priority Evaluation at 14 out of 16. Nor will you get a bonus point for already showing your cards by starting community outreach two years ago. Winning a CPE is going to be as tough as ever.
*
This is just a brief, non-exhaustive overview of the changes that are likely to come in the next Applicant Guidebook, setting the stage for the GAC talks next week and the San Francisco ICANN meeting next month.
One thing seems pretty clear though: this is end-game talk.

ICANN prepares for trademark fight with GAC

ICANN thinks the benefits of new top-level domains will outweigh the costs, and it preparing for a scrap when it meets its Governmental Advisory Committee in Brussels next week.
In a number of briefing documents published yesterday, ICANN makes it clear that it does not think the new TLD program will create a huge economic burden on trademark holders.
Brussels is possibly the final major hoop ICANN has to jump through before its board of directors will be able to sign off the Applicant Guidebook and start accepting new TLD applications.
There are a number of areas where the GAC and ICANN disagree. Next week’s meeting is intended to identify those differences, and to try to find ways to resolve them.
The GAC’s biggest problem with the new TLD program, as its members made clear in Cartagena and subsequently, is that it’s not convinced new TLDs won’t cost brand holders a bundle.
What will be the damage caused by cybersquatting? How much money will big business be forced to spend on defensive registrations?
Nobody knows for sure, and none of the independent third-party economic reports commissioned by ICANN ventures anywhere near a comprehensive empirical study.
So the GAC wants another economic study done, to quantify the costs and benefits of new TLDs, and to figure out how voluminous defensive registrations is likely to be.
ICANN disagrees, saying essentially that more studies are pointless, and that demand for defensive registrations in new TLDs are likely to be low.

The Board position is that defensive registrations will increase but not in numbers projected by some trademark holders

Estimates from the Coalition Against Domain Name Abuse, CADNA, last year put the cost to brands of the new TLD program at $746 million. But ICANN isn’t buying that:

The Board also believes that economic studies do not provide evidence that new TLDs will result in demand for defensive registrations. Existing independent studies, that the Board is seeking to validate, indicate that defensive registrations occur only in the very largest, well-established registries only.
…
the Board is seeking (and will publish) independent corroboration that:
• trademark holders generally do not register their trademarks in all the current generic TLDs.
• Therefore, it is not expected that trademark owners, in general, register their trademarks in new gTLDs, and
• due to the expected costs to run a registry and the expected low number of defensive domain name registrations, there is no economic incentive for an applicant to obtain a TLD for the sole purpose of making money from defensive trademark registrations.

ICANN does not identify these “independent studies”, but the data points cited in the document (pdf) point to a February 2009 article published on CircleID by Paul Stahura, and a comment made on that article by Richard Tindal that cites third-party data.
The Stahura report is arguably the most comprehensive carried out on defensive registrations in existing open gTLDs, concluding that the current cost to trademark holders is very low indeed, and that the bulk of typosquatting and trademark enforcement goes on in .com.
The research suggested that each new TLD would create costs in the tens of thousands of dollars per year, across the whole universe of trademark interests. It used baseline registrar fees in its calculations, unlike the CADNA report, which used sunrise fees about a hundred times greater.
But the Stahura study is “independent” only in the respect that it was not commissioned by ICANN or carried out with its blessing or participation.
At the time it was published, Stahura was president of eNom owner Demand Media, which is expected to be a new TLD applicant. Tindal, apparently also cited in ICANN’s latest report, was senior vice president, registry, for Demand Media.
Independently validating the report’s conclusions will be important, if only to avoid accusations that ICANN is making its decisions based on the views of those who would benefit from new TLDs.
Another of ICANN’s newly published briefing documents (pdf) also address the specific trademark protection mechanisms called for in the Applicant Guidebook.
The GAC has not yet published, or provided ICANN with, its specific recommendations relating to these mechanisms (I understand that will come in the next day or two) but they are expected to call for a tightening of the rules governing the Trademark Clearinghouse and Uniform Rapid Suspension policy.
Unlike several parts of yesterday’s briefing papers, ICANN’s language when discussing these two mechanisms does not suggest to me that it is preparing to substantially compromise.
With trademarks just one of many issues under discussion, Brussels is shaping up to becoming very interesting indeed.

UDRP reform effort begins

ICANN has kicked off a review of its Uniform Dispute Resolution Policy, the occasionally controversial process used to adjudicate cybersquatting complaints.
The GNSO Council on Thursday voted to ask ICANN staff for a so-called “Issues Report” on UDRP, indicating that reform of the process is likely.
This is the relevant portion of the resolution, passed unanimously:

RESOLVED #2, the GNSO Council requests an Issues Report on the current state of the UDRP. This effort should consider:
* How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process.
* Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated. The Issue Report should include suggestions for how a possible PDP on this issue might be managed.

Issues Reports commissioned by the Council are expected within 15 days, and 15 days after that the Council is expected to vote on whether to kick off a Policy Development Process.
A PDP could lead to changes to the UDRP that would be binding on all ICANN-accredited registrars and their customers.
While the UDRP has proven very effective at dealing with clear-cut cases of cybersquatting over the last 12 years, critics claim that it is often interpreted too broadly in favor of trademark interests.
If you read this blog regularly, you’ll know I frequently report on unfathomable UDRP decisions, but these are generally the exception rather than the rule.
Unrelated to UDRP, the GNSO Council has also voted against asking ICANN for an Issues Report on registry/registrar best practices for mitigating domain abuse.
Business interests wanted registrars to take more measures (voluntarily) to curb activities such as phishing, but registrars think this kind of rule-making is beyond the scope of the GNSO.
After a lot of heated debate and arcane procedural wrangling, the Council decided instead to ask for a “discussion paper”, a term that has no meaning under ICANN’s rules, meaning a PDP is less likely.

Noel Gallagher buys domain name with gig tickets

Former Oasis lead guitarist Noel Gallagher reportedly bought the domain name noelgallagher.com from a squatter in exchange for band memorabilia and free gig tickets.
According to British tabloid The Sun:

The former OASIS star found out recently that a cunning punter in Barcelona had snapped up the domain name noelgallagher.com ten years ago.
And The Chief’s plans to get things in order for his solo career were being held up by the Barca Bandit – because he was demanding a small fortune to hand it back.
Noel took matters into his own hands last week. He paid for the Spaniard to fly to London, put him up in a plush hotel and met him in person to thunder out a deal.
And after some serious haggling, and a few Oasis anecdotes, the chancer changed his demands from tens of thousands of pounds – to some signed memorabilia and guest list action at Noel’s next solo gigs.

I’m not sure how much success Oasis ever had outside of the UK. If you’ve never heard of them: briefly here in the 1990s they were regarded by some (mainly themselves) as the second coming of The Beatles.
I’ve never before seen a domain name story reported in The Sun, a notoriously unreliable but hugely popular Murdoch-owned daily rag, so I did a bit of fact-checking.
Whois history shows that the original registrant was from Madrid, not Barcelona, and that the domain was initially registered in 2002.
While the report claims Gallagher flew the squattter to London to negotiate the deal “last week”, the domain actually seems to have been owned by someone at Oasis’s record label since March 2010.
So either the cybersquatter got a free city break, or The Sun is — shockingly — reporting unreliable celebrity news.
The domain name does not currently resolve.

The Top Ten Hottest Posts of 2010

Tumbleweeds are blowing through the domain name industry this week, which makes it an excellent time to take a look back at 2010, in the form of a list of this blog’s most widely read posts.
In descending order, here are the top ten DomainIncite stories of 2010:
ICANN had no role in seizing torrent domains
When ICANN stood accused by the blogosphere of helping the US government shut down dozens of .com domains in November, it took the organization a full week to officially deny it. In the meantime, it kicked off a Twitter campaign encouraging people to visit this post, making it the year’s most-read by some margin.
dotFree’s “free” domain names explained
Everyone wants something for nothing, so when I provided the first interview with the chief executive of the recently launched dotFree Group in August, it gathered a lot of attention. It turned out .free domains may not be as “free” as some had hoped.
WordPress.com becomes a domain name registrar
When I spotted that WordPress.com owner Automattic had received an ICANN registrar accreditation, company CEO Matt Mullenweg was good enough to link back to this post when he subsequently announced the move to his readers in October.
First reactions to ICANN’s VI bombshell
It was the biggest shake-up in the domain name industry in a decade – ICANN announced in November that it would start letting registrars and registries own each other. The full repercussions have yet to be felt, but this post summarized some of the early reactions.

ICANN will not attend White House drugs meeting
When and how governments and law enforcement should be able to block domain names is an ongoing hot topic for the industry. This September post broke the news that ICANN would not participate in US talks about blocking “fake pharmaceuticals” web sites.
Porn group starts anti-XXX campaign
The ongoing .xxx drama continues to be one of the key domain name industry stories that plays just as well with a mainstream readership. In addition, including the keywords “xxx”, “group” and “porn” in the same headline has proven disturbingly useful for acquiring search engine traffic.
Gaming scandal hits Russian domain launch
Internationalized domain names finally arrived on the internet in 2010, and the launch of Russia’s .РФ (.rf) IDN ccTLD was easily the biggest success story. It has racked up almost 700,000 registrations in the last two months, but was hit by allegations of registrar gaming, which I reported on here.
ICANN told to ban .bank or get sued
The road to the approval of ICANN’s new gTLD program was widely anticipated to have wrapped up by the end of the year. It didn’t, but that didn’t stop some eleventh-hour special pleading by organizations such as the Financial Services Roundtable.
Whistleblower alleged shenanigans at DirectNIC
DirectNIC has had its fair share of legal troubles in 2010. First it was sued for cybersquatting by Verizon (which it denied) and then, as I reported in this December post, a former employee alleged a complex scheme to make money through fraudulent domain arbitrage (which it denied, then settled).
Survey reveals demand for .brand TLDs
A World Trademark Review survey revealed mixed reactions from trademark lawyers and corporate marketing departments to new TLDs, but it did reveal that most companies would use their “.brand” TLD, if they had one, as their primary online address.
Let’s hope 2011 brings such a diverse range of interesting topics to write about. I’m certain it will.