Wine gTLDs get a pass as GAC fails to agree

Applicants for wine-related gTLDs will no longer be opposed by the Governmental Advisory Committee, it has emerged.
Writing to ICANN chair Steve Crocker this week, GAC chair Heather Dryden said that the GAC had failed to reach an agreement on whether to issue formal Advice against the applications.
Three .wine applicants and one .vin applicant are affected.
Some governments are concerned about strings at the second level because quite often a word many people associate primarily with a type of wine is also the protected name of the wine-producing region.
Champagne is probably the best-known example of this.
Nevertheless, the GAC couldn’t reach agreement on whether to provide formal advice to ICANN on this topic, so the applications will be free to proceed along the new gTLD program’s track.

In the wake of .amazon, IP interests turn on the GAC

Intellectual property interests got a wake-up call at ICANN 47 in Durban this week, when it became clear that they can no longer rely upon the Governmental Advisory Committee as a natural ally.
The GAC’s decision to file a formal consensus objection against Amazon’s application for the .amazon gTLD prompted a line of IP lawyers to queue up at the Public Forum mic to rage against the GAC machine.
As we reported earlier in the week, the GAC found consensus to its objection to .amazon after the sole hold-out government, the United States, decided to keep quiet and allow other governments to agree.
This means that the ICANN board of directors will now be presented with a “strong presumption” that .amazon should be rejected.
With both previous consensus objections, against .africa and .gcc, the board has rejected the applications.
The objection was pushed for mainly by Brazil, with strong support from Peru, Venezuela and other Latin American countries that share the Amazon region, known locally as Amazonas.
During a GAC meeting on Tuesday, statements of support were also made by countries as diverse as Russia, Uganda and Trinidad and Tobago.
Brazil said Amazon is a “very important cultural, traditional, regional and geographical name”. Over 50 million Brazilians live in the region, he said.
The Brazilian Congress discussed the issue at length, he said.
The Brazilian Internet Steering Committee was also strongly against .amazon, he said, and there was a “huge reaction from civil society” including a petition signed by “thousands of people”.
All the countries in the region also signed the Montevideo Declaration (pdf), which resolves to oppose any attempts to register .amazon and .patagonia in any language, in April.
It doesn’t appear to be an arbitrary decision by one government, in other words. People were consulted.
The objection did not receive a GAC consensus three months ago in Beijing only because the US refused to agree, arguing that governments do not have sovereign rights over geographic names.
But prior to Durban, without changing its opinion, the US said that it would not stand in the way of consensus.
It seems that there may have been bigger-picture political concerns at play. The NTIA, which represents the US on the GAC, is said to have had its hands tied by its superiors in Washington DC.
Did the GAC move the goal posts?
With the decision to object to .amazon already on the public record before the GAC’s Durban communique was formally issued yesterday, Intellectual Property Constituency interests had plenty of time to get mad.
At the Public Forum yesterday, several took to the open mic to slam the GAC’s decision.
Common themes emerged, one of which was the claim that the GAC is retroactively changing the rules about what is and is not a “geographic” string for the purposes of the Applicant Guidebook.
Stacey King, senior corporate counsel with Amazon, said:

Prior to filing our applications Amazon carefully reviewed the Applicant Guidebook; we followed the rules. You are now being asked to significantly and retroactively modify these rules. That would undermine the hard-won international consensus to the detriment to all stakeholders. I repeat, we followed these rules.

It’s true that the string “amazon” is not on any of the International Standards Organization lists that ICANN’s Geographic Names Panel used to determine what’s “geographic”.
The local-language string “Amazonas” appears four times, representing a Brazilian state, a Colombian department, a Peruvian region and a Venezuelan state; Amazon isn’t there.
But Amazon is wrong about one thing.
By filing its objection, the GAC is not changing the rules about geographic names, it’s exercising its entirely separate but equally Guidebook-codified right to object to any application for any reason.
That’s part of the Applicant Guidebook too, and it’s a part that the IPC has never previously objected to.
Amazon was not alone making its claim about retroactive changes. IPC president Kristina Rosette, wearing her hat as counsel for former .patagonia applicant Patagonia Inc, said:

Patagonia is deeply disappointed by and concerned about the breakdown of the new gTLD process. Consistent with the recommendations and principles established in connection with that process, Patagonia fully expected its .patagonia application to be evaluated against transparent and predictable criteria, fully available to applicants prior to the initiation of the process.
Yet, its experience demonstrates the ease with which one stakeholder can jettison rules previously agreed upon after an extensive and thorough consultation.

That’s not consistent with the IPC’s position.
The IPC just last month warmly welcomed (pdf) the GAC’s Beijing advice, stating that the after-the-fact “safeguards” it demanded for all new gTLDs should be accepted.
Apparently, it’s okay for the GAC to move the goal posts for gTLD applicants when its advice is about Whois accuracy, but when it files an objection — perfectly compliant with the GAC Advice section of the Guidebook — that interferes with the business objectives of a big trademark owner, that’s suddenly not cool.
The IPC also did not challenge the GAC Advice process when it was first added to the Applicant Guidebook in the April 2011 draft.
At that time, the GAC had responded to intense lobbying by IP interests and was fighting their corner with the ICANN board, demanding stronger trademark protections in the new gTLD program.
If the IPC now finds itself arguing against the application of the GAC Advice rule, perhaps it should consider whether speaking up earlier might have been a good idea.
Rosette tried to substantiate her remarks by referring back to previous GAC advice, specifically a May 26, 2011 letter in which she said the GAC “formally accepted” the Guidebook’s definition of geographic strings.
However, that letter (pdf) has a massive caveat. It says:

Given ICANN’s clarifications on “Early Warning” and “GAC Advice” that allow the GAC to require governmental support/non-objection for strings it considers to be geographical names, the GAC accepts ICANN’s interpretation with regard to the definition of geographic names.

In other words, “The GAC is happy with your list, as long as we can add our own strings to it at will later”.
Rosette’s argument that the GAC has changed its mind, in other words, does not hold.
It wasn’t just IP interests that stood up against the .amazon decision, however. The IPC found an unlikely ally in the Registries Stakeholder Group, represented at the Public Forum by Verisign’s Keith Drazek.
Drazek sought to link the “retroactive changes” on geographic strings to the “retroactive changes” the GAC has proposed in relation to the so-called Category 1 strings — which would have the effect of demanding that hundreds of regular gTLD bids convert into de facto “Community” applications. He said:

While different stakeholders have different views about particular aspects of the GAC advice, we have a shared concern about the portions of that advice that constitute retroactive changes to the Applicant Guidebook around the issues of sovereign rights, undefined and unexplained geographic sensitivities, sensitive industry strings, regulated strings, etc.

This appears to be one of those rare instances where the interests of registries and the interests of IP owners are aligned. The registries, however, have at least been consistent, complaining about the GAC Advice process as soon as it was published in April 2011.
There’s also a big difference between the substance of the advice that they’re currently complaining about: the objection against .amazon followed the Guidebook rules on GAC Advice almost to the letter, whereas the Category 1 advice came completely out of the left field, with no Guidebook basis to cling to.
The GAC in the case of .amazon followed the rules. The rules are stupid, but the time to complain about that was before paying your $185,000 to apply.
If anyone is trying to change the rules after the fact, it’s Amazon and its supporters.
Is the GAC breaking the law?
Another recurring theme throughout yesterday’s Public Forum commentary was the idea that international trademark law does not support the GAC’s right to object to .amazon.
I’m going to preface my editorializing here with the usual I Am Not A Lawyer disclaimer, but it seems to be a pretty thin argument.
Claudio DiGangi, secretary of the IPC and external relations manager at the International Trademark Association, was first to comment on the .amazon objection. He said:

INTA strongly supports the recent views expressed by the United States. In particular, that it does not view sovereignty as a valid basis for objecting to the use of terms, and we have concerns about the effect of such claims on the integrity of the process.

J Scott Evans, head of domains at Yahoo, who left the IPC for the Business Constituency recently (apparently after some kind of disagreement) was next. He said:

There is no international recognition of country names as protection and they cannot trump trademark rights. So giving countries a block on a name violates international law. So you can’t do it.

There were similar comments along the same lines.
Heather Forrest, a senior lecturer at an Australian university and former AusRegistry employee, said she had conducted a doctoral thesis (available at Amazon!) on the rights of governments over geographic names, with particular reference to the Applicant Guidebook.
She told the Public Forum:

My study was comprehensive. I looked at international trade law, unfair competition law, intellectual property law, geographic indications, sovereign rights and human rights. As the board approved the Applicant Guidebook, I completed my study and found that there is not support in international law for priority or exclusive right of states in geographic names and found that there is support in international law for the right of non-state others in geographic names.

Kiran Malancharuvil, whose job until recently was to lobby the GAC for special protections for her client, the International Olympic Committee, now works for MarkMonitor. Calling for the ICANN board to reject the GAC’s advice on .amazon, she said at the Public Forum:

To date, governments in Latin America including the Amazonas community countries have granted Amazon over 130 trademark registrations that have been in continuous use by Amazon since 1994 without challenge. Additionally, Amazon has used their brand within domain names including some registered by MarkMonitor and including registrations in Amazonas community ccTLDs without objection.
Amazonas community countries and all other nations who have signed the TRIPS agreement have obligated themselves to maintain and protect these trademark registrations. Despite these granted rights, members of the community signed the Montevideo declaration and resolved to reject Amazon and Patagonia in any language as well as any other top-level domains referring to them. This declaration appears inconsistent with national and international law.

Having read TRIPS — the World Trade Organization’s Trade Related Aspects of Intellectual Property Rights treaty — this morning, I’m still none the wiser how it relates to .amazon.
It’s a treaty that sought to create some uniformity in how trademarks and other types of intellectual property are handled globally, and domain names are not mentioned once.
As far as I can tell, nobody is asking Amazon to change its name and nobody’s trying to take away its trademarks. Nobody’s even trying to take away its domain names.
If the international law argument is simply that the GAC and/or ICANN cannot prevent a company with a trademark from getting its mark as a TLD, as Yahoo’s Evans suggested, it seems to me that quite a lot of the new gTLD program would have to be rewritten.
We’re already seeing Legal Rights Objections in which an applicant with a trademark is losing against an applicant without a trademark.
Is that illegal too? Was it illegal for ICANN to create an LRO process that has allowed Donuts (no trademark) to beat Express LLC (with trademark) in a fight over .express?
What about other protections in the Guidebook?
ICANN already bans two-character gTLDs, on the basis that they could interfere with future ccTLDs — protecting the geographic rights of countries that do not even exist — which disenfranchises companies with two-letter trademarks, such as BT and HP.
What about 888, the poker company, and 3, the mobile phone operator? They have trademarks. Should ICANN be forced to allow them to have numeric gTLDs, despite the obvious risks?
The Guidebook already bans country names outright, and says thousands of other geographic terms need government support or will be rejected. Is this all illegal?
If the argument is that trademarks trump all, ICANN may as well throw out half the Guidebook.
Now what?
Unlike .patagonia, which dropped out of the new gTLD program last week (we’ll soon discover whether that was wise), the objection to .amazon will now go to ICANN’s board of directors for consideration.
While the Guidebook calls for a “strong presumption” that the board will then reject the application, board member Chris Disspain said yesterday that outsiders should not assume that it will simply rubber-stamp the GAC’s advice.
In both previous cases, the outcome has been a rejection of the application, however, so it’s not looking great for Amazon.

GAC to kill off .amazon

The Governmental Advisory Committee has agreed to file a consensus objection against Amazon’s application for .amazon.
The decision, which came this morning during a GAC session at the ICANN meeting in Durban, also applies to the company’s applications for .amazon in non-Latin scripts.
The objection came at the behest of Brazil and other Latin American countries that claim rights to Amazon as a geographic term, and follows failed attempts by Amazon to reach agreement.
Brazil was able to achieve consensus in the GAC because the United States, which refused to agree to the objection three months ago in Beijing, had decided to keep mum this time around.
The objection will be forwarded to the ICANN board in the GAC’s Durban communique later in the week, after which the board will have a presumption that the .amazon application should be rejected.
The board could overrule the GAC, but it seems unlikely.
It’s the second big American brand to get the GAC kiss of death after Patagonia, which withdrew its application for .patagonia last week after the US revealed its hands-off approach for Durban.
Both Amazon and Patagonia slipped through the standard Geographic Names Panel check because they’re trans-national regions, whereas the panel used lists of administrative divisions to determine whether strings were geographic.
Amazon the company was named after the region or river in Latin America, which was in turn named after a culture of female warriors originating from, according to Herodotus, Ukraine.
It’s not known whether Ukraine had a position on the objection and Herodotus was unavailable for comment.

ICANN says Article 29 letter does not give EU registrars privacy opt-out

Registrars based in the European Union won’t immediately be able to opt out of “illegal” data retention provisions in the new 2013 Registrar Accreditation Agreement, according to ICANN.
ICANN VP Cyrus Namazi on Saturday told the Governmental Advisory Committee that a recent letter from the Article 29 Working Party, which comprises the data protection authorities of EU member states, is “not a legal authority”.
Article 29 told ICANN last month that the RAA’s provisions requiring registrars to hold registrant data for two years after the domain expires were “illegal”.
While the RAA allows registrars to opt out of clauses that would be illegal for them to comply with, they can only do so with the confirmation of an adequate legal opinion.
The Article 29 letter was designed to give EU registrars that legal opinion across the board.
But according to Namazi, the letter does not meet the test. In response to a question from the Netherlands, he told the GAC:

We accept it from being an authority, but it’s not a legal authority, is our interpretation of it. That it actually has not been adopted into legislation by the EU. When and if it becomes adopted then of course there are certain steps to ensure that our contracted parties are in line with — in compliance with it. But we look at them as an authority but not a legal authority at this stage.

It seems that when the privacy watchdogs of the entire European Union tell ICANN that it is in violation of EU privacy law, that’s not taken as an indication that it is in fact in violation of EU privacy law.
The European Commission representative on the GAC expressed concern about this development during Saturday’s session, which took place at ICANN 47 in Durban, South Africa.

Governments kill off Patagonia’s dot-brand bid

The clothing retailer Patagonia has withdrawn its application for .patagonia after it became clear that ICANN’s Governmental Advisory Committee was unlikely to allow it.
Controversial from the outset, Patagonia’s dot-brand came under fire from governments including Argentina and Chile because the company is named after a large region of Latin America.
The GAC couldn’t find a consensus for a full-on objection to the bid, however, because the US government refused to agree that governments should have rights over such geographic terms.
However the US said last week that it would stand neutral on .patagonia and other geographic-flavored applications at next week’s ICANN meeting in Durban, smoothing the path to GAC consensus.
A GAC consensus objection would have spelled certain death to the application.
Amazon’s .amazon application is in exactly the same position as .patagonia was. Unless the company can come to some kind of arrangement with Brazil and over governments it may suffer the same fate.

2013 RAA is illegal, says EU privacy watchdog

European privacy regulators have slammed the new 2013 Registrar Accreditation Agreement, saying it would be illegal for registrars based in the EU to comply with it.
The Article 29 Working Party, which comprises privacy regulators from the 27 European Union nations, had harsh words for the part of the contract that requires registrars to store data about registrants for two years after their domains expire.
In a letter (pdf) to ICANN last month, Article 29 states plainly that such provisions would be illegal in the EU:

The fact that these personal data can be useful for law enforcement does not legitimise the retention of these personal data after termination of the contract. Because there is no legal ground for the data processing, the proposed data retention requirement violates data protection law in Europe.

The 2013 RAA allows any registrar to opt out of the data retention provisions if it can prove that to comply would be illegal its own jurisdiction.
The Article 29 letter has been sent to act as blanket proof of this for all EU-based registrars, but it’s not yet clear if ICANN will treat it as such.
The letter goes on to sharply criticize ICANN for allowing itself to be used by governments (and big copyright interests) to circumvent their own legislative processes. It says:

The fact that these data may be useful for law enforcement (including copyright enforcement by private parties) does not equal a necessity to retain these data after termination of the contract.
…
the Working Party reiterates its strong objection to the introduction of data retention by means of a contract issued by a private corporation in order to facilitate (public) law enforcement.
If there is a pressing social need for specific collections of personal data to be available for law enforcement, and the proposed data retention is proportionate to the legitimate aim pursued, it is up to national governments to introduce legislation

So why is ICANN trying to get many of its registrars to break the law?
While it’s tempting to follow the Article 29 WP’s reasoning and blame law enforcement agencies and the Governmental Advisory Committee, which pushed for the new RAA to be created in the first place, the illegal data retention provisions appear to be entirely ICANN’s handiwork.
The original law enforcement demands (pdf) say registrars should “securely collect and store” data about registrants, but there’s no mention of the period for which it should be stored.
And while the GAC has expressly supported the LEA recommendations since 2010, it has always said that ICANN should comply with privacy laws in their implementation.
The GAC does not appear to have added any of its own recommendations relating to data retention.
ICANN can’t claim it was unaware that the new RAA might be illegal for some registrars either. The Article 29 WP told it so last September, causing ICANN to introduce the idea of exemptions.
However, the European Commission’s GAC representative then seemed to dismiss the WP’s concerns during ICANN’s public meeting in Toronto last October.
Perhaps ICANN was justifiably confused by these mixed messages.
According to Michele Neylon, chair of the Registrars Stakeholder Group, it has yet to respond to European registrars’ inquiries about the Article 29 letter, which was sent June 6.
“We hope that ICANN staff will take the letter into consideration, as it is clear that the data protection authorities do not want create extra work either for themselves or for registrars,” Neylon said.
“For European registrars, and non-European registrars with a customer base in the EU, we look forward to ICANN staff providing us with clarity on how we can deal with this matter and respect EU and national law,” he said.

Amazon’s dot-brand likely doomed as US withdraws geo objection

The US government is set to allow the Governmental Advisory Committee to kill off Amazon’s application for .amazon, along with eight other new gTLDs with geographic flavors.
In a position paper published last night, the National Telecommunications and Information Administration said:

the United States is willing in Durban to abstain and remain neutral on .shenzen (IDN in Chinese), .persiangulf, .guangzhou (IDN in Chinese), .amazon (and IDNs in Japanese and Chinese), .patagonia, .yun, and .thai, thereby allowing the GAC to present consensus objections on these strings to the Board, if no other government objects.

According to a GAC source, US protests were the “only reason” the GAC was unable to reach a consensus objection to these applications during the Beijing meeting three months ago.
Consensus would strengthen the objection, giving the ICANN board the presumption that the applications, some of which have already passed Initial Evaluation, should not be approved.
None of the nine applications in question met ICANN’s strict definition of a “geographic” string, but they nevertheless look geographic enough to raise concerns with GAC members.
Amazon’s application for .amazon raised the eyebrows of the Latin American countries that share the Amazonia region.
The company has been in talks with these GAC members since Beijing. If it wants to secure .amazon, it has a little over a week to address their concerns, if it wants to avoid an objection.
While the US is now promising to drop its objection to the GAC’s objection, it does not appear to have changed its position, claiming that governments have no rights to geographic strings. NTIA said:

The United States affirms our support for the free flow of information and freedom of expression and does not view sovereignty as a valid basis for objecting to the use of terms, and we have concerns about the effect of such claims on the integrity of the process.
…
the United States is not aware of an international consensus that recognizes inherent governmental rights in geographic terms.

It’s calling for a rethink of the process, during the mandatory review of the new gTLD program that ICANN must conduct before accepting a second round of applications.
Given that the GAC currently has the ability to object to any string for any reason, it’s difficult to see how a review could achieve the NTIA’s goal without reining in the GAC’s powers.

Today’s new gTLD updates: two withdrawals and two “Not Approved”

DotConnectAfrica and GCCIX WLL have become the first new gTLD applicants to have their applications — for .africa and .gcc respectively — officially flagged as “Not Approved” by ICANN.
Both were killed by Governmental Advisory Committee advice.
While GCC had passed its Initial Evaluation already, DCA’s IE results report (pdf), which were published last night, simply states: “Overall Initial Evaluation Summary: Incomplete”.
In both cases the decision to flunk the applications was taken a month ago by ICANN’s New gTLD Program Committee.
DCA filed a formal Reconsideration Request (pdf), challenging the decision in typically incomprehensible style, on June 19, threatening to take ICANN to an Independent Review Panel (ICANN’s very expensive court of appeals) if it does not overturn its decision.
Here’s a sample:

We have no intention of withdrawing our application against the backdrop that we rightly believe that the Board decision is injudicious, very wrong and injurious to our application and to our organizational aspirations. We are placing faith in the possibility that this particular communication will serve the purpose of causing the ICANN Board to have a rethink, and see the wisdom in allowing DCA Trust to continue to participate in the new gTLD Program without the necessity of going to an Independent Review Process (IRP) Panel to challenge the ICANN Board Decision which we presently disagree with in the most absolute terms.

The Board Governance Committee, which handles Reconsideration Requests, has a sturdy track record of denying them, so I think the chances of DCA’s being approved are roughly zero.
But if the company is nutty enough to try its hand at an IRP, which could quite easily set it back a few million dollars in legal fees, the story might not be over yet.
The GAC didn’t like DCA’s .africa bid because African governments back UniForum, DCA’s South Africa-based competitor for the string.
Had the application made it to Initial Evaluation — its processing number wasn’t up for a few weeks — it would have been flunked by the Geographic Names Panel due to its lack of support anyway.
GCC’s application for .gcc was also rejected by the GAC on geographic grounds. It stands for Gulf Cooperation Council, and the Persian/Arabian Gulf nations in question didn’t support the bid.
Also today, the American insurance company Allstate withdrew its applications for .carinsurance and .autoinsurance. Both were single-registrant “closed generics”, which ICANN has indicated might not be approved, also due to GAC advice.

New gTLD registry contract approved, but applicants left hanging by GAC advice

ICANN has approved the standard registry contract for new gTLD registries after many months of controversy.
But its New gTLD Program Committee has also decided to put hundreds more applications on hold, pending talks with the Governmental Advisory Committee about its recent objections.
The new Registry Agreement is the baseline contract for all new gTLD applicants. While some negotiation on detail is possible, ICANN expects most applicants to sign it as is.
Its approval by the NGPC yesterday — just a couple of days later than recently predicted by ICANN officials — means the first contracts with applicants could very well be signed this month.
The big changes include the mandatory “Public Interest Commitments” for abuse scanning and Whois verification that we reported on last month, and the freeze on closed generics.
But a preliminary reading of today’s document suggests that the other changes made since the previous version, published for comment by ICANN in April, are relatively minor.
There have been no big concessions to single-registrant gTLD applicants, such as dot-brands, and ICANN admitted that it may have to revise the RA in future depending on how those discussions pan out.
In its resolution, the NGPC said:

ICANN is currently considering alternative provisions for inclusion in the Registry Agreement for .brand and closed registries, and is working with members of the community to identify appropriate alternative provisions. Following this effort, alternative provisions may be included in the Registry Agreement.

But many companies that have already passed through Initial Evaluation now have little to worry about in their path to signing a contract with ICANN and proceeding to delegation.
“New gTLDs are now on the home stretch,” NGPC member Chris Disspain said in a press release “This new Registry Agreement means we’ve cleared one of the last hurdles for those gTLD applicants who are approved and eagerly nearing that point where their names will go online.”
Hundreds more, however, are still in limbo.
The NGPC also decided yesterday to put a hold on all “Category 1” applications singled out for advice in the Governmental Advisory Committee’s Beijing communique.
That’s a big list, comprising hundreds of applications that GAC members had concerns about.
The NGPC resolved: “the NGPC directs staff to defer moving forward with the contracting process for applicants who have applied for TLD strings listed in the GAC’s Category 1 Safeguard Advice, pending a dialogue with the GAC.”
That dialogue is expected to kick off in Durban a little over a week from now, so the affected applicants may not find themselves on hold for too long.
Negotiations, however, are likely to be tricky. As the NGPC’s resolution notes, most people believe the Beijing communique was “untimely, ill-conceived, overbroad, and too vague to implement”.
Or, as I put it, stupid.
By the GAC’s own admission, its list of strings is “non-exhaustive”, so if the delay turns out to have a meaningful impact on affected applicants, expect all hell to break loose.

Plural gTLDs not confusing, says ICANN (and two gotchas proving it wrong)

Dozens of new gTLD applicants will be breathing a sigh of relief this morning as ICANN said it will allow single and plural versions of the same gTLD to co-exist after all.
The decision, made Tuesday by ICANN’s New gTLD Program Committee, affects at least 98 applications. It said:

NGPC has determined that no changes are needed to the existing mechanisms in the Applicant Guidebook to address potential consumer confusion resulting from allowing singular and plural versions of the same string.

It was in response to the Governmental Advisory Committee, which had advised ICANN to “reconsider its decision to allow singular and plural versions of the same strings.”
Because of the wording of the advice, ICANN is able to disagree with the the GAC’s opinion that “singular and plural versions of the string as a TLD could lead to potential consumer confusion” without triggering its bylaws provision that forces it into time-consuming GAC negotiations.
By “reconsidering” plural/singular coexistence and not doing anything, it has stuck to the letter of the advice.
In its reconsideration it reconsiderated whether it should overturn the findings of its independent String Similarity Panel, which did not believe any plural/singular pairs were confusingly visually similar.
It also used the coexistence of second-level plural and singular domains, registered to different people, as evidence that users would not find similar coexistence at the top level confusing.
The decision has potentially far-reaching consequences on the new gTLD program.
First, it could mean that some plural/singular pairs will be allowed to exist while others will not.
There are a handful of formal String Confusion Objections filed by applicants for gTLDs that have singular or plural competitors in the current round.
These string pairs are not currently in contention sets, but if the objectors prevail only one of the strings will survive to delegation.
Other string pairs have no objections and will be allowed to coexist. This may be fair in a sense, but it’s not uniform nor predictable.
(One wonders if the String Confusion Objection arbitration panels will use ICANN’s ruling this week in their own decision-making process, which could open a can of worms.)
Second, I think the decision might encourage bad business practices by registries.
My beef with coexistence
I don’t think coexistence is a wholly terrible idea, but I do think it will have some negative effects, as I’ve expressed in the past.
First, I think it’s going to lead to millions of unnecessary defensive registrations.
And by “defensive” I’m not talking about companies protecting their trademarks. Whether you think they’re adequate or not, trademark owners already have protections in new gTLDs.
I’m talking about regular domain registrants, small businesses, entrepreneurs and so on. These people are going to find themselves buying two domains when they only need one.
Let’s say you’re Mad John’s Autos, and you’re registering madjohn.auto. You get to the checkout and Go Daddy offers you the matching .autos domain. Assuming similar pricing, you’d definitely register it, right?
You’ve always got to assume a certain subset of users will get confused and either wind up at a dead URL or a competitor’s site. It’s simpler just to defensively register both.
What if one was priced a little higher than the other? Maybe you’d still register it. How big would the price differential have to be before you decided not to buy the plural duplicate?
Buying two domains instead of one may not be a huge financial burden to individual registrants, but it’s going to lead to situations where gTLDs exist in symbiotic — or parasitic — pairs.
If you run the .auto registry, you may find that your plural competitor is spending so much on marketing .autos that you don’t need to lift a finger in order to sell millions of domain names.
Just make sure you’re partnered with the same registrars and bingo: you’re up-sell.
Attractive business plan, right? You may disagree, but when ICANN opens the floodgates for the second round of new gTLD applications in a couple years, we’ll find out for sure.
Two gotchas
Defenses of plural/singular gTLD coexistence often come from, unsurprisingly, the portfolio applicants that have applied for them and, presumably, may apply for them in future rounds.
“Singulars and plurals live together now on the [second-level domain] side,” Uniregistry said. “They create healthy competition and do not unduly confuse consumers to the point of annoyance.”
I wouldn’t disagree with that statement. Plural/singular coexistence may not confuse internet users to the point of danger or annoyance. But, I would argue, they do make people buy more domain names than they need to.
If you were buying autos.com today you’d definitely definitely buy auto.com as well and redirect it to autos.com. You’d be an idiot not too.
When I put this to Uniregistry execs privately several weeks ago, they disagreed with me. Nobody would bother with such duplicative/defensive domains, they said.
In response, I asked, cheekily: so why do you own uniregistries.com, redirecting it to uniregistry.com?
Another portfolio applicant, Donuts, also didn’t like the idea of plurals and singulars being mutually exclusive, according to this CircleID article. It doesn’t think they’re confusingly similar.
Yet a press release put out by the company last month accidentally said it planned to put its application for .apartment to auction.
The problem is that Donuts hasn’t applied for .apartment, it has applied for .apartments.
I feel rotten for highlighting a simple typo by a fellow media professional (I make enough of those) but isn’t that what we’re often talking about when discussing confusing similarity? Typos?
If the registry can get confused by its own applied-for strings, doesn’t that mean internet users will as well?
Oh, I’m a cybersquatter
Interestingly, ICANN’s belief that plurals are not confusing appears to be institutional.
At least, I discovered this morning that icanns.org, the plural of its primary domain, was available for registration.
So I bought it.
Let’s see how much traffic it gets.
If I get hit by a UDRP, that could be interesting too.