Back in evaluation! Tata dot-brand bid falls foul of Morocco

Tata Group, the Indian conglomerate, is to see its application for .tata head back into evaluation, after the Moroccan government denied it had given its approval for the bid.
ICANN told the company this week that .tata will have to be reviewed by the Geographic Names Panel for a third time.
Tata, as well as the name of the 150-year-old, $100 billion-a-year company, is also the name of a tiny Moroccan province (pop. 121,618) that is a protected geographic term under the new gTLD program’s rules.
Tata needed to get a letter of endorsement or non-objection from the relevant Moroccan authorities in order to pass the Geographic Names Panel review.
The company apparently had secured such a letter, when last July .tata became the final new gTLD application to pass through evaluation.
However, senior officials at Morocco’s industry of trade started kicking up a fuss last September, denying any such non-objection had been given.
In exchanges of letters with ICANN over the last few weeks, Morocco has elaborated. It now claims the letter provided by Tata to the panel referred to trademark protection of the Tata brand under Moroccan law and did not specifically not object to .tata.
The original letter (pdf) was sent by the Moroccan Office for Industry and Intellectual Property (OMPIC). It’s in French, so it’s hard for me to comment with much confidence either way even with a translation, but it seems to say that no Moroccan law would forbid the .tata application.
Now, OMPIC director Adil El Maliki has told ICANN (pdf) that there was no intention to confer non-objection. Another letter from the ministry of trade says the same.
ICANN has accepted the government’s explanation and has thrown .tata back at the evaluation process, where it is basically now at the mercy of the Moroccan government.
It’s not the first time there’s been some (charitably) confusion in government agencies about endorsements for new gTLD applications. DotConnectAfrica’s bid for .africa had backing from an African Union representative at first, which was subsequently withdrawn.
Other “geographic” gTLDs have found it’s easiest to throw money at the problem. Tata Group’s best hope for .tata now might be to build Tata province a new school.

“Frustrated” Morocco denies it supported .tata gTLD

The Moroccan government claims that it did not give its support to the .tata dot-brand gTLD, which was granted to Tata Group, the massive Indian conglomerate, in July.
According to Boubker Seddik Badr, director of digital economy at Morocco’s ministry of trade, .tata “did not receive any endorsement from any Moroccan authority”.
In a September 17 letter (pdf), he expressed his “surprise and very deep frustration” that .tata had been approved by ICANN regardless.
Under ICANN rules, .tata was classified as a “geographic” string because it matches the name of a Moroccan province found on an International Standards Organization list of protected names.
But Tata’s application was finally approved — it was the last bid to pass through evaluation — after a period Extended Evaluation. Its evaluation report (pdf) reads:

The Geographic Names Panel has determined that your application falls within the criteria for a geographic name contained in the Applicant Guidebook Section 2.2.1.4, and the documentation of support or non-objection provided has met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.

The Guidebook states that letters of support or non-objection:

could be signed by the minister with the portfolio responsible for domain name administration, ICT, foreign affairs, or the Office of the Prime Minister or President of the relevant jurisdiction; or a senior representative of the agency or department responsible for domain name administration, ICT, foreign affairs, or the Office of the Prime Minister.

It’s not clear what documentation Tata provided in order to pass the geographic names review.
Tata Group is a family-owned, $103.27 billion-a-year conglomerate involved in everything from oil to tea to cars to IT consulting to airlines.
The company does not yet appear to have signed a Registry Agreement with ICANN for .tata.
ICANN is to hold its 52nd week-long public meeting in Marrakech, Morocco in February 2015.

ICANN snubs Belgium, gives Donuts the all-clear for .spa

ICANN has rejected demands by the Belgian government by giving Donuts the go-ahead to proceed with its application for .spa, which Belgium says infringes on a geographic name.
Noting that the Governmental Advisory Committee had submitted no consensus advice that Donuts .spa bid should be rejected, the ICANN board’s New gTLD Program Committee said last week “the applications will proceed through the normal process.”
That means the two-way contention set is presumably going to auction.
The English dictionary word “spa” derives from Spa, a small Belgian town with some springs.
The other applicant is Asia Spa and Wellness Promotion Council, which has made a deal with Spa to donate some of its profits to local projects and give the city some control over the registry.
Donuts refused to sign a similar deal, leading to Belgium last month asking ICANN to delegate the gTLD to ASWPC and not Donuts.
The GAC’s last word on .spa was this, from the recent Singapore meeting:

Regarding the applications for .spa, the GAC understands that the relevant parties in these discussions are the city of Spa and the applicants. The GAC has finalised its consideration of the .spa string and welcomes the report that an agreement has been reached between the city of Spa and one of the applicants.

There’s no ICANN fudging here; if the GAC wanted to issue a consensus objection it could have.
The question is: why didn’t it?
Why does the string “amazon”, which does not exactly match the name of a place in its local languages, qualify for a GAC objection, while “spa”, which exactly matches the name of a city, does not?

Amazon’s bid for .amazon is dead

ICANN has killed off Amazon’s application for the new gTLD .amazon, based on longstanding but extremely controversial advice from its Governmental Advisory Committee.
According to a New gTLD Program Committee resolution passed on Wednesday and published last night, the applications for .amazon and Chinese and Japanese translations “should not proceed”.
That basically means all three applications are frozen until Amazon withdraws them, wins some kind of appeal, manages to change the GAC’s mind, or successfully sues.
Here’s the last bit of the resolution:

Resolved (2014.05.14.NG03), the NGPC accepts the GAC advice identified in the GAC Register of Advice as 2013-07-18-Obj-Amazon, and directs the President and CEO, or his designee, that the applications for .AMAZON (application number 1-1315-58086) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5581) filed by Amazon EU S.à r.l. should not proceed. By adopting the GAC advice, the NGPC notes that the decision is without prejudice to the continuing efforts by Amazon EU S.à r.l. and members of the GAC to pursue dialogue on the relevant issues.

The NGPC noted that it has no idea why the GAC chose to issue consensus advice against .amazon, but based its deliberations on the mountain of correspondence sent by South American nations.
Peru and Brazil, which share the Amazonia region of the continent, led the charge against the bids, saying they would “prevent the use of this domain for the purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome”.
Amazon had argued that “Amazon” is not a geographic term and that it was against international law for governments to intervene and prevent it using its trademark.
ICANN commissioned a legal analysis that concluded that the organization was under no legal obligation to either reject or accept the applications.
Under the rules of the new gTLD program, the NGPC could have rejected the GAC’s advice, which would have led to a somewhat lengthy consultation process to resolve (or not) their differences.
The big question now is what Amazon, which has invested heavily in the new gTLD program, plans to do next.
A Reconsideration Request would be the simplest option for appeal, though almost certainly a futile gesture. An Independent Review Process complaint might be slightly more realistic.
There’s always the courts, though all new gTLD applicants have to sign legal waivers when they apply.
A fourth option would be for Amazon to negotiate with the affected governments in an attempt to get the GAC advice reversed. The company has already attempted this — offering to protect certain key words related to the region at the second level, for example — but to no avail.

Belgians do want a piece of Donuts’ new gTLD action

The Belgian government is blocking approval of Donuts’ bid for the new gTLD .spa until the company agrees to hand over up to 25% of its .spa profits to the community of the city of Spa.
It emerged in a letter from Spa published by ICANN this weekend that the city is also demanding a role in managing the TLD at the registry operator’s expense.
The gTLD has been applied for by Donuts and the Asia Spa and Wellness Promotion Council.
Not only does the string .spa match the name of the city, but also the English dictionary word “spa” is actually named after Spa, which has been known for centuries for its “healing” springs.
Despite this, Spa is not a capital city — it has roughly 10,000 inhabitants — so it does not qualify as a protected geographic string under the rules of ICANN’s new gTLD program.
Spa nevertheless wants a role in the TLD’s management, in order to protect the interests of itself and its local community, and wants some of the profits to benefit its local businesses.
According to the letter (pdf) from Spa outside attorney Phillippe Laurent, ASWPC has already signed a memorandum of understanding with the city. That MoU, published with the letter, states:

The turnover generated by the exploitation of the .SPA registry will be used in priority to defray reasonable out-of-pocket expenses incurred by the City as a result of its participation in the SPARC or any other of its activity related to the management and governance of the .SPA extension.
Additionally, 25% of the net profit generated by the domain names registered in the .SPA registry by any Belgian, Dutch, Luxembourgish, French or German person or entity will be earmarks to be contributed towards Internet and spa & wellness activities development in and for the City of Spa and its region, especially as related to the scope of the “.SPA” TLD, to be directed by the City of Spa.

The deal would also see ASWPC reserve 200 .spa domain names (included potential premiums such as poker.spa and golf.spa) for the city to do with as it pleases.
Donuts has refused to sign the MoU, saying it’s inconsistent with the Applicant Guidebook and sets a “bad precedent”. Spa has therefore refused to endorse its application.
The city has its national government on its side. In the April 2013 Beijing communique of the ICANN Governmental Advisory Committee, the GAC listed .spa as one of several bids needing “further consideration”.
This was reiterated in its Durban and Buenos communiques, with the GAC noting that “discussions” between “relevant parties” were “ongoing”.
Essentially, the GAC is delaying .spa from approval while Spa tries to get Donuts to agree to hand over part of its of .spa profits.
There was a somewhat testy exchange at the Buenos Aires meeting in November, after an ICANN director asked the GAC if it was appropriate for a governmental entity to try to get a financial benefit from an applicant.
The Belgian GAC representative responded later that “no money will flow to the city of Spa”, conceding that “a very small part of the profits of the registry will go to the community served by .spa”.
That now seems to be not entirely accurate.
The MoU sees Spa getting reimbursed for its self-imposed cost of inserting itself into the management of the registry, so some money will flow to it. But it will presumably be revenue-neutral to the city.
The issue of the 25% profit cut is a bit ambiguous though.
While the money would not flow directly into city coffers, the city would get the ability to direct how it was spent. Presumably, it could be spent on projects that Spa locals would otherwise look to the city to pay for.
With Donuts and Spa apparently at an impasse, ICANN recently told the GAC that it won’t sign contracts with either applicant, yet, but that it wants “a timeline for final consideration of the string”.
It also wants the GAC to “identify the ‘interested parties’ noted in the GAC advice.”
With Laurent’s letter and the MoU seemingly spelling out exactly what Spa wants and why, perhaps ICANN can move the issue closer to resolution at the Singapore meeting next week.
Is it a shakedown? Is it appropriate behavior for the GAC to hold an application hostage while it tries to obtain financial benefit for its local businesses? Or is Donuts unreasonably trying to exploit a city’s centuries-old cultural heritage for its own economic gain?

What some other bloggers said about .amazon

Whenever an ICANN decision intersects with the business interests of a well-known brand name, media coverage ensues, and last week’s Governmental Advisory Committee objection to .amazon was no exception.
While a scores of headlines were generated, there wasn’t a great deal of editorializing or analysis. Most bloggers outside of the domain industry seemed content to link to and summarize a Wall Street Journal report.
But a handful of bloggers also passed comment on the decision. Views were a diverse as you might expect. Here are a few selections:
Geoffrey Manne of Truth On The Market was not impressed with what the decision said about ICANN as a regulator. He wrote:

If Latin American governments are concerned with cultural and national identity protection, they should (not that I’m recommending this) focus their objections on Amazon.com. But the reality is that Amazon.com doesn’t compromise cultural identity, and neither would Amazon’s ownership of .AMAZON.

Brand Aide called Amazon a “brand bully” and recounted a client’s past experience:

For years now, Amazon’s attorneys would have one think the Amazon River never existed. A number of years ago, one of my firm’s clients was sued by Amazon over use of the “Amazon Networks” in a domain for computer services, a term our client innocently registered about the same time Amazon launched as a bookseller. Amazon falsely claimed in federal court our client was a domain cybersquatter. In fact, the homepage of our client’s first website featured an image of the Amazon River.

Hot Hardware empathized with the GAC:

These countries make a good point. It may seem obvious that Amazon.com would get a crack at .amazon, but many in the U.S. would be upset if, say, a German company laid claim to .grandcanyon or another important U.S. geological site.

Retail trade pub Storefront Talkback sided with Amazon:

what initially looked like just a very expensive way to acquire their own .brand names is now turning into a process that’s effectively stripping some chains of their brands.

Geek.com didn’t like .amazon as a string anyway:

I also think this decision is doing Amazon a favor. .amazon is a bit long for the end of a URL. The company would be better off using a shortened version such a .amzn, it’s quicker to type and looks better when paired with categories, e.g. dvd.amzn, bluray.amzn, ebooks.amzn.

WebProNews perhaps misses the point about geographic names a bit in its speculation about .apple:

It’s going to be interesting to see if Apple meets a similar fate to Amazon. It only applied for one gTLD – .apple. Like Amazon, the word apple isn’t exclusive to the company. I find it hard to believe that ICANN would hand Apple exclusive control of the .apple gTLD, but it’s possible.

Finally, book publisher Melville House said on its blog:

The principle the South American nations are referring to is, as I understand it, a little known agreement from the early days of Arpanet that in the case of a governmental disagreement, anyone who could best a region’s most dangerous wildlife in unarmed combat was welcome to that region’s domain name. The protocol hasn’t often been used since the gory events of June 1998, when one intrepid developer hoped to claim .yukon for his online baked potato delivery service.
Patagonia was similarly denied their request for .patagonia last week, after a company representative found himself facing down the pointy end of a condor.

Seventh new gTLD bid withdrawn

ICANN has now received seven requests to withdraw new gTLD applications, according to documentation published today.
While we learned today that Google and KSB AG are behind four of the junked bids, the identities of the other three are not yet known.
ICANN has said that it will not reveal the withdrawing applications until all the formalities, such as refunds, have been finalized.
The updated stats came in a slide deck (pdf) set to be used in an ICANN webinar scheduled for noon UTC today.
The slides also reveal the aggregate status of applications’ progress through Initial Evaluation.
As you can see from the slide below, over a quarter of applications have had their String Similarity Review already. Just 65 have had their Geographic Names Review, while 127 and 141 have had their technical and financial evaluations respectively.

ICANN also states that there have been 57 requests for changes to applications — up from 49 at the last count — and that so far nobody has filed a formal objection against any bid.

Will India’s biggest dot-brand be blocked?

TATA Group, the $83-billion-a-year Indian conglomerate, has confirmed to local media that it has applied for the new dot-brand top-level domain .tata.
Reporting on the approximately 50 new gTLD applications known so far to originate in India, the Business Standard confirmed the .tata bid.
But the company may find itself on the receiving end of nasty surprise — Tata is a protected geographical string under ICANN’s new gTLD rules.
Tata is also a Moroccan province listed in the ISO 3166-2 standard and the string is therefore recognized as a “sub-national place name” that gets special privileges.
Such strings are “considered geographic names and must be accompanied by documentation of support or non-objection from the relevant governments or public authorities”, according to the ICANN Applicant Guidebook.
While it will be up to the Geographic Names Panel to make the call, “tata” looks to me like a pretty straightforward case of a protected string.
Has Tata obtained this consent from Morocco already? I guess we’ll find out on June 13, when ICANN reveals the public portions of all 1,900-plus new gTLD applications.
Tata also colloquially means “boob” in American.