Squabbling drug peddlers drag .pharmacy into brand bunfight

The .pharmacy new gTLD has been dragged into the ongoing trademark dispute between two pharmaceuticals giants called Merck.
Germany-based Merck KGaA has accused the .pharmacy registry of operating an unfair and “secretive” process to resolve competing sunrise period applications.
The domain merck.pharmacy was awarded to US rival Merck & Co, which was spun off from the German original a hundred years ago, after both Mercks applied for the domain during .pharmacy’s January-March 2015 sunrise.
Now Merck KGaA has become what I believe might be the first company to reveal an attempt to invoke ICANN’s Public Interest Commitments Dispute Resolution Procedure to get the decision reversed.
The National Association of Boards of Pharmacy, a US entity, operates .pharmacy as a tightly controlled gTLD with pre-registration credential validation.
When it launched for trademark owners in last year, it was vague about how contentions between owners of matching trademarks would be handled, according to Merck KGaA.
Merck KGaA claims that NABP awarded merck.pharmacy to Merck & Co and initially refused to disclose how it had arrived at its decision other than to say the German firm “met fewer criteria” than its rival.
After some back-and-forth between their lawyers, Merck KGaA was still not happy with NABP’s response to the dispute, so it decided to start filing compliance reports ICANN.
A year on, it tried to invoke the PICDRP.
Public Interest Commitments are addenda to ICANN Registry Agreements that bind the registries to certain behaviors, such as fighting malware and working with industry-specific regulatory bodies.
The PICDRP, heard by ICANN or an independent standing panel, is a way for third parties to challenge registries’ compliance with their contracts when they believe PICs have been violated.
No PICDRP disputes have actually made it before a panel to date, to my knowledge. Indeed, this is the first time I’ve heard of anyone even attempting to file one, though ICANN Compliance reports indicate about 20 were filed last year.
Merck KGaA claims that by not disclosing how it decided Merck & Co should win merck.pharmacy, NABP is in breach of the PIC that states:

Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.

It suspects that NABP was biased towards Merck & Co because the US firm is a $100,000+ contributor to its coffers.
NABP has denied any wrongdoing, saying it applied “objective criteria” to decide which Merck most deserved the name.
This June, over a year after the domain was awarded, Merck KGaA filed its PICDRP complaint with ICANN. Two weeks ago, ICANN responded saying the complaint had been rejected, saying:

The detailed review criteria used to resolve the contention for the registration of the domain name was part of an operational procedure that the registry operator applied to both applicants’ websites and was consistent with .pharmacy’s community restrictions in Specification 12 of the RA. As the internal operational procedure does not conflict with ICANN’s agreements and policies, it is deemed outside of ICANN’s scope of enforcement.

The decision seems to have been made by ICANN staff. No independent panel was appointed. The PICDRP grants ICANN “sole discretion” as to whether a panel is needed.
The only reason the dispute has come to light is that Merck KGaA has decided to challenge ICANN’s decision with a Request for Reconsideration. The RfR and 600-odd pages of exhibits are published here.
It’s the second concurrent RfR Merck has on the go with ICANN. The Mercks are also simultaneously fighting for the right to run .merck as a dot-brand gTLD.
Both applications for .merck went through the Community Priority Evaluation process, but both failed.
The next stage in resolving the contention said would have been an auction, but Merck KGaA has filed for Reconsideration on its CPE panel’s determination.

CIRA becomes first new gTLD back-end since 2012

CIRA, the Canadian ccTLD manager, has become the first new registry back-end provider to enter the gTLD market since the 2012 application round closed.
The company today announced that it has signed Dot Kiwi, operator of .kiwi, as its first client.
.kiwi will become the first non-.ca TLD that CIRA runs the back-end for, according to VP of product development Dave Chiswell.
CIRA has already completed pre-delegation testing and technical evaluation with ICANN, he told DI today.
It is believed to be the first back-end provider not attached to any 2012-round application to go through the PDT process.
That would make CIRA essentially the first company to officially enter the gTLD back-end market since 2012, in other words.
The .kiwi contract was up for grabs due to the fact that Minds + Machines, its original supplier, decided to get out of the back-end business earlier this year.
All of M+M’s own stable of gTLDs are being moved to Nominet right now, but customers such as Dot Kiwi were not obliged to follow.
Chiswell said that CIRA’s system, which is called Fury, has some patent-pending “tagging” technology that cannot be found at rival providers.
He said that registry operator clients get a GUI through which they can manage pricing tiers and promotions based on criteria such as substrings and registration dates without having to fill out a ticket and get CIRA staff involved, which he said is a unique selling point.
CIRA’s goals now are to try to sign up more TLDs (cc’s or g’s) to Fury, and to attempt to get Canadian brands and cities to apply for gTLDs in the next round, whenever that may be.
The company also intends to migrate .ca over to Fury from its legacy infrastructure at some point, he said.

People are forgetting .com exists — ICANN survey

Have you ever heard of .com, .net and .org?
That question was posed to 3,349 domain name registrants in 24 countries by market research firm Nielsen this June and guess what — awareness of all three cornerstone gTLDs was down on a comparable 2015 survey.
Unbelievably, only 85% of respondents professed to be aware of .com’s existence, compared to 86% in 2015.
Equally unbelievably, awareness of .net and .org fell from 76% to 69% and from 70% to 65% respectively between 2015 and 2016, the survey found.
Those are just three among many hundreds of findings of the Nielsen survey, which was carried out in order to inform ICANN’s Competition, Consumer Trust & Consumer Choice Review.
The CCT is one of the reviews deemed mandatory before ICANN is able to launch the next round of new gTLD applications.
A great many of the numbers revealed by the survey are seriously open to question — some could even be empirically proven wrong.
But David Dickinson, project lead for Nielsen on the survey, told DI yesterday that the numbers themselves are less important than the trends, or lack thereof, that they might represent.
Nielsen carried out two surveys in 2015 — one of consumers and one of registrants — then repeated both surveys again a year later.
Respondents were selected from a pool of people who have at some point indicated to third-party market research companies that they are available to take surveys online, Dickinson said. They are usually compensated via some kind of redeemable loyalty points scheme.
The registrant surveys were limited to those who said they have registered a domain name. The consumer survey was limited to those who said they spend more than five hours a week online.
While the number of respondents were measured in the low thousands, the idea is that they provide a representative sample of all internet users and domain name registrants.
But there’s a lot of weirdness in the numbers.
Dickinson said that the 85% awareness number for .com could be due partly to random “mechanical errors” — people clicking the wrong buttons on their survey form — but said that lack of awareness was more common among younger respondents who were more likely to be aware of newer, less generic TLDs.
The surveys also highlighted a bizarre split in TLD awareness between consumers and registrants.
Given that registrants are a subset of consumers, and given that they are by definition more familiar with domain names, you’d expect respondents to the registrant surveys to show higher TLD awareness than those responding to the consumer surveys.
But the opposite was true.
The surveys found, for example, that 95% of consumers knew about .com, but only 85% of registrants did. For .net and .org the numbers were 88%/69% and 83%/65% respectively. None of it makes any sense.
Dickinson said that the 2015 consumer/registrant awareness numbers were “almost identical”.
“My only real conclusion here is that [in 2016] there was some systematic difference in the diligence that the registrants selected these names on these awareness questions, and that a large portion of that is just due to random variation,” he said.
“However, when we do look at those people who are registering new gTLDs, they tended to have much lower awareness of those legacy gTLDs than those people who were unaware or had not registered those new gTLDs,” he said.
“The people who said they did not recognize any of those new gTLDs at all the are very very centric on the legacy gTLDs and in particular .com,” he said.
“I think the data is overstated because of the random variation but there is a learning here when we break it down… that those legacy domains are becoming less relevant or less noticed by the younger people and the people who are registering these new gTLDs,” he said.
“I think there is a shift going on, but it’s not as big as what is stated here [in the numbers],” he said.
The surveys also looked at awareness and registration levels for new, 2012-round gTLDs, but again the numbers probably don’t accurately reflect reality.
For example, 39% of registrants claimed to have heard of .email domain names and 15% claimed to have actually registered one.
Again, these numbers don’t seem plausible. There are fewer than 60,000 .email domains in existence today. Even if there were only one million domain registrants in the world, 15% registration rate would mean at least 150,000 names should have been sold.
Dickinson said that this number could have been higher due to selection bias. The survey took about half an hour on average to fill out, so people more personally interested or invested in internet or domain name related stuff might have been more likely to stick around and complete it.
Interestingly, new gTLD awareness rates in North America were substantially lower than awareness elsewhere in the world. For example, only 25% of North Americans professed to have heard of .news, but that grew to 42% in Asia where most languages use a different script.
My sense here is that respondents — which all took the surveys in their native languages — may have just been clicking to confirm English words they recognized, rather than TLDs they had seen in the wild.
Nielsen clearly suspected that there would be an element of “false recall” among respondents because it actually included some fake TLDs among the real ones.
This led to findings such as: 26% of Africans have heard of .cairo, 17% of North Americans have heard of .toronto and 21% of South Americans have heard of .bogota.
None of those city TLDs exist.
Dickinson explained this as “assumed familiarity”.
“What very much seems to happen is that if something has an implied ‘face validity’ — it seems to make sense or seems to be readily interpretable — then those ones will get higher stated awareness than the ones that are just random letters, such as .xyz,” he said.
Indeed, while there are over six million .xyz domains out there today, with high-profile registrants including Google, only 13% of respondents claimed to be aware of it.
“The more implied familiarity or sense of familiarity there is, the more likely people are to feel like they’ve been there or seen it, so it’s definitely a false recall, but the learning from that is that the more interpretable… those things are then they have more easy acceptance by consumers than things that are not interpretable,” Dickinson said.
The surveys did not only cover awareness and registration patterns. There are literally hundreds of data points in there covering different perceptions of TLDs new and old. I’ve just focused here on the ones that made me question whether the survey was worth the time, expense and paper it was written on.
But Dickinson said that the raw numbers are not necessarily what the ICANN review teams should be looking at.
“Maybe the absolute number is not exactly dead-on, but what are the relationships between the numbers?” he said.
“I tend to look at the relationships, so for example one of the objectives of doing this survey was to see if the new gTLD program impacted the perception of the industry in any way, or trustworthiness in the industry,” he said.
“For example, we can say we’re not sure it improved — the numbers didn’t change significantly in that direction to allow us to definitively say it improved — but it certainly did not decline,” he said. “We can rule out that it declined.”
“Overall, we can say that the new gTLD program is emerging with fairly strong awareness, relative,” he said.
“We can also say with certainty that none of those new gTLDs are anywhere approaching the awareness of the legacy gTLDs, and even if there is some erosion in the legacy gTLDs it’s going to take a long time for those to reach parity, if they ever do,” he said.
The Nielsen surveys are one input to the work of the volunteer CCT Review Team, which intends to publish its preliminary report before the end of the year.
CCT-RT chair Jonathan Zuck recently published a blog post on the ICANN web site giving a progress report on recent work.

Could ICANN reject Verisign’s $135m .web bid?

ICANN is looking into demands for it to throw out Verisign’s covert $135 million winning bid for the highly prized .web gTLD.
ICANN last week told the judge hearing Donuts’ .web-related lawsuit that it is “currently in the process of investigating certain of the issues raised” by Donuts through its “internal accountability mechanisms”.
Donuts is suing for $22.5 million, claiming ICANN should have forced Nu Dot Co to disclose that its .web bid was being secretly bankrolled by Verisign and alleging that the .com heavyweight used NDC as cover to avoid regulatory scrutiny.
ICANN’s latest filing (pdf), made jointly with Donuts, asked for an extension to October 26 of ICANN’s deadline to file a response to Donuts’ complaint.
It was granted, the second time the deadline has been extended, but the judge warned it was also the final time.
The referenced “internal accountability mechanism” would seem to mean the Cooperative Engagement Process — a low-formality bilateral negotiation — that Donuts and fellow .web bidder Radix initiated against ICANN August 2.
The filing states that the “resolution of certain issues in controversy may be aided by allowing [ICANN] to complete its investigation of [Donuts’] allegations prior to the filing of its responsive pleading.”
In other words, Donuts is either hopeful that ICANN may be able to resolve some of its complaints in the next month, or it’s not particularly impatient about the case progressing.
Meanwhile, fellow .web applicant Afilias has demanded for the second time that ICANN hand over .web to it, as the second-highest bidder, throwing out the NDC/Verisign application.
In a September 9 letter, published last night, Afilias told ICANN to “disqualify and reject” NDC’s application, alleging at least three breaches of ICANN rules.
Afilias says that by refusing to disclose Verisign’s support for its bid, NDC broke the rules and should have its application thrown out.
The company also confirmed on the public record for what I believe is the first time that it was the second-highest bidder in the July 27 auction.
Afilias would pay somewhere between $57.5 million and $71.9 million for the gTLD, depending on what the high bid of the third-placed applicant was.
In its new letter, Afilias says NDC broke the rule from the Applicant Guidebook that does not allow applicants to “resell, assign or transfer any of applicant’s rights or obligations in connection with the application”.
It also says that NDC was obliged by the AGB to notify ICANN of “changes in financial position and changes in ownership or control”, which it did not.
It finally says that Verisign used NDC as a front during the auction, in violation of auction rules.
“In these circumstances, we submit that ICANN should disqualify NDC’s bid and offer to accept the application of Afilias, which placed the second highest exit bid,” Afilias general counsel Scott Hemphill wrote (pdf).
Hemphill told ICANN to defer from signing a Registry Agreement with NDC or Verisign, strongly implying that Afilias intends to invoke ICANN accountability mechanisms (presumably meaning the Request for Reconsideration process and/or Independent Review Process).
While Afilias and Donuts are both taking issue with the secretive nature of Verisign’s acquisition of .web, they’re not necessarily fighting the same corner.
Donuts is looking for $22.5 million because that’s roughly what it would have received if the .web contention set had been resolved via private auction and $135 million had been the winning bid.
But Afilias wants the ICANN auction outcome to stand, albeit with NDC’s top bid rejected. That would mean Donuts, Radix, and the other applicants would still receive nothing.
There’s also the question of other new gTLD applications that have prevailed at auction and been immediately transferred to third-party non-applicants.
The most notable example of this was .blog, which was won by shell company Primer Nivel with secretive backing from WordPress maker Automattic.
Donuts itself regularly wins gTLD auctions and immediately transfers its contracts to Rightside under a pre-existing agreement.
In both of those cases, the reassignment deals predated, but were not disclosed in, the respective applications.
There’s the recipe here for a messy, protracted bun fight over .web, which should come as no surprise to anyone.

Barcelona picked for ICANN 63

ICANN will head to Barcelona, Spain for its 63rd public meeting, the organization’s board of directors has decided.
ICANN 63, that year’s Annual General Meeting, is due to take place October 20 to October 26, 2018. The specific venue has not yet been revealed.
That’s quite a way in the future. Venues have not yet been selected for the first two meetings of 2018, which will take place in ICANN’s North America and Latin America and Caribbean regions.
We’re currently up to ICANN 57, which is due to start in about six weeks in Hyderabad, India (start looking into visas today if you haven’t already).
Next year, meetings will be held in Copenhagen in March, Johannesburg in June and Abu Dhabi in October.
Barcelona was selected for 63 at an ICANN board meeting last week.
The city, Spain’s second most populous, is in the Catalonia region of Spain and is home to the .cat sponsored gTLD.

Destroy ICANN! Destroy ICANN with missiles!

The year is 2016. The Kenyan Muslim president of the United States is poised to hand over control of the internet to the United Nations in an attempt to silence lunatic conspiracy theorists Matt Drudge and Alex Jones for good.
But you can help, by engaging in missile warfare with ICANN and the UN.
That’s the deranged premise of ICANN Command, a little browser game that appeared online this week.
It’s a knock-off of the 1980 Atari classic Missile Command. The intro reads:

You will be defending actual Internet domains from UN attack! Launch surface-to-air missiles in time to destroy UN Domain Seeking Missiles. If a UN missile reaches a domain, that domain is lost forever.
Or, call your senator right now!

This related video explains more.

It’s obviously been inspired by the anti-Obama rhetoric of Senator Ted Cruz and Wall Street Journal op-eds of L Gordon Crovitz, which have fed a fringe right-wing conspiracy theory that sees the UN taking control of the internet come October 1.
That’s the date the US government proposes to remove itself from its oversight role in ICANN’s IANA functions.
After that, ICANN will be overseen by a new multistakeholder process in which everybody, not the UN, has a voice.
InfoWars.com and DrudgeReport.com are safe, sadly.
You can check out the game here if you wish. I scanned it for viruses and mind-control rays and it seems safe.

First dot-brand gTLD to go generic after TLS deal

The would-be dot-brand gTLD .observer will actually open as an unrestricted generic after the contract was bought out by Top Level Spectrum.
TLS, which has a small portfolio of gTLDs already, bought out the ICANN contract from UK newspaper publisher Guardian News and Media a couple of months ago, it emerged today.
The Observer is the title of the Guardian’s sister paper, published on Sundays.
But TLS CEO Jay Westerdal said it will be sold as a generic with pricing under $10 per name, as a thematic stable-mate for its gripe-oriented gTLD .feedback.
The price of the TLD has not been revealed, but Westerdal characterized it as a sub-$1 million deal.
It’s the first instance of a dot-brand, albeit one that that not yet gone live, being taken over by a portfolio gTLD player.
Westerdal said he’s looking for more, similar acquisition opportunities.
The gTLD is currently in pre-delegation testing, with no published go-live date.
The Guardian had signed a Registry Agreement containing Specification 9. That allows registries to disregard the Code of Conduct — which obliges them to treat registrars equally.
It seems likely this will have to be removed from the RA before .observer can go to the masses as a proper generic.

Correction: what NTIA said about .com pricing

The US government has not confirmed that it expects to keep Verisign’s .com registry fee capped at the current level until at least 2024, despite what DI reported on Monday.
At this URL we published an article reporting that the US government had confirmed that it was going to keep .com prices frozen at $7.85 for the next eight years.
That was based on a misreading of a letter from the Department of Commerce to Senator Ted Cruz and others, which merely explained how the price cap could be maintained without expressing a commitment to do so.
The letter actually said very little, and nothing of news value, so I thought it best to simply delete the original piece and replace it with this correction.
I regret the error.
Thanks to those readers who got in touch to point out the mistake.

US claims option to delay IANA transition as Cruz launches free speech doomsday clock

The US government has told ICANN that it may extend the current IANA functions contract for a year, should something unexpected happen this month.
The National Telecommunications and Information Administration wrote to ICANN (pdf) yesterday, to provide “preliminary notice” that it could extent the contract until September 30, 2017, if a “significant impediment” should occur before October 1, 2016.
It appears to be a formality. NTIA said:

the department intends to allow the IANA functions contract to expire as of October 1, 2016, barring any significant impediment. This notice preserves the Government’s rights under the contract during this interim period should there be a change in circumstance.

Under the contract, NTIA is allowed to extend the term for another year in the last 15 days of the current term, but it has to give 30 days notice to ICANN if it wants to do so.
NTIA assistant secretary Larry Strickling told ICANN (pdf) a couple weeks ago that it plans to allow the IANA contract to expire — thereby removing NTIA’s piddling influence in root zone management — October 1.
But the move is facing continued criticism from increasingly unhinged elements of the American political right, who have got it into their heads that the transition means Russia and China will be able to take over ICANN and crush free speech online.
The campaign has been spearheaded by Senator Ted Cruz and whoever pulls the strings of Wall Street Journal columnist L Gordon Crovitz, and has roped in a multitude of hard-right think-tanks.
The latest publicity push for the campaign saw Cruz yesterday launch a countdown clock on its Senate web page.

Cruz’s site states:

If that proposal goes through, countries like Russia, China, and Iran could be able to censor speech on the Internet, including here in the U.S. by blocking access to sites they don’t like.

None of that is true, needless to say.
But the anti-transition sentiment is strong enough that it’s not impossible that there will be a “significant impediment” to the transition before October 1 — a legal injunction against the Federal government, perhaps — and the extension will enable ICANN to run IANA under the current regime for another year.

Tata ponders “buy a school” strategy to release .tata from limbo

Tata Group is reportedly considering buying a school for the Moroccan province of Tata in order to unlock the .tata gTLD.
The huge Indian conglomerate has been prevented from acquiring its own dot-brand because it matches the name of the tiny region, which is as protected geographic string under ICANN rules.
Without the express permission of Morocco, Tata will not get its desired domain.
According to the New Indian Express newspaper, the company has now reached out to the Indian government in an attempt to open diplomatic channels with Morocco and finally resolve the issue.
The paper cites an unnamed “official” as stating that buying a new school for the province may be the best way to “open the door” to a formal non-objection.
That has precedent.
New gTLD registry Punto 2012, managed to get a non-objection for its .bar application from Montenegro by offering to pay $100,000, spread over 10 years, to fund a school in the Bar region of the country.
Tata came close to acquiring .tata in 2014.
It was the final new gTLD application to pass its evaluation, after it managed to produce a letter from Morocco that was taken as a non-objection.
But Morocco’s digital minister subsequently objected, denying that the government had permitted the use of the string.
Tata’s application was then returned to its Geographic Names Review, which it flunked last December.
Since then, the bid has been marked “Will Not Proceed”, a status that usually only changes when an application is withdrawn.