ICANN bans closed generic gTLDs, for now

ICANN has slapped a de facto ban on so-called “closed generic” gTLDs, at least for the remaining 2012 round applicants.
The ICANN board’s New gTLD Program Committee passed a resolution Sunday that un-freezes the remaining new gTLD applications that envisage a namespace wholly controlled by the applicant.
The affected strings are .hotels, .dvr and .grocery, which are uncontested, as well as .food, .data and .phone, which are contested by one or two other applicants.
The NGPC said five strings are affected, but the ICANN web site currently shows these six.
The resolution allows the contested strings to head to dispute resolution or auction, but makes it clear that “exclusive generic gTLDs” will not be able to sign a registry contract.
Instead, they will either have to withdraw their applications (receiving a partial refund), drop their exclusivity plans, or have their applications carried over to the second new gTLD round.
The GNSO has been asked to develop a policy on closed generics for the second round, which is still probably years away.
It’s not clear whether other applicants would be able to apply for strings that are carried over, potentially making the close generic applicant fight two contention sets.
The NGPC decision comes over two years after the Governmental Advisory Committee advised that closed generics must serve “a public interest goal” or be rejected.
This weekend’s resolution sidesteps the “public interest” question altogether.

Freenom suspended for cybersquatting rival registrars

Freenom, the company behind .tk and other freebie ccTLDs, has had its ICANN registrar accreditation suspended for cybersquatting competing registrars including Go Daddy and Key-Systems.
OpenTLD, its registrar business, has been told it cannot accept new registrations or inbound transfers from July 8 to October 6 or until it provides ICANN with a full list of the names it squatted.
I believe it’s the first time ICANN has suspended a registrar for this reason.
The suspension notice states:

ICANN has found that OpenTLD has engaged in a pattern and practice of trafficking in or use of domain names identical or confusingly similar to a trademark or service mark of a third party in which the Registered Name Holder has no rights or legitimate interest

That’s a long-winded way of saying “massive cybersquatting”.
ICANN is basing its claims on two UDRP cases that Freenom and its CEO, Joost Zuurbier, lost.
According to WIPO panelists in Key-Systems GmbH v. Joost Zuurbier, OpenTLD B.V. and NetEarth Group, Inc. v. Stichting OpenTLD WHOIS Proxy, the company squatted at least seven of its rivals’ trademarks.
The domains were netearthone.biz, rrpproxy.me, key-systems.cc, resellerclub.tk, resellbiz.biz, godaddy.cf and resello.ws.
According to the UDRP decisions, Freenom used the domains to try to entice resellers of the other registrars over to OpenTLD.
It bought the competing registrars’ trademarks as search keywords on Google’s advertising platform, a WIPO panelist found. If you searched Google for Key-Systems trademark “RRPproxy”, for example, you’d get an ad linking to rrpproxy.me.
In some cases the names were registered behind Freenom’s in-house privacy service. In others, Zuurbier and OpenTLD were listed plainly as the registrants.
The WIPO panelists also found that Freenon shirked its duties under the UDRP as registrar, deleting the squatted domains rather than locking them, which essentially amounted to “cyberflight”.
It all looks pretty bad for Freenom, which only gained its accreditation two years ago.
To avoid termination, it has to provide ICANN with a list of all of its trademark infringing names, agree to transfer them to the mark owners or delete them, and bunch of other stuff.
Here’s the letter.

Chehade confirms he’ll be gone before IANA transition is done

ICANN CEO Fadi Chehade has laid out his current best thinking for the timeline of the IANA’s transition from US government oversight, and he’ll be gone well before it’s done.
At the opening ceremony of the ICANN 53 meeting in Buenos Aires today, Chehade described how June 2016 is a likely date for the divorce; three months after his resignation takes effect.
Chehade said:

I asked our community leaders, “Based on your plans and what you’re seeing and what you know today, when could that finish?” The answers that are coming back to us seem to indicate that by ICANN 56, which will be back in Latin America in the middle of 2016, a year from today, the contract with the US Government could come to an end.

He showed a slide that broke the remaining work of the transition into three phases.

Work being carried out within ICANN is not entirely to blame for the length of time the process will take.
The US National Telecommunications and Information Administration needs 60 to 90 days to review the final community-developed transition proposal.
And under forthcoming US legislation, 30 legislative days will be required for the US Congress to review the NTIA’s approval of the plan.
Thirty legislative days, Chehade explained, could mean as many as 60 actual days, depending on the yet-unpublished 2016 Congressional calendar.
He urged the community focus hard on Phase One in his graphic — actually producing a consensus transition plan.
The target for delivery of this is the next ICANN meeting, 54, which will take place in Dublin, Ireland from October 18 to October 22 this year.

ICANN 53 launches with risky Caitlyn Jenner joke

ICANN has risked the ire of community members by kicking off ICANN 53 today with a joke referencing transgender celebrity Bruce/Caitlyn Jenner.
Just moments into his opening address this hour, ICANN chair Steve Crocker worked a joke around before/after photos of the former athlete.
[UPDATE: Crocker has issued an apology. See the bottom of this post.]

This is what Crocker said:

What are we really talking about here? What is this thing we call “the transition”? And why has it captivated the attention of so many?
[Jenner photo appears]
Ahhh, no. That’s not quite the transition that I’m referring to. I’m only referring to the IANA stewardship transition.

Reaction from attendees was mixed.
The joke got laughter from the room.
On Twitter, some were less amused.

Excuse me @ICANN, is this equality, respect and one world for EVERYONE? Apologise in order #icann53 #notfunny!!!!! pic.twitter.com/Bn2926OlXk

— Aida Mahmutović (@Aidazzles) June 22, 2015

#ICANN53 starts with a joke at the expense of the LGBTQI population. I guess that is better than a prayer. But not a lot.

— avri (@avri) June 22, 2015

Ehhh….what just happened there. Seriously #ICANN, some things one do not joke about.

— Patrik Fältström (@patrikhson) June 22, 2015

Slow start from Crocker here. Apparently ICANN meetings are supposed in Summer and jokes about transgender transition are funny #sheesh

— Adrian Kinderis (@AdrianKinderis) June 22, 2015

Unfortunate & sad that on such a global platform ICANN has used Caitlyn Jenner's image to generate a laugh instead of applauding her courage

— dotgay LLC (@dotgay) June 22, 2015

I’ll be the first to leap to the defense of the joke.
I laughed. I don’t think it was offensive or insulting to Jenner or to trans people in general — it was more a joke about celebrity culture — and I don’t think any offense was intended.
If I had seen it on TV, I wouldn’t have batted an eyelid. I even made a joke about Jenner’s Vanity Fair cover, on Twitter, a couple weeks back.
But a lot of ICANN regulars are more sensitive about this kind of thing. I’ve had conversations with people who believe it was highly inappropriate for CEO Fadi Chehade to congratulate a participant, from the stage during a previous meeting, on her visible pregnancy.
For ICANN’s chairman to make a joke about a transgender person’s transition at the opening ceremony of a major meeting? That’s a misjudgment, in my view.
ICANN, recall, has recently been bombarded with letters from equal rights groups over the decision by the Economist Intelligence Unit to reject a .gay gTLD applicant’s Community Priority Evaluation.
EIU based its decision in large part on the fact that the proposed .gay community included transgender and intersex people, which the EIU said were not encapsulated by the string “gay”.
ICANN has expected standards of behavior for its meetings that cover such things as sexism and homophobia.
UPDATE: Crocker issued the following statement on ICANN’s Facebook account:

I understand that I may have inadvertently offended some during my speech at this morning’s welcome session with a reference to Caitlyn Jenner, which was intended as a salute. It opened up an important dialog that is consistent with our principles.
Please know that I view Caitlyn’s decision to be heroic and brave. I made this reference solely because of the world attention on a transition and it was not intended in any way, shape or form to be a criticism of her heroic decision. I was in no way making light or poking fun at her transition, but rather playing on the world attention on a “transition.” I apologize if my comments were perceived in a different manner than I intended them.
Dr. Stephen Crocker
ICANN Board Chair

Photo credit: James Bladel.

URS fight brewing at ICANN 53

Should the Uniform Rapid Suspension process spread from new gTLDs to incumbent gTLDs, possibly including .com?
That’s been the subject of some strong disagreements during the opening weekend of ICANN 53, which formally kicks off in Buenos Aires today.
During sessions of the Generic Names Supporting Organization and the ICANN board and staff, ICANN was accused of trying to circumvent policy-making processes by forcing URS into the .travel, .pro and .cat registry agreements, which are up for renewal.
ICANN executives denied doing any such thing, saying the three registries volunteered to have URS included in their new contracts, which are modeled on the standard new gTLD Registry Agreement.
“It’s just something we’ve suggested and they’ve taken up,” said Cyrus Namazi, ICANN’s vice president of domain name services.
If a registry wants to increase the number of rights protection mechanisms in its gTLD, why not let them, ICANN execs asked, pointing out that loads of new gTLDs have implemented extra RPMs voluntarily.
ICANN admits that it stands to benefit from operational efficiencies when its registry agreements are more uniform.
Opponents pointed out that there’s a difference between Donuts, say, having its bespoke, voluntary Domain Protected Marks List, and bilaterally putting the URS into an enforceable ICANN contract.
URS is not a formal Consensus Policy, they say, unlike UDRP. Consensus Policies apply to all gTLDs, whereas URS was created by ICANN for new gTLDs alone.
Arguably leading the fight against URS osmosis is Phil Corwin, counsel for Internet Commerce Association, which doesn’t want its clients’ vast portfolios of .com domains subject to URS.
He maintained over the weekend that his beef was with the process through which URS was making its way into proposed legacy gTLD contracts.
It shouldn’t be forced upon legacy gTLDs without a Consensus Policy, he said.
While the GNSO, ICANN staff and board spent about an hour talking about “process” over the weekend, it was left to director Chris Disspain to point out that that was basically a smokescreen for an argument about whether the URS should be used in other gTLDs.
He’s right, but the GNSO is split on this issue in unusual ways.
Corwin enjoys the support of the Business Constituency, of which he is a member, in terms of his process criticisms if not his criticisms of RPMs more generally.
ICA does also have backing from some registrars (which bear the support costs of dealing with customers affected by URS), from the pro-registrant Non-Commercial Stakeholders Group, and from groups such as the Electronic Frontier Foundation.
The Intellectual Property Constituency thinks that the process is just fine — .travel et al can sign up to URS if they want to.
While the registries have not yet put forward a joint position, the IPC’s view has been more or less echoed by Donuts, which owns the largest portfolio of new gTLDs.
The public comment period for the .travel contract ended yesterday. Comments can be read here. Comment periods on .cat and .pro close July 7.

Chehade makes case for insider CEO in frank assessment of failings

Outgoing ICANN CEO has made a case for his successor to be somebody already intimately familiar with the ICANN community.
His remarks, which stopped short of explicitly recommending an insider take over his position when he leaves next March, came during a frank self-assessment of his shortcomings in the job at ICANN 53 in Buenos Aires yesterday.
“There are many things I could have done better or done differently,” Chehade said before an audience of Generic Names Supporting Organization members.
He freely confessed to jumping headlong into the job before he fully understood ICANN as a community; how it functions and where the real power is supposed to be wielded.
The key example of that, he said, was the creation of some of the rules now in use at the Trademark Clearinghouse.
“I meant well, I intended well, but I broke every process in the system,” he said. “I didn’t know, and I really didn’t realize that I didn’t until later.”
That’s a reference to late 2012, when Chehade convened a series of secretive, invitation-only community meetings that gave the Intellectual Property Constituency yet another chance to have rights protection mechanisms strengthened.
Chehade famously even asked participants to not even live-tweet during the discussions, it was not webcast, and recordings of (some of) the sessions were not published until DI filed a Documentary Information Disclosure Process request.
These “strawman” meetings culminated in the IPC being given the “Trademark+50” mechanism, which allows variations on trademarks to be protected, and the Non-Commercial Users Constituency to claim its voice had been under-represented and largely ignored.
For this reason and others, Chehade now says his successor had better have “very very good preparation and orientation”.
“Spending about seven minutes with the prior CEO before I took this job is not something I recommend,” he said, apparently a reference to time spent with his predecessor, Rod Beckstrom.
“This is a very complex job, and a very layered role, and I had no orientation to speak of,” he said. “If he or she is not someone who knows this community, this person better have a lot of orientation.”
He described how it took him some time to get to grips with the idea that he’s not a CEO in the conventional sense, able to make changes at will and answerable only to the board of directors.
“I am not a CEO,” he said. “There are types of CEO and this is a servant CEO job. Until you get that you keep hitting walls.”
He also described the job as “a politician without a flag” and “community facilitator”.
His biggest regret, he said, was failing to immediately realize that the facilitator function was the most important part of the job.
It took a clash last year about accountability being a key part of the IANA transition for him to realize this, he said.
“I hope you will all contribute in finding a person who will serve you well from day one, not like me, who from day one will arrive understanding all the parts of this,” he said.
Whether he intended it or not, this sounds like Chehade would err towards hiring an ICANN community veteran as his successor.
He said his replacement should be somebody who “knows all the things I learned, hopefully on day one, or on month one. Or on year one, but not three years in.”
It should be noted that Chehade turned down the chance to be a part of the team that will choose his successor.
Chehade’s position appears to diametrically opposed that of his predecessor. During Beckstrom’s tenure as “outgoing” CEO, he explicitly recommended an outsider take over the role.
“I hope that the person who replaces me will be of the highest integrity and has no recent or current commercial or career interests in the domain industry, because ICANN’s fairness, objectivity and independence are of paramount importance to the future of the internet,” Beckstrom said in October 2011.
Beckstrom’s remarks came as ICANN came under intensified scrutiny over perceived conflicts of interest.
Peter Dengate Thrush had recently come to the end of his tenure as ICANN chair, pushing through the (premature?) approval of the new gTLD program in his last few days on the job and joining applicant Minds + Machines just a few weeks later.
Chehade’s remarks yesterday come as ICANN is in a different position.
When he leaves next March, ICANN will either be freshly decoupled from its oversight relationship with the US government, or will be on the verge of it.
It won’t be an easy time for a new CEO to take over, trying to steer the organization under a fresh, untested set of governance principles.
When it comes to “insiders” with intimate knowledge of ICANN, there are a few community members not already on ICANN staff I could imagine pitching themselves for the CEO’s job.
But there’s also the possibility of an internal hire.
Remember, one of Chehade’s first actions upon taking the job was to hire the two other people who had been on the board’s final shortlist — Tarek Kamel and Sally Costerton.
Kamel, once a controversial minister in Mubarak’s Egyptian government, is currently Chehade’s senior advisor for government engagement.
Costerton was London-based EMEA CEO at the public relations agency Hill & Knowlton. Today, she’s the senior advisor for global stakeholder engagement. She maintains a blog about women in leadership positions that some readers might find eye-opening in the ICANN CEO search context.
Both were considered CEO material three years ago, and both now have three years of ICANN experience to put on their job applications (if they choose to file them).
So why is Chehade leaving ICANN? The persistent rumors have him either being offered the job of his dreams elsewhere, or suffering a severe case of ICANN burnout.
But yesterday he left little doubt whether his next job, which it has been confirmed he already has lined up, would be better that his current one.
“[ICANN CEO] is a beautiful job. It is a fantastic job. It is better job that I’ve ever had, or will ever have I think. It is amazing. Lucky is the person who will take my place,” he said.
So, um, why quit?
“The next phase of ICANN requires a different person. Don’t go rehire Fadi. You don’t need another Fadi. I was there for a purpose, for a time,” he said. “I am a classic change agent CEO. I either build things from scratch… or I transform things. ICANN doesn’t need this now.”
Asked to comment on his biggest successes, Chehade deferred, saying his legacy was something to talk about at a different time.

Famous Four following .sucks playbook with premium pricing for brands?

New gTLD registry Famous Four Media has slapped general availability prices of $500 and up on domain names matching famous brands.
The company plans to shortly introduce eight “premium” pricing tiers, ranging from $200 a year to $10,000 a year.
The first to launch, on July 8, will be its “brand protection tier”, which will carry a $498 registry fee.
Famous Four told its registrars that the tier “will provide an additional deterrent to cyber-squatters for well-known brands ensuring that domain names in this tier will not be eligible for price promotions”.
The gTLDs .date, .faith and .review will be first to use the tiered pricing structure.
It’s not entirely clear what brands will be a part of the $498 tier, or how the registry has compiled its list, but registrars have been given the ability to ask for their clients’ trademarks to be included.
I asked Famous Four for clarification a few days ago but have not yet had a response.
While other registries, such as Donuts, used tiered pricing for GA domains, I’m only aware of one other that puts premium prices on brands: .sucks.
Vox Populi has a trademark-heavy list of .sucks domains it calls Market Premium — formerly Sunrise Premium — that carry a $1,999-a-year registry fee.
Unlike Vox Pop, Famous Four does not appear to be planning a subsidy that would make brand-match domains available at much cheaper prices to third parties.
Famous Four’s gTLDs have seen huge growth in the last month or two, largely because it’s been selling domains at a loss.
.science, for example, has over 300,000 registrations — making it the third-largest new gTLD — because Famous Four’s registry fee has been discounted to just $0.25 from May to July.
The same discount applies to .party (over 195,000 names in its zone) and .webcam (over 60,000).
Those three gTLDs account for exactly half of the over 22,000 spam attacks that used new gTLD domains in March and April, according to Architelos’ latest abuse report.
With names available at such cheap prices, it would not be surprising if cybersquatters are abusing these gTLDs as much as the spammers.
Will intellectual property owners believe a $498+ reg fee is a useful deterrent to cybersquatting?
Or will they look upon this move as “predatory”, as they did with .sucks?

Donuts makes private deal with wine-makers

Donuts inked a private side-deal with wine-making regions in order to launch the .wine and .vin new gTLDs
The company signed both Registry Agreements with ICANN late last week, after the wine regions and the European Union stopped complaining.
The EU and regions had filed Cooperative Engagement Process objections with ICANN, saying that Donuts should be forced to protect “geographic indicators” such as Napa Valley and Champagne.
CEPs are often precursors to Independent Review Process complaints, but both were dropped after Donuts came to a private deal.
“The CEP filed by the Wine Regions was withdrawn because we came to a satisfactory private arrangement with the Registry concerned, Donuts,” David Taylor of Hogan Lovells, who represented the wine-making regions, told DI.
Details of the deal have not been disclosed, but Donuts does not appear to have committed to anything that could create compliance problems with ICANN in future.
“It has been a successful negotiation between private parties that avoids policy precedents,” Taylor said. “There are no special changes to these registry agreements (e.g., no new PICs)”
PICs are Public Interest Commitments, enforceable addenda to Registry Agreements that oblige the registry to adhere to extra rules.
So are GIs protected in .wine or not? For now, Taylor won’t say.
“My view is that this is not a victory for either side of the GI debate,” he said. “This is a victory for the wine community (consumers and producers) and ultimately the new gTLD program.”

Grogan hopeful of content policing clarity within “a few weeks”

ICANN may be able to provide registrars, intellectual property interests and others with clarity about when domain names should be suspended as early as next month, according to compliance chief Allen Grogan.
With ICANN 53 kicking off in Buenos Aires this weekend, Grogan said he intends to meet with a diverse set of constituents in order to figure out what the Registrar Accreditation Agreement requires registrars to do when they receive abuse complaints.
“I’m hopeful we can publish something in the next few weeks,” he told DI. “It depends to some extent on what direction the discussions take.”
The discussions center on whether registrars are doing enough to take down domains that are being used, for example, to host pirated content or to sell medicines across borders.
Specifically at issue is section 3.18 of the 2013 RAA.
It requires registrars to take “reasonable and prompt steps to investigate and respond appropriately” when they receive abuse reports.
The people who are noisiest about filing such reports — IP owners and pharmacy watchdogs such as LegitScript — reckon “appropriate action” means the domain in question should be suspended.
The US Congress heard these arguments in hearings last month, but there were no witnesses from the ICANN or registrar side to respond.
Registrars don’t think they should be put in the position of having to turn off what may be a perfectly legitimate web site due to a unilateral complaint that may be flawed or frivolous.
ICANN seems to be erring strongly towards the registrars’ view.
“Whatever the terms of the 2013 RAA mean, it can’t really be interpreted as a broad global commitment for ICANN to enforce all illegal activity or all laws on the internet,” Grogan told DI.
“I don’t think ICANN is capable of that, I don’t think we have the expertise or resources to do that, and I don’t think the ICANN multistakeholder community has ever had that discussion and delegated that authority to ICANN,” he said.
CEO Fadi Chehade recently told the Washington Post that it isn’t ICANN’s job to police web content, and Grogan has expanded on that view in a blog post last week.
Grogan notes that what kind of content violates the law varies wildly from country to country — some states will kill you for blasphemy, in some you can get jail time for denying the Holocaust, in others political dissent is a crime.
“Virtually everybody I’ve spoken with has said that is far outside the scope of ICANN’s remit,” he said.
However, he’s leaving some areas open for discussion,
“There are some constituents, including some participants in the [Congressional] hearing — from the intellectual property community and LegitScript — who think there’s a way to distinguish some kinds of illegal activities from others,” he said. “That’s a discussion I’m willing to have.”
The dividing line could be substantial risk to public health or activities that are broadly, globally deemed to be illegal. Child abuse material is the obvious one, but copyright infringement — where Grogan said treaties show “near unanimity” — could be too.
So is ICANN saying it’s not the content police except when it comes to pharmacies and intellectual property?
“No,” said Grogan. “I’m saying I’m willing to engage in that dialogue and have that conversation with the community to see if there’s consensus that some activities are different to others.”
“In a multistakeholder model I don’t think any one constituency should control,” he said.
In practical terms, this all boils down to 3.18 of the RAA, and what steps registrars must take to comply with it.
It’s a surprisingly tricky one even if, like Grogan, you’re talking about “minimum criteria” for compliance.
Should registrars, for example, be required to always check out the content of domains that are the subject of abuse reports? It seems like a no-brainer.
But Grogan points out that even though there could be broad consensus that child abuse material should be taken down immediately upon discovery, in many places it could be illegal for a registrar employee to even check the reported URL, lest they download unwanted child porn.
Similarly, it might seem obvious that abuse reports should be referred to the domain’s registrant for a response. But what of registrars owned by domain investors, where registrar and registrant are one and the same?
These and other topics will come up for discussion in various sessions next week, and Grogan said he’s hopeful that decisions can be made that do not need to involve formal policy development processes or ICANN board action.

Barclays probably not breaching contract, says ICANN compliance chief

Barclays doesn’t seem to have violated its new gTLD registry agreements, despite admitting to criminal charges related to currency manipulation, according to ICANN’s top compliance executive.
Allen Grogan, chief contract compliance officer, told DI today that a “literal” reading of the Registry Agreements for .barclays and .barclaycard would not see the bank in breach.
“As far as I know we haven’t received a formal compliance complaint about it. If we received a complaint we would investigate it,” Grogan said.
“At first blush I wouldn’t see a clear-cut violation of the literal language of the agreement,” he said.
Barclays’ suitability to be a new gTLD registry has come under the spotlight in CircleID blog posts recently, first by domainer George Kirikos and then Internet Commerce Association counsel Phil Corwin.
All RAs contain a provision that allows ICANN to terminate the contract if any officer or director of the registry is convicted of a financially-related misdemeanor or any felony.
Barclays was one of five banks that recently fessed up to felony currency market fixing charges in the US, paying a combined $2.5 billion fine.
However, as Kirikos, Corwin and now Grogan have pointed out, the RA only talks about crimes committed by officers and directors, not the companies themselves.
Grogran pointed out that to hold a corporation accountable for its crimes long after the fact might be a bit excessive.
Criminal employees and directors can be fired, but a company cannot fire itself.
“Does that means for the next hundred years ICANN or no other corporation should do business with them?” he said.