Ralph Lauren can’t have .polo, panel rules

Ralph Lauren’s application for the dot-brand .polo is likely at an end, after the International Chamber of Commerce ruled that it would infringe the rights of polo players.
The Community Objection to the gTLD was filed by the US Polo Association, the governing body of the sport in the US, and supported by the Federation of International Polo, along with seven national and 10 regional US-based polo associations.
The FIP letter was crucial in ICC panelist Burkhard Hess’ decision to find against Ralph Lauren, persuading him that there was “substantial opposition” from a “clearly delineated” polo-playing community.
The word “polo” was often used in straw man arguments when the new gTLD program and its objection mechanisms were being designed. Who gets .polo? Ralph Lauren? Volkswagen? Nestle? The sport?
Well, now we know: according to the ICC, the sport will probably trump any dot-brand.
The precedent might be bad news for Donuts and Famous Four Media, which are facing Community Objections from the international governing bodies of rugby and basketball on .rugby and .basketball.
However, none of those applications are for dot-brand spaces.
Under the Community Objection rules, the objector has to show that the gTLD would harm its interests is delegated.
In the case of .polo, the panelist found detriment largely due to the fact that Ralph Lauren’s plan was for a single-registrant space from which the sports associations would be excluded.
With open, unrestricted .basketball and .rugby applications, it’s likely to be much harder for the objectors to prove that the gTLDs would damage the sport.

.shopping ruled confusingly similar to .shop

An International Centre for Dispute Resolution panelist has ruled that .shop and .shopping are too confusingly similar to coexist on the internet.
The panelist was Robert Nau, the same guy who ruled that .通販 and .shop are confusingly similar.
Again, the objector is .shop applicant Commercial Connect, which filed String Confusion Objections against almost every new gTLD application related to buying stuff online.
The defendant in this case was Donuts, via subsidiary Sea Tigers LLC.
Here’s the key part of the decision:

the concurrent use of “shopping”, the participle, and the root word “shop”, in gTLD strings will result in probable confusion by the average, reasonable Internet user, because the two strings have sufficient similarity in sound, meaning, look and feel. The average Internet user would not be able to differentiate between the two strings, and in the absence of some other external information (such as an index or guidebook) would have to guess which of the two strings contains the information the user is looking to view.
The adopters of the applicable standard of review for string confusion hypothetically could have allowed an unlimited number of top level domain names using the same root, and simply differentiate them by numbers, e.g., <.shop1>, <.shop2>, <.shop3>, etc., or other modifiers, including pluralization, or other similar variations of a root word, or other modifiers before or after the root word. While that might allow for increased competition, as argued by Applicant, it would only lead to a greater level of confusion and uncertainty among average, reasonable Internet users. Accordingly, the Applicant’s argument that the concurrent use of a root word and its participle version in a string increases competition is not persuasive in this context, and is rejected.

So far, Commercial Connect has lost 15 of the 21 SCOs it filed, against strings as weird as .supply and .shopyourway. Four cases remain open.
There are nine applicants for .shop, including Commercial Connect. Uniregistry has also applied for .shopping, but did not receive an objection.

Name collision block-lists to be published this week

ICANN will begin to publish the lists of domains that new gTLD registries must block at launch as early as this week, according to an updated name collisions plan released last night.
Registries that have already signed contracts with ICANN will be given their block-lists “before the end of this week”, ICANN said.
Registries that were not able to sign contracts because they’d been given an “uncalculated risk” categorization will now be invited, in priority order, to contracting.
The base Registry Agreement itself has been updated — unilaterally — to include provisions requiring registries to block second-level names deemed risky when they are delegated.
For each contracted gTLD, ICANN will provide what it’s calling a SLD Collision Occurrence Assessment, which will outline the steps registries need to take to mitigate their own collision risk.
It is also expected to contain a list of SLDs that have been seen on the Day In The Life Of The Internet data sets, collected from root server operators over 48-hour periods between 2006 and 2013.
Using previous years’ DITL data is news to me, and could potentially greatly expand the number of SLDs — already expected to be in the thousands in many cases — that registries are obliged to block.
“Most” new gTLD applicants are expected to be eligible for what ICANN calls an “alternative path to delegation”, in which the registry simply blocks the SLDs on an ICANN-provided list, gets delegated, and deals with the SLD Collision Occurrence Assessment at a later date.
Here’s how ICANN described the timetable for this:

For Registry Operators with executed registry agreements the Assessments and SLD lists will be posted to the specific TLD’s registry agreement page on the ICANN website. The first of these will be available before the end of this week.
In the coming weeks ICANN will post the alternative path eligibility assessments and SLD lists for all applied-for gTLDs.

In other words, if you haven’t already signed a contract there’s not yet a firm date on when you’ll find out how many — and which — names you’re expected to block, or even if you’re eligible for the alternative delegation path.

Trademark+50 costs $75 to $200 a pop

The Trademark Clearinghouse has started accepting submissions under the new “Trademark+50” service, with prices starting at about $76.
It’s now called the Abused DNL (for Domain Name Label) service.
It allows trademark owners to add up to 50 additional strings — which must have been cybersquatted according to a court or a UDRP panel — to each record they have in the TMCH.
To validate labels found in court decisions, it will cost mark owners $200 and then $1 per abused string. For UDRP cases, the validation fee is $75.
If you’re on the “advanced” (read: bulk) fee structure, the prices drop to $150 and $50 respectively.
To add a UDRP case covering 25 domains to the Abused DNL would cost $100 in the first year and $25 a year thereafter, for example.
Adding a trademark to the TMCH costs between $95 and $150 a year, depending on your fee structure.

Second dot-brand gets ICANN contract

CITIC Group has signed a new gTLD Registry Agreement with ICANN, the second dot-brand to do so.
The Chinese financial services giant signed on the dotted line for .中信, the Chinese-script version of its company name.
The company has also applied for .citic, but that application is a little further down ICANN’s processing queue.
A little over two weeks ago, Samsung became the first dot-brand to enter into an ICANN registry contract.
CITIC becomes the 58th new gTLD with a contract, though 613 have been invited to contracting.
UPDATE: Oops! Thanks to the reader who alerted me to the fact that .中信 is actually the third dot-brand with a contract. The gTLD .otsuka (which is a Japanese pharmaceuticals company and not, as I thought, a geographic region) was in fact the second. I regret the error.

What does Neelie Kroes know about multistakeholderism?

European Commission vice president Neelie Kroes wants “your ideas on how the Internet should be governed and what Europe’s role should be.”
In a survey launched last week, Kroes, who has special responsibility for the “digital agenda” in Europe, criticized ICANN’s “multi-stakeholder” process.
She solicited suggestions on how governments should be treated within ICANN, and asked “How can a move from unilateral to multilateral accountability be realised?”
Kroes said on her blog (link in original):

we also must have a clearer view of what we mean when we speak of “multi-stakeholder processes”. I worry that without a clear definition, everyone will claim that their decision processes are inclusive and transparent, when in practice they are not – as was shown recently, when the Governmental Advisory Committee of ICANN pressed on regardless – in spite of the EU’s legitimate concerns on new domain names.

Let’s parse this.
On the one hand, Kroes is stating that ICANN’s process is not “inclusive and transparent”.
On the other, she’s linking to her own demands for special privileges for the European Commission in the debate over whether wine producers need special protections in the new gTLDs .wine and .vin.
I reported on Kroes letter a month ago.
As the letter and the public record makes plain, the GAC had originally asked ICANN for more time in order to consider whether the .wine protections were warranted.
In the end, the GAC was unable to reach a consensus on the matter and advised ICANN accordingly.
With no GAC consensus, ICANN has no mandate to act.
But Kroes wants ICANN to delay the .wine and .vin applications anyway, based on little more than the European Commission’s unilateral demands.
Is her definition of a “multi-stakeholder” process one in which individual governments get to override the consensus of dozens of governments? It certainly looks that way.
And it wouldn’t be the first time Kroes has tried to usurp the multi-stakeholder process in order to get what she wants.
Back in June 2011, she called for ICANN to be reformed because she didn’t like the fact that ICANN did not accept all the GAC’s advice when it approved the new gTLD program.
A month earlier, she privately wrote to the US Department of Commerce — which controls the DNS root server — to ask that it refuse to delegate the recently approved .xxx gTLD.
That would have been an unprecedented and worrying move by Commerce, and naturally it declined.
But the fact that Kroes even asked makes me wonder how serious she is about “multistakeholderism”.
It’s a newish term, poorly defined, but reason dictates that it means you can’t always get what you want.
Kroes blog post is available here. More information about her call for comments can be found here.

Reconsideration is not an appeals process: ICANN delivers another blow to Amazon’s gTLD hopes

Amazon has lost its appeal of a ruling that says its applied-for new gTLD .通販 is “confusingly similar” to .shop, with ICANN ruling that its Reconsideration mechanism is not an appeals process.
The e-commerce giant lost a String Confusion Objection filed by .shop applicant Commercial Connect in August, with panelist Robert Nau ruling that the two strings were too confusing to co-exist.
That’s despite one of the strings being written in Latin script and the other Japanese. The ruling was based on the similarity of meaning: 通販 means “online shopping”.
Amazon immediately filed a Reconsideration Request with ICANN.
Days earlier, Akram Atallah, president of ICANN’s Generic Domains Division, had described this process as one of the “avenues for asking for reconsidering the decision”.
Atallah was less clear on whether Reconsideration was applicable to decisions made by third-party panels — the new gTLD program’s Applicant Guidebook contains conflicting guidance.
ICANN’s Board Governance Committee, which handles Reconsideration Requests, has now answered that question: you can ask for Reconsideration of a new gTLD objection ruling, but you’ll only win if you can prove that there was a process violation by the panel.
In its decision, the BGC stated:

Although Commercial Connect’s Objection was determined by a third-party DRSP, ICANN has determined that the Reconsideration process can properly be invoked for challenges of the third-party DRSP’s decisions where it can be stated that either the DRSP failed to follow the established policies or processes in reaching the decision, or that ICANN staff failed to follow its policies or processes in accepting that decision.

That’s moderately good news as a precedent for applicants wronged by objections, in theory. In practice, it’s likely to be of little use, and it was of no use to Amazon. The BGC said:

In the context of the New gTLD Program, the Reconsideration process does not call for the BGC to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints.
…
As there is no indication that either the ICDR or the Panel violated any policy or process in accepting and sustaining Commercial Connect’s Objection, this Request should not proceed. If Amazon thinks that it has somehow been treated unfairly in the process, and the Board (through the NGPC) adopts this Recommendation, Amazon is free to ask the Ombudsman to review this matter.

While the BGC declined to revisit the substance of the SCO, it did decide that it’s just fine for a panelist to focus purely on the meaning of the allegedly confusing strings, even if they’re wholly visually dissimilar.

The Panel’s focus on the meanings of the strings is consistent with the standard for evaluating string confusion objections. A likelihood of confusion can be established with any type of similarity, including similarity of meaning.

In other words, Nau’s over-cautious decision stands: .通販 and .shop will have to enter the same contention set.
That’s not great news for Amazon, which will probably have to pay Commercial Connect to go away at auction, but it’s also bad news for increasingly unhinged Commercial Connect, whose already slim chances of winning .shop are now even thinner.
Commercial Connect had also filed a Reconsideration Request around the same time as Amazon’s, using the .通販 precedent to challenge a much more sensible SCO decision, which ruled that .shop is not confusingly similar to .购物, Top Level Domain Holdings’ application for “.shopping” in Chinese.
The BGC ruled that the company had failed to adequately state a case for Reconsideration, meaning that this objection ruling also stands.
The big takeaway appears to be that the BGC reckons it’s okay for objection panels to deliver decisions that directly conflict with one another.
This raises, again, questions that have yet to be answered, such as: how do you form contention sets when one string has been ruled confusingly similar and also not confusingly similar to another?

ITU says numeric .tel domains “may be confusing”

The International Telecommunication Union has warned ICANN that numeric .tel domain names, due to be released by Telnic tomorrow, “may confuse customers or cause undue conflicts”.
In a letter to ICANN, Malcolm Johnson, director of the ITU’s Telecommunication Standardization Bureau, said that there’s a risk that numbers-only .tel name could be confused with the E.164 numbering plan.
Johnson asked ICANN to explain how these numbers will be allocated and used:

ITU must express its concern about TELNIC’s recent announcement launching an “all numeric .tel domains” service from 15 October 2013. This raises a number of policy, legal, and practical implications on the potential usage of all-digit strings, not only under .TEL domain, but also under any future telephony-related new gTLDs
…
We are seeking this clarification as the digit strings appear similar to telephone numbers and could be used in a manner similar to telephone numbers, which may confuse customers or cause undue conflicts arising from their use.

E.164 is the standard for phone numbers worldwide. The ITU has been angsty about the potential for clashes ever since .tel was first proposed back in 2000.
Indeed, Telnic promised when it applied in 2003 not to allow numbers in .tel, precisely in order to calm these fears.
But when it asked for this self-imposed ban to be lifted in 2010, the ITU didn’t have anything to say (at least, it did not respond to ICANN’s public comment period).
Read Johnson’s letter here (pdf).

DotGreen calls it quits with “impossible” gTLD auction looming

DotGreen, the first public and easily most visible applicant for the new gTLD .green, has withdrawn its application, saying it has become “impossible” to continue.
In a statement sent to DI tonight, founder and CEO Annalisa Roger said:

While DotGreen supported the New gTLD program, we believe we exhausted all options within the framework of the New gTLD applicant guidebook and the multi-stakeholder model for procuring .green management. DotGreen remains locked in contention facing an auction among three registry competitors from the Internet industry. Unfortunately it is impossible for DotGreen to proceed within these circumstances.
Today we withdrew DotGreen Community, Inc.’s application for the .green TLD.

DotGreen was founded in 2007 and had built up a small following of supporting environmental organizations. A charitable organization, the plan was to use the proceeds from the registry to fund worthy projects.
A prominent applicant from well before the ICANN application window opened, it held regular eco-themed events during ICANN meetings and even recruited its CFO/COO, Tim Switzer, from its back-end provider, Neustar.
(Switzer is chair of the New gTLD Applicants Group, NTAG, but is expected to resign as a result of the withdrawal.)
But it’s facing competition for .green from portfolio applicants Demand Media, Afilias, and Top Level Domain Holdings.
“It is tough for a single-string applicant,” Roger said. “An auction, sorry, it’s not the appropriate scenario for the .green TLD for several reasons. It really the undermines the authenticity and the faith that the community has put in us and the multi-stakeholder model.”
There’s no way the company could win at auction against three big portfolio applicants, she said.
Despite the company name, DotGreen Community’s application was not a “Community” application under ICANN rules and the only way out of contention was going to be private settlement or auction.
It also faced the uncertainty of Governmental Advisory Committee advice, which had classified the string as requiring extra safeguards for “consumer protection” purposes, causing indefinite delays.
It seems the final decision was financial — the cost of delays and an auction too much for the start-up to bear. It’s a pity really — there was some genuine enthusiasm for the cause behind this bid.
The .green gTLD will now go to which one of the remaining three applicants stumps up the most cash at auction.

More Extended Evaluation passes this week

Four new gTLD applications passed Extended Evaluation this week, and two that were stuck in Initial Evaluation finally made it through, ICANN just revealed.
The Extended Evaluation successes were DotPay’s application for .pay, Commercial Connect’s application for .shop, CompassRose.life’s application for .life and GED Domains’ application for .ged.
The dot-brands .adac (Allgemeiner Deutscher Automobil-Club) and .jio (Affinity Names) passed IE.
Commercial Connect is notable for being 2000-round applicant trying again. It failed on its technical evaluation first time through.