First three Community Objections decided: DotGay and Google win but Donuts loses

The International Chamber of Commerce has delivered the first three Community Objection decisions in the new gTLD program, killing off one application and saving two others.
These are the results:
.gay
The objection filed by Metroplex Republicans of Dallas, a gay political organization, against DotGay LLC has failed.
The panelist, Bernhard Schlink, decided that Metrolplex lacked standing to file the objection, stating:

while the conservative segment, with which Metroplex claims association, is a segment of the clearly delineated gay community, it is not a clearly delineated community in and of itself. That some LGBTQ people hold conservative political views and vote for conservative candidates may bring them into a statistical category, but does not make them connect, gather, interact, or do anything else together that would constitute a community, or, that would make them publicly visible as one.

It was the only objection against this .gay application, meaning it can now proceed to later stages of the new gTLD process.
.fly
The objection was filed by FairSearch.org, a coalition of companies that campaigns against Google’s dominance of online markets, against Google’s .fly application.
The application was originally for a “closed generic” registry, but Google has since stated that it has changed its mind and run .fly with an open registration policy.
FairSearch lost the objection, despite ICC panelist George Bermann giving it the benefit of the doubt multiple times during his discussion on its standing to object.
Instead, Google prevailed due to FairSearch’s failure to demonstrate enough opposition to its application, with Bermann writing:

A showing of substantial opposition to an application is critical to a successful Objection. Such a showing is absent here.

He also decided that Google presented a better case when it came to arguing whether or not its .fly would be damaging to the community in question.
.architect
Finally, Donuts has lost its application for .architect, due to an objection by the International Union of Architects, which supports Starting Dot’s competing application for .archi.
Donuts had argued that UIA did not have standing to object because an “architect” does not always mean the kind of architect that designs buildings, which is the community the UIA represents. It could mean a software architect or landscape architects, for example.
But panelist Andreas Reiner found that even if the UIA represents a subset of the overall “architect” community, that subset was still substantial enough, still a community, and still represented by the string “architect”, so that it did have the standing to use the Community Objection.
It also did not matter that the UIA does not represent all the “structural architects” in the world, the panelist found. It represents enough of them that its opposition to .architect passes the “substantial” test.
He eventually took the word “architect” in its most common use — people who design buildings — in determining whether the UIA was closely associated with the community in question.
On the question of whether architects would be harmed by Donuts’ plan for .architect, the panelist noted that architects are always licensed for public safety reasons.
Here are some extracts from his decision, which seem important:

Beyond concerns of public safety, habitat for human beings is of essential importance in society, at the human-social level, at the economic level and at the environmental level
…
it would be compatible with the above references public interests linked to the work of architects and with the related consumer protection concerns, to allow the domain name “.architect” to be used by anyone other than “architects” who, by definition, need to be licensed
…
The use of the top-level domain “.architect” by non-licenced architects is in itself an abuse. This top-level domain refers to a regulated professional service. Therefore all safeguards must be adopted to prevent its use by a non-licensed person.
…
The top-level domain “.architect” raises the legitimate expectation that the related website is the webiste of a licensed architect (or a group of licenced architects). Correct information is essential to consumers visiting websites.

Basically, Reiner trashed Donuts long-standing argument in favor of blanket open registration policies.
He noted specifically that whether to allow a gTLD to proceed might be considered a free speech question, but said that free speech often has its limits, such as in cases of consumer protection.
Worryingly, one of the pieces of evidence that the panelist considered was the Governmental Advisory Committee’s Beijing communique, which contains the GAC’s formal advice against over 500 applications.

Trademark+50 coming in October

The controversial “Trademark+50” anti-cybersquatting service for new gTLDs is set to go live October 11 or thereabouts, ICANN announced last night.
Trademark+50 is the name given to a function of the Trademark Clearinghouse that enables trademark owners to obtain protection for strings that they’ve previously won at UDRP proceedings.
The service will be limited to 50 strings per trademark, with the total number of strings only limited by the total number of trademarks submitted.
ICANN said:

Rights holders may submit these domain name labels for association with existing Clearinghouse records as early as 11 October 2013. Once previously-abused labels have been verified, they will be integrated into the Trademark Claims service. ICANN expects this to occur by 18 October 2013, ahead of the earliest anticipated new gTLD Claims period.

In July at ICANN’s meeting in Durban, an IBM rep said that a Trademark+50 launch would be “difficult to reach before the middle of September”, which seems to have proven correct.
Pricing for Trademark+50, which we assume will entail a great degree of manual validation, does not appear to have been published yet.
Strings added to the IBM-run TMCH database under Trademark+50 will be eligible for Trademark Claims notifications, but not Sunrise periods, when new gTLDs launch.
Critics have repeatedly raised Trademark+50 as an example of ICANN going outside of its usual community-based policy-development processes in order to push through an unpopular mechanism.
Non-commercial users have criticized the system because it assumes that all strings won at UDRP are inherently cybersquatty, whereas the UDRP itself also requires the domain to have been used in bad faith.
Trademark owners have been able to submit their marks to the TMCH for several months, but Trademark+50 was a later addition to the new gTLD program’s rights protection mechanisms.

Angry Birds backing two Chinese-language gTLDs

The Finnish/Irish new gTLD applicant TLD Registry Ltd has signed two ICANN Registry Agreements, covering the Chinese strings .在线 (.online) and .中文网 (a phrase meaning “Chinese language website”).
The deals were signed yesterday, but the news is set to be formally announced in Beijing on Tuesday by the Finnish prime minister, Jyrki Katainen, who’s on a state visit to the country.
He’ll be joined by Peter Vesterbacka, chief marketing officer of Angry Birds maker Rovio Entertainment, which is supporting TLD Registry as the first announced member of its “founders program”.
The two new agreements mean ICANN has now contractual powers over more new gTLDs (19) than legacy ones (18).
TLD Registry CEO Arto Isokoski told DI this morning that 在线 and 中文网 are already extremely well-known and widely-used phrases on the Chinese internet.
“在线” is the direct translation of “online” and “中文网” is what Chinese web users instinctively type when they’re searching for the Chinese-language version of a foreign brand’s web site, he said.
“It surprises me as well that these were not contested,” Isokoski said. “These are the strings that Chinese users type in when they’re looking for web sites online.”
Both TLDs will be open to registrants anywhere in the world, though .中文网 seems to be particularly suited for brands from the ASCII parts of the world, looking to improve SEO in the country.
Isokoski said that the company hopes to take .在线 and .中文网 to market early next year. If the strings are delegated in early November, then general availability could start in mid-January, he said.
Depending on ICANN delays, the launch schedule may have to be moved back to February or March in order to avoid the “dead period” around Chinese New Year, which starts in late January, he said.
The most directly competitive gTLD would be .网址, an arguably superior string meaning roughly “website”, which is now out of contention and likely to sign its own contract soon.
Two other Chinese gTLDs, both owned by Donuts, have ICANN contracts already — .游戏 (games) and .企业 (business).
Isokoski said that TLD Registry hopes to have about 20 members of its founders program (included Rovio, which is Finnish but makes games wildly popular in China) and about 20 launch registrars.
Like other IDN gTLD registries, the company is hoping that its first-to-market advantage will give its marketing a lift due to the extra media interest.
TLD Registry is based in Ireland, near its back-end provider Afilias, but was founded by Finns. Afilias alum Pinky Brand is managing registrar relationships for the company.

Famous Four says that Demand Media’s .cam should be rejected

Demand Media’s application for .cam should be rejected because it lost a String Confusion Objection filed by .com registry Verisign, according to rival applicant Famous Four Media.
“The process in the applicant guidebook is now clear: AC Webconnecting and dot Agency Limited proceed to resolve the contention set, and United TLD’s application cannot proceed,” chief legal officer Peter Young told DI.
dot Agency is Famous Four’s applicant for .cam, which along with AC Webconnecting survived identical challenges filed by Verisign. United TLD is the applicant subsidiary of Demand Media.
Serious questions were raised about the SCO process after two International Centre for Dispute Resolution panelists reached opposition conclusions in the three .cam/.com cases last month.
Demand Media subsequently called for an ICANN investigation into the process, with vice president Statton Hammock writing:

String confusion objections are meant to be applicant agnostic and have nothing to do with the registration or use of the new gTLD.

However, Famous Four thinks it has found a gotcha in a letter (pdf) written by a lawyer representing Demand which opposed consolidation of the three .cam cases, which stated:

Consolidation has the potential to prejudice the Applicants if all Applicants’ arguments are evaluated collectively, without regard to each Applicant’s unique plan for the .cam gTLD and their arguments articulating why such plans would not cause confusion.

In other words, Demand argued that the proposed usage of the TLD should be taken into account before the ICDR panel ruled against it, and now it saying usage should not have been taken into account.
Famous Four’s Young said:

Whether or not one ascribes to the view that usage should not be taken into account, and we believe that it should (otherwise we would not have argued it), the fact is that United TLD were very explicit prior to the publication that usage should indeed be taken into account.

The SCO debate expanded yesterday when the GNSO Council spent some time discussing .cam and other SCO discrepancies during its regular monthly meeting.
Concerns are such that the Council intends to inform the ICANN board of directors and its New gTLD Program Committee that it is looking into the issue.
The NGPC, has “Update on String Similarity” on its agenda for a meeting on Tuesday, which will no doubt try to figure out what, if anything, needs to be done.

Five gTLDs fail the geo test, but .banque passes IE

Five new gTLD applications failed their Initial Evaluation this week after being ruled “geographic”, according to results just published by ICANN.
The big name failure is Tata Group, the $100 billion-a-year Indian conglomerate, which had its bid for .tata put on hold because (presumably) its name matches the name of a tiny Moroccan province.
TUI AG, a €17.5 billion-a-year Germany-based travel group, also failed to pass the geo test with its bid for .tui, which matches the name of province of Burkina Faso.
Both of these applications were highlighted in our July 2012 article “20 new gTLD applications that think they’re not geographic, but are”.
Guangzhou YU Wei Information Technology failed on geographic grounds with three applications which match the names of Chinese provinces: .深圳, .佛山 and .广州.
Under ICANN rules, if your string matches a name of an administrative region of a country, you need support or a letter of non-objection from that country’s government.
All three applicants now have Extended Evaluation to try again to secure this support.
Also today, Gexban’s application for .banque got a passing IE score. It’s uncontested but has outstanding Governmental Advisory Committee advice standing in the way of contracting with ICANN.
While ICANN formally closed its IE process last week, it’s still mopping up the stragglers. Today, 23 applications remain in Initial Evaluation.

No, ICANN isn’t moving to Switzerland

There’s a rumor going around this morning that ICANN is planning to up sticks from its US base in California and become subject to Swiss jurisdiction instead.
While this would be a huge change for ICANN, which has been tethered to the US government since its formation in 1998, it’s almost certainly not what’s happening.
The rumor emerged following CEO Fadi Chehade’s speech at the Asia Pacific Regional Internet Governance Forum in Korea yesterday, during which he talked about setting up a “legal structure” in Switzerland.
Addressing long-standing criticisms that ICANN is too US-centric, he discussed the recent creation of “hub” offices in Istanbul and Singapore, then said:

You heard me announce recently in Durban that ICANN, for the first time, is setting up a legal structure in Switzerland. That means that ICANN is going to seek to become an international organization that is serving the world, not just as a private corporation in California. These are important fundamental steps that we are exploring in order for ICANN to take a new global posture.

That ICANN wants a Swiss presence is not news. At the Durban meeting in July Chehade said publicly that ICANN had opened an “engagement center” in Geneva, headed by his senior adviser Tarek Kamel.
But the version of the Chehade quote doing the rounds on mailing lists today capitalizes “International Organization”, which arguably changes the meaning and makes his remarks seem more profound.
A capitalized “International Organization” can mean one of two legal structures: either an International Non-Governmental Organization or an Intergovernmental Organization.
That would, indeed, imply a change of jurisdiction. ICANN is currently, legally, a California non-profit corporation.
However, if Chehade just said “international organization” with no implied upper-case letters, it just means it’s an organization with offices and legal entities internationally.
I think this is closer to the truth, and so do People In A Position To Know whom I’ve run this by this morning.
It’s important to note that ICANN’s Affirmation of Commitments with the US government forces it to stay headquartered in the US:

ICANN affirms its commitments to: … remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community;

While Chehade has expansionist plans on a scale beyond any of his predecessors, it seems unlikely that these include breaking the AoC, incurring the wrath of the US government.
UPDATE: ICANN has provided DI with the following statement:

ICANN is not currently planning to set up a headquarters office in Switzerland. We will have an engagement center in Geneva, along with others scattered around the world but our three main hubs, as Fadi has previously announced, will be in L.A., Istanbul and Singapore.

Teething troubles for TMCH testing

With the first new gTLD delegation likely just a matter of weeks away, registries and registrars are reporting problems getting access to the Trademark Clearinghouse for testing purposes.
ICANN launched an OT&E (operational test and evaluation environment) for companies to test their systems against the IBM-run TMCH back-end last week, but few have so far managed to get in.
Some registrars have been denied access because they have not yet signed the 2013 Registrar Accreditation Agreement.
While that’s a prerequisite for selling new gTLD domains, some say it should not also be a barrier to testing their TMCH implementation before they decide to sign on the dotted line.
At least one registrar that has actually signed the 2013 RAA also says it has been denied access.
Meanwhile, several back-end applicants and back-end registry providers have reported that they too have been told they can’t access the OT&E until they’ve signed the 2013 RAA.
Registries are of course not obliged to sign any RAA in order to act as registries.
Others say they’ve received the credentials needed to access the OT&E but that they don’t work.
ICANN has blamed a mix-up in its workflow for the registries getting blocked, something it expects to get fixed quickly. It’s also looking into the complaints from registrars.
The TMCH is the database that registries and registrars will use to validate trademarks during sunrise periods, and to check for possible cybersquatting during the first few months of launch.

Public Suffix List to get monthly new gTLD updates

New gTLDs are set to be added to the widely used Public Suffix List within a month of signing an ICANN registry agreement, according to PSL volunteer Jothan Frakes.
This is pretty good news for new gTLD registries.
The PSL, maintained by volunteers under the Mozilla banner, is used in browsers including Firefox and Chrome, and will be a vital part of making sure new gTLDs “work” out of the box.
If a TLD doesn’t have an entry on the PSL, browsers tend to handle them badly.
For example, after .sx launched last year, Google’s Chrome browser returned search results instead of the intended web site when .sx domain names were typed into the address/search bar.
It also provides a critical security function, telling browsers at which level they should allow domains to set cookies.
According to Frakes, who has been working behind the scenes with other PSL volunteers and ICANN staff to get this process working, new gTLDs will usually hit the PSL within 30 days of an ICANN contract.
Due to the mandatory pre-delegation testing period, new gTLDs should be on the PSL before or at roughly the same time as they are delegated, with plenty of time to spare before they launch.
The process of being added to the PSL should be fairly quick for TLDs that intend to run flat second-level spaces, according to Frakes, but may be more complex if they plan to do something less standard, such as selling third-level domains, for example.
Browser makers may take some time to update their own lists with the PSL updates. Google, with its own huge portfolio of applications, will presumably be incentivized to stay on the ball.

Economist replaces de La Chapelle on ICANN board

ICANN’s board of directors is to see one new member in November, with economist Bruno Lanvin replacing former French civil servant Bertrand de La Chapelle.
The changes were among several appointments announced by ICANN’s Nominating Committee yesterday.
NomCom has decided to keep previous appointees Cherine Chalaby, who’s head of the New gTLD Program Committee, and Erika Mann, the former MEP who now runs Facebook’s Brussels office.
Lanvin is currently executive director of the European Competitiveness Initiative and the Global Indices projects at INSEAD, a business school, but he spent 20 years of his career with the United Nations.
Outgoing director de La Chapelle was France’s Governmental Advisory Committee representative before his appointment to the board in 2010. He, Mann and Chalaby have initial three-year terms ending in November.
It’s not known if de La Chapelle, one of ICANN’s most vocal and active directors, had nominated himself for a second term.

Only 29 gTLD applications still in IE as 101 pass and nine fail

ICANN has published what was scheduled to be its final week of Initial Evaluation results for new gTLD applications.
It was a bumper week for results as evaluators mopped up stragglers that had previously been asked to provide more information via Clarifying Questions. There were 101 passes and 9 failures.
There are still 29 applications without published results. An ICANN spokesperson said that the results for these will continue to be delivered on a weekly basis as usual until all are done.
One hundred and one applications passed. These ones:

.origins .free .banamex .sex .dog .prof .rockwool .weather .farmers .itv .ford .hkt .inc .phd .blog .kid .esq .memorial .ira .art .gmbh .pccw .music .citi .bms .live .game .news .kone .shop .able .llc .frontier .flir .watches .tires .love .dds .ericsson .dunlop .volvo .fujitsu .telecity .movie .fidelity .mutuelle .stockholm .xperia .search .lupin .med .jewelry .kddi .tires .monster .news .lincoln .book .tube .mint .clinique .buy .goodyear .lego .seven .fresenius .richardli .llp .csc .ses .ftr .ikano .gallup .saxo .mutualfunds .baby .progressive .firestone .corp .music .movie .srl .retirement .seat .mba .pars .islam .nowruz .boston .persiangulf .tci .design .rip .sucks .shia .ally .style .halal .hotel .lifeinsurance .shriram

The failures, which are all “Eligible for Extended Evaluation” are:

• .livestrong (Lance Armstrong Foundation) — failed on both financial and technical questions. The first I recall seeing to be pushed into EE based on its proposed Registry Services. Also failed a drug test.
• .unicorn — Scored only 5 out of the required 22 points on its technical evaluation, easily the worst score I can recall seeing. Its back end provider is Gransy sro, a Czech-based registrar.
• .home (Dothome Ltd) — this is the .home bid Defender Security bought from CGR E-Commerce. The same one that filed all the Legal Rights Objections against other .home applicants. It failed its financial evaluation, but not because it failed to file its financial statements, which is usually the case.
• .smart (Smart Communications, Inc) — a dot-brand that failed technical.
• .art (EFLUX.ART, LLC) — failed technical and financial.
• These applications didn’t provide financial statements, so failed the financial questions: .transunion (Trans Union LLC), .pnc (PNC Domains LLC), .cipriani (Cipirani Hotel), .jcp (JCP Media Inc)