ICM hires Fausett to help with YouPorn antitrust case

ICM Registry has hired new lawyers to help it fend off the antitrust lawsuit filed against it by YouPorn owner Manwin Licensing.
Gordon & Rees senior partner Richard Sybert is taking over as lead counsel in the case, which relates to the launch of .xxx last year.
Notably, the new team includes long-time ICANN legal expert Bret Fausett of Internet.Pro, who represented the Coalition For ICANN Transparency in its antitrust case against ICANN and Verisign.
That’s a bit of a coup for ICM. Manwin’s recent legal arguments have relied heavily on the antitrust precedents Fausett helped set in the CFIT case.
Gordon & Rees replaces Wilmer Cutler Pickering Hale and Dorr as ICM’s outside counsel, due to the recent departure of Wilmerhale’s ICANN guru and ICM defender, Becky Burr.
Burr joined Neustar as its chief privacy officer in May.
Manwin sued ICM and ICANN last October, arguing that the launch of .xxx was little more than a shake-down.
Earlier this month, a California District Court judge ruled that ICANN is not immune from competition law and that the litigation can proceed.
The case will turn in part on the question of whether there’s a market for “defensive registrations” under competition law and whether ICANN and ICM illegally exploited it.

Melbourne IT holding new gTLD trademarks summit

Melbourne IT will hold a half-day conference on trademark protection in new gTLDs next month in Washington DC.
Google, Microsoft, Donuts, and the Association of National Advertisers are among those expected to take part in the discussion.
The meeting follows on from Melbourne IT’s recent anti-cybersquatting proposal, which calls for stronger protections for brands that are frequent targets of trademark infringement.
The panel includes many familiar faces from ICANN meetings. Applicant interests are represented, albeit by a minority of the panelists.
It will be moderated by Melbourne IT chief strategy officer (and ICANN vice-chair) Bruce Tonkin. Here’s the full line-up:

Andrew Abrams, Trademark Counsel, Google
James L. Bikoff, Partner, Silverberg, Goldman & Bikoff
Steve DelBianco, Executive Director, NetChoice and Vice Chair Policy Coordination, ICANN GNSO Commercial Business Users Constituency
Dan Jaffe, Group EVP Government Relations, Association of National Advertisers
Jon Nevett, Co-Founder, Donuts
Russell Pangborn, Associate General Counsel – Trademarks, Microsoft
Craig Schwartz, General Manager – Registry Programs, BITS/The Financial Services Roundtable
Brian J. Winterfeldt, Partner, Steptoe & Johnston and ICANN GNSO Counselor (Intellectual Property Constituency)

The event starts at 1.30pm local time at the Capital Hilton in DC on September 18. An RSVP is needed. There’s no official word on remote participation yet.

The .patagonia problem

Argentina has escalated its complaint with ICANN about the new gTLD application for .patagonia.
Ambassador Alfredo Morelli of the country’s Ministry of Foreign Affairs has written to ICANN’s leadership to let them know that .patagonia “should not be used as a closed brand gTLD”.
An American clothing company that goes by the name of Patagonia Inc has applied for .patagonia, which it intends to use as a dot-brand, but Patagonia is also a region of South America.
Argentina’s Governmental Advisory Committee representative told ICANN’s board in Prague this June that the government would not stand for a geographic term for part of its country being used in this way.
But Argentina has a problem.
The new gTLD program rules, as spelled out in the Applicant Guidebook, give special protection to geographic strings, but only if they appear on certain lists.
Rather than create its own list of geographic strings, ICANN instead deferred to established international standards, such as ISO 3166.
Patagonia, as far as I can tell, does not appear on any of these lists. (The DI PRO database compares all applied-for strings against protected geographic names.)
While it’s undoubtedly the name of a region, covering parts of Argentina and Chile, it does not appear to be the name of the kind of administrative division covered by ISO 3166-2.
Judging by the Applicant Guidebook, ICANN’s Geographic Names Panel would therefore not designate .patagonia as geographic and the applicant would not have to secure government support for its bid.
It’s not clear from the Guidebook how much flexibility, if any, the panel will get to make subjective decisions with edge cases like this.
However, so much of the program that had been thought finalized is today apparently still open for negotiation that I wouldn’t be surprised if the rules are changed or reinterpreted.
While the .patagonia application has so far attracted almost 300 negative comments from internet users, it is not the only dot-brand to ruffle feathers in Argentina.
There has been a smaller outcry over the Commonwealth Bank of Australia’s application for .cba, which apparently matches the abbreviation of the Argentinian Province of Cordoba.
The string “CBA” does not appear to be protected by the Applicant Guidebook either, and I’ve not seen any official concerns raised by governments yet.
I think there’s a strong chance the .patagonia application is dead, even if it is not officially deemed geographic.
The GAC will almost certainly object, and even if the objection does not have consensus the ICANN board will have a big reason to reject the bid.

New gTLD typo policy coming today?

ICANN’s board-level new gTLD program committee may vote today on a policy for enabling new gTLD applicants to correct errors in their applications.
Many of the 1,930 applications contain mistakes of varying degrees.
Some are obvious, such as typos in the applied-for string — .dotafrica springs to mind — and copy-paste errors made by large portfolio applicants that reference strings in the wrong application.
The trick for ICANN is figuring out which change requests are genuine while excluding attempts to game the system in light of new competitive information emerging post-Reveal Day.
According to an update issued last night, ICANN staff have come up with a set of seven criteria to decide whether any of the dozens of changes that have been requested should be permitted.
The criteria, which have not yet been revealed, are subject to approval, ICANN said.
But the ICANN board of directors is due to meet today, and it seems likely that its new gTLD program committee — made up of non-conflicted directors — will also have a session.
It’s quite possible that the criteria will be rubber-stamped today and published later this week.
ICANN also said last night that it plans to overhaul its new gTLD microsite shortly to make information easier to find, which will be welcomed by many applicants and observers.
The Clarifying Questions pilot, a test-run for a more formal process later this year, has also started. I understand the 50 selected applications received their questions late last week.
Another webinar for applicants has also been scheduled for next week.

Why domain names need punctuation

ICANN wants to know whether it should formally ban “dotless” domain names in the gTLDs for which it oversees policy.
While the Applicant Guidebook essentially prohibits registries using their new gTLDs without dots, there’s not yet a hard ban in the template Registry Agreement.
But that could change following a new ICANN public comment period.
A dotless domain might appear in a browser address bar as http://tld or, with more modern browsers, more likely just tld. A small number of ccTLDs already have this functionality.
To make it work, TLDs need to place an A record (or AAAA record for IPv6) in the root zone. This is known as an apex A record, which the Applicant Guidebook says ICANN will not permit.
The result, IANA root zone manager Kim Davies told us in July 2011, is a “default prohibition on dotless domains”.
Davies could not rule out apex A/AAAA records entirely, however. Specific requests for such functionality might be entertained, but would likely trigger an Extended Evaluation.
ICANN’s Security and Stability Advisory Committee is of the opinion that dotless gTLDs should not be permitted on various security grounds, including the fact that lots of software out there currently assumes a domain without a dot is a trusted host on the local network.
You can read the SSAC report here.
Dotless domains would also mess up browsers such as Chrome, which have integrated address/search bars; when you type “loreal” do you intend to search for the brand or visit its TLD’s web site?
But a far more intuitive, non-technical argument against dotless domains, as CentralNic’s Joe Alagna noted in his blog over the weekend, is that they do not pass the cocktail party test.
It’s hard enough trying to communicate the address “domainincite.com” across a noisy cocktail party as it is, but at least the dot immediately informs the listener that it’s a domain name.
Without dots, are we even talking about domain names any more?
The first phase of the new comment period runs until September 23. We understand that, depending on responses, a new ban on dotless domains could be introduced to the standard new gTLD registry agreement and possibly even added to legacy registry agreements in future.

Half of registrars “not sure” about new gTLDs – survey

About half of domain name registrars are still not sold on the idea of new generic top-level domains, according to the results of a small Nic.at report.
The Austrian ccTLD registry commissioned a survey of 220 Austrian companies, 32 .at registrars and 32 creative agencies about the possible impact of new gTLDs.
Nic.at said:

Overall, the industry is approaching the topic of the incoming top level domains with muted enthusiasm: at present around half of registrars are not sure whether they are going to offer their customers the new extensions.

A quarter of the surveyed marketing agencies reckoned internet users will take to new gTLDs, but only 12% of registrars were as confident, according to the report.
The agencies seemed to be more interested in domains than social media, however. Only 12% said that their social media focus made them unaware of the gTLD expansion.
Read the full report in PDF format here.
As well as managing .at, Nic.at is acting as the named registry back-end for 12 new gTLD applications, mostly German.

Delinquent top 20 registrar not delinquent after all

China’s largest domain name registrar isn’t shirking its ICANN fees, despite previous allegations to the contrary.
Xin Net, which has over 1.6 million gTLD domains under management, received a breach notice from ICANN last month which stated that the company was $2,000 in arrears with its payments.
The company was given until August 22 to correct the problem or risk losing its accreditation.
But in a subsequent compliance notice ICANN admitted that “due to an error the registrar’s account reflected a delinquent balance”.
The admission was buried deep in the notice and not immediately obvious to anyone browsing ICANN’s compliance pages.
The original notice also alleged a breach of the Inter-Registrar Transfer Policy with respect to the domain names rongzhu.net, qsns.net and zuixincn.com, which was not an error.
ICANN posts breach notices to its web site fairly regularly — 84 of them since mid-2008 — and more often than not they allege failure to pay fees in addition to other problems.

Refunds uncertain as .nxt says sorry for cancelation

It’s not yet clear whether people who paid for tickets for the .nxt conference will get full refunds.
In an apologetic email sent to attendees last night, organizer Kieren McCarthy said that .nxt is “trying to recoup” money already paid to the conference venue. The email states in part:

For a number of reasons – the most significant being the fact that the ICANN process is still in flux – we were not able to get the number of attendees or sponsors needed.
Having communicated with a large number of people that the conference was directly aimed at, the conclusion would appear to be: right idea, wrong time. The conference was designed as a meeting place for a new industry to meet and interact. It is now clear that that effort was premature.
Unfortunately that does not resolve the fact that you are currently out of pocket, whether through a conference ticket, hotel room or flight to London.
.Nxt is currently trying to recoup money we have paid to the hotel venue so we are in a position to reimburse at least some of those costs. We will keep in touch with any developments.

Fewer than 100 people were registered for the $950-a-ticket three-day event, .nxt said. The first two conferences, held in San Francisco last year, attracted closer to double that number.
The company plans to offer some of its planned sessions online instead, according to the email and a statement on the conference web site.
McCarthy is currently calling would-be attendees to explain the situation. Many have been understanding, according to the email.
Some attendees have told us they want full refunds for their tickets and hotel rooms, when the hotel was booked via .nxt. Recouping money spent on airfare is a different matter, of course.
The conference, which also left some attendees out of pocket when it was postponed in June, is unlikely to return.

Fight breaks out over .kiwi

New Zealand country-code manager InternetNZ has approved the creation of .kiwi.nz, setting the stage for a battle over the proposed new gTLD .kiwi.
InternetNZ announced the new second-level domain today. It’s designed to “increase choice” for New Zealanders who want to register their personal names as domain names.
But it stands to clash with .kiwi, a new gTLD applied for by Dot Kiwi Ltd, a New Zealand subsidiary of a Canadian company, which has partnered with Minds + Machines on the bid.
Dot Kiwi, which had objected to the .kiwi.nz domain, has branded InternetNZ’s move “dissappointing and lacking in common sense”, and suggested it is an attempt to capitalize on .kiwi’s advertising.
The applicant said in a statement:

Our opposition to InternetNZ’s confusing introduction of .kiwi.nzis well documented in repeated submissions we have made to them. Those submissions have been ignored. There will now be widespread confusion with the .kiwi.nz domain and the well-advertised forthcoming launch of the .kiwi domain.

But InternetNZ president Frank March said in a press release that the policy used to approve .kiwi.nz does not consider the possibility of confusion with proposed new gTLDs:

The policy for evaluating a new second-level domain takes into account existing second-level domains in .nz but not possible future changes, such as direct registration under .nz (which is currently being consulted on) or new generic Top Level Domains that may or may not be introduced at some point in the future.

The creation of the new second-level domain does not appear to give InternetNZ leverage to object to .kiwi, under a strict reading of the ICANN Applicant Guidebook.
For ccTLDs to file a String Confusion Objection against a new gTLD application, they must assert confusion with the TLD; the objection does not appear to cover 2LDs.
To date, there has been only one public comment filed with ICANN about .kiwi on confusion grounds.
Kiwis will get an opportunity to vote with their wallets, it seems.
Registrations under .kiwi.nz are expected to open September 11, but under InternetNZ policy .kiwi.nz will not actually go live until a minimum threshold of 500 domains has been passed, the company said.

Confirmed: .nxt conference canceled

The .nxt conference on new gTLDs has indeed been canceled, according to organizer Kieren McCarthy.
The show was expected to run next week, August 29-31, in London, following two successful events in San Francisco last year.
It was originally expected to run in June, but was postponed in May due to ICANN-related program delays.
I had planned to hold off posting the news until I had the full details, but I’ve received several emails this morning from people wondering what was going on so I thought I’d share what I know.
McCarthy is currently phoning attendees individually to explain the situation, so if you’re already a paid-up delegate I expect you’ll be getting a call soon. An announcement is expected later today.
ARI Registry Services tweeted this morning that .nxt is not offering refunds, but I cannot confirm that at this time.
More when we get it…