Two more dot-brand gTLD bids withdrawn

Two applications for “dot-brand” new gTLDs were pulled last week.
General Motors has withdrawn its bid for .gmc and Hartford Fire Insurance Company dropped .thehartford.
Both bids had been assigned priority numbers in ICANN’s prioritization draw last December, but neither applicant had purchased tickets, suggesting a lack of interest in operating the TLDs.
The withdrawal of .gmc at this time, less than two weeks before the publication by ICANN of string similarity evaluation results, is particularly interesting, and a little strategically puzzling.
There’s an active application by GMO Internet for .gmo, which could conceivably be ruled confusingly visually similar to .gmc.
By pulling out now, GM has lost its right to file a string similar challenge at a later date, and may have lost its ability to win .gmc in all future application rounds too (if .gmo is approved this time around, GMO could claim confusing similarity against future .gmc bids).
But GM still has active bids for the much more meaningful .chevrolet, .buick, .chevy and .cadillac, all of which also have prioritization numbers suggesting GM mainly applied defensively.
Hartford’s .thehartford was its only application.
The two withdrawals bring the total to date to 15, at least 10 of which were dot-brands. There are now 1,915 applications still in play.
The new gTLD consultants involved in the withdrawn bids — which one assumes were mostly filed defensively based on advice received — are a fairly mixed bunch so far.

Governments to reveal new gTLD objection shortlist next week

ICANN’s Governmental Advisory Committee will next week reveal its shortlist of new gTLD applications that face possible death-by-government.
A brief notice posted to the GAC web site yesterday said:

During the week of February 18th, 2013, the GAC will post its list of applications for consideration by the GAC as a whole in Beijing, in the context of developing GAC advice as outlined in the Applicant Guidebook (Module 3 section 3.1).

This appears to mean that the GAC has been doing a lot of preparatory work to get the list of 1,916 remaining new gTLD applications down to a more manageable number.
ICANN is expecting to receive GAC Advice on New gTLDs, as defined in the Applicant Guidebook, not too long after its Beijing public meeting closes on April 11.
As reported earlier today, ICANN expects to start approving new gTLDs April 23. It’s not going to do this before it’s received the GAC’s go-ahead.
GAC Advice could take the form of a consensus recommendation to ICANN to kill off one or more new gTLD bids, or non-consensus “concerns” that would be less deadly to applicants.
GAC members have already issued 242 Early Warnings, which were designed to give applicants the opportunity to change their plans or withdraw before receiving full GAC Advice.
No doubt some of the companies in receipt of Early Warnings will have done enough in the interim to put governments’ minds at rest, but there’s also nothing stopping the GAC adding new applications to its hit-list.
The European Commission and Iran both submitted lists of concerns outside of the official Early Warning process, and there’s been no official word from the GAC yet as to what status they have.
With that in mind, it’s difficult to predict how many applications, and which ones, are going to be on the GAC’s new shortlist.

Chehade names the date: ICANN to approve first new gTLDs on April 23

ICANN expects to approve the first new gTLDs on April 23, just 68 days from now.
The long-awaited date, which of course comes with certain caveats, was revealed by CEO Fadi Chehade in a video interview with ICANN media affairs chief Brad White today.
Chehade said:

We are now targeting to be able to recommend for delegation the first new gTLD as early as the 23rd of April, and I can say this because we have made great progress in the last few weeks in aligning all the necessary pieces that would permit us to recommend a delegation as early as the 23rd of April.
Having said that, I want to be very clear there are some things that we can’t control that may cause this date to slip, but even in that case we are looking for a slippage of days or weeks, not months anymore. So we are definitely now with clear visibility on a set of processes that allow us to hit the first recommended delegation as early as the 23rd of April.

The news is surprising; those following the new gTLD program closely are more accustomed to hearing announcements about delays.
Chehade’s recent comments at a meeting of registries and registrars in Amsterdam, in which he said his personal preference would be to delay the whole new gTLD program by a year, did not suggest the imminent announcement of so ambitious a deadline.
He addresses those comments in the interview.
The news strongly suggests that ICANN’s Governmental Advisory Committee — arguably the biggest unknown quantity at this point in the process — is on target to submit its formal Advice on New gTLDs not too long after the ICANN public meeting in Beijing, which ends April 11.
I would have put money on that not happening.
The date also suggests that ICANN is unlikely to extend the window for filing objections against applications, currently closing March 13, despite the very tight deadline this will create for potential objectors.
Because the results of the String Similarity Panel’s deliberations — which will very likely create new contention sets — will not be published until March 1, many organizations will only get seven or eight working days to finalize and submit their strategic objections.

Mystery gTLD applicant to take Google fight to lawmakers

An as-yet unidentified new gTLD applicant plans to lobby Washington DC and Brussels hard to get dozens of Google’s new gTLD bids thrown out of ICANN on competition grounds.
Phil Corwin of the law firm Virtuallaw, who is representing this applicant, told DI yesterday that his client believes Google plans to use new gTLDs to choke off competition in the web search market.
“They’re trying to use the TLD program to enhance their own dominance and exclude potential competitors,” Corwin said. “We think this should be looked at now because once these TLDs are delegated the delegations are basically forever.”
He’s planning to take these concerns to “policy makers and regulators” in the US and Europe, in a concerted campaign likely to kick off towards the end of the month (his client’s identity will be revealed at that time, he assured us).
Corwin’s client — which is in at least one contention set with Google, though in none with Amazon — reckons ICANN’s new gTLD program is ill-suited to pick the best candidate to run a gTLD.
If objections to new gTLD applications fail, the last-resort method for deciding the winner of a contention set is auction. Google obviously has the resources to win any auction it finds itself in.
“On any TLD Google has applied for, nobody can beat them,” said Corwin. “They have $50bn cash, plus the value of their stock. If they want any of the TLDs they’ve applied for, they get them.”
“A string contention process that relies solely on an auction clearly favors the deep-pocketed,” he said.
Google applied for 101 new gTLDs, 98 of which remain in play today. A small handful of the strings are dot-brands (such as .youtube and .google), with the majority comprising dictionary words and abbreviations.
Some of its generic bids propose open business models, while others would have “closed” or single-registrant business models. As we reported on Friday, this has kicked off a firestorm in the ICANN community.
Corwin said that Google appears to be planning to close off not only individual TLDs, but entire categories of TLDs.
For example, Google has applied for .youtube as a brand, but it’s also applied for .film, .movie, .mov, .live, .show and .tube with a variety of proposed business models.
“You can pretty well bet that they’ll exclude those that will pose a competitive threat to YouTube,” Corwin said.
Search will become much more important after the launch of hundreds of new gTLDs, Corwin reckons, as consumers are “not going to know that most of them exist”.
“Generic words are the perfect platform for constructing vertical search engines that can compete against Google’s general search engine,” Corwin said.
“Google is trying to buy up not just one but multiple terms that cover the same goods and services in key areas of internet commerce, and in effect control them so competition cannot arise and challenge Google’s dominance as a search engine,” he said.
Google has not yet revealed in any meaningful way how its search engine will handle new gTLDs.
The US Federal Trade Commission, at the conclusion of an antitrust investigation, recently gave Google a pass for its practice of prominently displaying results from its own services on results pages.
With that in mind, if Google were to win its contention set for .movie, but not for .film, is it possible that .movie would get a competitive advantage from preferential treatment in search?
Corwin reckons that Google anti-competitive intentions are already suggested by its strategy in ICANN’s new gTLD prioritization draw, which took place in December.
Of the roughly 150 applications for which Draw tickets were not purchased, Google is behind 24 of them — including .movie, .music, .tube and .search — 22 of which are in contention sets.
As a result, these contention sets have all been shunted to the back of ICANN’s application processing queue, adding many months to time-to-market and costing rival, less-well-funded applicants a lot of money in ongoing overheads.
“We see Google playing a rather different game here to most other applicants in terms of their motivation, which is not to enter the market but to protect their market dominance,” Corwin said.
Corwin said the game plan is to taken all these concerns to policy makers and regulators in the US and Europe in order to get governments on-side, both inside and outside of the ICANN process.
Corwin is also counsel and front-man for domainer group the Internet Commerce Association, but he said that the new anti-Google drive is unrelated to his work for ICA.
So why is his client only bringing up the issue now? After all, we’ve all known about the contents of every new gTLD application since last June.
My hunch is that Google is playing hard-ball behind the scenes in settlement talks with contention set rivals.
Contention sets can be resolved only when all but one of the applicants drops out, either following an ICANN auction or private buy-outs. Most applicants favor private resolution because it offers them the chance to recoup some, all, or more than the money they splashed out on applying.
That game plan probably does not apply to Google, of course, which is not wanting of funds. The company may even have good reason to prefer ICANN auctions, in order to to discourage those who would apply for new gTLDs in future just in order to put their hands in Google’s pockets.
The topic of closed generics and competition is likely to be a hot-button topic at ICANN’s next public meeting, coming up in Beijing this April.
Members of ICANN’s Governmental Advisory Committee have already expressed some concerns about many “closed gTLD” applications made by Google, Amazon and others.
ICANN’s board of directors is currently mulling over what to do about the issue, and has thrown it open to public comment for your feedback.

ICANN seeks more power over new gTLD registries

When ICANN published a new draft of its basic Registry Agreement for wannabe new gTLD operators last week, much of the focus was on the new Public Interest Commitments mechanism, but a whole bunch of other big changes were also proposed.
ICANN has floated some quite significant amendments that would give it greater powers to approve mergers and acquisitions and more or less unilaterally change registries’ contracts in future.
Here’s my take on the biggest changes.
Regulating M&A activity
When a new gTLD registry business is acquired, ICANN wants to have greater rights to approve the transaction.
Changes to Section 7.5 would enable ICANN to check that the buyer and its ultimate parent company “meets the ICANN-adopted specification or policy on registry operator criteria then in effect”.
That would specifically include fresh background checks on the acquirer and its parent company.
For new gTLD applicants planning to flip their gTLDs in future, it means the buyers would be subject to the same scrutiny as the applicants themselves are today.
But — and it could turn out to be a big but — these checks would not be carried out if the registry’s buyer was already itself a compliant, ICANN-contracted gTLD registry.
In other words, it is going to be much easier for gTLD registries to acquire each other than it will be for outsiders to acquire them.
Had the rules been in place before now they would have complicated, for example, the acquisition of .pro by Hostway (not already a registry), but not its subsequent acquisition by Afilias (which already had .info).
Powers to change the contract
ICANN wants to grant itself the ability to make “Special Amendments” to all gTLD registry agreements in future without the consent of the registries.
Under the current version of the Registry Agreement, such amendments would need the approval of registries representing two-thirds of all registry fees paid to ICANN before they became law.
(It’s possible that this would give Verisign, as .com/.net registry, a de facto veto due to its market share).
But ICANN wants to change this rule to give its own board of directors the ability to impose amendments to the contract on registries, even if the registries vote against them.
The board would need a supermajority vote (66%, which pretty much every board vote receives anyway) and would need to be “justified by a substantial and compelling need”, quite a subjective threshold, in order to ignore the registries’ protests.
Special Amendments could not cover basic things like pricing or the definition of “registry services”.
ICANN, no doubt bruised by 18 months of laborious Registrar Accreditation Agreement renegotiations, says the change is “of fundamental importance and deserves careful attention given the long-term nature of registry agreements”.
But ICANN contracted parties are usually pretty reluctant to give ICANN more powers over their businesses, especially when it comes to sacrificing their right to renegotiate their contracts, so I can’t see these proposed changes to the Registry Agreement being accepted without hot debate.
Reserved Names
Section 2 of the agreement has been tweaked to make it a bit clearer under what circumstances registries are able to register names for their own use, or block them, and when they have to pay ICANN fees to do so.
The new language makes it clear that registries will not have to pay ICANN fees, and won’t have to use accredited registrars, for domains that are completely blocked from registration and are not used by the registry or anyone else.
By my reading, this could cover the kind of defensive blocking services that many applicants plan to offer to trademark owners, and other anti-abuse mechanisms, but not domains that registries plans to “reserve” for their own use.
At first glance, this might be seen as something that primarily affects dot-brands (which own all the second-level domains in their gTLDs) but most will probably be protected by the 50,000-domain threshold that must be passed before per-domain ICANN fees kick in.
Names that are held back for the registry to use would still have to be registered through a registrar and would incur ICANN fees, with a handful of named exceptions (nic.tld, www.tld, etc).
The new Registry Agreement also includes the final list of strings related to the Red Cross and International Olympic Committee that need to be reserved at the second level, along with a placeholder for reservations of strings related to other intergovernmental organizations.
Other stuff
There are quite a lot of proposed changes (pdf) to the agreement, which are currently open for public comment, and it’s possible I may have missed something equally important as the above.
I’m wondering, for example, about the possible impact of the changes to Specification 7 that seem to make registries responsible if their registrars do not uphold intellectual property rights protection mechanisms.
Also, do the changes to Spec 4 suggest that ICANN plans to outsource the job of Centralized Zone Data Access Provider? What’s the impact on applicants of the changes to Continuing Operations Instrument?
What have you spotted?

ICANN terminates three registrars

ICANN has pulled the plug on three accredited domain name registrars, saying they all failed to comply with an audit.
Lime Labs, R Lee Chambers Company (DomainsToBeSeen.com) and Central Registrar (Domainmonger.com) have been given 30 days notice that their accreditations are being yanked and that their domains will be transferred to other registrars.
About 12,000 domains will be affected, the vast majority of which are managed by Lime Labs.
The three registrars were among 10 that ICANN pounced on last month when they failed to respond to its Contractual Compliance Audit Program.
This program is a three-year initiative to make sure registrars and registries are complying with their contractual requirements. A third of registrars were randomly selected to take part late last year.
According to ICANN’s termination notices, all three registrars ignored last month’s warnings and did not submit the data required for the audit.
DomainsToBeSeen and Domainmonger both have just a few hundred gTLD domain names under management each. Lime Labs is much larger, with over 11,000.
The terminations will come into affect March 13.

Closed gTLD debate threatens Google and Amazon

Howls of criticism about Google, Amazon and others’ plans to grab huge swathes of new gTLD real estate and keep it to themselves seem to have spurred ICANN into action.
A public comment period opened this week seeks community feedback (indirectly) on applications such as Amazon’s .music, L’Oreal’s .beauty and Google’s .blog, among many others.
These gTLDs have all been proposed with “single-registrant” business models, in which the registry controls all second-level domains and regular registrars cannot sell them to anyone else.
It’s the “dot-brand” model, but applied to generic dictionary words for which the applicants have no trademark rights.
Scores of such applications have been made, notably by Google and Amazon, but they have drawn criticism from many in the ICANN community, such as a small group of registrars and others led by Blacknight Solutions.
Members of the Governmental Advisory Committee, most vocally Australia, have also expressed serious concerns about the model, saying it could be anti-competitive.
ICANN’s board of directors is currently mulling over these complaints, and has thrown the issue open to public comment to aid in its deliberations.
What it wants from you is:

proposed objective criteria for:

• classifying certain applications as “closed generic” TLDs, i.e., how to determine whether a string is generic, and
• determining the circumstances under which a particular TLD operator should be permitted to adopt “open” or “closed” registration policies.

The way the public comment request is phrased should be quite worrying to applicants for closed generic gTLDs.
It seem to assume that ICANN should be classifying gTLDs, something it has steadfastly refused to do for all of the years these kinds of debates have been raging.
What is a “closed generic” anyway?
The DI PRO New gTLD Application Tracker classifies gTLD applications into three buckets: Open, Restricted and Single-Registrant.
We made no attempt to segregate dot-brands from other Single Registrant bids, precisely because there’s currently no such thing as a dot-brand under ICANN’s rules.
There doesn’t seem to be much community concern about the apps we have classified as “Restricted” — applications for .lawyer that propose to vet registrants for their lawyerly credentials, for example.
The concern is all directed at Single Registrant bids. We have 912 of these in our database.
Many of these are dot-brands, where the applied-for string is an exact match with a famous trademark, but many are for dictionary words for which the applicant has no preexisting rights.
In order to sanely operate a dot-brand, applicants must request an exemption to the ICANN rules that oblige them to offer their gTLDs via accredited registrars on a non-discriminatory basis.
This Code of Conduct is a part of the base Registry Agreement for new gTLDs, but it contains a carve-out for single-registrant applicants:

Registry Operator may request an exemption to this Code of Conduct, and such exemption may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator demonstrates to ICANN’s reasonable satisfaction that (i) all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use, (ii) Registry Operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an Affiliate of Registry Operator, and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest.

This provision was added specifically in order to enable “dot-brands” to exist.
It would be pretty weird if, for example, L’Oreal was forced to make .loreal domains available via hundreds of registrars. By requesting an exception, L’Oreal has the chance to keep .loreal in-house.
However, because ICANN deliberately has made no distinction between commonly used words and brands (.amazon could be both), L’Oreal was also able to apply for .beauty as a single-registrant gTLD.
It’s not really a loophole — the possibility of companies applying for closed generics was envisaged by ICANN and the policy-making community long before the application window even opened.
Make no mistake, this is well-trodden ground. ICANN had plenty of opportunities to address the issue before the new gTLD application window opened a year ago and it quite consciously decided not to.
The feeling over the last couple of years has been that objection mechanisms such as the Community Objection, as well as GAC Advice, would be sufficient to close down these problematic gTLDs bids.
During the year-long community discussion about registry-registrar vertical integration, the possibility of closed generics was acknowledged and heavily debated.
The GNSO’s Vertical Integration Working Group failed to reach consensus on almost everything, but most of the recommendations emerging from it included some Code of Conduct exemptions for dot-brands.
Some in the WG suggested that the exemptions should only apply to true dot-brands (ie, those back up by a trademark) but ICANN decided against referring to trademarks when it wrote the Code of Conduct due to the very real possibility that it would encourage gaming by speculators.
That problem has not disappeared. While there’s no such gaming in the current batch of applications, there will be second and third and fourth application rounds that the rules being hastily debated at the last minute right now will also (presumably) apply to.
What do closed generic applicants want?
Some ICANN community members assumed that it would be the big domainer-backed companies (later emerging as Donuts, Uniregistry et al) that would attempt these kinds of land-grabs.
But that (so far) hasn’t turned out to be the case. The domainers have generally proposed registration policies that are super, super liberal in comparison to Google, Amazon and other closed-generic applicants.
I believe it’s partly because it’s these massively powerful e-commerce companies that are the ones making the land-grabs, and the scale of the grabs, that the issue of closed generics has reemerged now.
There are two broad use cases of concern here.
First, the .beauty scenario: L’Oreal keeps all the second-level .beauty domains to itself, essentially converting the word “beauty” into a brand name as far as the DNS is concerned.
Second, the .blog scenario: Google implements a policy that all .blog domains must use its Blogger service, potentially to the detriment of competitors such as WordPress or Tumblr.
In both scenarios, the bids could be rejected in their entirety as a result of formal objections, ICANN board action or Governmental Advisory Committee advice.
If the applications were approved, ICANN could also subjectively apply the ill-defined “public interest” test outlined above to force compliance with the Code of Conduct.
But that would merely lead to the bizarre scenario where 1,700 accredited registrars all qualify to sell .music domain names, but the only potential customer is Amazon.com’s intellectual property management department (which wants to run .music as a single-registrant gTLD).
As ICANN points out in its public comments request, the Code of Conduct regulates who can sell domain names in new gTLDs, not who they can sell them to.
The .blog scenario is a little different.
This is what Google, which has applied via its Charleston Road Registry subsidiary, has proposed (with my emphasis):

Should ICANN grant Charleston Road Registry’s exemption to the Code of Conduct, and the proposed gTLD operate with Google as the sole registrar and registrant, members of the public will not be able to directly register domain names in this new gTLD. Users will, however, be given the opportunity to make use of a vanity second-level domain as a memorable identifier linked to content in Blogger.

In other words, Google will “own” all the second-level .blog domains, but will allow Blogger customers to “use” them.
It looks like what it is: a transparently bogus attempted workaround of the Code of Conduct, designed to let Google exclude rival blogging services and independent, self-managed bloggers from .blog.
(Disclosure: DI is an independent, self-managed blog.)
However, I can’t see how what Google has proposed could possibly qualify for an exemption, which is only supposed to be granted provided the registry does not “transfer control or use of any registrations in the TLD to any third party”.
If sanity prevails, Google probably won’t qualify for an exemption.
But that won’t stop it tying .blog to Blogger.
The Code of Conduct, remember, is only concerned with equal, non-discriminatory access for accredited registrars. It does not speak to registry services or registry policies.
Google could possibly still have a registry policy stating that all .blog domains must point to Blogger.
In addition, Google could make the registration fee $0, making it unattractive for most registrars to carry (though I guess registrars could use it as a loss-leader, they wouldn’t be able to up-sell hosting and other services if all .blog domains have to use Blogger).
In conclusion
Applicants for closed generics paid millions of dollars to apply, using the rules set down in the Applicant Guidebook at the time, and I can’t see them being too happy about this eleventh hour surprise.
However, there can be little doubt that ICANN, if its role is to protect the public interest and consumer trust, has to seriously tackle the issue of closed generics.
But it has to address it in 2011.

.web lawsuit thrown out of court, “too generic” to be a trademark

A California lawsuit that threatened to scupper all seven applications for the .web new gTLD has been thrown out.
The judge in Image Online Design v ICANN yesterday granted ICANN’s motion to dismiss the case, saying that IOD had no claim for breach of contract and, significantly, that “.web” is too generic to be a trademark.
Here’s the money quote:

This court agrees with ICANN that the mark .WEB used in relation to Internet registry services is generic and cannot enjoy trademark protection.

IOD applied for .web during ICANN’s proof-of-concept new gTLD round in 2000, but was not approved.
It sued ICANN last October, claiming breach of contract and trademark infringement and interference with its business.
The company has been running .web in an alternate DNS root, where hardly anyone uses it, since the 1990s.
Unfortunately for IOD, when it applied in 2000 it signed a document releasing ICANN from all legal liability in relation to the application, so the judge yesterday ruled that it could not sue for breach of contract.
The court also upheld the longstanding position of the US courts that top-level domains cannot be trademarks.
The US Patent & Trademark Office is of the view that TLDs do not indicate the source of goods or services; only the second-level domain does.
IOD had argued in court that, with the imminent introduction of dot-brands, the USPTO expects to modify its position. The judge in this case, Dean Pregerson, agreed in part, stating:

For instance, if ICANN were to introduce the TLD .APPLE, the user would arguably expect that that TLD is administered by Apple Inc. In such a case, the TLD might be considered a source indicator. If Sony tried to administer the TLD .APPLE, Apple Inc. would likely argue and possibly prevail on a trademark infringement claim.
This said, it appears to the court that today only the most famous of marks could have a source indicating function as a TLD. Some marks, such as .WEB, might remain generic even if they were famous, since .WEB in connection with registry services for the World Wide Web appears to refer to the service offered, rather than to only a particular producer’s registry service.
…
the mark .WEB is not protectable under traditional trademark analysis because it “seems to represent a genus of a type of website” and thus answers the question “What are you?” rather than “Who vouches for you?”

IOD’s other claims were also thrown out. Read the court’s order here.
The ruling means that a similar lawsuit filed by fellow 2000-round new gTLD applicant Name.Space, which is looking for an injunction against 189 gTLD applications, may be on shaky ground too.

ICANN’s new gTLD Public Interest Commitments idea: genius or pure crazy?

ICANN has given new gTLD applicants a month to draft their own death warrants.
Okay, that might be a little hyperbolic. Let’s try again:
ICANN has given each new gTLD applicant 28 days to come up with a list of voluntary “Public Interest Commitments” that, if breached, could lead to the termination of their registry contracts.
The proposed, far-reaching, last-minute changes to the basic new gTLD Registry Agreement were introduced, published and opened for public comment on Tuesday.
PICs — as all the cool kids are calling them — are designed to appease ICANN’s Governmental Advisory Committee, which wants applicants to be held accountable to statements made in their gTLD applications.
If an applicant said in its application for .lawyer, for example, that only actual lawyers will be able to register a .lawyer domain name, the GAC wants ICANN to be able to step in and enforce that promise if the registry changes its registration policies at a later date.
Public Interest Commitments are the way ICANN proposes to let applicants state clearly what they commit to do and not to do, either by flagging parts of their existing application as binding commitments or by writing and submitting entirely new commitments.
Submitting a set of PICs would be voluntary for applicants, but once submitted they would become a binding part of their Registry Agreement, assuming their gTLD is approved and delegated.
“These are commitments you’re making to the community, to the governments, to everybody that can object to your applications, these are not commitments you’re making with ICANN,” ICANN COO Akram Atallah said on Tuesday’s webinar.
Registries would be subject to a new dispute policy (the Public Interest Commitment Dispute Resolution Process or PICDRP) that would enable third parties to file official complaints about breaches.
“We’re allowing third parties that are affected to be able to bring these claims, and then based upon the outcome of the dispute resolution process ICANN will enforce that third party dispute resolution result,” ICANN general counsel John Jeffrey said.
Registries that lost a PICDRP would have to “implement and adhere to any remedies ICANN imposes” up to and including the termination of the registry contract itself.
ICANN is asking applicants to submit their PICs before March 5, just 28 days after revealing the concept.
How PIC (probably) would work
Let’s take an example new gTLD application, selected entirely at random.
Donuts has applied for .dentist.
While the applied-for string suggests that only dentists will be able to register domain names, like all Donuts applications the gTLD would actually be completely open.
The government of Australia has filed a GAC Early Warning against this bid, stating that “does not appear to have proposed sufficient protections to address the potential for misuse”.
The Aussies want Donuts to detail “appropriate mechanisms to mitigate potential misuse and minimise potential consumer harm” or risk getting a potentially lethal GAC Advice objection to its bid.
If Donuts were so inclined, it could now attach a PIC to its .dentist bid, outlining its commitment to ensuring that .dentist is not abused by amateur dental surgery enthusiasts.
The PIC would be subject to public review and comment. If, subsequently, Donuts won the .dentist contention set, the PIC would be attached to its .dentist Registry Agreement and become binding.
Donuts may even stick to its commitments. But the moment some Marathon Man-inspired nutter managed to slip through the cracks, Donuts would be open to PICDRP complaints, risking termination.
What’s good about this idea?
From one perspective, PIC is a brilliantly clever concept.
The proposed solution doesn’t require applicants to amend their applications, nor would it require lengthy contractual negotiations during the gTLD approval and delegation process.
Applicants could merely attach their commitments to the base registry agreement, sign it, and be on their merry way.
This means fewer delays for applicants and relatively little additional up-front work by ICANN.
On an ongoing basis, the fact that PICs would be enforceable only by third parties via the PICDRP means fewer headaches for ICANN compliance and fewer debacles like the aborted attempt to bring .jobs into line.
Finally, it’s also completely voluntary. If applicants don’t want to file a PIC, they don’t have to. Indeed, most applicants aren’t even in a position where they need to think about it.
Do I sense a “but”?
But I can’t see these proposals going down too well in applicant land.
ICANN is, essentially, giving applicants one short month to bind themselves to a completely new, almost completely unknown dispute resolution process.
Repeat: the PICDRP does not yet exist.
Indications were given that it will be modeled on existing dispute resolution procedures in the Applicant Guidebook, but there’s no actual text available to review yet.
We do know that the process would be designed to enable third parties to file complaints, however. Agreeing to PICDRP could therefore potentially open up applicants to competitive or nuisance complaints.
The “remedies” that ICANN could impose when a PICDRP case is lost are also currently rather vague.
While the nuclear option (termination) would be available, there’s no information yet about possible lesser remedies (financial penalties, for example) for non-compliance.
I’ve talked to enough domain name industry lawyers over the years to guess that most of them will take a very dim view of PIC, due to these uncertainties.
One of the guiding principles of the new gTLD program from the outset was that it was supposed to be predictable. ICANN has veered away from this principle on multiple occasions, but these eleventh-hour proposed changes present applicants with some of the biggest unknowns to date.
The timeline doesn’t work
The raison d’être for the PIC concept is, ostensibly, to enable applicants to avoid not only potential GAC Advice but also official objections by other third parties.
But according to ICANN documentation, applicants are being asked to submit their PICs by March 5. ICANN will publish them March 6. They’d then be open for public review until April 5 before becoming final.
But the deadline for filing objections is March 13. That deadline also applies to objections filed by governments (though not GAC Advice, which is expected to come in mid-late April).
Judging by this timeline, potential objectors would have to decide whether to file their objections based on PICs that have been published for just one week and that could be amended post-deadline.
Unless ICANN extends the objection filing window, it’s difficult to see how PIC could be fit for its stated purpose.
On the bright side
I believe that only a small percentage of applicants will be affected by PIC.
Out of 1,917 applications and 1,409 strings, GAC governments filed just 242 Early Warnings against 145 strings. Some of those warnings merely tell the applicant to withdraw its bid, which no amount of PIC will cure.
I expect that very few, if any, applicants without Early Warnings will bother to file PICs, unless of course the objections deadline is moved and PIC becomes an effective way to avoid objections.
For those with Early Warnings, an alternative strategy would be to lobby friendly GAC members — demonstrably flexible to lobbying, judging by the Early Warnings — to ensure that they do not receive full, consensus GAC Advice against their applications.
That would be risky, however, as there’s currently no way of knowing how much weight ICANN’s board of directors will give to non-consensus GAC Advice against applications.

Frank Schilling’s Uniregistry gets accredited as a registrar

Portfolio new gTLD applicant Uniregistry has taken the first step towards bringing its proposed new gTLDs to market by getting accredited as a registrar by ICANN.
Uniregistrar Corp shares its Cayman Islands address with Uniregistry.
The company’s web site states:

Uniregistrar is a new ICANN accredited registrar designed to let you create domain names in the new top level domain extensions offered by Uniregistry.
Beginning in 2014 anyone will be able to create and manage their domain names using the simple site we plan to create here. The names offered by Uniregistrar will be shorter, clearer, easier to use and manage than the .com .net or .org names you know from the past.

Given that its IANA number does not yet appear on the official list, the accreditation must have been granted pretty recently.
Uniregistrar is already accredited to sell .asia, .biz, .com, .info, .jobs, .mobi, .name, .net, .org, .pro, .travel and .xxx names, suggesting that the company plans to sell more than just its own TLDs.
Schilling’s existing accredited registrar, iRegistry, which is used primarily (or exclusively) to manage Name Administration’s massive portfolio of domains, is only accredited in .com, .net, .org and .xxx.
Uniregistry is an applicant for 54 new gTLDs, including .auction, .sexy, .christmas and .blackfriday.
Unlike the current regime, under ICANN’s rules for new gTLDs, “vertical integration” — where a registry can own a registrar that sells domains in its TLDs — is permitted.