IP lobby files last-minute new gTLD demands

ICANN’s ongoing public comment period into the “perceived” need for “defensive” gTLD applications produced a raft of demands from the intellectual property community, not all of which relate to the subject matter at hand.
With less than one month left before ICANN closes its new gTLD application window, many IP stakeholders have suggested ways to reduce the need to file a defensive applications, with many disputing its characterization as “perceived”. As far as many brands are concerned, there’s nothing “perceived” about it.
Give the imminent closure of the window, a large number of commenters have also suggested ways to reduce the need for defensive domain name registrations at the second level. While debates about trademark protection in domain names will never end, this is likely to be the IP community’s last chance to officially comment before April 12.
Some comments expressed a desire for relatively small tweaks to the existing Rights Protection Mechanisms, others said that entirely new RPMs should be created. In most cases, the proposed amendments heavily favor certain trademark owners at the expense of other registrants, including other trademark owners.
Some suggestions from the IP community would, if adopted, directly impact the business models of new gTLD registries and registrars. Others could be expected to significantly increase the risk that the new gTLD application process will be gamed at a large scale.
This DomainIncite PRO analysis is organized by issue, addressing concepts that emerged from multiple comments. In each case, we look at the likely counter-arguments to the proposals, explore the potential impact on applicants and the new gTLD program and assess the likelihood of each proposal becoming reality.
DI PRO subscribers can read the full analysis here.

New gTLD applicants up to 207

With the registration deadline less than four weeks away, ICANN has revealed that it has received 207 sign-ups for generic top-level domain applications.
That’s an increase of 63 over the last week and up 163 on February 13.
As with previous announcements of this kind, certain caveats apply.
ICANN is talking about registered users of its TLD Application System. Each TAS account can be used to file up to 50 applications.
In practice I expect very few accounts will be used to file that many.

Olympic gTLD showdown coming in Costa Rica

While the ICANN public meeting in Dakar last October was notable for a heated clash between governments and the domain name industry, the Costa Rica meeting next week may be characterized by these two recent enemies uniting against a common enemy.
ICANN staff.
Members of the Generic Names Supporting Organization, the Governmental Advisory Committee and the At-Large Advisory Committee all appear to be equally livid about a last-minute new gTLD program surprise sprung by ICANN late last week.
The hitch relates to the ongoing saga about special brand protection for the International Olympic Committee, Red Cross and Red Crescent movements in the new gTLD program.
The need to develop rights protection mechanisms for essentially just three organizations has always been a slightly ridiculous and unnecessary premise, but recently it has assumed symbolic proportions, cutting to the heart of the multistakeholder model itself.
Now, following a perplexing eleventh-hour ICANN mandate, Costa Rica is likely to see some fierce debate about the ICANN decision to kick off the new gTLD program last June.
We expect the GNSO and the GAC to show a relatively united front against ICANN staff on the IOC/RC issue. The At-Large Advisory Committee is also set to throw a bomb or two.
There’s even an outside chance that upcoming talks could wind up adding delay to the next phase of the new gTLD program itself…
The full text of this pre-ICANN 43 policy analysis is available to DomainIncite PRO subscribers here.

Directi emerges as new gTLD applicant

The India-based domain name registrar Directi plans to apply for a bunch of new generic top-level domains, using ARI Registry Services as its back-end registry provider.
Directi has set up a new entity, Radix, to handle its applications and registry business.
The number and nature of the gTLDs in Radix’s plans have not been revealed, but the company uses words like “entrepreneurial” and “ambitious” to describe the move.
Reading between the lines, I’m going to lump Radix in with the like of Minds+Machines, Donuts, and Demand Media as one of the few companies to reveal big multiple-gTLD investment plans.
These “domainer” applicants (as opposed to focused, single-string applicants) are the guys to watch post-May 1, when the list of applications is published by ICANN.
In addition to Radix, Directi owns ResellerClub, LogicBoxes, BigRock and WebHosting.info.
According to Whois, radix.com belongs to a Brazilian investment company. It does not currently resolve.
Assuming there’s no affiliation with Directi, I think this officially means that Andrew Allemann is no longer allowed to mock companies that launch services before they own the matching .com domain.

China cracks down on new gTLD applicants

Chinese companies planning to apply to ICANN for a new generic top-level domain will have to get a permit from the government, it has been announced.
Applicants will have to reveal their services, their contingency plans, and their trademark protection and anti-abuse procedures, among other details, to China before applying.
The news, which could be troubling to some Chinese gTLD applicants, came in an official Ministry of Industry and Information Technology announcement yesterday.
A local source confirmed that the Ministry plans to issue permits to new gTLD applicants.
It seems to apply to any gTLD, but a second set of regulations to govern the obtaining of government non-objection letters in the case of geographic strings has also been introduced.
These rules seem to apply only to local companies. As far as I know China is not yet claiming exclusive ownership of the Chinese language and script as it has in the past.
I also hear on the grapevine that China thinks ICANN is subject to a business tax on its $185,000 application fees, and that applicants are being asked to pre-pay this tax on ICANN’s behalf.
The nation has form when it comes to heavy-handed domain name industry regulation.
Rules forcing registrants to submit ID when they register .cn domain names have caused the number of ccTLD registrations to plummet over the last couple of years.
The .cn space peaked at about 14 million domains under management in 2009 and stands at just 3.3 million today.

ICANN staffer linked to hacked intelligence firm

Former ICANN director Veni Markovski, who currently heads Eastern European relations at the organization, has been fingered by Wikileaks as a Stratfor source.
Stratfor is the “global intelligence” outfit, once described by Barron’s as “The Shadow CIA”, which had its email server pwned by the hacker group Anonymous last year.
Wikileaks was given over five million Stratfor emails by Anonymous, which it started to publish earlier this week.
According to several of these emails, Markovski reached out to Strafor, and was then cultivated as a “source”, after the company’s analysis was quoted in coverage of the 2008 South Ossetia war.
I think the emails say a lot more about Stratfor and its methods than they do about Markovski.
Shortly after making contact, Stratfor senior Eurasia analyst Lauren Goodrich asked a colleague to check out this “Shady Bulgarian”.
“Was wondering if he has OC [organized crime] or FSB [the Russian Federal Security Service] connections,” Goodrich wrote.
This background check seemed to extend to checking for media references and then reading the resume Markovski publishes openly on his web site.
The subsequent response from Stratfor analyst Fred Burton described Markovski as “hooked into the Bulgairan OC, but nothing too shady bout that since he is Bulgarian”.
Quite what “hooked into” was supposed to mean in this context is open to interpretation.
In September 2008 emails, Goodrich described him as a “Bulgarian billionaire telecommunications oligarch” and “kinda a strange guy, but very powerful in business circles.”
Markovski joined ICANN as manager of regional relations for Eastern Europe, Russia and the Commonwealth of Independent States in 2007.
A familiar face at ICANN, he also served on its board of directors between 2003 and 2006. He’s chair of the Internet Society of Bulgaria, and founded the Bulgarian ISP bol.bg.
The Wikileaks emails reveal that Goodrich and Markovski communicated about political and security developments in the region from 2008 until at least June of last year.
One of the questions Markovski was asked, ironically, was “What can a small company like Stratfor do to protect itself from cyber-attacks?”
But the relationship, frankly, doesn’t appear to be much different to that of a journalist and his source. I’ve seen no evidence in the leaks of nefarious activity or of money changing hands.
Despite all the “Shadow CIA” marketing nonsense, there’s a substantial school of thought that says Stratfor is not nearly as cloak-and-dagger as it likes to make out.
Headlines such as “Stratfor Is a Joke and So Is Wikileaks for Taking It Seriously“, published in The Atlantic this week, strike me as probably closer to the truth.
If you want to judge for yourself, you can read the emails here.
UPDATE: Markovski provided the following statement: “I have not been involved with Stratfor. I am not in the position to address other people’s private emails, which are being quoted in your article.”

New gTLD magic number upped to 144

The number of registered new gTLD applicants has increased to 144, according to ICANN.
That’s up from 100 two weeks ago and up from 25 on January 19.
It refers to the number of registered users in the TLD Application System, the web-based tool used for filing new gTLD applications.
Each TAS slot can be used to file up to 50 applications; 144 registered TAS users could mean anything from 144 to 7,200 gTLD applications.
I err towards the lower number. Some consultants have told me they open a new account for each application they plan to file, due to some technical limitations in the system.
Most people are expecting a last-minute rush of applications — primarily hold-out dot-brand applicants — shortly before the system closes to new registrants March 29.

GMO to apply for .osaka gTLD

GMO Registry has won governmental support for a .osaka new top-level domain bid for the Japanese prefecture of Osaka.
The company announced today that the prefecture awarded it the necessary letter of support after a tender process that ran in January.
Osaka is also the name of Japan’s third-largest city. The prefecture has a population of about 8.8 million.
The .osaka application joins GMO’s steadily growing collection of proposed Japanese geo-gTLDs. It already has governmental support for .tokyo, .okinawa and .ryukyu.
It also plans to apply for .shop off its own back.

ICA demands probe of “shoddy” UDRP decisions

The Internet Commerce Association has called for an ICANN investigation into the National Arbitration Forum’s “seriously flawed” record of UDRP decisions.
The demands follow two recent NAF cybersquatting cases thought to be particularly egregious.
In the first, Hardware Resources, Inc. v. Yaseen Rehman, the domain hardwareresources.org was transferred based on a trademark that explicitly denounced rights to the term “hardware resources”.
In the second, Auto-Owners Insurance Company v. Nokta Internet Technologies, NAF allegedly broke from standard UDRP procedure when it handed autoownersinsurance.com to the complainant.
Both were cases of potentially valuable generic domains being lost, and both were recently singled out by IP attorney Paul Keating as being particularly dubious decisions.
The ICA represents some big domainers and some of the big domaining registrars. Its counsel, Phil Corwin, wrote to ICANN yesterday to demand a review of NAF’s practices:

NAF’s administration of the UDRP in the cases cited above appears to be seriously flawed and creates the appearance of substantial bias and ineptitude. ICANN has a responsibility to make serious inquiry into this matter and to take remedial action based upon its findings.

According to Corwin, there’s circumstantial evidence that NAF encourages “forum shopping” due to its habit of appointing a small number of adjudicators known to be friendly to complainants.
Regular readers of DomainIncite and other domain industry news blogs may have noticed that when we report incredulously about UDRP decisions, it’s usually with reference to NAF cases.
Corwin’s letter comes as part of a larger ongoing campaign by the ICA to get ICANN to sign formal contracts with its approved UDRP resolution providers, which it lacks today.

How many defensive registrations is too many?

How will ICANN measure the success of its new top-level domains program, and how many defensive registrations is too many?
These questions are now firmly on the ICANN agenda, following the publication of 37 draft recommendations for how to measure the success or otherwise of new gTLDs.
The advice of the Consumer Trust Working Group, published last night and now open for public comment, is a must-read for anyone interested in the emerging new gTLD market.
The recommendations describe myriad ways ICANN could benchmark the performance of new gTLDs three years from now, to fulfill its promise to the US Department of Commerce to study the effect of the program on consumer choice and competition.
While it’s a broad document covering a lot of bases, I’m going to be disappointingly predictable here and immediately zero in on the headline wedge issue that I think will get most tongues wagging over the coming weeks and months:
Defensive registrations.
The working group decided to recommend that, as a measure of success, domain name registrations in new gTLDs should be no more than 15% defensive* three years after launch.
Defensive in this case would mean they were registered during the mandatory Sunrise period.
The idea is that consumer choice can be demonstrated by lots of registrations in new gTLDs, but that defensive registrations should not count toward that goal.
The 15%-Sunrise baseline number was chosen fairly arbitrarily – other suggestions were 20% and 12% – and is designed to spur community discussion. It’s not final.
Still it’s interesting.
It implies that if a registry has 15,000 Sunrise registrations, it needs to sell another 85,000 domains in three years to be seen as having made a successful contribution to consumer choice.
By way of an example, if it were to be retroactively applied to .xxx, the most recent gTLD to launch, ICM Registry would have to get its total registrations up to 533,000 by the end of 2014.
Is 15% too low? Too high? Is it even a useful metric? ICANN wants to know.
Whatever the ultimate number turns out to be, it’s going to be handy for plugging into spreadsheets – something opponents of new gTLDs will find very useful when they try to make the case that ICANN endorses a certain dollar value of trademark extortion.
Because many registries will also accept defensive registrations after Sunrise, two more metrics are proposed.
The group recommends that domains in new gTLDs that redirect to identical domains in legacy TLDs – strongly implying a defensive registration – should be no more than 15% after three years.
It also recommends that ICANN should carry out a survey to see how many registrants own matching second-level domains in legacy TLDs, and that this should also be lower than 15%.
I’ve only outlined three of the working group’s recommendations here. Many of the other 34 are also interesting and will be much-debated as the new gTLD program continues.
This is vitally important stuff for the future of new gTLDs, and applicants would be well advised to have a good read — to see what might be expected of them in future — before finalizing their applications.
* It should be noted that the recommendation as published confusingly reads “Post-Sunrise registrations > 15% of total registrations”, which I think is a typo. The > operator implies that non-defensive registrations only need to be over 15% of total registrations, which I’m certain is not what the working group intended to say.
(UPDATE: this typo has now been corrected).