Two new TLDs to be approved next week

ICANN is set to approve two new country-code top-level domains next week – .cw and .sx – for the year-old nations of Curacao and Sint Maarten.
The two countries were created when the Netherlands Antilles split last October.
The ICANN board of directors plans to rubber-stamp the delegations of both ccTLDs next Tuesday, according to the consent agenda for its meeting.
It also plans to vote on the “transition” arrangements for the Netherlands Antilles’ .an, which is now a ccTLD without a country.
The .an space won’t be the first TLD to be deprecated. Yugoslavia’s .yu disappeared in March last year, for example, a few years after Serbia and Montenegro acquired their own ccTLDs.
The recipient of .sx is expected to be SX Registry, a joint venture of Luxembourg registry startup OpenRegistry and Canadian registrar MediaFusion.
OpenRegistry CEO Jean-Christophe Vignes said that if ICANN votes for the delegation the company will start talks with potential registrar partners at the ICANN Dakar meeting later this month.
MediaFusion and Vignes’ alma mater EuroDNS have already been approved to act as .sx registrars.
The company plans to use CHIP, the ClearingHouse for Intellectual Property, for its sunrise period.
Anyone with a .an registration predating December 2010 will be able to request the equivalent .sx name under a grandfathering program the company plans to launch.
It will be the first TLD that OpenRegistry has provided the back-end infrastructure for.

BITS may apply for six financial gTLDs

BITS, the technology policy wing of the Financial Services Roundtable, may apply to ICANN for as many as six financially-focused new top-level domains.
The organization is pondering bids for .bank, .banking, .insure, .insurance, .invest and .investment, according to Craig Schwartz, who’s heading the project as general manager for registry programs.
(UPDATE: To clarify, these are the six strings BITS is considering. It does not expect to apply for all six. Three is a more likely number.)
Schwartz, until recently ICANN’s chief gTLD registry liaison, told DI that the application(s) will be filed by a yet-to-be-formed LLC, which will have the FSR and the American Bankers Association as its founding members.
It will be a community-designated bid, which means the company may be able to avoid an ICANN auction in the event that its chosen gTLD strings are contested by other applicants.
“We’ve looked at the scoring, and while it may not come into play at all we do believe we can meet the requisite score [for a successful Community Priority Evaluation],” Schwartz said. “But we’re certainly mindful of what’s happening in the space, there’s always the possibility of contention.”
There’s no relationship between BITS and CORE, the Council of European Registrars, which is apparently looking into applying for its own set of financially-oriented gTLDs, Schwartz said.
It’s not a big-money commercial play, but the new venture would be structured as a for-profit entity, he said.
“It’s relatively analogous to what’s happened in the .coop space, where after 10 years they have only about 7,000 registrations,” Schwartz said.
It sounds like pricing might be in the $100+ range. Smaller financial institutions lacking the resources to apply for their own .brand gTLDs would be a likely target customer base.
Interestingly, .bank may begin life as a business-to-business play, used primarily for secure inter-bank transactions, before it becomes a consumer-facing proposition, Schwartz said.
He added that it would likely partner with a small number of ICANN-accredited registrars – those that are able to meet its security requirements – to get the domains into the hands of banks.
VeriSign has already signed up to provide the secure back-end registry services for the bid.

AusRegistry drops the “Aus”, sets up in US

AusRegistry International has rebranded itself as ARI Registry Services and will now offer new gTLD clients the option to host their domains in either Australia or the US.
The company has built itself a registry back-end in an undisclosed location on US soil to support the move.
Dropping the “Aus” appears to be specifically designed to address the perception that locating a gTLD in Australia is somehow technologically or politically risky, which ARI says isn’t the case.
ARI CEO Adrian Kinderis explained the decision in a press release:

We are the first to admit that the ‘Aus’ reference in our previous name incorrectly positioned us as a smaller, geographically focused organisation, which did create some issues with our plans for global expansion. Despite the fact we have an office and staff in the United States and clients situated in four of the seven continents around the world, there remained some belief that our services were somewhat isolated in Australia.

Potential gTLD applicants are concerned about issues such as “overzealous governments, privacy and ownership laws, political environments and financial benefits including currency fluctuations” that can vary according to the jurisdiction a registry is hosted in, ARI said.
A choice between the US and Australia may seem like a choice between one “overzealous government” and another, but it may at least put some insular American companies’ minds at rest.
While the move makes perfect business sense for ARI, I can’t help but feel that ICANN’s goal of increasing geographic diversity in the registry industry seems a little diminished this morning.
The rebranding does not affect the company’s parent, AusRegistry Group, which provides the back-end for Australia’s .au ccTLD.
ARI’s new domain is ariservices.com.

Full UDRP reform unlikely until 2017

The often-criticized Uniform Dispute Resolution Policy is unlikely to see fundamental changes for at least five years, following an ICANN review published yesterday.
ICANN has recommended, after talking to the community, that full UDRP reform should be put on the back-burner until at least a year and a half after the first new gTLDs go live.
Since that isn’t likely to happen until early 2013, ICANN is unlikely to address the subject until mid-2014. The chances of a revamped UDRP going live before 2017 are therefore slim.
The new Final Issue Report (pdf), prepared by ICANN staff and sent to the GNSO Council yesterday, says:

Staff recommends that a [Policy Development Process] on the UDRP not be initiated at this time. Staff recommends that a PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. Doing so would allow the policy process to be informed by data regarding the effectiveness of the URS, which was modelled on the UDRP, to address the problem of cybersquatting.

The report was informed by a number of stakeholder webinars and questionnaires sent to UDRP providers earlier this year, as well as a round of public comments.
It notes that UDRP has remained the same since October 1999, but that it still has proved flexible enough to react to changes in the domain industry and cybersquatting tactics.
The report states:

After carefully evaluating the issues and concerns expressed by the ICANN community regarding the UDRP, Staff has concluded that many relate to process issues associated with the implementation of the UDRP, rather than the language of the policy itself.

In the absence of root-and-branch reform, ICANN has suggested the formation of an “expert panel” to investigate whether smaller changes could be made to the periphery of the UDRP.
It could, for example, look at amendments to the Supplemental Rules that UDRP providers use to handle complaints and responses. ICANN wrote:

To the extent that these expert recommendations result in modifications to certain of the UDRP Rules or suggested changes for provider Supplemental Rules to align with the UDRP Rules, these may be adopted by the ICANN Board without the necessity of undertaking a complete PDP.

Consultations have shown that there’s little appetite for massive reform from either side of the debate; it’s probably not too cynical to say that the status quo will be maintained largely by paranoia.
Trademark holders would ideally prefer a cheaper, faster system that is more accommodating to their own interests, whereas domain investors would like to see an end to forum-shopping and panelists who give too much deference to big business.
But both sides are terrified that the actual process of reforming UDRP would be captured by their opponents, ultimately tilting the balance of power against their own interests.
The trademark lobby is convinced that ICANN policy-development is the plaything of the domain name industry, and vice versa.
What we’re left with is a system where cybersquatting still pays and in which reverse domain hijacking can sometimes be a cheap way to get your hands on a domain you want.
And it looks like it could stay that way for some time to come.
The Final Issue Report now needs to be considered by the GNSO Council, presumably at its public meeting in Dakar, Senegal later this month.
I think the Council will almost certainly accept the report’s recommendations against a PDP with little argument – everybody has far too much other stuff to be worrying about at the moment.
It’s less clear to me whether the idea of an “expert panel” will find favor, however. That may be one of Dakar’s more interesting open questions.

Win $5,000 for your new gTLD idea

Afilias is offering $5,000 for the best idea about what to do with a new generic top-level domain.
The company has kicked off a competition today designed to stimulate interest in ICANN’s new gTLD program.
It said in a press release this evening:

With this contest, Afilias is looking for unique new TLD ideas, whether that domain is a “dot Brand” (for a company) or a “dot Niche” (for a concept or community) or a “dot City” domain. The goal is to discover ideas for “right of the dot” domains that cannot be done today with any of the existing domains, like .com or .net.

Basically, you send in your best new gTLD idea – not just a string, but an innovative way to use it – and you stand a chance of winning prizes of $5,000, $3,000 or $1,500.
The contest web page can be found here. The rules are here.
According to the press release, I’ve agreed to be on the judging panel, apparently as the latest stage of my ongoing campaign of utterly shameless self-promotion.
The other judges are former ICANN president Paul Twomey, Matthew Quint of the Center on Global Brand Leadership and David Rogers of BRITE, both at Columbia Business School, as well as Afilias’ CTO and CMO, Ram Mohan and Roland LaPlante.
I’m not sure what to expect, but it strikes me that if you have a halfway decent idea for a new gTLD – and you don’t actually plan to apply for it – you may not have much to lose by entering.
Afilias is accepting submissions until October 17, just two weeks from now, and the winners will be announced October 24.

Would an ICANN ethics policy break the law?

Calls for a new ethics policy to prevent a “revolving door” between ICANN and the domain name industry stepped up today, with the Association of National Advertisers entering the debate.
But would such a policy be illegal in ICANN’s home state of California?
The ANA and others wrote to ICANN today, in response to a public comment period on the question of whether ICANN should revise its conflicts of interest policy.
ICANN had asked whether the policy should be changed in order to let its board of directors vote to give themselves a salary. They’re currently all unpaid except the chair.
But the responses so far have instead largely focused on the perceived need to stop directors (and to a lesser extent staff) from taking lucrative industry jobs after they quit.
That was perhaps inevitable given the recent mainstream media coverage of former ICANN chair Peter Dengate Thrush, who took a high-paying job with new gTLD applicant Minds + Machines just a few weeks after helping to push through approval of the gTLD program.
The ANA’s president, Bob Liodice, wrote:

There is, at a minimum, legitimate reason for concern that the lack of adequate conflict of interest policies have led to the development of a growing perception that Mr. Thrush (and perhaps other senior staff who recently have left ICANN) may have let future career prospects influence their official duties.

(The other senior staffer he refers to could only be Craig Schwartz, the former chief gTLD registry liaison, who quit ICANN to join a likely .bank applicant in June.
While there are good reasons that Dengate Thrush’s move looks extremely fishy to outsiders, I’ve yet to hear any compelling arguments that Schwartz, who I don’t think had any high-level policy-making power anyway, did anything wrong.)
The ANA is of course the ring-leader of the ongoing campaign to get ICANN to rethink the new gTLD program in its entirety.
Liodice’s letter goes on to outline a number of suggestions, posed as questions, as to how ICANN could improve its conflict of interest policy, such as:

should ICANN consider reasonable restrictions or a moratorium on post‐service employment of ICANN staff by, or the contracting of such staff members with, parties under contract to ICANN, or whose businesses are materially affected by any decision made by the Board during the staff member’s tenure?

In other words: should ICANN staff be banned from joining registrars and registries after they leave?
In two other letters to ICANN today, Coalition for Online Accountability, International Trademark Association and American IP Law Association (collectively) and the French government make similar calls for future employment restrictions, albeit only for ICANN directors rather than staff.
But here’s another question: if the community asked ICANN to institute a revolving-door prevention policy, could it legally do so? A bit of digging suggests it might be tough.
According to the minutes of an August 15 meeting of ICANN’s Board Governance Committee:

The BGC discussed that as a private sector organization, ICANN is limited in its ability to place restrictions on future employment, though there are many things that ICANN can do to address these concerns, such as continued strict adherence and enforcement of confidentiality provisions.

The matter was also discussed by the full board at its retreat last month, and is on the agenda for the public meeting in Dakar, Senegal, at the end of October.
While ICANN does have pseudo-regulatory power (all enforced through contract) it is at the end of the day a California corporation, which is bound by California law.
And in California, it may not be legal to unreasonably restrict employees’ future job opportunities.
I’m not a lawyer, and this may not be applicable to ICANN for any number of reasons, but consider how California law deals with so-called “non-compete clauses” in employment contracts.
The text “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void” is on the California statute books.
And in 2008, the California Supreme Court interpreted this rather strictly, ruling that “non-competition agreements are invalid under section 16600 in California even if narrowly drawn”.
So could ICANN legally prevent staff or directors from jumping into the for-profit sector when they please? Is there any point in the community even debating the subject?
At this point, any members of the California Bar reading this are welcome to throw their $0.02 into the comments section below.

US and EU could see power diluted in ICANN

A proposed shakeup of how ICANN divides the world into geographic regions could shift power away from US and European Union citizens.
Working group recommendations just finalized after over two years of discussion would see dozens of countries join the European and North American regions.
If adopted by ICANN, the proposals could potentially reduce the number of Western European and American faces on the ICANN board of directors.
ICANN currently recognizes five regions: North America, Latin America/Caribbean, Europe, Africa and Asia/Pacific. Under its bylaws, each region needs to have at least one seat on the board, and no region may have more than five.
After two years of deliberations, the volunteer Geographic Regions Review Working Group has now recommended that the five regions stay, but that many countries should be shuffled between regions to more accurately describe their location.
The North America group currently comprises just the US and Canada, along with a small number of US overseas territories. Mexico inexplicably counts as Latin America.
If the working group’s proposals are adopted, North America would lose territories such as Guam and American Samoa and gain more than 20 Caribbean and North Atlantic island nations, such as Jamaica, Barbados and the Cayman Islands.
The net result of this would be that when new ICANN directors are selected, the North American pool of candidates could be much more geographically and culturally diverse.
Europe’s boundaries would also be redrawn to encompass nations in the Middle East, which are currently assigned to the Asia/Pacific group.
Nations such as Iran, Saudi Arabia and Israel would join Europe, as would former Soviet states such as Georgia, Tajikistan and Armenia. In total, Europe would get 24 new countries.
Some former colonial territories currently assigned to Europe due to their political heritage rather than their actual location would be shuffled into a more geographically appropriate region.
The British-owned Falklands would move to Latin America, for example, while French Polynesia and the British Indian Ocean Territory would join the Asia/Pacific region.
Again, a result of this reshuffle is that a region currently dominated by EU and other Western European states would have to be shared by a more diverse group of stakeholders.
Many of the moves make a lot of sense. In the current set-up, for example, the largely Greek-speaking EU nation Cyprus is in the same “geographic region” as Australia, some 9,000 miles away.
The new borders have been recommended to match the way the regions are currently handled by the five Regional Internet Registries, which allocate IP addresses to network operators.
The working group, in deciding to use the RIRs’ jurisdiction as a baseline, wrote in its report (pdf):

Fundamentally, ICANN is a technical organization and so aligning regions with the technical “infrastructure” of the numbering resource allocation system seems logical and defensible.
If adopted without modification, a total of 62 countries and territories would move to new regions, but many of these are the result of assigning territories to their geographic region rather than to the region of their mother country

The decision to stick at five regions will come as a blow to Arab states and some island nations, which had lobbied for new regions to be created to reflect their interests.
The working group has also recommended that any country or territory that wants to stick with its existing region is entitled to do so, but that once they do they’re locked into that decision for 10 years.
ICANN has opened the proposals to a longer-than-usual period of public comment, starting today and ending December 19, presumably in order to give the Governmental Advisory Committee and its members plenty of time to prepare reactions.
It seems unlikely we’ll see any formal adoption of the recommendations before the Costa Rica ICANN meeting in March 2012 at the earliest.

First video of ICANN’s new gTLDs outreach

Here’s what I believe is the first publicly available video from ICANN’s ongoing new top-level domains marketing road-trip, which kicked off earlier this month.
CEO Rod Beckstrom, along with a small entourage of ICANN staffers, attended a breakfast panel discussion of new gTLDs at the London offices of PR company Edelman on September 20.
Also on the panel, moderated by Edelman’s Jonathan Hargreaves, were: Lesley Cowley, CEO of .uk registry Nominet; Lorna Gradden, director of brand-focused registrar Com Laude; and me.
There were roughly 75 people in the audience, which I’ve heard is somewhat more than showed up to similar ICANN panels in Berlin and Paris later in the week.
I know from conversations after the camera stopped rolling that a decent number of attendees were from outside the domain name industry – potential applicants – but the questions you’ll hear on the video pretty much all come from those with a closer interest in the new gTLD program.
As I’ve been reporting, ICANN is taking a softly-softly approach to outreach, saying it’s trying to “educate not advocate”, which is also evident in this video.
My main takeaway – and the story I would have written had I been in the audience taking notes rather than on the panel not – is that some of the recommendations of the JAS working group on new gTLD developing-world applicant support appear to be stillborn.
In the meantime, here’s all 68 minutes of the video.

Will URS really be as cheap as ICANN says?

I’m having a hard time believing that trademark holders will be able to enforce their rights in new top-level domains for just $300.
The Uniform Rapid Suspension policy (pdf) is one of the new systems ICANN is putting in place to deter cybersquatters from abusing trademarks in new gTLDs.
It’s very similar to the existing UDRP, but it’s quicker and it only deals with the suspension – not transfer – of infringing domain names.
No URS arbitration provider has yet been appointed, but ICANN’s Applicant Guidebook, which spells out the policy, currently estimates a price of $300 per single-domain filing.
At least twice during the newdomains.org conference in Munich this week I heard ICANN representatives quote a price between $300 and $500.
I’m wondering how realistic this is.
Typically, domain arbitration fees are split between the provider, which receives a third, and the panelist, who receives the remaining two thirds.
With a $300 fee, that’s $100 to the provider and $200 to the sole panelist – who must be an experienced trademark lawyer or similar – compared to a $500/$1,000 split with the UDRP.
My question is: how many trademark lawyers will get out of bed for $200?
The URS gives panelists between three and five days to come up with a decision, but I’m guessing that you’d be lucky, for $200, to buy three to five hours of a panelist’s time.
Even I charge more than $200 for half a day’s work.
The Rapid Evaluation Service recently introduced by ICM Registry, which serves essentially the same purpose as URS but for the .xxx gTLD, costs $1,300 in National Arbitration Forum fees.
Like URS, the RES is designed for a speedy turnaround – just three days for a preliminary evaluation – of clear-cut cybersquatting cases.
Like URS, complaints submitted using RES have a tight word-count limit, to minimize the amount of work panelists have to do.
With that in mind, it seems to me that a $300 fee for URS may be unrealistic. Even the $500 upper-end ICANN estimate may be optimistic.
It will be interesting to see if ICANN’s negotiating clout with likely URS providers is better than ICM’s and, more importantly, to see whether $200 is enough to buy consistent, reliable decisions from panelists.

AusRegistry wins .jewelers deal

GJB Partners, one of the few companies to recently announce a commercial new top-level domain bid, has selected AusRegistry International to provide the back-end registry for .jewelers.
It’s the first non-geographic TLD contract win AusRegistry has announced this year.
While it’s probably a small deal, it’s notable because one of GJB’s managing partners is George Bundy, CEO of BRS Media, the registry for .fm and a potential .radio applicant.
BRS is currently the only public reference customer for Espresso, the registry platform offered by Minds + Machines, an AusRegistry competitor.