.brand TLDs still face barriers

Companies planning to apply for “.brand” top-level domains still have concerns that ICANN’s new gTLD program does not adequately cater to their unique requirements.
ICANN has so far resisted calls from the likes of the Coalition for Online Accountability to create clearly delineated categories of gTLD, instead favoring the one-size-fits-all approach.
But one type of gTLD where the Applicant Guidebook has started to introduce exceptions to the rules is the so-called “.brand”.
In its latest draft, for example, the Guidebook’s Code of Conduct for vertically integrated registries/registrars does not apply to single-registrant TLDs such as .brands.
The Guidebook also makes it mostly clear that ICANN does not intend to re-assign .brands to different registry operators in the event that the brand decides to discontinue the TLD.
But those who are working with potential .brand applicants still have concerns.
Co-existence
Arguably biggest outstanding problem to emerge from the latest set of comments filed with ICANN is the notion of “co-existence”, raised by the likes of Valideus, ECTA and the Business Constituency.
The Guidebook currently calls for TLDs that are potentially confusing in meaning or appearance to be lumped into the same “contention sets” from which only one winner will emerge.
The worry is that this will capture companies with similar sounding brands. ECTA called for a mechanism to exclude .brands from these requirements:

The Draft Applicant Guidebook 6 does not take into account either co‐existence agreements or natural co‐existence. Currently a successful application from NBC in round one would preclude ABC or BBC or NBA in future years. Equally, should both EMI, the music company and ENI, the energy company apply, they would be placed in a Contention Set and could in theory face each other in an auction. In the real world these companies co‐exist.

It’s an interesting point, and not one that’s received a great deal of airplay in recent discussions.
There’s also the problem that companies with two-letter brands, such as HP or BP, are essentially banned from getting their .brand, because there’s a three-letter minimum on new TLDs.
Geographic name protections
The ICANN Governmental Advisory Committee has pushed hard for the protection of geographical terms at the second level in new gTLDs, and has won significant concessions.
One of the results of this is that if Canon, say, has .canon approved, it will be unable to immediately use usa.canon or japan.canon domains names – one of the most logical uses of a .brand.
ICANN plans to enable registries to loosen up these restrictions, but the Guidebook does not currently spell out how this will happen, which leaves a significant question mark over the value of a .brand.
ECTA wrote in its comments to ICANN:

This prohibition severely limits brand owners unnecessarily. On the contrary a .brand domain should provide clients with an intuitive replacement for ccTLDs. It would seem to be more logical if Internet users could replace www.mycompany.de with www.de.mycompany rather than having to type www.mycompany/de.

Registrar discrimination
The BC has called for the Guidebook to be rephrased to made it clear that .brand TLDs should not have to offer their domains through a multitude of registrars on “non-discriminatory” terms.
The BC wants this language adding to the rules: “Single-Registrant TLDs may establish discriminatory criteria for registrars qualified to register names in the TLD.”
Given .brands will have essentially one customer, it would be a pretty crazy situation if more than one registrar was approved to sell them. It may be a hypothetical risk, but this is a strange industry.
UDRP
All new gTLD registries will have to abide by the Uniform Dispute Resolution Process. The problem is that successful UDRP cases generally result in a domain name being transferred to the complainant.
This could result in a situation where a third-party trademark holder manages to win control a domain name in a competitor’s .brand TLD, which would be intolerable for any brand owner.
The BC suggests that domains won in this way should be allowed to be set to “reserved and non-resolving” instead of changing hands.

Three strikes UDRP rule worries Demand Media

Demand Media and the Internet Commerce Association have called for ICANN to drop the “three strikes and you’re out” ban on applying for new top-level domains.
In the current version of ICANN’s Applicant Guidebook, if you’ve lost three UDRP cases in the last four years you’re considered a cybersquatter and effectively barred from applying for a new TLD.
It’s not entirely clear, but it is quite possible that this provision may capture Demand Media and Go Daddy, which, via subsidiary companies, have lost several UDRP complaints.
In comments filed with ICANN yesterday, Demand senior vice president Jeff Eckhaus said that a simple “three strikes” benchmark does not prove a pattern of cybersquatting:

losing a few contested UDRP cases in what amounts to a tiny percentage of their total domain name portfolio certainly doesn’t seem to constitute a “pattern” as most people would define the term
…
by all reasonable standards, it is difficult to conclude that an entity or an individual has engaged in a history/pattern of cybersquatting when they own hundreds or thousands of domain names and have lost a few UDRP or similar proceedings.

The ICA, which represents high-volume registrants, also has a problem with the rule. Principal Phil Corwin wrote ICANN:

We continue to believe that the “three strikes” criteria is too inflexible and that applicant evaluation criteria should take into account the total size of an applicant’s domain portfolio as well as the percentage of adverse UDRP decisions rendered against them in comparison to all UDRP proceedings they have been involved with.

Demand also argues that three strikes is “extremely broad standard that we believe will unintentionally disqualify otherwise qualified applicants.”
That strikes me as quite a weak argument, which could be equally applied to any of the background checks in the Guidebook. A murder conviction will also “disqualify otherwise qualified applicants”.
I’m not sure it’s “unintentional” in either case. If you work from the assumption that ICANN expects Demand and other speculators to successfully apply for new TLDs, it is. If you assume it’s designed to make their lives more difficult, it isn’t.
But Corwin noted in his comments that ICANN can waive the ban in “exceptional circumstances”, and said he suspects this could be used to allow large registrars to pass the background checks.
In any event, as Andrew Allemann has pointed out at Domain Name Wire, the way the Guidebook is phrased there may well be a loophole that would allow Demand and others to slip through.
Go Daddy, which DNW also reports could be affected by the rule, does not appear to have filed any comments on the latest Applicant Guidebook yet.

Governments back Olympic domain bans

ICANN’s Governmental Advisory Committee has called for a ban on domain names containing terms relating to the Red Cross and Olympics movements.
Both organizations have for some time been calling for their trademarks to be added to the list of specially reserved strings that nobody will be able to register under new top-level domains.
The GAC “strongly supports” these demands.
In a piece of uncharacteristically straightforward advice (expect much more of this in the wake of the .xxx decision), GAC chair Heather Dryden wrote to ICANN:

The GAC advises the ICANN Board to approve these requests and to direct staff to reflect the Board’s approval in the May 30, 2011 version of the Applicant Guidebook.

It’s special pleading, of course, but there’s plenty of precedent for the Olympics, Red Cross and Red Crescent being given special protection under national laws, as Dryden notes in her letter.
I’d guess that this is a bone ICANN may be willing to throw, given that it has more important unresolved issues still to discuss with the GAC, some of which could delay the new gTLD program.
The Applicant Guidebook’s current list of reserved names includes the names of ICANN and related organizations, several terms used in networking, and country names.

What happened to ICANN’s .net millions?

Questions have been raised about how ICANN accounts for the millions of dollars it receives in fees from .net domain name registrations.
The current .net registry agreement between ICANN and VeriSign was signed in June 2005. It’s currently up for renewal.
Both the 2005 and 2011 versions of the deal call for VeriSign to pay ICANN $0.75 for every .net registration, renewal and transfer.
Unlike .com and other TLDs, the .net contract specifies three special uses for these fees (with my emphasis):

ICANN intends to apply this fee to purposes including:
(a) a special restricted fund for developing country Internet communities to enable further participation in the ICANN mission by developing country stakeholders,
(b) a special restricted fund to enhance and facilitate the security and stability of the DNS, and
(c) general operating funds to support ICANN’s mission to ensure the stable and secure operation of the DNS.

However, almost six years after the agreement was executed, it seems that these two “special restricted funds” have never actually been created.
ICANN’s senior vice president of stakeholder relations Kurt Pritz said:

To set up distinctive organizations or accounting schemes to track this would have been expensive, complex and would have served no real value. Rather — it was intended that the ICANN budget always include spending on these important areas — which it clearly does.

He said that ICANN has spent money on, for example, its Fellowships Program, which pays to fly in delegates from developing nations to its thrice-yearly policy meetings.
He added that ICANN has also paid out for security-related projects such as “signing the root zone and implementing DNSSEC, participating in cross-industry security exercises, growing the SSR organization, conducting studies for new gTLDs”.
These initiatives combined tally up to an expenditure “in excess of the amounts received” from .net, he said.
It seems that while ICANN has in fact been spending plenty of cash on the projects called for by these “special restricted funds”, the money has not been accounted for in that way.
Interestingly, when the .net contract was signed in 2005, ICANN seemed to anticipate that the developing world fund would not be used to pay for internal ICANN activities.
ICANN’s 2005-2006 budget, which was approved a month after the .net deal, reads, with my emphasis:

A portion of the fees paid by the operator of the .NET registry will become part of a special restricted fund for developing country Internet communities to enable further participation in the ICANN mission by developing country stakeholders. These monies are intended to fund outside entities as opposed to ICANN staff efforts.

That budget allocated $1.1 million to this “Developing Country Internet Community Project”, but the line item had disappeared by time the following year’s budget was prepared.
Phil Corwin from the Internet Commerce Association estimates that the $0.75 fees added up to $6.8 million in 2010 alone, and he’s wondering how the money was spent.
“We believe that ICANN should disclose to the community through a transparent accounting exactly how these restricted funds have actually been utilized in the past several years,” Corwin wrote.
He points out that the contract seems to clearly separate the two special projects from “general operating funds”, which strongly suggests they would be accounted for separately.
Given that .net fees have been lumped in with general working capital for the last six years, it seems strange that the current proposed .net registry agreement still calls for the two special restricted funds.
The oddity has come to the attention of the ICA and others recently because the new proposed .net contract would allow VeriSign for the first time to offer differential pricing to registrars in the developing world.
The agreement allows VeriSign to “provide training, technical support, marketing or incentive programs based on the unique needs of registrars located in such geographies to such registrars”, and specifically waives pricing controls for such programs.
It seems probable that this amendment was made possible due to the .net contract’s existing references to developing world projects.
Corwin said ICA has nothing against such programs, but is wary that existing .net registrants may wind up subsidizing registrants in the developing world.

VeriSign settles CFIT lawsuit for free

VeriSign has settled its five-year-old antitrust lawsuit with the Coalition For ICANN Transparency. What’s more, it’s done so without having to sign a big check.
The company has just released a statement to the markets:

Under the terms of the Agreement, no payment will be made and the parties immediately will file a dismissal with prejudice of all claims in the litigation. Further, the parties executed mutual releases from all claims now and in the future related to the litigation.
CFIT voluntarily agreed to dismiss its claims in their entirety with prejudice in view of recent developments in the case, including the Amended Opinion of the United States Court of Appeals for the Ninth Circuit, the subsequent orders of the United States District Court for the Northern District of California, San Jose Division dismissing the claims regarding .Net and for disgorgement, and VeriSign’s motion for summary judgment.

On the face of it, this looks like a huge win for VeriSign, which has been facing questions about the CFIT suit from analysts on pretty much every earnings call since it was filed.
The original complaint alleged that VeriSign and ICANN broke competition law with their .com and .net registry agreements, which allow the company to raise prices every year.
Had CFIT won, it would have put a serious cramp on VeriSign’s business.
In February, a California judge dismissed the case, saying that CFIT’s membership did not having standing to sue. CFIT was given leave to amend its complaint, however, but that does not seem to have been enough to save its case.
According to a Securities and Exchange Commission filing, CFIT’s members were: iRegistry, Name Administration, Linkz Internet Services, World Association for Domain Name Developers, Targeted Traffic Domains, Bret Fausett, Howard Neu and Frank Schilling.

Europe and US to meet on .xxx and new TLDs

European Commissioner Neelie Kroes is to meet with the US Department of Commerce, a month after she asked it to delay the launch of the .xxx top-level domain.
Tomorrow, Kroes will meet with Larry Strickling, assistant secretary of the National Telecommunications and Information Administration, according to a press release:

This follows the controversial decision of the ICANN Board in March to approve the “.XXX” Top Level Domain for adult content. Ms Kroes will make clear European views on ICANN’s capacity to reform. In particular, Ms Kroes will raise ICANN’s responsiveness to governments raising public policy concerns in the ICANN Governmental Advisory Council [Committee] (GAC) , the transparency and accountability of ICANN’s internal corporate governance and the handling of country-code Top Level Domains for its most concerned public authorities.

In April, Kroes asked Strickling’s boss, Commerce Secretary Gary Locke, to put a hold on the addition of .xxx to the domain name system root until the GAC had chance to discuss it further.
Strickling declined, saying that for the US to take unilateral action over the root would provide ammunition to its critics in the international community.
The US and EC are two of the most active and vocal participants in the GAC – at least in public. Whatever conclusions Strickling and Kroes come to tomorrow are likely to form the basis of the GAC’s short-term strategy as negotiations about new TLDs continue.
ICANN’s board is scheduled to meet with the GAC on May 20, for an attempt to come to some final conclusions about the new gTLD program, particularly in relation to trademark protection.
ICANN wants to approve the program’s Applicant Guidebook on June 20, but is likely to face resistance from governments, especially the US.
Strickling has indicated that he may use the upcoming renewal of ICANN’s IANA contract as leverage to get the GAC a stronger voice in ICANN’s decision-making process.

ICANN gets Boing-Boinged over URS

Boing-Boing editor Cory Doctorow caused a storm in a teacup yesterday, after he urged his legions of readers to complain to ICANN about copyright-based domain name seizures and the abolition of Whois privacy services in .net.
Neither change has actually been proposed.
The vast majority of the comments filed on VeriSign’s .net contract renewal now appear to have been sent by Boing-Boing readers, echoing Doctorow’s concerns.
Doctorow wrote: “Among the IPC’s demands are that .NET domains should be subject to suspension on copyright complaints and that anonymous or privacy-shielded .NET domains should be abolished.”
Neither assertion is accurate.
Nobody has proposed abolishing Whois privacy services. Nobody has proposed allowing VeriSign to seize domain names due to copyright infringement complaints.
What has happened is that ICANN’s Intellectual Property Constituency has asked ICANN to make the Uniform Rapid Suspension policy part of VeriSign’s .net contract.
URS is a variation of the long-standing UDRP cybersquatting complaints procedure.
It was created for the ICANN new gTLD Program and is intended to be cheaper and quicker for trademark holders than UDRP, designed to handle clear-cut cases.
While the URS, unlike UDRP, has a number of safeguards against abusive complaints – including an appeals mechanism and penalties for repeat reverse-hijacking trolls.
But the domainer community is against its introduction in .net because it has not yet been finalized – it could still be changed radically before ICANN approves it – and it is currently completely untested.
The IPC also asked ICANN and VeriSign to transition .net to a “thick” Whois, whereby all Whois data is stored at the registry rather than with individual registrars, and to create mechanisms for anybody to report fake Whois data to registrars.
Not even the IPC wants Whois privacy services abolished – chair Steve Metalitz noted during the Congressional hearing on new gTLDs last week that such services do often have legitimate uses.

The 10 dumbest moments from that new TLDs Congressional hearing

The US House of Representatives last week held an oversight hearing into ICANN’s new top-level domains program.
As I may have mentioned, the House Subcommittee on Intellectual Property, Competition and the Internet hearing was set up to be pretty one-sided stuff.
It was clear from the start that ICANN senior vice president Kurt Pritz was going to have his work cut out, given how the panel of five other witnesses was loaded against him.
But as the hearing played out, it quickly became apparent that the real challenge lay not with his fellow witnesses — most of whom were either sympathetic to ICANN from the outset or occasionally forced to leap to its defense — but with the members of the Subcommittee.
While some Congressmen had merely bought into the positions of the trademark lobby, others were so far out of their depth you couldn’t even see the bubbles.
Here, in purely my personal opinion and in no particular order, are the Top 10 Dumbest Moments.
1. Chairman Goodlatte buys the FUD
Subcommittee chairman Bob Goodlatte’s opening statement appeared to have been written with significant input from the intellectual property lobby.
At the very least, he seemed to have accepted some of the more extreme and questionable positions of that lobby as uncontroversial fact.
Two examples:

With every new gTLD that is created, a brand holder will be forced to replicate their internet domain portfolio.
…
The roll-out of these new gTLDs will also complicate copyright enforcement, making it harder and more costly to find and stop online infringers.

He also, on more than one occasion, advocated a “trademark block list” – the Globally Protected Marks List, an idea even the ICANN Governmental Advisory Committee has now rejected.
2. Whois privacy services are Bad
A couple of Congressmen and a couple of witnesses stated that Whois accuracy needs to be enforced more stringently by ICANN, and that Whois proxy/privacy services help criminals.
I took the liberty of doing Whois queries on the official campaign web sites of all 25 members of the Subcommittee, and found that 11 of them use privacy services.
That’s 44% of the committee. Studies have estimated that between 15% and 25% of all registrations use proxy/privacy services, so Congressmen appear to be relatively hard users.
Here’s the list:
Rep. Steve Chabot, Rep. Darrell Issa, Rep. Mike Pence, Rep. Jim Jordan, Rep. Ted Poe, Rep. Jason Chaffetz, Rep. Ben Quayle, Rep. Ted Deutch, Rep. Jerry Nadler, Rep. Zoe Lofgren, Rep. Tim Griffin.
It also turns out that dei.com, the domain name Rep. Issa bragged about owning during the hearing, has phoney data in its Whois record.

You can report him to ICANN here, if you’re so inclined.
It’s likely, of course, that these domains were registered by their staff, but I think we’re allowed to hold Congressmen to at least the same high standard they expect of the rest of us.
3. New TLDs will help porn typosquatters
Mei-lan Stark, an IP lawyer from Fox and the International Trademark Association, used the recent UDRP case over myfox2detroit.com as an example of abuse that could happen in new TLDs.
The domain directed visitors to a porn-laden link farm and was rightly deemed by WIPO to be confusingly similar to myfoxdetroit.com, the genuine Fox 2 Detroit site.
But, as Pritz pointed out later in the hearing, myfox2detroit.com is a .com domain. It’s not in a “new” TLD.
Fox, it transpires, has not registered the string “myfoxdetroit” in any other gTLD. Neither have the cybersquatters. It’s clearly not a brand that is, or needs to be, on Fox’s defensive registrations list.
That said, the “typo” myfoxdetroit.co, along with several other Fox .co domains, has been actually cybersquatted, so maybe Stark had a point.
4. Say Watt?
Rep. Mel Watt, the Subcommittee’s ranking member, couldn’t get a handle on why the pesky foreigners aren’t able to use their own non-Latin scripts in existing gTLDs.
I was beating my head against my desk during this exchange:

[After Stark finished explaining that she thinks IDN gTLDs are a good idea]
Watt: So, you think other languages. And that can’t be done in the .com, .net lingo as well?
Stark: Not today. Not the way the system is currently.
Watt: Yeah, well, not the way it’s done today, but what’s the difference? You all keep talking about innovation. Changing somebody’s name is not innovation. Allowing somebody to use a different name is not innovation. That’s not adding anything new to life that I can tell. Mr DelBianco, Mr Metalitz, help me here.
DelBianco: You’re right, just adding a new label to an existing page or content doesn’t really truly create innovation. However, 56% of the planet cannot even type in the domain name…
Watt [interrupting]: That’s not a function of whether you call something “Steve” or whether you call it “net” is it? You can put the Steve in front of the net, or you can put it dot-net, dot-Steve, dot-Watt, Steve, Steven…. you haven’t really created anything new have you?
DelBianco: You haven’t there, but 56% of our planet can’t use our alphabet when they read and write…
Watt [interrupting]: Tell me how this is going to make that better as opposed to what we have right now.
DelBianco: For the first time an Arabic user could type an entire email address in all Arabic, or a web site address in all Arabic.
Watt [interrupting]: Why can’t the current system evolve to do that without new gTLDs?

To Watt’s credit, he did put the witnesses on the spot by asking if any of them were opposed to new gTLDs (none were), but by the time his five minutes were up he was in serious danger of looking like a stereotypically insular American politician.
5. New TLDs are like T-shirts (or something)
Almost everything the NetChoice Coalition’s Steve DelBianco said, whether you agree with his positions or not, was sensible.
But when he started producing props from under the table, including one of the bright yellow custom “TLD-shirts” that AusRegistry International has been printing at recent ICANN meetings, I was giggling too hard to follow his train of thought.
Apparently the new TLDs program is like a T-shirt printing machine because, well… a T-shirt printing machine is more complicated than a label maker, which was the visual simile DelBianco used last time he appeared before the Subcommittee.
It was fun to see Congressmen treated like five-year-old kids for a minute. God knows some of them deserved it.
6. New TLDs will cost Fox $12 million
Stark stated that Fox has about 300 trademarks that it will need to enforce in new TLDs. Given ICANN has predicted 400 new TLDs, and estimating $100 per defensive registration, she “conservatively” estimated that Fox will have to pay $12 million to protects its marks in the first round.
Really?
The same ICANN study that estimated 400 applications being filed in the first round also estimated that as many as 200 of them are likely to be “.brand” TLDs in which Fox will not qualify to register.
A substantial proportion of applications are also likely to have a “community” designation and a restricted registrant policy that, in many cases, will also exclude Fox.
Does Fox really also need to register 300 brands in every city TLD or linguistic TLD that will be approved? Does Fox News broadcast in Riga? Does it have a Basque language TV station?
Not even World Trademark Review was convinced.
7. China is going to take over the internets
The Subcommittee spent far too much time talking around this meme before deciding that China is a sovereign nation that can do pretty much whatever it wants within its own borders and that there’s nothing much a House committee can do about it.
8. Literally everything that came out of Rep. Issa’s mouth
Former car alarm entrepreneur Darrell Issa talked confidently, as if he was the guy on the committee with the geek credentials, but pretty much everything he said was witless, impenetrable waffle.
He started with the premise that it costs a “fraction of a fraction of a fraction of a fraction of a penny” to route traffic to an IPv6 address (why this is relevant, he didn’t say), then asked:

Why, when I go to Go Daddy, do I have to pay between $10 and $10,000 for a name and not from a tenth of a cent to 10 cents for a name?
…
Why in the world are there so many reserved [ie, registered] names? If I want a good name from Go Daddy… the good names, that I might want, have been already pre-grabbed and marketed in an upward way, higher. Why is it that they’re not driven down? Real competition would imply that those names are driven down to a penny for a user and prohibited from being camped on in order to resell.

Issa is a Republican, so I was quite surprised to hear him apparently advocate against the free market and the rule of supply and demand in this way, and with such a poor grasp of the economics.
Issa’s premise that it costs an imperceptible fraction of a cent to resolve a domain may be true, but only if you’re talking about a single resolution. VeriSign alone handles 57 billion such queries every day.
It adds up. And that’s just resolution, ignoring all the costs carried by the registries and registrars, such as payment processing, security, marketing, Whois (and, in the case of Issa’s domains, Whois privacy and accuracy enforcement), paying staff, rent, facilities, hardware, bandwidth…
Pritz told Issa as much, but he didn’t seem interested in the answer. He instead turned to CADNA’s Josh Bourne, to ask a meandering question that, after listening to it several times, I still don’t understand.
9. Rod Beckstrom gets paid millions
Rep. Maxine Waters was very concerned that ICANN CEO Rod Beckstrom has a salary of over $2 million, “guaranteed”.
She flashed up a copy of what I believe was probably Mike Berkens’ The Domains article about ICANN salaries, from early 2010, but she clearly hadn’t read beyond the headline.
Beckstrom’s salary is $750,000 per annum. He can (and does) get a bonus if he hits his undisclosed performance targets, but it still adds up to less than $1 million a year and pales in comparison to what he’s probably going to earn when he leaves ICANN.
As Berkens accurately reported, Beckstrom has a three-year contract, so he gets a minimum of $2.2 million in total over the period he’s employed as ICANN’s CEO.
People can (and do, continually) question whether he’s earning his money, particularly when he does things like not turning up to Congressional hearings, but his salary is not set at anywhere near the level the Subcommitee heard.
10. This is so important we need more hearings (btw, sorry I’m late)
Several Congressmen called for further hearings on new gTLDs. They’re shocked, shocked, that ICANN is considering doing such a thing.
Some of those calling for further scrutiny weren’t even in the room for much of the hearing, yet saw fit to decree that the subject was so important that they needed more time to investigate.
Whether this turns out to be just more political theater remains to be seen.

“Corruption” claims as .africa fight heats up

The fight for the right to run .africa as a top-level domain has been heating up in recent weeks, culminating today in claims of “corruption” and “large-scale illegality”.
A organization called DotConnectAfrica has been mustering support for .africa for a few years, but since March it has faced a rival bid from AfTLD, an association of African country-code TLDs.
The contest has already degenerated into quite a fierce war of words, with allegations of corruption coming from one side and counter-claims of FUD coming from the other.
DCA claims the AfTLD initiative is using “double-dealing” to “unfairly” win the endorsement of the African Union, while AfTLD says DCA is using “intimidation” to get its way.
Under ICANN’s proposed rules, any entity that wants to apply for a TLD purporting to represent a large geographic region must secure the support of 60% of the nations in that region.
It’s not explicit, but it’s quite possible that African Union support may cover this requirement. Backing from the AU therefore could be the deal-breaker for .africa bidders.
DCA has a letter, signed by AU Commission chair Jean Ping, dated August 2009, which offers to support the DCA application.
But there’s good reason to believe that this support may have been revoked last year, and that the AU Commission has opened up its options once more.
The Commission last November annnounced (pdf) a new Task Force, charged with finding an entity to act as the official applicant for .africa when the ICANN new gTLD program opens.
DCA seems to believe that this Task Force has been captured by supporters of the rival AfTLD bid. In a press release today, it says:

there is a dangerous nexus between a certain cabal within the AU Task Force on Dot Africa and the AfTLD – and this nexus has been established in order to disingenuously facilitate ‘insider’ help for AfTLD’s Expression of Interest to the AU and prospective bid to ICANN.

The release goes on to make a number of allegations, such as:

AU Task Force members on DotAfrica are also advisors and confederates of AfTLD. DCA believes that such affiliations are unwholesome and foster corruption, nepotism, abuse of office, and large-scale illegality.

DCA appears to be concerned (to put it lightly), that some of the members of the AU Commission Task Force appear to have conflicts of interest.
The Task Force’s chair, Pierre Dandjinou, and its vice-chair, Nii Quaynor (a former ICANN director) have both previously put their names to a different and now apparently defunct .africa project that also intended to compete with DCA for .africa.
Another member of the Task Force, Abibu Ntahigiye, manager of Tanzania’s .tz domain, also appears to sit on the executive committee of AfTLD as its treasurer.
I’m not sure if any of this cross-pollination meets the definition of “corruption” or “illegality”, but I can understand why DCA is worried.
The DCA press release follows an AfTLD meeting in Ghana last month at which attendees were urged to “don’t believe what others claim” and “entertain no intimidation” when it comes to the .africa contest.
A presentation (pdf) delivered by AfTLD general manager Vika Mpisane says: “AfTLD, just like the AU, recognizes no any alleged pre-endorsements of any alleged bidder by the AU.”
Mpisane has been quoted recently heavily implying that DCA plans to put its commercial interests before the good of Africans, saying:

On one side is the self-serving commercial interest that some entities are already championing; these are entities that are in it purely for the money; on the other side is a community-serving commercial interest that most of the African internet community prefers.

AfTLD says it recently closed an RFP for a back-end registry provider to join its bid for .africa (and .afrique, which it also plans to apply for) and will announce the winner soon.
The AU Commission is expected to launch an RFP for a registry manager to endorse.

ICANN tries to dodge .jobs legal fees

“Please don’t sue us!”
That’s the message some are taking away from the latest round of published correspondence between lawyers representing ICANN and .jobs registry Employ Media.
Employ Media last week said it will take ICANN to the International Chamber of Commerce, after they failed to resolve their dispute over the company’s controversial Universe.jobs venture.
Now ICANN has asked the registry’s executives to return to the negotiating table, apparently to reduce the risk of having to spend millions of dollars on lawyering.
In a letter (pdf) to Employ Media’s attorneys, ICANN outside counsel Eric Enson of Jones Day said that ICANN wishes to avoid “costly legal fees associated with arbitration or litigation”:

I again request a meeting among the business persons involved in this matter to discuss potential resolutions before spending more of ICANN’s funding on unnecessary litigation.

The latest round of published correspondence, like the last one, and the one before that, seems to contain a fair bit of legal posturing, with both sides accusing the other of conducting negotiations in “bad faith” for various reasons.
Filing the arbitration notice with the ICC might turn out to be a smart move by Employ Media, knowing how risk-averse and cash-conscious ICANN is.
ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain.
ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures.
But that may well turn out to be small beer compared to the price of losing arbitration against the .jobs registry.
Unlike the IRP, in which both parties pay their own lawyers no matter who wins, Employ Media’s contract states that the losing party in arbitration must pay the legal fees of the winner.
To go up against .jobs at the ICC and lose could hit ICANN’s coffers harder than the .xxx dispute, in other words. That’s not to say it would lose, but with matters as complex as this there is that risk.
It’s worth noting that Employ Media’s lead attorney has form when it comes to reaching into ICANN’s pockets – Crowell & Moring’s Arif Ali also represented ICM Registry in the .xxx IRP case.