Under global spotlight, ICANN forced to choose between GAC and the GNSO

ICANN has angered the Generic Names Supporting Organization and risks angering the Governmental Advisory Committee as it prevaricates over a controversial rights protection mechanism.
It looks like the ICANN board of directors is going to have decide whether to reject either a hard-won unanimous consensus GNSO policy recommendation or a piece of conflicting GAC advice.
ICANN is “stuck in a bind”, according to chairman Steve Crocker, and it’s a bind that comes at a time when the bottom-up multi-stakeholder process is under the global microscope.
The issue putting pressure on the board this week at the ICANN 49 public meeting here in Singapore is the protection of the names and acronyms of intergovernmental organizations.
IGOs pressured the GAC a few years ago into demanding protection in new gTLDs. They want every IGO name and acronym — hundreds of strings — blocked from registration by default.
For example, the Economic Cooperation Organization would have “economiccooperationorganization” and “eco” blocked at the second level in all new gTLDs, in much the same way as country names are reserved.
Other IGO acronyms include potentially useful dictionary-word strings like “who” and “idea”. As I’ve said before, protecting the useful acronyms of obscure IGOs that never get cybersquatted anyway is just silly.
But when ICANN approved the new gTLD program in 2011, for expediency it placed a temporary block on some of these strings and asked the GNSO to run a formal Policy Development Process to figure out a permanent fix.
In November 2012 it added hundreds more IGO names and acronyms to the list, while the GNSO continued its work.
The GNSO concluded its PDP last year with a set of strong consensus recommendations. The GNSO Council then approved them in a unanimous vote at the Buenos Aires meeting last November.
Those recommendations would remove the IGO acronyms from the temporary reserved names list, but would enable IGOs to enter those strings into the Trademark Clearinghouse instead.
Once in the TMCH, the acronyms would be eligible for the standard 90-day Trademark Claims mechanism, which alerts brand owners when somebody registers a name matching their mark.
The IGOs would not, however, be eligible for sunrise periods, so they wouldn’t have the special right to register their names before new gTLDs go into general availability.
The PDP did not make a recommendation that would allow IGOs to use the Uniform Rapid Suspension service or UDRP.
Unfortunately for ICANN, the GNSO recommendations conflict with the GAC’s current advice.
The GAC wants (pdf) the IGOs to be eligible for Trademark Claims on a “permanent” basis, as opposed to the 90-day minimum that trademark owners get. It also wants IGOs — which don’t generally enjoy trademark protection — to be made eligible for the URS, UDRP or some similar dispute resolution process.
Since Buenos Aires, the ICANN board’s New gTLD Program Committee has been talking to the GAC and IGOs about a compromise. That compromise has not yet been formally approved, but some initial thinking has been circulated by Crocker to the GAC and GNSO Council.
ICANN proposes to give IGOs the permanent Trademark Claims service that the GAC has asked for, as well as access to the URS. Both policies would have to be modified to allow this.
It would also create an entirely new arbitration process to act as a substitute for UDRP for IGOs, which are apparently legally unable to submit to the jurisdiction of national courts.
The compromise, while certainly overkill for a bunch of organizations that could hardly be seen as ripe cybersquatting targets, may seem like a pragmatic way for the board to reconcile the GNSO recommendations with the GAC advice without pissing anyone off too much.
But members of the GNSO are angry that the board appears to be on the verge of fabricating new policy out of whole cloth, ignoring its hard-won PDP consensus recommendations.
That’s top-down policy-making, something which is frowned upon within ICANN circles.
Under the ICANN bylaws, the board is allowed to reject a GNSO consensus recommendation, if it is found to be “not in the best interests of the ICANN community or ICANN”. A two-thirds majority is needed.
“That’s not what happened here,” Neustar’s vice president of registry services Jeff Neuman told the board during a meeting here in Singapore on Tuesday.
“Instead, the board on its own developed policy,” he said. “It did not accept, it did not reject, it developed policy. But there is no room in the ICANN bylaws for the board to do this with respect to a PDP.”
He said that the GNSO working group had already considered elements of ICANN’s compromise proposal and specifically rejected them during the PDP. Apparently speaking for the Registries Stakeholder Group, Neuman said the compromise should be taken out of consideration.
Bret Fausett of Uniregistry added: “The process here is as important to us as the substance. We think procedure wasn’t followed here and we detect a lack of understanding at the board level that process wasn’t followed.”
The GNSO Council seems to agree that the ICANN board can either accept or reject its recommendations, but what it can’t do is just write its own policies for the sake of a quiet life with the GAC.
To fully accept the GNSO’s recommendations would, however, necessitate rejecting the GAC’s advice. That’s also possible under the bylaws, but it’s a lengthy process.
Director Chris Disspain told the GNSO Council on Sunday that the board estimates it would take at least six months to reject the GAC’s advice, during which time the temporary reservations of IGO acronyms would remain active.
He further denied that the board is trying to develop policy from the top.
“It is not top-down, it’s not intended to be top-down, I can’t really emphasis that enough,” he told the Council.
He described the bylaws ability to reject the GNSO recommendations as a “sledgehammer”.
“It would be nice to be able to not have to use the sledgehammer,” he said. “But if we did have to use the sledgehammer we should only be using it because we’ve all agreed that’s what we have to do.”
Chair Steve Crocker summed up the board’s predicament during the Sunday meeting.
“We always do not want to be in the position of trying to craft our own policy decision,” he said. “So we’re stuck in this bind where we’re getting contrary advice from sources that feel very strongly that they’ve gone through their processes and have spoken and so that’s the end of it from that perspective.”
The bind is especially tricky because it’s coming at a time when ICANN is suddenly becoming the focus of a renewed global interest in internet governance issues.
The US government has said that it’s willing to walk away from its direct oversight of ICANN, but only if what replaces it is a “multi-stakeholder” rather than “intergovernmental” mechanism
If ICANN were to reject the proceeds of a two-year, multi-stakeholder, bottom-up, consensus policy, what message would that send to the world about multistakeholderism?
On the other hand, if ICANN rejects the advice of the GAC, what message would it send about governments’ ability to effectively participate as a stakeholder in the process?
Clearly, something is broken when the procedures outlined in ICANN’s bylaws make compromise impossible.
Until that is fixed — perhaps by getting the GAC involved in GNSO policy-making, something that has been talked about to no end for years — ICANN will have to continue to make these kinds of hard choices.
Fielding a softball question during a meeting with the GNSO Council on Saturday, ICANN CEO Fadi Chehade said that “to value the process as much as I value the result” is the best piece of advice he’s received.
“Policies get made here,” Chehade told the Council, “they should not be made at the board level, especially when a consensus policy was made by the GNSO. Akram [Atallah, Generic Domains Division president] today was arguing very hard at the board meeting that even if we don’t think it’s the right thing, but it is the consensus policy of the GNSO, we should stick with it.”
Will the board stick with it? Director Bruce Tonkin told the registries on Monday that the board would try to address their concerns by today, so we may not have to wait long for an answer.

.wine is a go

ICANN has approved the new gTLDs .wine and .vin, despite objections from the European Union.
In a resolution this weekend, published today, its board’s New gTLD Program Committee said “that the applications for .WINE and .VIN should proceed through the normal evaluation process.”
The resolution acknowledges the Governmental Advisory Committee’s lack of consensus against the two wine-related gTLDs, but not the EU’s view that geographic indicators such as “Champagne” should be protected.
European nations thought both gTLDs should be put on hold until the applicants agreed to these special protections, but the US, Australia and other nations disagreed.
ICANN sought the legal opinion (pdf) of a French law professor in its decision-making.
The EU is going to be pretty angry about this, but in the absence of a consensus objection from the GAC against the strings, it appears that the NGPC has made the right call in this case.

Despite IRP, .africa gets a new gTLD contract

ICANN has signed a Registry Agreement with ZA Central Registry for the new gTLD .africa, despite the string being subject to a legal dispute.
The RA was signed with the South African applicant on Monday.
Rival .africa applicant DotConnectAfrica filed an Independent Review Process complaint against ICANN in January, claiming the rejection of its bid, which came because it lacked government support, was “unfair, discriminatory, and lacked appropriate due diligence and care”.
Now that ZACR is a contracted party — meaning that .africa is likely to hit the root in two or three months — it will be very difficult for DCA to get appropriate recompense should it win the IRP.
Fortunately for ICANN, I think there’s a better chance of me getting elected Pope.

Over half a million Trademark Claims notices served

The Trademark Clearinghouse has delivered over 500,000 Trademark Claims notices and prevented over 475,000 trademarked names from being registered, according to the TMCH.
The 500,000 number announced in a press release today seems to refer to pre-registration warnings that the name about to be registered matches a trademark in the TMCH database.
Three weeks ago the TMCH said it had served 17,500 post-registration notices to trademark owners in just one month. I’m inferring that this number is now up to over 25,000.
Half a million appears to be an awfully big number, especially when compared to the number of active domain names in new gTLDs, which today stands at just over 347,000.
The TMCH said today that 95% of these notices led to the name not being registered, which it said shows the success of the Claims system.
It could also mean that it’s having the “chilling effect” predicted by opponents of the process, with legitimate registrants being scared away from non-infringing uses of registered marks.
There are plenty of dictionary words in the Clearinghouse — some that match legitimate brands, some which are simply attempts to game sunrise periods and obtain potentially valuable names.
There are currently over 28,000 marks in the TMCH database.

.hotels applicant files IRP on ICANN

New gTLD applicant Booking.com has filed an Independent Review Process complaint against ICANN.
ICANN and Booking.com attorney Flip Petillion of Crowell & Moring confirmed the filing with DI this evening. Earlier Belgian newspaper reports of a full-on lawsuit appear to be inaccurate.
The IRP — ICANN’s final appeals process, designed to avoid lawsuits — is related to the .hotels contention set.
Booking.com’s uncontested application for .hotels was placed into a contention set with Despegar Online’s bid for .hoteis (the Portuguese translation) by ICANN’s independent String Similarity Panel in February 2013.
The panel ruled that the two strings are too confusingly similar to coexist on the internet, due to the similarity between the letters I and L.
That means the two applicants either had to resolve their differences privately, which apparently hasn’t happened, or enter into a potentially expensive ICANN auction of last resort.
Booking.com seemingly wants to avoid that auction, hence the IRP.
It’s the second IRP to be filed by a new gTLD applicant in this round, after DotConnectAfrica’s January filing.
ICANN tells me the IRP documents will be posted on its web site later today.

First IDN gTLD auction raises $181,000

TLD Registry today raised over $181,000 in “premium” Chinese IDN domain names.
A live/online auction coordinated by Sedo and held at the China Rouge members’ club here in Macau saw 39 lots go under the hammer, 33 of which managed to raise at least the $2,000 minimum bid.
All the names were in .在线 (“.online”), of two Chinese IDN gTLDs TLD Registry launched this week.
Each lot contained multiple names.
In all cases the ASCII transliteration, or Pinyin, was thrown in. Some lots also contained conceptually related names. So the winner of “casino”.在线 also won “gambling”.在线.
Buyers will presumably be able to split the bundles for resale.
The lot with the highest bid at the end of the day was a collection of domains related to “gaming”, which sold for $25,388. Second was a “casino” bundle, which fetched $25,000
.CLUB Domains CEO Colin Campbell spent $7,100 on “club”.在线 and related terms.
Here’s the full list of auction results. Apologies to my Chinese readers, but I don’t have a Chinese keyboard nor a source document to copy and paste the actual names that were sold.
[table id=29 /]
DISCLOSURE: I attended most of the auction and moderated a panel discussion during the lunch break. TLD Registry paid for my airfare and accommodation.

First ICANN gTLD auction slated for June 4

ICANN has published a preliminary schedule for its first new gTLD contention set auctions, which would see the first batch hit the block on June 4 this year.
The plan is now to sell off roughly 20 strings every month, with the last lot going under the hammer in March 2015, a full year from now.
Each contention set, of which there are 233, has been allocated to a batch, ordered by the applicants with the best position in the prioritization queue governing all aspects of the new gTLD program.
But each batch is filled with sets that have either already been resolved or which are currently “ineligible” for auction for one reason or another.
Ineligible contention sets are those that include an application that has, for example, an outstanding change request or a piece of unresolved Governmental Advisory Committee advice.
For example, the 12 applications for .app are scheduled for a July auction, but none of them are going anywhere until the GAC advice against the string goes away.
Naturally enough, ICANN says it’s a preliminary schedule that is subject to a lot of change.
Applicants in contention sets may nevertheless draw comfort from the fact that these auctions finally seem to have firm dates. The auctions were originally slated to start this month.

Community gTLD applicants flunk on “nexus”

The first four Community Priority Evaluation results are in, and all four applicants flunked by failing to prove a “nexus” between the new gTLD string and the community they purport to represent.
No applicant score more than 11 points of the 14 necessary to pass. A total of 16 points are available.
Winning a CPE automatically wins a contention set — all the other applicants for the same new gTLD must withdraw — so it’s a deliberately difficult test.
The scoring mechanism has been debated for years. Scoring 14 points unless the gTLD string exactly matches the name of your organization has always struck me as an almost impossible task.
The first four results appear to substantiate this view. Nobody scored more than 0 on the “nexus” requirement, for which 4 points are available.
The four CPE applicants were: Starting Dot (.immo), Taxi Pay (.taxi), Tennis Australia (.tennis) and the Canadian Real Estate Association (.mls). All four were told:

The string does not identify or match the name of the community, nor is it a well-known short-form or abbreviation of the community.

In some cases, the evaluation panel used evidence from the applicant’s own applicant to show that the string “over-reaches” the community the applicant purported to represent.

The application for .Taxi defines a core community of taxi companies and drivers, as well as peripheral industries and entities.
…
While the string identifies the name of the core community members (i.e. taxis), it does not match or identify the peripheral industries and entities that are included in the definition of the community

In other cases, the panel just used basic common sense. For example, Tennis Australia was told:

Tennis refers to the sport and the global community of people/groups associated with it, and therefore does not refer specifically to the Tennis Australia community.

Starting Dot (.immo) and Taxi Pay (.taxi) both also scored 0 on the “Community Establishment” criteria where, again, 4 points were available.
In that part of the CPE, the applicants have to show that their community is clearly delineated, organized, and long-standing.
In both cases, the panel found that the communities were too eclectic, too disorganized and too young — neither existed before the new gTLD program kicked off in September 2007.
It’s not looking promising for any of the 14 CPE applicants listed by ICANN here. I’ll give $50 to a charity of the applicant’s choosing if any of them scores more than 14 points.

TLD Registry sells 20k+ IDN gTLD names to Chinese gov

TLD Registry has sold 20,452 new gTLD domain names to the Chinese government as it prepares to launch .中文网 (“.chinesewebsite”) and .在线 (“.online”) tomorrow.
The deal, signed this week with the Service Development Center of the State Council Office for Public Sector Reform (SCOPSR) is for 10,226 names in each gTLD.
The domains include the Chinese-script names of every city in China with a population of over 200,000, as well as counties, municipalities and other regional names.
Strings that translate to things like “invest in [place name]” and “tourism [place name]” have also been registered to the government in both TLDs, according to the company.
It looks like this is the first significant anchor tenant deal we’ve seen in the new gTLD program.
Assuming China actually uses these names, it could be great publicity for the new registry’s gTLDs. The government has a policy of transitioning all of its services to fully IDN.IDN domains.
If not, it still means that both gTLDs stand to launch with over 10,000 names in each zone file on day one, even before regular registrants have had a chance to buy them.
The company is also set to auction a bunch of premium names in both namespaces on Friday simultaneously via Sedo and a live event at a private members’ club in Macau.
I’m posting this from Hong Kong airport, en route to the Macau event. As a matter of disclosure: TLD Registry is paying for my flights and accommodation.

Registrars screwing up new gTLD launches?

Some of the largest domain name registrars are failing to support new gTLDs properly, leading to would-be registrants being told unregistered names are unavailable.
The .menu gTLD went into general availability yesterday, gathering some 1,649 registrations in its first half day.
It’s not a great start for the new gTLD by any stretch, but how much of it has to do with the channel?
I tested out searches for available names at some of the biggest registrars and got widely different results, apparently because they don’t all properly support tiered pricing.
Market leader Go Daddy even refuses to sell available names.
The .menu gTLD is being operated by a What Box? subsidiary, the inappropriately named Wedding TLD2.
The company has selected at least three pricing tiers as far as I can tell — $25 is the baseline registry fee, but many unreserved “premium” names are priced by the registry at $50 and $65 a year.
For my test, I used noodleshop.menu, which seems to carry the $65 fee. Whois records show it as unregistered and it’s not showing up in today’s .menu zone file. It’s available.
This pricing seems to be accurately reflected at registrars including Name.com and 101domain.
Name.com, for example, says that the name is available and offers to sell it to me for $81.25.

Likewise, 101domain reports its availability and a price of $97.49. There’s even a little medal icon next to the name to illustrate the fact that it’s at a premium price.

So far so good. However, other registrars fare less well.
Go Daddy and Register.com, which are both accredited .menu registrars, don’t seem to recognize the higher-tier names at all.
Go Daddy reports the name is unavailable.

And so does Register.com.

For every .menu name that carried a premium price at Name.com, Go Daddy was reporting it as unavailable.
With Go Daddy owning almost half of the new gTLD market, you can see why its failure to recognize a significant portion of a new gTLD’s available nice-looking names might impact day-one volumes.
The experience at 1&1, which has pumped millions into marketing new gTLD pre-registrations, was also weird.
At 1&1, I was offered noodleshop.menu at the sale price of $29.99 for the first year and $49.99 thereafter, which for some reason I was told was a $240 saving.

Both the sale price and the regular price appear to be below the wholesale cost. Either 1&1 is committed to take a $15 loss on each top-tier .menu name forever, or it’s pricing its names incorrectly.
A reader informed me this morning that when he tried to buy a .menu premium at 1&1 today he was presented with a message saying he would be contacted within 24 hours about the name.
He said his credit card was billed for the $29.99, but the name (Whois records seem to confirm) remains unregistered.
I’d test this out myself but frankly I don’t want to risk my money. When I tried to register the same name as the reader on 1&1 today I was told it was still available.
If I were a new gTLD registry I’d be very worried about this state of affairs. Without registrars, there’s no sales, but some registrars appear to be unprepared, at least in the case of .menu.