Council of Europe has Whois privacy concerns too

The Council of Europe has expressed concern about the privacy ramifications of ICANN’s proposed changes to Whois requirements in the Registrar Accreditation Agreement.
In a letter this week (pdf), the Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to Personal Data (T-PD) said:

The Bureau of the T-PD took note of the position of the Article 29 Data Protection Working Parking in its comments of 26 September 2012 on the data protection impact of the revision of these arrangements concerning accuracy and data retention of the WHOIS data and fully shares the concern raised.
The Bureau of the T-PD is convinced of the importance of ensuring that appropriate consideration be given in the ICANN context to the relevant European and international privacy standards

The letter was sent in response to outreach from ICANN’s Non-Commercial Users Constituency.
The Article 29 letter referenced said that EU registrars risked breaking the law if they implemented ICANN’s proposed data retention requirements.
Earlier today, we reported on ICANN’s response, which proposes an opt-out for registrars based in the EU, but we noted that registrars elsewhere are unlikely to dig a two-tier RAA.

New gTLD winners will be decided by lottery after all

ICANN will use a lottery to decide the order in which to process new gTLD applications, after a surprising U-turn.
ICANN this morning published a proposal that would prioritize applications based on a $100-a-ticket prize draw that would run in early December.
The results of the draw would be used to sequence applications for Initial Evaluation and, if successful, contract negotiations, pre-delegation testing and eventual delegation.
ICANN says the draw would give it an exemption to California’s anti-lottery laws, which was the primary reason it has so far resisted chance-based solutions to the batching/sequencing problem.
It’s applied for a special “fundraising drawings” license based on its non-profit status, which it expects to be granted before the end of November.
The license appears to have certain restrictions that confuse matters for applicants — they won’t be able to buy their tickets over the internet.
They’ll have to pay, in-person, for a paper ticket. But ICANN says that it can supply proxies for applicants at no cost, eliminating the need to fly a representative to California.
The whole process will be manual, so there’s little risk of an embarrassing Digital Archery-style snafu.
Applications for internationalized domain names would be given priority.
The draw would be run at some point between December 4 and 15.
Under the proposal, the results of Initial Evaluation would start to be released from March next year, starting with IDNs, at a rate of about 150 per week.
ICANN has also decided to extend the period for official objections to March 13, 2013, two months more than the current plan, due to requests for more time from potential objectors.
But the extension is unlikely to appease these objectors, which will still have to file objections before they know whether applications have passed Initial Evaluation, wasting money.
New gTLD applicants that pass Initial Evaluation, are not in contention and have no objections will have the option to immediately sign the standard registry contract.
Applicants wishing to negotiate their contracts will be processed according to their draw number.
However, no contracts will be signed before the ICANN meeting in Beijing next April. This is because the Governmental Advisory Committee does not expect to issue its formal Advice on applications before then.
ICANN expects to sign contracts and do pre-delegation testing at a rate of about 20 per week, which is roughly within the maximum 1,000-per-year delegation rate it has committed to.
The effect of this is that the first new gTLDs are expected to go live in the DNS root in the second quarter of 2013, rather than the third quarter.
I believe most of the proposals will be welcomed by most applicants. A lottery was always the most favored solution.
There will be some criticisms, however.
There does not appear to be a method envisaged for swapping slots, for example, so portfolio applicants probably won’t get to choose which of their gTLDs is delegated first.
The whole proposal is open for public comment here.

Downtime emerges as key barrier to Trademark Clearinghouse changes

The risk of embarrassing technical glitches is now the major stumbling block in discussions about the best way to deploy the forthcoming Trademark Clearinghouse for new gTLDs.
ICANN is worried about the “reputational implications” of the TMCH going offline if, as proposed by domain name registries, it is in the “critical path” of the live registration process.
The concerns emerged in a letter earlier this week, and were discussed during an ICANN conference call yesterday.
The TMCH is expected to be a big database of trademarks, used to support the Trademark Claims and Sunrise periods that new gTLD registries will have to offer.
The policy behind both rights protection mechanisms is settled (essentially), but the actual technical implementation is still open to question.
While ICANN and its two contractors — IBM and Deloitte — have been quietly working on their favored model for some months, the registries that will support most new gTLDs have their own model.
Neustar, ARI Registry Services, Verisign and Demand Media have proposed a TMCH design that they say would be less costly to registries (and therefore brand owners) as well as having certain security benefits.
The problem with the registry’s plan is that it calls for real-time interactions between registrars, registries and the TMCH during the Trademark Claims phase of new gTLD launches.
This would require the Clearinghouse to operate with 100% up-time, which makes ICANN very nervous. It said in its letter this week:

Though requirements for resiliency to guard against such failures will be in place, the risk and impact of a failure incident in a centralized live query system are significant and have an impact on the reputation and, therefore, the effectiveness of the rights protection mechanisms supported by the Trademark Clearinghouse. Such an event could have reputational implications for the Clearinghouse and the New gTLD Program.

If the Clearinghouse went down, the argument goes, it would prevent domain names being registered in new gTLDs.
This would look very bad for ICANN, which has already experienced a few embarrassing technical problems with the program. How its policies and processes perform with live gTLDs will be scrutinized intensely.
But the registries say they’ve mitigated the problem as much as they can in their centralized model.
“It only puts the Trademark Clearinghouse in the critical path for registration for a limited number of registrations,” Neustar vice president Jeff Neuman said on yesterday’s call.
“In our model if a domain name does not match a trademark in the Clearinghouse then the Clearinghouse never sees it, it doesn’t matter if the Clearinghouse is up or down,” he said.
The negative impact of downtime in this scenario is that registrars would not be able to show would-be registrants Trademark Claims notices. But it would not necessarily enable cybersquatting.
Neuman further argued that the TMCH should be covered by the same kinds of service level agreements and data escrow requirements as contracted gTLD registries, minimizing the risk of downtime.
The second major hurdle to the implementation talks is the relative lack to date of input from brand owners.
The intellectual property community has previously expressed reservations about any TMCH model that would enable data mining by bad actors or opportunistic registrars and registries.
Yes, it’s a data privacy issue. Brand owners are worried that the contents of the Clearinghouse could be used by competitors to find holes in their trademark protection strategies, or by scammers.
While yesterday’s call had more input from the trademark community, the real work will come next Wednesday during a session at ICANN 45 in Toronto.

Strickling urges ICANN to bolster trademark protection for all gTLDs

US Department of Commerce assistant secretary Larry Strickling has called on ICANN to create more trademark protection mechanisms across new and existing gTLDs.
In a letter to ICANN yesterday, Strickling, head of the National Telecommunications and Information Administration, also expressed concerned about the slow progress on implementing the Uniform Rapid Suspension and Trademark Clearinghouse systems.
The URS has run into a problem because no provider ICANN has approached to date wants to run it for the $300 to $500 filing fee.
Meanwhile, the way ICANN plans to implement the Clearinghouse has been hit by criticism from registries, registrars and new gTLD applicants, many of which believe it is too inflexible.
Strickling told ICANN that “it is imperative that all fees associated with the URS remain low”, and suggested that cost savings could be achieved through integration with the Clearinghouse.
But he also called for stronger trademark protections in general, above and beyond what the ICANN community has already decided to implement.

Industry stakeholders have presented a variety of suggestions to reduce the cost of defensive registrations (e.g. trademark blocking mechanisms) and others have suggested enhanced safeguards for new gTLDs targeted at creative sectors.
While not taking a position in support of any specific proposal at this time, NTIA does believes that ICANN should continue and open and transparent dialogue between all actors in order to find solutions to these issues which have come into clearer focus since the release of the 1,930 applications this past June.

The letter was sent due to NTIA’s meeting with the 30-odd so-called “brand summit” companies — almost all household names — last month.
Among other things, they want the Clearinghouse to alert them whenever somebody registers a domain name containing their trademarks, instead of just exact matches.
The counter-argument from the domain industry is that such a proposal would create millions of false positives, due to dictionary words, run-ons and acronyms.
An example recently aired by attorney John Berryhill is the Yellow Pages trademark on “YP”, which would be triggered in the Clearinghouse whenever PayPal registered its brand as a domain name.
The brand summit companies also want a blanket trademark blocking system based on ICM Registry’s .xxx Sunrise B process, under which they pay a one-off fee to block their mark in a gTLD forever.
Opponents point out that such systems may be appropriate in single TLDs, but problems could arise when applied to all TLDs. Different companies have rights to the same strings in different fields.
Strickling appears to be aware of the problems that could be caused if the trademark community gets everything it wants. In the letter, he urges mutual understanding, writing:

Whatever process ICANN follows, trademark holders should provide clear, fact-based descriptions of the challenges they encounter in the global DNS and registries and registrars should clarify issues relating to the technical feasibility and costs of implementing any additional protections.

It’s a nice idea, but attempts to reach a sane solution have so far been unsuccessful.
Melbourne IT’s HARM proposal, which would give special rights to particularly vulnerable brands, was shot down by trademark owners as too limited during a meeting in Washington DC last month.

IP interests should join the Trademark Clearinghouse meeting on Tuesday

ICANN is to hold a webcast and teleconference next week to discuss alternative models for the new gTLDs Trademark Clearinghouse.
It will be the last time the community gets to discuss the issue before ICANN 45 kicks off in Toronto next weekend.
Neustar, ARI Registry Services, Verisign and Demand Media have jointly proposed two models for the mandatory new gTLD Sunrise period and Trademark Claims service that differ from ICANN’s.
While the proposals are enjoying general murmurs of support from the domain name industry side of the community, the trademark lobby has yet to have any substantial presence in the talks.
Most of the discussions to date have been hindered by this lack of input, and by a frustrating lack of hard feedback from ICANN and its two contractors, IBM and Deloitte.
Tuesday’s meeting might be a good opportunity for members of the Business Constituency and IP Constituency to brush up on the issues before Toronto.
The meeting will start at 9am US Eastern time, according to Neustar vice president Jeff Neuman, who provided the following information:

The documents are posted at:
http://newgtlds.icann.org/en/about/trademark-clearinghouse/sunrise-model-26sep12-en.pdf
http://newgtlds.icann.org/en/about/trademark-clearinghouse/claims-model-26sep12-en.pdf
http://newgtlds.icann.org/en/about/trademark-clearinghouse/model-issues-26sep12-en.pdf
The call-in information is:
Conference ID: 93759
Dial-in numbers for each country: http://www.adigo.com/icann/
Adobe Connect Room at: http://icann.adobeconnect.com/tmch/

.cialis and .chatr new gTLD bids dumped

Two more new gTLD applications have been formally withdrawn.
ELi Lilly & Co has dropped its bid for .cialis and Rogers Communications has withdrawn its .chatr application.
Both were dot-brand applications — Cialis is a drug and Chatr is a Canadian wireless company — and neither was contested, though there are four applications for the very similar .chat.
This makes a total of six dead bids, following Google’s withdrawal of .est, .and and .are and German pump-maker KSB withdrew its dot-brand .ksb.
From ICANN’s statements, we know that there’s at least one other bid that is in the process of being withdrawn, but its identity is not yet known.

RRPproxy and Hexonet offering new gTLD pre-regs

Two reseller-oriented registrars this week have enabled their resellers to start taking new gTLD pre-registrations.
Key-Systems said its RRPproxy API and web interface now support pre-regs for hundreds of applied-for gTLDs, noting that the transactions are “an expression of interest without any commitment”.
The company seems to have filtered out the obvious dot-brands, but it’s still offering some gTLDs — such as .antivirus and .lifeinsurance — whose applicants are planning single-registrant models.
Separately today, Hexonet launched its Expressions Of Interest offering to enable its resellers to take “non-binding requests” for domains in possible forthcoming gTLDs.
Opinions are mixed about whether these kinds of services are good for the industry’s reputation. There’s no guarantee that these gTLDs will launch, or whether these registrars will qualify to sell them.

Nominet caught using Google Translate on Welsh gTLD site

Welsh internet users have accused Nominet of using Google to translate its .wales and .cymru gTLD sites into Welsh.
According to a Welsh-speaking reader, the majority of the Welsh version Domain For Wales makes “no linguistic sense”.
The site “looks like it has been initially translated using Google Translate, and amended by someone who isn’t that proficient in the language”, the reader said.
While I do not read Welsh, the Nominet site does bear some of the giveaway hallmarks of Google Translate.
If you regularly use Google to translate domain name industry web sites, you’ll know that the software has problems with TLDs, misinterpreting the dot as a period and therefore breaking up sentences.
That seems to be what happened here:

Nid yw eto’n bosibl i gofrestru. Cymru neu. Enw parth cymru gan fod y ceisiadau yn cael eu hystyried gan ICANN.

On the English site, the text is:

It is not yet possible to register a .cymru or .wales domain name as the applications are under consideration by ICANN.

Running a few other English pages through Google Translate also produces the same text as Nominet is using on the Welsh version of the same pages.
Welsh language tech blogger Carl Morris first spotted the errors.
Nominet has applied to ICANN for .wales and .cymru with the blessing of the Welsh and UK governments.
Its selection was initially criticized by some in Wales because Nominet is based in England and has no Welsh presence.
The company has committed to open an office in Wales, hiring Welsh-speaking staff, however.

NIC Argentina offered prizes to object to .patagonia

Argentinian ccTLD manager NIC Argentina offered its Twitter followers prizes if they commented on the controversial .patagonia gTLD application.
Earlier this week, the company tweeted a few times:

Mandanos el ID de tu comentario en ICANN con #NoAPuntoPatagonia y participá por uno de los 20 kits de calcos de @nicargentina

— Nic Argentina (.ar) (@nicargentina) September 25, 2012

My Spanish isn’t great, but this appears to be a prize draw for “kits de calcos” — stickers or decals of some kind — for followers submitting comments against .patagonia.
The .patagonia application, a dot-brand bid filed by a clothing retailer, has caused a huge ruckus in Argentina, where Patagonia is a large geographic region.
The application has received over 1,500 comments to date, pretty much all of which are from disgruntled Latin Americans.

Directi says Karsten threatened it over .ping gTLD

The golf club maker Karsten has launched an attack on Directi due to their dispute over the new gTLD .ping, following through on threats Directi says the company made last month.
Karsten’s outside counsel, Paul McGrady of Winston & Strawn, filed over 200 comments and a 500-page letter against Direct’s new gTLD applications last night, shortly before the ICANN deadline.
In the comments, McGrady says that Directi should be banned from running any new gTLDs because its affiliated privacy service, PrivacyProtect.org, has lost dozens of UDRP cases.
But Directi said today that the Strawn comments — filed against applications such as .web, .hosting and .app — are just a smokescreen for Karsten’s claim over .ping.
Ping is a brand of golf clubs Karsten sells at ping.com, but Directi plans to use the gTLD in its other, geeky sense, open to all-comers.
Directi says that Karsten told it in an August 8 letter to withdraw the .ping bid or face action. According to Directi, the letter said in part:

Karsten is preparing to post this letter and the attached public comments for each of your applications, not just .ping, prior to the end of the public comment period. Once filed, this letter and the public comments will also be sent to the ICANN Board and Senior Staff. Further, as you know, Karsten may seek relief from the courts, through ICANN’s various processes, and through raising awareness of your activities within the ICANN community generally. Karsten will pursue all appropriate means to ensure that all of your applications are rejected.

Directi said in a statement: “Karsten is our only competitor for the .ping bid and their comment is submitted in bad faith and to further their self-interest.”
CEO Bhavin Turakhia said that PrivacyProtect.org did not own any of the domain names listed in the UDRP cases McGrady cited, it merely acted as the privacy service.
The company removes the privacy protection when UDRPs are filed, he said, but the registrant’s identity is not always listed in the published decision.