Lawyer tries to nuke Donuts and Demand Media’s gTLD bids

A lawyer has called for new gTLD uber-applicants Demand Media and Donuts to be banned from running gTLD registries due to Demand’s history of cybersquatting.
Jeffrey Stoler of Boston law firm McCarter & English has written to ICANN’s leadership, along with the chair of the Governmental Advisory Committee, to allege that Demand Media, Donuts and their key executives:

are, by ICANN’s established eligibility guidelines, unsuited and ineligible to participate in the new gTLD program.

It goes on to state that:

ICANN can and should reject the applications from Donuts and its subsidiaries, Demand Media and its subsidiaries, and their respective affiliated companies.

The two companies have, combined, applied for 333 new gTLDs. Donuts, which was founded by former Demand executives, also plans to use Demand as its back-end registry provider.
Demand Media subsidiaries, however, have a rotten record of losing cybersquatting cases filed under the UDRP, as Stoler’s generally well-researched 24-page letter spells out in some detail.
This, Stoler argues, should cause both companies to fail ICANN’s background checks, which are specified in the Applicant Guidebook.
Companies that have “been involved in a pattern of adverse, final decisions” under the UDRP, defined as more than three losses in the last four years, are supposed to fail the background check.
Demand Media seems to fit that definition, and then some, assuming you include UDRP losses incurred by its subsidiaries.
Donuts, as a brand new company, does not have the same track record, but Stoler reckons there is “strong evidence that Donuts is merely an alter ego of, and working in concert with, Demand Media”.
The letter states:

In June 2009, when ICANN’s rules went into effect and it was widely thought that implementation of the new gTLD program was imminent, the executives of Demand Media Group realized that Demand Media’s sordid history would clearly block its ability to successfully apply for the new gTLDs.
As an initial gambit, Demand Media petitioned ICANN to revise the rules.
When ICANN rejected those revisions, the undersigned believes Demand Media decided it would be necessary to create a new entity to participate in the new gTLD program. As a result, Donuts was formed by Messrs. Stahura and Tindal.
It would make a mockery of ICANN rules, however, if Demand Media Group and its executives could absolve themselves of their record of adverse UDRP decisions merely by forming a new entity.

Donuts founders Paul Stahura and Richard Tindal were both with Demand when it lost a bunch of UDRP cases.
Stoler alleges that they left to form Donuts mainly because they didn’t think Demand would pass ICANN’s background checks.
While Donuts has made no secret of the fact that it’s behind 307 applications — and ICANN’s leadership is certainly already aware of this — each application has been filed by a different shell company.
The trail to Donuts is at least two companies deep in many cases, and it’s not entirely clear how its applications with Demand Media are structured, from a corporate point of view.
Ironically, Stoler’s letter does not disclose his affiliations — which clients he’s working for — either.
The smart money is probably on big trademark interests, but it’s not beyond the bounds of possibility, I suppose, that he could be on the payroll of rival new gTLD applicants.
I’ve reached out to Stoler, Donuts and Demand Media for comment and will provide updates later as appropriate.
Here’s the Stoler letter (pdf)

The ANA is right: there needs to be more time for new gTLD public comments

The Association of National Advertisers has told ICANN that more time is needed for the public to file comments on new gTLD applications. I think it has a point.
As it stands, ICANN plans to forward any comments submitted before August 12 to the program’s evaluators, but the ANA thinks several more months are needed.
In a letter (pdf) to ICANN interim CEO Akram Atallah, ANA president Bob Liodice wrote:

When ICANN initially approved the gTLD Program in June 2011, ICANN’s own planning and financial estimates only envisioned 500 applications; it is possible that a sixty-day comment window might have been sufficient to evaluate that number of applications. However, almost four times that number of applications has been received, and so a mere sixty days is not enough time for the public to evaluate the details of the many string applications that may impact their interests.

Liodice asks for at least 180 more days for public comments.
The letter has been circulated to various members of the US government, but for once there’s no threat of a lawsuit.
I have to say I agree with the ANA on this occasion: more time is needed for commenting, although I’m not sure a full extra six months is necessary.
Making sense of the sheer volume of data available since the Big Reveal can be overwhelming, even for somebody who covers this topic every day.
Comments filed to date — about 1,400 of them — are narrowly focused on a small subset of wedge-issue applications. About half were organized by Morality in Media and probably could be described as anti-porn astroturf.
It’s very likely that many regular ICANN community members who intend to file substantive comments intend to do so at the last minute, per standard ICANN practice, but I think in this case there needs to be more input from outside of the usual circle of suspects.
More time to comment, and more media outreach by ICANN, might be able to create a stronger mandate — or highlight more potential problems — for some of these 1,930 applications.
With a single year-long Initial Evaluation batch now essentially confirmed could the public comment window not also be extended?

First anti-gay gTLD opponent emerges

The first public objections have been filed against applications for the .gay generic top-level domain.
Abdulaziz Al-Zoman reckons .gay shouldn’t be allowed because being gay is “against the law and public morality” in many countries, according to a comment that he filed against all four .gay applications.
Here’s the whole comment:

ICANN is dealing and playing a very strong role in worldwide public policies. It sets global public Internet-related policies that effect many worldwide societies and communities with verity of values and cultures. Therefore, ICANN MUST adhere and respect these cultures and values and not to impose its own “western” culture and values to other communities.
If “gay” is an accepted activity in USA it does not mean it is also accepted or welcomed elsewhere. ICANN should not enforce western culture and values into other societies. It should not ignore other society’s values. If the new gTLD programs had been limited to the United States, the homeland of ICANN, then it might be accepted to have the applied-for gTLDs strings (.gay). In spite of this, even if these strings (.gay) represent a permitted western standard of expressions, ICANN should not impose it globally upon the rest of the world. ICANN should not ignore the fact that activities related to this string are considered criminal act or unlawful in some parts of the world. Furthermore, ICANN should stick to GAC principles that call for respecting the sensitivity regarding terms with national, cultural, geographic and religious significance.
The applied-for gTLD string (gay) is not welcomed in many societies and communities and is against the law and public morality. ICANN should work for the benefit of all societies. It should not indulge itself in prompting and expanding western culture on the Internet. If it is really desired and needed in the ICANN home community (USA), then it can be provided under the .us TLD (e.g., gay.us) but not in the worldwide root space.

Al-Zoman appears to be referring to Saudi society, which has about as slim a grasp on morality as you’ll find anywhere in the world.
Sadly, his comments are likely a precursor to a battle within ICANN’s Governmental Advisory Committee over whether a formal GAC objection to .gay should be filed.
This is Big Question stuff.
Should ICANN operate according to the internet’s principles of openness, fairness and inclusion, or should it make its decisions based on demands emerging from medieval, theocratic backwaters?
You can probably guess what my opinion is.

DotConnectAfrica responds to DI .africa rant

DotConnectAfrica has published a lengthy retort to DI’s recent post about the (probably) contested .africa gTLD, in which I accused DCA of being disconnected from reality.
You can read my original post here and the DCA response here.
According to DCA, DI’s post was “unprofessional, unwarranted, and sub judice to the ICANN evaluation process”, because it pointed out that Uniforum’s competing bid for .africa stands the best chance of being approved by ICANN.
Having read DCA’s response, I stand by what I wrote.
Geographic gTLDs are governed by special rules at ICANN. They need government support. Nobody disputes this.
In the case of .africa, which covers a lot of countries, support or non-objection from 60% of the relevant governments is required. I don’t think anyone is disputing this either.
Uniforum’s application has this March 2012 letter (pdf) from the African Union Commission, which provides the AUC’s explicit, unambiguous, exclusive support to Uniforum.
Uniforum also claims to have individual support from the required 60% of nations, though I have not seen documentary evidence of this.
DotConnectAfrica, on the other hand, has a August 2009 letter from AUC chair Jean Ping, which expresses support for the DCA application.
It is this 2009 letter that DCA is relying upon to pass the geographic support test in the ICANN evaluation process. In its latest blog post, DCA said, addressing DI:

If you state openly in your Blog that our 2009 endorsement that we got from the African Union Commission does not count, then you are obviously playing the same game that was started by our detractors who have been trying all along to deny and invalidate our hard-won endorsement in order to frustrate DCA’s chances of applying for DotAfrica. It is our sacred responsibility to make sure that our early-bird endorsement from the African Union Commission counts.

In response, all I can say is: “Good luck.”
The Uniforum letter of support, which is more recent by almost three years, states that it is “the only formal endorsement provided by the African Union and its member’s states with regard to dotAfrica.”
On the other hand, the DCA letter of support was “categorically” retracted by the African Union in this May 2011 communication.
The only possible interpretation of this, in my mind, is that Uniforum has African Union backing and that DCA does not.
Unless there’s some obscure nuance of African politics that I’ve failed to comprehend, I don’t think there’s a thing DCA can do to change that fact.
It sucks for DCA, but that’s the way it is.
As for DCA’s insinuations that DI’s position has somehow been bought, I’ll just say for the record that no opinion that has ever been expressed on DI has ever been paid for by a third party.
Over the last couple of years, I’ve probably turned down somewhere in the region of $20,000 from various parties who wanted me to give them favorable coverage in exchange for payment.
That’s just not how things work around here.

New gTLD winners could be named June 2013

ICANN has sketched out a tentative timetable for the evaluation of its new generic top-level domain applications that would see the first successful gTLDs appear over a year from now.
But the plan has little meat on its bones, and ICANN has admitted that it still doesn’t know exactly how the evaluation process is going to pan out.
In a new call for comments, ICANN confirmed that all 1,930 applications are going to be evaluated at the same time, and that the evaluators have already started work.
The winners and losers from Initial Evaluation, ICANN said, could be announced June or July 2013.
This would mean that the first new gTLDs would start going live on the internet “in late third quarter of 2013, six months later than originally expected”, ICANN said.
But which successful applications would start hitting the root first is still wide open to debate.
The idea that the applications would be processed in batches of 500 or thereabouts, is now pretty much dead. That’s been obvious since digital archery was killed off, but it’s now confirmed.
ICANN said it has a “tentative project plan” that “foresees the processing of applications in a single batch, and simultaneous release of results” about a year from now.
But with “batching” dead, we now have a “metering” problem.
Hypothetically, as many as 1,409 unique gTLD applications could emerge successfully from evaluation at the same time, in June or July next year.
That’s the theoretical ceiling; in reality the number will be substantially reduced by withdrawals, objections and contention.
But before any of them can go live the applicants need to negotiate and/or sign registry agreements with ICANN and undergo formal pre-delegation technical testing. That creates two bottlenecks at ICANN in its legal and IANA departments.
ICANN now wants to know how to “meter” successfully evaluated applications, to smooth out the roll-out so that no more than 1,000 new gTLDs are delegated in any given year.
An idea that emerged in Prague was to order applications according to how “clean” they were, as measured many clarifying questions the evaluators had to ask the applicants. But that idea has now been dismissed as “unworkable”, ICANN said.
ICANN’s board of directors had promised to make about three weeks after the Prague meeting – a deadline that passed over a week ago – but it’s now turning to the community for ideas.
Before August 19, it wants to know:

1. Should the metering or smoothing consider releasing evaluation results, and transitioning applications into the contract execution and pre-delegation testing phases, at different times?
a. How can applications be allocated to particular release times in a fair and equitable way?
b. Would this approach provide sufficient smoothing of the delegation rate?
c. Provide reasoning for selecting this approach.
2. Should the metering or smoothing be accomplished by downstream metering of application processing (i.e., in the contract execution, pre-delegation testing or delegation phases)?
a. How can applications be allocated to a particular timing in contract execution, pre-delegation testing, or delegation in a fair and equitable way?
b. Provide reasoning for selecting this approach.
3. Include a statement describing the level of importance that the order of evaluation and delegation has for your application.

My hunch based on conversations in Prague is that the majority answer to question 1 will be “No” and that the majority answer to question 2 will be “Yes”, but that’s just a hunch at this point.

.sx denies .sex gTLD objection rumor

The CEO of SX Registry has denied rumors that the company already plans to object to the two .sex new gTLD applications, but has not yet ruled out such a move.
The company runs Sint Maarten’s new ccTLD, .sx, and gossip at the ICANN meeting in Prague last month suggested that an objection or two against .sex might be made on confusing similarity grounds.
The rumors were fueled in part by SX Registry’s sexy launch marketing.
But in a recent email to DI, Normand Fortier wrote:

At this time SX Registry is still reviewing the impact of various gTLD applications and contrary to some published rumors, has not taken any official position or decision regarding a future course of action.

Existing ccTLD operators are allowed to file String Confusion Objections against gTLD applications, if they feel there’s a risk of confusion if the gTLD is approved.
And .sx/.sex is far from a unique case.
In fact, of the 375 applications for three-letter gTLDs in the first round, 304 have only one character variance with one or more existing ccTLDs, according to DI PRO’s string similarity analysis.
ICANN’s Sword algorithm, which compares the visual similarity of strings, gives .sex a score of 57% against .sx.
I’ve checked every three-character gTLD application against every existing ccTLD and found dozens of proposed gTLDs with much higher similarity scores when compared to ccTLD strings.
The full results are available to DI PRO subscribers over here.

ICANN begins evaluating new gTLD applications

ICANN has already started formally evaluating some of the 1,930 new generic top-level domain applications it has received, according to sources.
Technical and financial evaluations are believed to have been going on for several days at the three outside firms ICANN has contracted with – Ernst & Young, KPMG and JAS Global Advisors.
ICANN staff said a few times during the Prague meeting last month that July 12 was the kick-off date for evaluations, but I’m led to believe they may have started a little later than that.
Nevertheless, they’re underway.
What’s not yet known is how – or if – the 1,930 applications will be batched into more manageable chunks.
The last official word from ICANN came on June 28, when Cherine Chalaby, chair of the board’s new gTLD program committee, said an update would be provided in about three weeks.
With that admittedly vague deadline now in the past, we can only assume that the publication of a new timetable is imminent.

ICANN fixes new gTLD portal bugs

ICANN has brought its new gTLD program customer service portal back online after about five days of patching-related downtime.

In a notice posted late last night, ICANN said the delay was due to the wait for a vendor patch. ICANN said:

A recent, proactive review of the CSC system identified potential vulnerabilities. To address these vulnerabilities, the CSC portal was taken offline while vendor-provided patches were applied. There have been no known compromises to any data.

New gTLD applicants will now have to log in to their TLD Application System accounts, which use the Citrix remote terminal software, to use their customer service tools.
Non-applicants will be able to ask customer service questions via email.
The Knowledge Base — essentially a program FAQ — is still offline, but ICANN said it hopes to bring it back up within a few days.

New gTLD applicants: here’s how to lobby the GAC

ICANN’s Governmental Advisory Committee has let it be known that it’s open to receiving communications from new gTLD applicants.
But the GAC will only hear briefings from applicants at the request of GAC members, according to a notice posted on the GAC’s web site recently.
The GAC has strong powers to recommend the rejection of new gTLD applications, so naturally enough some applicants have already been lobbying to reinforce their positions.
Applicants are now being asked to send information to a specific email address or — implicitly — to lobby GAC representatives individually.
The new statement reads:

It is important to bear in mind that GAC members are still in the process of analysing the list of applications and applicants for new gTLDs. However, there have been a number of requests from applicants or other interested stakeholders to brief or provide briefing material to the GAC.
Briefings for the GAC will only be scheduled on a best-efforts basis and entirely at the request of GAC members.
An internal process for handling requests and tracking materials is being put in place, but those wanting to make their interest or availability known or to express an interest in providing written materials to the GAC can contact the GAC via gacsec@gac.icann.org. A list of those expressing interest or availability or that have provided materials will be made available to the GAC membership.

The GAC caused controversy last month when it accepted the European Broadcasting Union’s application for Observer status on the committee.
The EBU is also an applicant for .radio, which is contested by Donuts, Afilias and BRS Media.
BRS Media claims this is a conflict of interest and recently started lobbying for the EBU to withdraw its application. This week, it set up a web site to promote its cause.

Dispute over ‘confusing’ new gTLD company names

Is this the first “confusing similarity” fight to emerge from ICANN’s new gTLD program?
Two new UK outfits are involved in a dispute about their very similar company names, it has emerged.
TLD Registry Services seems to have come first. It’s an offshoot of Island Networks, the registry manager for the Channel Islands country-code TLDs .gg and .je.
According to co-founder Nigel Roberts, the company plans to offer registry services to existing TLDs using the CoCCA platform and has already made headway with a few potential clients.
TLD Registrar Services, on the other hand, is affiliated with CentralNic, the relatively successful new gTLD registry back-end provider.
Judging by its placeholder web site, this company plans to offer white-label registrar services to new gTLD operators such as dot-brands.
Roberts is irked that CentralNic picked a name for its company so similar to his own, particularly given that “registry” and “registrar” are often used interchangeably outside of the domain industry.
“We’ve recently asked the Secretary of State to look into how this situation came to pass,” he said. “It’s less than ideal for both parties. We are sure they are just as keen not to be confused with us, as we are keen not to be confused with them.”
Ben Crawford, CEO of CentralNic and chairman of TLD Registrar Services, said he was not aware of a dispute over the name.
“One of our employees was approached at Prague by someone from a company called TLD Registry Services – a company nobody in our business had ever heard of before,” he said.
“They expressed concern that our company names are too similar to each others’. We will consider their concerns and our options in due course.”
With both companies barely out of stealth mode, it’s probably something of a squall in a teacup at the moment, but it does highlight how tricky it can be to find a descriptive company name in this industry.
We could of course just be looking at a profound lack of imagination here, and I’m just as guilty as the rest.
DI is published by TLD Research Ltd, which appears directly after TLD Registrar Services Ltd and TLD Registry Services LLP in the UK’s Companies House register of companies.