Melbourne IT involved in 100+ gTLD applications

Melbourne IT says it has prepared applications for over 100 new generic top-level domains on behalf of clients including members of the Association of National Advertisers.
The registrar’s CEO, Theo Hnarakis, said in a press release:

Big brands from around the world have already engaged with Melbourne IT Digital Brand Services to help them apply for more than 100 new TLDs.
Big name companies in the financial sector, plus the retail and consumer goods industries have shown the most interest in applying so far, and roughly a quarter of the companies we are assisting are members of the Fortune Global 500. Applicants working with Melbourne IT also include members of the U.S. Association of National Advertisers.”

The company agrees with the emerging industry consensus which estimates 1,000 to 1,500 applications between Thursday and April 12, with roughly two-thirds of those “dot-brand” applications.
It’s an open industry secret that many companies ostensibly opposing the new gTLD program with the ANA are also preparing applications, but their level of enthusiasm is still open to question.
Anecdotally, many potential dot-brand applicants appear to be under the misapprehension that a new gTLD application is necessary to defend their brands from top-level cybersquatters, which is not the case.

ANA’s modest proposal: let us take over the new gTLD program or we’ll sue

The Association of National Advertisers has offered ICANN a risible last-minute “solution” to the outrage it has created over the new generic top-level domains program.
The ANA wants ICANN to create a temporary “Do Not Sell” list to protect trademark owners and intergovernmental organizations during the first application round, which begins Thursday.
While the first round is open, the ANA itself wants to takes over policy development for the program.
This is its “Proposed Way Forward” in full:

1. ICANN will proceed with its plan to begin accepting applications for new TLDs on January 12, as scheduled;
2. Concurrently, all NGOs, IGOs and commercial stakeholders concerned about protecting their brands will be given the opportunity to have those brands registered, without cost, on a temporary “Do Not Sell” list to be maintained by ICANN during the first application round (any interested party which does not want to have its brands on the Do Not Sell list and would rather apply for a TLD would be free to do so).
We will assemble a team from the interested constituencies to work with ICANN leadership during the first application round. If this group achieves consensus with respect to any proposals, those proposals will be voted on by the Board.
At the end of the first application round, should the parties continue to disagree, all parties will be free to pursue their legal and equitable rights without prejudice.

The alternative to adopting this proposal, ANA president Bob Liodice said in a letter to ICANN today, is “destructive and costly litigation”.
ICANN’s response should be provided “IMMEDIATELY”, Liodice wrote.
I can’t see him getting the answer he wants.
First, the ANA still seems to be worried about top-level cybersquatting, which any sane person can see is extremely unlikely to happen under the new gTLD program’s existing policies.
Second, it’s asking for ICANN to give anyone with a trademark the right to block a string matching that trademark at the top-level.
This may appear reasonable if you think a trademark is something like “Coca-Cola” or “Gucci” or “Google”.
But as soon as you realize that pretty much every word – “music”, “blog”, “web”, “London”, “Paris” – is trademarked, the idea of a Do Not Sell list becomes clearly ludicrous.
It would be a recipe for banning all gTLDs from the first application round.
Third, ICANN already has a mechanism for letting interested stakeholders achieve consensus on new trademark protection policies.
It’s called ICANN, and you don’t need to threaten litigation to participate. You just show up.
You can read the entire laughable ANA proposal here.

Trademark Clearinghouse coming in October

ICANN plans to have the Trademark Clearinghouse for new gTLDs up and running by October, according to documents released after this Thursday’s meeting of its board of directors.
The Trademark Clearinghouse is a central repository of trademark information that new gTLD registries will plug their systems into.
When a customer attempts to register a domain name in a new gTLD that matches a trademark in the Clearinghouse, they will receive a warning that they may be cybersquatting.
Nine companies applied for the position of Clearinghouse operator – as a paid service, it’s potentially a money-spinner – and ICANN expects to select one or more from a short-list of five in February.
According to the new ICANN document (pdf), twice-weekly talks between IP lawyers, registries and registrars are expected to finalize the Clearinghouse’s processes by March.
The system could go live by October, giving companies three months to submit their trademarks to the Clearinghouse before the first new gTLDs go live in early 2013, according to ICANN.

ICANN adds confusion over second new gTLD round

ICANN’s board of directors met on Thursday to discuss the imminent launch of the new generic top-level domains program.
No decisions were made, which means the organization is still set to start accepting applications on January 12, as ICANN’s top officials have stated several times this week.
I hear that the TLD Application System is due to go live one minute after midnight (UTC) on Thursday, in fact, which means too-eager Californian applicants may be able to sign up as early as Wednesday afternoon.
Six briefing documents used at the meeting have been published, one of which deals with the all-important issue of the timing of the second (or “next” as ICANN prefers) application round.
It’s become increasingly apparent recently that lots of big brands think they’re being forced to defensively apply for their own trademarks as gTLDs in the first round.
Some registries, lawyers and new gTLD consultants are probably just as much to blame for this fearmongering as opponents of the program such as the Association of National Advertisers.
The Coalition Against Domain Name Abuse has recently championed the cause of a firm date for a second-round application window, to make a “wait and see” strategy more realistic.
I’ve previously said that a first round stuffed with useless defensive dot-brands would make a mockery of the whole new gTLD program.
ICANN evidently agrees. The board briefing materials (pdf) state:

A timely second round will relieve pressure on the first round, reducing demand and:
o Reducing delegation rates, thereby relieving stability concern perceptions,
o Addressing concerns of some trademark owners that are critical of the process, relieving the perception of need for “defensive registration” at the top-level,
o Decreasing the number of applications relieves some pressure on specific operational issues such as the number of batches, instances of string contention, and the amount of time it will take to process all the applications. Fewer applications will increase the ability to process applications in an efficient manner.

The Applicant Guidebook is currently vague and even a little confusing on the timing of the second round.
Unfortunately, the new briefing materials, which attempt to give some clarity into ICANN’s thinking, appear to contain errors and potentially just confuse matters further.
The documents state “ICANN should publicly announce its intention to launch a subsequent round as soon as practicable after the one opening on 12 January 2012”.
So far so good.
However, ICANN has promised its Governmental Advisory Committee that it will complete two reviews before opening a second round: one into the effect of the first round on root zone stability, the other into the effectiveness of the new trademark protection mechanisms.
ICANN now states that the trademark study would start “one year after 75 gTLDs are in the root” and gives a clearly impossible date of February 2013 for this happening.
I’m guessing this is one of those silly typos we all sometimes make during the first week of a new year.
Given that the first new gTLDs will not be delegated until 2013, ICANN almost certainly meant to say that it expects to start the trademark review a year later in February 2014.
ICANN also sensibly notes that it “cannot commit to when we get consensus on the conclusions of a Trademark study”, which doesn’t really add clarity to the timeline either.
The document also states:

The other critical path is completion of the round 1 applications – this is uncertain because (a) we don’t know the number of batches that are required and (b) if we could start the second round while we finish up the objections and stuff from the first round. However, if there are four batches, initial evaluations for them would finish in March 2013, and nearly all applications should clear in the second quarter of 2014.

I assume, but the document does not state, that this is a reference to the root zone stability study, which under a strict reading of the Guidebook is supposed to happen after the first round has ended.
Unfortunately, the dates appear to be wrong again.
According to the Applicant Guidebook, the Initial Evaluation phase takes five months. Four batches would therefore take 20 months, which would give a March 2014 date for the end of initial evaluations and a second-quarter 2015 date for the final delegations.
Again, this is probably just one of those first-week-of-the-year brainfarts. I assume (hope) the ICANN board noticed the discrepancy too and based its discussions on the actual timeline.
There’s also the matter of ICANN’s review of the program’s effects on competition and consumer choice, which is mandated by its Affirmation of Commitments with the US Department of Commerce.
Unfortunately, it’s not yet clear even to ICANN whether this is a prerequisite for a second round, according to the briefing documents.
Commerce has a bit of a predicament here. On the one hand, it wants to ensure new gTLDs are good for internet users. On the other, it’s under a massive amount of pressure from the trademark lobby, which would benefit from clarity into the timeline for future application rounds.
Either way, the US government’s interpretation of the Affirmation is going to be a key factor in determining the second-round launch date.
In short, given what is known and expected, 2015 seems to be the earliest possible date for the second round, but a hell of a lot rides on how many applications are received.
In a blog post today, ICANN CEO Rod Beckstrom said: “The issues should be settled before the application window closes on 12 April but their resolution is not essential before the window opens on 12 January.”
I disagree. If ICANN is serious about reducing defensive applications, it needs to provide an unambiguous public statement about the second round before it starts accepting checks from brand owners.
Naming a date may not be possible, but it needs to say something.

High-security .bank spec published

BITS, the technology arm of the Financial Services Roundtable, has published a set of specifications for new “high-security” generic top-level domains such as .bank and .pay.
The wide-ranging spec covers 31 items such as registration and acceptable use policies, abusive conduct, law enforcement compliance, registrar relations and data security.
It would also ban Whois proxy/privacy services from financial gTLDs and oblige those registries to verify that all Whois records were fully accurate at least once every six months.
The measures could be voluntarily adopted by any new gTLD applicant, but BITS wants them made mandatory for gTLDs related to financial services, which it calls “fTLDs”.
A letter sent by BITS and the American Bankers Association to ICANN management in late December (pdf) is even a bit threatening on this point:

We strongly urge that ICANN accept the [Security Standards Working Group’s] proposed standards and require their use in the evaluation process. We request notification by 31 January 2012 that ICANN commits to use these fTLD standards in the evaluation of the appropriate gTLD applications. BITS, the American Bankers Association (ABA), and the organizations involved in this effort are firmly committed to ensuring fTLDs are operated in a responsible and secure manner and will take all necessary steps to ensure that occurs.

BITS, it should be pointed out, is preparing its own .bank bid (possibly also .invest and .insure) so the new specs give a pretty good indication of what its own gTLD applications will look like.
ICANN’s Applicant Guidebook does not currently mandate any security standard, but it does say that security practices should be commensurate with the level of trust expected from the gTLD string.
Efforts within ICANN to create a formal High Security Zone Top Level Domain (HSTLD) standard basically fizzled out in late 2010 after ICANN’s board said it would not endorse its results.
That said, any applicant that chooses to adopt the new spec and can demonstrate it has the wherewithal to live up to its very strict requirements stands a pretty good chance of scoring maximum points in the security section of the gTLD application.
Declining to implement these new standards, or something very similar, is likely to be a deal-breaker for any company currently thinking about applying for a financial services gTLD.
Even if ICANN does not formally endorse the BITS-led effort, it is virtually guaranteed that the Governmental Advisory Committee will be going through every financial gTLD with a fine-toothed comb when the applications are published May 1.
The US government, via NTIA chief Larry Strickling, said this week that the GAC plans to reopen the new gTLD trademark protection debate after the applications are published.
It’s very likely that any dodgy-looking gTLDs purporting to represent regulated industries will find themselves under the microscope at that time.
The new spec was published by BITS December 20. It is endorsed by 17 companies, mostly banks. Read it in PDF format here.

ICANN confirms possible new Applicant Guidebook

With just a week left before ICANN begins to accept new generic top-level domain applications, the organization has confirmed that it might release a new draft of the Applicant Guidebook.
As you probably know by now, the Guidebook is the Bible for new gTLD applicants. The most-recent version, published back in September last year, was the eighth.
But ICANN has not ruled out a ninth version, presumably the final draft before applications start rolling into Marina del Rey on January 12.
Senior vice president Kurt Pritz said in an emailed statement:

Since its opening, our customer service center has received a number of questions requesting clarifications on some Guidebook points. These clarifications have been made through the responses by the customer service.
We will summarize those clarifications in one document – that might be an Advisory or in the form of an updated Guidebook. In either case, the positions of applicants will not be affected as the information will repeat that in previously answered questions.

Pritz also added that a new draft of the separate guidebook for the recently developed Applicant Support program may be released after public comments close later this month.
It’s unlikely that a revised Guidebook will contain any big surprises, if it only contains clarifications of text already found in the current version.
I’ve been trawling ICANN’s new gTLD customer service center knowledge base for interesting facts for weeks and come up pretty much empty — most answers to applicants’ questions merely refer back to the Guidebook.
(Hat tip to new gTLD consultancy Fairwinds, which first noticed the possibility of a new Guidebook.)

Strickling drops last-minute bombshell on new gTLDs

Larry Strickling, the man most responsible for overseeing ICANN in the US administration, has given an unexpected last-minute boost to opponents of the new generic top-level domains program.
In a letter to ICANN chair Steve Crocker tonight, Strickling says governments may intervene this May to impose new trademark protection mechanisms on the new gTLD program
Echoing the words of several Congressmen, Strickling, head of the National Telecommunications and Information Administration, said that after the first-round applications have been filed, ICANN might want to consider a “phased-in” approach.

Once the list of strings is made public, NTIA, soliciting input from stakeholders and working with colleagues in the Governmental Advisory Committee (GAC), will evaluate whether additional protections are warranted at the second level. Having the ability to evaluate the actual situations or conflicts presented by the applied for strings, rather than merely theoretical ones, will certainly assist and focus everyone’s efforts to respond to problems should they arise.

The letter could be seen as a win for the trademark lobby, which has been pressing the NTIA, Department of Commerce and Congress for months to delay or block the program.
However, reading between the lines it appears that Strickling believes the trademark protections already in the program are probably adequate, just woefully misunderstood.
The letter spends more time politely tearing into ICANN’s atrocious outreach campaign, observing that many trademark owners still “are not clear about the new gTLD program”.
Strickling pleads with ICANN’s leadership to raise awareness of the protections that already exist, to calm the nerves of companies apparently convinced by industry scaremongering that they’re being forced to apply for “dot-brand” gTLDs defensively.

…in our recent discussions with stakeholders, it has become clear that many organizations, particularly trademark owners, believe they need to file defensive applications at the top level.
…
We think, and I am sure ICANN and its stakeholders would agree, that it would not be healthy for the expansion program if a large number of companies file defensive top-level applications when they have no interest in operating a registry. I suggest that ICANN consider taking some measures well before the application window closes to mitigate against this possibility.

The themes are repeated throughout the letter: ICANN has not done enough to educate potential applicants about the new gTLD program, and brand owners think they’ve got a gun to their head.

…it has become apparent that some stakeholders in the United States are not clear about the new gTLD program. I urge you to engage immediately and directly with these and other stakeholders to better educate them on the purpose and scope of the program as well as the mechanisms to address their concerns.

I’m sure this is a letter Strickling didn’t want to send.
Recently, he talked openly about how trademark owners pressuring the US government to overrule ICANN’s decision-making risked raising the hackles of repressive regimes around the world and leading to an internet governed by the UN
Letters like this certainly don’t help his cause, but the political pressure in Washington DC has evidently forced his hand.
Will this derail next week’s launch of the program? Probably not.
Does it raise a whole bunch of questions the ICANN community had thought it had put to bed? You bet it does.
Read the letter here (pdf).

ICANN chair says new gTLD program “will run smoothly”

ICANN chairman Steve Crocker has again said he expects the new generic top-level domains program to kick off next week as planned, and that he expects it to “run smoothly”.
His comments came in a New Year email sent to the rest of the ICANN board of directors, as well as the chairs of the community’s various policy-making bodies.
Here’s an extract focusing on new gTLDs:

In terms of immediacy, the opening of the window for applications for new gTLDs is January 12, ten days from now. This is occupying a large fraction of our attention and is also the source of much attention from our stakeholders and others watching us. An enormous amount of work has gone into the program and I, among many, many others, are eager to see what will happen. The opening of the window on January 12 will be a noteworthy day, but the closing date, three months later and the publication date for the names a bit later will also be quite noteworthy. I know there is a bit of controversy over some specific aspects of the program, but I am confident the program is well constructed and will run smoothly.

The message goes on to outline two other major issues facing ICANN in the near term: the renewal of the IANA contract with the US Department of Commerce and CEO Rod Beckstrom’s imminent departure.
It also touches on broader themes, notably ICANN’s effectiveness as an organization:

We often emphasize our commitment to a multi-stakeholder model. There’s no question this is important. However, from my point of view, we are organized around broad participation from all parties because it’s a system that has worked well in the Internet ecology. And “working well” means the job gets done. If we are not effective and reasonably efficient at doing the job we were created to do, the details of our processes will matter very little. We have many processes in place to measure ourselves in terms of transparency, accountability and other attributes of fairness. I applaud and support all of these, but I would like us all to keep in mind that in addition to these very important measures that we also focus on making sure that we deliver the service our community needs.

This echoes remarks Crocker made at ICANN’s last meeting, in Dakar last October, when he stamped his authority down on the registrar community, which stood accused of dragging its feet over improvements to how it deals with law enforcement.
“If all we have is process, process, process, and it gets gamed or it’s ineffective just because it’s not structured right, then we have failed totally in our duty and our mission,” he said at that time.

Businesses may call for more new gTLD trademark protections

It’s open season on ICANN at the moment, and as the number of letters opposing the new gTLD program flittering between Washington DC and Marina del Rey becomes confusingly voluminous many groups think they’ve found another opportunity to demand last-minute changes.
ICANN’s Business Constituency is now considering making several recommendations for “critical improvements” to protect trademark holders in the new gTLD universe.
While the recommendations are still under discussion, they could include adding the option to transfer a domain name to a brand owner after a successful Uniform Rapid Suspension complaint.
This would prove unpopular among domain investors and others as it would increase the likelihood of the untested URS being used as a replacement for the already controversial UDRP, potentially increasing the risk of reverse domain name hijacking.
The BC is also discussing whether to ask for a “permanent registry block” feature to be added the forthcoming Trademark Clearinghouse, enabling brand owners to block their trademarks from all new gTLDs for a one-time fee in much the same way as ICM Registry enabled in the .xxx sunrise.
The Coalition Against Domain Name Abuse made a similar request to ICANN last week.
The idea is unlikely to find favor because it would essentially grant trademark owners exclusivity over strings, a right not usually given to them by trademark law.
Other BC discussion topics include making the Trademark Clearinghouse permanent (instead of just running for the first 60 days of each new gTLD) and putting a firm date on the opening of the second-round application window, a popular request from brand owners.
Much like 13th-hour requests originating in the At-Large Advisory Committee, the BC’s position is likely to be substantially revised before it is submitted to ICANN officially.
While ICANN chairman Steve Crocker told .nxt this week that there are no plans to delay or rate-limit the new gTLD program, it’s less clear whether the Applicant Guidebook is still open for the kinds of substantial amendments now being discussed by the business community.
But my hunch is that, regardless of the political pressure being brought to bear on ICANN in the US, the new gTLD program is going to launch on January 12 in more or less its current form.

CADNA calls for mandatory .xxx-style sunrises

The Coalition Against Domain Name Abuse has asked ICANN to make one-time trademark blocks, much like those offered by .xxx operator ICM Registry, mandatory in most new top-level domains.
In a letter to ICANN bosses (pdf) sent last week, CADNA president Josh Bourne wrote:

ICANN should consider including a requirement in the Applicant Guidebook that all new gTLD registries that choose to sell second-level domains to registrants adopt a low-cost, one-time block for trademark owners to protect their marks in perpetuity.
…
ICANN should require registries to give brand owners the option to buy low-cost blocks on their trademarks before any registration period (Sunrise or Landrush) opens. This can be offered at a lower cost than sunrise registrations have been priced at in the past – this precedent has been set with the blocks offered in .XXX, where the blocks are made in perpetuity for a single, nonrecurring fee.

The recommendation is one of several. CADNA also reckons ICANN needs to name the date for its second round of new gTLD applications, and that “.brand” applicants should get discounts for multiple gTLD applications.
The letter comes as opposition to the new gTLD program in the US becomes deafening and ICANN’s board of directors have reportedly scheduled an impromptu meeting next week to determine whether the January 12 launch is still a good idea.
CADNA is no longer opposed to the program itself. Fairwinds Partners, the company that runs the lobbyist, recently restyled itself as a new gTLD consultancy.
But there’s a virtually zero chance the letter will come to anything, unless ICANN were to decide to open up the Applicant Guidebook for public comments again.
I also doubt the call for a mandatory ICM-style “block” service would be well-received by anyone other than ICANN’s intellectual property constituency.
The problem with such systems is that trademarks do not grant exclusive rights to strings, despite what some organizations would like to think.
It’s quite possible for ABC the taxi company to live alongside ABC television in the trademark world. Is it a good idea to allow the TV station to perpetually block abc.taxi from registration?
Some would say yes. The Better Business Bureau and Meetup.com, to name two examples, both recently went before Congress to bemoan the fact that they could not block bbb.xxx and meetup.xxx – both of which have meaning in the adult entertainment context and were reserved as premium names – using ICM’s Sunrise B.
With that all said, there’s nothing stopping new gTLD applicants from voluntarily offering .xxx-style blocking services, or indeed any form of novel IP rights protection mechanisms.
Some applicants may have even looked at the recent .xxx sunrise with envious eyes – with something like 80,000 defensive registrations at about $160 a pop, ICM made over $12 million in revenue and profit well into seven figures.