YouPorn challenges new gTLDs with review demand

YouPorn operator Manwin is demanding a review of .xxx, and ICANN’s top-level domains program by association, in a new Independent Review Panel request.
It becomes only the second company ever, after .xxx manager ICM Registry, to file an IRP request with ICANN. The filing came at the same time as Manwin sued ICANN and ICM in California.
The IRP demand ostensibly focuses on .xxx, but it also suggests that the forthcoming new gTLD program has many of the same flaws as the process that led to .xxx’s approval.
IRP is the final, and most expensive, appeals process available within ICANN for companies that believe they’ve been wronged by the organization’s decisions.
It was first used by ICM in 2008-2009 to have the rejection of its .xxx application overturned.
To win an IRP, complainants have to convince an International Centre for Dispute Resolution panel (probably three retired judges) that ICANN violated its own bylaws when it made a harmful decision.
The only reason .xxx is in the root today is that an IRP decided by majority that ICANN broke the bylaws when it approved and then rejected the .xxx bid filed in the 2004 new gTLD round.
Manwin’s IRP claims that ICANN failed to “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD”.
It also claims that ICANN failed to enforce ICM’s compliance with its registry contract, allowing it to engage in “anticompetitive conduct” and help violate IP rights.
The company is basically miffed that it felt it was being forced to spend money in ICM’s sunrise period, and that it was not allowed to block its trademarks and variations of its trademarks.
One of its oddest claims, which is in the IRP as well as the lawsuit, is that ICM was selected in a “closed process” that did not consider alternative .xxx operators.
The 2004 gTLD round was of course open to any applicant, so there was nothing stopping anybody else from applying for .xxx. One gTLD, .tel, did in fact have multiple bidders.
Essentially, the IRP demand cuts to the heart of the domain name industry and the new gTLD concept in general, challenging many practices that have become norms.
Sunrise
Sunrise is “extortion”, according to Manwin.
As well as being opposed to the idea of paying for defensive registrations in general, Manwin also thinks that typos and brand+keyword domains should be eligible for blocking, presumably for free.
It also believes that porn companies should have been able to defensively block some .xxx domains (which ICM called “Sunrise B”) and register others for active use (“Sunrise A”).
Speculation
Manwin’s IRP says that ICM did not act in the best interests of its sponsored community (ostensibly the porn industry) when it sold premium .xxx domains to “known domain name speculators”.
Well-known domainers Frank Schilling and Mike Berkens have invested millions in .xxx, but Manwin says their profit motives show ICM broke its commitment to serve the adult industry only.
Schilling, who signed up to buy domains 33 domains including amateur.xxx before ICM’s registry contract had even been approved, is reportedly already leasing out some of his .xxx names to porn companies for five figures a month.
New gTLDs
Manwin seems to support what you might call a ‘string first, registry later’ model for delegating gTLDs.
It states in its lawsuit and IRP that ICANN should have opened up .xxx for competitive bidding, apparently ignoring the fact that the .xxx string was proposed by ICM, not ICANN.
In the IRP demand, it suggests that allowing gTLD applicants to select their own strings is in violation of ICANN’s bylaws. The complaint states:

[ICANN] gave ICM a permanent monopoly over the .XXX TLD without considering other candidates for registry operator and without making provision for considering other potential registry operators at the end of the initial term of the .xxx Registry Agreement.

If Manwin wins, ICANN could be forced into a situation where it must ask for string proposals from new gTLD applicants and then open up each proposed string to competitive bidding.
That’s not necessarily a bad idea, but it’s pretty much exactly the opposite of how the ICANN-approved new gTLD program is going to work.
The IRP and the lawsuit are also notable in that they target the alleged lack of economic studies that support .xxx and new gTLDs in general.
It states that ICANN “failed to conduct proper economic studies of the impact of the introduction of new TLDs, including the .xxx TLD”.
This is a frequent criticism leveled at ICANN by opponents such as the Association of National Advertisers and the newly formed Coalition for Responsible Internet Domain Oversight.
Manwin is being represented in the suit and IRP by the law firm Mitchell Silberberg & Knupp, the employer of Steve Metalitz, a well-known figure in ICANN’s intellectual property constituency.

Screen Actors Guild opposes new gTLDs

While it does not appear to be a member of the new Coalition for Responsible Internet Domain Oversight, the Screen Actors Guild has come out in opposition to new top-level domains.
The membership organization, which represents over 200,000 Hollywood actors, has asked US Secretary of Commerce John Bryson to persuade ICANN to delay the gTLD program until it can “demonstrate convincingly” that it will be in the public interest.
SAG national executive director David White wrote:

The ICANN proposal would unduly burden a diverse range of public and private brand holders, companies with whom our members are associated. This also presents an undue burden on our organization, as a globally recognized brand. Under this rule, many brand-holders would be forced to spend ever-greater amounts of time and resources simply to protect their brands.

Like many other opponents of the program, White also raises the conflicts-of-interest question that emerged following Peter Dengate Thrush’s move from ICANN’s chair to new gTLD applicant Minds + Machines.
SAG was not listed as a member of CRIDO, the huge cross-industry lobby group that formed to oppose new gTLDs last week, although its arguments are identical.

Staff changes at new gTLD consultancies

There’s movement in the new top-level domains consultancy market this week, with new hires and departures at a couple of startups.
It’s been a case of one in, one out at Sedari, the registry management services company founded by Liz Williams this summer.
The company has hired Philip Sheppard, most recently director of public affairs for AIM, the European Brands Agency, as its new policy director.
Sheppard is an ICANN veteran from the IP/business side of the house, who has chaired multiple policy committees since becoming involved in 1999.
But Sedari has also lost another industry vet, Jothan Frakes, who’s decided to go freelance.
Elsewhere, FairWinds Partners, which shares management with the Coalition Against Domain Name Abuse, has also emerged publicly as a new gTLD consultancy.
The Washington DC-based company hope to use its track record of criticizing the new gTLD program to win the support of big brands skeptical about the ICANN process.
FairWinds said this week it’s taken on former ICANN director Michael Palage of Pharos Global, who has worked for both proponents and opponents of the program, apparently on a freelance basis.

Europe dislikes US-only IANA rule

The European Commission is disappointed that only US-based companies are eligible to apply to take over ICANN’s IANA contract, but has otherwise welcomed the new deal.
As I reported Friday, the US National Telecommunications and Information Administration has put the IANA contract, which gives ICANN its powers to create new top-level domains, up for rebid.
While ICANN is generally expected to be a shoo-in for the contract, the NTIA tilted the odds in its favor by refusing to consider bids from replacement candidates from outside the US.
The EC said in a statement today:

The Commission believes greater respect should be given by the IANA contractor to respecting applicable law (such as EU personal data protection laws)… In that context, it noted with regret that non-US companies are not allowed to compete for the forthcoming IANA contract.

Otherwise, the EC said it was happy with the new provisions in the IANA contract, which promise to enforce mandatory conflict of interests protections on the winning bidder.
Neelie Kroes, European Commission Vice-President for the Digital Agenda said in a press release:

The new IANA tender is a clear step forward for global internet governance. A more transparent, independent and accountable management of the Internet domain names and other resources will reinforce the Internet’s role as a global resource.

The EC is also pleased that ICANN/IANA “will have to provide specific documentation demonstrating how the underlying decision-making process was supportive of the public interest” when new gTLDs are approved.
How this provision will be implemented, and how much power it gives ICANN’s Governmental Advisory Committee to kill new gTLD applications, is perhaps the biggest question hanging over the contract today.
The current IANA contract expires at the end of March next year, shortly before the end of ICANN’s first new gTLDs application window.

Overstock.com slows down O.co rebranding

Overstock.com is throttling its transition to the O.co brand after discovering consumers typed o.com even after watching the company’s commercials, according to a report.
The company’s $350,000 purchase of and subsequent rebranding around the o.co domain was possibly the single biggest single marketing coup for .CO Internet, the .co registry, to date.
But now it intends to keep the Overstock.com brand in the US for the time being, while using O.co overseas and on a new iPad app, according to a report in AdAge.
The O.co Coliseum, the stadium in Oakland for which Overstock bought the naming rights, will continue to bear the O.co name.
AdAge quoted Overstock president Jonathon Johnson saying that “a good portion” of people viewing its commercials tried to visit o.com, which is a non-resolving registry-reserved name, instead.
“We were going too fast and people were confused, which told us we didn’t do a good job,” he told AdAge. “We’re still focused on getting to O.co, just at a slower pace… We’re not flipping back, we’re just refocusing.”
This is obviously bad news for commercial new top-level domain applicants, many of which will be looking for all-important anchor tenants to validate their brands at launch.
Marketing people like to refer to the measurable results of others before pulling the trigger on new initiatives. The O.co case is unlikely to create enthusiasm for new TLDs.
On the other hand, it’s commonly believed that when it comes to breaking the .com mindset in the US, it will take more than a trickle of new TLDs such as .co. It will take a flood.
.CO Internet has always taken the position that .co adoption will take time, and that the ICANN new gTLD program will help its cause by raising awareness of non-.com domains.

US puts ICANN contract up for rebid

The US government has put the IANA contract, which currently gives ICANN its powers to create new top-level domains, up for competitive bidding.
The National Telecommunications and Information Administration issued a request for proposals late yesterday, almost a week later than expected.
The Statement Of Work, which defines the IANA contractor’s responsibilities, is over twice at long as the current IANA contract, containing many deliverables and deadlines.
While the contract is open to bidders other than ICANN, ICANN is obviously the likely winner, so it’s fair to read the SOW in that context.
Notably, the section dealing with approving new gTLDs has been changed since the draft language released in June.
NTIA said previously that in order to delegate a new gTLD, ICANN/IANA “shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.”
The new SOW has dropped the “consensus support” requirement and instead states:

The Contractor must provide documentation verifying that ICANN followed its policy framework including specific documentation demonstrating how the process provided the opportunity for input from relevant stakeholders and was supportive of the global public interest.

This could be read as a softening of the language. No longer will ICANN have to prove consensus – which is not a requirement of the Applicant Guidebook – in order to approve a new gTLD.
However, the fact that it will have to document how a new gTLD is “supportive of the global public interest” may give extra weight to Governmental Advisory Committee objections.
If the GAC were to issue advice stating that a new gTLD application was not in “the global public interest”, it may prove tricky for ICANN to provide documentation showing that it is.
The SOW also addresses conflicts of interest, which has become a big issue for ICANN following the departure of chairman and new gTLD proponent Peter Dengate Thrush, and his subsequent employment by new gTLD applicant Minds + Machines, this June.
The SOW says that IANA needs to have a written conflicts of interest policy, adding:

At a minimum, this policy must address what conflicts based on personal relationships or bias, financial conflicts of interest, possible direct or indirect financial gain from the Contractor’s policy decisions and employment and post-employment activities. The conflict of interest policy must include appropriate sanctions in case on non-compliance, including suspension, dismissal and other penalties.

Overall, the SOW is a substantial document, with a lot of detail.
There’s much more NTIA micromanagement than in the current IANA contract. Any hopes ICANN had that the relationship would become much more arms-length have been dashed.
The SOW includes a list of 17 deadlines for ICANN/IANA, mainly various types of compliance reports that must be filed annually. The NTIA clearly intends to keep IANA on a fairly tight leash.
You can download the RFP documents here.

Massive group forms to kill off new gTLDs

ICANN’s new nemesis is called CRIDO.
Eighty-seven companies and trade groups have formed the Coalition for Responsible Internet Domain Oversight, a lobby group set up to kill ICANN’s “deeply flawed” top-level domains program.
It’s led by the Association of National Advertisers, which emerged this August as a vocal opponent of new gTLDs and has spent the last few months recruiting allies.
Its new domain, crido.org, is registered to the ANA’s PR firm and currently redirects to the ANA’s gTLD microsite.
The new group said in a press release today:

On behalf of its many constituencies and industries, CRIDO is committed to aggressively fighting ICANN’s proposed program, citing its deeply flawed justification, excessive cost and harm to brand owners, likelihood of predatory cyber harm to consumers and failure to act in the public interest, a core requirement of its commitment to the U.S. Department of Commerce.
…
If the ICANN program proceeds, CRIDO firmly believes, the loss of trust in Internet transactions will be substantial. In addition, the for profit and non-profit brand community will suffer from billions of dollars in unnecessary expenditures – money that could be better invested in product improvements, capital expenditures and job creation.

CRIDO’s members comprise 47 trade associations, most but not all American, and 40 companies, many of them major household names such as Coca-Cola, Burger King and Kellogg.
Together, they have signed a petition to the Department of Commerce, ICANN’s overseer in the US government, asking it put a halt to the new gTLDs program
The questions now are whether Commerce will do anything concrete to address the demands and, if not, whether CRIDO will decide to put its lawyers where its mouth is instead.
Here’s a handy table of all CRIDO’s members.
[table id=3 /]

Twitter co-founder to headline DOMAINfest

Twitter co-founder Biz Stone is to keynote the 2012 DOMAINfest Global conference, organizer Oversee.net has just announced.
It sounds rather like his speech will focus on the “inspirational story” angle, rather like Go Daddy founder Bob Parsons’ keynote at the 2011 show.
According to the agenda, Stone will “share his thoughts on Twitter’s future and the evolving world of social media”.
Judging by the other speakers and panelists lined up, it’s an SEO-heavy agenda, but there will be a workshop entitled “Everything You Need to Know about New TLDs”.
For the new gTLDs panel, so far only Neustar’s Ken Hansen is listed as a confirmed speaker. I don’t expect that state of affairs to last long.
The show will be held at the Fairmont Miramar in Santa Monica, California, from January 31 to February 2 next year. Prices start at $1,195 if registering before December 31.

Companies that can’t apply for .brand gTLDs say they have decided not to apply for .brand gTLDs

Hewlett-Packard and Proctor & Gamble have ruled themselves out of applying to ICANN for .brand top-level domains, or so they claim.
Bloomberg yesterday reported a distinct lack of enthusiasm for new gTLDs from many large brands, leading with quotes from P&G and HP:

P&G, the world’s largest consumer products company with more than 50 brands including Tide detergent, Pampers diapers and Crest toothpaste, won’t apply for new suffixes, said Paul Fox, a spokesman. HP, the biggest computer maker, considers the program costly and has no plans to take part, said Gary Elliott, vice president of global marketing.
“A lot of companies are looking at the same math as we are and saying, ‘Let’s stop this proposal from happening,’” Elliott said in an interview. “There’s a tremendous amount of confusion about what this means and what the costs are.”

HP’s Elliot is chairman of the Association of National Advertisers, the most vocal opponent of the new gTLD program, as the Bloomberg report notes.
One fact the report doesn’t mention – and I’d bet Elliot didn’t volunteer – is that HP and P&G cannot apply for .hp or .pg due to ICANN’s strict three-character minimum for new gTLD strings.
HP had campaigned for ICANN to scrap the two-character prohibition for a number of years, though it usually also noted that in principle it was opposed to the program.
Nevertheless, it strikes me as disingenuous for the company to say it’s decided against a .brand on the basis of cost, when ICANN essentially made its decision for it years ago.
P&G, which mostly makes cosmetics and toiletries, has also ruled out applying for gTLDs to represent any of its 50 or so well-known brands, Bloomberg reported.
The internet will have to go without .tampax and .pampers for the foreseeable future.
General Motors, Wal-Mart, Adobe, Porsche, Vodafone and Puma are all generally negative on the program but are still evaluating their options, according to Bloomberg.
It’s quite possible that these outfits are just as opposed to the new gTLD program as HP and P&G.
But if they’ve been talking to consultants, they will also have been advised not to publicly talk about their applications. Nothing can be gained by going public before April 12.

Afilias to apply for Chinese .info

Afilias has announced that it plans to apply for the traditional and simplified Chinese script equivalents of .info under ICANN’s new generic top-level domains program.
The company becomes the last of the Big Three registries to give a glimpse into its new gTLD strategy.
VeriSign has said it wants transliterations of .com in multiple scripts, while Neustar has said it plans to apply for its own dot-brand, .neustar.
Afilias did not disclose the exact strings it wants in its announcement. There was no mention of .mobi, which the company also runs.
According to the last official count, there are close to 7.9 million registered .info domains. Marketing director Roland LaPlante said in September that about 19% host unique web sites.