ICANN playing ping-pong on closed generics controversy

ICANN’s board of directors has refused to comment on the issue of “closed generic” gTLDs, bouncing the thorny issue back to the community.

In its response to the SubPro working group’s draft final report this week, the board declined to be drawn on whether it thinks closed generics should be allowed in future application rounds, and urged the GNSO to figure it out, writing:

the Board is not in a position to request policy outcomes… we will base our decision on whether we reasonably believe that the policy proposal is or is not in the best interests of the ICANN community or ICANN

A closed generic is a gTLD representing a non-trademark dictionary word, where the registry is the only eligible registrant. Dozens of companies tried to snap up such TLDs in 2012

ICANN changed the rules to disallow them, based largely on government advice, before punting the issue to the community, in the form of the GNSO, back in 2015.

But despite five years of thinking, the GNSO’s SubPro working group was unable to reach a consensus on whether closed generics should be allowed or not, or whether they should be allowed, but only when there’s a “public interest” purpose.

As I noted last month, it presented three possible ways closed generics could be permitted, none of which have consensus support.

So it asked the board for guidance, and the board’s response is basically “not our problem, figure it out yourselves”.

It would be churlish to criticize the board for refusing to make policy from the top-down, of course.

Much better to wait for the next time it does make policy from the top-down, and criticize it then.

Has ICANN cut off its regulatory hands?

ICANN may have voluntarily cut off its power to enforce bans on things like cyberbullying, pornography and copyright infringement in future new gTLDs.

Its board of directors yesterday informed the chairs of SubPro, the community group working on new gTLD policy for the next round, that its ability to enforce so-called Public Interest Commitments may be curtailed in future.

A PIC is a contractual promise to act in the public interest, enforceable by ICANN through a PIC Dispute Resolution Process. All 2012 new gTLDs have them, but some have additional PICs due to the gTLD’s sensitive nature.

They were created because ICANN’s Governmental Advisory Committee didn’t like the look of some applications for gTLD strings it considered potentially problematic.

.sucks is a good example — registry Vox Populi has specific commitments to ban cyberbullying, porn, and parking in its registry agreement.

Should ICANN receive complaints about bullying in .sucks, it would be able to invoke the PICDRP and, at least in theory, terminate Vox Pop’s registry contract.

But these are all restrictions on content, and ICANN is singularly focused on not being a content regulator.

It’s so focused on staying away from content that four years ago, during the IANA transition, it amended its bylaws to specifically handcuff itself. The bylaws now state, front and center:

ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide… For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.

There’s a specific carve-out grandfathering contracts inked before October 1, 2016, so PICs agreed to by 2012-round applicants are still enforceable.

But it’s doubtful that any PICs not related to the security and stability of the DNS will be enforceable in future, the board told SubPro.

The issue is being raised now because SubPro is proposing a continuation of the PICs program, baking it into policy in what it calls Registry Voluntary Commitments.

Its draft final report acknowledges that ICANN’s not in the content regulation business, but most of the group were in favor of maintaining the status quo.

But the board evidently is more concerned. It told SubPro’s chairs:

The language of the Bylaws, however, could preclude ICANN from entering into future registry agreements (that materially differ in form from the 2012 round version currently in force) that include PICs that reach outside of ICANN’s technical mission as stated in the Bylaws. The language of the Bylaws specifically limits ICANN’s negotiating and contracting power to PICs that are “in service of its Mission.” The Board is concerned, therefore, that the current Bylaws language would create issues for ICANN to enter and enforce any content-related issue regarding PICs or Registry Voluntary Commitments (RVCs)

There’s a possibility that it could now be more difficult for future applicants to get their applications past GAC concerns or other complaints, particularly if their chosen string addresses a “highly sensitive or regulated industry”.

There was a “chuck it in the PICs” attitude to many controversies in the 2012 round, but with that option perhaps not available in future, it may lead to an increase in withdrawn applications.

Could .sucks get approved in future, without a cast-iron, enforceable commitment to ban bullying?

MMX revenue down even as sales rise during pandemic

New gTLD registry MMX saw its revenue dip in the first half of the year, even as the number of domain names it sold increased.

The company today reported a net profit after tax of $1.2 million, down from $1.7 million a year ago, on revenue that was down 5% at $8.5 million.

But billings were up in the quarter were up 7%, with channel billings (ie, domains sold via third-party registrars) up 20%.

Billings is the measure of how much the company sold, which is largely deferred and recognized as revenue over the period of the registration.

Domains under management across the registry’s portfolio of 31 gTLDs increased 31% to 2.38 million.

The company blamed a lack of brokered premium sales for the top-line decline, saying that segment contributed $0.1 million in the half, compared to $0.8 million a year ago.

MMX said registrar partner sales were “unimpacted by COVID”, up 4% to $8.3 million, but two of its brand-protection partners had to delay the launch of its pricey AdultBlock porn domain blocks until Q4, so there was no revenue to be found in defensives in the half.

This ICANN comment period is a Kafkaesque nightmare

With the deadline for commenting on draft new gTLD program rules rapidly approaching, you may be tempted to visit the ICANN web site to peruse the comments that have already been submitted by others. Good bloody luck.

The way ICANN has chosen to present the comments is so bafflingly opaque, confusing and confounding that I can’t help but conclude it must have been deliberately designed to be as soul-crushing as possible.

Regular comment periods are pretty straightforward: you email your comments as prose to ICANN, ICANN publishes the email and any attachments for others to read. Everyone knows where everyone stands. Job done.

But recently there’s been a worrying trend towards a questionnaire and spreadsheet model based around Google Docs, and that’s the model being used for comments on the final draft report of the new gTLD program working group, known as SubPro.

You can check out the spreadsheet here.

The first thing you’ll notice is that the spreadsheet is 215 columns wide, with each respondent given one row for their responses.

You’ll also notice that the spreadsheet doesn’t seem to understand line breaks. Where the respondent has provided some textual commentary, it’s spread across multiple columns in some cases and not in others.

And then there’s the column headings.

While stumbling randomly through the spreadsheet, I discovered an interesting nugget of information — it seems the new gTLD registry MMX wants the next application round delayed until all of the 2012 round have been launched, which I found a bit surprising.

This nugget can be found under the column heading “Enter your response here”, a heading that is helpfully shared by 90 (ninety) other columns on the same damn page.

The heading “Do you want to save your progress and quit for now? You will be able to return to the form to complete it at a later time” appears 10 times in the document.

No information in adjacent columns sheds any light on what triggered MMX to make its comment.

In order to figure out the question for pretty much any response, the only option appears to be to cross-reference the spreadsheet with the original form questionnaire, which can be found as a PDF here.

But the questionnaire has 234 questions and there’s no straightforward correlation between the question number and the columns on the spreadsheet, which are addressed as AA through IG.

So when you see that European industry group CENTR went to the trouble to “Support Output(s) as written” in column DI, under the heading “If you choose one of the following responses, there is no need to submit comments”, it’s virtually impossible to figure out what it actually supports.

If you are able to figure out which question it was answering, that probably won’t help you much either.

The form merely contains brief summaries of changes the working group has made. To see the “Output(s) as written” you’d have to cross-reference with the 363-page draft final report (pdf).

A lot of you are probably thinking that I should just export the spreadsheet into Excel or OpenOffice and clean it up a bit. But, no, you can’t. ICANN has disabled exporting, downloading, and even copy-pasting.

It’s enough to make one feel like going out and licking the floor on public transport.

Way to go on the transparency, ICANN!

I have to believe that the ICANN staffer responsible for compiling all these comments into the official ICANN summary has some tools at his or her disposal to render this mess decipherable, because otherwise they’ve got a huge, hair-ripping job on their hands.

Of course, since there doesn’t appear to be a way for the rest of us to verify the summary report’s accuracy, they can probably just write whatever they want.

Could .cpa be the most successful new gTLD sunrise yet?

The registry for the new .cpa gTLD reckons it has received “thousands” of applications for domains during its current launch period, potentially making it the most successful gTLD sunrise since 2012.

The American Institute of Certified Public Accountants, which manages the TLD, said today:

Well over half of the 100 biggest U.S. firms — as well as an equally large percentage of the next 400 — have begun advancing their applications as part of the early phase of the .cpa registration process, which launched on Sept. 1.

Assuming “thousands” means at least 2,000, this would make .cpa a top three or four sunrise, judging by figures collected by ICANN showing Google’s .app the current volume leader at 2,908.

But we can’t assume that all the .cpa domains boasted of are trademark-verified sunrise period applications under ICANN’s rules.

AICPA is running a simultaneous Limited Registration Period during which any CPA firm can apply for domains that are “most consistent with their current digital branding” — ie, no trademark required.

Both of these periods end October 31, after which the registry will dole out domains in a batch, presumably giving preference to the sunrise applicants.

We have to assume the amount of purely defensive registrations will be relatively low, due to AICPA’s policies.

Not only are registrants limited to licensed CPA companies and individuals, but registrants have to commit to redirect their .cpa domain to their existing web site within a month and deploy a full web site within a year.

.cpa domains sell for $225 a year, according to the registry. General availability is scheduled for January 15.

Three-letter .blog domains priced up to $100k

Knock Knock Whois There, the .blog registry, said it is going to release its inventory of three-character domains next month.

Roughly 47,000 names will be released at premium fees, with prices ranging “from a few hundred dollars to over $100K”, the company said.

That number suggests that pretty much all of the alphanumeric combinations and hyphenated L-L, N-N, L-N and N-L variants will be available.

The premium pricing only applies to year one; the names will renew at the standard rate of between $10 and $30.

The names will be released October 7 on a first-come, first-served basis.

.blog is doing pretty well by new gTLD standards, with over 190,000 registered names.

Donuts to launch .contact next week

Almost a year and a half after buying it, Donuts is ready to launch its newest gTLD, .contact.

According to ICANN records, the sunrise period for the domain will run from September 29 to November 28.

Registrars report that general availability will begin December 9. Retail pricing is expected to be competitive with .com.

Donuts will also run its traditional Early Access Period, from December 2, a week during which prices start very high and decline day by day.

It will be an unrestricted space, as it Donuts’ wont, and I imagine the suggested use case is something similar to the .tel model — the publication of contact information.

Donuts acquired .contact from Top Level Spectrum for an undisclosed amount in April 2019.

Floodgates, open! Trademark Clearinghouse now supports .com

The Trademark Clearinghouse has added .com to the roster of TLDs supported by its infringement notification service.

The Deloitte-managed service recently announced the change to its Ongoing Notification Service, which came into effect late last month.

The update means TMCH subscribers will receive alerts whenever a .com domain is registered that contains their trademark, helping them to decide whether to pursue enforcement actions such as UDRP.

Unlike the ICANN-mandated 90-day Trademark Claims period that accompanies the launch of each new gTLD, the registrant herself does not receive an alert of possible infringement at point of registration.

The service, which is not regulated by ICANN, is still free to companies that have their marks registered in the TMCH, which charges an extra dollar for every variation of a mark the holder wishes to monitor.

Such services have been commercially available from the likes of MarkMonitor for 20 years or more. The TMCH has been offering it for new gTLDs since they started launching at the end of 2013.

With the .com-shaped gaping hole now plugged, two things could happen.

First, clients may find a steep increase in the number of alerts they receive — .com is still the biggest-selling and in volume terms the most-abused TLD.

Second, commercial providers of similar services now find themselves competing against a free rival with an ICANN-enabled captive audience.

The upgrade comes at the tail end of the current wave of the new gTLD program. With the .gay launch out of the way and other desirable open TLDs tied up in litigation, there won’t be much call for TMCH’s core services for the next few years.

It also comes just a couple months after the .com zone file started being published on ICANN’s Centralized Zone Data Service, but I expect that’s just a coincidence.

Radix premium renewals approach $1 million

New gTLD registry Radix made almost a million bucks in the first half of the year from renewal fees on its premium domains.

That’s one data point that jumps out from Radix’s latest premium sales report, released last night.

The company said that it made $1.96 million at the top line from premiums in the period, up 19% on the second half of 2019.

It added that $996,771 of that was from renewals, up from $903,687 in H2 2019.

Radix is one of the registries that charges a premium fee every year over the lifetime of the registration, a practice controversial among domain investors.

Still, it appears there is demand (or, at least, acceptance) among end users. Radix said it saw a 41% sequential increase in the number of premium sales in H1.

.tech, .online and .store were the biggest sellers, with the vast majority of sold names clustering in the $250 to $2,500 range.

The renewal rate after the first year was 63%, growing to 72% at the second renewal and a very respectable 78% thereafter.

Radix said it saw .store premium sales grow by more than fivefold during the half, which it attributed to the coronavirus pandemic:

While premium registrations and revenue have grown steadily for five quarters since Q2 2019, the 2020 pandemic has led to significant demand in eCommerce and have urged businesses from all verticals to build a strong web presence.

This has led to a surge in the adoption of premium domain names on meaningful extensions that are most suited for these businesses such as .STORE. Premium registrations for .STORE in Q2 2020 was up by 5.5X compared to Q2 2019.

More stats can be found here.

ICANN ordered to freeze .hotel after “serious questions” about trade secrets “theft”

ICANN has been instructed to place the proposed .hotel gTLD in limbo after four applicants for the string raised “sufficiently serious questions” that ICANN may have whitewashed the “theft” of trade secrets.

The order was handed down last month by the emergency panelist in the Independent Review Process case against ICANN by claimants Fegistry, MMX, Radix and Domain Ventures Partners.

Christopher Gibson told ICANN to “maintain the status quo” with regards the .hotel contention set, meaning currently winning applicant Hotel Top Level Domain, which is now owned by Afilias, won’t get contracted or delegated until the IRP is resolved.

At the core of the decision (pdf) is Gibson’s view that the claimants raised “sufficiently serious questions related to the merits” in allegations that ICANN mishandled and acted less than transparently in its investigation into a series of data breaches several years ago.

You may recall that ICANN seriously screwed up its new gTLD application portal, configuring in such a way that any applicant was able to search for and view the confidential data, including financial information such as revenue projections, of any other competing applicant.

Basically, ICANN was accidentally publishing applicants’ trade secrets on its web site for years.

ICANN discovered the glitch in 2015 and conducted an audit, which initially fingered Dirk Krischenowski — who at time was the half-owner of a company that owned almost half of HTLD as well as a lead consultant on the bid — as the person who appeared to have accessed the vast majority of the confidential data in March and April 2014.

ICANN did not initially go public with his identity, but it did inform the affected applicants and I managed to get a copy of the email, which said he’d downloaded about 200 records he shouldn’t have been able to access.

It later came to light that Krischenowski was not the only HTLD employee to use the misconfiguration to access data — according to ICANN, then-CEO of HTLD Katrin Ohlmer and lawyer Oliver Süme had too.

HTLD execs have always denied any wrongdoing, and as far as I know there’s never been any action against them in the proper courts. Krischenowski has maintained that he had no idea the portal was glitched, and he was using it in good faith.

Also, neither Ohlmer nor Krischenowski are still involved with HTLD, having been bought out by Afilias after the hacking claims emerged.

These claims of trade secret “theft” are being raised again now because the losing .hotel applicants think ICANN screwed up its probe and basically tried to make it go away out of embarrassment.

Back in August 2016, the ICANN board decided that demands to cancel the HTLD application were “not warranted”. Ohlmer barely gets a mention in the resolution’s rationale.

The losing applicants challenged this decision in a Request for Reconsideration in 2016, known as Request 16-11 (pdf). In that request, they argued that the ICANN board had basically ignored Ohlmer’s role.

Request 16-11 was finally rejected by the ICANN board in January last year, with the board saying it had in fact considered Ohlmer when making its decision.

But the IRP claimants now point to a baffling part of ICANN’s rationale for doing so: that it found “no evidence that any of the confidential information that Ms. Ohlmer (or Mr. Krischenowski) improperly accessed was provided to HTLD”.

In other words, ICANN said that the CEO of the company did not provide the information that she had obtained to the company of which she was CEO. Clear?

Another reason for brushing off the hacking claims has been that HTLD could have seen no benefit during the application process by having access to its rivals’ confidential data.

HTLD won the contention set, avoiding the need for an auction, in a Community Priority Evaluation. ICANN says the CPE was wholly based on information provided in its 2012 application, so any data obtained in 2014 would have been worthless.

But the losing applicants say that doesn’t matter, as HTLD/Afilias still have access to their trade secrets, which could make the company a more effective competitor should .hotel be delegated.

This all seems to have been important to Gibson’s determination. He wrote in his emergency ruling (pdf) last month:

The Emergency Panelist determines that Claimants have raised “sufficiently serious questions related to the merits” in in relation to the Board’s denial of Request 16-11, with respect to the allegations concerning the Portal Configuration issues in Request 16-11. This conclusion is made on the basis of all of the above information, and in view of Claimants’ IRP Request claim that ICANN subverted the investigation into HTLD’s alleged theft of trade secrets. In particular, Claimants claim that ICANN refused to produce key information underlying its reported conclusions in the investigation; that it violated the duty of transparency by withholding that information; that the Board’s action to ignore relevant facts and law was a violation of Bylaws; and further, to extent the BAMC and/or Board failed to have such information before deciding to disregard HTLD’s alleged breach, that violated their duty of due diligence upon reasonable investigation, and duty of independent judgment.

The Emergency Panelist echoes concerns that were raised initially by the Despegar IRP Panel regarding the Portal Configuration issues, where that Panel found that “serious allegations” had been made188 and referenced Article III(1) of ICANN’s Bylaws in effect at that time, but declined to make a finding on those issues, indicating “that it should remain open to be considered at a future IRP should one be commenced in respect of this issue.” Since that time, ICANN conducted an internal investigation of the Portal Configuration issues, as noted above; however, the alleged lack of disclosure, as well as certain inconsistencies in the decisions of the BAMC and the Board regarding the persons to whom the confidential information was disclosed and their relationship to, or position with HTLD, as well as ICANN’s decision to ultimately rely on a “no harm no foul” rationale when deciding to permit the HTLD application to proceed, all raise sufficiently serious questions related to the merits of whether the Board breached ICANN’s Article, Bylaws or other polices and commitments.

It’s important to note that this is not a final ruling that ICANN did anything wrong, it’s basically the ICANN equivalent of a ruling on a preliminary injunction and Gibson is saying the claimants’ allegations are worthy of further inquiry.

And the ruling did not go entirely the way of the claimants. Gibson in fact ruled against them on most of their demands.

For example, he said their was insufficient evidence to revisit claims that a review of the CPE process carried out by FTI Consulting was a whitewash, and he refused to order ICANN to preserve documentation relating to the case (though ICANN has said it will do so anyway).

He also ruled against the claimants on a few procedural issues, such as their demands for an Ombudsman review and for IRP administrator the International Center for Dispute Resolution to recuse itself.

Some of their claims were also time-barred under ICANN’s equivalent of the statute of limitations.

But ICANN will be prevented from contracting with HTLD/Afilias for now, which is a key strategic win.

ICANN reckons the claimants are just using the IRP to try to force deep-pocketed Afilias into a private auction they can be paid to lose, and I don’t doubt there’s more than a grain of truth in that claim.

But if it exposes another ICANN cover-up in the process, I for one can live with that.

The case continues…