How one guy games new gTLD sunrise periods

Wanna buy a SOCIAL brand pen for a dollar? No? How about social.web or cloud.guru or direct.flowers?
One intellectual property lawyer closely associated with a number of new gTLD registries has been using a flimsy online pen-selling business in order to obtain potentially valuable domains during sunrise periods.
Thomas Brackey of Beverley Hills law firm Freund & Brackey has acquired dozens of premium domain names during sunrise periods. He was good enough to share some of the details with DI.
Brackey owns three trademarks on the terms “DIRECT”, “SOCIAL” and “CLOUD”. All three were registered in Switzerland in late 2012, having been applied for in July that year.
All three cover the category “stylos”, or pens.
If you want to buy a CLOUD brand pen, you can do so at pentm.ch, a web site Brackey seems to have thrown up rather quickly using Shopify.
All three marks appear to have been registered via Marcaria.com, which charges $960 for a Swiss trademark registration.
Brackey obtained Trademark Clearinghouse registrations for his three trademarks, which would have cost him at least $150 per mark.
He seems to have used the pentm.ch web site to fulfill the TMCH’s “proof of use” requirement.
With TMCH registrations, he’s able to participate in new gTLD sunrise periods, giving him the first opportunity to register social.tld, cloud.tld and direct.tld for the usual inflated sunrise prices.
The pens themselves, Brackey assures us, are real.
But he makes no attempt to pretend that the pen-selling business was in thriving need of brand protection under the new gTLD program’s brand protection mechanisms.
Brackey told DI:

In the course of preparing new gTLD applications, I came to be pretty familiar with the various policy developments surrounding the creation and implementation of the TMCH.
For the first time mark holders of all stripes, and from every country would be given a pre-emptive right to acquire domain names that had nothing to do with the substance of their brands.
Musing on that, I identified what I believed to be a legitimate opportunity to acquire some domain names in the newTLD landscape. More curious than anything, I decided to put my theory to the test and resolved to try buying some domain names.
I’m not sure what I’m going to do with the domains I’ve purchased. I’ve never been a domain investor before, and not confident I qualify as one now. It’s all a bit of an experiment at this point and is certainly fascinating territory from an IP perspective.
There will no doubt be a number of important international legal developments that arise from the gTLD process — new rules, new policies and new opportunities.

At least two of Brackey’s new gTLD clients — What Box? and Plan Bee, which use Brackey’s law firm as their mailing address — have also registered large numbers of sunrise names using this same method.
He’s even selling Plan Bee’s “CONSTRUCTION” and “BUILD” pens on his web site.
Brackey acknowledged that some people take a “pretty dim view” of what he’s doing.
I’d have to say I’m one of them.
In my view, while Brackey may not be strictly breaking the rules of the new gTLD program, he’s certainly not acting within their spirit.
Members of Intellectual Property Constituency and others fought hard for rights protection mechanisms that would help them protect their or their clients’ pre-existing brands from cybersquatters.
The RPMs were not designed to provide a way for investors to avoid landrush auctions or a mad scramble for nice names on the first days of general availability.
The “proof of use” requirement was added to the rules in order prevent the kind of debacle we saw with the European Union’s .eu launch, where bogus trademarks were used to game EurID’s sunrise period.
But the barrier is tissue-thin, requiring merely a screenshot of a web site to overcome.
Gaming new gTLD sunrise periods may not be cheap — it may not even be profitable — but I have to wonder what kind of reputational impact it will have on new gTLD registries that choose to participate.
If you’re a brand owner, would you be more likely or less likely to trust a new gTLD registry that chooses to participate in sunrise gaming?

dotBest cancels landrush

PeopleBrowsr has decided to cancel the landrush phase for its forthcoming .best new gTLD, citing “very little engagement” from registrants.
The TLD is due to go to sunrise today. Two days after it ends on May 19, it will go directly to general availability.
VP of operations Michael Deparini said in an email:

Many of our registrars have given us feedback that there has been very little engagement with the TLD Landrush Phase. We have decided to cancel Landrush.
We are excited to announce that we will open General Availability (GA) ahead of schedule to commence on May 21 at 16:00:00 GMT (12pm EST).

PeopleBrowsr is also the company behind .ceo, which launched two weeks ago with just 250 names in its first couple of days on the market — about 40% of which belonged to one cybersquatter.
.ceo currently has 798 domains in its zone, making it the fourth-smallest of the 74 new gTLDs that currently appear to be selling names.

Pricey .luxury made $500k already

The new gTLD .luxury seems to have sold more than $500,000 worth of domain names already.
(UPDATE: That’s probably not accurate. I seem to have misread some registrar pricing pages. The sunrise price was actually much lower than $1,000. See comments below.)
Saturday’s zone file for the Luxury Partners-owned TLD popped from 1 domain to 470 domains. Most of the new names appear to have been registered during the sunrise period, which ended early last week.
Given the current retail price of over $1,000, it seems .luxury is already a $500,000 business, at least for 2014. Renewal pricing is around the $700 mark, equating to $329,000 a year just on sunrise registrations.
That’s including the registrar markup, of course. The registry will be making a bit less.
“Luxury” brands such as Cartier and Formula 1 bought multiple domains during sunrise. Some tech firms, such as Facebook and Google, continued their blanket approach to defensives.
With such a high price, one wonders what some of these rights holders are thinking: do they really believe cybersquatters are prepared to drop $700 a year infringing their brands?
Sadly there are already a couple of examples of newbie squatters spending absurd sums on clearly infringing new gTLD domains.
It will be interesting to see whether any of these registrants actually use their domains, or whether they’re mainly defensive registrations. I suspect the latter will be more often the case.
Currently in landrush, .luxury is due to go to general availability in about a month.

No sunrise periods for dot-brands

ICANN has finally signed off on a set of exemptions that would allow dot-brand gTLDs to skip sunrise periods and, probably, work only with hand-picked registrars.
Its board’s New gTLD Program Committee passed a resolution at ICANN 49 last week that would add a new Specification 13 (pdf) to Registry Agreements signed by dot-brands.
The new spec removes the obligation operate a sunrise period, which is unnecessary for a gTLD that will only have a single registrant. It also lets dot-brands opt out of treating all registrars equally.
Dot-brands would still have to integrate with the Trademark Clearinghouse and would still have to operate Trademark Claims periods — if a dot-brand registers a competitor’s name in its own gTLD during the first 90 days post-launch, the competitor will find out about it.
ICANN is also proposing to add another clause to Spec 13 related to registrar exclusivity, but has decided to delay the addition for 45 days while it gets advice from the GNSO on whether it’s consistent with policy.
That clause states that the dot-brand registry may choose to “designate no more than three ICANN accredited registrars at any point in time to serve as the exclusive registrar(s) for the TLD.”
This is to avoid the silly situation where a dot-brand is obliged to integrate with registrars from which it has no intention of buying any domain names.
Spec 13 also provides for a two-year cooling off period after a dot-brand ceases operations, during which ICANN will not delegate the same string to another registry unless there’s a public interest need to do so.
The specification contains lots of language designed to prevent a registry gaming the system to pass off a generic string as a brand.
There doesn’t seem to be a way to pass off a trademark alone, without a business to back it up, as a brand. Neither is there a way to pass off a descriptive generic term as a brand.
The rules seem to allow Apple to have .apple as a dot-brand, because Apple doesn’t sell apples, but would not allow a trousers company to have .trousers as a dot-brand.

Weirdest new gTLD launch yet? .wed launches with a single registrar

The new gTLD .wed went into sunrise yesterday with the strangest pricing model yet and a stringent Registry-Registrar Agreement that seems to have scared off all but one registrar.
Atgron is positioning .wed as a space for marrying couples to celebrate their weddings, but only temporarily.
It seemingly has little interest in domain investors or ongoing customer relationships beyond one or two years.
If you register a second-level .wed domain, you can have it for $150 a year for the first two years, according to the Atgron web site. After that, the price rockets to $30,000 a year.
Registrars, resellers and wedding-oriented businesses are allowed to opt out of the third-year spike on their own .wed names if they join Atgron’s reseller program and sell at least 10 a year.
Unlike Vox Populi, which is actively marketing .sucks domains at $25,000 as a reasonable value proposition, Atgron jacks the price up as a deterrent to registrants holding on to names too long. It says:

.WED domain names are sold to couples for one or two years to celebrate their wedding. The domain names then become available to another couple… Mary and John can have MaryandJohn.WED and then YES the next Mary and John can have MaryandJohn.WED a year or two later and so on and so on.

That alone would be enough to put off most registrars, which value the recurring revenue from ongoing annual renewals, but I gather that the .wed RRA contains even more Draconian requirements.
Incredulous registrars tell me that Atgron wants them to create an entirely new web site to market .wed domains — they’re not allowed to sell the names via their existing storefronts.
The only registrar to bite so far is EnCirca, known historically for promoting obscure gTLDs such as .pro and .travel, which is selling .wed via a new standalone site at encirca.wed.
I also gather that Atgron won’t let registrars opt out of selling its third-level .wed domains, which are expected to go for about $50 a year with no third-year spike.
That didn’t work well for .name — registrars hated its three-level structure, forcing the registry to ultimately go two-level — and I don’t think it’s going to work for .wed either.
Registrars also tell me that Atgron wants to ban them from charging a fee for Whois privacy on .wed domains. They can offer privacy, but only if it’s free to the registrant.
With privacy a relatively high-margin value-add for registrars, it’s hardly surprising that they would balk at having this up-sell taken away from them.
As weird as this all sounds, it is of course an example of the kind of innovative business models that the new gTLD program was designed to create. Mission accomplished on that count.
Another thing the program was designed to create is competition, something Atgron will soon encounter when Minds + Machines arrives with .wedding and eats .wed’s lunch. In my view.
The .wed launch period is also quite unusual.
Atgron is running a landrush period concurrently with its 30-day sunrise period.
Even if you don’t own a trademark, you can apply for a .wed domain today. You’ll get a refund if your name is registered by a trademark owner during sunrise, and names won’t go live until April 20.
The registry has extended the 90-day Trademark Claims period to cover the sunrise period too, so it appears to be in compliance with ICANN rights protection rules on that count.
It’s a 30-day sunrise, so it’s first-come, first served if you’re a trademark owner.
As for sunrise pricing, the third-year spike appears to apply too.
Atgron documentation does say there’s going to be an option to purchase a 10-year trademark block for a one-time fee, but I couldn’t find any way to do this on the EnCirca.wed web site today.

Will .exposed see a big sunrise?

Donuts’ new gTLD .exposed goes into sunrise today, but will it put the fear into trademark owners?
It’s arguably the first “ransom” TLD to go live in the current round and the first since .xxx, which scared mark holders into blocking over 80,000 domains back in late 2011.
Most new gTLD sunrise periods to date — most of which have been focused on vertical niches — have had sunrise registrations measured in tens or hundreds rather than thousands.
But .exposed, I would say, is in the same free speech zone as yet-to-launch .sucks and .gripe, which lend themselves well to having a company, product or personal name at the second level.
Brand protection registrars are encouraging their clients to pay special attention to this type of gTLD.
Will this cause a spike in sunrise sales for Donuts over the next 60 days?
It might be difficult to tell, given that Donuts also offers brand owners a blocking mechanism via the Domain Protected Marks List service, so the domains don’t show up in the zone files.
But DPML blocks can be overturned by others with matching trademarks, so some trademark owners may decide to register the name instead for an overabundance of caution.

TMCH sends out 17,500 Trademark Claims notices in a month

Wow.
Just four weeks after the first new gTLDs went into general availability, the Trademark Clearinghouse has already sent out over 17,500 Trademark Claims notices to trademark owners.
A Claims notice is a warning that is generated whenever somebody registers a domain name that exactly matches a trademark listed in the TMCH’s database.
The 17,500 number refers to post-registration notices sent to trademark owners, not pre-registration warnings delivered to would-be registrants.
Considering that there are somewhere in the region of 180,000 domain names in new gTLDs today, 17,500 represents a surprisingly high percentage of the market (high single figures).
Of course, not all of these will be due to cybersquatting attempts.
There are plenty of marks in the TMCH that are acronyms or dictionary words, either because they match a genuine brand or because somebody obtained trademarks on generic terms in order to game sunrise periods.
I’d count those as false positives, personally, but it’s impossible to know without access to TMCH data how many of the 17,500 alerts delivered to date can be accounted for in that way.
There are 26,802 marks in the TMCH, according to the company.

.photography beating .camera

Who said shorter domains are more popular?
Donuts’ new .photography and .camera gTLDs, which both come out of their Early Access Period premium pricing phases this week, have seen .photography get more than twice as many registrations so far.
During their EAP and sunrise periods, where retail prices can range from $150 to $13,000, .camera has racked up 146 names to .photography’s 383.
There’s a difference of meaning here of course, which is reflected in the types of domains being registered; .camera names tend to be hardware-related, while .photography is heavy with personal names.
Donuts’ strategy of picking strings that already feature heavily at the end of the second level of .com seems to be reflecting the reality of registration patterns in new gTLDs too.
The photography-related gTLD space is going to an interesting one to watch.
We’re also waiting for the launch of .photo and .photos (.photos in two weeks, .photo in April), which will crowd the space further. These two are also likely to be the first plural/singular competitors.

First Donuts new gTLD sunrise periods looking tiny

It’s possible that fewer than 1,200 domain names were registered in Donuts’ first seven new gTLD sunrise periods, judging by the latest zone file data.
According to Donuts zone files dated January 31, just 1,164 proper domain names currently exist in .clothing, .bike, .guru, .ventures, .holdings, .singles and .plumbing.
By TLD, the names break down like this:

.clothing — 560
.holdings — 166
.bike — 146
.ventures — 125
.guru — 117
.singles — 50
.plumbing — 44.

As far as I can tell, based on sample Whois lookups, all the names were registered during the gTLDs’ respective sunrise periods, not during the currently ongoing Early Access Program.
On the face of it, these look like very small sunrise periods indeed (consider .co, which had 11,000 registrations during its sunrise in 2011) but there are number of important caveats here.
First, this data might be wrong. There have been hiccups and glitches in registry zone file provision for weeks, and this might be one of those cases. I don’t think it is, but you never know.
Second, the data might be still incomplete. Names were to be allocated after the conclusion of Donuts end-date sunrise, which was January 24. Not all of these domains might have been allocated yet.
Third, these numbers don’t reflect “dark” domains. These are domain names that are not configured with name servers and therefore won’t show up in DNS zone files.
Fourth, and most importantly, domain names that have been blocked by trademark holders under Donuts’ parallel Domain Protected Marks List service do not show up in zone files.
DPML is the Donuts offering to trademark owners that drastically reduces the cost of blocking a mark — potentially to just a few dollars per domain per year — across all of the company’s gTLDs.
We already know from a bit of Whois detective work by World Trademark Review that the likes of Microsoft, Apple, Wal-Mart and Samsung blocked their brands across all seven of these TLDs.
DPML is a bit of a bargain if you’re dead-set on blocking your brand in as many TLDs as possible, and it’s possible — maybe even likely — that the number of DPML subscriptions outstripped actual sunrise registrations.
It’s a given that most valuable brands are more interested in preventing misuse than they are in participating in the new gTLD expansions — Microsoft has no use for microsoft.plumbing.
Judging by the zone files, domains registered during sunrise are largely appropriate to the gTLD — .clothing and .bike are full of clothing and biking brands, with very little crossover between the two, for example.
But there are plenty of exceptions to that rule.
Some other stuff I noticed
I had a dig through the files and did a few Whois look-ups whenever I saw a name that piqued my interest.
There are no hugely obvious examples of widespread gaming to be seen but some arguably generic names did go to some domain industry folk who have inside knowledge of the new gTLD program.
Notably, several people associated with new gTLD applications managed by Beverly Hills IP lawyer Thomas Brackey of Freund & Brackey seem to have picked up nice-looking generic domains during sunrise.
Luxury Partners of .luxury managed to get its hands on domains including luxury.clothing, for example, while What Box?, which applied for six gTLDs, grabbed realestate.guru and wedding.guru.
That’s right, apparently there are trademarks on “real estate” and “wedding” somewhere out there, and domain registry What Box? was able to provide the required proof that it’s using them in commerce.
Brackey himself is listed as the registrant of cloud.guru and direct.[tld] across the seven gTLDs, among others.
George Minardos of .build applicant Minardos Group acquired build.guru during sunrise too.
I wonder if any sunrise names will be challenged under Donuts’ Sunrise Dispute Resolution Policy.
While .guru has only attracted 117 registered names so far, it does appear to be the one place notoriously domain-shy Apple decided to actually play, presumably due to the support “gurus” it employs in its stores — ipad.guru, mac.guru and iphone.guru all went to the company.
There’s a “religious” flavor to some of the registrations there too — scientology.guru and darshan.guru were both registered by their respective organizations.
Amazon appears to be the most sunrise-happy of all registrants, grabbing dozens of (probably) useless names including kindle.plumbing, prime.ventures and aws.bike.
Some porn publishers seem to have gone a bit crazy too, with names such as m4m.plumbing and cam4.clothing making an appearance.
I found a few domains on my trawl that appear to have empty Whois records — christ.holdings and ghost.bike to name two amusingly appropriate examples — which doesn’t seem to be in the spirit of sunrise.
So there are definitely some oddities out there, but so far it does not appear to me based on my first look that massive numbers of trademark owners have been held to ransom, nor does there appear to have been any wholesale gaming of the system.

You snooze, you lose new gTLD sunrise coming soon

Trademark attorneys and brand management executives take note: January 21 will see the launch of the first first-come, first-served sunrise period we’ve seen in a new TLD in a long time.
FCFS means that domain names will be allocated to participants immediately, rather than at the end of the sunrise period.
For those responsible for acquiring domain names for mark owners — many of whom are accustomed to waiting to the last minute before submitting sunrise applications — this is a change of pace.
You snooze, you lose.
To date only Regiodot’s German geographic gTLD, .ruhr, has officially confirmed (pdf) that it intends to use a FCFS policy during its mandatory sunrise period.
That’s due to kick off on January 21.
The precise time that the sunrise will begin — important when you’re looking at a FCFS policy — does not appear to have been published yet.
UPDATE: the time has been published (see comments below this post) and it’s 1000 UTC.
Under ICANN rules, to use FCFS registries need a “Start Date” sunrise, which runs for 30 days but requires a 30-day notice period before it begins. Regiodot told ICANN about its sunrise dates December 18.
The alternative “End Date” sunrises run for 60 days, have no notice period, and domains are only allocated to mark owners — usually using auctions to settle contention — after the 60 days are over.
Other than .ruhr, only PeopleBrowsr’s .ceo has said it wants to run a Start Date sunrise. However, PeopleBrowsr will not run its sunrise on a FCFS basis, preferring the end-date allocation/auction method instead.