BlogBlog
Two Weeks In
Mon, 01/23/2012 - 19:27
We are now in the second week of ICANN’s new gTLD application period. According to a news release issued by ICANN, the first week saw 25 applicants successfully register in its TLD Application System, or TAS. As ICANN promised, the New gTLD Program is up and running exactly on schedule.
January 12, however, did not mark any sort of ending for those groups who, like CADNA, are continuing to push for constructive and achievable changes to the New gTLD Program. The fact that ICANN published yet another updated version of the New gTLD Applicant Guidebook late in the evening on January 11 shows just how willing it is to continue to make tweaks and adjustments to its policies, even this late in the game.
CADNA is continuing to explore new avenues through which to incorporate its proposed changes into the new gTLD policy, working with stakeholders within the U.S. government and with various ICANN policy-making groups. We are also redoubling our efforts to improve the 1999 U.S. Anti-Cybersquatting Consumer Protection Act (ACPA), with the purpose of decreasing instances of cybersquatting, both in new gTLDs as well as in existing ones. Our work isn’t done, and we look forward to welcoming any new groups who would like to join us in our efforts.New gTLD Hearing: Capitol Hill Calls on ICANN
Mon, 12/05/2011 - 22:09
On Thursday, December 8, the U.S. Senate Committee on Commerce, Science and Transportation will host a full committee hearing on "ICANN's Expansion of Top-Level Domains."
According to the Committee's website, the hearing will "examine the merits and implications of this new program and ICANN’s continuing efforts to address concerns raised by the Internet community." In fulfilling its role as an advocate for brand owners in both U.S. and international legislation, CADNA has been working with Commerce Committee leaders to prepare for the hearing. CADNA has provided the Committee with background information on the New gTLD Program, and has discussed various issues that may be raised during the hearing.
We understand that the Commerce Committee has selected witnesses from across a broad spectrum of interests to provide testimony at the hearing, including representatives from ICANN, the non-profit sector and the private sector. Members of the FairWinds team will be attending the hearing, and we will post a recap here on the blog later this week.
For those that will be in or around our nation's capitol on Thursday, the hearing will take place at 10:00 am at the Russell Senate Office Building room 253. Others can stream the hearing via a live webcast from the Commerce Committee's website.CADNA Submits Proposal to ICANN
Fri, 11/18/2011 - 15:31
On the heels of the "What's at Stake: The Reality of ICANN's New gTLD Program for Brands" conference, CADNA has submitted a proposal to ICANN asking the organization to make the New gTLD Program less detrimental to brands. Specifically, the proposal consisted of the following request:
"We ask that the ICANN Board request an Issues Report to formally initiate a policy development process to determine when the next round of new gTLD applications will occur, thereby affirming its commitment to opening a second round in a timely manner."
We believe that disclosing when it will open a second round will increase the level of transparency around the controversial new gTLD policy, but more importantly, will go a long way in relieving the anxiety many brands feel around the New gTLD Program. Right now, many brands feel forced into applying in order to remain competitive, especially considering that it is widely known that other applicants have little to gain from openly sharing their plans to apply or not. This has created a sense of chaos around the first application round.
We're looking forward to hearing ICANN's response to the proposal, and hopefully working with ICANN in the future to improve the New gTLD Program.Not All gTLDs Are Created Equal
Thu, 11/17/2011 - 20:56
DotAsia, the Registry Operator for the .ASIA generic top-level domain (gTLD) recently submitted a proposal to ICANN to allow the sale of one- and two-character second-level .ASIA domains. The proposal seeks to amend the registry's original contract with ICANN, approved in 2006, which explicitly restricted the sale of all single and two-character domains. If approved, the new proposal will mean yet another, albeit familiar, headache for businesses: a sunrise period during which trademark owners will have the opportunity to register their marks before the general public. Given that .ASIA has failed to take off with Internet users, for those brand owners primarily known by one and two character monikers like GE and GM, registration with .ASIA will most likely amount to a defensive maneuver.
According to ICANN’s data, domain registrations in .ASIA have steadily declined from a high of 250,000 registrations in the spring of 2009, to under 200,000 in June 2011. Compare that to .COM, which is pushing 100 million registrations. DotAsia's proposal to expand its domain space into single and two-character domains isn’t likely to generate a significant number of new registrations or vastly increase .ASIA’s market opportunities. However, the sunrise period for trademark holders will guarantee DotAsia a small, but fresh revenue stream as companies move to protect their names.
.ASIA’s struggles are a sign that not all gTLDs are created equal. The newer gTLDs (released after 2000) like .ASIA, .JOBS. and .TRAVEL, have historically faced an uphill battle to gain footing among Internet users because they lack daily relevance and are too broad to convey an immediate understanding of what they offer. Combined, those three gTLDs total just 261,847 registrations—that represents just 0.27% of .COM domain registrations. The success of gTLDs is a particularly relevant concern as the application period for ICANN’s New gTLD Program draws closer. Organizations applying for a category-term gTLD need to consider the appeal of their potential new string and also have a clear vision for how they plan to use it.
While narrower in scope, branded new gTLDs, such as .CANON (Canon, Inc. has publically expressed interest in acquiring a new gTLD), bring with them the force of their brands as well as immediate consumer understanding. Because branded gTLDs will likely be closed to outside registrations, their success will not depend on the number of domain registrations sold. Rather, evaluations of branded gTLDs will focus on how they are leveraged to add value to Internet user experience. Category-term gTLDs, meanwhile, will need a solid outreach campaign in order to attract and retain domain registrations—or else risk joining .ASIA in the ranks of languishing, irrelevant gTLDs.Update on the IANA Contract Request for Proposal
Wed, 11/16/2011 - 21:30
A few weeks back, we wrote about the upcoming expiration of the IANA contract between the National Telecommunications and Information Administration (NTIA) and ICANN. At that point, the NTIA had announced that it will be accepting proposals from potential new contractors between early November and early December of this year.
Now, the NTIA has officially issued its Request for Proposal, and it includes a few marked changes from previous iterations of the IANA contract. For one, it includes much more stringent language requiring the contractor disclose any conflicts of interest.But perhaps most surprising to some is the fact that the NTIA will now require the new contractor to be a wholly U.S. owned an operated firm or fully accredited U.S. college or university. Previously, the NTIA had only required that the contractor maintain a physical address in the U.S.
ICANN has been responsible for managing the IANA functions since 1998, but this responsibility is technically separate from its policy-making activities. If another organization is awarded the IANA contract, it could impact the way the New gTLD Program plays out. This is because the new contractor must provide documentation that proves ICANN followed its own policies to delegate and re-delegate gTLDs, as well as how the delegated gTLDs support the global public interest.
Of course, the potential strength or weakness of that provision depends on what entity is ultimately awarded the IANA contract – ICANN or another organization.So Then What? What Could Happen if the NTIA Does Not Renew its Contract with ICANN
Fri, 10/28/2011 - 14:51
We have often discussed the relationship between the U.S. Department of Commerce and ICANN. To review, the National Telecommunications and Information Administration (NTIA), an agency within the DoC, entered into an agreement with ICANN, wherein ICANN administers the IANA functions under a contract with the NTIA. IANA stands for the Internet Assigned Numbers Authority, and the “IANA functions” refers to the management of the Internet Protocol (IP) address space, the maintenance of registries of IP identifiers, and the management of the top-level domain name space (or the DNS “root zone”).
In the context of new gTLDs, the most salient aspect of that agreement is that the NTIA contracts ICANN to manage the top-level domain space – until now, that has meant gTLDs like .COM, .ORG and .NET as well as ccTLDs like .JP and .MX. But it was also within ICANN’s purview to expand the space, which it first did back in 2000 when it started adding new gTLDs like .INFO and .MOBI.
But like any contract, ICANN’s contract with the NTIA has an expiration date. It has been extended in the past, but is now set to expire on March 31, 2012. According to DomainIncite, the NTIA has now announced that it will accept proposals from potential new IANA contractors between early November and early December of this year.
March 31 falls within the new gTLD application period (January 12 – April 12, 2012). By then, multiple applications (potentially hundreds) will have already been filed, but the new gTLDs will not have made it into the root.
So what happens in the event that ICANN loses the IANA contract to a new contractor? More importantly, what happens if that new contractor repeals the New gTLD Program in favor of a slower new gTLD rollout or, even, no new rollout at all?
This scenario is not very likely – but it’s not impossible, either. If ICANN were to lose the IANA contract before it has the chance to add new gTLDs into the root, then there is a chance those new gTLDs will not make it into the root. Hopefully in that case, applicants will be refunded the application fee. There is also a possibility that the new contractor will honor those applications and continue on with the New gTLD Program.New gTLD Conference for Brands
Tue, 10/25/2011 - 17:48
One week from today, CADNA will be hosting an event about new gTLDs. The What’s at Stake: The Reality of ICANN’s New gTLD Program for Brands conference is designed to educate representatives from major brands about how ICANN’s New gTLD Program will impact their business, and also to spur specific changes to the new gTLD policy in order to make it less detrimental for brands.
Esther Dyson, Founding Chairman of ICANN, will deliver the keynote speech, and she will be followed by a series of panels that will address various aspects of the New gTLD Program. In addition to providing information, the speakers, who include domain strategy experts, marketers, advertisers and lawyers for major brands, will also discuss certain aspects of the Program that need to be improved, and how to work with ICANN to make those improvements. While it is clear that ICANN will most likely not repeal its New gTLD Program, the New gTLD Applicant Guidebook includes a provision that aspects of the Program can still be changed.
CADNA has been working with Judy Shapiro of engageSimply to plan this event. Judy featured the conference in an article she recently wrote for Advertising Age.
More details about the event can be found at WhatsAtStake.com. You can also request an invitation by emailing samantha@cadna.org.A Missed Opportunity
Fri, 10/07/2011 - 14:56
Recently here on the CADNA blog, we overviewed the changes that ICANN made to the latest version of the New gTLD Applicant Guidebook. The changes, for the most part, were not major. For brand owners still attempting to devise a plan for dealing with new gTLDs, this most recent round of changes will have almost no impact on their decisions.
This is unfortunate, because through our discussions with members and other companies, we see that there is significant room for improvement to certain policies in the Guidebook.
The point that gives us the most concern is that, despite estimates that hundreds of new gTLD applicants will be brand owners, ICANN has made no distinction between these corporate applicants and other gTLD applicants. Given that many corporate applicants will be applying for closed registries, in contrast to most other standard or community-based applicants, there is a case to be made for ICANN creating a new category of corporate applications. ICANN could establish a set of universally recognized criteria that applicants must fulfill in order to qualify as corporate applicants, such as annual revenue, debt and profit ratios, net worth and others.
Once it establishes this new category of applicants, ICANN could begin to reconsider some of the application requirements for businesses. As the Guidebook is currently written, a new gTLD applicant that is a publicly traded company can forgo certain background checks. The idea is, if the company is listed on the world’s 25 biggest stock exchanges, it has already been properly vetted and ICANN does not need to go back and perform a task that has already been done. So ICANN should not have a problem with exempting corporate applicants from disclosing personal information, including the home addresses, of their Board members and Chief Officers. This highly sensitive information has already been provided in past checks, and could mean a serious threat to security if accidentally leaked or otherwise compromised.
Another provision that ICANN could alter for corporate applicants is its requirement that applicants demonstrate a Continued Operations Instrument (COI) via either a letter of credit or a cash deposit into escrow of $375,000, or the equivalent of what it would take to keep the gTLD registry operating for three years. ICANN should permit corporate applicants to demonstrate their COI through both a letter of credit and a cash deposit into escrow if they so choose, in order to lessen the burden on those businesses.
These are just a few areas where ICANN could make a few changes to make the policies surrounding the New gTLD Program less detrimental to brand owners. Of course, the biggest thing ICANN could do to relieve the stress placed on businesses is to determine when it will open up a second application round, or at the very least, when it will initiate a policy development process to decide when to do so. This would go miles in alleviating the anxiety plaguing many businesses, who feel forced into applying for a new gTLD simply to not be left behind.Bad Medicine
Tue, 10/04/2011 - 18:58
At the end of September, Interpol coordinated a massive, multi-pronged effort to crack down on illegal Internet pharmacies that peddle fake prescription drugs. According to a recent article in The Register, police forces, customs agencies, ISPs, payment processors and delivery companies all contributed to the effort that arrested suspects in 81 countries.
Another major contributor to this takedown was Nominet, the United Kingdom domain name registry that operates the .UK ccTLD. Nominet suspended around 500 .UK domain names that were associated with these online pharmacies on the advice of law enforcement and regulatory agencies.
Nominet’s suspensions are different from the domain name seizures carried out by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division on various occasions over the past year. Namely, whereas ICE moved the seized domain names to its own name servers and displayed a notice of seizure on the sites, Nominet simply stops the suspended domain names from resolving to content, effectively shutting the websites down.
Nominet used the fact that all of the domains contained fake WHOIS information as justification for the suspension, which violates the registration agreement for registering a .UK domain. Additionally, Nominent is currently working to develop a policy under which law enforcement will have a more formalized process for requesting that domains believed to be hosting criminal content be taken down without needing a court order.
The proactive approach that Nominet is taking should serve as a model for other registries, both those that operate ccTLDs as well as those that run gTLDs.Can Lack Of Bad Faith Be Transferred?
Wed, 09/28/2011 - 13:24
“Bad faith” can some times be the trickiest element to prove when trying to demonstrate that a registrant has cybersquatted a domain name. Many times, whether a domain owner has acted in bad faith comes down to timing, specifically when he or she first registered the domain name. This principle was called into question during a recent cybersquatting lawsuit in a Los Angeles federal court.
Erik Bethke, the founder of the virtual pet game and social network GoPets Ltd., had attempted to purchase the domain name GoPets.com from its owner, Edward Hise. Bethke initially offered Hise $750 for the domain, but when Hise rejected the offer, Bethke filed a UDRP arbitration with the World Intellectual Property Organization (WIPO). Unfortunately for Bethke, because Hise had registered GoPets.com five years before Bethke created GoPets Ltd., the complaint lacked evidence of bad faith and the WIPO Panel denied Bethke’s request to transfer the domain.
After the failed UDRP, Bethke again offered to purchase the domain, this time for $40,000. Hise responded asking for $5 million and threatening to add metatags to the code of GoPets.com in order to redirect visitors to Bethke’s site back to Hise’s domain. After sending that demand, Hise transferred ownership of the GoPets.com domain to Digital Overture, the company that he co-owns with his brother. Through Digital Overture, the Hise brothers have registered over 1,000 domain names.
After Hise transferred the domain, Bethke took legal action, suing him in a Los Angeles federal court for cybersquatting and trademark infringement. He attempted to circumvent the issue of when the domain had originally been registered by arguing that Hise’s renewing the domain name registration and then transferring it to Digital Overture amounted to a new registration. The Los Angeles judge sided with Bethke, awarding him $100,000 in damages as well as the domain name GoPets.com.
However, a three-judge panel of the 9th Circuit judges partially reversed this ruling, on the grounds that the Anitcybersquatting Consumer Protection Act (ACPA) is very clear about its definition of “registration” as referring to the initial domain name registration. In the decision, Judge William Fletcher wrote, “We see no basis in ACPA to conclude that a right that belongs to an initial registrant of a currently registered domain name is lost when that name is transferred to another owner.”
The judges did agree that both Hise and his brother had shown bad faith after the UDRP proceedings, and had also violated unfair competition laws during their negotiations with Bethke. The Los Angeles judge is now left to decide what relief might be appropriate for these offenses. Whether this decision will have any impact on the way domain transfers are regarded under UDRP precedent has yet to be seen.
Aside from highlighting how complex domain name-related matters can be, this case opens up the question of whether or not ACPA needs to be adjusted to more adequately cover scenarios of domain name transfers, as well as other issues.
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