New gTLD Draft Applicant Guidebook, v 4 and "An Economic Framework for the Analysis of gTLDs"

In anticipation of next week’s meeting in Brussels, ICANN has released a fourth draft of the Applicant Guidebook that describes the process of applying for new generic top level domains.
It has also released “An Economic Framemark for the Analysis of the Expansion of Generic Top-Level Domain Names” which concludes that either good and/or bad things could result from new gTLDs.
Economic Analysis of New Gtlds 16jun10 En


Can We Learn Anything From The .JOBS TLD?

.JOBS is a sponsored TLD. Wikipedia notes that:

The intended use of the domain jobs is for companies and organizations to register some version of their corporate names and use it for a site specifically aimed at those seeking employment with that company, as distinguished from general corporate and marketing sites in other top level domains such as com. For instance, asda.jobs is a site giving information about jobs available at British supermarket chain Asda. The licensed operator of the jobs domain is Employ Media LLC.

The model was questioned at the time of introduction in 2005 and adoption of .JOBS names appears to be sporadic.
No one appears to be allowed to register ACCOUNTING.JOBS for accounting jobs, nor could Craigslist, for example, register CRAIGSLIST.JOBS to advertise third party jobs.
Emply Media has now requested permission from ICANN to loosen up its registration practice for .JOBS, a move already criticized by some industry observers and others.


Applying For 'Dot Brand' TLDs

Most of you are familiar with ICANN’s new gTLD process. Many trademark owners are contemplating applying for top level domains reflecting their brands (“Dot Brands”).
Operating a gTLD registry will require expertise as well as an infrastructure that meets ICANN’s standards. Importantly, ICANN is evaluating its policy of registry-registrar separation. This could mean that if you apply for and receive .YOURBRAND, you may own and control the registry that manages the TLD, but you may have to use non-owned and controlled entities to be the registrar(s) that allocate the .YOURBRAND domain names, even if those names are for internal use only and no names are allocated to the public.
To assist brand-owners in meeting these and other requirements, I will be providing legal consulting services in conjunction with Com Laude and its sister company Valideus, which will be providing business and technical consulting services (brochure reproduced below). Com Laude, an accredited registrar specializing in managing domain name portfolios for large brand owners, has developed a “white label” registrar and registry solution for applicants for Dot Brands.
We will be advising on ‘Dot Brand’ applications to ICANN (as well as on brand-protection issues arising from the new gTLDs, applicable to any trademark owner).
I will be attending th INTA Annual Meeting in Boston, as will the principals of Com Laude and Valideus, Nick Wood and Lorna Gradden. If your company is exploring filing for a Dot Brand TLD, please contact me.
Valideus Leaflet NEW


Not The Highest Probability UDRP, But It Appears To Have Worked

The UDRP only deals with cybersquatting in the second level domain of a gTLD, so the owner of the mark HOT RUSSIAN BRIDES will fail on the first prong of a UDRP against JIMSLIST.COM, even if the registrant uses the path name JIMSLIST.COM/AGENCIES/HOTRUSSIANBRIDES (and even if the UDRP panel believes that complainant has a perfectly good trademark infringement action). And if the purpose of filing the UDRP was to merely to uncloak the true registrant by naming the proxy service as the defendant, well, that might not work either. On the other hand, registrant claims that it stopped the complained-of behavior.
Decision Udrp Hot Russian Brides


What Didn't Happen at the ICANN Meeting This Past Week?

ICANN didn’t accelarate the deadlines for applying for new TLDs. There still isn’t a set deadline. There probably won’t be a deadline set prior to the next open meeting in June. Stay tuned. More here.


Dot Comfort, Part One

The Internet Committee of the International Trademark Association started its work for the year yesterday by asking us to introduce ourselves and outline what we wanted to work on. I got carried away with mine, so I’ve decided to expand my remarks into a treatise.
I have been involved in domain name disputes since 1994 (when I stupidly didn’t register google.com). I have been following domain name politics since the 1998-2001 era that saw the creation of ACPA, ICANN and the UDRP. I have represented famous mark owners policing their marks in various fora (and have also assisted some famous mark owners in becoming registrars). I was actually the GC of a registrar for about a day.
While I concur in my fellow trademark lawyers’ desire that there be a voice for the TM lobby before ICANN, it is my view that ICANN has resembled a captured regulatory agency in its first ten years, and, as the tether to DoC is weakened, it is my fear, rightly or wrongly, that ICANN will devolve into a little more than a trade association for domain interests.
The negotiating team on behalf of TM interests (INTA and IPC) are very able and I think that to the extent that that TM interests can accomplish goals working within the ICANN process, this group will achieve the best possible result (within that limited context).
Having said that, I think there are two other courses of action that the TM world should explore, if it wants to actually change the status quo of brands within the domain name system. One is litigation (which discussion can be held another day depending on how badly the new gTLD process goes).
The more interesting (and difficult) approach is a lobbying and educational effort as to the role of new TLDs in creation of a safe space for e-Commerce. I have preached on this before and my view is:
Because of (legitimate) free speech and privacy concerns (and the exploitation thereof), DNS-wide acquisition and WHOIS standards will never be adequate from a consumer protection/brand protection point of view. Therefore it seems to me that there has to be a commercial ‘confort’ zone within the DNS that does have adequate standards – for example, standards as to how domains are distributed and to the identification and verification of the people who register the domains.
The ‘High Security Zone’ paper that ICANN commissioned is a useful starting point for this conversation. It says ‘this is one view of what a safe and secure TLD looks like.’ Frustratingly, ICANN, being ICANN, neuters the concept by saying in effect: ‘well, we won’t make HSZ concepts mandatory and we won’t give anyone an incentive to adopt this.’
I should mention that when I attended a meeting at the Seoul ICANN, and the question arose as to possibly making HSZ practices standard, one ICANN official said that it would harm ICANN’s initial contact with its ‘clients’ (Client was the word used to describe new gTLD applicants) if it imposed such costs of doing business on them.
That’s one ICANN official’s mindset, for what it’s worth.
So ICANN is not going to impose ‘commercial zoning’ on the entire DNS (nor should it) and won’t itself create a secure commercial zone within it, so I think that it’s up to the legitimate business community to create one (and urge that ICANN does as much as it can in assisting this). While this task is going to require the efforts and resources of much more than the brand protection commmunity, folks like the TM lobby can advance the effort greatly by thinking about the development of the structures of a working HSZ:
What are the elements of a HSZ? How do you get brand owners to do business in the HSZ, given their prior investment in non-HSZ TLDs? How do you get customers to patronize the HSZ sites? Hard questions, but a successful HSZ would make a significant dent in counterfeits, cybersquatting, phishing and spoofing. A worthwhile goal.
That’s what I want to work on.


ICANN Semi-Annual Registrar Contractual Complaince Report

From ICANN Semi-Annual registrar contractual compliance report: 4290 enforcement compliance and breached contract notices, ten registrars had their accreditation terminated, and eight were unable to renew their accreditation.
ICANN Contractual Compliance Report 24dec09 En


My Interview On CNN International re Domain Names

With the World Series a close second, my interview on CNN International regarding domain names was certainly the most compelling television last night.


New gTLDs Delayed, Perhaps to Fall 2010 (Dog Bites Man)

The ICANN Board passed a bunch of resolutions Friday morning in Seoul. Internalized domain names will be fast-tracked, new generic top level domains will be slow tracked. Applications for new gTLDs will only be accepted after (and depending upon) (1) more economic analysis as to whether new gTLDs are a good thing or not; (2) more analysis as to the cumulative effect of new IDNs and other implementations on the scalability of the DNS; (3) more consideration of trademark protection; and (4) the appointment of the evaluators of the gTLD application process. So expect a fourth version of the draft Applicant Guidebook. I’m predicting fall of 2010 now as the opening date for filing applications.


ICANN Contract Compliance Statistics

Source: ICANN contract compliance team (which enforces the accrediation contact between a registrar and ICANN):
For January to October 2009:
9 terminations of registrars
7 (contested) non-renewals of registrars
184 breach notices transmitted
4,290 enforcement actions
9,304 consumer complaints processed