ICANN and internet governance: who should control the internet?

The US currently has more influence than any other stakeholder over internet governance.

• 40% of the internet backbone is in or passes through America.
• Ten of the 13 root servers are owned or controlled by American organisations and the three not distributed by anycast are on US soil.
• ICANN is based in California and is subject to US law.
• The Affirmation of Commitments, one of ICANN’s principal governing documents, signed by both former ICANN CEO Rod Beckstrom in 2009 and the US Department of Commerce mandates that ICANN remains “a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community”.
• The IANA contract gives the US more control over root zone management than any other country. The contract was up for renewal in 2011, but only US-based organisations were permitted to apply.

Tensions between the US and the international community have escalated since whistleblower Edward Snowden exposed PRISM, the US surveillance programme. The recent revelations have provided a catalyst to some governments to accelerate ICANN’s break from what they regard as the US internet stranglehold. Even though ICANN’s independence and DNS management does not relate directly to the NSA and its mass surveillance practices, the US stands condemned.

Brazil is now the spearhead of a very public anti-NSA movement after it was revealed that President Dilma Rousseff’s email and telephone calls were tapped by the US agency. Brazil was also one of the nations that backed International telecommunications Union (ITU) oversight over internet governance at the World Conference on International Communications (WCIT), held in December 2012 in Dubai.

The result of these developments has been the Montevideo Statement on the Future of Internet Cooperation which was signed by internet leaders including representatives from ICANN, the IEGF, W3C, the Internet Society and the five regional internet address registries in Uruguay on 7 October 2013. At this event new models of internet governance were discussed. They will be raised again at the Brazil-ICANN Global Multistakeholder Meeting on the Future of Internet Governance, 23-24 April 2014, where the goal is to create a an “institutional framework for multistakeholder internet governance” and to “globalise current institutions”.

At the ICANN meeting in Argentina in November, ICANN CEO Fadi Chehadé faced some tough questions from all parts of the ICANN community. Why is ICANN prioritising governments above other parties in the multistakeholder model? Does ICANN want to move to Switzerland and become an International Treaty Organisation or part of the ITU? What is the problem that ICANN is trying to address because the Snowden revelations have nothing to do with ICANN? ICANN’s policy making body, the GNSO, criticised Chehadé for heavy handed, top-down decision making; ICANN Board member, Chris Disspain, countered and described Chehadé’s movements as an “effort to preserve the multistakeholder model” and mitigate against the risk of “the governance of the internet falling into governmental control”.

If you are interested in contributing to the discussion on the future of internet governance, or would like to stay updated on recent developments, you are invited to join the open mailing list: https://nro.net/mailman/listinfo/i-coordination. In addition, a comprehensive website on the topic will soon be released at this address:http://www.1net.org.

Valideus, Com Laude’s sister company, offers strategic new gTLD consulting and registry management services for applicants engaged in ICANN’s New gTLD Program. It is currently managing 5% of all new gTLD applications for clients from a diverse range of industry sectors, including global leaders in e-commerce, banking, consultancy, food, insurance, media, software and telecoms.

ICANN finally launches WHOIS website beta

We recently learned that this “new website, whois.icann.org, will be a centralised location for all WHOIS information, making it easier to learn about WHOIS, raise accuracy issues about WHOIS information and how to contribute to WHOIS policies”.
 
WHOIS – the database of registrant contact information – is a core part of ICANN’s mission. It was created in 1982 by the Internet Engineering Task Force (IETF) as a directory service for ARPANET users to locate the appropriate individuals to enable the resolution of any technical problems with the online network. ICANN adapted the IETF WHOIS in 1998 to fulfil the Department of Commerce’s requirement for a “searchable database”. Since then, it has evolved and is used for locating domain name registrants for aftermarket sales and law enforcement.
 
ICANN has the power to enforce the WHOIS protocol through the contractual relationships it has with registries and registrars, who are mandated to follow WHOIS protocols. In addition, registries and registrars are required to comply with ICANN’s Consensus Policies, which include a WHOIS Data Reminder Policy.
 
Despite these agreements, many WHOIS records contain inaccurate or invalid information, and some country-code TLD registries provide a confusing WHOIS, or no WHOIS at all.
 
This new online resource is a preliminary step towards improving WHOIS. Community members have been invited to view the beta WHOIS website and provide feedback. The second phase of the site is expected to go live in January 2014, when a search function will be added.

Com Laude Client Manager, Phillipa Dyball (formerly Phillipa Pook), advocated for a one-stop WHOIS shop back in 2011. It looks like she may now get her wish. Along with discussions on privacy and proxy service accreditation standards, this fresh look at WHOIS is long overdue but very welcome nonetheless.

Com Laude offers corporate domain name management and online trademark protection for corporations worldwide. In addition, Com Laude offers the advice brand owners need in order to formulate a sharp strategy with regard to domain name registration in all the new gTLDs at the second level.

And…we’re off! First new gTLD strings are delegated into the internet’s root zone

History has been made! On 23 October 2013, ICANN (the Internet Corporation for Assigned Names and Numbers) announced the first new gTLDs to be delegated into the internet’s “root zone”.

Akram Atallah, president of ICANN’s Generic Domains Division, proclaimed “It’s happening – the biggest change to the internet since its inception. In the weeks and months ahead, we will see new domain names coming online from all corners of the world, bringing people, communities and businesses together in ways we never imagined. It’s this type of innovation that will continue to drive our global society.”

This shakeup to the internet’s naming system is set to create opportunities to enhance competition and innovation on the web, through transforming how information is circulated, marketed and discovered online. VeriSign’s .com space is incredibly crowded, with many startups coining new words to name their company, just so they can acquire affordable .com real estate (e.g. Reddit, Spotify, Tumblr). These new gTLD extensions will transform the increasingly cramped domain name space, offering more variety and choice to all internet users.

The first delegated strings are:

You might notice that they are written in languages that do not use the Latin alphabet. That’s because ICANN decided to put Internationalised Domain Names (IDNs) first, to make the internet more global. Before today, aside from a few ccTLDs, IDNs could only be registered at the second level.

Now that the strings are online, it is up to the associated registries to sign up ICANN 2013-compliant registrars, coordinate PR and marketing efforts, publish their Sunrise Policy and issue their 30-day Sunrise Notice Period. In other words, this is a big milestone, but there is much work to be done before consumers start using domain names in these new pieces of internet real estate. That’s not likely to happen until the beginning of 2014.

How will ICANN handle 1,400 more new gTLDs coming online over the next few years? If reported alleged early violations are anything to go by, they will be completely overwhelmed.

How will trademark owners handle 1,400 new gTLDs coming online in the next few years? With trepidation and consternation. While they are given a chance to register their brands before infringers, it comes at a cost. Nevan Chellan, Com Laude’s Special Projects Manager for these trademark Sunrise periods, reports that “it’s still early days for brand awareness, but we are seeing an uptick in monitoring activity.”

How will the public react? Many have said that we don’t need these new gTLDs. We didn’t need our Kindle or camera phone a few years ago either. Now, they’re virtually irreplaceable.

Com Laude offers corporate domain name management and online trademark protection for corporations worldwide. In addition, Com Laude offers the advice brand owners need in order to formulate a sharp strategy with regard to domain name registration in all the new gTLDs at the second level.

Google signs its first Registry Agreement with ICANN

The time has come – another historic moment in the new gTLD program. Internet search giant, Google has signed its first Registry Agreement with ICANN for the new gTLD .みんな (“everyone” in Japanese). Google proposes that the TLD will adopt an open registration policy; therefore if a domain name under .みんな is available, anyone will be able to register it.

As yet, none of the executed new gTLD contracts have substantially changed from the approved base agreement, and with 44 Registry Agreements already signed (29 signed by Donuts, which is seven more than the same number of existing TLDs!), the first new gTLD Sunrise periods are likely to start later this year. We are therefore left wondering whether we will see the first registry go live before the next ICANN meeting in Buenos Aires; what an exciting prospect that would be!

Valideus, Com Laude’s sister company, offers strategic new gTLD consulting and registry management services for applicants engaged in ICANN’s New gTLD Program. It is currently managing 5% of all new gTLD applications for clients from a diverse range of industry sectors, including global leaders in e-commerce, banking, consultancy, food, insurance, media, software and telecoms.

20% of new gTLDs have UK roots

In this multi-national multi-lingual age of global communication across territorial boundaries, why do we still celebrate national success? Hard to say, but we found ourselves analysing the provenance of new gTLD applications last week. So how well did the UK perform?

Our not-very-scientific study indicates that of the total 1,930 new gTLD strings applied for, 394 (or 20.4%) were from organisations based in the UK. Of these, applications for 96 strings were from UK based organisations and 280 strings were supported by UK based organisations.

Although this figure of 20.4% includes the 18 applications made but withdrawn by UK based organisations, we think it is impressive that one fifth of the new gTLD registries have got at least one foot on this green and pleasant land. Credit must be given to Her Majesty’s Department for Culture Media and Sport, which strived to ensure that UK business was aware of the possible advantages to the digital economy that the new gTLD program could deliver. We’d like to name check Mark Carvell, the UK’s representative on ICANN’s Government Advisory Committee, who is particularly effective at championing British interests.

Valideus is managing 124 out of the 394 UK based new gTLD applications. First the applications were created and now the strategies for launch and day to day operation are being formulated. The process of identifying short and long term uses for a registry is Valideus' priority.


Valideus, Com Laude’s sister company, offers new gTLD consulting services for ICANN’s new gTLD process. It is currently managing 5% of all new gTLD applications for clients from a diverse range of industry sectors, including global leaders in e-commerce, banking, consultancy, food, insurance, media, software and telecoms.

Governments and the multi-stakeholder model of internet governance

The future of the multi-stakeholder model of internet governance, which ICANN advocates, is in the spotlight.

On the last day of ICANN’s Beijing meeting, 11 April 2013, the Government Advisory Committee (GAC) issued a Communiqué, which for IP owners was good and bad in equal measure. What was good was the idea of six safeguards to protect consumers from bad actor registry operators. What was bad was the idea that Governments should have a veto over which applied-for registries go live.

The GAC’s Communiqué recommended six safeguards to apply to all new gTLDs: WHOIS verification and checks, mitigating abuse activity, security checks, documentation, making and handling complaints, and consequences. A “non-exhaustive” list of applications, across 13 categories, containing at least 517 strings, was then identified to which these safeguards should apply. According to the GAC, these strings are likely to “invoke a level of implied trust from consumers” and “carry higher levels of risk associated with consumer harm”. Strings affected by GAC safeguard advice comprise those from categories including: children; environmental; health and fitness; financial; gambling; charity; education; intellectual property; professional services; corporate identifiers; generic geographic terms; inherently government functions; and strings susceptible to cyberbullying/harassment.

Reactions to the Communiqué, including those expressed formally through the public comment period, have been divided. While many members of the IP profession welcome the safeguards as a valid means of limiting abusive behaviours, there is discontent that they were developed behind closed doors, without stakeholder involvement, and late in the day.

Of much greater concern is that the GAC has recommended that 14 new gTLD applications, which coincide with geographical terms, should not proceed beyond Initial Evaluation. On 7 June 2013, the ICANN Board New gTLD Program Committee (NGPC) accepted this advice, which affects several new gTLD brand owner applications for registered trademarks such as .patagonia.

Is it right that the GAC, or individual governments within the GAC, can veto new gTLD applications that have met the published requirements in the community-agreed, new gTLD Applicant Guidebook, which was developed over five years? Are individual, national governments the best arbiters of morality and public order on the global internet? Should national or local political interests in an applied-for string that has a geographical association be permitted to trump legitimate global intellectual property rights? These are tough questions to answer with far reaching consequences for future application rounds. It is likely that this debate will continue long after the ICANN meeting in Durban, South Africa, 14-18 July. What is at stake is ICANN’s multi-stakeholder model of internet governance, which balances government, private sector, individual and civil society needs.

Valideus, Com Laude’s sister company, offers new gTLD consulting services for ICANN’s new gTLD process. It is currently managing 5% of all new gTLD applications for clients from a diverse range of industry sectors, including global leaders in e-commerce, banking, consultancy, food, insurance, media, software and telecoms.

The rising popularity of the .tk (Tokelau) ccTLD 

Reading CENTR’s excellent May report into domain name statistics, I see that the total number of registrations across all Top Level Domains now stands at just over 258 million; 56% are gTLDs such as .com and 44% are ccTLDs. The largest ccTLD operator is no longer Germany or China or even the UK, but the tiny island of Tokelau (.tk). As we all know, this is a territory of New Zealand in the South Pacific Ocean consisting of three atolls with a combined land area of 10 km².

With nearly 17 million domains, the popularity of .tk has been fuelled through a unique business model. Anyone can register a .tk domain for free, renewable at the end of the year. However the owner of all free .tk domains is the registry. If you want to own the domain, appear in the whois or register for a longer period than a year, you must pay. Pricing is from $6.95 per year with a minimum two year registration period; although domains containing one, two or three characters or those with branded, generic or common words are considered premium and are priced higher. As a result, one sixth of the Tokelau economy consists of income from .tk domain names.

There does not seem to be any significant threat to brand owners posed by .tk domains. The registry has adopted the UDRP and there have been under a dozen complaints in seven years. We have not yet seen any major brand owners running an important site under a .tk domain but that day might yet come.

It is a remarkable achievement for the tiny .tk territory to command such strong popularity that it ranks second only to gTLD .com in terms of the volumes of domains registered, standing head and shoulders above all other ccTLD registries. I await their entry into the world of internet governance with a smile.

Com Laude offers corporate domain name management and online trademark protection for corporations worldwide. In addition, Com Laude offers the advice brand owners need in order to formulate a sharp strategy with regard to domain name registration in all the new gTLDs at the second level.

First thoughts on the URS

The Uniform Rapid Suspension (URS) system was devised by the ICANN community, including trademark experts, registries and registrars, and those who favour free speech over rights protection, to offer brand owners a quick and inexpensive alternative to the well‑known UDRP for cases of clear-cut infringement in new gTLDs.

It is an out-of-court dispute resolution mechanism for trademark owners who believe that their rights are being infringed by a new gTLD domain name registration. With fees in the range of $300-$500, it is intended to be inexpensive in contrast to the UDRP, which ranges from $1300-$1500. The URS is targeted squarely at “slam-dunk” cases of trademark abuse and is faster and slightly less complex than the UDRP and other DRS models. The initial review by the DRS provider is designed to take two business days and the determination by a neutral panellist appointed by the DRS provider is expected to take less than a month.

ICANN has announced that it has appointed the National Arbitration Forum (NAF) and the Asian Domain Name Dispute Resolution Centre (ADNDRC) as the first URS providers. ICANN, not known for keeping assiduously to its timelines, has said that others will be announced in the next few weeks.

***UPDATE: The NAF has released its Forum’s URS Supplemental Rules to take effect 1 July 2013. Complaint fees will be USD$375 for cases involving up to 15 domain names, increasing in steps to USD$500 for cases involving over 100 domain names. For cases involving 16 or more domain names, respondents will be required to pay from USD$400 to USD$500 in response fees. Fees are however refundable to the prevailing party. The complete NAF fee schedule is set out at the end of this post.***

The remedy for a successful URS complaint is to “suspend” (i.e. render inactive) the domain and associated website until its expiration date. Unlike the UDRP, under the URS there is no transfer of the domain name registration to the trademark owner. However, a prevailing trademark owner can extend the suspension for one year through paying the registration fee. Otherwise, once the suspension ends, anyone can re-register the domain name. Also beware; there are several appeals options for losing registrants, or those who simply choose not to participate initially.

A redline version of the URS, and a set of filing Rules is published on ICANN’s new gTLD website: http://newgtlds.icann.org/en/applicants/urs.

We think the URS as it stands is a missed opportunity. We suggest that, with 10% more thought (and resolve to follow that through to execution) the URS would be 100% more effective. It would be much better if a winning complainant had the option for either a domain transfer or blacklist. We agree with WIPO that cases of registrant default should result in the immediate suspension of the domain. We do not like the fact that a losing registrant can seek a de novo review for up to a year. That is what the courts are for. ICANN has agreed to review the URS after the launch of the new gTLDs, and we hope they take this opportunity to fix the URS seriously.

Contact info@valideus.com or +44 (0) 20 7421 8299 for more information. 

Valideus, Com Laude’s sister company, offers new gTLD consulting services for ICANN’s new gTLD process. It is currently managing 5% of all new gTLD applications for clients from a diverse range of industry sectors, including global leaders in e-commerce, banking, consultancy, food, insurance, media, software and telecoms.

The Trademark Clearinghouse: how to use it effectively  

With ICANN’s Trademark Clearinghouse (Clearinghouse) receiving more attention now that it has officially launched and is accepting trademark data deposits, key Clearinghouse‑related information and strategy questions are highlighted below.

First things first, the Clearinghouse is not a Rights Protection Mechanism; it is a cost management system. It was designed to allow trademark owners to deposit their trademark information into one centrally managed database for a single fee. Historically, new registries (such as .info or .biz, or more recently .xxx) have individually charged rights owners to “validate” the same trademark registration data. Trademark owners told ICANN that this model would not scale to over a thousand new gTLDs, so ICANN created the Clearinghouse to streamline and centralise trademark data validations.

Trademarks submitted to and validated by the Clearinghouse can be used, subject to ICANN’s “proof of use” requirements, to participate in new gTLD Sunrises. There is an exclusive 30-day priority period for eligible trademark owners to obtain a domain name matching their trademark prior to general public availability. These Sunrise registration opportunities are largely used by trademark owners for defensive purposes (i.e. to pre-empt cybersquatters).

In addition to Sunrises, ICANN will require new gTLD registries to provide a Trademark Claims service. Claims are a 90-day period following Sunrise where trademark owners are notified via the Clearinghouse of any domain registrations in new gTLDs that match their marks (however, this notification occurs after the registration and does not block a potentially infringing registration from occurring in the first place).

Some considerations for your Trademark Clearinghouse strategy: 

• Which marks to submit: Review the unrestricted registries where you need protection. Do they have a nexus requirement; for example, if you want protection in the .paris and .berlin registries, do you have one mark covering both jurisdictions or will you need to submit two marks? Do your preferred marks carry up-to-date ownership details? Will there be issues around assignees? What proof of use will you supply (mandatory if you want to participate in a new gTLD Sunrise)?
• Timing: Deloitte, the validation provider, has said that it takes them 20 calendar days to process an application. ICANN requires new registries to give 30 days’ notice before they open. A ten-day margin is not much. The active life of your Clearinghouse submission will commence when the first registry goes live. As new gTLDs are launched on a rolling basis, you may not need to use the Clearinghouse until 18 months from now, or you may be interested in the very first batch of new gTLDs.
• Subscription options: How long do you wish to subscribe your mark to the Clearinghouse? Deloitte are offering one, three, and five year options. As every new registry should be open within two years, a one year subscription may be too short but three may be too long.
• Whether to use an agent: Whether you will liaise directly with the Clearinghouse or partner with an intermediary. If you go straight to the Clearinghouse yourself, you should be ready to pay Deloitte directly via credit card, and you can only pay for ten registrations at a time (apparently for security). If you wish to act as an agent, you must pre-pay a $15,000 deposit to the Clearinghouse. You will also be required to store and manage Signed Marked Data (SMD) files.
• Trademark Claims notices: Who in your organisation will receive these notices across the 90 days for which they last? How will you react if a registration is made by a third-party regardless of a Claims notice? Have you got a list of up to 50 abused “brand-plus” terms (such as “lego-toys”) that have been the subject of UDRP or Court Actions on which you can also receive claims notices? What happens if such terms are applied for in the .auto registry when your registrations are in Class 15 for Musical Instruments?
• Costs: Deloitte have developed a complex pricing structure. The official fees are $150 for a single mark for one year, $435 for three years, and $725 for five years. Renewal costs are the same as submission costs (which in our view is unjustifiably steep, as re-validation is not very arduous). Com Laude's fees start at £80, and they are pleased to offer volume discounts and preferential rates for existing clients.

Finally, remember that the Clearinghouse is a floor not a ceiling. Inclusion in the Clearinghouse does not necessarily mean that you will be able to participate in the first phase of every Sunrise. Some registries will, for example, be prioritising marks owned by local companies before anyone else.


Contact tmch@comlaude.com  or +44 (0)20 7421 8250 for more information. 

Com Laude offers corporate domain name management and online trademark protection for corporations worldwide. In addition, Com Laude offers the advice brand owners need in order to formulate a sharp strategy with regard to domain name registration in all the new gTLDs at the second level.

Domain name developments from Com Laude

Here is the spring edition of Com Laude's newsletter [PDF].

Topic's covered include: 

• New gTLDs: the road ahead
• ccTLD updates from Australia to the UK
• The URS and the Trademark Clearinghouse explained

Excerpts:

New gTLD overview

In April 2012, ICANN received 1930 applications for 1409 unique character strings, of which 116 were IDNs (in scripts other than ASCII such as Arabic or Cyrillic); 899 of these applications were for keywords (meaning descriptive terms) applied for by investors; 637 or 33% were for company or brand names; 255 or 13% were keywords applied for by brand owners (Walmart and Safeway both applied for.grocery); and 139 or 7% were for community or geographic terms (.lat; .paris).

Application for a 10 year licence to operate a gTLD registry, with a presumption of renewal, cost $185,000. Any incorporated organisation could apply for any string, except those which

appeared on ICANN’s list of reserved names and the ISO3166 A and B lists of country codes and protected geographic terms. There were no restrictions on industry leaders applying for

industry terms or investors seeking to run a registry targeted at a regulated sector. There was no public interest test. Each application (numbering in the region of 250 pages) is being evaluated on operational, financial and technical grounds and has to score 30 marks or more out of 41 to pass. Each applicant had to submit to background checks. A Letter of Credit to the value of three years of emergency registry operation was required as well as a contract with an Escrow Provider. Most applicants selected as their Registry Service Provider a proven

operator of gTLD or ccTLD systems. Where two or more applicants have applied for the same string, the mechanism of last resort if the applicants cannot find a solution amongst themselves is an ICANN sponsored winner-takes-all auction. The order in which applications are processed was decided by a Prioritisation Draw held in Los Angeles in December 2012:

IDN applications were batched first, then ASCII applications.

Trademark Clearinghouse update

On 26 March 2013, the Trademark Clearinghouse (TMCH) finally began accepting trademark data for validation. The TMCH is a platform for cost effective rights protection in the new gTLD space, which will allow trademark owners to deposit their mark information into one centrally managed database for one fee. 

Trademarks successfully submitted to the TMCH can be used, subject to proof of use requirements, to participate in all new gTLD Sunrises (a 30 day period when trademark owners can apply to a registry to obtain a domain name matching its trademark) and the Trademark Claims service (a 90 day period following Sunrise where trademark owners are notified via the TMCH of any domain registrations in new gTLDs that match their marks).

The technical system is still being developed and is targeted to roll out by 1 July 2013. ICANN also revealed that they have agreed on a one off charge of $5,000 per gTLD for registries to

connect to the TMCH. This is significantly less than the figures that were suggested originally (ranging from $10-15,000), and is partly due to an ICANN subsidy of $400,000 which they

will pay to the TMCH to offset some of the potential cost for the registries. It still nets Deloitte and IBM a cool $7.5m for a service that is incomplete and six months late.

In addition, a $0.30 fee will be charged to registries per domain registration during the Sunrise and Claims periods.


Contact info@comlaude.com or +44 (0)20 7421 8250 for more information. 

Com Laude offers corporate domain name management and online trademark protection for corporations worldwide. In addition, Com Laude offers the advice brand owners need in order to formulate a sharp strategy with regard to domain name registration in all the new gTLDs at the second level.