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WASINGTON INTERNET DAILY

Covering Legislative, Regulatory and Judicial News affecting Internet Business. From the Publisher's for Communications Daily

VOL. 14 NO. 135 dated Monday, July 15, 2013 Page 3 'No Surprise'

Applicant for .Internet Brands ICANN Denial Arbitrary; Others Say Decision was Correct
Efforts by India-based Nameshop to obtain new generic top-level domain .internet were squelched by ICANN arbitrariness and intransigence, Nameshop owner Sivasubramanian Muthusamy told us. He has pursued his case through ICANN's Board Governance Committee and ombudsman, both of which rejected his arguments in what he said are non-transparent decisions. Other ICANN community members, however, said his application never had a chance because he sought to change the gTLD string requested, something that's not allowed under new gTLD rules and that, if permitted, would create havoc with the system. Muthusamy, a member of the Internet Society India Chennai, originally applied for .idn, which he wanted to use as a bridge to enable internationalized domain name registrants to open their Web spaces for users outside their language communities, he said in his reconsideration request. When it became clear that the domain name would encounter problems because it's a countrycode domain for Indonesia, Muthusamy sought to change his application to .internet. ICANN Vice President-gTLD Operations Christine Willett rejected the request, saying it was carefully evaluated based on criteria set out in the applicant guidebook (http://xrl.us/bpfu82). Those criteria are whether: (1) A reasonable explanation of the change request has been provided. (2) There are indications to support an assertion that the change merely corrects an error. (3) The change would affect other third parties materially. (4) The change is similar to others already approved or could lead others to make similar requests. (5) Allowing the change would be construed as fair to the general community. (6) The requested change would affect the evaluation score or require evaluation of some or all of the applicants. (7) The timing interferes with the evaluation process in some way. Willett's letter doesn't go into any detail about which criteria Nameshop's name change request failed to meet. Muthusamy then asked the Board Governance Committee (BGC) to reconsider two issues. One was alleged inaction on ICANN's part in considering Nameshop's letter of appeal sent after its change request was denied, the panel said in its May 1 recommendation. The other issue was the decision of the support applicant review panel that Nameshop didn't meet the criteria to be eligible for financial assistance under ICANN's applicant support program. Muthusamy argued there was ambiguity in the applicant guidebook relating to the International Organization for Standardization (ISO) 3166-1 alpha-3 list of country names, and a complete lack of electronic safeguards within the system for refusing prohibited or reserved domain name strings during the process of applying for .idn.

The BGC said IDN is included on the alpha-3 list as a representation for Indonesia and that, before ICANN confirmed that geographic names evaluation criteria wouldn't be waived for an .idn gTLD, Nameshop submitted its change request seeking .internet. It also said Nameshop was one of three applicants for ICANN financial assistance, but ICANN staff has determined that the request failed to meet the public interest benefit, financial need and financial capabilities criteria in multiple ways. Ultimately, the BGC decided Nameshop failed to state proper grounds for reconsideration, and recommended the change request be denied without further consideration. The request challenges the substantive decisions taken within the New gTLD Program on a specific application and not the processes by which those decisions were taken, the BGC said. Reconsideration is not, and never has been, a tool for requestors to come to the Board to seek the reevaluation of staff decisions. Muthusamy next took his case to the ICANN ombudsman. In a May 9 report, Chris LaHatte said "it is immediately apparent that there has been a full consideration of the issues raised by Nameshop. The guidebook seemed very clear on the matter of why .idn was hopeless, he said. Nor was La-Hatte able to identify any evidence of discrimination or arbitrariness on ICANN's part, he said. His investigation clearly shows that there have been full explanations given, and while the complainant may not necessarily agree, it is not part of my role to act an as appellate body, but only to assess the fairness of the process. The complainant must realise that his first applied for name had no chance of success due to the clash with the Indonesian name, LaHatte wrote. The change to a completely different name did not help this case, he said. While Muthusamy may be passionate about the idea he has developed and disappointed that he can't obtain the string he wants, his application has been reviewed three times, first by ICANN, then in the context of the reconsideration committee and now by me. LaHatte's response almost amounts to a legal defense of ICANN's actions, Muthusamy said. If the ombudsman said ICANN laid out its reasoning very clearly, he said it in the style of an attorneys assertion of what sounds good on paper even if untrue, he said. The string change wasn't denied on the basis that string change requests are not allowed, he said. There was nothing in the change request guidelines that prohibited such requests, he said. And there were no other applicants for .internet, he said. Throughout the progress of the Nameshop application evaluation or the absence of it, there has been an intransigent refusal on ICANN's part to assign reasons for its decisions or explain its rationale, Muthusamy said. If this isn't a rare and isolated instance, the implication of unchallengeable arbitrary decisions will do enormous harms, well beyond the new gTLD evaluation process, to the governance of the domain name system and the Internet, he said. Muthusamy posted a chronology of events at http://nameshop.in. Several commenters, however, said Nameshop's position is untenable. The decisions came as no surprise, said Top Level Domain Holdings Chief Executive Officer Antony Van Couvering. ICANN allowed a few name changes where it was obviously just a typo, such as when a brand misspelled its own name, he told us. But the Internet body has never let anyone change to a different string completely, and when you look at the totality of the application (target market, expected number of registrations, etc.) it immediately becomes apparent that this

rule makes sense, he said. Google also had to throw three strings back because they matched ISO-3166 three-letter codes, Van Couvering said. One of your obligations as a applicant is to read the rules, which include the prohibitions, he said. It's unlikely there ever would be a provision allowing string changes, he said. .IDN was a no-go from the start under the applicant guidebook, said Michael Berkens, managing director of TLD consultancy Right of the Dot. Changing the string requests was not feasible because the idea was for applicants to apply in the blind, without knowing if others wanted the same TLD, he said. ICANN granted one name change request, allowing .dotafrica to correct a typo to become .africa, Berkens told us. Moreover, .internet would likely run into challenges from Verisign for being too close to .net, he said. There are probably many applicants who would like to change their applications now that they've seen others seeking the same strings, but that was never permitted, he said. At this point, applications for the same domain that are unsuccessful will either make a deal in which they receive money to withdraw their requests or take pieces of a particular gTLD, Berkens said. Those who withdraw will get a partial refund of applicant fees, he said. Eventually, multiple requests for the same gTLD will go through private or ICANN auctions, after which the losers will withdraw their applications, he said. At no point will they be able to switch to another name, he said. But with future gTLD rounds anticipated, those who lose out this time may be able to re-apply, he said. ICANN statistics as of July 11 show that 816 change requests have been submitted, of which 779 have been approved. It's not clear whether any of these were name change requests, outside of .africa. Asked whether Afilias, which was going to provide backend services to .idn, would have agreed to do so if it didn't believe there was merit in Nameshop's application, Corporate Communications Director Vance Hedderel said, ICANN emphasized the opening of the new gTLD program with such phrases as 'innovative marketing opportunity' and 'innovative business models.' Afilias is there to support the business idea of the applicant rather than to second-guess those ideas, he said. Innovation can be disruptive and unconventional. And it's up to the business idea owner working in conjunction with ICANN to make the decision as to whether an idea should be allowed to fly. Dugie Standeford
by permission of Warren Communications News, www.warren-news.com,1-202-872-9200.

Contact Information for Nameshop Nameshop http://nameshop.in 6.Internet@gmail.com