Category Archives: Internet

IRT Final Report on Trademark Protection in new Top Level Domains – Part 1 – Uniform Rapid Suspension System

Posted by Patrick Vande Walle on 3 June 2009 None comments
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The ICANN IRT working group has published its final report, which I decided to analyze a bit further. I already made a few comments last month, both in the At-Large Advisory Council framework and on my own.   There are several issues raised by the recommendations of this report. The URS is one.

Reliance on e-mail

Among the issues is the fact that most of the URS process relies on e-mail for notifications to the registrant, to the registry operator, etc.  Let’s face it: e-mail has become unreliable for critical applications. With more than 90% of e-mail being catalogued as spam, identifying the one important e-mail that you are not expecting is like searching a needle in a haystack.  Some techniques like DKIM, S/MIME signing, etc might help getting through the spam filters, if only the latter are well-configured. Most users do not have fine-grained control on the configuration of their spam filter, and none at all on the one used by their ISP.

Where this matters is that “A Registrant has fourteen (14) calendar days from the date of the initial email notification to submit an Answer“.  If the e-mail was caught by your spam filter, or if you are on vacation, travelling or more simply not reading your e-mail on a regular basis, you are out of  luck. You might lose your domain name without you even noticing it before it is too late.

The language issue is also an important one. It may be that English is the lingua franca of the business community. However, it may not be a language understood by the domain name registrant and he may, in good faith,  discard the notification message. » Read more…

Belgian incumbent ISP not dominant operator says appeals court

Posted by Patrick Vande Walle on 15 May 2009 None comments
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Picture this: the still state-owned (51% of shares) Belgian incumbent telecom and Internet operator, Belgacom, is not a dominant player on the ISP market, according to the Brussels appeals court (see also here).

It is obvious to every inhabitant of Belgium that the incumbent is everywhere. It owns all the copper pairs to homes and  a good deal of the fibre. No single Internet or telephony operator can get into the business without transiting through the Belgacom network at some stage. As expected, the infrastructure owner is not keen to open up its infrastructure to competitors and has used every trick in the book to slow down competition. As a result, alternative operators, be it in telephony or Internet access,  have a ridiculous market share. Belgacom has a more than 70% share of the residential Internet access market.  Belgium has one of the most expensive Internet access offer in Europe, nearly twice the price of France, for example.

The telecoms regulator, IBPT,    is often depicted as a weak one and often accused of favouring Belgacom.  It came with some surprise a few months back that the regulator ruled that Belgacom had to open up its ADSL and VDSL infrastructure to the competition. Under the EU competition rules, it is foreseen that the infrastructure owner and dominant operator has to open its infrastructure to allow competitors to offer their services, too.

Belgacom wishes to diversify its income sources and launched an ambitious project to deliver triple play services. This includes high definition and pay TV.  For this to happen they needed to upgrade their DSL network. They embarked in an infrastructure project to lay  fibre optic cabling up to street cabinets (FTTC) and deliver VDSL2 connectivity from there to the customers premises.   This has actually proven very successful. Belgacom was greatly helped by the fact that the cable TV operator in the Southern part of Belgium, Voo, has an outdated and poor quality network.

It may be that IBPT  did not make a rigorous enough study of the marketplace. Still, I cannot understand judges refuse to see what is obvious to all. The net result is that Belgacom’s competitors will have even less opportunities to offer quality services and that the incumbent’s market share will grow even more. For customers, this will mean less choice and higher prices. This is sad news in a country where the unemployment rate have risen quite sharply due to the global economic downturn. It is nearly impossible these days to apply for a job if you do not have an Internet connection and e-mail address.  The most vulnerable part of the population will be the first victim.

Intellectual Property rights in new Top Level Domains: Implementation Recommendation Team draft report

Posted by Patrick Vande Walle on 27 April 2009 1 comments
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The IRT has released a draft report.  The composition of the  team is strongly biased towards North American intellectual property interests. Unfortunately, individuals were not represented.  Neither were potential new gTLD operators.  There was only one US-based registrar present and only one incumbent US-based registry.  In summary, this report is partial, both because it does not cover the whole picture and because it is strongly biased towards the interests of a specific group.

Quite confusingly, it was published on 24th April, with a 30 day comment period. However, one needs to comment before 6 May if it wants the IRT to consider the comments. Strange tactics.

As others have pointed out, the effective 7 day comment period over this draft report is way too short. It may be wise that the ICANN board does not consider this report before the community has had a real opportunity to comment.

I totally support Michele Neylon’s comments on the whois model  contemplated by this report. It would be in breach with many privacy regulations throughout the world. Further, if the ability to comply with the whois recommendations, as set forth in this report, would become one of the evaluation criteria for the new gTLD applications, this would favour registry operators located in countries with little or no privacy laws. This would put at a competitive disadvantage those businesses which need to comply with local laws. Questions to the IRT:

  • Did the IRT consider if their recommendations regarding the whois were actually compliant with relevant legislation throughout the world ?
  • Will the ability to comply with the whois recommendations, as set forth in this report, be a part of the evaluation process of new gTLD applications ?

Regarding the IP clearinghouse, it is stated that “The recommendation should not result in unnecessary or undue costs, either to trademark owners or to legitimate users and consumers”. Does this mean that the registry operators will have to bear all the increase of their operating costs for protecting third parties interests? The net effect of this is that operators will need to shift the increasing cost among all their customers, including those who have no IP rights to protect. This will mean raising the unit price of domain names for every customer, making the TLD less attractive and potentially be a cause of registry failure. In the case of community-based TLDs that focus on a limited market through a not-for-profit model, this may simply mean that the potential costs  and legal risks may be disporportionate for them to bear.

There is a major concern that different levels of protection for marks may put the registry operator in a position to have to arbitrate between second level domain name  applications and become legally involved in disputes between third parties. Unlike trade marks, which can be multiple according to industrial sectors and geography, domain names are by nature globally unique. As technical operators, registries should have no business in deciding who is the legitimate intellectual right owner.

If such IP clearinghouse system is put in place, it should, at a minimum:

  1. Be automated and implementable at a marginal cost by registries and registrars
  2. Exempt the registry operators from further legal consequences if it has demonstrated that it queried the database at registration time.

In addition to the above, I think it would be only fair that whatever policies are decided as a consequence of this process are also made mandatory for the existing gTLDs. The new entrants should not be the only ones having to bear the weight and costs of these policies.

Comments on the second draft of ICANN’s gTLD applicant’s guide

Posted by Patrick Vande Walle on 23 March 2009 None comments
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These are the comments I sent today to ICANN

Unfortunately, this second draft version of the applicant’s guide does not yet address major concerns in the process.

As stated in the previous comments round, it is fundamentally wrong to assume that all new gTLD applicants will use the .com model of mass market approach for domain names. Both the amount of the application fee and the yearly registry fee imply that the registry will need to sell as many domain names as possible, favouring numbers over quality. This is the wrong approach with regard to community-based TLDs.

The amount of the application fee should be reduced, as it may discriminate against less financially resourceful applicants, such as communities. While I understand ICANN may want to prevent frivolous applications with a high application fee, it nevertheless excludes from the process a lot of potential serious applications targeting a limited community.

It is unfair that only the applicants of the first round would have to cover the past costs of the new gTLD development program. On the other hand, it is difficult to guess how many applications will be submitted on each round. Because these costs have already been expended and that ICANN clearly states that whatever is recovered will be transferred to a reserve fund, it is therefore suggested to simply drop the $26,000 that represents the incidence of gTLD development program cost on each application.

Note that this request for a large up-front investment in the application process is orthogonal to the expectation of ICANN for the applicants to demonstrate the availability of continuation funding. Whatever capital will be invested in submitting the application will not be available in the future. Hence, ICANN’s financial expectations at the application stage may plant the seed of future registry failure.

Further, payment of the application fees in several installments should be offered to TLD applicants. For those applicants that need to submit a strong business plan to their investors, having a pay-as-you-go fee through the application process will make it easier to convince investors.

ICANN should also consider postponing for two or three years the collection of the annual registry fee, to allow new gTLD operators to start operating in a financially sound context, with no loans and other debts that may compromise the start-up of their activities. On the short and medium term, this help new registries to become more solid and will be beneficial for the the long term stability of the DNS space.

The fact that ICANN only allows for payments to be made in USD places a high risk on the business plans of those applicants that work in other currencies. As suggested elsewhere, ICANN should accept payments in other
currencies, at a rate fixed at the time the applicant’s guidebook is published.

There is still a fundamental contradiction in using an auction model as a last resort for community-based applications. By definition, community-based applications will target smaller communities and use a cost-recovery model, rather than a purely commercial one. For the winner of the auction, this will mean recovering its costs through increasing the gross price of registrations. As a consequence, the number of domain names sold may be reduced and the newly launched registry may not meet its business plan. Ultimately, auctions may also be a cause of registry failure.

.vla TLD: not so fast, says Flemish governement

Posted by Patrick Vande Walle on 20 March 2009 None comments
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As reported last July, there is a proposal from some Flemish politicians to create a .vla top level domain under the new gTLD process launched by ICANN. The proposal further elaborated that the Flemish government would have to cover the costs.

Not so fast, says the Flemish government. According to this press article, it wants to be sure the market is large enough to justify pouring all that money into the ICANN process.  They will hire a consultant to study the market and come up with a business case. Or not.

In this period of economic downturn, even wealthy communities like Flanders want to avoid expensive and risky investments.  ICANN does not yet understand the message that it has to adapt its RFP to the actual economic context.

Some possible ideas:

  • stop dreaming about recovering past expenses on the gTLD program;
  • fractioning the payment of the application fee in several installments, which would make it easier to negotiate with investors;
  • postpone for two or three years the collection of the annual registry fee, to allow new gTLD operators to start operating in a financially sound context, with no loans and other debts that may compromise their existence.

I am well aware the above-mentioned article is quite misinformed in that it mixes up registry operators with registrars. Still, the core element of the cost vs risk of the new gTLD process is symptomatic of the concerns I heard from  several wannabee registry operators.