US Federal Court Enjoins ICANN From Delegating New gTLD dot AFRICA

UPDATE June 16, 2016: New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party.

UPDATE March 21, 2015 see on DomainMondo.com: New gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line?. Further updates following the April 4, 2016, hearing will be posted there.

A Federal Judge in Los Angeles has rained on Fadi's parade in Marrakech, Morroco:

The United States District Court, Central District of California, in the case of: DOTCONNECTAFRICA TRUST v. INTERNET CORP. FOR ASSIGNED NAMES
AND NUMBERS, Case No. CV 16-00862 RGK (JCx), has issued an Order enjoining ICANN from delegating the new gTLD .AFRICA:

"On March 2, 2016, DotConnectAfrica Trust (“Plaintiff”) filed this Ex Parte Application for TRO. By way of this application, Plaintiff seeks an order enjoining Internet Corporation for Assigned Names and Numbers (“Defendant” or “ICANN”) from issuing the .Africa gTLD until the Court decides Plaintiff’s Motion for Preliminary Injunction, scheduled for hearing on April 4, 2016.

"A district court may issue a TRO where the moving party demonstrates the need for immediate relief, and establishes that relief is warranted under one of the following circumstances. Under the traditional criteria, a plaintiff must demonstrate “(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009). Alternatively, “a court may grant the injunction if the plaintiff demonstrates “serious questions going to the merits” and a “balance of hardships that tip sharply toward” plaintiff, provided “plaintiff also show that there is a likelihood of irreparable injury and that the inunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, (632 F.3d 1127, 1131-1132 (9th Cir. 2011). 

"Upon review of the parties’ arguments, the Court finds serious questions going to the merits. Plaintiff has demonstrated that once the tGLD [gTLD] is issued, it will be unable to obtain those rights elsewhere. Moreover, the injury it will suffer cannot be compensated through monetary damages. In opposition, Defendant states in conclusory fashion only that the African governments and the ICANN community will suffer prejudice if the delegation of the gTLD is delayed.

"Based on the foregoing, the Court grants Plaintiff’s Ex Parte Application for TRO. Defendant is enjoined from issuing the .Africa tGLD until the Court decides Plaintiff’s Motion for Preliminary Injunction, scheduled for hearing on April 4, 2016." (emphasis added)

Also note ICANN's report of this today on its website: ICANN Temporarily Stopped from Delegating .AFRICA Pending Federal Court Hearing on 4 April 2016 and

ICANN Board Resolution March 3, 2016: "Resolved (2016.03.03.01), the Board authorizes the President and CEO, or his designee(s), to proceed with the delegation of .AFRICA to be operated by ZACR pursuant to the Registry Agreement that ZACR has entered with ICANN."

For more background on this:

• DCA Trust IRP Decision: ICANN Failed the Global Internet Community
• IRP Panel in DCA Trust Case Overrules ICANN Bylaws Provision
• ICANN dot AFRICA IRP: WHO Redacted WHAT In the Final Declaration?

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DISCLAIMER

Cybersecurity Firm IID Predicts New gTLD Websites Will 'Go Dark'

Cybersecurity firm IID says it "anticipates a spate of new gTLD failures, leading to demise of websites relying on them"--

"When the Internet Corporation for Assigned Names and Numbers (ICANN), which oversees the Domain Name System, began the process to issue hundreds of new gTLDs in 2013, the possibilities seemed limitless. Today, gTLDs run the gamut from “.apartments” to “.dentist” to “.porn” and so on. But looking ahead, many of these TLDs, as well as websites and other services that rely on them, could be short-lived because their adoption has been much smaller than anticipated.

"IID anticipates an unprecedented series of domain registry failures as a result of the lack of gTLD popularity by 2017 in the form of bankruptcies and abandonment. “Most new gTLDs have failed to take off and many have already been riddled with so many fraudulent and junk registrations that they are being blocked wholesale,” said IID President and CTO Rod Rasmussen. “This will eventually cause ripple effects on the entire domain registration ecosystem, including consolidation and mass consumer confusion as unprofitable TLDs are dropped by their sponsoring registries.”

"Should a gTLD go down, it would take any resident websites, email or other services with it, forcing their owners to scramble for new virtual real estate. There is a process in place to continue support of struggling registry operations until a larger registry or organization buys them in auction and rescues them. However, questions abound as to who would risk an investment in poorly performing TLDs, especially as they start to number in the hundreds. “That’s why eventually some are going to just plain go dark,” added Rasmussen." (source: IID; emphasis added)

IID is a cybersecurity company. Its flagship product, ActiveTrust, is one of the world’s largest commercial cyberthreat data exchanges. Domain name: internetidentity.com.

On Twitter: @iidactivetrust
Tweets by @iidactivetrust

See also on Domain Mondo: 

• Blocking New gTLDs, ICANN's 'Shadiest' Top-level Domains, Wholesale
• Security Firm [Blue Coat] Recommends Blocking ICANN's "Shadiest" New gTLDs

Caveat Emptor!

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DISCLAIMER

Vistaprint Loses New gTLD dot WEBS IRP, dot WEB SCO, ICANN Prevails

UPDATE July 28, 2016: Vistaprint ends up winning .WEBS because .WEBS was only in direct contention with Web.com's application for .WEB. Vistaprint prevailed at the "last resort auction" on July 27-28, 2016, because Web.com dropped out of the bidding for .WEB "causing the Application of Vistaprint Limited (for .WEBS) to be deemed a Winning Application" said ICANN. See: New gTLD dot WEB 'Last Resort' ICANN Auction: and the Winner Is? | DomainMondo.com.

UPDATE: ICANN Board Resolution 03 Mar 2016: "Resolved (2016.03.03.02), the Board concludes that the Vistaprint SCO Expert Determination is not sufficiently "inconsistent" or "unreasonable" such that the underlying objection proceedings resulting in the Expert Determination warrants re-evaluation."

UPDATE 2 December 2015: ICANN: "Resolved (2015.12.02.05), the Board defers to a subsequent meeting its consideration of the Panel recommendation in the Final Declaration that the Board exercise its judgment on the question of whether an additional review is appropriate to re-evaluate the Expert Determination. All members of the Board present voted in favor of Resolution 2015.12.02.05. One member of the Board abstained. Three members of the Board were unavailable to vote on the Resolution. The Resolution carried."

UPDATE: October 22, 2015 - at the ICANN 54 public ICANN Board Meeting, the Board accepted the IRP declaration and:

Resolved, the board accepts the panel's recommendation that ICANN's board exercise its judgment on the question of whether an additional review mechanism is appropriate to re-evaluate the third expert's determination in the Vistaprint SCO, in view of ICANN's bylaws concerning core values and non-discriminatory treatment, and based on the particular circumstances and developments noted in this declaration including, one, the Vistaprint sco determination involving Vistaprint's .webs applications; two, the board's and ngpc's resolutions on singular and plural gtlds; and, three, the board's decisions to delegate numerous other singular/plural versions of the same gtld strings. Final declaration, page 70. The board will consider this recommendation at its next scheduled meeting to the extent it is feasible. 

Resolved, the board directs the president and ceo or his designee or designees to ensure that the ongoing reviews of the new gtld program take into consideration the issues raised by the panel as it relates to SCOs. [String Confusion Objections]

-----end of update-----

Original post as corrected:

Contention Set Diagram for WEB / WEBS new gTLDs (source: icann.org)

Web.com, one of seven applicants (see diagram above) for the pending .WEB new gTLD (new generic top-level domain), filed a string confusion objection (SCO) to new gTLD ".WEBS" applied for solely by Vistaprint (NASDAQ: CMPR) (2 applications). The SCO filed by Web.com was ultimately upheld by ICANN and Vistaprint filed an IRP (Independent Review Process), which has now been decided in favor of ICANN:

".... FOR THE FOREGOING REASONS, the IRP Panel hereby:
(1) Declares that Vistaprint’s IRP Request is denied; 

(2) Designates ICANN as the prevailing party; 

(3) Recommends that ICANN’s Board exercise its judgment on the question of whether an additional review mechanism is appropriate to re-evaluate the Third Expert’s determination in the Vistaprint SCO, in view of ICANN’s Bylaws concerning core values and non-discriminatory treatment, and based on the particular circumstances and developments noted in this Declaration, including (i) the Vistaprint SCO determination involving Vistaprint’s .WEBS applications, (ii) the Board’s (and NGPC’s) resolutions on singular and plural gTLDs, and (iii) the Board’s decisions to delegate numerous other singular/plural versions of the same gTLD strings; 

(4) In view of the circumstances, Vistaprint shall bear 60% and ICANN shall bear 40% of the costs of the IRP Provider, including the fees and expenses of the IRP Panel members and the fees and expenses of the ICDR. The administrative fees and expenses of the ICDR, totaling US$4,600.00 as well as the compensation and expenses of the Panelists totaling US$229,167.70 are to be borne US$140,260.62 by Vistaprint Limited and US$93,507.08 by ICANN. Therefore, Vistaprint Limited shall pay to ICANN the amount of US$21,076.76 representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by ICANN upon demonstration that these incurred fees and costs have been paid; and 

(5) This Final Declaration may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute the Final Declaration of this IRP Panel." (emphasis added)

The recommendation in paragraph (3) of the Final Declaration is not binding on the ICANN Board, however it may merit consideration due to the lengthy record of this case and due to the "particular circumstances and developments noted in this Declaration."  The documented inconsistencies (pdf) in delegation of numerous other singular/plural versions of the same gTLD strings, are indicative of the many problems with ICANN's new gTLDs. Most people acknowledge that the ICANN new gTLDs policy, program, and implementation have been, in sum, a "fiasco"--even ICANN insiders who are honest admit this--see, e.g., on Domain Mondo: ICANN Insiders On New gTLDs: Mistakes, Fiascos, Horrible Implementation. Anybody want to talk about dot GAY (pdf)?  

The full Vistaprint IRP final declaration may be read here (pdf). More information: Vistaprint Limited v. ICANN (documents from the Independent Review Proceeding filed in accordance with Article IV, section 3 of the ICANN Bylaws).

Many observers (including Domain Mondo) think the .WEB new gTLD auction will likely bring the highest price among all new gTLDs--Google (Charleston Road Registry Inc.) is one of the 7 applicants for .WEB. If Google is serious about acquiring .WEB, expect to see an ICANN last resort auction, since Google would unlikely agree to a private auction which would only encourage other applicants to drive up the price* in order to "make Google pay the highest price" (in private auctions the "net proceeds" are split among the losing bidders unlike "ICANN last resort auctions" where ICANN receives the net proceeds [update] to be held in escrow for public beneficent purposes). 

*You can read about one unfortunate here: ICANN New gTLD Private Auctions, 2015 Patsy of the Year Nominees? 

Caveat Emptor!


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