Domain Name Wire

Domain Name Wire

  • Panel: .Kosher top level domain application is Kosher

    1. BY - Jan 20, 2014
    2. Policy & Law
    3. 1 Comment

    Application for .kosher top level domain name can proceed after surviving objection.

    KosherAn International Chamber of Commerce panelist has ruled that a community objection against .kosher has failed.

    The case was really an issue of competitive advantage, as the objector is in competition with the domain applicant in the business of certifying that products are kosher.

    The case was filed by Union of Orthodox Jewish Congregations of America, which describes itself as the “the oldest and largest kosher certification organization of the world.” Its objection was supported by many other kosher certification organizations (KCOs). It was filed against Kosher Marketing Assets LLC, which is really competing certification group OK Kosher.

    The objector argued that it represented the “community of KCOs.” There are over 1,000 KCOs worldwide, and just a dozen were direct supporters of the objection. The panelist did not reach a conclusion on whether this constituted substantial opposition, but determined that the case failed elsewhere.

    Essentially, the objector was upset that a rival would get control of .kosher, especially since the application suggested it would be a closed top level domain only for OK Kosher’s clients. This could give OK Kosher a competitive advantage.

    OK Kosher said it was its intention all along to allow other KCOs to offer the domains to their clients.

    The Response to the Supplemental Pleading contests the claim that consumers will rely exclusively on the “.kosher” string for kosher status, thereby incurring in confusion. It reiterates that the Applicant’s original intention was to sublicense domain names to certified second level registrants and to develop close affiliations with other KCOs and that it never intended exclusive control of the TLD. To alleviate any concern, the Applicant also declared its readiness to execute a public interest commitment at no cost, thereby further binding it in a manner enforceable by ICANN and third parties. Additionally, the Applicant offered the Objector an equal partnership in operating the TLD, subject to a sharing of costs. It notes that its RA is contractually binding, such that any unfairly exclusive operation by the Applicant would entail a breach thereof.

    The objector said the application’s merits for the community objection should be judged at time the application was submitted, not comments and commitments submitted later. But the panelist agreed that Public Interest Commitments, which were created by ICANN after the applications were submitted, should be taken into consideration. (That said, I can’t find an actual PIC submitted by the applicant. It seems that they offered to file one but the objectors didn’t accept.) He went a step further, arguing that assurances provided by the applicant in the objection process should also be taken into consideration.

    In the end, the panelist decided (pdf) that the application for .kosher would not cause a likelihood of material detriment to the other KCOs.

1 Comment
  • “To alleviate any concern, the Applicant also declared its readiness to execute a public interest commitment at no cost, thereby further binding it in a manner enforceable by ICANN and third parties. ”

    Another instance of material changes (PICs) submitted AFTER objected-to applicant had the chance to see all public applications and GAC Beijing Communique advice.

    “The panelist agreed that Public Interest Commitments, which were created by ICANN after the applications were submitted, should be taken into consideration”

    Under this token, many Community Applicants will be filing public “commitments” to “suit” the CPE panelist needs to “pass” CPE. This is acceptable and there are other examples where PICs have already settled contention sets (e.g Famous Four winning .CHARITY over Donuts).

    ICANN is opening a can of worms allowing this and not giving specific instructions to the ICC to tell panelists that such material changes (make no mistake PICs are material chages) that material affect a contention set is a violation of the AGB and “material changes” (http://newgtlds.icann.org/en/applicants/customer-service/change-requests).

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