Jothan Frakes speaking at the first NamesCon 
conference in Las Vegas in January 2014. Frakes co-founded the show with Richard Lau.

"Many Top Level Domains traded hands in 2016 (we will see more of this in coming times) and there were two very noteworthy events in 2016 - which were the announcement of registry back end provider projects.  One was the Nomulus project (a collaboration between Google and Donuts) for a registry platform, and the other was the qualification of the Canadian 'CIRA' (They run the .CA ccTLD and now .kiwi) Fury platform for new gTLDs.  The new TLDs that exist are always looking to optimize costs and have choice and competition. Back End Service providers that were not part of the 2012 TLD application round, but there was not a way prior to Fury being approved for a back-end provider to be vetted in a manner consistent with the panel reviews that had occurred for the new TLDs.  This precedent means that we will see registries seeking better costs or services, or even creating their own integrated registries for innovation.  Though this impacts the channel more than the end-user or registrant, it might hopefully play out as savings in registration fees - or stem the tide of wholesale fee increases per name in TLDs - where it becomes harder and 

harder for a registry to whine or justify 7-10% annual increases in the presence of cost competition reducing fees."

Bill Sweetman
President & Lead Ninja
NameNinja

"What struck me as notable about 2016 were the sheer volume of large domain portfolio transactions (GoDaddy scooping up several big ones for seven-figures) along with consolidation in the registrar and registry space (larger players swallowing smaller players). It's becoming harder and harder to keep track of which company is now owned by which larger organization, and which TLD is operated by which entity; someone should produce an infographic to map this messy spider web out!," Sweetman said.

"I imagine that 2017 is going to be a year of stark contrast. I expect we're going to see some exciting, innovative, and high-profile DotBrand launches along with, unfortunately but not surprisingly, some catastrophic failures by some of the smaller, independent new gTLD operators who are in over their heads."

"While the Chinese domain buying 'bubble' of Q4 2015 is now a distant memory, I don't think we should write China off as having the potential to make another huge impact on the domain industry. India, too. I, for one, will be watching the US startup and technology market carefully as it adjusts to the new government. If the 

venture capital money starts to dry up, I think that will have a dampening effect on some big-ticket domain sales."

Scott Reynolds
Vice President of B2B Services
Payoneer.com

"2016 has been an eventful year in the escrow payments space, particularly with the major announcement that Armor Payments was acquired by digital payments industry leader Payoneer. In one fell swoop, the escrow payments space has gone from a fairly sleepy industry served by relatively small players to one that is seeing significant growth and innovation," Reynolds said. "Now, buyers and sellers of domain names have a viable alternative to take advantage of licensed secure payment services, backed by a global, well established company with millions of users."

"As the world continues to flatten, we see more and more small and medium sized businesses look beyond their borders to find new customers and source from new suppliers.  The domain industry is no exception.  At Payoneer we expect cross-border commerce to continue to grow, particularly from the Asia Pacific region.  Buying and selling from individuals and businesses abroad is potentially risky and complex, and traditional players like banks are not geared up to address these SMB needs.  We expect further innovation from tech startups focused on streamlining the challenges of

transacting across borders – financing, logistics (when relevant), payments, compliance, etc."

"In terms of challenges, when industries gain traction, regulators aren’t far behind. While the additional regulation provides security to consumers and businesses, it adds a layer of operational complexity and increased cost for the payment providers. Payoneer has always invested a huge amount of resources in licenses around the world, and in addition to our escrow license, we will continue to ensure that we keep the highest regulatory standards, across all the regions we currently support."

Stevan Lieberman
Managing Attorney
Lieberman & Greenberg

"2016 has been an interesting year," Lieberman began. "Just a few of the significant events last year (some overall and some for our industry specifically) were:

1. Substantial greater acceptance of new Gtld’s by the general public
2. Fake news abounds
3. The Internet Assigned Numbers Authority transition - Consolidation of ICANN (naming) and IANA (numbering) into a single organization, which is now supranational. And is a not for profit, with one half billion cash in the bank and growing.
4. Verisign Contract extended to 2024
5. .Web extension sells for $135 million and law suits abound
6. Chinese domainers invest heavily
7. Chinese Gov mandates new rules for Registries
8. Massive investment in Block Chain technology (by Donuts and others)
9. Judicial redress Act signed – privacy laws extended between US and Europe
10. Ename goes public
11. Major companies (Microsoft and Google and others invest heavily in Augmented reality (Hololens & Magic Leap and AI)
12. Trump is elected president
13. WordPress buys .Blog
14. Large amount of consolidation within the industry (large companies buying smaller ones)"

Regarding 2017, Lieberman said, "I expect: A greater interest in privacy by the public which goes hand in hand with less trust of the government by the public.  The election of Trump shows this along with the dissatisfaction of much of the citizenry of the state of the union.  However I expect the government to increase its attempts to have greater and greater access to private company’s data of its users and to be able to filter the Internet for what it believes are bad actors to continue.  This will result in the stepping on citizens privacy rights to a much larger degree. Accordingly we will see large numbers of law suits in 2017 on these subjects."

"We also see a number of law suits against ICANN pertaining to how it controls new registries and expect further such law suits. Government control will also lead to terser control over the movement of money (we are already seeing this in the new identification, money laundering and know your client rules) which will lead to greater barriers to general transactions.  We however did not see much stopping industry roll up and expect even less control over such rollups becoming de-facto monopolies in 2017 (you know which companies have the majority control over the domain name industry)."

"All of this sounds pretty negative, but I also expect there to be a lot more money in the industry due to interest in the new TLDs, continued uptake in alternative ccTLDs (China and India), and the massive diversification of domainers into alternative monetization methods forced on them by the dying off of basic PPC (the silver lining)."

Zak Muscovitch
Principal, The Muscovitch Law Firm
DNAttorney.com

"The first trend that I have seen in 2016, is that Domain name investors have come under renewed attack by overreaching trademark," Muscovitch said. "I have noticed an increase in UDRP complainants arguing that they should be entitled to a domain name even though the domain name was registered by the registrant BEFORE the trademark was even adopted by the complainant. The reason for this appears to be that new companies are going after old domain names."

Until 2009, it was a nearly certain that the UDRP required both “bad faith registration and “bad faith use”, and that “bad faith registration” was of course impossible if the domain name owner registered a domain name before the brand was even a twinkle in the eye of the trademark owner. However in 2009, a handful of rogue UDRP panelists came up with a handful of decisions, starting with Octagen, that attempted to “re-write” the Policy, so that a domain name that was clearly registered in good faith, could be turned into a “registration in bad faith”. These misguided panelists took the position that if the domain name owner registered the domain name in good faith, but 

subsequently renewed the domain name in bad faith, i.e. by subsequently using the domain name in an infringing manner once a complainant’s trademark rights arose, that a domain name could be transferred."

"Fortunately, the consensus remained amongst most UDRP panelists, that this approach totally misinterpreted the Policy, and that a “renewal” does not amount to a new registration. Very recently, one excellent panelist, Mr. Adam Taylor, in TOBAM v. M. Thestrup / Best Identit, hopefully put one of the final nails in this misinterpretation of the Policy, when he concluded that “the Respondent could not have set out to target the then non-existent rights of the Complainant”, and that was fatal to the UDRP Complaint."

"Nevertheless, I have seen that a lot of high value domain names that have been owned by domain name investors for well over 10 years come under attack by companies that only started in business a few years ago. These new companies obviously want the .com that corresponds to their company name or brand, but the domain name was already taken. Instead of adopting a name where the .com is available or negotiating the purchase of the domain name from the registrant, these new companies are trying to get the domain name for free by reviving the misguided and outlying approach. Over the years, most previous UDRP cases involved domain names that came after the trademark, but nowadays, those may have mainly worked their way through the system already, and it may be that we are seeing a “new kind” of UDRP case where the trademark comes after the domain name," Muscovitch noted.

"Accordingly, until this errant approach is finally put to rest, domain name owners – even ones who have owned their domain names for 20 years – must be ever vigilant as to how they are using their domain name. Using an old domain name for PPC could easily turn into a UDRP for the unwary domain name investor, as in the intervening 20 years, a trademark could have arisen, and the trademark owner my take a wild and expensive shot at the domain name using the “retroactive bad faith” approach."

Zak Muscovitch speaking at the 2015 DomainX Conference in Bangalore, India.

"The second trend for 2016 that I see, relates to domain name transactions rather than domain name disputes. This past year, I have noted an increase in high value domain name lease or “financed” purchase transactions. Values for high quality generic and brand-able domain names have clearly reached a point where a start-up or existing company who wants to adopt a new brand, in many cases realizes that they cannot afford to purchase the domain name outright, so they therefore pursue alternative acquisition models. For example, I have seen more than the usual number of six-figure domain name “lease to own, “options to purchase”, and “financed purchases” transactions for decent generics and brand-able domain names. This is a marked difference from the past, where such transactions were less common and outright sales were the norm. As the value of domain names continues to increase, we can expect to see more and more of such transactions which enable a purchaser to start using a valuable domain name right away, but pay for it over time."

"In 2017, UDRP reform will be a major challenge for the domain name investment community, and the Internet Commerce Association will be able to meet that challenge with its increased capacity. ICANN established a Working Group that will be dealing with UDRP reform in 2017, and this Working Group is mandated to review the UDRP which has not undergone any changes to the Policy since it was first established in 1999. Accordingly this is a major development that could lead to profound changes for how the valuable property owned by domain investors is treated. The trademark lobby may attempt to use this Working Group to push through radical changes that may fundamentally decrease the fairness of the UDRP procedure. Fortunately, the ICA has never been better positioned to address such challenges. The ICA has now increased its Board members to five from three, adding in myself and Jay Chapman from Digimedia. Nat Cohen continues to serve on the Board, and Ryan Pierce of Rook Media has also recently been appointed, having replaced Daniel Law who has taken on the position of Executive Director. In addition, Phil Corwin continues to lead through his role as General Counsel to the ICA, and Kamila Sekiewicz continues in an expanded role as Operations Manager. Jeremiah Johnston, who has been with ICA from the beginning, continues his incredibly valuable leadership role as President of the organization."

Phil Corwin
Legal Counsel
Internet Commerce Association

"From a public policy perspective, the most significant event of 2016 was the completion of the IANA Transition on October 1st and the ending of a unique US government relationship with ICANN," Corwin said. "It remains to be seen whether the GAC will remain content to have a merely advisory role in the newly emancipated ICANN, as early signs are that it may be flexing its muscles and seeking at least a coequal role with the community-based GNSO Council in setting ICANN policy going forward. There are also rumors that the Trump Administration may try to “claw back” the IANA contract or, in the alternative, try to assert some unique continuing US powers over ICANN; if that occurs, it may invite a variety of destabilizing responses from ICANN constituencies and the GAC."

"Another major event was the departure of Fadi Chehade as ICANN  CEO and his replacement by Goran Marby. So far Marby has assumed a much lower profile than Chehade. He is getting generally good management  marks so far, but as of now it is difficult to identify any unique stamp he is putting on the organization."

"With respect to 2017, the ICANN working group (WG) reviewing all Rights Protection Mechanisms (RPMs) in all gTLDs, which I co-chair, will be

moving into the heart of its work of evaluating and perhaps revising the new gTLD program RPMs this year, prior to launching its phase 2 UDRP review. So far the WG is working in  fairly collegial manner, but that may be tested as we get into the trademark clearinghouse and related RPMs, and then especially as we reach the URS. Some trademark interests have indicated the desire to add a domain transfer option to the URS, but many in the domain investment community fear that would be too much of a domain hijacking risk in the context of a rapid, limited inquiry, $500 filing fee procedure," Corwin said.

"This month another working group that I also chair, on curative rights processes (UDRP and URS) for international intergovernmental organizations, will be releasing its draft report for public comments. IGOs and the GAC had asked for the creation of a totally separate process that would deny domain registrants the right of appeal to a court of mutual jurisdiction, to be replaced by another arbitration process. But the WG, at the end of two years of work, determined that there was no sound legal or policy basis for such action. The GAC may try to use the ultimate disposition of our recommendations as a test of their role in post-transition ICANN."

Phil Corwin speaking at the 2016 NamesCon conference in Las Vegas.

"Another major event this year will be the negotiations and outcome regarding renewal of Verisign’s contract to operate the .Net registry. ICA has called on ICANN’s Board to impose a moratorium on staff imposition of the URS on legacy gTLDs by contract (as is pending for .XXX and .Mobi) as the ongoing RPM review WG is charged with recommending whether the new gTLD RPMs should become mandatory Consensus Policy for legacy gTLDs. The stakes are big, given that current .net registrations exceed 15 million. Other issues may arise once the proposed registry agreement is released for public comment."

"Events may well arise that test whether ICANN’s new accountability measures work in practice, not just theory. The output of the work stream 2 accountability subgroups also remains to be seen on additional measures that, while deemed important, were not necessary preconditions of the IANA transition. The results may be a mixed bag; for example, the transparency subgroup is making good progress to recommending far greater public access to internal ICANN documents, but the jurisdiction subgroup threatens to become bogged down in a divisive debate on maintaining ICANN’s corporate jurisdiction in the U.S., notwithstanding ICANN pledges to the Congress and NTIA that this was a binding commitment."

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