.pharmacy TLD faces action after losing complaint over Canadian drug peddler

ICANN has hit the .pharmacy gTLD registry with a breach notice after a complaint from a Canadian web site that was refused a .pharmacy domain.
The US National Association of Boards of Pharmacy failed to operate the TLD “in a transparent manner”, contrary to the Public Interest Commitments in its registry agreement, ICANN says.
It’s only the second time, to my knowledge, that a registry has been told it has broken its contract after losing a Public Interest Commitments Dispute Resolution Process decision.
NABP runs .pharmacy as a restricted TLD that can only be used by licensed pharmacies.
A year ago, a company called Canadawide Pharmacy Ltd, which currently uses a .org domain, applied for canadawidepharmacy.pharmacy but, last December, was rejected due to claims that it was “until recently” affiliated with unlicensed cross-border drug sellers.
The sale of medications into the US, where patients are gouged mercilessly by pharmaceuticals companies, from Canada, where common drugs are sold at a fraction of the price, is controversial, with NABP previously being accused of applying for .pharmacy for protectionist reasons.
(The price of generic Viagra on Canadawide’s web site goes as low as $2.15 per dose. In the US, you’re looking at about $66 per dose for the branded version, which doesn’t even include the price of dinner.)
Earlier this year, Canadawide filed a PICDRP, accusing .pharmacy of breaching its own contractual commitment to transparency.
And it won. The PICDRP standing panel ruled 3-0 this month (pdf) that NABP lacked transparency on three counts when it rejected Canadawide’s registration.
The registry failed to provide enough evidence linking Canadawide to unlicensed affiliates, the panel ruled. It also seemed to acknowledge that the alleged affiliates were historical.
As a result of the panel’s finding, ICANN has made a public breach notice that gives NABP until August 11 to:

Provide ICANN with corrective and preventative action(s), including implementation dates and milestones, to address the PIC Reporter’s complaint, the PIC Standing Panel’s findings and ensure that NABP will operate the TLD pharmacy in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies

None of this seems to suggest that Canadawide will definitely get its domain. If NABP has sufficient evidence to continue to deny the application, it looks like it could come into compliance by merely being transparent about this evidence.

Squabbling drug peddlers drag .pharmacy into brand bunfight

The .pharmacy new gTLD has been dragged into the ongoing trademark dispute between two pharmaceuticals giants called Merck.
Germany-based Merck KGaA has accused the .pharmacy registry of operating an unfair and “secretive” process to resolve competing sunrise period applications.
The domain merck.pharmacy was awarded to US rival Merck & Co, which was spun off from the German original a hundred years ago, after both Mercks applied for the domain during .pharmacy’s January-March 2015 sunrise.
Now Merck KGaA has become what I believe might be the first company to reveal an attempt to invoke ICANN’s Public Interest Commitments Dispute Resolution Procedure to get the decision reversed.
The National Association of Boards of Pharmacy, a US entity, operates .pharmacy as a tightly controlled gTLD with pre-registration credential validation.
When it launched for trademark owners in last year, it was vague about how contentions between owners of matching trademarks would be handled, according to Merck KGaA.
Merck KGaA claims that NABP awarded merck.pharmacy to Merck & Co and initially refused to disclose how it had arrived at its decision other than to say the German firm “met fewer criteria” than its rival.
After some back-and-forth between their lawyers, Merck KGaA was still not happy with NABP’s response to the dispute, so it decided to start filing compliance reports ICANN.
A year on, it tried to invoke the PICDRP.
Public Interest Commitments are addenda to ICANN Registry Agreements that bind the registries to certain behaviors, such as fighting malware and working with industry-specific regulatory bodies.
The PICDRP, heard by ICANN or an independent standing panel, is a way for third parties to challenge registries’ compliance with their contracts when they believe PICs have been violated.
No PICDRP disputes have actually made it before a panel to date, to my knowledge. Indeed, this is the first time I’ve heard of anyone even attempting to file one, though ICANN Compliance reports indicate about 20 were filed last year.
Merck KGaA claims that by not disclosing how it decided Merck & Co should win merck.pharmacy, NABP is in breach of the PIC that states:

Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.

It suspects that NABP was biased towards Merck & Co because the US firm is a $100,000+ contributor to its coffers.
NABP has denied any wrongdoing, saying it applied “objective criteria” to decide which Merck most deserved the name.
This June, over a year after the domain was awarded, Merck KGaA filed its PICDRP complaint with ICANN. Two weeks ago, ICANN responded saying the complaint had been rejected, saying:

The detailed review criteria used to resolve the contention for the registration of the domain name was part of an operational procedure that the registry operator applied to both applicants’ websites and was consistent with .pharmacy’s community restrictions in Specification 12 of the RA. As the internal operational procedure does not conflict with ICANN’s agreements and policies, it is deemed outside of ICANN’s scope of enforcement.

The decision seems to have been made by ICANN staff. No independent panel was appointed. The PICDRP grants ICANN “sole discretion” as to whether a panel is needed.
The only reason the dispute has come to light is that Merck KGaA has decided to challenge ICANN’s decision with a Request for Reconsideration. The RfR and 600-odd pages of exhibits are published here.
It’s the second concurrent RfR Merck has on the go with ICANN. The Mercks are also simultaneously fighting for the right to run .merck as a dot-brand gTLD.
Both applications for .merck went through the Community Priority Evaluation process, but both failed.
The next stage in resolving the contention said would have been an auction, but Merck KGaA has filed for Reconsideration on its CPE panel’s determination.

NABP discloses premium .pharmacy pricing

The National Association of Boards of Pharmacy has revealed its premium pricing structure for the new gTLD .pharmacy, in launch policy documents filed with ICANN.
The registry, which stood unopposed for .pharmacy, plans to have three standard tiers of pricing for its premiums — $750, $2,500 and $10,000. A fourth “Gold” tier will have prices set by the market, presumably via negotiation or auction.
Following the lead of many other new gTLD registries, the annual renewal fee will match the price paid for the initial registration.
The organization, which sets standards for pharmacies in the US, Canada and Australia, is planning no fewer than nine launch phases, running from today, when NABP members grab their names, to June 2 next year, when general availability starts.
The gTLD is to be restricted to pharmacies and related industries, so the Sunrise period will be restricted to trademarks listed in the Trademark Clearinghouse whose owners fit the criteria.
Users of the NABP’s various accreditation programs will get a crack at names following Sunrise. Then, dispensing pharmacies that are not accredited get a shot.
The gTLD was originally applied for partially defensively — to keep the string out of the hands of others — and the launch policies reflect that level of caution about making sure only organizations the NABP wants to get names get names.
Amusingly, the NABP has chosen a .net domain for its own official web site — dotpharmacy.net.