October 17, 2018

OK-Kosher wins right to “dot-kosher” domain over competitors’ objection

Last week, the world got one step closer to the day when web sites can end not just with .com, .net, or .org — but with the suffix “.kosher” as well.

After a fierce and expensive dispute that pitted one major kosher certification company against five of its biggest rivals, the Internet Corporation for Assigned Names and Numbers, or ICANN, delegated control over “.kosher,” to OK Kosher Certification, a Brooklyn-based kosher certification agency.

ICANN began accepting applications for new “generic top level domain names” (gTLD) like .kosher in 2012; as of Jan. 21, 2014, the independent international organization had given the go-ahead to 100 such strings of letters, including “.healthy,” “.luxury” and even “.xyz.”

But none of those drew the kind of objection that was raised after OK-Kosher applied in November 2012 to manage the .kosher gTLD. Its five biggest competitors – the Union of Orthodox Jewish Congregations of America (OU Kosher), STAR-K Kosher Certification, Inc. (STAR-K), Chicago Rabbinical Council (cRc), Kosher Supervision Service, Inc. (Kof-K), and The Kashruth Council of Canada (COR) – together filed a formal complaint with ICANN in March 2013, expressing concern that OK-Kosher might use its control over the .kosher string to attain an unfair competitive advantage in the market for kosher certification services.

On Jan. 14, 2014, an expert working for the International Chamber of Commerce rebuffed their objection, and awarded the right to manage “.kosher” to a subsidiary of OK-Kosher called Kosher Marketing Assets, LLC.

In a 22-page opinion, Luca G. Radicati di Brozolo, a law professor at the Catholic University of Milan, concluded that the OU, which was the named objector, “has not convincingly proven its claim that the Application will impact negatively on itself, the community of [kosher certification organizations] or the broader community of persons or entities with a stake in kosher.”

The OK’s head of public relations, Rabbi Chaim Fogelman, said he was satisfied with the decision, even if he couldn’t or wouldn't say exactly what the OK planned to do with the new gTLD.

“It’s a little bit too early for us to know that yet,” Fogelman said. “We do know that we want to keep it in line with the OK’s mission, kosher without compromise. We want to have it in the spirit of inclusivity and have it open to other people who adhere to the Torah standards of kosher.”

The five competing kosher certifiers fought to stop OK-Kosher from gaining control over .kosher specifically because they were unconvinced that the OK-Kosher would run the gTLD in an open manner. In an interview with the Journal on Jan. 23, Rabbi Moshe Elefant, Chief Operating Officer of OU Kosher made clear that he still had doubts about how OK-Kosher would use the newly delegated gTLD.

“We don’t believe that any one group should have control over the word “kosher,” Elefant said. If one kosher certifying agency has control over which businesses could obtain web addresses ending in .kosher, Elefant said, any business that wanted to have such a presence on the web would be forced to sign up with OK-Kosher.

“I’m not saying that this is what they’re going to do,” Elefant added, “but once they own it, they have a lot of abilities.”

To illustrate just how high each side believed the stakes were in this fight, one need only look at the sums spent. The typical application fee for a single gTLD is $185,000, not including legal fees involved in preparing the application; every year, the manager of a gTLD must also pay a $25,000 renewal fee to ICANN maintain control.

The five competing agencies that joined in objecting to the OK-Kosher’s application, meanwhile, collectively spent around $100,000 on fees to ICANN and their lawyers, according to Elefant. The group could spend more money still, if they choose to appeal the decision. Elefant said on Jan. 23 that he believes they have 14 days to file an appeal, but said the five agencies hadn’t yet agreed about whether or not to do so.

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In late 2012, when news of the OK’s application to take control of .kosher reached Elefant at the OU, it was a surprise.

“We were never informed by the OK of their application,” Elefant said. “We happened to find out – and religious Jews don’t like to use this word – coincidentally.”

Before they took their objection to ICANN, though, the OU, together with the four other competing agencies, approached OK-Kosher. A meeting was held in January 2013 in OK-Kosher’s offices in Crown Heights, to see if some kind of mutually acceptable agreement could be reached.

But if the OU’s preference was for no agency own the gTLD .kosher, OK-Kosher took a markedly different attitude. Fogelman, who serves as editor of OK-Kosher’s in-house magazine Kosher Spirit, said that the .kosher gTLD had “enormous potential to spread kosher and educate about kosher.” Furthermore, Fogelman emphasized that there was a danger to leaving the .kosher gTLD on the table.

“Allowing it to be directed by people who are either not qualified or have ulterior motives for managing .kosher has the potential for great disaster,” Fogelman said.

The meetings between the agencies one year ago failed to result in an agreement.  Fogelman said it was because OK-Kosher’s rival agencies refused to share in the cost of ownership of .kosher; the OU’s Elefant had a different explanation, saying that OK-Kosher had stipulated additional conditions to the agreement, including certain domain names over which OK-Kosher wished to retain control.

“A partnership is a full-fledged partnership,” Elefant said. “Anything less than that is not a partnership.”

There’s a long history of intense rivalry between kosher certifiers in the United States; even so, agencies have always simultaneously competed and cooperated with one another. Today, with food being produced through industrialized processes, a consumer food product may have only one kosher symbol on its package, but it’s likely that the ingredients of which it is made are certified by different agencies. As a matter of course, therefore, these agencies rely on one another’s supervision, even as they compete with one another for client business.

That balance, between competition and cooperation, according to to Timothy Lytton, a professor at Albany Law School, is a delicate one, and this dispute could push that system in one way or another. Lytton, whose book Kosher: Private Regulation in the Age of Industrialized Food was published in 2013, said that awarding control over .kosher to OK-Kosher could bring to the certification agency a difficult-to-quantify ancillary benefit, namely, increased internet traffic.

“If that could be translated into greater market control or greater control over public understanding of kosher standards,” Lytton said, “that might push [the American system of kosher certification] in the direction of centralized control.

“On the other hand,” Lytton continued, “it might turn out that this is just another small marketing advantage that one agency has over another, and it really is just part and parcel of the competition between agencies.”

From a purely business standpoint, it’s unclear if any of the gTLDs will turn out to be good investments. One applicant told Quartz recently that taking into account “the cost of lawyers, research, traveling to ICANN conferences, and other administrative expenses,” it cost nearly $1 million the cost to apply for a gTLD.

Andrew Alleman, editor of the web-based trade publication Domain Name Wire, estimated it could take five years to find out whether the investments made in gTLDs were worthwhile.

“We won’t know in a year; it’s a long-run kind of investment,” Alleman said. “We’ll know when some of them fail.”

Assuming that OK-Kosher does retain control over .kosher, it’s an open question of how they’ll ultimately decide to use it. In his decision, the expert adjudicator appeared to rely on assertions made by OK-Kosher that the gTLD will be used in ways that will benefit all kosher certification agencies, “including the OU.”

Speaking to the Journal on Jan. 23, Fogelman suggested that even if OK-Kosher never turned a profit through .kosher, laying claim to the gTLD was the right thing to do.

“This is what we’re here for. We’re in the kosher business and not in the business of kosher – kosher comes first,” Fogelman said. “From a business perspective, it might not be great to have a $25,000 bill from ICANN for something that doesn’t turn out to be a moneymaker.”

“On the other hand,” he said, “this is something that has to be managed responsibly. It is something we have to protect.”