After badgering ICANN for a few weeks, I’ve finally got a firm “no comment” on the question of how new gTLD applicant Demand Media managed to pass its background checks.
The question of whether it’s possible for serial cybersquatters to bypass ICANN screening and be awarded new gTLDs just by setting up shell companies is still open, it seems.
As DI and other blogs have been reporting for the past few years, there was a question mark over Demand Media’s eligibility for the new gTLD program due to its history of cybersquatting.
Under ICANN rules, any company that lost three or more UDRP decisions with at least one loss in the last three years would not pass its background screening. The Applicant Guidebook states:
In the absence of exceptional circumstances, applications from any entity with or including any individual with convictions or decisions of the types listed in (a) – (m) below will be automatically disqualified from the program.
m. has been involved in a pattern of adverse, final decisions indicating that the applicant or individual named in the application was engaged in cybersquatting as defined in the Uniform Domain Name Dispute Resolution Policy (UDRP), the Anti-Cybersquatting Consumer Protection Act (ACPA), or other equivalent legislation, or was engaged in reverse domain name hijacking under the UDRP or bad faith or reckless disregard under the ACPA or other equivalent legislation. Three or more such decisions with one occurring in the last four years will generally be considered to constitute a pattern.
Demand Media subsidiary Demand Domains has lost over 30 UDRP cases, most recently in 2011, but its United TLD Holdco subsidiary has sailed through its Initial Evaluations.
Technically, shouldn’t it have failed screening and therefore IE?
Domain Name Wire speculated in November 2010 that ICANN had deliberately introduced loopholes in order to let Demand — and, at the time, Go Daddy — into the new gTLD program.
At that time, ICANN had just removed references to “any person or entity owning (or beneficially owning) fifteen percent or more of the applicant” in the background screening section of the Guidebook.
That might have introduced a loophole allowing subsidiaries of cybersquatters to apply.
But Demand Media seemed to think it was still at risk, asking ICANN in December 2010 to change the background check rules.
ICANN did. In the next version of the Guidebook, published in April 2011, it added the “In the absence of exceptional circumstances” qualifying language.
It’s also possible that this was the loophole that allowed Demand to pass screening.
Judging by the UDRP complaints it was involved in in the past, the company usually argued against the “bad faith” element of the policy. It often said it didn’t know about the complainant’s trademark and/or said it had offered to transfer the domain at no charge.
But more than 30 UDRP panelists didn’t buy that argument and still found against Demand. The company lost far more complaints than it won.
The fact that the company apparently managed to clean its act up a few years ago — not being hit with any complaints since 2011 — suggests that its act wasn’t all that clean to begin with.
Either way, neither ICANN nor Demand wants to talk about how the company passed screening, so I guess we’re still left wondering whether this section of the Guidebook is worth the PDF it’s written on.