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World of Warcraft player ganks UDRP complainant

Kevin Murphy, August 17, 2010, Domain Policy

An aviation safety consulting firm has lost its UDRP case against a gamer who used its company name for his World of Warcraft guild.

Wyvern Consulting went after wyvern.com, which was registered by its current owner back in 2005.

The registrant said he’d originally registered the name for a possible business venture, which fell through, and then decided to use it for his WoW guild instead.

The National Arbitration Forum panelist found that while Wyvern proved the name was confusingly similar to its common law trademark, and that the registrant lacked legitimate interests in the domain, it had failed to prove bad faith.

Complainant does not have a registered trademark, and offers no proof of consumer confusion or loss of business. Respondent’s proof of its current use is minimal, but the burden is upon Complainant on this issue. Respondent’s use of the disputed domain name as a forum and e-mail service for its World of Warcraft guild does not establish that Respondent registered and used the disputed domain name in bad faith

The domain in question currently appears to be unused, although archive.org shows a WoW guild page back in 2008.

New TLD ownership rules punted to ICANN board

Kevin Murphy, August 16, 2010, Domain Policy

The ICANN board will be asked to untangle the policy mess that currently bans domain name registrars from applying for new top-level domains, after a GNSO working group failed to reach consensus.

The Vertical Integration WG was tasked with figuring out whether registrars should be allowed to own new TLD registries and vice versa, but only managed to reach deadlock.

The GNSO Council is now likely to punt the issue to the ICANN’s September 24-25 retreat, asking the board to consider the issues raised by the WG’s non-committal interim report.

It’s a dismaying case of pass-the-parcel that highlights both the trickiness of the VI problem and the limits of ICANN’s bottom-up policy-making process.

ICANN’s Draft Applicant Guidebook currently says that cross ownership between registrars and new TLD registries should be limited to 2% and that all new TLDs need to be offered to all accredited registrars.

This was in response to fears from some quarters that if a registrar also owned a new TLD registry, it would have an unfair advantage over other registrars, ultimately harming registrants.

The DAGv4 text was an overt, deliberately Draconian placeholder – it would ban all registrars and some registries, as well as making “.brand” TLDs unworkable – designed to force the GNSO find a better solution to the perceived problem.

The WG, which is ongoing, has so far failed to do so, and now seems set to pass the hot potato back from whence it came.

What all this means is that the ICANN board (and, let’s face it, staff) will be forced to assemble a workable VI policy for the first round of new TLD applications from the piecemeal suggestions of the WG; to do over two days or less what the WG failed to do over six months.

What the board will decide remains to be seen, but it could wind up governing the first round of new TLD applications, potentially making it a considerably smaller round.

Some Skype domain names still owned by ex-employees

Kevin Murphy, August 10, 2010, Domain Policy

Oops! A number of Skype’s domain names are still registered in the names of people who no longer work for the company.

The embarrassing oversight was revealed in the company’s S-1 registration statement (huge HTML file), filed yesterday as the company prepares to launch its IPO.

Here’s the relevant section, with my emphasis.

Third parties have registered domain names that contain the Skype trademark without our consent, and a small proportion of the Skype domain names are registered in the names of our former employees rather than in our name. While we are seeking to have these domain names transferred to us, we may not be successful and to the extent that Skype domain names are not under our control in certain countries, it could hinder our marketing efforts, cause confusion to our users and may harm our reputation in those countries if those domain names are used in ways unrelated to our business or in ways with which we would not agree.

The company appears to be having a hard time protecting its brand in the offline world, too.

According to the S-1, News Corp arm BskyB, which runs Sky TV in the UK, has been objecting to Skype’s trademark applications, and it recently manage to block one such application in the EU.

It’s also having problems getting trademark protection in Asia, where others have registered very similar marks.

Cash-for-gold firm aims UDRP at “sucks” site

Kevin Murphy, August 6, 2010, Domain Policy

An Arizona cash-for-gold company has filed a UDRP claim against a gripe site that says it “sucks”.

HBT Investments, which does business at valleygoldmine.com, has filed its claim with WIPO against the owner of valleygoldminesucks.com.

The gripe site isn’t particularly exciting. It’s a blog with two entries, both dating from May 2009 and both primarily questioning the objectivity of an ABC news report.

The registrant probably has a strong defense.

There’s oodles of UDRP precedent protecting “sucks” sites, mainly on the grounds that there’s nothing “confusingly similar” about a domain that treats the trademark owner with contempt.

Valley Goldmine has a Better Business Bureau A+ rating displayed prominently on its web site, so it obviously values its reputation, which is fair enough.

But filing a UDRP against a gripe site does have the unfortunate effect of making it look like you’re trying to stifle free speech.

Valleygoldminesucks.com is, however, the second domain name that appears when one Googles for “valley goldmine”, which is probably more of a concern.

Massive BackCountry.com UDRP case ignores rude typos

Kevin Murphy, August 2, 2010, Domain Policy

Amusingly, a huge 41-domain typosquatting UDRP case just filed by BackCountry.com contains none of the obvious, profane typos.

The claim, apparently filed by an outdoor equipment retailer, covers typos such as backxountry.com, backcountru.com and even backc9untry.com.

It does not include the typo that first occurred to me. You know the one I mean.

That domain exists, and is currently parked with suggestive, adult-oriented ad links.

In fact, none of the 41 domains listed in the National Arbitration Forum claim contain the particular four-letter Shakespearean pun that I’m thinking of.

New UDRP provider headed by “ace cyber lawyer”

Kevin Murphy, July 30, 2010, Domain Policy

A new Indian group appears to have applied to become ICANN’s fifth approved UDRP provider.

The New Delhi-based Indian Technology Mediation & Arbitration Center is headed by ICANN veteran Pavan Duggal, who describes himself as “India’s ace cyber lawyer”.

ITMAC has 18 wannabe panelists listed on its web site, some of whom are said to have previously mediated domain name disputes for the World Intellectual Property Organization and Asian Domain Name Dispute Resolution Centre.

The outfit says it will be able to mediate disputes in a dozen or so Indian languages, as well as English, and would be able to handle internationalized domain names.

The base price for a single-domain, single-panelist case would be INR 106,000, roughly $2,279 at today’s exchange rates.

That’s actually almost quite a lot more expensive than WIPO, say, which charges $1,500 for an equivalent service. Quite surprising really – one lakh goes a lot further in India than in the US.

ICANN’s board of directors has the item “Receipt and Posting for Public Comment of the Application to be a New UDRP Provider” on the agenda for its meeting next Thursday.

(Via Managing Internet IP)

Stalemate reached on new TLD ownership rules

Kevin Murphy, July 26, 2010, Domain Policy

An ICANN working group tasked with deciding whether domain name registrars should be able to apply to run new top-level domains has failed to reach a consensus.

For the last several months, the Vertical Integration working group has been debating, in essence, the competitive ground rules of the new TLD market, addressing questions such as:

  • Should existing ICANN registrars be allowed to run new TLD registries?
  • Should new TLD registries be allowed to own and control ICANN registrars?
  • Should new TLD registries be allowed to sell domains directly to end users?
  • What if an approved registry can’t find a decent registrar willing to sell domains in its TLD?
  • Should “.brand” TLDs be forced to sell via ICANN accredited registrars?
  • Should “registry service providers” be subject to the same restrictions as “registries”?
  • Where’s the harm in allowing cross-ownership and vertical integration?

It’s an extraordinarily complex set of questions, so it’s perhaps not surprising that the working group, which comprised a whopping 75 people, has managed to reach agreement on very few answers.

Its initial report, described as a “snapshot” and subject to change, states:

It is impossible to know or completely understand all potential business models that may be represented by new gTLD applicants. That fact has been an obstacle to finding consensus on policy that defines clear, bright line rules for allowing vertical integration and a compliance framework to support it

Having lurked on the WG’s interactions for a few months, I should note that this is possibly the understatement of the year. However, the WG does draw four conclusions.

1. Certain new gTLDs likely to be applied for in the first round will be unnecessarily impacted by restrictions on cross-ownership or control between registrar and registry.

I believe the WG is referring here primarily to, for example, certain “cultural” TLDs that expect to operate in linguistic niches not currently catered for by registrars.

The operators of the .zulu and .kurd TLDs would certainly find themselves without a paddle if the rules obliged them to find an ICANN-accredited registrar that supports either of their languages.

There are other would-be registries, such as .music, that call themselves “community” TLDs and want to be able to sell directly to users, but my feeling is that many in the WG are less sympathetic to those causes.

2. The need for a process that would allow applicants to request exceptions and be considered on a case-by-case basis. The reasons for exceptions, and the conditions under which exceptions would be allowed, vary widely in the group.

There’s not a great deal to add to that: the WG spent much of the last couple of weeks arguing about “exceptions” (that they could not agree on) to a baseline rule (that they could not define).

3. The concept of Single Registrant Single User should be explored further.

An “SRSU” is a subset of what a lot of us have been calling a “.brand”. The proposed .canon TLD, under which Canon alone owns .canon domains, would likely fall into this category.

The WG’s report suggests that SRSU namespaces, should they be permitted, should not be subject to the same restrictions as a more open and generic TLD that sells to the average man on the street.

The alternative would be pretty crazy – imagine Canon owning the registry but being forced to pay Go Daddy or eNom every time it wanted to add a record to its own database.

I do not believe that a hypothetical .facebook, in which Facebook is the registry and its users are the registrants, falls into the SRSU category. Which is also pretty nuts, if you’re Facebook, forced to hand your brand over to the world’s domain name registrars.

4. The need for enhanced compliance efforts and the need for a detailed compliance plan in relation to the new gTLD program in general.

One principle that has come through quite clearly whilst lurking on the WG mailing list is that the degree of distrust between participants in this industry is matched only by the lack of confidence in ICANN’s ability to police bad actors effectively.

Domain name companies are masters of the loophole, and ICANN’s enforcement mechanisms have historically been slow enough that yesterday’s scandal often becomes today’s standard practice.

This sums it up pretty well:

Some members feel that loosening vertical integration/ownership controls may let the proverbial “genie out of the bottle that can’t be put back” should competitive harms result in the marketplace. Others believe that adopting restrictions on vertical integration or cross ownership is the wrong approach altogether, and that the focus should be on protecting against harms, and providing sanctions where harms take place.

The WG currently has six policy proposals on the table, which vary from the “no VI allowed” of the current Draft Applicant Guidebook to “some VI allowed” to “full VI allowed”.

There was a poll of WG members a few weeks back, to see which proposal had most support. It was inconclusive, but it left three proposals clearly in the lead.

The so-called Free Trade proposal, which advocates no limits on cross ownership, was originally authored by Sivasubramanian Muthusamy of ISOC India Chennai.

The proposal as it currently stands puts the focus on ICANN troubleshooting undesirable activities through compliance programs rather than ownership restrictions.

Opposed, a proposal known as RACK+, offered up primarily by Afilias, some of its partners, and Go Daddy, favours a much more restrictive policy that is more aligned with business models established under the last ten years of gTLDs dominated by .com.

RACK+ would impose a 15% ownership limit between registries, registrars and registry service operators, ostensibly in order to prevent registrars abusing privileged registry data.

But under RACK+, all TLDs, including .brands and obscure community TLDs, would be obliged to accept registrations only through ICANN registrars, on a non-discriminatory basis.

This would probably render the .brand TLD market stillborn, if adopted by ICANN, I reckon.

A third proposal, called JN2+, originally authored by representatives of NeuStar and Domain Dimensions, occupies a spot somewhere in the middle ground.

It also proposes 15% ownership caps between registrars, registries and registry service providers, but it contains explicit carve-outs for SRSU-style .brands and “community” TLDs.

Because I’m a wimp, and I have no desire to be drawn into the kinds of arguments I’ve been reading and listening to recently, I’m going to quote Milton Mueller here, saying JN2 “had the highest acceptability ranking of all the proposals” when the WG was polled.

(Sorry.)

I find it rather surprising that the WG seems to be calling for more policy work to be done on ICANN’s compliance programs before the issue of vertical integration can be fully resolved.

If anything, this seems to me to be yet another way to risk adding more delay to the new TLD program.

There’s a public comment period now open, here. And here’s the report itself (pdf)

Isn’t it about time for ICANN Las Vegas?

Kevin Murphy, July 23, 2010, Domain Policy

ICANN is now almost 12 years old, it’s held almost 40 public meetings in diverse cities all over the planet, and it’s never been to Vegas. Not once.

That’s got to change.

The organization is currently looking for a North American city in which to hold its fortieth public meeting, slated for next March. It’s the perfect opportunity for a company to put in a Las Vegas bid.

It’s about time ICANN headed to The Strip. It’s got to be the only industry organization in the world to never convene there. If the International Beverage Dispensing Equipment Association gets to have a Vegas convention, why can’t we?

Vegas is the conference center of North America, if not the world. There’s literally dozens of venues capable of handling a thousand or less beardy domain types, all within walking distance of each other.

If the conference facility prices are anything like the hotel room prices, ICANN and its sponsor should be able to find a real bargain.

For overseas visitors on a budget, flights to and hotels in Vegas can be very reasonable – rooms are generally subsidized by the money lost in the casinos downstairs.

The ICANN Fellowship Program would be massively oversubscribed. Live in the developing world? Fancy a free trip to Vegas? ICANN will be fighting off applicants with the proverbial stick.

But who would sponsor such a meeting?

Let me think… we’d be looking for a domain name company with deep pockets, something to sell, and no particular queasiness about sponsoring a Sin City event.

Can you think of anyone like that?

By March 2011, ICM Registry will very likely be in the pre-launch stages of the .xxx TLD.

The company will be looking for registrar partners, trying to assure IP interests that it’s not going to screw them, preparing for its sunrise and landrush periods… perfect timing.

Plus, we could have strippers at the Gala Event.

The stars are aligning on Las Vegas for ICANN 40.

ICANN, ICM – let’s make this happen.

Will ICANN drop anti-terror rule from new TLD process?

Kevin Murphy, July 19, 2010, Domain Policy

ICANN has been chastised for prohibiting terrorists from applying for new top-level domains. Really.

Abdulaziz Al-Zoman of SaudiNIC has written to the organization to worry about the fact that “terrorism” has been added to the list of forbidden activities for new TLD applicants.

The word made its first appearance in version four of the Draft Applicant Guidebook, and was harshly criticized during the ICANN board’s public forum in Brussels last month.

Al-Zoman is primarily concerned that there is no definition of “terrorism” in the DAG.

While the international community is extensibly [sic] divided on who is a terrorist and who is a freedom fighter, and notwithstanding ICANN’s lack of definition whatsoever in the DAG 4 on terrorism, it is a surprise to me to see ICANN involving itself in the area of terrorism while its mandate is only being a global technical coordinator.

He has a point, of course.

Hamas is the probably the best example today: an elected government with a paramilitary wing, classified as a terrorist organization by the US and UK, among others.

In the old days, we could have used the IRA as an example: a bunch of extremists blowing up English pubs, backed by American money.

During the public comment forum in Brussels, ICANN’s Kurt Pritz gave every indication that the word “terrorism” will be yanked or defined in the next DAG. From the transcript:

I agree with you that certain terms, and especially that one that is so sensitive, either requires — it should be removed or it should be — you know, it should have additional definition.

He was responding to a somewhat hyperbolic statement from Khaled Fattal, CEO of the Multilingual Internet Names Consortium, which is worth quoting (again from the transcript).

For ICANN to invoke the term “terrorism” in this arbitrary manner threatens ICANN’s ability to effectively undertake its mandate of being the global technical coordinator of the Internet. It would also challenge its legitimacy as a global public service provider in the eyes of the international community if it continues on this path, but most importantly, alienate many of the international community.

Moreover, it raises many concerns as to whether ICANN is succeeding at truly internationalizing itself.

Furthermore, the arbitrary inclusion of terrorism as a measuring stick without any internationally recognized law or standard is wrong and if acted upon it can be understood or seen by Muslims and Arabs as racist and profiling.

Strong stuff.

Now, ICANN’s painted itself into a bit of a corner. To placate its critics, it can either adopt a definition of terrorism, or it can drop the word entirely.

The former idea is probably unworkable – Wikipedia’s attempt to define “terrorism” under international law is over 4,500 words – and the latter could lead to interesting headlines.

ICANN GIVES THUMBS UP TO TERROR DOMAINS

I think I’ll leave that one for Fox.

RapidShare has no rights to “rapid”, says WIPO

Kevin Murphy, July 14, 2010, Domain Policy

RapidShare, the file-sharing service that recently embarked upon a spree of UDRP filings against domain name registrants, has lost its first such case.

A WIPO panelist denied the company’s claim on RapidBay.net, saying it had “not proved that they have any trademark or service mark rights in the expression ‘rapid bay’, or in the word ‘rapid'”.

RapidShare therefore failed to prove that “RapidBay” was identical or confusingly similar to its RapidShare trademark, and the complaint was thrown out.

The decision does not bode well for the company’s ongoing UDRP claims over rapid4me.com, rapidownload.net, rapidpiracy.com and rapid.org, among others.

Rapid.org’s registration, in particular, would appear to be safe, if the panelist in that case follows the same line of reasoning.

That will no doubt please the many people visiting my previous post recently, apparently looking for an explanation of why Rapid.org, a forum for sharing mainly copyrighted works, recently started bouncing to Bolt.org.

RapidShare has in recent months filed a couple dozen UDRP complaints against people who have registered “rapid” domains and are using them to help people find pirated material on the service.