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Businesses to object to Arab UDRP provider

Kevin Murphy, October 27, 2010, Domain Policy

ICANN’s business constituency is to object to a new Jordan-based UDRP provider, saying that no new providers should be approved until rules governing their behavior are put in place.

The BC reckons that UDRP decisions need to be more consistent and predictable, and that a good way to achieve this would be with standard accountability mechanisms.

In a draft position statement, expected to be finalized and filed with ICANN tomorrow, the BC says that it:

strongly advocates that ICANN must first implement a standard mechanism with any and all UDRP arbitration providers that defines and constrains their authority and powers, and establishes regular and standardized review by ICANN with flexible and effective means of enforcement.

Its comment is expected to be filed in response to the Arab Center for Domain Name Dispute Resolution’s request for official recognition as a UDRP provider last month.

The BC does not appear to object to the ACDR on its own merits or on the basis of its location.

The statement notes that registrars are bound by contracts setting the rules for domain registrations, but that UDRP providers can force transfers unconstrained by any ICANN guidelines or oversight.

It’s well-known that UDRP decisions from the various existing providers are currently about as predictable as flipping a coin, with panelists frequently interpreting the rules along quite different lines.

The BC seems concerned that this could be exacerbated as more UDRP providers are approved and as new TLD registries start popping up in different countries.

The draft statement notes that currently about 99% of UDRP cases are heard by WIPO and NAF, and that most gTLDs are “based in a limited number of national jurisdictions”.

Former ICANN chief speaks out against new TLD morality veto

Kevin Murphy, October 26, 2010, Domain Policy

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.

Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.

The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.

There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.

But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.

Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.

He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.

Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.

He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”

A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.

Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.

Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.

His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

Trademark lobby keeps up pressure on ICANN

Kevin Murphy, October 24, 2010, Domain Policy

The International Trademark Association is continuing to press ICANN into commissioning a study of the potential economic “harms” its new top-level domain program could cause.

INTA executive director Alan Drewsen earlier this month sent ICANN a quick reminder (pdf) that it expects to see the study carried out before the new TLD application round launches.

The trademark lobby believes that new TLDs will increase costs to brand-conscious businesses through an increase in the number of defensive registrations and dispute proceedings they have to pay for.

ICANN hired some third-party analysts to look into the issue, and published a preliminary report in July that basically just speculated about studies that could be carried out in future.

The plan was to carry out a second-phase study, which was to begin after public comments on the first report had been analyzed and summarized by ICANN staff.

Three months after the public comment period closed, this analysis has not been published and there’s no news on phase two.

INTA’s latest missive also notes that the ICANN board does not appear to have discussed the economic study at its Trondheim meeting in September.

Drewson also refers back to previous correspondence, sent in early September by INTA president Heather Steinmeyer, in which she wrote:

trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

It’s not clear to me whether ICANN also thinks the study needs to be completed before the new TLD program launches.

Such a study would presumably take some considerable time to compile, and noises from ICANN currently point to the program becoming finalized at some point in the next six months.

If the study were to conclude that new TLDs would be hugely financially damaging, after three years of work… well, red faces would be the very least concern.

New TLDs dominate ICANN board agenda

Kevin Murphy, October 22, 2010, Domain Policy

ICANN has published the agenda for next Thursday’s board meeting and unsurprisingly the new top-level domain process dominates.

The agenda breaks the discussion into several bullet points.

Of interest to absolutely everybody watching the new TLD process is the first bullet – “Update on Timeline”. Everyone wants to know when the Applicant Guidebook will be finalized.

Recently, it became apparent that ICANN seems to view the next draft of the guidebook as a possible candidate for “final” status. As I blogged earlier this week, it could be published in the next two weeks.

The issues of vertical integration of registry and registrar functions, the “Rec 6” objections process, and the Governmental Advisory Committee advice on geographic names are also on the agenda.

The meeting will also discuss the approval of Qatar’s internationalized domain name country-code TLD and the redelegation of the .qa ccTLD to a new entity.

Qatar’s chosen Arabic string was approved back in March, at the same time as other strings that have already been added to the root, so I can only assume that the redelegation issue was what caused the hold-up.

The perennially controversial .xxx application is also due to be wheeled out for another hearing.

Cash-for-gold site seizes “sucks” domain

Kevin Murphy, October 19, 2010, Domain Policy

An Arizona cash-for-gold company has successful recovered a “sucks” domain name via UDRP, after it emerged that the anonymous gripe site was actually run by a competitor.

Valley Goldmine filed the UDRP complaint against the domain valleygoldminesucks.com back in August. As I reported, the contested domain contained a mere two blog posts, both dating to May 2009.

Up until about a month ago, the registrant’s identity was protected by Go Daddy’s privacy service.

But Valley Goldmine used a subpoena to identify the actual registrant, and it turned out to be the operator of Gold Stash For Cash, a direct competitor, which does business at goldstash.com.

The site was created after a local TV news report had ranked Valley Goldmine higher than GSFC in an “investigation” into cash-for-gold companies. The blog posts, ironically, attacked the report’s objectivity.

Despite precedent largely protecting “sucks” domains on free speech grounds, this was enough for WIPO panelist Maxim Waldbaum to find against the registrant on all three requirements of the UDRP.

Interestingly, Waldbaum used the fact that the domain satisfied the “bad faith” part of the UDRP to justify the “confusingly similar” criterion.

The associated website has high placement on search engine results for the Mark and is operated by the principal of a direct competitor of Complainant. Respondent’s use of the Disputed Domain Name in this context is precisely within the list of bad faith criteria under paragraph 4(b) of the Policy, which, in this Panel’s view, clearly indicates Respondent’s intent to create confusing similarity in the minds of Internet users.

The fact that GSFC stood to benefit financially from anonymously bad-mouthing its competitor clearly over-rode any free speech concerns, which does not seem unreasonable.

The panelist concluded:

Although cloaked in the mantle of a gripe site, Respondent’s website is quite clearly a platform for Respondent to cast aspersions on the reliability of a report that portrayed his company in a negative light and his competitor in a positive light, and to otherwise sling mud.

Amusingly, while GSFC appears to own goldstashforcashsucks.com, a third party owns goldstashsucks.com.