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Big brands ask US for published list of known cybersquatters, other stuff

Kevin Murphy, September 6, 2012, Domain Policy

A public, published list of repeat cybersquatters was among the demands that the trademark lobby took to a meeting with the US government in Washington DC yesterday.

The summit, hosted by the Department of Commerce, was the latest stage in the US government’s response to the campaign for more new gTLD rights protection mechanisms kicked off by the Association of National Advertisers a little over a year ago.

About 30 big brand owners, along with several trade associations and campaign groups, took part.

The Internet Commerce Association somehow managed to blag an invitation too, and was the only representative of domain registrants, according to a blog post by ICA counsel Phil Corwin.

The companies, which included tech companies such as Microsoft, Facebook, AOL, Yahoo and eBay and offline brand owners such as Nike, Coca-Cola, Time Warner and News Corp, met in early June to formulate a set of recommendations to take to Commerce.

These recommendations are outlined in an August 29 letter (pdf), a copy of which DI has obtained.

Notably, the companies asked for a published list of “bad actors” who have repeatedly lost Uniform Rapid Suspension cases. The letter states:

Recidivist bad actors should be tracked via a list of common Respondents and that list should be published and publicly available.

However, we understand that this request is a low-priority item, discussed only briefly yesterday, and that Commerce representatives did not immediately embrace it.

The bulk of the discussions related to tweaks trademark owners want to see in the Trademark Claims service — which alerts them and the registrant when somebody tries to register a potentially infringing domain name — and the URS.

The brand owners want Trademark Claims, which new gTLD registries are only obliged to offer for the first 60 days of general availability, extended for a longer period, possibly up to three years.

On the face of it, this is among the most reasonable longstanding demands from the IP crowd, but ICANN has resisted it to date as it’s worried about creating a monopoly in the pre-existing market for trademark monitoring services.

If the Trademark Clearinghouse is alerting you every time somebody registers a domain name with your brand in it, why pay MarkMonitor or Melbourne IT for the same service?

The letter also says that Trademark Claims should cover brand+keyword registrations, and domains containing registered trademarks, rather than just exact matches.

The worrisome aspect of this request is that there’s quite a high risk of false positives due to run-on words, very short trademarks, acronyms and dictionary words.

Non-commercial ICANN stakeholders dislike this due to the possibility of a chilling effect on free speech, while registries and registrars don’t like anything that puts unnecessary obstacles in the registration path.

With URS, the trademark owners want a full loser-pays system, though they acknowledge that it could raise the filing fee, which is something they don’t want.

To keep costs down, they want a lower filing fee for cases where the registrant does not respond and a URS panelist is not appointed, which seems like a reasonable idea.

The idea of ICANN (and, ultimately, registrants) subsidizing URS fees has also been put forward.

Finally, the trademark owners want registries to implement defensive blocking systems with one-time fees, modeled on the Sunrise B process that ICM Registry used with the launch of .xxx.

Some of the ideas — such as lower filing fees for uncontested URS cases — seem fairly reasonable and I can see them gaining traction.

Others, such as the brand+keyword protections, seem harder to implement and less likely to pass through ICANN unchallenged.

So what happens next? According to ICA’s Corwin:

For their part, the hosts of the meeting [Commerce] listened politely but did not to endorse any of the suggestions, although they did commit to follow-up interagency discussions. It was pointed out that some of the proposals have been raised before and went nowhere within ICANN, and questions were raised about what process would be utilized to place them before the broader ICANN community and its Board. It was also indicated that the U.S. would be reluctant to undertake any unilateral communications on these matters to ICANN’s Board.

Given this reluctance, I wouldn’t be surprised to see some of these ideas bubbling up through the Governmental Advisory Committee instead, as ideas from the US trademark lobby are wont to do.

As with every ICANN meeting, expect to see further discussions in Toronto next month.

ICANN’s seven-point test for borked new gTLD bids

Kevin Murphy, September 6, 2012, Domain Policy

ICANN has published a set of seven criteria for judging whether new top-level domain applicants should be allowed to change the details of their applications.

The test is designed to enable applicants to correct stupid errors in — or make more substantial changes to — the original applications.

ICANN had received 49 such requests at the last count.

It is believed that at least three applicants — Verisign, DotConnectAfrica and Kerry Logistics — have requested changes to typos in the applied-for string itself.

Others are thought to have asked for permission to correct copy-paste errors, when they’ve applied for multiple gTLDs.

These are the factors ICANN will use to determine whether a change will be allowed:

Explanation – Is a reasonable explanation provided?

Evidence that original submission was in error – Are there indicia to support an assertion that the change merely corrects an error?

Other third parties affected – Does the change affect other third parties materially?

Precedents – Is the change similar to others that have already been approved? Could the change lead others to request similar changes that could affect third parties or result in undesirable effects on the program?

Fairness to applicants – Would allowing the change be construed as fair to the general community? Would disallowing the change be construed as unfair?

Materiality – Would the change affect the evaluation score or require re-evaluation of some or all of the application? Would the change affect string contention or community priority consideration?

Timing – Does the timing interfere with the evaluation process in some way? ICANN reserves the right to require a re-evaluation of the application in the event of a material change. This could involve additional fees or evaluation in a subsequent application round. (AGB §1.2.7.)

It’s not yet clear who makes the decision — whether it’s ICANN staff or its board of directors. I’ve asked ICANN for clarification and will update this post when I find out.

All changes will be published in a public change log and subject to 30 days of public comment, according to ICANN’s announcement this morning.

Another controversial VP leaves ICANN

Kevin Murphy, September 5, 2012, Domain Policy

It’s house-cleaning time at ICANN, it seems.

Elad Levinson, controversially hired 18 months ago as vice president of “organizational effectiveness” has been terminated, we’ve learned.

Levinson, who started in May 2010 as a consultant before going full-time as a VP, was tasked with sorting out some of the internal problems at ICANN.

But his hiring was not warmly welcomed by many in the ICANN community (or, we hear, staff), coming at a time when other more mission-critical positions were still vacant.

As former CEO Rod Beckstrom’s most controversial hire — Levinson’s previous ventures made him look like a bit of a hippy with a penchant for psychobabble — his departure is not unexpected.

It follows the resignation of communications VP Barbara Ann Clay, which we reported yesterday.

The rumor mill has it that Clay and Levinson are not the only ICANN executives to face the chop this week, but they’re the only names we’ve been able to confirm so far.

ICANN comms chief quits

Kevin Murphy, September 4, 2012, Domain Policy

ICANN vice president of communications Barbara Ann Clay has resigned, DI has learned.

Clay was appointed to the role in 2010 under Rod Beckstrom, and the fact that she is leaving now, while the CEO role is in transition, will come as little surprise to ICANN watchers.

As head of comms, Clay presided over a new gTLD outreach program that managed to result in 1,930 applications but which was criticized by some for not focusing enough on the developing world.

A generally low-profile executive, the only time DI has had cause to mention Clay’s name was when she complained to the government of Senegal about a crappy hotel.

She’s the second senior executive with responsibility over the new gTLD program — the third if you include Beckstrom — to leave ICANN since Reveal Day.

Program director Michael Salazar resigned in June at about the same time digital archery was getting killed off.

Clay’s last day on the job is believed to be September 14.

Congressmen quiz ICE over domain seizures

Kevin Murphy, September 3, 2012, Domain Policy

Three US members of Congress have expressed “deep concern” over the alleged lack of due process followed when the Department of Homeland Security seizes domain names.

Rep. Zoe Lofgren, Rep. Jared Polis and Rep. Jason Chaffetz quiz DHS (pdf) about the methods employed by the Immigration and Customs Enforcement agency in its Operation In Our Sites.

The Congressmen’s letter highlights the case of the hip-hop web site, which had its .com seized by ICE and then returned.

“Much of Dajaz1’s information was lawful,” the letter reads. “Despite this, DHS and the Department of Justice suppressed this website for more than a year.”

The Congressmen say that “if a website’s domain is seized, it needs to be given meaningful due process that comports to the US Constitution and US law”.

Operation In Our Sites has seen ICE seize hundreds of domains — mainly .coms accused of copyright infringement — from US-based registries including Verisign since late 2010.

Despite the relatively small number of domains seized, there have been a number of controversies.

Notably, the Spanish TV download web site RojaDirecta, which lost its .com and .org domains despite being ruled legal by a court in its home nation, last month had them returned to it by ICE.