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RapidShare loses case

Kevin Murphy, September 8, 2010, Domain Policy

RapidShare has failed to grab the domain name with a UDRP complaint.

The WIPO decision, sent to me this morning by the current registrant, found both an absence of confusing similarity and a lack of bad faith.

Panelist Matthew Harris recently handed to RapidShare on the grounds that the domain was conceptually similar to the RapidShare trademark.

He found no such similarity on this occasion.

Insofar as there is similarity, it resides in the common use of the word “rapid” alone. On the evidence before the Panel, this is insufficient. The Complainants have failed to satisfy the requirements of paragraph 4(a)(i) of the Policy., prior to the filing of the complaint, was a web forum devoted to sharing download links for pirated movies, music and so on. RapidShare used this fact to try to prove bad faith.

But the panelist focused instead on registration dates, observing that the domain was first registered in September 2003, years before RapidShare acquired its trademark rights.

The Complainants do not point to a trade mark registration that pre-dates September 2003. In the circumstances, the Complainants’ apparent assertion that its trade mark rights pre-date the Domain Name registration appears to be simply false.

RapidShare appears to have missed a trick here.

Harris wrote that there was no evidence before him that the domain was first registered in 2001, as the registrant had claimed, and that there was no evidence that the domain had changed hands since then.

A quick search on DomainTools shows that was indeed first registered in 2001, and that the current registrant probably only acquired it some time in 2009.

Why Harris was not given this information is probably due to RapidShare’s oversight, but it could have led to a finding of bad faith (not that this would have changed the ultimate outcome).

Amusingly, the decision also refers to the Russian registrant, Ilya Efimov, as a woman throughout. He assures me that, like all Ilya’s, he’s male.

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.CO landrush auctions top $1 million

Kevin Murphy, September 8, 2010, Domain Sales

According to my calculations, the total value of announced .co landrush auction sales has now topped $1 million, helped in part by the recent sale of for $22,500.

I’m currently aware of over 250 reported sales from the official registry auction, which is only about 10% of the total number of contested landrush applications.

These domains fetched a total of $1,125,932. The average sales price is over $4,400.

Here’s a list of the 30-odd most recently reported sales. – $22,500 – $18,500 – $16,286 – $12,500 – $10,000 – $10,000 – $8,499 – $8,350 – $8,300 – $8,200 – $7,210 – $6,600 – $6,437 – $6,310 – $5,200 – $5,100 – $4,782 – $4,050 – $3,972 – $3,900 – $3,600 – $3,600 – $3,500 – $3,175 – $3,162 – $3,150 – $3,100 – $3,090 – $2,900 – $2,830 – $2,800 – $2,600

.CO Internet does not disclose the sales of domains with “adult” themes, but its possible to infer from Whois data some of the domains that it probably auctioned.

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ICANN replaces three directors

Kevin Murphy, September 8, 2010, Domain Policy

ICANN has named Cherine Chalaby, Bertrand de La Chapelle and Erika Mann as the new members of its board of directors.

The three will replace current vice-chair Dennis Jennings, along with Harald Tveit Alvestrand and Jean-Jacques Subrenat, whose terms expire next month.

Under ICANN bylaws, Jennings, Alvestrand and Subrenat could have served two additional three-year terms, but I do not know whether any of them applied to do so.

The ICANN Nominating Committee, which was responsible for selecting the new directors, highlighted the fact that the board is getting its first Arabic-speaking member.

That’s Egyptian Cherine Chalaby. I must confess I’d never heard of him either. Google tells me he has a tech/consulting background, and works for a UK-based investment bank.

ICANN has had a couple of minor run-ins with Arabic members of the community recently, such as over the the delegation of Arabic-script ccTLDs, which came in for criticism.

There was also a small flare-up over the random inclusion of an anti-terrorism clause in the new gTLD application process, which led to (in my view overblown) accusations of insensitivity.

NomCom chair Wolfgang Kleinwaechter said the appointment of Chalaby “underlines the importance of further internationalization of ICANN.”

The appointment of Bertrand de La Chapelle, who becomes the first second person to leave the ICANN Governmental Advisory Committee to join the board, is also particularly interesting.

De La Chapelle is France’s GAC representative, and one of the most vocal members of the committee.

In my view, he’s currently the GAC rep doing the most to build bridges with the rest of the community over the tricky “morality and public order” policy process. The board’s gain is the GAC’s loss.

Clearly serious about his new role, de La Chapelle said he will quit his job as “Thematic Ambassador and Special Envoy for the Information Society in the French Foreign and European Affairs Ministry” and look for other sources of funding.

German Erika Mann joins the board after a 15-year stint as a Member of the European Parliament, sitting in the Socialist group. She speaks four languages and once ran her own IT consultancy.

According to her CV, she was an expert in ICANN matters between 1985 and 1994, which is almost supernaturally impressive.

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ICANN surveys – Fail or Win?

Kevin Murphy, September 6, 2010, Domain Policy

A couple of times this year, ICANN has supplemented its regular email public comment periods with quicker, easier point-and-click surveys.

I assume they were designed to more clearly communicate the issues and increase response rates. In some respects they seem to have been a success, in others, not so much.

First, the Win.

Of the two comment periods I’ve looked at – on the Post-Expiration Domain Name Recovery policy and ICANN’s public meetings strategy – response rates were definitely up on what you would normally expect to see.

The PEDNR report solicited 10 regular email comments and a whopping 412 survey responses. The meetings survey had three emailed comments and 297 survey responses.

Judging from the PEDNR summary and analysis report, which breaks down the actual responses, the majority of respondents had something of value to say for most of the questions posed.

(It also reveals that I was the first person to take the survey. Take that, Kirikos!)

The majority of responses came from Germanic-sounding names, so I’m guessing there was some outreach in a German-language forum somewhere. Due to this fact, some respondents confessed to not fully understanding some of the English-only questions.

Now, the Fail.

The survey conducted to gauge feeling on ICANN policy for deciding meeting locations has produced some incomprehensible data. Take this, for example:

Considerations in choosing a host city
246 voters replied:
591 or 40% felt that Facilities were most important
399 or 27% felt that Convenience of meeting location and cost for both ICANN and attendees most important
495 or 33% felt that Safety and Security were most important

So… 246 people voted, but 1,485 votes are tallied?

A few more questions had similar anomalies in their results, rendering the data pretty much worthless. It’s reproduced by ICANN regardless, and without comment.

I suspect the survey provider, BigPulse, may have some of the blame, although it can’t have helped that the ICANN survey itself was reportedly highly confusing.

The PEDNR survey was conducted using Zoomerang. I do not recall having any trouble using it.

On balance I’d say that, teething troubles aside, surveys make a nice complement to public comment periods, provided that, due to the risk of “framing”, they do not carry too much weight.

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Opponents pick holes in .jobs auction plan

Kevin Murphy, September 6, 2010, Domain Registries

A coalition of jobs web sites has accused Employ Media of trying to violate its own charter with its proposal to open up the .jobs namespace to all-comers.

The newly formed .JOBS Charter Compliance Coalition wants ICANN to reverse its approval of the proposal, which would largely liberalize the .jobs domain.

The ad hoc group, made up of dozens of organizations including the International Association of Employment Web Sites, and the Newspapers Association of America, wrote:

ICANN is sanctioning a registry operator’s decision to disregard the commitments contained in its charter, which is the fundamental basis upon which the sTLD was awarded.

ICANN approved Employ Media’s “phased allocation program” last month. It allows the company to loosen its previously restrictive policies on who can register domain names and for what purposes.

The first phase of the program, a request for proposals, has already launched. It would assign premium generic .jobs domains to companies willing to offer interesting business partnerships.

It’s seen by some as an obvious smokescreen for Employ Media to hand thousands of domains to the DirectEmployers Association, which plans a huge free jobs portal called

The new Coalition is against this plan, and has submitted a paper (pdf) to ICANN claiming to show how the RFP proves Employ Media wants to violate its sponsorship charter.

Its argument seems to boil down to the fact that the charter limits registrations to active human resources professionals, and that the DEA, like members of the Coaltion, does not fall into that strictly defined category.

The document was filed as an addendum to the Coalition’s reconsideration request, which itself was filed with ICANN last month before the Employ Media RFP was published.

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