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Renew a domain, lose a UDRP?

Kevin Murphy, February 2, 2011, Domain Policy

Renewing a domain name could land you in hot water if you’re hit with a UDRP complaint, if some current thinking at the National Arbitration Forum gains traction.

In the recent NAF decision over FreeGeek.com, panelists argued that if a domain was not originally registered in bad faith (because no trademark existed at the time) renewing the domain after a trademark had been obtained could nevertheless be used to demonstrate bad faith.

Showing that a disputed domain was registered and used in bad faith is of course one of the three pillars of UDRP.

Free Geek Inc runs its web site at freegeek.org. It wanted the .com equivalent, which was registered in 2001, six years before the company acquired a US trademark on its brand.

FreeGeek.com is owned by by Kevin Ham’s company, Vertical Axis. The registration has been renewed every year since 2001.

The three NAF panelists were split on whether renewals post-2007 should be considered evidence of bad faith.

Two of the panelists agree that Respondent should be charged with exercising some diligence at renewal to determine if there are outstanding marks which conflict; one does not.

That’s a disturbing statement, if you’re interested in registrant rights – two panelists basically want domain investors to relinquish their domains if somebody else subsequently acquires a trademark.

What’s more, the panelists’ position appears to be based on a dodgy interpretation of recent UDRP precedent. The decision goes on to say:

The Chair of the Panel is concerned that the Respondent renewed its registration after the trademark was applied for and the USPTO registered the mark. In RapidShare AG and Christian Schmid v. Fantastic Investment Limited… a panel in which the Chair participated, found that “bad faith” could include renewal of a domain name after the issuance of the mark.

It’s a dodgy interpretation because the referenced case, rapidshare.net, does not in fact discuss renewals at all.

In that case, bad faith was actually shown to have arisen due to the domain (which had survived a UDRP just a few months earlier) being bought by a new registrant, not due to a renewal.

What we seem to have here is a case of a couple of NAF panelists thinking about trying to expand the scope of the UDRP. There’s a ton of precedent concluding that renewals are not relevant when establishing whether a domain was registered in bad faith.

With that in mind, you’d think the case would have been a slam-dunk win for the complainant. Not so.

In fact, Ham prevailed on the basis that he had acquired rights to the domain by simply parking it, which constituted a legitimate commercial use.

This panel, in contrast to other panels, finds that the use of this model and evidence of the use is enough to justify a factual finding that Respondent has used the name for commercial purposes

Respondent has clearly demonstrated that it acquired rights in the name by usage even if the usage has been limited to a “pay-per-click” links page. Such usage does not itself signal a lack of rights and legitimate interests and can constitute a bona fide offering of goods or services according to Policy

If there are any recent UDRP cases that show just how random a process it is, this is the one.

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IPv4 addresses to run out Thursday

Kevin Murphy, February 1, 2011, Domain Tech

ICANN will announce the final depletion of its pool of IPv4 addresses this Thursday.

The Number Resource Organization will hold a “ceremony and press conference to make a significant announcement and to discuss the global transition to the next generation of Internet addresses”.

The NRO is ICANN’s supporting organization representing Regional Internet Registries, the outfits responsible for handing out IP addresses to network operators.

ICANN, the Internet Society and the Internet Architecture Board will also participate in the event, scheduled for Thursday February 3 at 1430 UTC. It will be webcast here.

Today, APNIC, the Asia-Pacific RIR, said that it has been assigned two /8 blocks of addresses, meaning IANA is down to its Final Five chunks.

Thursday’s ceremony will presumably entail ICANN/IANA officially handing out these last five blocks to the five RIRs, one each, as called for by its allocation policy.

After that, it’s all gone. No more IPv4. The age of IPv6 is upon us.

It is currently estimated that the RIRs will themselves run out of IPv4 in September. After that, if they need IP addresses they’ll receive IPv6.

IPv4 is rapidly becoming a scarce commodity.

Many people, including ICANN chairman Peter Dengate Thrush, have predicted a “gray market” for addresses to appear, with address blocks changing hands for less than the cost of upgrading to IPv6.

The focus on Thursday, however, will be all about the measures network operators need to implement in order to remain viable on an internet increasingly running IPv6 equipment.

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Details of ICANN’s government showdown emerge

Kevin Murphy, February 1, 2011, Domain Registries

Eight governments will face off against nine ICANN directors and an outside lawyer at the Governmental Advisory Committee showdown in Brussels at the end of the month.

That’s according to a draft agenda for the two-day bilateral meeting on new top-level domains, posted to an ICANN mailing list over the weekend.

The GAC’s 12 remaining concerns appear to have lumped together into eight thematic sessions, each of which is assigned one or more GAC reps, ICANN directors and staffers to “lead” the discussions.

The lead governments are: the US, UK, European Commission, Germany, Netherlands, Norway, Sri Lanka and Kenya. The US will lead or jointly lead three of the eight sessions.

Bruce Tonkin of Melbourne IT has been assigned the unenviable task of representing the ICANN board on the “morality and public order objections” issue, which the US government is currently trying to recast as a governmental right of veto over new TLDs.

Tonkin recently told ICANN’s GNSO Council that he believes Brussels will be focused on trying to understand the GAC’s current objections to new TLDs and help the GAC understand where ICANN has tried to take its previous advice into account.

If the GAC still does not believe that their advice has been heeded, the Board and GAC may discuss how the GAC advice could be taken into account in such a way that the interests of the overall ICANN community continue to be balanced.

He added that any “significant changes” proposed post-Brussels will likely be taken to the rest of the ICANN community for discussion at the San Francisco meeting, March 13.

Any changes proposed by the GAC would have to be “mutually agreeable between the GAC and the rest of the ICANN community”, he wrote.

The trademark protection discussion, likely to be one of the livelier sessions, will be led by the US, UK and Sri Lanka, with Rita Rodin Johnston, Ram Mohan and Gonzalo Navarro representing the board.

ICANN also plans to lawyer up. According to the document, the sole board lead on registry-registrar separation is Joe Sims, ICANN’s long-time outside counsel, a partner with the law firm Jones Day.

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Gratuitous Go Daddy girl chest shot

Kevin Murphy, January 31, 2011, Domain Registrars

I know, I know, I’m an utter hypocrite.

Complaining about the journalistic standards of The Sun in the morning and posting a photo that’s little better than a Page 3 shot in the evening.

I do so only in the spirit of crowd-sourced investigative journalism. And traffic, obviously.

Go Daddy Girl boobs

In case you’re wondering, it’s the latest in the series of teaser shots Go Daddy has been releasing ahead of its Super Bowl 2011 commercial.

Note the strategic positioning of “.CO” on the T-shirt.

We’re supposed to start guessing who it is now.

Knock yourselves out.

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Noel Gallagher buys domain name with gig tickets

Kevin Murphy, January 31, 2011, Domain Sales

Former Oasis lead guitarist Noel Gallagher reportedly bought the domain name noelgallagher.com from a squatter in exchange for band memorabilia and free gig tickets.

According to British tabloid The Sun:

The former OASIS star found out recently that a cunning punter in Barcelona had snapped up the domain name noelgallagher.com ten years ago.

And The Chief’s plans to get things in order for his solo career were being held up by the Barca Bandit – because he was demanding a small fortune to hand it back.

Noel took matters into his own hands last week. He paid for the Spaniard to fly to London, put him up in a plush hotel and met him in person to thunder out a deal.

And after some serious haggling, and a few Oasis anecdotes, the chancer changed his demands from tens of thousands of pounds – to some signed memorabilia and guest list action at Noel’s next solo gigs.

I’m not sure how much success Oasis ever had outside of the UK. If you’ve never heard of them: briefly here in the 1990s they were regarded by some (mainly themselves) as the second coming of The Beatles.

I’ve never before seen a domain name story reported in The Sun, a notoriously unreliable but hugely popular Murdoch-owned daily rag, so I did a bit of fact-checking.

Whois history shows that the original registrant was from Madrid, not Barcelona, and that the domain was initially registered in 2002.

While the report claims Gallagher flew the squattter to London to negotiate the deal “last week”, the domain actually seems to have been owned by someone at Oasis’s record label since March 2010.

So either the cybersquatter got a free city break, or The Sun is — shockingly — reporting unreliable celebrity news.

The domain name does not currently resolve.

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