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UDRP reform effort begins

Kevin Murphy, February 5, 2011, Domain Policy

ICANN has kicked off a review of its Uniform Dispute Resolution Policy, the occasionally controversial process used to adjudicate cybersquatting complaints.

The GNSO Council on Thursday voted to ask ICANN staff for a so-called “Issues Report” on UDRP, indicating that reform of the process is likely.

This is the relevant portion of the resolution, passed unanimously:

RESOLVED #2, the GNSO Council requests an Issues Report on the current state of the UDRP. This effort should consider:

* How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process.

* Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated. The Issue Report should include suggestions for how a possible PDP on this issue might be managed.

Issues Reports commissioned by the Council are expected within 15 days, and 15 days after that the Council is expected to vote on whether to kick off a Policy Development Process.

A PDP could lead to changes to the UDRP that would be binding on all ICANN-accredited registrars and their customers.

While the UDRP has proven very effective at dealing with clear-cut cases of cybersquatting over the last 12 years, critics claim that it is often interpreted too broadly in favor of trademark interests.

If you read this blog regularly, you’ll know I frequently report on unfathomable UDRP decisions, but these are generally the exception rather than the rule.

Unrelated to UDRP, the GNSO Council has also voted against asking ICANN for an Issues Report on registry/registrar best practices for mitigating domain abuse.

Business interests wanted registrars to take more measures (voluntarily) to curb activities such as phishing, but registrars think this kind of rule-making is beyond the scope of the GNSO.

After a lot of heated debate and arcane procedural wrangling, the Council decided instead to ask for a “discussion paper”, a term that has no meaning under ICANN’s rules, meaning a PDP is less likely.

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Four more ICANN 40 sponsors revealed

Kevin Murphy, February 3, 2011, Domain Policy

Iron Mountain, IronDNS, RegistryPro and the Public Interest Registry have added their names to the list of companies prepared to fork out big bucks to sponsor ICANN’s San Francisco meeting.

That brings the total number of ICANN 40 sponsors revealed so far to five, after VeriSign’s unprecedented $500,000 “Diamond” deal.

The new sponsors have splashed out more modest fees. Of the six tiers of sponsorship available, all four have opted for least expensive two.

Iron Mountain, IronDNS and RegistryPro have all chosen the same tiers as they have before, but they are likely paying more since ICANN has doubled its list prices since last year.

Meanwhile, .org manager PIR has downgraded to a $25,000 “Silver” package, having been a “Gold” sponsor at the Cartagena meeting.

The deadline for signing sponsorship deals and handing over artwork is February 15.

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ICANN chair expects more new TLDs delay

Kevin Murphy, February 3, 2011, Domain Registries

ICANN’s new top-level domains program is unlikely to be approved at its San Francisco meeting next month, according to chairman Peter Dengate Thrush.

“We don’t think we’ll be able to approve the final applicant guidebook in March,” he said in a new interview with World Trademark Review.

This confirms my suspicion that changes to the Guidebook made following the upcoming meeting between ICANN and its Governmental Advisory Committee may be too extensive for ICANN to rubber-stamp without first consulting the community.

The ICANN board and the GAC are due to meet in Brussels, February 28 and March 1, to discuss the GAC’s outstanding concerns.

Chief among these concerns is trademark protection, where the GAC is pretty much aligned with the interests of the intellectual property constituency.

Brussels will also cover matters such as geographic names protection and procedures for dealing with controversial strings that governments may want to object to.

While ICANN is under no obligation to adopt the GAC’s suggestions wholesale, if it makes substantial concessions its bylaws will likely demand more public comment on the changes.

ICANN’s board indicated last week that it plans to tell the GAC where it disagrees with its advice at a consultation March 17, one day before its San Francisco meeting.

It also said that it plans to approve a Guidebook “as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook” published in November.

UPDATE: I had an opportunity to put Dengate Thrush’s comments to ICANN CEO Rod Beckstrom this afternoon. He said: “I’m not going to forecast when the final Applicant Guidebook will be approved.”

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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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