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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”.

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SnapNames settles shill-bidder class action

Kevin Murphy, October 26, 2010, Domain Sales

Domain name auctioneer SnapNames said that it has settled the class action lawsuit filed against it by disgruntled domainers after one of its employees was found to be a shill bidder.

It seems to have had a bit of a result, too. Class members will receive exactly the same amount they would have had they accepted its rebate offer, according to a statement released by the company today.

The case was filed almost a year ago, after it emerged that Nelson Brady, a SnapNames employee, had been posing as a bidder in domain name auctions in order to bump up the final sale price.

Posing as “Hank Alvarez” or “halverez”, Brady stood to gain bonuses based on performance targets as a result of SnapNames’ acquisition by Oversee.net, its current owner.

After the abuse was discovered, SnapNames offered affected customers a rebate equivalent to the money they would have saved on a winning bid had “halvarez” not outbid them.

SnapNames said today:

Class members (which are United States residents who were extended the rebate offer but have not yet accepted) have been or shortly will be notified of the settlement terms and amounts (which are identical to the amounts affected bidders were offered in the rebate offer we extended last November).

This seems to mean that anybody who was holding out for a bigger settlement is out of luck.

The deadline for accepting the rebate expires November 4, but the deadline to become part of the class action is not until December 17.

SnapNames will have paid out $2 million to customers in total.

(I wonder how much the class action attorneys are to receive).

More info can be found at snapsettlement.com.

SnapNames has also settled its lawsuit against Brady for an undisclosed amount. The company sued him for $33 million in May.

Oversee said it “believes the financial penalty is appropriate considering the seriousness of the improper activity”.

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Survey reveals demand for .brand TLDs

Kevin Murphy, October 26, 2010, Domain Registries

Almost half of trademark-conscious companies are considering a “.brand” top-level domain, according to a survey carried out by World Trademark Review magazine.

The survey also found that there is much more interest in new TLDs among marketing folk than lawyers, which is perhaps not surprising.

So far, only a few potential .brand applicants have been revealed. Canon has been the most brazen about its plans, but others including IBM and Nokia have also dropped hints.

The WTR reported:

WTR’s survey of in-house trademark counsel, attorneys in law firms and marketing professionals found that an average of 54% responded “Yes”, “It’s likely” or “Maybe” when asked whether their company/client would apply for a new gTLD. Of these, 81% confirmed, like Canon, that the string would be their master brand.

A break-down of these numbers kindly provided by WTR show that “Yes” was easily the least common response, but that marketing professionals expressed more interest than lawyers.

Asked whether their company would apply to run a new TLD, only 6.8% and 9.5% of in-house counsel responded “Yes” or “It’s likely”, compared to 19.6% and 15.2% for marketers.

About 54% and 33% responded “No” to the same question, respectively. The remainder were on the fence with a “Maybe” response.

Lawyers in private practice, when asked the same question, were more confident than their in-house counterparts, with 18.9% saying it was “likely” at least one client would want a gTLD

Whichever way you cut it, this adds up to a pretty decent chunk of .brand applicants. ICANN has previously said it expects between 100 and 200 such applications in the first round.

About 350 people responded to the survey in total. The full results and analysis are published in the latest edition of WTR.

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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.

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NameJet to auction three-letter .pro domains

Kevin Murphy, October 25, 2010, Domain Sales

NameJet has inked a deal with RegistryPro to auction off eleven “premium” three-letter .pro domain names next month.

The domains themselves have not yet been revealed, but the auction is scheduled to kick off November 19, according to a press release today.

RegistryPro, a subsidiary of HostWay, received the the right to start selling previously-restricted one-, two- and three-character .pro domains from ICANN in May 2009.

This June, it allocated nine such domains, including top.pro and 411.pro, via an RFP process.

After it has finished auctioning off its selected short domains, the company plans to put the remainder back into the pool for first-come, first-served registrations.

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