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OpenTLD suspension stayed in unprecedented arbitration case

“Cybersquatting” registrar OpenTLD, part of the Freenom group, has had its accreditation un-suspended by ICANN while the two parties slug it out in arbitration.

Filed three weeks ago by OpenTLD, it’s the first complaint to head to arbitration about under the 2013 Registrar Accreditation Agreement.

ICANN suspended the registrar for 90 days in late June, claiming that it “engaged in a pattern and practice of trafficking in or use of domain names identical or confusingly similar to a trademark or service mark of a third party”.

But OpenTLD filed its arbitration claim day before the suspension was due to come in to effect, demanding a stay.

ICANN — voluntarily, it seems — put the suspension on hold pending the outcome of the case.

The suspension came about due to OpenTLD being found guilty of cybersquatting its competitors in two UDRP cases.

In both cases, the UDRP panel found that the company had cybersquatted the trademarks of rival registrars in an attempt to entice their resellers over to its platform.

But OpenTLD claims that ICANN rushed to suspend it without giving it a chance to put forward its side of the story and without informing it of the breach.

It further claims that the suspension is “disproportionate and unprecedented” and that the public interest would not be served for the suspension to be upheld.

This is not an Independent Review Process proceeding, so things are expected to move forward relatively quickly.

The arbitration panel expects to hear arguments by phone August 14 and rule one way or the other by August 24.

Read the OpenTLD complaint here.

Chinese registrar goes AWOL, gets terminated

Chinese registrar name2host.com has had its accreditation terminated by ICANN for failing to comply with an audit.

According to the compliance notice (pdf), ICANN has been chasing the company since March but has encountered only disconnected phones and unanswered emails.

It seems name2host.com’s principals were all using Hotmail or Yahoo email accounts; not exactly the kind of thing you want to see from a domain name registrar.

The registrar had fewer than 5,000 gTLD domains on its books in March, all in .com and .net.

ICANN will initiate a bulk transfer to a new registrar using its usual process.

Freenom suspended for cybersquatting rival registrars

Freenom, the company behind .tk and other freebie ccTLDs, has had its ICANN registrar accreditation suspended for cybersquatting competing registrars including Go Daddy and Key-Systems.

OpenTLD, its registrar business, has been told it cannot accept new registrations or inbound transfers from July 8 to October 6 or until it provides ICANN with a full list of the names it squatted.

I believe it’s the first time ICANN has suspended a registrar for this reason.

The suspension notice states:

ICANN has found that OpenTLD has engaged in a pattern and practice of trafficking in or use of domain names identical or confusingly similar to a trademark or service mark of a third party in which the Registered Name Holder has no rights or legitimate interest

That’s a long-winded way of saying “massive cybersquatting”.

ICANN is basing its claims on two UDRP cases that Freenom and its CEO, Joost Zuurbier, lost.

According to WIPO panelists in Key-Systems GmbH v. Joost Zuurbier, OpenTLD B.V. and NetEarth Group, Inc. v. Stichting OpenTLD WHOIS Proxy, the company squatted at least seven of its rivals’ trademarks.

The domains were netearthone.biz, rrpproxy.me, key-systems.cc, resellerclub.tk, resellbiz.biz, godaddy.cf and resello.ws.

According to the UDRP decisions, Freenom used the domains to try to entice resellers of the other registrars over to OpenTLD.

It bought the competing registrars’ trademarks as search keywords on Google’s advertising platform, a WIPO panelist found. If you searched Google for Key-Systems trademark “RRPproxy”, for example, you’d get an ad linking to rrpproxy.me.

In some cases the names were registered behind Freenom’s in-house privacy service. In others, Zuurbier and OpenTLD were listed plainly as the registrants.

The WIPO panelists also found that Freenon shirked its duties under the UDRP as registrar, deleting the squatted domains rather than locking them, which essentially amounted to “cyberflight”.

It all looks pretty bad for Freenom, which only gained its accreditation two years ago.

To avoid termination, it has to provide ICANN with a list of all of its trademark infringing names, agree to transfer them to the mark owners or delete them, and bunch of other stuff.

Here’s the letter.

Barclays probably not breaching contract, says ICANN compliance chief

Barclays doesn’t seem to have violated its new gTLD registry agreements, despite admitting to criminal charges related to currency manipulation, according to ICANN’s top compliance executive.

Allen Grogan, chief contract compliance officer, told DI today that a “literal” reading of the Registry Agreements for .barclays and .barclaycard would not see the bank in breach.

“As far as I know we haven’t received a formal compliance complaint about it. If we received a complaint we would investigate it,” Grogan said.

“At first blush I wouldn’t see a clear-cut violation of the literal language of the agreement,” he said.

Barclays’ suitability to be a new gTLD registry has come under the spotlight in CircleID blog posts recently, first by domainer George Kirikos and then Internet Commerce Association counsel Phil Corwin.

All RAs contain a provision that allows ICANN to terminate the contract if any officer or director of the registry is convicted of a financially-related misdemeanor or any felony.

Barclays was one of five banks that recently fessed up to felony currency market fixing charges in the US, paying a combined $2.5 billion fine.

However, as Kirikos, Corwin and now Grogan have pointed out, the RA only talks about crimes committed by officers and directors, not the companies themselves.

Grogran pointed out that to hold a corporation accountable for its crimes long after the fact might be a bit excessive.

Criminal employees and directors can be fired, but a company cannot fire itself.

“Does that means for the next hundred years ICANN or no other corporation should do business with them?” he said.

ICANN Compliance probing Hunger Games domain

ICANN’s Compliance department is looking into whether Donuts broke the rules by activating a domain name for the forthcoming The Hunger Games movie.

Following up from the story we posted earlier today, ICANN sent DI the following statement:

We are well aware of this issue and are addressing it through our normal compliance resolution process. We attempt to resolve compliance matters through a collaborative informal resolution process, and we do not comment on what happens during the informal resolution phase.

At issue is whether Donuts allowed the movie’s marketers to launch thehungergames.movie before the new gTLD’s mandatory 90-day “controlled interruption” phase was over.

Under a strict reading of the CI rules, there’s something like 10 to 12 days left before Donuts is supposed to be allowed to activate any .movie domain except nic.movie.

Donuts provided the following statement:

This is a significant step forward in the mainstream usage of new domains. One of the core values of the new gTLD program is the promotion of consumer choice and competition, and Donuts welcomes this contribution to the program’s success, and to the promotion of the film. We don’t publicly discuss specific matters related to ICANN compliance.

I imagine what happened here is that Donuts got an opportunity to score an anchor tenant with huge visibility and decided to grasp it with both hands, even though distributor Lion’s Gate Entertainment’s (likely immovable) launch campaign schedule did not exactly chime with its own.

It may be a technical breach of the ICANN rules on name collisions — which many regard as over-cautious and largely unnecessary — but it’s not a security or stability risk.

Of course, some would say it also sets a precedent for other registries to bend the rules if they score big-brand backing in future.