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War of words over .jobs “breach” claims

Employ Media and ICANN have come to blows again over ICANN’s threat to shut down the .jobs registry for allegedly selling domain names in breach of its Charter.

Both parties are currently talking through their outside counsel, and the possibility of litigation has raised its head in public for the first time.

In the latest set of correspondence published by ICANN, Employ Media sharply (and ironically) criticized ICANN’s decision to publish an earlier set of correspondence on its web site.

The earlier email exchange, which I blogged about here, revealed that ICANN had asked the company to amend its Charter.

Two days later, Employ Media’s lawyers wrote to ICANN’s lawyers to express disappointment with the decision to post these emails, questioning ICANN’s commitment to good faith negotiations.

In light of this apparent bad faith action on ICANN’s part, Employ Media is questioning whether any hope remains for a full and fair exchange of ideas regarding a resolution of its dispute with ICANN.

[ICANN has] substantially hindered Employ Media’s ability to engage in productive and honest negotiations: all future communications will necessarily be more guarded and less open, given the expectation that they will be published to a larger audience

ICANN and Employ Media are currently in a “cooperative engagement” process – a less formal way to resolve their dispute than heading to an arbitration forum or court.

ICANN claims the registry is breaking its Charter commitments to the human resources industry by allocating tens of thousands of .jobs domain names to the Universe.jobs project, which is run by a partner, the DirectEmployers Association.

Independent jobs boards, represented by the the .JOBS Charter Compliance Coalition, believe that Universe.jobs is unfair and not compliant with Employ Media’s own policies.

Employ Media’s latest letter (pdf), which it demanded ICANN publish, drops hints about some of the behind-the-scenes talks (with my emphasis):

Had we known that any part of our communication was to be published, we would have certainly memorialized, in writing, your statements to us that ICANN very much wants to avoid an arbitration over this dispute, and that ICANN was therefore willing to agree to a process for approving a Charter amendment in order to do so. We would also have memorialized our positions, including our position that a Charter amendment is neither necessary nor desirable, but that we were considering acceding to ICANN’s request solely in the hopes of avoiding arbitration

ICANN’s lawyers’ response (pdf), sent April 26, says ICANN was merely fulfilling its transparency obligations by informing the community about the extension of the talks deadline.

They also said that the Employ Media should stop pretending to be surprised that ICANN issued the breach notice and is now asking for a Charter amendment.

ICANN further accused the registry’s lawyers of legal “posturing” which was “seemingly geared solely towards use in future litigation”.

Employ Media was due to deliver a proposed amendment to its Charter by yesterday. ICANN has said it will not take any further actions based on its breach notice until May 6.

Registrar threatened over “stolen” Facebook domain

Kevin Murphy, April 21, 2011, Domain Registrars

ICANN has threatened to terminate the domain name registrar EuroDNS for failing to transfer a typo domain lost in a UDRP case to Facebook.

But EuroDNS says it is subject to a court case in its home country, Luxembourg, which has prevented it handing over the name.

The original registrant of facebok.com lost a slam-dunk UDRP case back in September 2010. He didn’t even bother defending the case.

But over half a year later, he’s still in control of the domain, and he’s using it to recruit folk into a shady-looking (but probably legal) subscription text messaging service.

EuroDNS is the registrar of record for the domain, and like all registrars is responsible for transferring domains lost under the UDRP to the winning party, in this case Facebook.

ICANN’s compliance department – my guess is under pressure from Facebook – has therefore threatened EuroDNS with termination unless it hands over the domain in the next three weeks.

This is noteworthy because EuroDNS isn’t the kind of tiny, fringe outfit ICANN usually files compliance notices against. It’s a generally respectable business. It even shows up to ICANN meetings.

EuroDNS deputy general counsel Luc Seufer tells me that the company was fully prepared to transfer the domain – it had even sent the authorization codes to Facebook – but it found itself on the receiving end of a lawsuit claiming that the domain had been “stolen”.

Somebody in Luxembourg, it seems, has sued to reclaim an obvious typo domain that’s probably going to be transferred to Facebook anyway.

“We are therefore in an incredible position where if we transfer the name before the judge’s ruling we will be accountable in our own country and if we don’t transfer the name we are in breach of the [Registrar Accreditation Agreement],” said Seufer.

The Luxembourg case has not yet made it to court, hence EuroDNS’s delay, he said. ICANN is aware of the action, and has seen the court papers, he said.

According to ICANN’s breach notice (pdf), the only way for EuroDNS to avoid its obligation under the UDRP is to show proof that the original registrant has sued Facebook to keep the domain.

But the case in question was filed by a third party claiming to be the rightful owner of the domain, not the original registrant. EuroDNS seems to be trapped between a rock and a hard place.

Seufer said the company is prepared to hand over the domain, adding:

Should we simply ignore a judiciary court case against us in our own country – that could prevent us from operating the transfer since it is was asked of the judge – because of our RAA’s obligations?

The domain in question, facebok.com, currently redirects to a series of sites asking visitors to fill in a survey to win a Mac.

Those who are duped by it are actually signing up to a text service that costs, in the UK, £4.50 ($7.40) per week.

ICANN names compliance chief

Kevin Murphy, March 15, 2011, Domain Policy

ICANN has found itself a new senior director of contractual compliance, nine months after the post was vacated.

Maguy Serad, most recently with Nissan North America, starts April 4 at ICANN’s headquarters in Marina Del Rey, California.

She’s apparently a Black Belt Six-Sigma (don’t worry, that’s a real thing), Liberian by birth and currently a Lebanese citizen. She speaks English, French and Arabic.

ICANN has also hired Colombian intellectual property lawyer Carlos Alvarez as a new contractual compliance manager/auditor. He has a history in initiatives fighting software piracy and child pornography.

The timing of the hires means ICANN has probably dodged a bullet.

There have been grumblings in some parts of the ICANN community about the vacant compliance posts for some months, and some stakeholders here at the San Francisco meeting planned to make their feelings known to ICANN’s senior staff and board.

ICANN’s compliance team is responsible for monitoring and enforcing ICANN’s contracts with registries and registrars, which will become a lot more important when the new top-level domains program kicks off.

Wanted: official ICANN tweeter

Kevin Murphy, February 19, 2011, Domain Policy

ICANN is looking to beef up its media relations department, and has put out its feelers for someone to take over its Twitter and Facebook accounts.

The organization has posted a job opening to its hiring page for a media and marketing coordinator, reporting to director of marketing and outreach Scott Pinzon and head flack Brad White.

Responsibilities include writing “blogs, tweets, and status updates on ICANN’s behalf for Twitter, Facebook, LinkedIn, and other platforms”.

I believe that currently @ICANN is usually authored by Pinzon.

The role also includes more traditional media relations activities, such as writing press releases and fielding calls from journalists and bloggers.

ICANN has also started looking to fill an opening for a publications manager for its marketing department. I believe both positions are new.

Also of note: ICANN is no longer advertising for a compliance director, raising hopes in some quarters that it has finally found a replacement for David Giza, who left unexpectedly last July. UPDATE: it’s back.

ICANN terminates another registrar

Kevin Murphy, February 14, 2011, Domain Registrars

Another tiny domain name registrar has been given its marching orders by ICANN.

Best Bulk Register, which looks to have only a few hundred domains under management, will be shut down March 4, according to a letter (pdf) from ICANN’s compliance department.

The company had failed to pay over $10,000 in fees, and was not providing Whois services as required by the Registrar Accreditation Agreement, according to ICANN.

The registrar’s web site does not currently appear to resolve.

Best Bulk has until tomorrow to pick a registrar to take over its domains, or ICANN will pick one for it.