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URS arrives in three legacy gTLDs

Kevin Murphy, October 2, 2015, Domain Policy

The legacy gTLDs .cat, .pro and .travel will all be subject to the Uniform Rapid Suspension policy from now on.

Earlier this week, ICANN approved the new Registry Agreements, which are based on the new gTLD RA and include URS, for all three.

URS is an anti-cybersquatting policy similar to UDRP. It’s faster and cheaper than UDRP but has a higher burden of proof and only allows domains to be suspended rather than transferred.

The inclusion of the policy in pre-2012 gTLDs caused a small scandal when it was revealed a few months ago.

Critics, particularly the Internet Commerce Association, said that URS (unlike UDRP) is not a Consensus Policy and therefore should not be forced on registries.

ICANN responded that adding URS to the new contracts came about in bilateral negotiations with the registries.

The board said in its new resolutions this week:

the Board’s approval of the Renewal Registry Agreement is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so. In the case of .CAT, inclusion of the URS was developed as part of the proposal in bilateral negotiations between the Registry Operator and ICANN.

The concern for ICA and others is that URS may one day be forced into the .com RA, putting domainer portfolios at increased risk.

GoDaddy did not cybersquat the Oscars, court finds

Kevin Murphy, September 16, 2015, Domain Registrars

In a landmark decision, a US court has ruled that GoDaddy’s practice of parking unused domains with Google advertising does not count as cybersquatting.

The Academy of Motion Picture Arts and Sciences, which runs the annual Oscars awards, sued the registrar five years ago after seeing that GoDaddy had parked hundreds of names containing its mark.

Under UDRP, registrar parking is controversially often taken as a sign of the registrants bad faith by panelists.

But the California court ruled that GoDaddy’s actions did not amount to trademark infringement due to the unique circumstances of the case.

GoDaddy did not select the advertisements — Google’s algorithms did — nor did it manually review which domains were being parked.

Domain Name Wire has a pretty good breakdown of the key points in the 129-page ruling.

What’s going to be interesting is whether UDRP panelists — which sometimes take their cues from US legal precedent — will start to adjust to view registrar parking in a more benign way when judging registrant bad faith.

OpenTLD suspension reinstated

Kevin Murphy, August 25, 2015, Domain Registrars

ICANN has suspended OpenTLD’s ability to sell gTLD domain names for the second time, following an arbitration ruling yesterday.

OpenTLD, part of the Freenom group, will not be able to sell gTLD names or accept inbound transfers from tomorrow — about two hours from now — to November 24, according to ICANN’s web site.

That doesn’t give the company much time to make the required changes to its web site and registrar systems.

As reported earlier today, OpenTLD lost its battle to have the suspension frozen in arbitration with ICANN.

The arbitrator agreed with ICANN Compliance that the registrar cybersquatted its competitors and has not yet done enough to ensure that it does not do the same again in future.

Yes, you are dangerous, arbitrator tells “cybersquatter” OpenTLD

Kevin Murphy, August 25, 2015, Domain Registrars

Free domains provider OpenTLD has been dealt a crushing blow in its fight against the suspension of its Registrar Accreditation Agreement.

ICANN is now free to suspend OpenTLD’s RAA, due to the company’s “pattern of cybersquatting”, following a decision by an independent arbitrator.

The arbitrator ruled yesterday that OpenTLD’s suspension should go ahead, because “OpenTLD’s continued operation could potentially harm consumers and the public interest.”

The 90-day suspension was imposed by ICANN Compliance in June, after it became aware that OpenTLD had lost two UDRP cases filed by competing registrars.

WIPO panelists found in both cases that the company had infringed its competitors’ trademarks in order to entice resellers over to its platform.

The suspension was put on hold voluntarily by ICANN, pending the arbitrator’s ruling on OpenTLD’s request for emergency stay. That request was conclusively rejected yesterday.

The arbitrator wrote:

the Arbitrator has little doubt that the multiple abusive name registrations made by OpenTLD, each of which included the registered mark of a competing domain name registrar and OpenTLD’s subsequent use of those domains… formed part of a broad concerted effort by OpenTLD calculated to deliberately divert name registration business, otherwise destined for competing domain name registrars… away from those registrars to OpenTLD instead.

He wrote that OpenTLD needs to put a process in place to prevent similarly cybersquatty behavior in future, rather than just making a commitment to changing its ways.

It’s pretty harsh stuff.

OpenTLD said recently that a suspension would “devastate” and “decimate” its business, due to the intertwining of its massive ccTLD business and rather smaller gTLD platform, but the arbitrator thought a technology workaround would be rather simple to implement.

No RAA means no gTLD sales and no inbound transfers.

OpenTLD is part of Freenom, which runs .tk and other free-to-register ccTLDs.

The company’s only ray of sunlight in the ruling is that the arbitrator said the costs of the proceeding should be split equally, not all falling on OpenTLD’s shoulders.

ICANN has not yet re-instituted the suspension, but it could come soon.

The full ruling can be read here.

OpenTLD says suspension would “devastate” its business

Kevin Murphy, August 14, 2015, Domain Registrars

OpenTLD has fired off its newest salvo in its ongoing cybersquatting dispute with ICANN, saying the ICANN-imposed suspension would “devastate” its business.

The company has also addressed many of ICANN’s cybersquatting allegations, while failing to deny it squatted on two competitors’ trademarks.

In its latest arbitration filing (pdf), OpenTLD said: “Quite simply, the suspension of OpenTLD’s ability to offer gTLD registrations and inbound transfers would decimate its unique business model.”

ICANN had argued that the suspension of its registrar accreditation was no big deal because its gTLD domain base is measured in the low thousands, whereas the total domains under management of parent Freenom, which offers free domains in .tk and other ccTLDS, is in excess of 25 million.

But OpenTLD said the two businesses as “deeply intertwined” and separating the two would impair its ability to do business.

ICANN is pushing for the suspension because OpenTLD lost two UDRP cases earlier this year. Both were filed by competitors — Key-Systems and NetEarth — who accused the registrar of attempting to lure resellers to its platform by infringing rivals’ trademarks.

ICANN has since followed up by accusing OpenTLD of continuing to cybersquat famous brands, including Google and Facebook, even after the suspension notice was issued. These claims, as I noted last week, are very dubious, however.

In its latest filing, OpenTLD denies that any of those domains — all of which use its privacy service — were registered by itself. It goes so far as to name the actual registrants.

But it fails to deny that it was the true registrant of the Key-Systems and NetEarth domains lost in the UDRP cases.

Rather, it focuses on ICANN’s claims that it committed “cyberflight” by deleting the UDRP’d domains rather than allowing them to be transferred to the trademark owners.

It admits that the domains were deleted but said this was “inadvertent” and that it attempted to transfer them to its competitors later.

OpenTLD wants the threatened suspension stayed.

The case continues. A decision by the arbitration panel is expected August 24.