Blow to domainers as Arab center approved to settle cybersquatting disputes

ICANN has approved a new UDRP resolution provider, the first to be based in the Arab region, despite the objections of domainers.

The Arab Center for Dispute Resolution will now be able to service UDRP complaints. But it won’t be bound to an ICANN contract, as had been demanded by the Internet Commerce Association and others.

The ACDR was approved by the ICANN board last week, almost three years after it originally applied for the privilege.

The board said in its rationale that the move would be good for geographic diversity and that its rigorous community review process highlighted community accountability.

On the issue of UDRP provider contracts, it merely noted:

commenters suggested that ICANN develop contracts with each of its UDRP providers as a means to require uniformity among providers. Contracts have never been required of UDRP providers.

…

the proposal now includes an affirmative recognition that if ICANN imposes further requirements on providers, the ACDR will follow those requirements

The ACDR will come as a knock to the ICA, which recently celebrated the fact that ICANN intends to have formal contracts with providers of Uniform Rapid Suspension services.

NAF prices URS at $375 to $500 per case

The National Arbitration Forum has released its price list for Uniform Rapid Suspension complaints, saying that the cheapest case will cost $375.

That’s for cases involving one to 15 domains. Prices increase based on the number of domains in the filing, capped at $500 for cases involving over 100 names.

The prices are within the range that ICANN had asked of its URS providers.

Some potential URS vendors had argued that $500 was too low to administer the cases and pay lawyers to act as panelists, but changed their tune after ICANN opened up an RFP process.

NAF’s price list also includes response fees of $400 to $500, which are refundable to the prevailing party. There are also extra fees for cases involving more than one panelist.

The prices are found in the NAF’s Supplemental Rules for URS, which have not yet been given the okay by ICANN. NAF expects that to come by July 1.

ICANN has found a sub-$500 URS provider

ICANN has picked a provider for its Uniform Rapid Suspension anti-cybersquatting service, one that’s willing to manage cases at under $500 per filing.

The news came from new gTLD program manager Christine Willett during webcast meetings this week.

“We have identified a provider for the URS who’s going to be able to provide that service within the target $300 to $500 filing fee price range. We’re in the process of formalizing that relationship,” she said last night.

The name of the lucky provider has not yet been revealed — Willett expects that news to come in February — but it’s known that several vendors were interested in the gig.

URS is a complement to the existing UDRP system, designed to enable trademark owners to execute quick(ish) takedowns, rather than transfers, of infringing domain names.

ICANN found itself in a bit of a quandary last year when UDRP providers WIPO and the National Arbitration Forum said they doubted it could be done for the target fee without compromising registrant rights.

But a subsequent RFP — demanded by members of the community — revealed several providers willing to hit the sub-$500 target.

ICANN expects to approve multiple URS vendors over time.

New gTLD “strawman” splits community

The ICANN community is split along the usual lines on the proposed “strawman” solution for strengthening trademark protections in the new gTLD program.

Registrars, registries, new gTLD applicants and civil rights voices remain adamant that the proposals — hashed out during closed-door meetings late last year — go too far and would impose unreasonable restrictions on new gTLDs registries and free speech in general.

The Intellectual Property Constituency and Business Constituency, on the other hand, are (with the odd exception) equally and uniformly adamant that the strawman proposals are totally necessary to help prevent cybersquatting and expensive defensive registrations.

These all-too-predictable views were restated in about 85 emails and documents filed with ICANN in response to its initial public comment period on the strawman, which closed last night.

Many of the comments were filed by some of the world’s biggest brand owners — many of them, I believe, new to the ICANN process — in response to an International Trademark Association “call to action” campaign, revealed in this comment from NCS Pearson.

The strawman proposals include:

• A compulsory 30-day heads-up window before each new gTLD starts its Sunrise period.
• An extension of the Trademark Claims service — which alerts trademark owners and registrants when a potentially infringing domain is registered — from 60 days to 90 days.
• A mandatory “Claims 2″ service that trademark owners could subscribe to, for an additional fee, to receive Trademark Claims alerts for a further six to 12 months.
• The ability for trademark owners to add up to 50 confusingly similar strings to each of their Trademark Clearinghouse records, provided the string had been part of a successful UDRP complaint.
• A “Limited Preventative Registration” mechanism, not unlike the .xxx Sunrise B, which would enable trademark owners to defensively register non-resolving domains across all new gTLDs for a one-off flat fee.

Brand owners fully support all of these proposals, though some companies filing comments complained that they do not go far enough to protect them from defensive registration costs.

The Limited Preventative Registration proposal was not officially part of the strawman, but received many public comments anyway (due largely to INTA’s call-to-action).

The Association of National Advertisers comments were representative:

an effective LPR mechanism is the only current or proposed RPM [Rights Protection Mechanism] that addresses the critical problem of defensive registrations in the new Top Level Domain (gTLD) approach. LPR must be the key element of any meaningful proposal to fix RPMs.

Others were concerned that the extension to Trademark Claims and proposed Claims 2 still didn’t go far enough to protect trademark rights.

Lego, quite possibly the most aggressive enforcer of its brand in the domain name system, said that both time limits are “arbitrary” and called for Trademark Claims to “continue indefinitely”.

It’s pretty clear that even if ICANN does adopt the strawman proposals in full, it won’t be the end of the IP community’s lobbying for even stronger trademark protections.

On the other side of the debate, stakeholders from the domain name industry are generally happy to embrace the 30-day Sunrise notice period (many will be planning to do this in their pre-launch marketing anyway).

A small number also appear to be happy to extend Trademark Claims by a month. But on all the other proposals they’re clear: no new rights protection mechanisms.

There’s a concern among applicants that the strawman proposals will lead to extra costs and added complexity that could add friction to their registrar and reseller channel and inhibit sales.

The New TLD Applicant Group, the part of the Registries Constituency representing applicants for 987 new gTLDs, said in its comments:

because the proposals would have significant impact on applicants, the applicant community should be supportive before ICANN attempts to change such agreements and any negative impacts must be mitigated by ICANN.

There’s a concern, unstated by NTAG in its comments, that many registrars will be reluctant to carry new gTLDs at launch if they have to implement more temporary trademark-protection measures.

New registries arguably also stand to gain more in revenue than they lose in reputation if trademark owners feel they have to register lots of domains defensively. This is also unstated.

NTAG didn’t say much about the merits of the strawman in it comments. Along with others, its comments were largely focused on whether the changes would be “implementation” or “policy”, saying:

There can be no doubt that the strawman proposal represents changes to policy rather than implementation of decided policy.

If something’s “policy”, it needs to pass through the GNSO and its Policy Development Process, which would take forever and have an uncertain outcome. Think: legislation.

If it’s “implementation”, it can be done rather quickly via the ICANN board. Think: executive decision.

It’s becoming a bit of a “funny cause it’s true” in-joke that policy is anything you don’t want to happen and implementation is anything you do.

Every comment that addresses policy vs implementation regarding the strawman conforms fully to this truism.

NTAG seems to be happy to let ICANN mandate the 30-day Sunrise heads-up, for example, even though it would arguably fit into the definition of “policy” it uses to oppose other elements of the strawman.

NTAG, along with other commenters, has rolled out a “gotcha” mined from a letter then-brand-new ICANN CEO Fadi Chehade sent to the US Congress last September.

In the letter, Chehade said: “ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service.”

I’m not sure how much weight the letter carries, however. ICANN could easily argue that its strawman negotiations mean any eventual decision to extend Claims was not “unilateral”.

As far as members of the the IPC and BC are concerned, everything in the strawman is implementation, and the LPR proposal is nothing more than an implementation detail too.

The Coalition for Online Accountability, which represents big copyright holders and has views usually in lock-step with the IPC, arguably put it best:

The existing Rights Protection Mechanisms, which the Strawman Solution and the LPR proposal would marginally modify, are in no way statements of policy. The RPMs are simply measures adopted to implement policies calling for the new gTLD process to incorporate respect for the rights (including the intellectual property rights) of others. None of the existing RPMs is the product of a PDP. They originated in an exercise entitled the Implementation Recommendation Team, formed at the direction of the ICANN Board to recommend how best to implement existing policies. It defies reason to assert that mechanisms instituted to implement policy cannot now be modified, even to the minimal extent provided in the current proposals, without invoking the entire PDP apparatus.

Several commenters also addressed the process used to create the strawman.

The strawman emerged from a closed-doors, invitation-only event in Los Angeles last November. It was so secretive that participants were even asked not to tweet about it.

You may have correctly inferred, reading previous DI coverage, that this irked me. While I recognize the utility of private discussions, I’m usually in favor of important community meetings such as these being held on the public record.

The fact that they were held in private instead has already led to arguments among even those individuals who were in attendance.

During the GNSO Council’s meeting December 20 the IPC representative attempted to characterize the strawman as a community consensus on what could constitute mere implementation changes.

He was shocked — shocked! — that registrars and registries were subsequently opposed to the proposals.

Not being privy to the talks, I don’t know whether this rhetoric was just amusingly naive or an hilariously transparent attempt to capitalize on the general ignorance about what was discussed in LA.

Either way, it didn’t pass my sniff test for a second, and contracted parties obviously rebutted the IPC’s take on the meeting.

What I do know is that this kind of pointless, time-wasting argument could have been avoided if the talks had happened on the public record.

Twitter files UDRP over twitter.org

Twitter has filed a cybersquatting complaint over the domain name twitter.org, which is currently being used for one of those bogus survey scam sites.

The domain has been registered since October 2005 — six months before Twitter was created — but appears to have changed hands a number of times since then.

It’s been under Whois privacy since mid-2011, but the last available unprotected record shows the domain registered to what appears to be Panama-based law firm.

Hiding ownership via offshore shell companies is a common tactic for people cybersquatting high-profile brands.

The UDRP complaint, which looks like a slam-dunk to me, has been filed with WIPO.