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Olympic domain watch list shows hundreds of squats, legit names too

Kevin Murphy, May 30, 2012, Domain Policy

Lawyers for the International Olympic Committee have released a list of hundreds of domain names allegedly cybersquatting the Olympic trademark, all registered in just a couple of weeks.

But as well as showing that there are hundreds of idiots out there, the list also sheds light on substantial numbers of apparently legitimate uses of the word “olympic” by small businesses.

The insight comes from two weekly zone file monitoring reports, compiled for the IOC by Thomson Compumark, which were circulated to an ICANN working group this week.

There are about 300 domains on the lists. At first glance, it looks like the IOC has a serious problem on its hands.

According to IOC outside counsel Jim Bikoff:

These unauthorized registrations–often for pornographic, phishing, gambling or parked sites–dilute and tarnish the Olympic trademarks, and attempt to exploit for commercial gain the good will created by the Olympic Movement. The unauthorized domains already oblige the IOC and its National Olympic Committees to expend significant amounts of time and money on monitoring and enforcement activities.

Based on a perusal of the lists and a non-exhaustive, non-scientific sampling of the sites the domains lead to, I’d say a comfortable majority are fairly straightforward cases of bad faith.

I couldn’t find any porn or phishing, but most of the domains I checked either do not resolve or resolve to placeholder or parking pages. If they resolved to a developed site, it was usually a splog.

However, a non-trivial minority of the domains are being used by apparently legitimate small businesses that have absolutely no connection to sports whatsoever.

Check out, for example, olympic-grill.com, olympicautorecycling.com, olympicbuildersgc.com, olympicco.com, olympiclandscapes.com, olympicrollingshutters.com, or olympicpromotions.info.

These are domains all apparently registered in the same week, and all appear to be kosher uses of domain names (though the logo choice at olympicpromotions.info is just begging for trouble).

A fair number of the domains on the list appear to be re-registrations of domains that have previously expired, judging by historical Whois records.

One would imagine that if there was value in cybersquatting a nice-looking domain such as 2012olympicstickets.com, for example, the former squatter probably wouldn’t have let it go.

Perhaps the “best” typo I found on the list, ollympics.com, is registered to a British guy called Olly. Assuming that’s his actual name, it seems like pretty good evidence of good faith.

The IOC, incidentally, has only ever filed 15 UDRP cases, on average fewer than two per year, so claims about spending “significant amounts” on enforcement are questionable.

Olympics wastes more money on ICANN nonsense

Kevin Murphy, May 14, 2012, Domain Policy

International Olympic Committee lawyers have lodged an official appeal of ICANN’s latest decision to not grant it extra-extra special new gTLD protection.

The [O]Lympic Cafe, close to both DI headquarters and the London 2012(TM) Olympic(TM) Park, which apparently found a novel solution when the IOC's lackeys came knocking.The IOC last week filed a Reconsideration Request asking the ICANN board to rethink an April 10 decision that essentially ignored the latest batch of “.olympic” special pleading.

As previously reported, ICANN’s GNSO Council recently spent a harrowing couple of meetings trying to grant the Olympic and Red Cross trademarks even more protection than they already get.

Among other things, the recommendations would have protected strings confusingly similar to “.olympic” at the top level in the new gTLD program.

But a month ago the ICANN board of directors’ newly created, non-conflicted new gTLD program committee declined to approve the GNSO Council’s recommendations.

The committee pointed out in its rationale that the application window is pretty much closed, making changes to the Applicant Guidebook potentially problematic:

a change of this nature to the Applicant Guidebook nearly three months into the application window – and after the date allowed for registration in the system – could change the basis of the application decisions made by entities interested in the New gTLD Program

It also observed that there was still at that time an open public comment period into the proposed changes, which tended to persuade them to maintain the status quo.

The decision was merely the latest stage of an ongoing farce that I went into much more detail about here.

But apparently not the final stage.

With its Reconsideration Request (pdf), the IOC points out that changes to the Applicant Guidebook have always been predicted, even at this late stage. The Guidebook even has a disclaimer to that effect.

The standard for a Reconsideration Request, which is handled by a board committee, is that the adverse decision was made without full possession of the facts. I can’t see anything in this request that meets this standard.

The IOC reckons the lack of special protections “diverts resources away from the fulfillment of this unique, international humanitarian mission”, stating in its request:

The ICANN Board Committee’s failure to adopt the recommended protection at this time would subject the International Olympic Committee and its National Olympic Committees to costly and burdensome legal proceedings that, as a matter of law, they should not have to rely upon.

Forgive me if I call bullshit.

The Applicant Guidebook already protects the string “.olympic” in over a dozen languages – making it ineligible for delegation – which is more protection than any other organization gets.

But let’s assume for a second that a cybersquatter applies for .olympics (plural) which isn’t specially protected. I’m willing to bet that this isn’t going to happen, but let’s pretend it will.

Let’s also assume that the Governmental Advisory Committee didn’t object to the .olympics application, on the IOC’s behalf, for free. The GAC definitely would object, but let’s pretend it didn’t.

A “costly and burdensome” Legal Rights Objection – which the IOC would easily win – would cost the organization just $2,000, plus the cost of paying a lawyer to write a 20-page complaint.

It has already spent more than this lobbying for special protections that it does not need.

The law firm that has been representing the IOC at ICANN, Silverberg, Goldman & Bikoff, sent at least two lawyers to ICANN’s week-long meeting in Costa Rica this March.

Which client(s) paid for this trip? How much did it cost? Did the IOC bear any of the burden?

How much is the IOC paying Bikoff to pursue this Reconsideration Request? How much has it spent lobbying ICANN and national governments these last few years?

What’s the hourly rate for sitting on the GNSO team that spent weeks coming up with the extra special protections that the board rejected?

How much “humanitarian” cash has the IOC already pissed away lining the pockets of lawyers in its relentless pursuit of, at best, a Pyrrhic victory?

How the world’s biggest brands use new gTLDs

Kevin Murphy, April 18, 2012, Domain Registries

DomainIncite PRO is excited to reveal the results of the domain name industry’s first in-depth study into how the world’s biggest brands use new generic top-level domains.

In March and April 2012, we surveyed the domain name ownership and usage patterns of the world’s 100 most-valuable brands — representing over $1.2 trillion in brand value, according to Interbrand — in six gTLDs introduced since 2001.

As well as confirming the long-held belief that brand owners see little value in defensive registrations — many not even choosing to benefit from residual traffic — the survey also revealed which brands are more likely to develop their sites, which are most vulnerable to cybersquatting, and which appear to care the least about enforcing their brands.

We also examined how “cybersquatters” use the domain names they register, with some surprising results.

Privacy/proxy registration is not nearly as prevalent as many believe, our study found, and a significant portion of registrants have made no effort to monetize the domains they own that match famous brand names.

This extensive, fully illustrated report includes:

A comparison of defensive registration trends across 100 brands in six new gTLDs. How many domains are owned by the respective brands and how many are owned by third parties? How many are reserved by the registry and how many are still available for registration?

A breakdown of usage trends by gTLD in .asia, .biz, .info, .jobs, .mobi and .pro. When brand owners register domains in new gTLDs, how likely are they to develop content on those domains, and what can new gTLD registries do to encourage this desirable behavior?

An analysis of cybersquatting behavior in over 100 domain names registered to entities other than the brand owner. How much do brand owners have to worry about their brands being impaired by damaging behavior such as redirection to competing web sites or porn?

Full survey results. Subscribers have full access to the survey results, which include details of which brand-domains belong to third parties, which exhibit potentially damaging behavior, and which are currently available for registration.

DI PRO subscribers can click here for the full report.

Non-subscribers can learn how to subscribe instantly here.

ICANN reopens defensive registration debate

Kevin Murphy, April 13, 2012, Domain Policy

ICANN’s board of directors wants more policy work done on the problem of defensive domain name registrations.

In a resolution passed at a meeting on Tuesday, the board’s newly created New gTLD Program Committee, made up exclusively of non-conflicted directors, said it:

directs staff to provide a briefing paper on the topic of defensive registrations at the second level and requests the GNSO to consider whether additional work on defensive registrations at the second level should be undertaken

The decision was made following the debate about “defensive” gTLD applications ICANN opened up in February, prompted by a letter from US Department of Commerce assistant secretary Larry Strickling.

That in turn followed the two Congressional hearings in December, lobbied for and won by the Association of National Advertisers and its Coalition for Responsible Internet Domain Oversight.

So this week’s decision is a pretty big win for the intellectual property lobby. It’s managed to keep the issue of stronger second-level trademark protection in new gTLDs alive despite ICANN essentially putting it to bed when it approved the new gTLD program last June.

The GNSO could of course decide that no further work needs to be done, so the champagne corks should probably stay in place for the time being.

At the same meeting on Tuesday, the ICANN board committee voted to disregard the GNSO Council’s recent decision to grand extra protections to the International Olympic Committee, Red Cross and Red Crescent movements. The rationale for this decision has not yet been published.

Three-way legal fight over .eco breaks out

Planet.eco, an emergent .eco gTLD applicant with a trademark on “.eco” is suing two rival applicants for trademark infringement and cybersquatting in a California court.

The company sued DotEco (affiliated with Minds + Machines and Top Level Domain Holdings), along with CEO Fred Krueger, and Canada-based Big Room on March 2.

It’s looking for millions of dollars of damages and an injunction preventing both rival applicants from applying for .eco.

In late March, DotEco filed a counter-suit, alleging that Planet.eco’s .eco trademark was fraudulently obtained and that the company is trying to illegally stifle competition for the .eco gTLD.

That’s the short version. It’s a complex story with a great deal of history and more than a little bogus behavior.

DomainIncite PRO subscribers can read the full DI analysis, along with more PDFs than you could ever possibly need, here.

(Thanks to reader Tom Gilles for the tip)

NAF loses UDRP market share again

Kevin Murphy, April 4, 2012, Domain Policy

If UDRP forum shopping is a real phenomenon, the market share statistics don’t bear it out.

The National Arbitration Forum today announced a sequential decrease in the number of cybersquatting cases it handled in 2011, widening the gap between itself and the World Intellectual Property Organization for at least the second year in a row.

NAF said it handled 2,082 complaints last year, down 4% from 2010. That’s over the same period WIPO saw a 2.5% increase to 2,764 cases.

NAF is occasionally accused of being the more complainant-friendly of the two major UDRP dispute resolution providers, which some say encourages “forum shopping”.

While that may or may not be true in certain fringe cases, it’s certainly not helping NAF win a flood of business. WIPO is still handling more cases, and growing its share while NAF’s shrinks.

As Mike Berkens observed over on The Domains, NAF’s press release attempted a bit of lame spinning, comparing 2011 to 2009 in order to lead with an 18% increase stat.

The release also includes the following quote from director of internet and IP services Kristine Dorrain, which seems to be designed to subtly address the “complainant-friendly” allegations.

Our experience tells us parties, particularly domain name registrants, prefer the National Arbitration Forum because documents are easily accessible in our online portal. Complaint or Response filing is accomplished in just a couple of minutes.

It’s a somewhat irrelevant statement, given that it’s the complainant who gets to choose the venue.

One of NAF’s 2011 highlights was being picked as exclusive provider of Rapid Evaluation Service cases by .xxx manager ICM Registry. It processed 10 RES complaints in 2011.

RES cases, as well as 73 .us cases, were counted in its headline statistics.

ICANN asked to protect the names of body parts

Kevin Murphy, March 28, 2012, Domain Policy

There’s been no shortage of special pleading in relation to ICANN’s new generic top-level domains program, but this has to be the wackiest yet.

The National Health Council, an American advocacy group, has written to ICANN to ask for extra brand protection for the names of body parts, disabiliies and diseases.

Seriously.

NHC president Myrl Weinberg wrote:

Because it is not possible to trademark a body part (e.g., lung, liver) or a disease category (e.g., arthritis, diabetes), it is difficult for the patient advocacy community to protect the use of such words.

We strongly urge ICANN to set forth a process that investigates the potential for misunderstanding, confusion, and harm when awarding gTLDs utilizing the name of a body part or disease/disability.

The letter was inexplicably sent to ICANN’s public comment period on the Universal Acceptance of TLDs. Needless to say it’s completely off-topic, not to mention extremely late.

What seems to have happened is that the NHC’s members received a briefing recently from an ICANN staffer as part of its outreach program and what they learned gave them the williesTM.

WIPO releases 2011 cybersquatting stats

Kevin Murphy, March 6, 2012, Domain Policy

WIPO handled more UDRP cases covering more domain names in 2011 than in any other year, but its numbers do not paint a very convincing picture of the cybersquatting landscape.

The organization today announced that it handled 2,764 UDRP cases covering 4,781 domain names last year. The number of cases was up 2.5% over 2010.

The number of domain names covered by these cases was up by 9.4% – an additional 414 domains.

It’s basically meaningless data if you’re looking to make a case that cybersquatting is on the increase.

Obviously, while WIPO is the market-share leader, it is not the only UDRP provider. It sees a representative but non-exhaustive sample of cases.

While UDRP is the standard dispute mechanism for all ICANN-contracted gTLDs, WIPO also has side deals with ccTLD registries to look after cybersquatting cases in their zones.

As WIPO has added more ccTLD deals, it has become harder to make apples-to-apples comparisons year over year.

Based on WIPO’s own records, it received 2,323 UDRP complaints about domains in gTLDs last year, up by 28 cases from 2010, a 1.2% increase.

Given that the number of domains registered in gTLDs increased by at least 8% between January 1 and November 30 2011, cybersquatting seems to be actually on the decrease in relative terms.

And given that the number of UDRP cases filed is so piddlingly small, a single obsessive-compulsive complainant (ie, Lego) can skew the results.

Lego spammed WIPO with more than 160 complaints in 2011. As a result, Denmark is the last year’s fourth-biggest filer after the US, France and UK, according to WIPO, with 202 complaints.

So, if you see any company using these WIPO numbers to rage about cybersquatting in press releases, ICANN comments or Congressional hearings, give them a slap from me. Thanks.

Here’s a table of WIPO’s caseload from 2000 to 2011.

YEARCASESDOMAINS
200018573760
200115572465
200212072042
200311001774
200411762599
200514563312
200618242806
200721563545
200823293958
200921074685
201026964367
201127644781

Sadly, the number of UDRP complaints will never reflect the actual amount of cybersquatting going on, particularly when cybersquatters only need to price their domains more cheaply than the cost of a UDRP complaint in order to stay off the radar.

WIPO’s data does raise some interesting questions about the geographic distribution of complainants and respondents, however.

Unsurprisingly, cybersquatting was found to be big business in China, the second most-common home nation, after the US, for respondents. No UDRPs filed with WIPO originated there, however.

Surprisingly, Australia is ranked fourth on the list of countries most likely to harbor alleged squatters, with 171 respondents. But Australia was 13th in terms of complainant location, with just 39 cases.

Read more WIPO data here.

IP lobby files last-minute new gTLD demands

Kevin Murphy, March 6, 2012, Domain Policy

ICANN’s ongoing public comment period into the “perceived” need for “defensive” gTLD applications produced a raft of demands from the intellectual property community, not all of which relate to the subject matter at hand.

With less than one month left before ICANN closes its new gTLD application window, many IP stakeholders have suggested ways to reduce the need to file a defensive applications, with many disputing its characterization as “perceived”. As far as many brands are concerned, there’s nothing “perceived” about it.

Give the imminent closure of the window, a large number of commenters have also suggested ways to reduce the need for defensive domain name registrations at the second level. While debates about trademark protection in domain names will never end, this is likely to be the IP community’s last chance to officially comment before April 12.

Some comments expressed a desire for relatively small tweaks to the existing Rights Protection Mechanisms, others said that entirely new RPMs should be created. In most cases, the proposed amendments heavily favor certain trademark owners at the expense of other registrants, including other trademark owners.

Some suggestions from the IP community would, if adopted, directly impact the business models of new gTLD registries and registrars. Others could be expected to significantly increase the risk that the new gTLD application process will be gamed at a large scale.

This DomainIncite PRO analysis is organized by issue, addressing concepts that emerged from multiple comments. In each case, we look at the likely counter-arguments to the proposals, explore the potential impact on applicants and the new gTLD program and assess the likelihood of each proposal becoming reality.

DI PRO subscribers can read the full analysis here.

Olympic gTLD showdown coming in Costa Rica

Kevin Murphy, March 5, 2012, Domain Policy

While the ICANN public meeting in Dakar last October was notable for a heated clash between governments and the domain name industry, the Costa Rica meeting next week may be characterized by these two recent enemies uniting against a common enemy.

ICANN staff.

Members of the Generic Names Supporting Organization, the Governmental Advisory Committee and the At-Large Advisory Committee all appear to be equally livid about a last-minute new gTLD program surprise sprung by ICANN late last week.

The hitch relates to the ongoing saga about special brand protection for the International Olympic Committee, Red Cross and Red Crescent movements in the new gTLD program.

The need to develop rights protection mechanisms for essentially just three organizations has always been a slightly ridiculous and unnecessary premise, but recently it has assumed symbolic proportions, cutting to the heart of the multistakeholder model itself.

Now, following a perplexing eleventh-hour ICANN mandate, Costa Rica is likely to see some fierce debate about the ICANN decision to kick off the new gTLD program last June.

We expect the GNSO and the GAC to show a relatively united front against ICANN staff on the IOC/RC issue. The At-Large Advisory Committee is also set to throw a bomb or two.

There’s even an outside chance that upcoming talks could wind up adding delay to the next phase of the new gTLD program itself…

The full text of this pre-ICANN 43 policy analysis is available to DomainIncite PRO subscribers here.