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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.

OpenTLD cybersquatting fight escalates

Kevin Murphy, August 7, 2015, Domain Registrars

ICANN has accused OpenTLD, the registrar arm of Freenom, of cybersquatting famous brands even after it was threatened with suspension.

The claims may be worrying for some registrars as ICANN may in fact be holding the registrar responsible for the actions of its proxy service customers.

OpenTLD was suspended by ICANN in early July, after two UDRP rulings found the company had cybersquatted rival registrars’ brands in order to poach customers.

The suspension was lifted after just a few hours when OpenTLD took ICANN to arbitration under the terms of its Registrar Accreditation Agreement.

In ICANN’s latest arbitration filing, the organization’s lawyers argue that the suspension should not be stayed, because OpenTLD has been shown to engage in a pattern of cybersquatting.

Like the original suspension notice, the filing cites the two UDRP losses, along with footnotes indicating that as many as seven competing brands had been cybersquatted.

But ICANN has now also escalated its allegations to bring in non-registrar brands where it’s far from clear that OpenTLD is the actual registrant.

ICANN’s filing states:

even a brief review of the domain names in OpenTLD’s portfolio demonstrates that OpenTLD appears to be continuing to engage in bad faith and abusive registration practices. As of 3 August 2015, there were at least 73 gTLD domains registered to Stichting OpenTLD WHOIS Proxy (which is OpenTLD’s proxy service) that are identical to or contain the registered trademarks or trade names of third parties, including, by way of small example, the domain names barnesandnoble.link, sephora.bargains, at-facebook.com, ebaybh.com, googlefreeporn.com, global-paypal.com, hotmailtechnicalsupport.com, and secure-apple.com. ICANN is not aware of any legitimate interest or right that OpenTLD has to use these third-party trademarks and trade names.

Even more concerning is the fact that at least 14 gTLD domain names that contain the registered trademarks or trade names of third parties were registered by OpenTLD’s proxy service after the 23 June 2015 Suspension Notice was issued to OpenTLD, further demonstrating that OpenTLD’s overtures of “cooperation” ring hollow.

To be clear, that’s ICANN accusing OpenTLD of cybersquatting because some of the domains registered via its privacy service appear to be trademark infringements.

It’s basically equating infringing use of OpenTLD’s proxy service (such the registration of barnesandnoble.link) with the infringing behavior of OpenTLD itself (such as the registration of godaddy.cf, a February 2015 screenshot of which can be seen below.)

This may just be legal posturing, but I imagine many other registrars would be worried to know that they could have their accreditation suspended for cybersquatting simply because some of their privacy customers are cybersquatters.

I’d wager that every proxy/privacy service available has been used by blatant cybersquatters at one time or another.

Filings in the arbitration case can be found here.

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.

First example of .sucks cybersquatting?

The .sucks domain has been generally available for a little over a week now, and I’ve found what may be the first example of somebody attempting to sell one to a brand owner.

amherstcollege.sucks is one of only a handful on non-registry-owned .sucks domains to have a web site already indexed by Google.

The site solicits commentary about Amherst College — a liberal arts university in Massachusetts that owns a US trademark on “Amherst” — but does not yet publish any such criticism.

However, the phrases “AMHERSTCOLLEGE.SUCKS DOMAIN NAME + WEBSITE IS FOR SALE” and “IF YOU ARE INTERESTED IN PURCHASING THIS DOMAIN AND WEBSITE CONTACT US” appear prominently on the bare-bones WordPress blog currently running at the site.

The Whois record shows “THIS DOMAIN IS FOR SALE” as the registrant organization.

Under the UDRP, offering a domain for sale is usually considered enough to meet the “bad faith” part of the three-prong cybersquatting test.

I doubt it’s the only example of a .sucks domain matching a brand currently listed for sale by a third-party registrant, but it is the first one showing up in Google.

It’s still early days; the other .sucks domains with sites and a Google presence are a mix of redirects, mirroring and placeholders.

Microsoft-owned microsoft.sucks is one of them. It redirects to a Bing search results page.

The $250-a-year .sucks gTLD, managed by Vox Populi registry, currently has fewer than 5,700 domains in its zone file. Growth has ground almost to a halt over the last few days.

Posh Spice takes down porn site

Kevin Murphy, June 24, 2015, Domain Policy

Former Spice Girl Victoria Beckham has used UDRP to take down a porn site bearing her name.

victoria-beckham.biz was owned by a Ukrainian, who had set up a site “at which adult and/or pornographic images and services are offered”, according to the UDRP panelist.

It was pretty much a slam-dunk case.

While not all celebrities own trademarks on their names, Beckham does. The squatter, who registered the name in December 2014, did not even attempt a response.

Based on archived screenshots and Whois records, it looks like victoria-beckham.biz has been around as a rather harmless fan site since about 2006.

It was only after the domain expired late last year and was re-registered did it become a porn site, attracting the attention of Beckham’s lawyers.

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.

Obama, Apple, cancer and Taylor Swift’s cat top lists of most searched-for .sucks domains

You’ve got to hand it to .sucks registry Vox Populi.

The pricing may be “exploitative” and “predatory”, as the intellectual property community believes, but damn if the the company doesn’t know how to generate headlines.

Vox Pop has just added a new ticker stream to its web site, fingering the 50 most sucky celebrities, politicians, companies, social ills and abstract concepts.

The lists have been compiled from “more than a million” searches for .sucks domains that Vox Pop has seen pass through its system, according to CEO and veteran PR man John Berard.

For some reason, TayloySwiftsCat.sucks is the most searched-for in the “Personalities” category.

I’m guessing this relates to a meme that has yet to reach my isolated, middle-aged, non-country-music-loving corner of the world.

Whatever the cat did to earn this ire, it’s presumably equivalent to what Barack Obama, Apple, cancer and just life generally has done to searchers on the .sucks web site.

Here are the lists of most-searched-for terms, as it stands on the .sucks web site right now.

Top Personalities:

  • 1. TaylorSwiftsCat
  • 2. JustinBeiber
  • 3. KevinSpacey
  • 4. Oprah
  • 5. KimKardashian
  • 6. KayneWest
  • 7. GuyFieri
  • 8. TomBrady
  • 9. DonaldTrump
  • 10. OneDirection

Catch Phrases:

  • 1. Life
  • 2. YourMomma
  • 3. This
  • 4. Everyone
  • 5. MyJob
  • 6. MyLife
  • 7. Reality
  • 8. YouKnowWhat
  • 9. Who
  • 10. College

Causes:

  • 1. Cancer
  • 2. Technology
  • 3. Obesity
  • 4. Racism
  • 5. Depression
  • 6. Meat
  • 7. AIDS
  • 8. Hate
  • 9. Poverty
  • 10. Government

Companies:

  • 1. Apple
  • 2. Google
  • 3. Microsoft
  • 4. Facebook
  • 5. Comcast
  • 6. Walmart
  • 7. CocaCola
  • 8. McDonalds
  • 9. Sony
  • 10. Amazon

Politicians:

  • 1. Obama
  • 2. Hillary
  • 3. TedCruz
  • 4. RandPaul
  • 5. StephenHarper
  • 6. Putin
  • 7. JebBush
  • 8. TonyAbbott
  • 9. DavidCameron
  • 10. Democrats

Make no mistake, this is a headline-generating exercise by Vox Pop.

It comes as .sucks hits 10 days left on the clock for its $1,999+-a-pop sunrise period.

The company got a shed-load of mainstream media publicity when celebrities, starting with Kevin Spacey, started registering their names in .sucks several weeks ago.

It’s looking to get more headlines now, from lazy journalists and bloggers.

This is one of the first, for which I can only apologize.