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.
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.
ICANN has been hacked again and your user names and passwords may have been compromised.
The organization said tonight that it thinks “usernames/email addresses and encrypted passwords for profile accounts created on the ICANN.org public website were obtained by an unauthorized person.”
The stolen information includes “user preferences for the website, public bios, interests, newsletter subscriptions, etc”, ICANN said.
No critical systems seem to have been affected, ICANN said.
ICANN said that an “external service provider” was responsible for the hashed passwords that were nabbed.
It recommends an abundance of caution: changing passwords, or simply (and unrealistically) not using the same password across multiple sites.
ICANN gets hacked constantly. It’s barely even news any more. Many of the stories can be found with this search.
Dot-brand gTLD applicants that were playing wait-and-see with ICANN’s contracting process signed Registry Agreements in droves last week.
At least 67 new RAs were signed in the last three days of July, on or around the ICANN’s July 29 deadline, ICANN’s web site shows.
This means that there are still about 50 applicants that have not pulled the trigger and may have to apply for an 60-day last-chance extension.
A week before the deadline, roughly 170 brands had still not signed contracts.
The July 29 deadline was put in place for dot-brands last year due to delays creating Specification 13 of the RA, which gives brands special opt-out clauses dealing with things like sunrise periods.
Those that have still not obtained RAs are expected to be flagged as “Will Not Proceed” and will have to apply to ICANN for the extension under its Application Eligibility Reinstatement process.
The African Union Commission has criticized ICANN’s “dysfunctional accountability process” that has kept the proposed .africa gTLD in limbo for the last few years.
In a communique yesterday (pdf), the AUC also reiterated that .africa applicant ZA Central Registry has the support of both the AUC and its member states, and that governments used almost every avenue available to them to object to the rival DotConnectAfrica bid.
The letter reads:
The Africa region, African Internet stakeholders, the ZACR and AUC are the unfortunate victims of a dysfunctional accountability process and an independent review panel that did not delve more deeply to understand the new gTLD process, the role of governments in that process, and how the ICANN multistakeholder model functions in general.
A few weeks ago, an Independent Review Process panel controversially ruled that ICANN had treated DCA’s application unfairly, in violation of its bylaws, when it accepted Governmental Advisory Committee advice to reject it.
The panel said that ICANN should have at least asked the GAC for the rationale behind its advice, something that the new gTLD program’s rules did not require it to do.
One of the issues at the heart of the subsequent debate is whether ICANN inappropriately helped out ZACR’s bid by drafting an AUC letter of support and then tried to cover its actions up by inappropriately redacting information from the IRP ruling before publication.
On Friday, ICANN published a new version of the ruling that had these references restored, while retaining redactions related to the actions of Kenyan government officials.
We know what the still-redacted text says because Kieren McCarthy, writing for The Register, obtained a clean copy and published it a couple of weeks ago.
ICANN also promised to publish its reasoning if it makes redactions to any documents in future.
In a blog post on Friday, general counsel John Jeffrey said that ICANN helping the AUC draft its letter of support was not a unique case, nor was it inappropriate:
ICANN staff has helped many applicants and their supporters understand how to properly document support. Not only did we make a template support letter publicly available to all as part of the New gTLD Program Applicant Guidebook (see Appendix to Module 2), we have answered questions, received through our customer service channel, as to how interested parties can document support for a given gTLD application. In the case of ZA Central Registry, ICANN appropriately assisted the applicant in documenting support from the AUC.
Our actions surrounding the .AFRICA applications were not unique, since we assist any applicant who requests assistance, or who needs clarification in learning how best to document support or other matters. We have provided assistance to all applicants regarding their applications to the maximum extent possible.
On the claims that ICANN tried to “cover up” this assistance by redacting the IRP’s ruling and previous IRP filings, Jeffrey said that the information was covered by a confidentiality agreement agreed to by itself and DCA and endorsed by the IRP panel.
He said that ICANN was “motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible.”
He said ICANN attempted to reach out to those affected by the “confidential” parts of the ruling to seek permission to remove the redactions.
But McCarthy also seems to have seen emails exchanged between DCA and ICANN, and he says that ICANN redacted it over DCA’s objections.
McCarthy further says that ICANN only became interested in removing the redactions after he had already published the clean version of the ruling at The Reg — five days after the initial publication by ICANN.
Jeffrey’s post, which refers to “erroneous reporting” in an apparent allusion to McCarthy’s articles, nevertheless fails to address this claim, lending credibility to the cover-up allegations.
The .africa gTLD has been contracted to ZACR, but DCA’s rejected application has been returned to evaluation per the IRP’s ruling, where it is broadly expected to fail for want of governmental support.
Disclosure #1: I recently filed a Documentary Information Disclosure Policy request seeking the release of all the unredacted exhibits in DCA v ICANN. Given ICANN’s wont to usually respond to such requests only at the end of the full 30 days permitted by the policy, I should not expect to see an answer one way or the other until the last week of August.
Disclosure #2: As regular readers may already be aware, due to my long-held and never-disguised view that DCA was mad to apply for .africa without government support, I was once accused of being a part of a “racial conspiracy” against DCA on a blog I believe to be controlled by DCA. Naturally, after I stopped laughing, this libelous allegation pissed me off no end and enhanced my belief that DCA is nuts. Around the same time DCA also, under its own name, filed an “official complaint” (pdf) with ICANN, omitting the race card, alleging that I was part of a conspiracy against it.