ICANN has slapped .feedback operator Top Level Spectrum with a contract breach notice after a huge complaint about alleged fraud filed by a gang of big brands.
The company becomes the third new gTLD to be hit by a breach notice, and the first to receive one as a result of losing a Public Interest Commitments Dispute Resolution Process case.
While TLS dodged the “fraud” charges on a technicality, the breach is arguably the most serious found by ICANN in a new gTLD registry to date.
The three-person PICDRP panel found TLS was in violation of the following commitment from its registry agreement:
Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.
But TLS dodged the more serious charges of “fraudulent” behavior, which it denied, largely on the technicality that its PICs only require it to bar its registrants from such behavior.
There’s nothing in the PICs preventing the registry from behaving fraudulently, so the PICDRP panel declined to rule on those allegations, saying only that they “may be actionable in another forum”.
The complainants, which filed their 1,800-page complaint in October, were MarkMonitor and a bunch of its clients, including Adobe, American Apparel, Best Buy, Facebook, Levi and Verizon.
They’d claimed among other things that 70% of .feedback domains were trademarked names actually registered by the registry, and that TLS had stuffed each site with reviews either paid for or scraped from services such as Yelp!.
They claimed that Free.Feedback, a free domains service hosted by an affiliated entity, had been set up to auto-populate Whois records with the names of brand owners (or whoever owned the matching .com domain) even when the registrant was not the brand owner.
This resulted in brand owners receiving “phishing” emails related to domains they’d never registered, the complainants stated.
TLS denied all all the allegations of fraud, but the PICDRP panel wound up not ruling on many of them anyway, stating:
the Panel finds that Respondent’s Registry Operator Agreement contains no covenant by the Respondent to not engage in fraudulent and deceptive practices.
The only violations it found related to the transparency of .feedback’s launch policies.
The panel found that TLS had not given 90 days notice of policy changes and had not made its unusual pricing model (which included an extra fee for domains that did not resolve to live sites) transparent.
The registry had a number of unusual launch programs, which I outlined in December 2015 but which were apparently not adequately communicated to registrars and registrants.
The panel also found that Free.Feedback had failed to verify the email addresses of registrants and had failed to make it easy for trademark owners to cancel domains registered in their names without their consent.
Finally, it also found that TLS had registered a bunch of trademark-match domain names to itself during the .feedback sunrise period:
self-allocating or reserving domains that correspond to the trademark owners’ marks during the Sunrise period constitutes a failure by the Respondent to adhere to Clause 6 of its Registration and Launch policies, versions 1 and 2. According to the policies, Sunrise period is exclusively reserved for trademark owners
TLS, in its defense, denied that it had self-allocated these names and told the panel it had “accidentally” released them into the zone file temporarily.
As a result of the PIC breaches found by the panel, ICANN Compliance has issued a breach notice (pdf) against the company.
To cure the breach, and avoid having its Registry Agreement taken away, TLD has to, by April 15:
Provide ICANN with corrective and preventative action(s), including implementation dates and milestones, to ensure that Top Level Spectrum will operate the TLD feedback in a transparent manner consistent with general principles of openness and nondiscrimination by establishing, publishing and adhering to clear registration policies;
That seems to me like it’s probably vague enough to go either way, but I’d be surprised if TLS doesn’t manage to comply.
Top Level Spectrum has been accused today of running the gTLD .feedback in a “fraudulent and deceptive” manner.
Over a dozen famous brands, corralled by corporate registrar MarkMonitor, today formally complained to ICANN that .feedback is a “complete sham”.
They reckon that the majority of .feedback domains belong to entities connected to the registry, violate trademarks, and have been stuffed with bogus and plagiarized reviews.
TLS denies any involvement.
MarkMonitor clients Adobe, American Apparel, Best Buy, Facebook, Levi and Verizon are among those that today filed a Public Interest Commitments Dispute Resolution Policy complaint with ICANN.
PICDRP is the mechanism third parties can use to complain about new gTLD registries they believe are in breach of the Public Interest Commitments found in their registry contracts.
The 50-page complaint (pdf), which comes with hundreds of pages of supporting documentation spread over 36 exhibits, purports to show TLS engaging in an “escalating pattern of discriminatory, fraudulent and deceptive registry misconduct”.
While the allegations of wrongdoing are fairly broad, the most interesting appears to be the claim that TLS quietly registered thousands of .feedback names matching trademarks to itself and then filled them with reviews either ripped off from Yelp! or supplied by overseas freelancers working for pennies.
TLS denies that it did any of this.
The .feedback registry is closely tied to the affiliated entity Feedback SAAS, which offers a hosted social platform for product/company reviews. Pricing for .feedback domains is dependent on whether registrants use this service or not.
The complaint states:
the overwhelming majority of domain names registered and activated within the .FEEDBACK TLD — over seventy percent (70%) — are currently owned and operated by Respondent [TLS], and parties working in concert with Respondent
Respondent has solicited and paid numerous third parties, including professional freelance writers who offer to post a set number of words for a fee, to write fabricated reviews regarding Complainants’ products and services.
These ostensibly independent reviews from ordinary consumers are intended to give the appearance of legitimate commentary within .FEEDBACK sites, when, in fact, the reviews are a complete sham.
An investigation carried out by MarkMonitor (pdf) showed that of the 2,787 .feedback domains registered up to July 31, 73% were registered to just five registrants.
The top registrant, Liberty Domains LLC of Las Vegas, owned 47% of these domains.
MarkMonitor believes this company (which it said does not show up in Nevada company records) and fourth-biggest registrant Core Domains LLC (based at the same Vegas mail forwarding service) are merely fronts for TLS, though it has no smoking gun proving this connection.
TLS CEO Jay Westerdal denies the company is affiliated with Liberty.
The MarkMonitor investigation counted 27,573 reviews on these sites, but 22% of them purported have been written prior to the date the domain was registered, in some cases by years.
The company reckons hundreds of reviews can be traced to five freelance writers who responded to February job ads looking for people who could write and post 10 150-word reviews per hour.
Other reviews appear to have been copied wholesale from Yelp! (this can be easily verified by visiting almost any .feedback site and searching for exact-match content on Google).
Westerdal told DI last week that registrants can use an API to import reviews.
The brands’ complaint goes on to criticize TLS for its Free.feedback offering, a very odd, bare-bones web site which seems to offer free .feedback domains.
When you type a domain or email address into the form on Free.feedback, it offers to give you the equivalent .feedback domain for free, automatically populating a second form with the Whois record of the original domain.
According to the complaint, after somebody registers a free .feedback domain, Feedback SAAS starts contacting the person listed in the Whois about their “free trial registration” regardless of whether they were actually the person who signed up the the domain. The complaint states:
Complainants and multiple other trademark owners who received such email notifications from Feedback SAAS and TLS registrars never visited the FREE.FEEDBACK website, and they never requested a free trial registration in the .FEEDBACK TLD
I’ve been unable to fully replicate this experience in attempts to test Free.feedback.
The complaint alleges multiple breaches of the PICs in the .feedback ICANN Registry Agreement.
The brands want ICANN Compliance to conduct a thorough investigation of .feedback, for all Free.feedback domains with phony Whois to be terminated, and for affected trademark owners to get refunds. They also want their legal costs paid by TLS.
ICANN does not typically publish the outcome of PICDRP complaints. Indeed, this is only the second one I’m aware of. It’s difficult to judge what MarkMonitor’s posse’s chances of success are.
MarkMonitor has become the first accredited registrar to carry over 500 gTLDs.
Inspired by a recent Dynadot press release outlining its passing of the 500-TLD mark, I thought I’d put together a league table of gTLD registrars, ordered by which carries the most.
It will come as little surprise to most that brand protection registrars dominate the top end of the list.
MarkMonitor tops the league, with 504 gTLDs in its stable as of the end of June, up from 499 in May.
It’s closely followed by Ascio and CSC. Indeed, brand-focused registrars occupy many of the top 30 registrars, as you can see from this table.
There’s no real correlation between the number of gTLDs carried and the total domains under management for the registrar.
GoDaddy, with 53 million names, is way down in 28th position, for example.
The list was compiled from the latest gTLD registry reports, which show how many domains were registered to each accredited registrar at the end of June.
The data does not not include ccTLDs, nor does it account for situations where registrars may retail a TLD via a gateway or as a reseller of another registrar.
MarkMonitor owner Thomson Reuters is to sell of its IP division, which includes the brand-protection registrar, to private equity in a $3.55 billion all-cash deal.
The company said it will sell its Intellectual Property & Science business Onex Corporation and Baring Private Equity Asia.
MarkMonitor is of course a small part of that division. It also includes its Web of Science, Thomson CompuMark, Thomson Innovation, MarkMonitor, Thomson Reuters Cortellis and Thomson IP Manager services.
The unit reportedly has 4,000 employees and $1 billion in annual revenue.
Thomson Reuters said it will use $1 billion of the sale price to buy back shares and the rest to pay off debts.
The company revealed plans to get rid of the unit last November. Analysts said it was not core to its growth strategy.
Thomson Reuters acquired then privately held MarkMonitor for an undisclosed sum in 2012.
Top Level Spectrum, the new .feedback registry, has painted a second gigantic target on itself by registering to itself a .feedback domain matching one of the world’s largest media brands.
The company has registered fox.feedback and put up a web site soliciting comment on Fox Broadcasting Company.
This has happened whilst .feedback is still in its sunrise period.
The intellectual property community is, I gather, not particularly happy about the move.
The domain fox.feedback points to a web site that uses TLS’ standard feedback platform, enabling visitors to rate and comment on Fox.
The site has a footnote: “Disclaimer: This site is provided to facilitate free speech regarding fox. No direct endorsement or association should be conferred.”
Fox had no involvement with the registration, which Whois records show is registered to Top Level Spectrum itself.
Registry CEO Jay Westerdal said that the domain is one of the 100 “promotional” domains that new gTLD registries are allowed to set aside for their own use under the terms of their ICANN contracts.
Registries usually register names like “buy.example” or “go.example”, along with the names of early adopter anchor tenant registrants, using this mechanism.
I’m not aware of any case where a registry has consciously registered a famous brand, without permission, as part of its promotional allotment.
“The website is hosted automatically by the Feedback platform,” Westerdal said. “Fox Television Network has raised no concerns and has not applied for the domain during sunrise. We are testing out promotion of the TLD with the domain as per our ICANN contract.”
Fox may still be able to buy the domain during sunrise, he said.
“This is a Registry Operation name. During sunrise, If we receive an application from a sunrise-eligible rights holders during sunrise for a Registry Operations name we may release the name for registration,” he said.
Fox’s usual registrar is MarkMonitor. Matt Serlin, VP there, said in an email that the TLS move could be raised with ICANN Compliance:
I find it curious that this branded domain name would have been registered to the registry prior to the sunrise period which is restricted to the 100 registry promotional names. The fact that the domain is actually resolving to a live site soliciting feedback for The Fox Broadcasting Company is even more troubling. MarkMonitor may look to raise this to ICANN Compliance once the registry is able to confirm how this domain was registered seemingly outside of the required process.
The IP community originally fought the introduction of the 100-domain pre-sunrise exception, saying unscrupulous registries would use it to stop trademark owners registering their brands.
While there have been some grumblings about registries reserving dictionary terms that match trademarks, this may be the first case of a registry unambiguously targeting a brand.
Top Level Spectrum courted controversy with the trademark community last week when it told DI that it plans to sell 5,000-brand match domains to a third party company after .feedback goes into general availability in January.
Westerdal told us this is not “cybersquatting”, as the sites contain disclaimers and are there to facilitate free speech.
What do you think about this use of brands as “promotional” domains?
It’s indisputably pushing the envelope of what is acceptable, but is it fair? Should registries be allowed to do this?