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Verisign v XYZ judge confirms both companies suck

Kevin Murphy, November 21, 2015, Domain Registries

Verisign and have both come out of a US lawsuit looking like scumbags.

Explaining his dismissal of Verisign’s false advertising lawsuit against .xyz registry, Virginia judge Claude Hilton today said that’s statements about its registration numbers were “verifiably true”.

At the same time, he confirmed that they came about as a result of a bullshit deal with Network Solutions to bolster .xyz’s launch numbers.

The judge’s ruling confirms for the first time the financial details of the deal between XYZ and (Network Solutions) that saw .xyz’s registration volume rocket in its first few weeks of general availability. He wrote: purchased 375,000 domain names for a price of $8 each totaling $3 million dollars. In exchange, XYZ purchased advertising from in the form of 1,000 impressions for $10 each, at a total cost of $3 million dollars. Instead of cash exchanging hands, advertising credit was given to XYZ and the .xyz domain names were given to, who subsequently gave them away as free trials to their subscribers.

In other words, XYZ bought $10,000 of advertising for $3 million and paid for it with $3 million of free .xyz domains — 375,000 of them.

That bogus deal enabled XYZ to report big reg volume numbers without actually, legally, lying,

“The statements regarding Defendants’ revenue and number of registrations are statements of fact that are verifiably true,” the judge wrote.

When the Defendants [] stated they were a market leader in new TLD’s and that they had the most new registrations than any other TLD, they were basing that information off of an accurate zone file. Further, the zone file confirms that there are over 120 million .com registrations and one {1) million .xyz registrations. These statements are also true.

The judge said he was dismissing the suit not just because XYZ wasn’t lying, but also because Verisign couldn’t show that it had been harmed.

The number of .com registrations has actually been going up, he noted.

Much of Verisign’s complaint centered on this ad:

Verisign said the ad lied about the availability of .com domains, which XYZ denied.

The judge said:

The video posted to YouTube is puffery and opinion. It displays no actual domain names, and communicates a subjective measure of value and superiority, not capable of being proven false.

“Puffery” is a term with legal weight in false advertising cases under US law. It basically means that advertisers are allowed to exaggerate. XYZ had in fact used the “puffery” defense.

The judge seems to have relied heavily on zone file analysis to reach his conclusions. He wrote.

according to Plaintiff’s [Verisign’s] own data, .com names are largely unavailable. In a given month, Plaintiff reports that it receives about two (2) billion requests to register <.com> domain names, yet fewer than three (3) million are actually registered.

I believe that “two billion” number refers to how many “attempted adds” Verisign gets every month for .com domains, as reported in its monthly reports with ICANN.

That number would include every automated attempt to register a dropping domain by every registrar.

It’s not a reflection of how many actual human beings attempt and fail to register .com domains and, in my view, it’s worrying that the judge took it to mean that.

In summary, the lawsuit managed to unearth the dirty reality behind XYZ’s launch “success”, whilst also making Verisign look like a petty, petulant, child.

Everybody loses.

Except the lawyers, obviously, who have been paid millions.

ICANN reveals 12 more data breaches

Kevin Murphy, November 20, 2015, Domain Registries

Twelve more new gTLD applicants have been found to have exploited a glitch in ICANN’s new gTLD portal to view fellow applicants’ data.

ICANN said last night that it has determined that all 12 access incidents were “inadvertent” and did not disclose personally identifiable information.

The revelation follows an investigation that started in April this year.

ICANN said in a statement:

in addition to the previous disclosures, 12 user credentials were used to access contact information from eight registry operators. Based on the information collected during the investigation it appears that contact information for registry operators was accessed inadvertently. ICANN also concluded that the exposed registry contact information does not appear to contain sensitive personally identifiable information. Each of the affected parties has been notified of the data exposure.

The glitch in question was a misconfiguration of a portal used by gTLD applicants to file and view their documents.

It was possible to use the portal’s search function to view attachments belonging to other applicants, including competing applicants for the same string.

Donuts said in June that the prices it was willing to pay at auction for gTLD string could have been inferred from the compromised data.

ICANN told compromised users in May that the only incidents of non-accidental data access could be traced to the account of Dirk Krischenowski, CEO of dotBerlin.

Krischenowski has denied any wrongdoing.

ICANN said last night that its investigation is now over.

English beats Portuguese in $2.2m .hotels auction

Kevin Murphy, November 19, 2015, Domain Registries has won the right to operate .hotels after an auction concluded a protracted fight over the gTLD.

In an ICANN-run auction yesterday, prevailed with a winning bid of $2.2 million.

Its sole competitors was Travel Reservations (formerly Despegar Online), which had applied for the Portuguese word .hoteis.

In 2012, a String Similarity Review panel concluded that .hotels and .hoteis look too similar to coexist, due to the likelihood of confusion between I and l in sans-serif fonts.

Neither applicant agreed with that decision, knowing that it would result in a expensive auction, and filed a Request for Reconsideration and then, in March 2013, an Independent Review Process complaint.

After two years, it lost the IRP. But the panel said it had “legitimate concerns” about the fairness of the SSR process and ordered ICANN to pay half of its costs.

Now, has had to fork out another $2.2 million for the string.

That’s not particularly expensive as ICANN-auctioned gTLDs go. Eight of the 13 other strings ICANN has auctioned have sold for more.

ICANN’s auction proceeds to date now stands at $63,489,127, which is being held in a separate bank account for purposes yet to be determined.

.feedback regs Fox trademark to itself during sunrise

Kevin Murphy, November 12, 2015, Domain Registries

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 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 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? just gave itself another reason to bid high for .web gTLD

Kevin Murphy, November 9, 2015, Domain Registrars

Registrar group is changing its stock market ticker symbol to WEB tomorrow, in another sign that it really, really wants to be identified with the string.

The switch from WWWW may indicate that the NASDAQ-listed company’s six rivals for the new gTLD .web have a fight — and a possible big payday — on their hands when .web finally goes to auction. is competing with Nu Dot Co, Radix, Google, Donuts, Afilias and Schlund for the gTLD.

The company has already fiercely defended its “right” to .web, filing successful String Confusion Objections against .webs applicant Vistaprint.

Vistaprint subsequently filed an ICANN Independent Review Process complaint to appeal its SCO loss.

Last month, the IRP was won by ICANN, but the panel left the door open for ICANN to reconsider its decision.

The .web auction is not likely to go ahead until the Vistaprint issue is resolved.

If ICANN decides the two strings can be delegated separately, what I think is the last barrier to the .web auction going ahead disappears.

If not, then Vistaprint finds itself as the seventh contender in the auction, which may give it the impetus to carry on challenging the ruling.

ICANN’s board plans to discuss the issue at its next meeting, December 10.

Which way it leans will give an indication of how long it will be before .web goes to auction.