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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.

IDN .com hits the root

Eleven variants of .com and .net in non-Latin scripts joined the internet today.

Verisign’s whole portfolio of internationalized domain name new gTLDs were added to the DNS root at some point in the last 24 hours, and the company is planning to start launching them before the end of the year.

But the company has been forced to backtrack on its plans to guarantee grandfathering to thousands of existing [idn].com domains in the new domains, thereby guaranteeing a backlash from IDN domainers.

The eleven gTLDs are: .कॉम, .ком, .点看, .คอม, .नेट, .닷컴, .大拿, .닷넷, .コム, .كوم and .קוֹם. Scripts include Arabic, Cyrillic and Hebrew.

Verisign signed registry agreements with ICANN back in January, but has been trying to negotiate a way to allow it to give the owners of [idn].com domains first rights to the matching domain in the “.com” in the appropriate script.

The company laid out its plans in 2013. The idea was to reduce the risk of confusion and minimize the need for defensive registrations.

So what happened? Trademark lawyers.

Verisign CEO Jim Bidzos told financial analysts last week that due to conversations with the “community” (read: the intellectual property lobby) and ICANN, it won’t be able grandfather all existing [idn].com registrants.

All of the new IDN gTLDs will be subject to a standard ICANN Sunrise period, which means trademarks owners will have first dibs on every string.

If you own водка.com, and somebody else owns a trademark on “водка”, the trademark owner will get the first chance to buy водка.ком.

According to SeekingAlpha’s transcript, Bidzos said:

Based primarily on feedback from domain name community stakeholders, we have revised our IDN launch strategy. We will offer these new IDN top-level domains as standalone domain names, subject to normal introductory availability and rights protection mechanisms, available to all new gTLDs. This revised approach will not require ICANN approval and is designed to provide end users and businesses with the greatest flexibility and, for registrars, a simple and straightforward framework to serve the market.

Finally, we believe this approach should provide the best opportunity for increased universal acceptance of IDNs. We expect to begin a phased rollout of the IDNs towards the end of this year, and we’ll provide more information on our launch plans when appropriate.

Senior VP Pat Kane added on the call that the grandfathering provisions, which would have required ICANN approval, have been “taken out”.

The question now is whether Verisign will introduce a post-sunrise mechanism to give rights to [idn].com.

That would not be unprecedented. ICM Registry ran into similar problems getting its grandfathering program for .porn approved by ICANN. It wound up offering a limited, secondary sunrise period for existing .xxx registrants instead.

World’s fourth-largest bank dumping old domains in switch to dot-brand gTLD

A French bank appears to be the first major company to commence a permanent switch from a legacy TLD to a new dot-brand.

BNP Paribas, the fourth-largest bank in the world, is dumping its .fr and .net domains in favor of .bnpparibas for customers in its domestic market, where it serves close to eight million retail banking customers.

Visitors to the .fr and .net domains are directed to a landing page that informs them that mabanque.bnpparibas (“mybank.bnpparibas”) is the company’s new domain.

BNP Paribas

The new dot-brand site appears to be a fully functional online banking service, not just brochureware.

It’s the ninth most-visited new gTLD domain name, with an Alexa rank today of 6,005, climbing the ranks every day.

As it’s a redesigned web site, customers are able to switch back to the familiar .net site (Alexa rank: 2,543) if they wish.

The domain was registered in January and BNP Paribas began a transition campaign in April. The transition away from the .net and .fr domains appears to have started at some point over the last month, but there hasn’t been a great deal of media coverage.

The .com domain is still live, serving Anglophone customers.

The mabanque.bnpparibas site leaves little doubt about the reason for the transition (translated with Google’s assistance):

BIZARRE, THIS ADDRESS WITHOUT .FR OR .NET? IS IT SECURE?

YES, A 100% SECURE SITE!

Any address ending with .bnpparibas is managed by BNP Paribas and has an advanced security certificate. Even more reliable, this new extension now acts as a signature.

Of course the architecture https and the padlock are still on your URL bar, confirming that the connection is secure.

So you can browse and view your accounts in all serenity!

BNP Paribas is a bit of a big deal, the fourth-largest bank in the world, managing assets of $2.5 trillion.

It’s bigger than Barclays, which earlier this year said it intends to transition away from .com and .co.uk to .barclays. The .barclays and .barclaycard sites are still just brochureware, however, with no transactional features.

Other dot-brands have launched sites at their new gTLDs, but .bnpparibas is the first transfer of a fully transactional web site from a legacy TLD to a dot-brand I’ve seen.

The Chinese conglomerate CITIC dumped its .com for .citic last September, but soon switched back.

.sucks made millions from sunrise

Vox Populi could have made over $6 million from defensive registrations during its sunrise period.

The company’s first post-sunrise zone file was published today, and according to DI PRO it contains 3,394 domains, the vast majority of which were newly added today.

If all of these names were sunrise registrations, that would add up to an almost $6.8 million windfall for the registry.

However, I don’t think that’s a completely reliable figure. I believe that not all of the names are from sunrise.

The zone file seems to have been generated after .sucks general availability kicked off at a minute after midnight UTC this morning. ICANN publishes zone files around 5am UTC but the time it collects them from registries can vary between TLDs.

Poring over Whois records, I’ve found many examples of domains in the .sucks zone that have creation dates in the early minutes and hours of GA.

Many domains that are not obvious trademarks show creation times in the first 60 seconds of GA, suggesting they were pre-orders and sold for GA prices.

It’s also probable that some sunrise names are not showing up in the zone file yet due to a lack of name servers.

According to a source talking to DI last November, Vox Pop paid “over $3 million” for the right to run .sucks at auction.

It seems to have made its money back — and then some — purely from sunrise fees.

Sunrise names are charged at $1,999 a year by the registry. In GA, most names have a recommended retail price of $250. Strings considered valuable, many of them trademarks, carry a $2,500 “Market Premium” recommended price.

.bank doing surprisingly well in sunrise

The forthcoming .bank gTLD has received over 500 applications for domains during its sunrise period, according to the registry.

fTLD Registry Services tweeted the stat earlier this week.

Its sunrise period doesn’t even end until June 17. Sunrise periods tend to be back-weighted, so the number could get a lot higher.

Five hundred may not sound like a lot — and applications do not always convert to registrations — but in the context of new gTLDs it’s very high.

Discounting .porn and .adult, both of which racked up thousands of names across their various sunrise phases, the previous high for a sunrise was .london, with just over 800 names registered.

It’s not unusual for a sunrise to get under 100 names. A year ago, I calculated that the average was 144.

The 500+ .bank number is especially surprising as it’s going to be a very tightly controlled gTLD where the chance of cybersquatting is going to be virtually nil.

All .bank registrants will be manually vetted to ensure they really are banks, substantially mitigating the need for defensive registrations.

Could this be an indication that .bank will actually get used?

Are new gTLD registries ripping off brands with unfair sunrise fees?

Forget .sucks — several less controversial new gTLD registries have come under fire from the likes of Google, Facebook and Adobe for charging sunrise fees as high as $17,000 for domains matching famous trademarks.

According to figures supplied to DI by ICANN’s Business Constituency, the domain instagram.love carries a $17,610 “Premium Name Fee” during the current sunrise period.

Instagram is of course the photo sharing service belonging to Facebook, and to the best of my knowledge not a dictionary word.

The domain facebook.love has a $8,930 fee, these figures show, while google.love costs $6,610, both in addition to sunrise fees of $350 and annual fees of $60.

The regular sunrise fee for .love comes in at $265 at some registrars.

The new gTLDs .design, .video, .wang, .wein, .rich and .top also seem to carry very high fees for brands such as Facebook, according to the BC’s numbers.

Google recently filed a public comment with ICANN which warned:

some registry operators are taking advantage of rights owners during Sunrise by charging exorbitant and extortionate Sunrise registration fees. Although such pricing policies are not strictly within the ICANN compliance mandate, they contravene the spirit of the RPMs [rights protection mechanisms], damage ICANN’s reputation, harm consumers in contravention of ICANN’s mandate to promote the public interest, and create disincentives for rights owners to take advantage of the Sunrise period

Similar comments were sent by the Intellectual Property Constituency, BC, and others.

The issue of registries charging super-high “premium” fees for trademarked names has been on the radar of the BC and the IPC since at least 2013.

It seems that in at least some cases, trademark owners are being hit with the higher fees because their marks are dictionary words that the registry has identified as premium due to their regular meaning.

For example, adobe.design is on the list of names provided by the BC, carrying a $1,175 registration fee.

But Andrew Merriam, director of business development at .design registry Top Level Design, denied that the software company is being targeted. Instead, he said “adobe” refers to the material used in architecture — its dictionary meaning.

He said: “Stucco.design, concrete.design, wood.design, granite.design (and many other materials and building styles) are all on the premium list, at varying prices. In fact, adobe.design is priced on the lower end of all these materials.”

Merriam said the registry’s premium fee for adobe.design is actually $250 and speculated that $1,175 could be the price quoted by Adobe’s brand protection registrar post-markup. It was $349 at Go Daddy, he said.

In other cases, trademarks may have found their way on to premium lists due to a lack of manual vetting by the registry, rather than nefarious targeting.

In the case of instagram.love, Evatt Merchant of .love registry Merchant Law Group told DI that Facebook can buy the name for the normal sunrise fee if it wants.

He told DI that trademark owners should contact the registry if they believe their marks have been wrongly given premium prices. He said:

While it is possible that some brand terms that are frequently googled have ended up on the premium list, valued based on their Google search frequency, there is a simple solution. During the sunrise period, brands seeking non-dictionary trademarked domain names can contact the registry so that a review of individual sunrise pricing can occur. As has already occurred, such requests will often result in the .LOVE TLD voluntarily offering to reduce their sunrise application cost to the base sunrise price and that would certainly be the case for Instagram.

ICANN’s does not regulate pricing in new gTLDs, but nevertheless the IPC and BC and their members have asked ICANN to include premium pricing of trademarked names in its upcoming review of rights protection mechanisms.

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.

.sucks explains Sunrise Premium name change

Vox Populi Registry abandonment of the .sucks “Sunrise Premium” brand in favor of a new “Market Premium” service is just a renaming, designed to reduce confusion among trademark owners, according to the company.

As we reported Sunday, all mentions of Sunrise Premium — a list of .sucks domains that will always carry a recommended $2,499 a year fee — have been expunged from the Vox Pop web site.

They were replaced with references to Market Premium, which appeared to carry all the characteristics of Sunrise Premium albeit under a new name.

Now, CEO John Berard has confirmed to DI that the program has not changed.

Rather, the new name is an effort to distance it from the regular sunrise period, which is linked to the Trademark Clearinghouse.

The decision was made following last week’s International Trademark Association conference, Berard said:

It was an insight gained from talking to people at INTA15. The intellectual property people there asked us so many times about the sunrise premium list of names that we realized we had allowed a mis-perception to take hold. This is no and never has been a relationship between that list and the TradeMark ClearingHouse. It was surprising how many people thought we had access to the TMCH (we don’t) and merely cut-and-pasted its names.

That is why we renamed it. Now called Market Premium and more clearly presented as a set of names that over time have been viewed as valuable (because they have been registered before). Names on this list will carry a suggested price of $2,499 (yes, the same as was suggested in Sunrise). Given the list is of names that the market has decided has value, it is likely it will contain trademarks.

The change may also be an attempt to head off a contractual squabble with ICANN.

Last Friday, the ICANN Business Constituency told ICANN management that if the Sunrise Premium list had been populated by names drawn from the TMCH, that would have been a breach of the .sucks Registry Agreement.

Businesses call on regulators to stop .sucks “extortion”

ICANN’s Business Constituency wants US and Canadian regulators to intervene to prevent Vox Populi Registry, which runs .sucks, “extorting” businesses with its high sunrise fees.

The BC wrote to ICANN, the US Federal Trade Commission and the Canadian Office for Consumer Affairs on Friday, saying .sucks has employed “exploitive [sic] pricing and unfair marketing practices”.

The constituency adds its voice to Intellectual Property Constituency, which complained last month, causing ICANN to refer the matter to US and Canadian regulators.

Now, the BC has told the OCA and FTC:

We do not believe that exploitative and unfair business practices are conducive either to promoting end-user confidence in the Internet or to fair competition in the domain name space. On the contrary, the pricing structure adopted by Vox Populi for .sucks domain names is predicated purely on expecting the businesses and brands that drive global growth to pay extortionate fees for no consumer or market benefit.

Vox Populi’s tactics exploit businesses that neither want nor need these domain name registrations but feel unfairly pressured to register purely for defensive purposes.

The BC’s letter chooses to focus on saying sunrise names cost “$2,499 and up” (original emphasis). That’s based on the MSRP Vox Pop publishes on its web site.

In reality, Vox Pop is charging a registry fee of $1,999 per year for .sucks sunrise registrations.

Retail registrars can add hundreds of dollars in mark-up fees, but the leading corporate registrars that are selling the most .sucks sunrise names — MarkMonitor, CSC and Com Laude among them — have said that as a matter of principle they are only charging a nominal $20 to $25 processing fee.

It’s not the highest sunrise fee I’ve come across. The Chinese registry behind .top asked for $3,500 during its sunrise.

But the semantics of the .sucks TLD makes brand owners nervous and makes many of them feel that a defensive registration is a must-have.

The BC now write to regulators to “urge the FTC and OCA to expeditiously determine whether these practices constitute unfair trade practices”.

The letter points to US and Canadian regulations covering consumer protection for examples of where Vox Pop’s practices may fall short of the law.

The free speech opportunities afforded by .sucks do not outweigh the harms, the BC says.

It’s also interesting to note that while the BC appears to be running to regulators for assistance, it notes that it still fully supports the ICANN model.

There may be a degree of cognitive dissonance within the BC.

In a separate letter to ICANN, also signed by BC chair Elisa Cooper and sent yesterday, the BC seems to take issue with the fact that ICANN felt the need to report .sucks to regulators in the first place, writing:

We would like to understand the rationale for doing so. ICANN has ample authority, a clear obligation and the resources available to stop rogue practices through its contractual agreements with registries, its Compliance Department, and its broad duty to protect the public interest and the security and stability of the Internet, particularly for issues with global reach. Like all other gTLDs launched under ICANN’s program, .sucks has a global reach. It is not clear why ICANN feels it should seek clarification from these two North American agencies.

It’s worth noting that Vox Pop CEO Berard is a member of the BC via his PR agency, Credible Context. He was Cooper’s immediate predecessor as BC chair, leaving the post last year.

Correction: Thanks to the many readers who pointed out that Berard was actually the BC’s representative to the GNSO, not its chair. Apologies for the error.

The letter tells Global Domains Division president Akram Atallah that “viewed in its entirety, Vox Populi’s pricing scheme is a violation of the Rights Protection Mechanisms (RPMs)” developed for the new gTLD program, alleging it discourages use of the RPMs and encourages cybersquatting.

It claims that if Vox Pop populated its Sunrise Premium list (now known as Market Premium, it seems) with data from the Trademark Clearinghouse it could be in violation of its Registry Agreement with ICANN.

My sense has been that the names on that list were actually culled from zone files. Vox Pop has said it was compiled from lists of names that have previously been defensively registered. Most of the names in the TMCH have not been defensively registered.

The BC asks for ICANN “to take strong action”, but does not specify what, exactly, it wants.

The letter to the OCA and FTC can be read here. The letter to ICANN is here. Both are PDF files.

Has .sucks abandoned its Sunrise Premium program?

Vox Populi Registry has done away with the “Sunrise Premium” part of its .sucks launch strategy, if only in name.

The pricing page of the company’s web site no longer makes any reference to Sunrise Premium, the controversial, trademark-heavy list of .sucks domains that would cost over $2,000 a year to register and renew.

Instead, there are two new categories of names: Registry Premium and Market Premium.

Registry Premium appears to be what it was previously just calling “Premium” — individually priced high-value domains such as divorce.sucks and life.sucks. That’s in tune with standard registry practice.

The new Market Premium category appears to be the replacement for Sunrise Premium. The web site describes it like this:

In General Availability, dotSucks has created a list of domains called Market Premium names. These are names that the market over time have designated as having a high value.

Previously, Vox Pop CEO John Berard told DI and other reporters that the Sunrise Premium list had been compiled from names registered or blocked in previous sunrise periods in other TLDs.

It was characterized as an additional protection against cybersquatting, but intellectual property interests saw it as a shakedown.

It’s not obvious from the updated Vox Pop web site whether Market Premium is a ground-up rethink of the Sunrise Premium concept, or is merely an empty re-branding.

The name “Sunrise Premium” was confusing, given that such domains are not actually available during the formal sunrise period. Also, the name inextricably suggested that it was a list of trademarks.

Market Premium names are priced exactly the same as Sunrise Premium — that is, $1,999 at the registry level, with a suggested retail price of $2,499.

Market Premium names will also not be eligible for the discounted “Block” service but will “likely” be eligible for the Consumer Subsidy program. That’s no change from the policies governing the Sunrise Premium incarnation.

The registry web site now also states that purchasers of the Block service, which carries a $149 registry fee, will be able to unblock their domains if they wish to actively use them, but doing so will convert the domain into a $1,999 Market Premium name.

Defensive blocking could therefore have the eventual effect of stuffing the Market Premium list with trademarks anyway (assuming any trademark holders with blocks wish to activate their .sucks names, which seems unlikely).

I’ve put in a request for clarification about Market Premium with the registry and will provide updates when I get them.

Other updates on the .sucks price list include a removal of the $9.95 suggested retail price for Consumer Subsidy names.

Consumer Subsidy names are supposedly going to be run by a third party consumer advocacy group from Everything.sucks, but that group has not been identified by Vox Pop yet.

The fact that the registry seemingly had no deal in place but already knew the price suggested to many that Everything.sucks would just be another shell company managed by Vox Pop owner Momentous. Berard reportedly denied this publicly at the INTA 2015 conference last week.

The Vox Pop web site now states “dotSucks is hopeful that this will bring the individual consumer price below 10 dollars.”