UDRP tip: put your domain in the Whois

If you’re fighting off a bogus UDRP complaint on one of your domain names, the onus is on you to prove that you have “rights and legitimate interests” in the domain.
That could be tricky, especially if you think you may been assigned a panelist with a pro-complainant bent, but there may be some ways to mitigate the risk of losing your domain.
Take this recent case, for example: PissedConsumer.com versus ThePissedOffConsumer.com.
The panelist determined that the registrant of ThePissedOffConsumer.com had no “rights and legitimate interests”on the grounds that a) it was competing with the complainant, b) the web site used the same color (red) as the complainant and c) the registrant was not known by the domain.
Ignoring the first two (highly debatable) findings, let’s look at c). The panelist wrote:

Complainant alleges that Respondent has never used a company name “The Pissed-Off Consumer” in connection with operation of any business activities. The WHOIS information for the disputed domain name lists the registrant of the domain as “John Cross.”
The Panel finds, based on the evidence in the record, that Respondent is not commonly known by the disputed domain name, and as such lacks rights and legitimate interests in the said name

In other words, because Whois showed the name of the registrant, rather than the name of the domain, the registrant was not “commonly known” as the domain and lacked rights.
To add insult to injury, the complainant was assumed to have earned the right to the mark “Pissed Consumer” before it had officially acquired a trademark (and before the disputed domain was registered) simply by virtue of operating PissedConsumer.com, despite the fact that it hides behind Whois privacy and is called Consumer Opinion Corp.
Presumably, if Cross had simply added the text “ThePissedOffConsumer” to his Whois record, the panelist would have had one less data point “in the record” to justify his finding.
In fringe UDRP cases, that could prove a useful defensive tactic.

TorrentReactor.net wins TorrentReactor.com case

The World Intellectual Property Organization has handed the domain name TorrentReactor.com to the owner of TorrentReactor.net, one of the internet’s most-popular BitTorrent movie piracy sites.
Really.
TorrentReactor.net owner Alexey Kistenev filed a UDRP complaint over the .com version with WIPO last year and won it earlier this month.
It was actually the second time he had taken the domain to arbitration.
Kistenev’s first complaint was dismissed by WIPO in March 2009, on the grounds that he did not have a valid trademark.
A month later, he applied for a US trademark on “TorrentReactor”, which was granted in July last year, and the UDRP was refiled in October.
In the latest case, Kistenev was helped by not only the fact that he now owns the trademark but also the fact that the domain has changed hands since the original complaint.
I wonder how much the current owner paid. In 2008, the then-owner had tried to sell it to Kistenev for $150,000. When he countered with a $30,000 offer, the owner asked for $50,000.
TorrentReactor.net is a page-one Google hit for searches including [torrent movies] and [torrent music].
Its front page contains links to torrents of recent, copyrighted movies such as The Social Network, Red and Let Me In, as well as new software, TV shows and music.
What we seem to have here is a case of WIPO indirectly helping piracy.
I guess it shows that WIPO arbitration panels can apply the UDRP uniformly when they want to.

Red Bull files UDRP after domain expires

Energy drink maker Red Bull has filed a UDRP complaint over the domain name red-bull.com, which until recently it actually owned.
It’s moderately embarrassing, but not unheard of, for companies to turn to the UDRP after domains they allow to expire are then snapped up by squatters.
What makes the complaint unusual is that the domain red-bull.com is not an obscure fringe case – it’s virtually identical to the company’s trademark and to its primary domain, redbull.com.
Also, according to Whois records, Red Bull also appears to use MarkMonitor, the brand-protection registrar, for its domain name needs.
Whois history shows that Red Bull acquired the domain in about 2005, but allowed it to expire in September 2010, after which it was quickly acquired by a third party.
Did Red Bull deliberately allow it to expire? There’s a case to be made for rationalizing defensive registration portfolios to reduce costs, but this domain would seem (to me) to be a definite keeper.
MarkMonitor has a policy of declining to comment on clients, which it chose to exercise when I inquired.
The domain red-bull.com currently resolves to what can only be described as a splog. It shows up on page two of Google for the search [red bull], which may go some way to explaining the UDRP.
Red Bull acquired red-bull.net, red-bull.cc and red-bull.tv via UDRP proceedings between 2001 and 2004, but has since allowed all three, as well as the .org, which it also owned, to expire.
The .tv and .net versions are currently parked, meaning they don’t rank so well in search engines.
It’s not the first odd UDRP Red Bull has filed. Last year, it lost a UDRP complaint despite winning a court case over the same domain name, as I reported in June.

ICANN staff swamped

ICANN’s board of directors is giving its staff and policy-making bodies more work than they can handle.
The GNSO Council yesterday voted to shelve board-requested work on the new top level domains program because no ICANN staffers have the time to help coordinate the project.
Last month, the board asked the GNSO and other constituencies to come up with ideas, before mid-March, about how to measure the consumer benefits of new TLDs after they launch.
But the Council yesterday was faced with having to suspend other policy development, in order to get the required staff support, so decided instead to defer the new work.
A senior ICANN executive at the meeting said that ICANN staff is “not an unlimited resource” and has “no bandwidth to keep taking these projects”.
This has apparently been an issue for over a year.
In this particular instance, the problem project comprised part of ICANN’s obligations under its Affirmation of Commitments with the US government, so it’s not trivial stuff.
As others have noted, sometimes the amount of policy development going on in ICANN can appear overwhelming to outsiders, but it seems that this problem also extends to ICANN internally.

Clinton agrees to do ICANN meeting

ICANN has confirmed that former US president Bill Clinton has agreed to speak at its San Francisco meeting in March.
But ICANN’s Scott Pinzon said in a blog post that a formal contract, which would be funded by a “targeted sponsorship” deal, has not yet been signed. He wrote:

We are also aware that ICANN meetings are highly structured, work-intensive events, and we want to be sure that an appearance by President Clinton enhances the meeting’s outcomes rather than distracts from them.

Read into that what you will.
Clinton’s appearance will likely make the San Francisco meeting ICANN’s best-attended so far, at least for a day or so. Expect TV.
It will also raise the profile of the new top-level domains program, if ICANN in fact approves it during the meeting.
On a personal level, this is tragic news. It’s already hard enough to get a coffee in the ICANN press room without a thousand other newbie reporters crowding the place out.
I’ve put in a request for an interview anyway.

Will Bill Clinton keynote at ICANN San Francisco?

There’s been a rumor going around for at least a month that Bill Clinton is being lined up to provide the keynote address for the next ICANN meeting, to be held in San Francisco in March.
I’m not going to pretend to have any inside information, but I’ve heard it from so many people recently that I thought it was worthy of a post.
One reason the rumor may have been reinvigorated this week is the revelation of the hefty sums ICANN is charging its top sponsors for the San Francisco meeting.
As I reported earlier in the week, VeriSign appears to have paid up $500,000 to get one of two top-tier Diamond-level sponsorship deals for the meeting.
Clinton, like many former world leaders, can command powerful sums for public speaking engagements, reportedly up to $350,000 a gig a few years ago.
ICANN, of course, was the brainchild of the Clinton administration in 1998.
While the US government’s attitude to ICANN’s activities has changed over the years, the organization was formed largely to introduce competition in the registrar and registry markets.
Since these are two likely results of the approval of the new TLDs program, Clinton’s appearance at the meeting where it will possibly happen would be appropriate.

ICANN wants to make millions from SF meeting

ICANN hopes to sign millions of dollars in sponsorship deals for its San Francisco meeting in March.
The organization has revamped its sponsorship options, adding new “Diamond” and “Platinum Elite” tiers (together worth up to $1.5 million) and doubling the price of its existing opportunities.
ICANN is looking for two companies to act as Diamond sponsors, paying $500,000 each, and two more to sign up for the Platinum Elite deal, each paying $250,000.
For the money, these companies will get the best booths, exclusive branding on bags and T-shirts, along with a bunch of other benefits not available to lesser sponsors.
Diamond sponsors will be given a “90-minute industry/technology related presentation delivered by your company at a scheduled session”, which I believe might be a first for ICANN.
They’ll also get “exclusive press access”, according to the ICANN site.
(In Cartagena, “the press” was pretty much just me and the guy from Managing Internet IP. I can’t speak for him, but access to me can be had in SF for the price of a couple of pints of Anchor Steam).
Prices for the Platinum, Gold, Silver and Bronze deals it has offered at previous meetings have also been doubled, to $100,000, $50,000, $20,000 and $10,000 respectively.
ICANN is also looking for another $160,000 to sponsor its three evening events, $125,000 to sponsor the twice-daily coffee breaks and $210,000 to sponsor the lunches.
According to my back-of-the-envelope calculations, ICANN took in less than half a million dollars in sponsorship money for its meeting in Brussels last summer, which was its last big “first-world” gig.
For the March meeting, the organization is clearly hoping to benefit from the concentration of technology companies in the San Francisco bay area, which of course includes Silicon Valley.
I suspect that tapping this pool of sponsor cash may be the main reason the conference is amusingly being referred to officially as the “Silicon Valley in San Francisco” meeting.
How many sponsorship slots get filled by the domain name industry will depend to a degree on how likely it appears that ICANN will approve the new top-level domains program at the SF meeting.
I expect there would be a reluctance from registry service providers to drop half a million bucks on a conference from which the main headline at the end of the week is “ICANN delays gTLDs again”.
The current ICANN budget, incidentally, forecasts just $500,000 in sponsorship revenue for fiscal 2011, which ends in June. Its meetings typically cost $1 million each to run.
UPDATED: In the two hours since this post was first published, .com registry VeriSign has appeared on the ICANN web site as the first $500,000 “Diamond” sponsor of the meeting.

ICANN given 27 New Year’s resolutions

There’s a pretty big shake-up coming to ICANN in 2011, following the publication late last week of a report outlining 27 ways it should reform its power structures.
The final recommendations of its Accountability and Transparency Review Team (pdf) notably direct the organization to figure out its “dysfunctional” relationship with governments once and for all.
ICANN will also have to revamp how it decides who sits on its board of directors, when its staff can make unilateral decisions, how the voices of stakeholders are heard, and how its decisions can be appealed.
The ATRT report was developed, independently, as one of ICANN’s obligations under its Affirmation of Commitments with the US government’s Department of Commerce.
As such, ICANN is pretty much bound to adopt its findings. But many are written in such a way to enable some flexibility in their implementation.
The report covers four broad areas of reform, arguably the most important of which is ICANN’s relationship with its Governmental Advisory Committee.
As I’ve previously noted, ICANN and the GAC have a major stumbling block when it comes to effective communication due mainly to the fact that they can’t agree on what GAC “advice” is.
This has led, most recently, to delays with the TLD program, and with ICM Registry’s application for .xxx.
The ATRT report tells ICANN and the GAC to define “advice” before March this year.
It also recommends the opening of more formalized communications channels, so ICANN can tell the GAC when it needs advice, and on what topics, and the GAC can respond accordingly.
The report stops short of telling ICANN to follow GAC advice on a “mandatory” basis, as had been suggested by at least one GAC member (France).
The ICANN will still be able to overrule the GAC, but it will do so in a more formalized way.
ICANN’s public comment forums also look set for a rethink.
The ATRT report recommends, among other things, separating comment periods into at least two flavors and two phases, giving different priorities to different stages of policy development.
It could also could break out comment periods into two segments, to give commentators the chance to, in a second phase, rebut the earlier comments of others.
The three ICANN appeals processes (its Ombudsman, the Reconsideration Request process and the Independent Review Process) are also set for review.
The ATRT group wants ICANN to, before June, hire “a committee of independent experts” to figure out whether these procedures can be make cheaper, quicker and more useful.
The IRP, for example, is pretty much a rich man’s appeals process. The Ombudsman is seen as too cozy with ICANN to be an effective avenue for complaints. And the Reconsideration Request process has too many strict prerequisites to make it a useful tool.
The report includes a recommendation that ICANN should, in the next six months, clarify under what circumstances its is able to make decisions without listening to bottom-up consensus first:

The Board should clarify, as soon as possible but no later than June 2011 the distinction between issues that are properly subject to ICANN’s policy development processes and those matters that are properly within the executive functions performed by the ICANN staff and Board

ICANN has also been told to address how it selects its directors, with emphasis on:

identifying the collective skill-set required by the ICANN Board including such skills as public policy, finance, strategic planning, corporate governance, negotiation, and dispute resolution.

Other the recommendations themselves, the ATRT spends part of its 200-page report moaning about how little time (about nine months) it had to carry out its work, and how little importance some ICANN senior staff seemed to give to the process.
All of the 27 recommendations are expected to be implemented over the next six months. The report is currently open for public comment here.

Another top staffer quits ICANN

Tina Dam, senior director of internationalized domain names at ICANN, has quit.
The news appears to have been broken on Twitter by Adrian Kinderis, CEO of AusRegistry, which does quite a bit of work with IDNs in the middle-east.
It’s my understanding that Dam may have actually resigned almost a month ago, during ICANN’s meeting in Cartagena.
Her move comes at an awkward time for ICANN, which is in the middle of revamping its IDN ccTLD Fast Track program, which Dam headed.
Dam has been with ICANN for many years, and is widely well-regarded by the community.
Overseeing the IDN program is a highly specialized and, one imagines, quite stressful position. Finding a qualified replacement will not be trivial.
Her name is added to the list of senior ICANN staffers to either quit or get fired over the last year, which currently numbers at least half a dozen.

Cops seize 1,800 domains in 2010

Nominet helped the UK’s Metropolitan Police seize 1,800 .uk domains during 2010, many of them just prior to Christmas, according to the Met.
The domains all allegedly hosted “bogus” sites that were “either fraudulent or advertising counterfeit goods which failed to materialise”, the Met said.
While a statement from the Police Central e-Crime Unit said it had worked with “registrars” to shut down the domains, it also credited Nominet a role:

The sites are run by organised criminal networks and thought to generate millions of pounds which can then be used to fund further illicit activity.
The preventative action was carried out in partnership with Nominet – the public body for UK domain name registrations – and involved a concentrated effort around the festive period; a time when we traditionally see an upsurge in this type of crime as fraudsters take advantage of the increased number of online consumers.

It’s not the first time the UK police, with Nominet’s aid, have swooped to shut down such domains.
In December 2009, a similar announcement from the PCeU, which said that 1,219 domains had been turned off, was greeted less than warmly by some.
Web hosting companies reportedly often ask for a court order before shutting down sites. When VeriSign helped US law enforcement seize 80+ domains in November, it did so subject to a court order.
It seems domains in the UK may not be subject to such judicial oversight.
Nominet chief executive Lesley Cowley, discussing the December 2009 seizures in a recent interview, would only tell me that the police had “instructed” Nominet to shut down the domains.
According to The Register’s coverage, Nominet used the lack of authentic Whois data as legal cover for those seizures.
But there is a new Nominet policy development process under way, initiated by the UK Serious and Organised Crime Agency, which seeks to amend the standard .uk registrant agreement to give a stronger contractual basis for seizing domains when they appear to break UK law.