ICANN replaces three directors

ICANN has named Cherine Chalaby, Bertrand de La Chapelle and Erika Mann as the new members of its board of directors.
The three will replace current vice-chair Dennis Jennings, along with Harald Tveit Alvestrand and Jean-Jacques Subrenat, whose terms expire next month.
Under ICANN bylaws, Jennings, Alvestrand and Subrenat could have served two additional three-year terms, but I do not know whether any of them applied to do so.
The ICANN Nominating Committee, which was responsible for selecting the new directors, highlighted the fact that the board is getting its first Arabic-speaking member.
That’s Egyptian Cherine Chalaby. I must confess I’d never heard of him either. Google tells me he has a tech/consulting background, and works for a UK-based investment bank.
ICANN has had a couple of minor run-ins with Arabic members of the community recently, such as over the the delegation of Arabic-script ccTLDs, which came in for criticism.
There was also a small flare-up over the random inclusion of an anti-terrorism clause in the new gTLD application process, which led to (in my view overblown) accusations of insensitivity.
NomCom chair Wolfgang Kleinwaechter said the appointment of Chalaby “underlines the importance of further internationalization of ICANN.”
The appointment of Bertrand de La Chapelle, who becomes the first second person to leave the ICANN Governmental Advisory Committee to join the board, is also particularly interesting.
De La Chapelle is France’s GAC representative, and one of the most vocal members of the committee.
In my view, he’s currently the GAC rep doing the most to build bridges with the rest of the community over the tricky “morality and public order” policy process. The board’s gain is the GAC’s loss.
Clearly serious about his new role, de La Chapelle said he will quit his job as “Thematic Ambassador and Special Envoy for the Information Society in the French Foreign and European Affairs Ministry” and look for other sources of funding.
German Erika Mann joins the board after a 15-year stint as a Member of the European Parliament, sitting in the Socialist group. She speaks four languages and once ran her own IT consultancy.
According to her CV, she was an expert in ICANN matters between 1985 and 1994, which is almost supernaturally impressive.

ICANN surveys – Fail or Win?

A couple of times this year, ICANN has supplemented its regular email public comment periods with quicker, easier point-and-click surveys.
I assume they were designed to more clearly communicate the issues and increase response rates. In some respects they seem to have been a success, in others, not so much.
First, the Win.
Of the two comment periods I’ve looked at – on the Post-Expiration Domain Name Recovery policy and ICANN’s public meetings strategy – response rates were definitely up on what you would normally expect to see.
The PEDNR report solicited 10 regular email comments and a whopping 412 survey responses. The meetings survey had three emailed comments and 297 survey responses.
Judging from the PEDNR summary and analysis report, which breaks down the actual responses, the majority of respondents had something of value to say for most of the questions posed.
(It also reveals that I was the first person to take the survey. Take that, Kirikos!)
The majority of responses came from Germanic-sounding names, so I’m guessing there was some outreach in a German-language forum somewhere. Due to this fact, some respondents confessed to not fully understanding some of the English-only questions.
Now, the Fail.
The survey conducted to gauge feeling on ICANN policy for deciding meeting locations has produced some incomprehensible data. Take this, for example:

Considerations in choosing a host city
246 voters replied:
591 or 40% felt that Facilities were most important
399 or 27% felt that Convenience of meeting location and cost for both ICANN and attendees most important
495 or 33% felt that Safety and Security were most important

So… 246 people voted, but 1,485 votes are tallied?
A few more questions had similar anomalies in their results, rendering the data pretty much worthless. It’s reproduced by ICANN regardless, and without comment.
I suspect the survey provider, BigPulse, may have some of the blame, although it can’t have helped that the ICANN survey itself was reportedly highly confusing.
The PEDNR survey was conducted using Zoomerang. I do not recall having any trouble using it.
On balance I’d say that, teething troubles aside, surveys make a nice complement to public comment periods, provided that, due to the risk of “framing”, they do not carry too much weight.

WIPO suggests RapidShare might own “rapid” after all

RapidShare has won a UDRP complaint against the owner of rapidpiracy.com, after the WIPO panelist apparently went against recent precedent.
As I’ve been reporting for a while now, RapidShare has been trying to clean up its brand by filing UDRP complaints on domains that contain its trademark.
In pretty much all cases the offending domain hosts a web site containing links to copyrighted material hosted on rapidshare.com and other file-sharing services.
In most cases, the domain also includes the word “rapidshare”, which the company has trademarked.
In July, a WIPO panelist rejected RapidShare’s claim on rapidbay.net, concluding that the words “rapidbay” and “rapidshare” were not sufficiently alike to warrant an “identical or confusingly similar” finding.
Now, a different WIPO panelist has come to the opposite conclusion, finding for the complainant in the case of rapidpiracy.com; “rapidshare” and “rapidpiracy” are apparently confusingly similar.
Acknowledging the precedent could have been “fatal” to RapidShare’s case, Matthew Harris drew a distinction, arguing that “piracy” and “share” are conceptually similar, whereas “bay” was not.

it is not fanciful to suggest the term “rapidpiracy” can be read as involving a conceptual allusion to the Complainants’ mark (perhaps suggesting an illegal version of the Complainants’ services).

He backed this argument by pointing to the fact that there were three references to RapidShare on the first page of rapidpiracy.com, before the complaint was filed.

In short, an obvious inference from this content is that the Respondent intended the Domain Name to be understood as alluding to the Complainants’ mark.

Harris noted that WIPO guidelines say that panelists should not take into account the contents of a web site in order to determine whether the domain name is similar to a trademark, but he had an excuse.

The test is not of similarity between businesses or websites. It involves a comparison between mark and domain name only. However, that does not mean that the content of the website cannot in some cases provide a pointer as to how Internet users will perceive a domain name that in turn might inform the relevant comparison.

(Domain Name Wire has previously noted that Harris has a record of “questionable” decisions.)
He concluded:

So do these factors provide sufficient similarity in this case? Bearing in mind that this is a low threshold test and in the absence of argument to the contrary, the Panel ultimately concludes that the Complainants have satisfied that test. The Complainants have only just crossed the threshold and in doing so they were given a helping hand by the Respondent; but they have crossed it nevertheless.

In my humble opinion there’s no doubt that rapidpiracy.com were a bunch of scoundrels, but I can’t help but wonder whether UDRP was the right place to address the problem.
Yet the precedent has been set; RapidShare does have some claim on the word “rapid” under UDRP, despite its lack of a trademark.
What this means for the UDRP case against rapid.org, which is also in the business of helping people share copyrighted material, remains to be seen. I’m told that case has been assigned the same panelist.

Facebook sues TeachBook.com for cybersquatting

All your “book” are belong to us?
Facebook has filed a cybersquatting and trademark infringement lawsuit against TeachBook.com, a social networking site for teachers.
The suit claims the site unfairly capitalizes on the Facebook trademark by using the “book” portion of the mark to evoke the idea of social networking.
According to the complaint, one of TeachBook’s selling points is that many schools ban teachers from using Facebook in order to prevent kids extorting them using personal information.
I don’t know how popular the site is — it doesn’t look like much — but it appears that TeachBook also owns a trademark on its brand.
I doubt this kind of claim would hold up under UDRP rules (unless a “friendly” panelist got the case), which is probably why Facebook has resorted to the US courts.
CourthouseNews.com has a PDF of the complaint and exhibits.

ITU chief snubs ICANN’s Beckstrom

“If your name’s not down, you’re not coming in.”
That’s pretty much the message sent to ICANN chief Rod Beckstrom by the International Telecommunications Union’s secretary general, following his request to attend a top-level ITU policy meeting.
Beckstrom wrote to Hamadoun Toure last month, asking for observer status at October’s ITU Plenipotentiary Conference – the “supreme organ” of ITU policy-making, held every four years.
The idea was that ICANN and the ITU would start to develop a more formal relationship.
In a letter published today, Toure turned him down, noting that the guest-list for the Guadalajara meeting is strictly limited by convention to entities such as national telecoms regulators and UN agencies.

For your information, the Plenipotentiary Conferece, the supreme organ of the ITU, is the highest level of administrative conference for the Union.
…
I regret to inform you that the ITU is unable to respond positively to your request to attend

Ouch.
ICANN and the ITU have a spiky history. It’s well known that the ITU would prefer internet addressing to be handled from Geneva rather than Marina Del Rey. Over the years, it’s occasionally made the odd attempted power grab.
The fact that Beckstrom has been rebuffed is surely more evidence that, for all its flaws, ICANN is still a better place to manage the DNS.
If the head of ICANN can’t even observe the ITU’s top dogs at work, what chance would the rest of us have of being heard?

Microsoft wins Kinect domains, but still doesn’t own kinect.com

Microsoft has successfully recovered two domain names that contain its Kinect games trademark, but kinect.com still belongs to another company.
A National Arbitration Forum UDRP panelist handed Microsoft kinectxbox.com and xbox-kinect.com, which were registered on the eve of Kinect’s launch, calling the registrations “opportunistic bad faith”.
The registrant, located in France, said in his defense that he’d planned to create a fan site for the Kinect, which is an upgrade for the Xbox games console.
But he didn’t get a chance – the domains were registered on June 12, Kinect was announced the following day, and Microsoft had slapped him with a UDRP complaint by June 29.
As I reported back in June, kinect.com is currently registered to an ad agency called CAHG. I’d be surprised if Microsoft hasn’t tried to buy the domain already.
Interestingly, Microsoft, which looks like a client of Melbourne IT’s brand management service, does own kinect.co, but it currently redirects to a Bing search.

We Buy Any Car UDRPs webuyanymotors.com

If you live in the UK, you’ve probably seen the annoying-as-hell (yet consequently effective) WeBuyAnyCar.com commercials on TV.
Now the company is going after the domain webuyanymotors.com, owned by another British company with a similar business model, with a UDRP proceeding.
WeBuyAnyCar has obviously spent a fair bit of money building its brand up recently, but are “car” and “motors” really confusingly similar?
Trying singing along to the commercial using “motors”. It just doesn’t scan properly.

ICANN releases (censored) board briefing docs

ICANN has given an unprecedented glimpse into the workings of its board of directors, with the release of hundreds of pages of staff briefing papers.
But the documents are quite heavily redacted, particularly when it comes to some of the more controversial topics.
The documents show what ICANN staffers told the board in the run-up to the Nairobi and Brussels meetings, dealing with important decisions such as .xxx and internationalized domain names.
The Brussels decision to put .xxx back on the track to approval sees more than its fair share of blacked-out text, but the documents do show that ICANN general counsel John Jeffrey’s recommendations were pretty much in line with how the board eventually voted.
Other topics seeing redaction include the implementation of DNSSEC at the root, the activities of the Internet Governance Forum, and specific discussion of IDN ccTLD delegations.
Some topics are deemed so sensitive that even the titles of the pages have been blacked out. But in at least one case somebody apparently forgot to redact the title from the PDF’s internal bookmarks.
So we know, for example, that a section entitled “Chronological-History-ICM” is deemed entirely unpublishable, even though ICANN has previously published a document with pretty much the same title (pdf).

World of Warcraft player ganks UDRP complainant

An aviation safety consulting firm has lost its UDRP case against a gamer who used its company name for his World of Warcraft guild.
Wyvern Consulting went after wyvern.com, which was registered by its current owner back in 2005.
The registrant said he’d originally registered the name for a possible business venture, which fell through, and then decided to use it for his WoW guild instead.
The National Arbitration Forum panelist found that while Wyvern proved the name was confusingly similar to its common law trademark, and that the registrant lacked legitimate interests in the domain, it had failed to prove bad faith.

Complainant does not have a registered trademark, and offers no proof of consumer confusion or loss of business. Respondent’s proof of its current use is minimal, but the burden is upon Complainant on this issue. Respondent’s use of the disputed domain name as a forum and e-mail service for its World of Warcraft guild does not establish that Respondent registered and used the disputed domain name in bad faith

The domain in question currently appears to be unused, although archive.org shows a WoW guild page back in 2008.

New TLD ownership rules punted to ICANN board

The ICANN board will be asked to untangle the policy mess that currently bans domain name registrars from applying for new top-level domains, after a GNSO working group failed to reach consensus.
The Vertical Integration WG was tasked with figuring out whether registrars should be allowed to own new TLD registries and vice versa, but only managed to reach deadlock.
The GNSO Council is now likely to punt the issue to the ICANN’s September 24-25 retreat, asking the board to consider the issues raised by the WG’s non-committal interim report.
It’s a dismaying case of pass-the-parcel that highlights both the trickiness of the VI problem and the limits of ICANN’s bottom-up policy-making process.
ICANN’s Draft Applicant Guidebook currently says that cross ownership between registrars and new TLD registries should be limited to 2% and that all new TLDs need to be offered to all accredited registrars.
This was in response to fears from some quarters that if a registrar also owned a new TLD registry, it would have an unfair advantage over other registrars, ultimately harming registrants.
The DAGv4 text was an overt, deliberately Draconian placeholder – it would ban all registrars and some registries, as well as making “.brand” TLDs unworkable – designed to force the GNSO find a better solution to the perceived problem.
The WG, which is ongoing, has so far failed to do so, and now seems set to pass the hot potato back from whence it came.
What all this means is that the ICANN board (and, let’s face it, staff) will be forced to assemble a workable VI policy for the first round of new TLD applications from the piecemeal suggestions of the WG; to do over two days or less what the WG failed to do over six months.
What the board will decide remains to be seen, but it could wind up governing the first round of new TLD applications, potentially making it a considerably smaller round.