Yes, there is cybersquatting in new gTLDs

With new TLDs, comes cybersquatting. It’s inevitable. And it’s also true of the new gTLDs that hit general availability this week.
The question of what is or is not cybersquatting is best left to a judge or UDRP panel, of course, but I’ve already come across plenty of newly registered domains that I do not believe would pass the UDRP test.
Sifting through select Whois records of domains that were registered in Donuts’ first seven gTLDs over the last few days, and without leaving the A’s, I’ve found the likes of: adidas.clothing, americanapparel.clothing, akamai.guru, americanexpress.guru. appleservice.guru and accenture.ventures.
Delving a little deeper into .clothing, I see the likes of kanyewest.clothing, ralphlauren.clothing, kardashiankollection.clothing, lauraashley.clothin, michaeljordan.clothing and more.
One Los Angeles clothing store appears to have registered several .clothing domains matching brands it does not own, possibly unaware that such behavior is frowned upon.
While there could be legitimate uses of the names I’ve highlighted here, possibly, they all appear to me to be registered to people unaffiliated with the referenced brands or celebrities.
I found more that are registered behind Whois privacy services, where it’s not possible to tell whether the domain belongs to the brand or not. Domains such as ibm.guru and ibm.ventures use Whois privacy, yet resolve to the IBM web site.
Cases of obvious UDRP losses seem to be few and far between, however. The vast majority of domains registered in these new gTLDs this week seem to be straightforward generic terms.
While I’m using the UDRP sniff test to highlight domains I feel may be cybersquatting, there’s a new process in town when it comes to disputes: the faster, cheaper Uniform Rapid Suspension policy.
URS has a higher burden of proof — “clear and convincing evidence” of bad faith registration and use — and it’s not yet clear how panelists will handle these cases.
There’s only been one URS case to date, that of facebok.pw, in which the domain was suspended following a complaint by Facebook.
In that case, Facebook was able to show bad faith by presenting the panelist with a list of other typo domains the respondent had registered.

Cartier sues Nominet hoping to set global domain name take-down precedent

Luxury watchmaker Cartier has taken .uk registry Nominet to court, hoping to set a precedent that would enable big brands to have domain names taken down at a whim.
The company sued Nominet in a London court in October, seeking an injunction to force the registry to take down 12 domain names that at the time led to sites allegedly selling counterfeit watches.
We’ve only become aware of the case today after Nominet revealed it has filed its defense documents.
Judging by documents attached to Nominet’s court filings, Cartier sees the suit as a test case that could allow it to bring similar suits against other “less cooperative” registries elsewhere in the world.
In a letter submitted as evidence as part of Nominet’s defense, Richard Graham, head of digital IP at Cartier parent company Richemont International, said that he was:

seeking to develop a range of tools that can be deployed quickly and efficiently to prevent Internet users accessing websites that offer counterfeit goods… [and] looking to establish a precedent that can be used to persuade courts in other jurisdictions where the registries are less cooperative.

It’s worth noting that Richemont has applied for 13 dot-brands under ICANN’s new gTLD program and that Graham is often the face of the applications at conferences and such.
Pretty soon Richemont will also be a domain name registry. We seem to be looking at two prongs of its brand protection strategy here.
According to the company’s suit, the 12 domains in question all had bogus Whois information and were all being used to sell bogus Cartier goods.
None of them used a Cartier trademark in the domain — this is explicitly about the contents of web sites, not their domains names — and Cartier says most appeared to be registered to people in China.
Rather than submitting a Whois inaccuracy complaint with Nominet — which could have led to the domains being suspended for a breach of the terms of service — Cartier decided to sue instead.
Graham actually gave Nominet’s lawyers over a week’s notice that the lawsuit was incoming, writing his letter (pdf) on October 22 and filing the complaint (pdf) with the courts November 4.
Cartier seems to have grown frustrated playing whack-a-mole with bootleggers who cannot be traced and just pop up somewhere else whenever their latest web host is persuaded to cut them off.
Graham’s letter, which comes across almost apologetic in its cordiality when compared to the usual legal threat, reads:

Cartier therefore believes the most cost effective and efficient way to disrupt access to the Counterfeiting Websites operating in the UK is to seek relief from you, as the body operating the registry of .uk domain names.

Armed with the foreknowledge provided by the letter, Nominet reviewed the Whois records of the domains in question, found them lacking, and suspended the lot.
Ten were suspended before Cartier sued, according to Nominet. Another expired before the suit was filed and was re-registered by a third party. A fourth, allegedly registered to a German whose scanned identity card was submitted as evidence by Nominet, was suspended earlier this month.
As such, much of Nominet’s defense (pdf) relies upon what seems to be a new and obscure legal guideline, the “Practice Direction on Pre-Action Conduct”, that encourages people to settle their differences without resorting to the courts.
Nominet’s basically saying that there was no need for Cartier to sue, because it already has procedures in place to deal with counterfeiters using fake Whois data.
Also offered in the defense are the facts that suspending a domain does not remove a web site, that Nominet does not operate web sites, and the following:

Nominet is not at liberty under its Terms and Conditions of Domain Name Registration to suspend .uk domain names summarily upon mere receipt of a demand from someone unconnected with the domain name registrant.

That seems to me to be among the most important parts of the defense.
If Cartier were to win this case, it may well set a precedent giving registries (in the UK at least, at first) good reason to cower when they receive dodgy take-down orders from multibillion-dollar brands.
Indeed, that seems to be what Cartier is going for here.
Unfortunately, Nominet has a track record of at least accelerating the takedown of domains based on nothing more than third-party “suspicion”. Its defense actually admits this fact, stating:

Inaccurate identity and contact information generally leads to the suspension of a domain within three weeks. Where suspicions of criminality are formally confirmed by a recognised law enforcement agency, suspension may be very significantly expedited.

I wonder if this lawsuit would have happened had Nominet not been so accommodating to unilateral third-party take-down notices in the past.
In a statement to members today, a copy of which was sent to DI, Nominet encouraged internet users to report counterfeiting web sites to the police if and when they find them.

DotConnectAfrica files for ICANN independent review

Failed .africa gTLD applicant DotConnectAfrica has filed an Independent Review Process appeal against ICANN, it emerged today.
The nature of the complaint is not entirely clear, but in a press release DCA said it’s related to “ICANN Board decisions and actions taken with regard to DCA Trust’s application for the .africa new gTLD”.
It’s only the third time an IRP has been filed. The first two were related to .xxx; ICM Registry won its pioneering case in 2009 and Manwin Licensing settled its followup case last year.
DCA said that it’s an “amended” complaint. It turns out the first notice of IRP was sent October 23. ICANN published it December 12, but I missed it at the time.
I’d guess that the original needed to be amended due to a lack of detail. The “Nature of Dispute” section of the form, filed with the International Center for Dispute Resolution, is just a sentence long, whereas ICM and Manwin attached 30 to 60-page legal complaints to theirs.
The revised notice, which has not yet been published, was filed January 10, according to DCA.
DCA applied for .africa in the current new gTLD round, but lacked the government support required by the Applicant Guidebook for strings matching the names of important geographic regions.
Its rival applicant, South African ccTLD registry Uniforum, which does have government backing, looks set to wind up delegated, whereas ICANN has designated DCA’s bid as officially “Not Approved”.
DCA has been alleging a conspiracy — often involving DI — at almost every juncture of the process, even before it filed its application. Read more here, here and here.
To win an IRP, it’s going to have to show that it suffered “injury or harm that is directly and causally connected to the Board’s alleged violation of the Bylaws or the Articles of Incorporation”.

Nominet bans rape domains

Nominet has banned “rape” domains from the .uk space, following an independent review spurred by a newspaper article.
The company announced today that it is to adopt the recommendations of Lord Macdonald (pdf), who said domains that “signal or encourage serious sexual offences” should be deleted.
The policy applies retroactively and at least a dozen domains have already been suspended.
Nominet CEO Lesley Cowley said in a statement:

Even though we are only talking about a handful of domain names, we agreed that we do not want those domain names on the register – regardless of whether there was an associated website or content.

Under the new policy, Nominet will review all new domain name registrations within the first 48 hours. It said it will:

Institute a system of post-registration domain name screening, within 48 hours of registration, for domain names that appear to signal or encourage serious sexual offences. Where examples that meet these criteria are discovered, they will be suspended or de-registered.

It’s pretty vague at the moment, both in terms of what constitutes a “signal” and how the oversight process will be carried out. Nominet said it will reveal implementation details at a later date.
Importantly, there will be no pre-screening of domains for potentially offensive substrings. It will still be possible to register names if you’re a “therapist” or enjoy “grapes”.
Macdonald said in his report:

any process of pre-registration scrutiny is likely to be slow, technologically blunt, and have minimal useful impact. It would likely damage the credibility of the .uk space in the market place and it would bring few discernible advantages.

He seems to be envisaging a system of manual review, aided by keyword searches, that looks only for domains that seem to be unambiguously “egregious”. He wrote:

it is precisely because of the inadequacies of the screening technology that Nominet has available to it, and the utmost importance of avoiding unnecessary or mistaken interference with free expression rights, that any post registration screening process should be strictly designed to target only the most egregious examples

Keywords under scrutiny are likely to include “rape”, “incest”, “bestiality”, “paedophilia” and derivatives.
Macdonald noted that Nominet gets 20 – 25 registrations containing these strings per week, but that the “vast majority” were false positives that should not trigger a suspension.
The Macdonald report gives examples of existing domains that would be likely to trigger Nominet action, including rapeme.co.uk, rapemyteacher.co.uk and rapeporn.co.uk.
According to Whois records, all of the domains listed in the report have already been suspended by Nominet.
Macdonald wrote:

it is difficult to see any reasonable basis whatsoever upon which the registration of a domain name such as rapemyteacher.co.uk could be consistent with any reasonable terms of business that Nominet might draw up.

It’s not clear from archives whether many of these domains even led to sites with content. An Archive.org capture of rapeporn.co.uk from 2009 contains a short essay (looks like a hasty attempt to justify the domain to me) on why rape fantasy and actual rape are different.
I suspect that “rapemyteacher.co.uk” was supposed to be a joke, a play on the popular site RateMyTeachers.com.
However, in Macdonald’s view, it’s easily possible for Nominet to suspend these names without infringing anyone’s free speech rights under the European Convention on Human Rights and UK law.
He said that in some cases the domain name itself may be illegal, if it encourages others to commitment crimes. Incitement is a crime, after all.
But his report seems to envisage that the use of the word “rape” may be justifiable when used in a figurative sense not related to actual sexual violence. It would also not be banned in positive contexts such as rape victim support services.
He recommended against instituting bans on swearwords and racist terms for similar reasons.
The one thing missing from the report, and Nominet’s response to it so far, is any requirement for Nominet to disclose which domain names it has suspended under the new policy.
That would be an important oversight mechanism, in my view.
If Nominet is going to be deleting names based on an as-yet-undisclosed review process, wouldn’t free speech be served by at least telling the public what has been censored?
What if rapemyteacher.co.uk was supposed to be a parody of RateMyTeachers.com? Did Nominet just suspend a humor site for no good reason and without telling anyone but the registrant?
The Macdonald report was commissioned following an outraged Sunday Times article based on a blog post by anti-porn crusader John Carr, who wanted a ban on “depraved or disgusting words”.
Neither Carr, the Sunday Times, Nominet or Macdonald have ever presented any examples of “egregious” .uk domain names leading to content encouraging or glorifying sexual violence, nor have they ever said that they’ve seen one with their own eyes.
It’s possible that such domains do not exist.
The review and the new Nominet policy, I think it’s fair to say, has probably not protected a single man, woman, child, corpse or sheep from unwelcome interference. It was, I suspect, a waste of time and resources.
But at first look the policy, properly implemented, does not appear to present a huge risk of infringing free speech rights or throwing up vast numbers of false positives.

ICANN has spent $120 million on new gTLDs

The new gTLD program has cost ICANN almost $120 million so far, according to a quarterly financial report published earlier this week.
It’s the first time ICANN has published a quarterly statement. Normally it only files a formal report annually.
According to the report, ICANN has spent $119.2 million of its original £344.9 million program budget (which comprises application fees net of refunds).
As of September 30, it still had $225.7 million in cash dedicated to the program, which is accounted for separate to ICANN’s regular operating budget.
ICANN estimates its total spend will be $204.3 million. If you factor in the $108.9 million “risk reserve”, that would put the program $3 million over budget by the time it concludes.
None of this includes the likely proceeds of contention set auctions, which are expected to amount to many millions. This cash will also be accounted for separately, but the community discussion on how to spend it is only just beginning.

Applicant says .islam ban would damage ICANN

If ICANN decides to reject Asia Green IT’s applications for .islam and .halal it would “be dealing a blow to the new gTLD program’s credibility”, according to AGIT.
The two potential new gTLDs are currently in limbo, awaiting a decision by the ICANN’s board of directors’ New gTLD Program Committee, following stalemate within the Governmental Advisory Committee.
The Organization for Islamic Cooperation has objected to the applications, saying it represents 1.6 billion Muslims and that it’s “concerned” about the potential “misuse” of the names.
Mehdi Abbasnia, managing director of the Turkey-based company, recently wrote to ICANN too (pdf) to ask that ICANN speedily approve its applications, given that two formal OIC-backed Community Objections have already failed.
Abbasnia also wrote to DI on Friday (pdf) to reiterate many of the same points.
The two gTLDs are among only a handful originating it the Muslim world, he said, and the idea is to spur adoption of domain names among all Muslims.

Muslim communities the world over have a lot to gain from seeing their members empowered through namespaces that are better suited to their specific needs, easier for them to relate to and use and respectful of their culture and laws.
As Muslims ourselves, this is what we felt we could bring to our community when we first heard of the new gTLD program: our expertise as a technical enabler of TLDs by Muslims, for Muslims. We are looking to fuel the engine, not drive the car.

He added that AGIT prevailed in the objections filed against it, and the GAC failed to reach a consensus to object.

Some in ICANN circles have used the phrase “taking a second bite at the apple” to characterize attempts to overturn decisions and derail processes. In the case of our applications for .Halal and .Islam, the apple’s been eaten to the core!
…
The ball is now in the ICANN Board’s court. If it bows to the OIC’s pressure and blocks our TLD applications, not only will Muslims the world over be prevented from claiming their very own space on the Internet, but I believe it will also be dealing a blow to the new gTLD program’s credibility, and to the credibility of ICANN as a multi-stakeholder governance organization.

While I have no opinion on whether the two applications should be approved or not, I disagree with the apple metaphor.
AGIT is in receipt of formal “GAC Advice on New gTLDs” explaining a non-consensus objection. That’s clearly envisaged by the Applicant Guidebook, and there a process for dealing with it: ICANN’s board talks to the GAC to understand the extent of its members’ concerns and then explains itself after it makes a decision one way or the other.
There doesn’t seem to be an abuse of process by the OIC or GAC here, just a very tricky question for the ICANN board to answer.

Applicants spank IO in .health objections

Donuts and Dot Health LLC have beaten back objections filed by ICANN’s Independent Objector over the .health gTLD.
In simultaneous separate rulings by the same three-person International Chamber of Commerce panel, it was decided that the string “health” is not intrinsically offensive.
The IO, in his Limited Public Interest Objections, had argued that health is a human right protected by international law, and that .health should be managed with certain safeguards to protect the public.
But the ICC panels sided with the applicants, finding that in order for an objector to prevail in a LPI objection he must show that the string itself contravenes international law.
The panels used a strict reading of the Applicant Guidebook and supporting documentation to come to their conclusions. In the Donuts case, the panel ruled:

The Panel has no hesitation in finding that the string “health” is not objectionable in and of itself. It is obvious to the Panel that the word “health” does not conflict with any generally accepted legal norms relating to morality and public order of the same nature as the first three grounds ICANN listed in AGB Section 3.5.3.

The LPI objection was created in order to prevent gTLDs from being delegated where the string itself endorses ideas such as racism, slavery or child abuse.
ICANN has said that applications for such strings “may well be rare or non-existent”.
The panels sharply dismissed claims that IO, Alain Pellet, and a staff member were conflicted due to their previous work for the World Health Organization.
The Donuts ruling is here and the Dot Health ruling is here.

The plurals debate is over as ICANN delegates 17 more new gTLDs

Another 17 new gTLDs were delegated to the DNS root last night, most of them belonging to Donuts.
Notably, Donuts now runs .photos and .careers, the first two delegated gTLDs where live applications also exist for the singular form of the string.
Uniregistry is currently contracted and awaiting the delegation of .photo, while dotCareer is already contracted for .career.
The debate about whether ICANN should permit singular and plural versions of the same string to coexist is now surely over.
Just a week ago, the Internet Association — a trade group comprising Amazon, Google, AOL, Yahoo, Salesforce, Zynga and many others — called on ICANN to rethink its policy of coexistence.
Calling the policy a “violation of user trust”, the Association said (pdf), “the existence of these domain names poses significant risks to the DNS, Internet companies, and their users”.
The Association noted that the Governmental Advisory Committee had strong concerns about singular and plural coexistence, due to the risk of consumer confusion.
String Confusion Objection panels have reached quite different conclusions about whether adding an “s” makes a string confusingly similar to another.
Personally, while I’m all for competition, I believe coexistence will lead to parasitical business models that will bring the domain name industry into further disrepute.
I know for a fact that some registries are considering the merits of tailgating their confusingly similar competitors.
But it seems ICANN’s decision was final.
There’s currently no mechanism for ICANN to un-approve a gTLD once it’s been delegated — failing serious wrongdoing by the registry — so it’s difficult to see how it could now decide that plural and singular forms of the same string should be mutually exclusive.
While I’m sure the Internet Association and others will carry on complaining, I think they’re now talking to deaf ears.
There were 17 new gTLDs delegated yesterday in total, 15 of which were in Donuts portfolio.
Donuts has also added the following to its portfolio: .cab, .camp, .academy, .center, .company, .computer, .domains, .limo, .management, .recipes, .shoes, .systems and .viajes (Spanish for “travel”).
CONAC, the China Organizational Name Administration Center had .政务 (“government”) and .公益 (“public interest”) delegated.

ICANN publishes accelerated gTLD auction timeline

ICANN has cut the anticipated length of its “last resort” new gTLD auctions in half, last night publishing a schedule that would take 10 months and end in early 2015.
The draft schedule and auction rules, put together by selected auctioneer Power Auctions, would see 10 monthly batches of auctions, with 20 contention sets resolved per month.
The revised rules, which are open for public comment, read:

It is anticipated that Auctions will be conducted once per month to resolve 20 Contention Sets per Auction, with the intention to complete all Auctions within one (1) year from the date of the first Auction.

It’s still anticipated that auctions will begin in March 2014.
That’s a lot better for applicants than the original plan, which was to limit each applicant to only five auctions per month. Due to Donuts’ large portfolio, that would have stretched the process out to April 2016.
An accompanying schedule (pdf) published last night actually batches up 201 of the remaining contested gTLDs into 10 buckets, so most applicants now know where they stand.
It’s good news for applicants that have high priority numbers but are in contention sets with applicants with low priority numbers — they’ll get bumped to the front of the queue.
For example, dot Buy Limited drew 1,883 in the prioritization lottery, but will be in the first monthly auction because it’s up against Amazon, with priority number 128, for .buy.
There’s still no news about how ICANN will handle indirect contention, however.
While the schedule has placed the likes of .unicom and .unicorn — which were found similar by evaluation panels — in the same auction, it does not yet reflect the results of objections that should (in theory) place different strings in the same contention set.

Should new gTLD objections have an appeals process?

That’s the question the ICANN Ombudsman is asking today.
Several new gTLD applicants that have lost objections — many in decisions that appear to diverge from ICANN’s rules or are inconsistent with other decisions — have been in touch to ask for redress, Ombudsman Chris LaHatte blogged this morning. He wrote:

The real problem as it seems to me, is that apart from the internal review procedures, there is no ability to seek an appeal from the panel decisions. A number of complainants had mentioned the need for an appeal process, emphasising that some of the decisions were in their view, inconsistent or not following the majority views.

LaHatte noted that his role is to decide issues of fairness in ICANN’s own decisions. As objections are all handled by third-party arbitration bodies, it’s not at all clear whether he has any authority at all over objection decisions.
Applicants have also been invoking the Reconsideration process en masse in an attempt to have successful objections overturned, but all Reconsideration requests to date have been rejected.
Reconsideration generally requires that the requester provide ICANN with new evidence that was not considered at the time of the original decision.
The ICANN Board Governance Committee, which handles Reconsideration, appears to be happy to leave objections in the hands of the arbitrators so far.
But the new gTLD objection process is a bit of a joke at the moment.
String Confusion Objection panelists have delivered inconsistent decisions, while Community Objection and Limited Public Interest Objection panels often seem to be making up rules as they go.
So should ICANN have an appeals process? If one is created it will undoubtedly be broadly used.