OpenTLD says suspension would “devastate” its business

OpenTLD has fired off its newest salvo in its ongoing cybersquatting dispute with ICANN, saying the ICANN-imposed suspension would “devastate” its business.
The company has also addressed many of ICANN’s cybersquatting allegations, while failing to deny it squatted on two competitors’ trademarks.
In its latest arbitration filing (pdf), OpenTLD said: “Quite simply, the suspension of OpenTLD’s ability to offer gTLD registrations and inbound transfers would decimate its unique business model.”
ICANN had argued that the suspension of its registrar accreditation was no big deal because its gTLD domain base is measured in the low thousands, whereas the total domains under management of parent Freenom, which offers free domains in .tk and other ccTLDS, is in excess of 25 million.
But OpenTLD said the two businesses as “deeply intertwined” and separating the two would impair its ability to do business.
ICANN is pushing for the suspension because OpenTLD lost two UDRP cases earlier this year. Both were filed by competitors — Key-Systems and NetEarth — who accused the registrar of attempting to lure resellers to its platform by infringing rivals’ trademarks.
ICANN has since followed up by accusing OpenTLD of continuing to cybersquat famous brands, including Google and Facebook, even after the suspension notice was issued. These claims, as I noted last week, are very dubious, however.
In its latest filing, OpenTLD denies that any of those domains — all of which use its privacy service — were registered by itself. It goes so far as to name the actual registrants.
But it fails to deny that it was the true registrant of the Key-Systems and NetEarth domains lost in the UDRP cases.
Rather, it focuses on ICANN’s claims that it committed “cyberflight” by deleting the UDRP’d domains rather than allowing them to be transferred to the trademark owners.
It admits that the domains were deleted but said this was “inadvertent” and that it attempted to transfer them to its competitors later.
OpenTLD wants the threatened suspension stayed.
The case continues. A decision by the arbitration panel is expected August 24.

OpenTLD cybersquatting fight escalates

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.

OpenTLD suspension stayed in unprecedented arbitration case

“Cybersquatting” registrar OpenTLD, part of the Freenom group, has had its accreditation un-suspended by ICANN while the two parties slug it out in arbitration.
Filed three weeks ago by OpenTLD, it’s the first complaint to head to arbitration about under the 2013 Registrar Accreditation Agreement.
ICANN suspended the registrar for 90 days in late June, claiming that it “engaged in a pattern and practice of trafficking in or use of domain names identical or confusingly similar to a trademark or service mark of a third party”.
But OpenTLD filed its arbitration claim day before the suspension was due to come in to effect, demanding a stay.
ICANN — voluntarily, it seems — put the suspension on hold pending the outcome of the case.
The suspension came about due to OpenTLD being found guilty of cybersquatting its competitors in two UDRP cases.
In both cases, the UDRP panel found that the company had cybersquatted the trademarks of rival registrars in an attempt to entice their resellers over to its platform.
But OpenTLD claims that ICANN rushed to suspend it without giving it a chance to put forward its side of the story and without informing it of the breach.
It further claims that the suspension is “disproportionate and unprecedented” and that the public interest would not be served for the suspension to be upheld.
This is not an Independent Review Process proceeding, so things are expected to move forward relatively quickly.
The arbitration panel expects to hear arguments by phone August 14 and rule one way or the other by August 24.
Read the OpenTLD complaint here.

Chinese registrar goes AWOL, gets terminated

Chinese registrar name2host.com has had its accreditation terminated by ICANN for failing to comply with an audit.
According to the compliance notice (pdf), ICANN has been chasing the company since March but has encountered only disconnected phones and unanswered emails.
It seems name2host.com’s principals were all using Hotmail or Yahoo email accounts; not exactly the kind of thing you want to see from a domain name registrar.
The registrar had fewer than 5,000 gTLD domains on its books in March, all in .com and .net.
ICANN will initiate a bulk transfer to a new registrar using its usual process.

Whois privacy supporters to top 20,000

Over 20,000 people have put their names to statements slamming proposals that would ban some commercial web sites from using Whois privacy on their domains.
ICANN’s public comment period on a working group’s Whois privacy reform proposals closes today after two months, with roughly 11,000 individual comments — the vast majority against changes that would weaken privacy rights — already filed.
Separately, Michele Neylon of Blacknight Solutions, which hosts SaveDomainPrivacy.org, tells DI that a petition signed by more than 9,000 people will be submitted to ICANN tonight.
If we count the signatories as commenters, that would make this the largest ICANN comment period to date, outstripping the 14,000 comments received when religious groups objected to the approval of .xxx in 2010.
SaveDomainPrivacy.org and RespectOurPrivacy.org, separate registrar-led initiatives, are responsible for the large majority of comments.
While registrars no doubt have business reasons for objecting to the muddling the Whois privacy market, their letter-writing outreach has been based on their claims that they could be forced to unmask the Whois of vulnerable home-business owners and such.
The Privacy & Proxy Services Accreditation Issues Working Group (PPSAI) report, published in May, sketches out a framework that could allow intellectual property owners to have privacy removed from domains they suspect of hosting infringing content.
A minority position appended to the report by MarkMonitor, Facebook, LegitScript and supported by members of the Intellectual Property and Business Constituencies, would put a blanket ban on using privacy on domains used to commercially transact.

Go Daddy advertising privacy petition on Facebook

Go Daddy appears to be putting its money where its mouth is when it comes to arguments about domain privacy.
The company is paying for “sponsored” posts on Facebook that promote the ongoing petition against proposed changes to Whois policy at ICANN.
This has been appearing on Facebook for me all day, seriously interrupting my Farmville time:

Clicking the ad takes you directly to the Save Domain Privacy petition, rather than a Go Daddy sales pitch.
As I reported last week, thousands of internet users have blasted ICANN with template comments complaining about proposed limits on Whois privacy.
There are currently over 10,000 such comments, I estimate, with over a week left until the filing deadline.
Registrars, Go Daddy among them, are largely concerned about a minority proposal emerging from in a proxy/privacy service accreditation working group that would ban transactional e-commerce sites from having private registrations.
They’re also bothered that intellectual property owners could get more rights to unmask privacy users under the proposals.
Despite Go Daddy’s outreach, Repect Our Privacy, letter-writing campaign, backed by NameCheap and the Electronic Frontier Foundation, seems to be responsible for most of the comments filed to date.
Not that it’s necessarily relevant today, but NameCheap and Go Daddy were on opposing sides of the Stop Online Piracy Act debate — a linked controversy — a few years back.

AlpNames claims to be second-largest new gTLD registrar

A little-known registrar with close ties to Famous Four Media says it is now the second-largest seller of new gTLD domains, after Go Daddy.
AlpNames said it has 500,000 new gTLD domains under management, overtaking Network Solutions into the number-two position.
Its number for February, the last month for which registry reports are available, has the registrar with a DUM of under 50,000.
The vast majority of the names it sells or gives away are in gTLDs in the Famous Four portfolio — namely .science, .party and .webcam.
It’s currently selling those for $0.49 each, a $0.24 markup on the current promotional registry fee.
Factoring out the ICANN transaction fee, AlpNames has a margin of just a few cents per name.
Previously, it has given away .science names for free.
AlpNames is Famous Four’s neighbor in Gibraltar and owns domains such as register.science, indicating a very close relationship between the two companies.

Freenom suspended for cybersquatting rival registrars

Freenom, the company behind .tk and other freebie ccTLDs, has had its ICANN registrar accreditation suspended for cybersquatting competing registrars including Go Daddy and Key-Systems.
OpenTLD, its registrar business, has been told it cannot accept new registrations or inbound transfers from July 8 to October 6 or until it provides ICANN with a full list of the names it squatted.
I believe it’s the first time ICANN has suspended a registrar for this reason.
The suspension notice states:

ICANN has found that OpenTLD has engaged in a pattern and practice of trafficking in or use of domain names identical or confusingly similar to a trademark or service mark of a third party in which the Registered Name Holder has no rights or legitimate interest

That’s a long-winded way of saying “massive cybersquatting”.
ICANN is basing its claims on two UDRP cases that Freenom and its CEO, Joost Zuurbier, lost.
According to WIPO panelists in Key-Systems GmbH v. Joost Zuurbier, OpenTLD B.V. and NetEarth Group, Inc. v. Stichting OpenTLD WHOIS Proxy, the company squatted at least seven of its rivals’ trademarks.
The domains were netearthone.biz, rrpproxy.me, key-systems.cc, resellerclub.tk, resellbiz.biz, godaddy.cf and resello.ws.
According to the UDRP decisions, Freenom used the domains to try to entice resellers of the other registrars over to OpenTLD.
It bought the competing registrars’ trademarks as search keywords on Google’s advertising platform, a WIPO panelist found. If you searched Google for Key-Systems trademark “RRPproxy”, for example, you’d get an ad linking to rrpproxy.me.
In some cases the names were registered behind Freenom’s in-house privacy service. In others, Zuurbier and OpenTLD were listed plainly as the registrants.
The WIPO panelists also found that Freenon shirked its duties under the UDRP as registrar, deleting the squatted domains rather than locking them, which essentially amounted to “cyberflight”.
It all looks pretty bad for Freenom, which only gained its accreditation two years ago.
To avoid termination, it has to provide ICANN with a list of all of its trademark infringing names, agree to transfer them to the mark owners or delete them, and bunch of other stuff.
Here’s the letter.

Grogan hopeful of content policing clarity within “a few weeks”

ICANN may be able to provide registrars, intellectual property interests and others with clarity about when domain names should be suspended as early as next month, according to compliance chief Allen Grogan.
With ICANN 53 kicking off in Buenos Aires this weekend, Grogan said he intends to meet with a diverse set of constituents in order to figure out what the Registrar Accreditation Agreement requires registrars to do when they receive abuse complaints.
“I’m hopeful we can publish something in the next few weeks,” he told DI. “It depends to some extent on what direction the discussions take.”
The discussions center on whether registrars are doing enough to take down domains that are being used, for example, to host pirated content or to sell medicines across borders.
Specifically at issue is section 3.18 of the 2013 RAA.
It requires registrars to take “reasonable and prompt steps to investigate and respond appropriately” when they receive abuse reports.
The people who are noisiest about filing such reports — IP owners and pharmacy watchdogs such as LegitScript — reckon “appropriate action” means the domain in question should be suspended.
The US Congress heard these arguments in hearings last month, but there were no witnesses from the ICANN or registrar side to respond.
Registrars don’t think they should be put in the position of having to turn off what may be a perfectly legitimate web site due to a unilateral complaint that may be flawed or frivolous.
ICANN seems to be erring strongly towards the registrars’ view.
“Whatever the terms of the 2013 RAA mean, it can’t really be interpreted as a broad global commitment for ICANN to enforce all illegal activity or all laws on the internet,” Grogan told DI.
“I don’t think ICANN is capable of that, I don’t think we have the expertise or resources to do that, and I don’t think the ICANN multistakeholder community has ever had that discussion and delegated that authority to ICANN,” he said.
CEO Fadi Chehade recently told the Washington Post that it isn’t ICANN’s job to police web content, and Grogan has expanded on that view in a blog post last week.
Grogan notes that what kind of content violates the law varies wildly from country to country — some states will kill you for blasphemy, in some you can get jail time for denying the Holocaust, in others political dissent is a crime.
“Virtually everybody I’ve spoken with has said that is far outside the scope of ICANN’s remit,” he said.
However, he’s leaving some areas open for discussion,
“There are some constituents, including some participants in the [Congressional] hearing — from the intellectual property community and LegitScript — who think there’s a way to distinguish some kinds of illegal activities from others,” he said. “That’s a discussion I’m willing to have.”
The dividing line could be substantial risk to public health or activities that are broadly, globally deemed to be illegal. Child abuse material is the obvious one, but copyright infringement — where Grogan said treaties show “near unanimity” — could be too.
So is ICANN saying it’s not the content police except when it comes to pharmacies and intellectual property?
“No,” said Grogan. “I’m saying I’m willing to engage in that dialogue and have that conversation with the community to see if there’s consensus that some activities are different to others.”
“In a multistakeholder model I don’t think any one constituency should control,” he said.
In practical terms, this all boils down to 3.18 of the RAA, and what steps registrars must take to comply with it.
It’s a surprisingly tricky one even if, like Grogan, you’re talking about “minimum criteria” for compliance.
Should registrars, for example, be required to always check out the content of domains that are the subject of abuse reports? It seems like a no-brainer.
But Grogan points out that even though there could be broad consensus that child abuse material should be taken down immediately upon discovery, in many places it could be illegal for a registrar employee to even check the reported URL, lest they download unwanted child porn.
Similarly, it might seem obvious that abuse reports should be referred to the domain’s registrant for a response. But what of registrars owned by domain investors, where registrar and registrant are one and the same?
These and other topics will come up for discussion in various sessions next week, and Grogan said he’s hopeful that decisions can be made that do not need to involve formal policy development processes or ICANN board action.

NameVault terminated by ICANN

NameVault, a registrar that once had over 75,000 domains under management, has been terminated by ICANN over multiple alleged contract breaches.
ICANN told (pdf) the Canadian company this week that its right to sell gTLD domain names will come to an end June 17.
The breaches primarily relate to its failure to provide records relating to the domain stronglikebull.com and its failure to provide ICANN with a working phone number.
NameVault belonged to domain investor Adam Matuzich, but I hear he may have sold it off to an Indian outfit several months ago (that may have been a surprise to ICANN too).
Back in 2011, it had over 75,000 names on its books. Today, it has fewer than 1,000.
The decline seems to be largely due to the departure of fellow domain investor Mike Berkens, who started taking his portfolio to Hexonet a few years ago.
ICANN will now ask other registrars if they want to take over NameVault’s domains.
It’s the fourth registrar to lose its accreditation this year.