Facebook gunning for Web.com in latest $27 million-plus cybersquatting lawsuit

Facebook has sued what it believes is a Web.com subsidiary, claiming the company has been engaged in wholesale cybersquatting for well over a decade.

The complaint, filed in a Pennsylvania District Court, alleges that New Venture Services Corp current owns 74 domains, and has previously owned 204 more, that infringe its Facebook, Instagram and WhatsApp trademarks.

While no other named defendants are listed, the complaint makes it abundantly clear that it believes NVSC is a subsidiary of Web.com and a sister of Network Solutions, Register.com, SnapNames and Perfect Privacy.

Facebook is suing partly under the Anti-Cybersquatting Consumer Protection Act, allowing it to claim $100,000 damages per infringing domain, so we’re looking at a floor of $27.8 million of potential damages should the lawsuit be successful.

But it’s also looking for NVSC to hand over any profits it’s made from the domains in question, which are generally parked with ads and listed for sale via the SnapNames network for premium fees.

While NVSC is registered in the British Virgin Islands and uses a Pennsylvania post office box as its mailing address, there’s a wealth of evidence going back to 2007 that it’s been affiliated first with NetSol and then Web.com.

Web.com’s last regulatory filing before it went private in 2017 lists NVSC as a subsidiary, which is probably the most compelling piece of evidence establishing ownership.

It appears that NVSC is a shell company that Web.com uses to hold potentially valuable or traffic-rich domains that its customers have allowed to expire. The names are then parked and put up for resale.

Example domains listed in the complaint include httpinstagram.com, faceebbok.com, facebooc.net, instagram-login.com, and installwhatsapps.com.

One would have to assume these names were captured using a fully automated process; even a cursory human review would clock that they’re useful only to bad actors.

The lawsuit is the latest in Facebook’s crusade against mainstream registrars it believes are profiting by infringing its trademarks, which has already ensnared Namecheap a year ago and OnlineNIC in October 2019.

Namecheap recently filed a counterclaim in which it tries to get some of Facebook’s trademarks cancelled.

Facebook has all but admitted that putting legal pressure on registrars is part of its strategy when it comes to getting the policies it wants out of ICANN on privacy and Whois access, where there’s currently an impasse.

Here’s the complaint (pdf).

ICANN threatens to seize gTLD after Whois downtime

Are we about to see our next gTLD registry implosion?

ICANN has whacked the company behind .gdn with a breach notice and a threat that it may seize the TLD, after its Whois systems allegedly suffered days of downtime.

According to ICANN, .gdn exceeded its weekly and monthly downtime limits in late March and early April, in both months triggering the threshold whereby ICANN is allowed to transition the TLD to an Emergency Back-End Registry Operator.

gTLD registries are allowed to have 864 minutes (about 14 hours) of unplanned Whois downtime per month. Downtime exceeding 24 hours per week is enough to trigger ICANN’s EBERO powers.

It appears to be the third time .gdn’s Whois has gone on the blink for longer than the permitted period — ICANN says it happened in April 2018 and August 2019 too. Those incidents were not publicized.

It seems the Russian registry, Joint Stock Company “Navigation-information systems”, managed to fix the problem on April 2, and ICANN is not invoking the EBERO transition, something it has done just a couple times before, just yet.

But it does want NIS to present it with a plan showing how it intends to avoid another spell of excessive downtime in future. It has until May 8, or ICANN may escalate.

.gdn is by most measures a bullshit TLD.

While it was originally intended to address some kind of satellite navigation niche, it eventually launched as a pure generic with the backronym “Global Domain Name” in 2016.

It managed to rack up over 300,000 registrations in the space of a year, almost all via disgraced and now-defunct registrar AlpNames, and was highlighted by SpamHaus as being one of the most spam-friendly of the new gTLDs.

After AlpNames went out of business two years ago, ICANN transferred some 350,000 .gdn names to CentralNic-owned registrar Key-Systems.

Today, Key-Systems has fewer than 300 .gdn domains. The TLD’s zone file dropped by about 290,000 domains in a single day last December.

.gdn had fewer than 11,000 domains under management at the end of 2020, 90% of which were registered through a Dubai-based registrar called Intracom Middle East FZE.

Intracom pretty much only sells .gdn domains, suggesting an affiliation with the registry.

Web searches for live sites using .gdn return not much more than what looks like porn spam.

A busted Whois looks like the least of its problems, to be honest.

EFF rages as Ethos closes Donuts buy

The Electronic Frontier Foundation thinks the acquisition of Donuts by “secretive” private equity group Ethos Capital represents a risk to free speech.

The deal, which sees Ethos buy a controlling stake from fellow PE firm Abry Partners, closed earlier this week, having apparently received no official objection from ICANN.

But the EFF now wants ICANN to force Donuts to change its gTLD registry contracts to make it harder for the company to engage in what it calls “censorship-for-profit”.

The group’s senior staff attorney, Mitch Stoltz, raised the issued at the Public Forum session of last week’s ICANN 70 virtual public meeting, and expanded upon his thinking in a blog post this week. He wrote:

Donuts already has questionable practices when it comes to safeguarding its users’ speech rights. Its contracts with ICANN contain unusual provisions that give Donuts an unreviewable and effectively unlimited right to suspend domain names—causing websites and other internet services to disappear.

He pointed to Donuts’ trusted notifier program with the Motion Picture Association, which streamlines the takedown of domains used for pirating movies, as an example of a registry’s power to censor.

Donuts runs gTLDs including ones with social benefit meanings that the EFF is particularly concerned about, such as .charity, .community, .fund, .healthcare, .news, and .university.

Stoltz also makes reference to the Domain Protected Marks List, a Donuts service that enables trademark owners to block their marks, and variants, across its entire portfolio of 240+ gTLDs.

In effect, this lets trademark holders “own” words and prevent others from using them as domain names, even in top-level domains that have nothing to do with the products or services for which a trademark is used. It’s a legal entitlement that isn’t part of any country’s trademark law, and it was considered and rejected by ICANN’s multistakeholder policy-making community.

The DPML is not unique to Donuts. Competitors such as UNR and MMX have similar services on the market for their gTLDs.

When Stoltz raised the EFF’s concerns at last week’s ICANN meeting, CEO Göran Marby basically shrugged them off, saying he didn’t understand why one PE firm buying an asset off another PE firm was such a big deal.

I have to say I agree with him.

Ethos came under a lot of scrutiny last year when it tried to buy .org manager Public Interest Registry, turning it into a for-profit entity, generating cash for Ethos’ still-undisclosed backers.

(This week, Ethos disclosed in a press release that its investors include massive hedge funds The Baupost Group and Neuberger Berman “among others”, which appears to be the first time these names have been mentioned in connection with the company).

But a pretty good case could be made that .org is a unique case, that has had a non-profit motive baked into its DNA for decades. That does not apply to Donuts, which was a profit-making venture from the outset.

It’s not entirely clear why the EFF is suddenly concerned that Donuts will start exercise its contractual right-to-suspend more frequently under Ethos than under Abry. Stoltz wrote:

As we learned last year during the fight for .ORG, Ethos expects to deliver high returns to its investors while preserving its ability to change the rules for domain name registrants, potentially in harmful ways. Ethos refused meaningful dialogue with domain name users, instead proposing an illusion of public oversight and promoting it with a slick public relations campaign. And private equity investors have a sordid record of buying up vital institutions like hospitals, burdening them with debt, and leaving them financially shaky or even insolvent.

Even with the acquisition passing through ICANN easily, the EFF wants Donuts to change its contracts to make it more difficult for the company to suspend domain names on a whim.

I believe the language causing the controversy comes from anti-abuse policies in the Public Interest Commitments found in almost all Donuts’ contracts with ICANN, which state in part:

Registry Operator reserves the right, at its sole discretion and at any time and without limitation, to deny, suspend, cancel, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status as it determines necessary for any of the following reasons:

a. to protect the integrity and stability of the registry;

b. to comply with any applicable laws, government rules or requirements, requests of law enforcement, or any dispute resolution process;

c. to comply with the terms of this Registry Agreement and the Registry Operator’s Anti-Abuse Policy;

d. registrant fails to keep Whois information accurate and up-to-date;

d. domain name use violates the Registry Operator’s acceptable use policies, or a third party’s rights or acceptable use policies, including but not limited to the infringement of any copyright or trademark; or

e. as needed during resolution of a dispute.

As a voluntary PIC, this language is unique to Donuts, though other registries have similar provisions in their registry agreements.

As Net4 goes dark, NIXI says customers won’t lose their expired domains

Indian ccTLD registry NIXI has thrown a life vest to the owners of some 73,000 .in domain names, giving them a way to transfer out of slowly sinking registrar Net 4 India.

NIXI also said that it will not cancel expired domains that registrants have been unable to renew due to Net4’s ongoing problems.

“NIXI has decided not to discontinue the .IN Services for those .IN domain end users whose renewal is due,” the company said in a statement (pdf).

It sounds rather like registrants will be able to renew directly with the registry. They’ll also be able to transfer to a new registrar by emailing NIXI from the address in the Whois or mailing proof of company identity.

Why NIXI has chosen to act now, when Net4’s troubles have been known for almost year, is not clear.

“In the recent days, NIXI was informed that Net 4 India, who is one of the registrars of NIXI for Country code domain “.IN” has some issues in maintaining domains,” its statement says.

Net4’s web site isn’t resolving right now, at least for me, which probably has something to do with it.

The company has been in insolvency proceedings since 2017, a fact ICANN discovered when it started missing payments two years ago, but it was not until mid-2020 that Net4’s customers started complaining en masse about problems renewing and transferring their domains.

ICANN has processed thousands of complaints since then.

The registrar was told last month that ICANN was terminating its accreditation to sell gTLDs. Registrants of names in .com for example should be pretty safe, with their names automatically transferred to a new registrar, should ICANN follow through on its threat.

The termination was challenged in the insolvency court shortly before it would have become effective two weeks ago.

While ICANN does not believe it is subject to the court’s jurisdiction, it has decided to wait for an official ruling on the matter.

IP lobby demands halt to Whois reform

Trademark interests in the ICANN community have called on the Org to freeze implementation of the latest Whois access policy proposals, saying it’s “not yet fit for purpose”.

The Intellectual Property Constituency’s president, Heather Forrest, has written (pdf) to ICANN chair Maarten Botterman to ask that the so-called SSAD system (for Standardized System for Access and Disclosure) be put on hold.

SSAD gives interested parties such as brands a standardized pathway to get access to private Whois data, which has been redacted by registries and registrars since the EU’s Generic Data Protection Regulation came into force in 2018.

But the proposed policy, approved by the GNSO Council last September, still leaves a great deal of discretion to contracted parties when it comes to disclosure requests, falling short of the IPC’s demands for a Whois that looks a lot more like the automated pre-GDPR system.

Registries and registrars argue that they have to manually verify disclosure requests, or risk liability — and huge fines — under GDPR.

The IPC has a few reasons why it reckons ICANN should slam the brakes on SSAD before implementation begins.

First, it says the recommendations sent to the GNSO Council lacked the consensus of the working group that created them.

Intellectual property, law enforcement and security interests — the likely end users of SSAD — did not agree with big, important chucks of the working group’s report. The IPC reckons eight of the 18 recommendations lacked a sufficient degree of consensus.

Second, the IPC claims that SSAD is not in the public interest. If the entities responsible for “policing the DNS” don’t think they will use SSAD due to its limitations, then why spend millions of ICANN’s money to implement it?

Third, Forrest writes that emerging legislation out of the EU — the so-called NIS2, a draft of a revised information security directive —- puts a greater emphasis on Whois accuracy

Forrest concludes:

We respectfully request and advise that the Board and ICANN Org pause any further work relating to the SSAD recommendations in light of NIS2 and given their lack of community consensus and furtherance of the global public interest. In light of these issues, the Board should remand the SSAD recommendations to the GNSO Council for the development of modified SSAD recommendations that meet the needs of users, with the aim of integrating further EU guidance.

It seems the SSAD proposals will be getting more formal scrutiny than previous GNSO outputs.

When the GNSO Council approved the recommendations in September, it did so with a footnote asking ICANN to figure out whether it would be cost-effective to implement an expensive — $9 million to build, $9 million a year to run — system that may wind up being lightly used.

ICANN has now confirmed that SSAD and the other Whois policy recommendations will be one of the first recipients of the Operational Design Phase (pdf) treatment.

The ODP is a new, additional layer of red tape in the ICANN policy-making sausage machine that slots in between GNSO Council approval and ICANN board consideration, in which the Org, in collaboration with the community, tries to figure out how complex GNSO recommendations could be implemented and what it would cost.

ICANN said this week that the SSAD/Whois recommendations will be subject to a formal ODP in “the coming months”.

Any question about the feasibility of SSAD would be referred back to the GNSO, because ICANN Org is technically not supposed to make policy.

ICANN finally cans Net 4 India

iCANN has terminated Net 4 India’s registrar accreditation, after many months of criticism and foot-dragging and a recent sharp uptick in customer complaints.

The move comes after an unprecedented four concurrent public breach notices over 20 months, almost four years after the company entered insolvency proceedings — grounds for termination which ICANN became aware of almost two years ago.

ICANN has received over 2,600 customer complaints over the last year, and almost 1,000 of these were submitted in February alone, according to the organization.

“The termination of the RAA is due to Net 4 India’s repeated and consistent breaches of the RAA and failure to cure such breaches despite multiple notices from ICANN and opportunity to cure,” ICANN said in its ginormous 59-page execution warrant (pdf).

Among the charges ICANN levels at Net4 is its failure to operate a functioning Whois service, something it’s warned the company about 30 times since November.

This hindered ICANN’s ability to investigate the more serious charges — that Net4 transferred some of its customers’ domains to a different registrar, OpenProvider, without their knowledge or consent, in violation of ICANN transfer policies.

The registrar also failed to enable its customers to renew their expired domains or transfer them to other registrars, also in violation of binding policy, ICANN said.

ICANN said:

Currently, more than 400 cases remain unresolved; and hundreds of complaints are still under review, which, once vetted, will become more new cases. In addition, ICANN Contractual Compliance continues to receive more than 20 new complaints each day. And it is not known how many more complaints are pending with Net 4 India that have not yet been brought to ICANN’s attention.

The termination notice contains 10 pages of complaints from Net4 customers, saying their domains could not be renewed or transferred. Some came from non-profits and hospitals. One registrant said he was contemplating suicide.

Net4’s customer service was non-responsive in each of these cases, the complainants said.

While some of Net4’s problems could be chalked down to coronavirus-related restrictions, the company has been in trouble for much longer.

It entered insolvency proceedings in 2017 after a debt recovery company called Edelweiss bought roughly $28 million of unpaid debt from the State Bank of India and took Net4 to court.

ICANN did not find out about this until April 2019 — it’s probably not a coincidence that this was the same month Net4 was late paying its first ICANN invoice — and it issued its first public breach notice in June that year.

Insolvency is grounds for termination in itself under the Registrar Accreditation Agreement.

It’s never been clearly stated why ICANN did not escalate at that time. Had it done so, it could have saved Net4’s customers from a world of hurt.

The Indian insolvency court admitted last month that it had no jurisdiction over ICANN or the Registrar Accreditation Agreement, both of which are governed primarily by California law.

Nevertheless, the court asked ICANN to not terminate Net4’s contract until after April 25, to give the company time to get its house in order.

But the termination notice, issued on Friday, will see the RAA cut off March 13. ICANN notes that it hasn’t heard from the court-appointed resolution professional, to whom previous breach notices were addressed, since mid-January.

Affected domains — there are still thousands under Net4’s accreditation — will be moved to another registrar under ICANN’s De-Accredited Registrar Transition Procedure.

Net4 could have a say in where its domains wind up. It’s already an OpenProvider reseller so that’s a possibility. Otherwise, ICANN will pick a beneficiary from a queue of qualified candidates.

Facebook lawsuit brings one country’s domain to a screeching halt

Bangladesh’s ccTLD registry has reportedly frozen all registrations and transfers after a cybersquatting lawsuit filed by Facebook.

According to local reports a couple weeks back, Bangladesh Telecommunications Company Ltd has implemented Draconian pre-registration roadblocks to registration, such that only exact-match domain names are available to individuals and organizations.

And Western corporate registrar CSC said today that BTCL has “implemented a temporary suspension to registration and transfer orders due to an ongoing legal matter” and is “diligently working to draft new regulations and procedures for registration orders.”

Registrants can still manage their Whois and DNS settings as normal, CSC said.

Facebook sued the registrant of the domain facebook.com.bd last November, asking for the domain to be cancelled and for $50,000 in damages, dragging BTCL into the case.

According to reports, the domain had been registered in 2008 when the registry used a largely paper-based system, but Facebook only resorted to the courts last year when the registrant listed it for sale for $6 million.

It’s a textbook case of cybersquatting, but .bd evidently does not have the mechanisms — such as UDRP — to handle such malfeasance outside of the courts.

While a Dhaka court reportedly issued an injunction against the domain in question, it’s still resolving and still listed for sale at $6 million.

Public comments open on new Whois policies

It’s your last chance to comment on ICANN’s proposed revisions to Whois policy.

ICANN has opened up public comments on what it opaquely calls EPDP Phase 2 Policy Recommendations for Board Consideration.

Why it just can’t use the term “Whois access”, or announce its public comment periods in layman’s terms is beyond me. Doesn’t it want public comments? Still, translating this nonsense into English keeps me in work, so I guess I won’t complain too hard.

The main feature of the proposed policy is a multi-tiered, somewhat centralized system for requesting access to Whois data about private registrants that has been redacted since the EU’s General Data Protection Regulation came into effect in May 2018.

It’s called SSAD, for System for Standardized Access and Disclosure, which was pieced together by a working group of community volunteers over a year.

Domain companies are generally okay with the compromise it represents, but intellectual property interests and others who would actually use the system think it’s a useless waste of money.

It’s expected to cost $9 million to build and $9 million a year to run.

There’s so much uncertainty about the system that in parallel with the public comments ICANN is also consulting with the GNSO Council, which approved the proposals in September, to figure out whether it’s even workable, and with the European Commission to figure out if it’s even legal.

After the public comment period closes on March 30, the comments will be compiled by ICANN staff and burned on a big fire sent to the ICANN board for final approval.

US sneaks public Whois demands into pandemic relief bill

Outgoing US president Donald Trump has signed into law a coronavirus relief bill and spending package that contains a surprise instruction for the government to pursue open access to Whois records.

The Consolidated Appropriations Act of 2021 is focused on federal spending for fiscal 2021, with billions set aside for pandemic-related economic stimulus. It’s the bill you may recall Trump refused to sign for several days on the purported basis that it only provided Americans with a piddling $600 check.

An accompanying document contains encouragement for the National Telecommunications and Information Administration to “to require registrars and registries based in the United States to collect and make public accurate domain name registration information”.

It also asks the NTIA to continue to work within ICANN’s Governmental Advisory Committee to help create “a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information”.

The text can be found in a joint explanatory statement (pdf) accompanying the act. It’s not on the statute books as such, but it does tell NTIA how to spend the money it’s been allocated.

The full text relevant to the domain name industry reads:

NTIA is directed, through its position within the Governmental Advisory Committee o work with I CANN to expedite the establishment of a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information for legitimate purposes. NTIA is encouraged, as appropriate, to require registrars and registries based in the United States to collect and make public accurate domain name registration information.

As ICANN notes in its analysis, the first sentence is not telling NTIA to do anything it hasn’t been doing since the European Union’s General Data Protection Regulation came into effect two and a half years ago.

The NTIA and GAC have been involved in efforts to create a privacy workaround for rights holders and law enforcement, which in September came up with the widely panned SSAD proposals. ICANN is currently pleading with the EU for clarity on whether it would even be legal.

The second sentence is perhaps a bit more worrying, dangling as it does the possibility of American registries and registrars having to either break EU law or implement a much more complex Whois infrastructure.

But, as ICANN notes, the words “encouraged, as appropriate” are doing a lot of heavy lifting in that sentence, saying “encouragement is aspirational; it is not a mandate”.

However, ICANN appears to be treating it as a warning shot, with head of compliance Jamie Hedlund writing:

It appears to hint that if NTIA and the ICANN community can’t develop a robust access model, Congress could entertain more forceful measures that would impose requirements on U.S.-based registries and registrars to collect and publish domain name registration information.

It seems the NTIA has the wink to cause mischief, should ICANN not deliver what intellectual property lobbyists want.

ICANN throws the book at Net4 over dodgy transfer claims

Struggling Indian registrar Net 4 India has been slammed with a massive breach notice by ICANN, following claims of domain transfers failing or happening without the consent of the registrant.

ICANN also accuses the company, which is or was India’s largest independent registrar, of trying to bullshit its compliance staff about whether expired domains had been renewed or not.

According to ICANN, Net4 is in breach of the Registrar Accreditation Agreement on four counts, three of which relate to domain ownership records.

ICANN says the company isn’t operating a Whois service on the web or port 43, has failed to escrow its registration data on two recent occasions, and has failed to hand over registrant information upon ICANN’s request.

It’s also past due with its fees, ICANN says.

ICANN’s been dealing with complaints about Net4 for months, after the company’s customer service system appeared to break down in the wake of the coronavirus pandemic. Hundreds of customers have said their domains were unrenewable and that they were unable to transfer to another registrar.

In the latest breach notice — the first published breach notice against any registrar since February — ICANN names almost 200 domain names that have allegedly been held hostage at Net4, despite the registrant’s efforts to transfer out.

ICANN wants proof that registrants were given transfer authorization codes and that their domains were unlocked.

In a smaller number of cases, ICANN wants proof that domains were transferred to Net4 partner Openprovider, for which it acts as a reseller, with the consent of the registrants.

It also claims that Net4 has more than once tried to prove that a registrant renewed their expired name by supplying the registry’s expiration date instead of its own, to blag its way out of accusations that registrants were unable to renew.

ICANN also accuses the registrar of dragging its feet to address complaints:

Over the past few months, the number of complaints ICANN Contractual Compliance has received from [registered name holders], and authorized representatives, asserting that Net 4 India is exhibiting a pattern of non-response to domain transfer and renewal requests has steadily increased. While addressing the relevant compliance cases, Net 4 India’s responses to ICANN Contractual Compliance have also regularly been untimely and incomplete.

Net4 is now in the unprecedented position of being subject to two different breach notices simultaneously.

ICANN actually issued a suspension notice in June 2019, after noticing that Net4 had been in insolvency proceedings for two years — a debt recovery agency is trying to recover $28 million in unpaid debts.

But that suspension deadline was paused after talks with the “resolution professional” handling the insolvency case, for reasons ICANN’s been rather quiet about, and it remains on pause to this date.

The newest breach notice has a December 31 deadline on it. Unless Net4 turns on its Whois and hands over the reams of requested data by then, ICANN could terminate its contract.

Assuming the insolvency court allows it to, presumably.