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.

Sharp wants dot-brand Whois requirement relaxed

Electronics firm Sharp wants to remove part of its new gTLD registry contract relating to Whois.
The company has filed a Registry Services Evaluation Process request to get its requirement to offer “searchable Whois” dropped. RSEP is the mechanism registries use to amend their contracts.
ICANN’s initial review has not found any security, stability or competition problems and has now opened the request up for public comment.
Because .sharp will be a dot-brand, all the domains would belong to Sharp and its affiliates, reducing the value of searchable Whois.
Searchable Whois is an enhanced Whois service that allows users to search on all fields (such as registrant, email address, etc) rather than just the domain name.
Such services are not mandatory under ICANN’s new gTLD rules, but applicants that said they would offer them could score an extra point in their Initial Evaluation.
In Sharp’s case, a one-point difference would not have affected the outcome of its IE. In any event, it did not score the extra point.
Sharp said it was requesting the change because it’s switching back-ends from GMO Internet to JPRS, which apparently does not or does not want to support searchable Whois.

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.

ICANN dragged into Gamergate as Whois reform cast as misogynist threat

What do ICANN’s current Whois privacy reform proposals have to do with the “Gamergate” controversy?
Quite a lot, according to the latest group to slam the proposals as an enabler for “doxing… harassment… swatting… stalking… rape and death threats.”
The Online Abuse Prevention Initiative was formed in March by female software developers in the wake of a sexism slash online abuse scandal that continues to divide the video game community.
Led by Randi Harper, OAPI’s first public move was to today write to ICANN to complain about the GNSO Privacy & Proxy Services Accreditation Issues (PPSAI) Working Group Initial Report.
The report, as previously reported, contains a minority opinion that would ban transactional e-commerce sites from using Whois privacy services.
OAPI said today that this posed a risk of “doxing” — the practice of publishing the home address and other personal information about someone with the aim to encourage harassment — and “swatting”, where people call up America’s notoriously trigger-happy cops to report violent crimes at their intended victim’s home address.
Harper, who was one of the targets of the Gamergate movement (Google her for examples of the vitriol) claims to have been a victim of both. The OAPI letter says she “was swatted based on information obtained from the WHOIS record for her domain.”
The letter, which is signed by groups including the Electronic Frontier Foundation, the National Network to End Domestic Violence, the National Council of Women’s Organizations, and dozens of noted digital rights voices, says:

We strongly oppose the Working Group’s proposal, which will physically endanger many domain owners and disproportionately impact those who come from marginalized communities. People perceived to be women, nonwhite, or LGBTQ are often targeted for harassment, and such harassment inflicts significant harm
…
Even the most limited definition of a “website handling online financial transactions for commercial purpose” will encompass a wide population that could be severely harmed by doxing, such as:

• women indie game developers who sell products through their own online stores
• freelance journalists and authors who market their work online
• small business owners who run stores or businesses from their homes
• activists who take donations to fund their work, especially those living under totalitarian regimes
• people who share personal stories online to crowdfund medical procedures

To make things worse, the proposed definition of what constitutes “commercial purpose” could be expanded to include other types of activity such as running ads or posting affiliate links.

The letter does not directly refer to Gamergate, but some of the signatories are its most prominent victims and the allusions are clearly there.
Gamergate is described somewhere in its 9,000-word Wikipedia article as “part of a long-running culture war against efforts to diversify the traditionally male video gaming community, particularly targeting outspoken women.”
At its benign end, it was a movement for stronger ethics in video game journalism. At its malignant end, it involved quite a lot of male gamers sending abuse and violent threats to female players and developers.
The PPSAI report is open for comment until July 7. It has so far attracted over 10,000 emails, most of them rustled up by registrar letter-writing campaigns here and here.

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.

First example of .sucks cybersquatting?

The .sucks domain has been generally available for a little over a week now, and I’ve found what may be the first example of somebody attempting to sell one to a brand owner.
amherstcollege.sucks is one of only a handful on non-registry-owned .sucks domains to have a web site already indexed by Google.
The site solicits commentary about Amherst College — a liberal arts university in Massachusetts that owns a US trademark on “Amherst” — but does not yet publish any such criticism.
However, the phrases “AMHERSTCOLLEGE.SUCKS DOMAIN NAME + WEBSITE IS FOR SALE” and “IF YOU ARE INTERESTED IN PURCHASING THIS DOMAIN AND WEBSITE CONTACT US” appear prominently on the bare-bones WordPress blog currently running at the site.
The Whois record shows “THIS DOMAIN IS FOR SALE” as the registrant organization.
Under the UDRP, offering a domain for sale is usually considered enough to meet the “bad faith” part of the three-prong cybersquatting test.
I doubt it’s the only example of a .sucks domain matching a brand currently listed for sale by a third-party registrant, but it is the first one showing up in Google.
It’s still early days; the other .sucks domains with sites and a Google presence are a mix of redirects, mirroring and placeholders.
Microsoft-owned microsoft.sucks is one of them. It redirects to a Bing search results page.
The $250-a-year .sucks gTLD, managed by Vox Populi registry, currently has fewer than 5,700 domains in its zone file. Growth has ground almost to a halt over the last few days.

Registrars open floodgate of Whois privacy outrage

A letter-writing campaign orchestrated by the leading domain registrars has resulted in ICANN getting hit with over 8,000 pro-privacy comments in less than a week.
It’s the largest volume of comments received by ICANN on an issue since right-wing Christian activists deluged ICANN with protests about .xxx, back in 2010.
The comments — the vast majority of them unedited template letters — were filed in response to the GNSO Privacy & Proxy Services Accreditation Issues (PPSAI) Working Group Initial Report.
That report attempts to bring privacy and proxy services, currently unregulated by ICANN, under ICANN’s contractual wing.
There are two problematic areas, as far as the registrars are concerned.
The first is the ability of trademark and copyright owners to, under certain circumstances, have the registrant of a privately registered name unmasked.
Upon receiving such a request, privacy services would have 15 days to obtain a response from their customer. They’d then have to make a call as to whether to reveal their contact information to the IP owner or not.
Possibly the most controversial aspect of this is described here:

Disclosure cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the request is founded on alleged intellectual property infringement in content on a website associated with the domain name.

In other words, the privacy services (in most cases, also the registrar) would be forced make a judgement on whether web site content is illegal, in the absence of a court order, before removing Whois privacy on a domain.
The second problematic area is an “additional statement” on domains used for commercial activity, appended to the PPSAI report, penned by MarkMonitor on behalf of Facebook, LegitScript, DomainTools, IP attorneys Smith, Gambreall & Russell, and itself.
Those companies believe it should be against the rules for anyone who commercially transacts via their web site to use Whois privacy.
Running ads on a blog, say, would be fine. But asking for, for example, credit card details in order to transact would preclude you from using privacy services.
The PPSAI working group didn’t even approach consensus on this topic, and it’s not a formal recommendation in its report.
Regardless, it’s one of the lynchpins of the current registrar letter-writing campaigns.
A page at SaveDomainPrivacy.org — the site backed by dozens of registrars big and small — describes circumstances under which somebody would need privacy even though they engage in e-commerce.
Home-based businesses, shelters for domestic abuse victims that accept donations, and political activists are all offered up as examples.
Visitors to the site are (or were — the site appears to be down right now (UPDATE: it’s back up)) invited to send a comment to ICANN supporting:

The legitimate use of privacy or proxy services to keep personal information private, protect physical safety, and prevent identity theft
The use of privacy services by all, for all legal purposes, regardless of whether the website is “commercial”
That privacy providers should not be forced to reveal my private information without verifiable evidence of wrongdoing

The content of the site was the subject of a sharp disagreement between MarkMonitor and Tucows executives last Saturday during ICANN 53. I’d tell you exactly what was said, but the recording of the relevant part of the GNSO Saturday session has not yet been published by ICANN.
Another site, which seems to be responsible for the majority of the 8,000+ comments received this week, is backed by the registrar NameCheap and the digital civil rights groups the Electronic Frontier Foundation and Fight For The Future.
NameCheap appears to be trying to build on the reputation it started to create for itself when it opposed the Stop Online Piracy Act a few years ago, going to so far as to link the Whois privacy reforms to SOPA on the campaign web site, which says:

Your privacy provider could be forced to publish your contact data in WHOIS or even give it out to anyone who complains about your website, without due process. Why should a small business owner have to publicize her home address just to have a website?
We think your privacy should be protected, regardless of whether your website is personal or commercial, and your confidential info should not be revealed without due process. If you agree, it’s time to tell ICANN.

The EFF’s involvement seems to have grabbed the attention of many reporters in the general tech press, generating dozens of headlines this week.
The public comment period on the PPSAI initial report ends July 7.
If it continues to attract attention, it could wind up being ICANN’s most-subscribed comment period ever.
Do geeks care about privacy more than Christians care about porn? We’ll find out in a week and a half.

Posh Spice takes down porn site

Former Spice Girl Victoria Beckham has used UDRP to take down a porn site bearing her name.
victoria-beckham.biz was owned by a Ukrainian, who had set up a site “at which adult and/or pornographic images and services are offered”, according to the UDRP panelist.
It was pretty much a slam-dunk case.
While not all celebrities own trademarks on their names, Beckham does. The squatter, who registered the name in December 2014, did not even attempt a response.
Based on archived screenshots and Whois records, it looks like victoria-beckham.biz has been around as a rather harmless fan site since about 2006.
It was only after the domain expired late last year and was re-registered did it become a porn site, attracting the attention of Beckham’s lawyers.

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.

.sucks made millions from sunrise

Vox Populi could have made over $6 million from defensive registrations during its sunrise period.
The company’s first post-sunrise zone file was published today, and according to DI PRO it contains 3,394 domains, the vast majority of which were newly added today.
If all of these names were sunrise registrations, that would add up to an almost $6.8 million windfall for the registry.
However, I don’t think that’s a completely reliable figure. I believe that not all of the names are from sunrise.
The zone file seems to have been generated after .sucks general availability kicked off at a minute after midnight UTC this morning. ICANN publishes zone files around 5am UTC but the time it collects them from registries can vary between TLDs.
Poring over Whois records, I’ve found many examples of domains in the .sucks zone that have creation dates in the early minutes and hours of GA.
Many domains that are not obvious trademarks show creation times in the first 60 seconds of GA, suggesting they were pre-orders and sold for GA prices.
It’s also probable that some sunrise names are not showing up in the zone file yet due to a lack of name servers.
According to a source talking to DI last November, Vox Pop paid “over $3 million” for the right to run .sucks at auction.
It seems to have made its money back — and then some — purely from sunrise fees.
Sunrise names are charged at $1,999 a year by the registry. In GA, most names have a recommended retail price of $250. Strings considered valuable, many of them trademarks, carry a $2,500 “Market Premium” recommended price.