UDRP tip: put your domain in the Whois
If you’re fighting off a bogus UDRP complaint on one of your domain names, the onus is on you to prove that you have “rights and legitimate interests” in the domain.
That could be tricky, especially if you think you may been assigned a panelist with a pro-complainant bent, but there may be some ways to mitigate the risk of losing your domain.
Take this recent case, for example: PissedConsumer.com versus ThePissedOffConsumer.com.
The panelist determined that the registrant of ThePissedOffConsumer.com had no “rights and legitimate interests”on the grounds that a) it was competing with the complainant, b) the web site used the same color (red) as the complainant and c) the registrant was not known by the domain.
Ignoring the first two (highly debatable) findings, let’s look at c). The panelist wrote:
Complainant alleges that Respondent has never used a company name “The Pissed-Off Consumer” in connection with operation of any business activities. The WHOIS information for the disputed domain name lists the registrant of the domain as “John Cross.”
The Panel finds, based on the evidence in the record, that Respondent is not commonly known by the disputed domain name, and as such lacks rights and legitimate interests in the said name
In other words, because Whois showed the name of the registrant, rather than the name of the domain, the registrant was not “commonly known” as the domain and lacked rights.
To add insult to injury, the complainant was assumed to have earned the right to the mark “Pissed Consumer” before it had officially acquired a trademark (and before the disputed domain was registered) simply by virtue of operating PissedConsumer.com, despite the fact that it hides behind Whois privacy and is called Consumer Opinion Corp.
Presumably, if Cross had simply added the text “ThePissedOffConsumer” to his Whois record, the panelist would have had one less data point “in the record” to justify his finding.
In fringe UDRP cases, that could prove a useful defensive tactic.
Surge in new domain registrars
ICANN is seeing a spike in newly accredited domain name registrars.
Since the start of the year, the organization has approved 16 new companies, compared to only about 40 in the whole of 2010.
About half a dozen of the new registrars appear to belong to domain investor Andrew Reberry of TurnCommerce, which owns domains such as Glossary.com, Bulldozers.com and Fluff.com.
Many of the others were accredited yesterday and have very generic registrar names, such as Host Name Services Inc, International Registration Services Inc and Online Name Services Inc.
There are no web sites associated with this latest batch yet, but I’d be surprised if many turn out to have sought accreditation with customer-facing domain services in mind.
This is pure speculation, but I wonder if any of this may be related to ICANN’s recent decision to loosen the restrictions on cross-ownership between registrars and registries.
If and when ICANN opens up its new top-level domains program to applications, which could happen as soon as August, potential registries will also be allowed to own registrars.
Could the market for flipping accredited companies return? It’s happened before, but it may not be the most efficient or economical way of achieving accreditation nowadays.
The uptick in newly approved registrars may of course just be an anomaly.
Google and Facebook to cut off thousands for World IPv6 Day
Some of the internet’s biggest companies are going to deliberately break their web sites for a day, for hundreds of thousands of users, in order to raise awareness of IPv6.
Google, Facebook and Yahoo are among the companies that will go into production with the protocol for 24 hours, starting at midnight UTC, June 8, for World IPv6 Day.
For the day, the companies will make their sites accessible using a dual stack of IPv4 and IPv6. Most users will be unaffected and will be able to access the services as normal.
But Google predicted on its blog that 0.05% of users may “experience connectivity problems, often due to misconfigured or misbehaving home network devices.”
Facebook purportedly has 500 million users, so presumably it’s expecting 250,000 of them to be cut off from its site for the day, with a corresponding dip in ad impressions and revenue.
World IPv6 Day is being overseen by the Internet Society. ICANN/IANA does not appear to have a role, despite it having global responsibility over IP address allocations.
ISOC’s site says:
The goal of the Test Drive Day is to motivate organizations across the industry – Internet service providers, hardware makers, operating system vendors and web companies – to prepare their services for IPv6 to ensure a successful transition as IPv4 addresses run out.
The IPv4 pool is estimated to be exhausted next month, when IANA allocates the final five /8 blocks to the Regional Internet Registries. The RIRs are expected to run out of addresses in November.
Not too long after that, IPv6 will be the only choice if you want to obtain IP addresses through official channels. If you want IPv4, you’ll have to head to the gray market.
Go Daddy-Google group targets bogus pill merchants
The newly forming industry body tasked with taking down web sites selling fake pharmaceuticals plans to meet next month to develop its mission statement and charter, according to Go Daddy general counsel Christine Jones.
Jones said in an interview tonight that the group, which Go Daddy is jointly “spearheading” with Google, is likely to meet in Phoenix, Arizona in the third week of January.
As I blogged earlier today, the organization was formed following a series of meetings at the White House, which has a policy of reducing counterfeit drugs sales online.
Domain name companies including Go Daddy, eNom, Neustar and Network Solutions are joined in the currently nameless non-profit by the three major search engines and all the major payment processors.
Jones confirmed that redirecting a domain name is an action a participating registrar could take if it finds an infringing site. Go Daddy and others already do this in cases of child porn, for example.
But the group will also share information about fake pharma sites so Google, for example, would also be able to block them from search and Visa could stop payments being processed, Jones told me.
The White House meetings were organized by Victoria Espinel, the administration’s Intellectual Property Enforcement Coordinator (IPEC).
So, while the group has yet to formalize its policies, I wanted to know what the prevailing opinion is on how “illegal” a site will have to be before the group will try to take it down.
Taking down a site selling sugar pills or industrial acid as HIV treatments is one thing, killing a site selling genuine medications to people without prescriptions is another, and blocking a legit pharmacy that sells drugs to Americans with prescriptions more cheaply from across the Canadian border is yet another.
Jones said: “If a pharmacy is a licensed pharmacy and is abiding by whatever the state rules are wherever they’re located, that’s not our target.”
Apparently the new organization, which will be formed as a non-profit entity, may help the companies to avoid running afoul of ECPA, the US Electronic Communications Privacy Act.
Jones said that other companies participating in the White House meetings still have not decided whether to join the new group or not. End-of-year budgetary issues may be a factor here.
Domain registrars have come in for considerable flak over 2010 for allegedly not doing enough to counter fake pharma sites.
A Knujon report published in May, and others, eventually led to eNom in particular promising to crack down harder on rogue pharmacies.
Go Daddy proposes fake pharma site shutdown body
A cross-industry body that will make it easier for web sites selling fake drugs to be shut down is forming in the US, led by Google and Go Daddy.
The idea for the currently nameless organization was announced yesterday following a series of meetings between the internet industry and White House officials.
The group will “start taking voluntary action against illegal Internet pharmacies” which will include stopping payment processing and shutting down web sites.
The domain name business is represented by the three biggest US registrars – Go Daddy, eNom and Network Solutions – as well as Neustar (.biz, .us, etc) on the registry side.
Surprisingly, VeriSign (.com) does not appear to be involved currently.
Other members include the major credit card companies – American Express, Visa and Mastercard – as well as PayPal and search engines Google, Microsoft and Yahoo.
According to a statement provided by Neustar:
GoDaddy and Google took the lead on proposing the formation of a private sector 501(c)(3) non-profit organization that would be dedicated to promoting information sharing, education, and more efficient law enforcement of rogue internet pharmacies.
It’s early days, so there are no specifics as yet as to how the organization will function, such as under what circumstances it will take down sites.
There’s no specific mention of domain names being turned off or seized, although reading between the lines that may be part of the plan.
There’s substantial debate in the US as to what kinds of pharmaceuticals sites constitute a risk to health and consumer protection.
While many sites do sell worthless or potentially harmful medications, others are overseas companies selling genuine pharma cheaply to Americans, who often pay a stiff premium for their drugs.
The organization will do more than just shut down sites, however.
It also proposes an expansion to white lists of genuine pharmacies such as the National Association of Boards of Pharmacies’ Verified Internet Pharmacy Practice Sites (VIPPS).
And it will promote consumer education about the “dangers” of shopping for drugs online, as well as sharing information to stop the genuine bad guys “forum shopping” for places to host their sites.
This is what the statement says about enforcement:
The organization’s members agree to share information with law enforcement about unlawful Internet pharmacies where appropriate, accept information about Internet pharmacies operating illegally, and take voluntary enforcement action (stop payment, shut down the site, etc.) where appropriate.
While taking down sites that are selling genuinely harmful pills is undoubtedly a Good Thing, I suspect it is unlikely to go down well in that sector of the internet community concerned with the US government’s increasing role in removing content from the internet.
What next for new TLDs? Part 4 – GAC Concerns
Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.
But for how long? And what has to happen now before ICANN starts accepting applications?
In short, what the heck happened in Cartagena last week?
In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.
In this fourth post, I will look at areas of the AGB that the Governmental Advisory Committee is still concerned about.
GAC Concerns
The GAC’s laundry list of objections and concerns has grown with every official Communique it has released during an ICANN public meeting over the last few years.
While it has not yet published its official “scorecard” of demands for the home-stretch negotiations, it has released a list of 11 points (pdf) it wants to discuss with the board.
These 11 points can be grouped into a smaller number of buckets: objections and disputes procedures, trademark protection, registry-registrar separation, and the treatment of geographical names.
I wrote about the trademark issue in part one of this post.
The GAC appears to have adopted many of the arguments of the IP lobby – it thinks the AGB does not currently do enough to ensure the costs to business of new TLDs will be minimized – so we might expect that to be a major topic of discussion at the GAC-Board retreat in February.
I’ll be interested to hear what it has to say about registry-registrar separation.
The GAC has been pushing for some looser cross-ownership restrictions, in order to foster competition, since 2007, and most recently in September.
It has previously been in favor of restrictions on “insider” companies with market power, but for a more relaxed environment for new entrants (such as “community” TLDs that may largely operate under agreements with their local governments).
This position looks quite compatible with ICANN’s new vertical integration policy, to me, so I’m not sure where the GAC’s concerns currently lie.
The issue of disputes and objections may be the trickiest one.
The GAC basically wants a way for its members to block “controversial” TLD applications on public policy grounds, without having to pay fees.
The “Rec6” policy, previously known as “morality and public order objections” is one of the issues the ICANN board has specifically acknowledged is Not Closed.
This is from its Cartagena resolution:
Discussions will continue on (1) the roles of the Board, GAC, and ALAC in the objection process, (2) the incitement to discrimination criterion, and (3) fees for GAC and ALAC-instigated objections. ICANN will take into account public comment including the advice of the GAC, and looks forward to receiving further input from the working group in an attempt to close this issue.
GAC members on the Rec6 working group repeatedly highlighted objection fees as a deal-breaker – governments don’t want to have to pay to object to TLD applications.
This appears to been cast as some kind of sovereignty-based matter of principle, although I suppose it could just as easily be an “in this economic climate” budgeting concern.
ICANN’s position is that the GAC as a whole can object for free, but that individual governments have to pay. Fees for some objection procedures will run into tens of thousands of dollars.
The GAC also has beef with the AGB’s treatment of geographic strings.
This is an area where ICANN says the AGB already “substantially reflects the views of the ICANN community” but intends to take GAC comments into account.
ICANN has already made substantial concessions on the geographic names issue, but there may still be a few loopholes through which territory names could slip through the net and be approved without the endorsement of their local governments.
Finally, the GAC wants to include amendments to the Registrar Accreditation Agreement, previously recommended by law enforcement agencies, in the AGB discussion.
The appears to have come completely out of the blue, without any direct relevance to the new TLD program.
It’s a long list covering a lot of issues, and it could get longer when the GAC publishes its official “scorecard”. We’ll have to wait and see.
Is ICANN too scared of lawsuits?
Arguments about the new top-level domain Applicant Guidebook kicked off with a jolt this week, when ICANN was accused of abdicating its responsibilities and being too risk-averse.
In what I think was the first case of a top ICANN staff member publicly discussing the AGB, senior veep Kurt Pritz fielded questions about “morality and public order objections” on a packed and occasionally passionate conference call (mp3).
On the call, Robin Gross of IPJustice accused ICANN’s of shirking its duties by proposing to “fob off” decisions on whether to reject controversial TLDs onto third-party experts.
She said:
I’m concerned that there’s a new policy goal – a new primary policy goal – which is the risk mitigation strategy for ICANN. I don’t remember us ever deciding that that was going to be a policy goal. But it seems that now what is in the best interest for the Internet is irrelevant. The policy goal that rules is what is in the best interest for ICANN the corporation
A cross-constituency working group (CWG) had said that controversial TLDs should be rejected only after a final nod from the ICANN board, rather than leaving the decision entirely in the hands of outside dispute resolution providers.
There was a concern that third parties would be less accountable than the ICANN board, and possibly more open to abuse or capture.
But ICANN rejected that recommendation, and others, on “risk mitigation” grounds. Explanatory notes accompanying the new AGB (pdf) say:
Independent dispute resolution is a cornerstone of the risk mitigation strategy. Without outside dispute resolution, ICANN would have to re-evaluate risks and program costs overall.
Almost a third of every new TLD application fee – $60,000 of every $185,000 – will go into a pool set aside for ICANN’s “risk costs”.
These costs were based on an estimate that there will be 500 applications, and that ICANN will need $30 million to cover risks.
These are often thought to be primarily risks relating to litigation.
There’s a fear, I suspect, that ICANN could become embroiled in more interminable .xxx-style disputes if it allows the board to make subjective calls on TLD applications, rather than hiring independent experts to make decisions based on uniform criteria.
On Monday’s conference call, Gross said that ICANN’s treatment of the CWG’s recommendations was a “really big shock”. She added:
clearly here this is just a fobbing off of that responsibility, trying to again avoid litigation, avoid responsibility rather than take responsibility and take accountability
But ICANN says that the risk mitigation strategy benefits TLD applicants by removing uncertainty from the program, as well making ICANN more credible.
Pritz said on the call:
the risk to the program is in creating a process or procedure that isn’t transparent and predictable for applicants. By what standard can a TLD be kicked out? It’s got to be: here’s the standards, here’s the decision maker and here’s the process.
When I talk about risk, it’s risk to this process.
If this process attracts a lot of litigation, and ICANN published the process and then did not follow it, or that the process wasn’t clear so that the applicant had no way of predicting what was going to happen to its application, the risk is then litigation would halt the process and undermine the ICANN model.
So it doesn’t really have anything to do with the people that are the directors or the people that are the staff; it has to do with the credibility of ICANN as a model for Internet governance.
In other words, if TLD applicants pay their fees and go into the process knowing what the rules are, and knowing that there’s little chance of being jerked around by the ICANN board, there’s less chance of the program as whole being disrupted by lawsuits.
Seems fair enough, no?
New TLD guidebook bans domain front-running
ICANN’s newly published Applicant Guidebook for new top-level domain operators contains a draft Code of Conduct for registries that, among other things, bans “front-running”.
The code, which I think is probably going to be one of the most talked-about parts of the AGB in the run-up to ICANN’s Cartagena meeting next month, is designed to address problems that could arise when registrars are allowed to run registries and vice versa.
Front-running is the name given to a scenario in which registrars use insider information – their customers’ domain availability lookups – to determine which high-value domains to register to themselves.
While there’s plenty of anecdotal evidence that such practices have occurred in the past, a study carried out last year by researcher Ben Edelman found no evidence that it still goes on.
Front-running was however held up as one reason why registrars and registries should not be allowed to vertically integrate, so the AGB’s code of conduct explicitly bans it.
It also bans registries accessing data generated by affiliated registrars, or from buying any domains for its own use, unless they’re needed for the management of the TLD.
Integrated registries will have to keep separate accounts for their registrar arms, and there will have to be a technological Chinese wall stopping registry and registrar data from cross-pollinating.
Registries will also have to submit a self-audit to ICANN, certifying their compliance with the code of conduct, before January 20 every year.
The code is currently a six-point plan, which, given the past “ingenuity” of domain name companies, may prove a little on the light side.
There’s lots more discussion to be had on this count, no doubt.
Another reason why Go Daddy might not become a registry
Domain name registries and registrars will soon be able to own each other, but there are plenty of good reasons why many of them, including the largest, may not.
George Kirikos and Mike Berkens are asking very interesting questions today, based on earlier investigative reporting by DomainNameWire, about whether Go Daddy would or should be barred from owning a registry on cybersquatting grounds.
But that’s not the only reason why Go Daddy may have problems applying for a new top-level domain.
I reported back in March, when only my mother was reading this blog, that Go Daddy may have gotten too big to be allowed into the registry market.
If you think Go Daddy wants to apply to ICANN to manage a new TLD registry or two, ask yourself: why did Go Daddy spend most of the year opposing vertical integration?
I have no inside knowledge into this, but I have a theory.
In 2008, CRA International produced an economic study for ICANN that, broadly speaking, recommended the relaxation of the rules separating registries and registrars.
In December that year, less than two years ago, Go Daddy filed its very much pro-VI comments on the study:
Go Daddy has and continues to be an advocate for eliminating the existing limits on registry/registrar cross-ownership.
…
The arguments that have been presented in favor of maintaining the status quo simply do not hold water. Current and past examples of cross-ownership already serve as test cases that demonstrate cross-ownership can and does work, and it can be successfully monitored.
Over the course of the next 12 months, the company’s official position on VI mellowed, and by this year it had made a 180-degree turn on the issue.
Its comments to the VI working group, filed in April 2010, say:
Go Daddy’s position on the vertical integration (VI) issue has changed over time. When VI discussions first began our position was very much to the left (if left is full, unqualified VI), but it has moved steadily to the right (if right is maintaining the so-called status quo). At this point, we are nearly fully on the right.
The company cited concerns about security, stability and consumer protection as the reasons for its shift. While I’ve no doubt that’s part of the story, I doubt it paints a full picture.
The decision may also have something to do with another economic study, produced for ICANN in February this year, this time by economics experts Steven Salop and Joshua Wright. It was published in March.
This study, crucially I think, suggested that where cross-ownership was to take place and the larger of the two companies had market power, that the deal should be referred to government competition regulators. Salop & Wright said:
We recommend that ICANN choose a market share threshold in the 40-60% range (the market share measured would be that of the acquiring company). The lower end is the market share at which U.S. competition authorities begin to be concerned about market power.
Guess which is the only registrar that falls into this market share window?
In January this year, Go Daddy put out a press release, when it registered its 40 millionth domain, which claimed:
Go Daddy now holds a near 50 percent market share of all active new domains registered in the world and is more than three times the size of its closest competitor.
Correlation does not equal causation, of course, so there’s no reason the second economic study and Go Daddy’s policy U-turn are necessarily linked, but I’d be surprised if the market power issue did not play a role.
The newly published Applicant Guidebook appears to have taken on board a key Salop & Wright recommendation, one that may be relevant:
ICANN-accredited registrars are eligible to apply for a gTLD… ICANN reserves the right to refer any application to the appropriate competition authority relative to any cross-ownership issues.
It seems to me that Go Daddy may be one of the few companies such a provision applies to. The company may find it has a harder time applying to become a registry than its competitors.
In the interests of sanity, I should point of that the AGB has been out for less than 48 hours, and that anything written about its possible consequences at this point is pure speculation.
First reactions to ICANN’s VI bombshell
Shortly before 8am UTC today, ICANN announced that it plans to blur the lines between domain name registries and registrars by eliminating cross-ownership restrictions and enabling vertical integration of the two functions.
The shock move is likely to have profound repercussions on the domain industry for years to come.
I’ve spent the last ten hours collating a bunch of early reaction from Twitter and the blogosphere.
Like blind men groping an elephant, everyone had their own take on the news, which perhaps indicates how broad-reaching its effects will be.
Linkfest coming up.
Apparently the first to notice the news, which came just before midnight in California, was AusRegistry, the Australian registry services company, with this pithy tweet:
Any Registrars wanting Registry software can enquire within…
The company later followed up with a blog post:
The positives of this resolution is that it is highly likely that we will see the adoption and growth of smaller more boutique TLDs being championed to market by their Registrar owners and for many industry participants, anything that promotes the success of the new gTLD program and the reduced risk of Registry failure can only be seen as a good thing.
As Europe woke up to the news, Michele Neylon of Irish registrar Blacknight decided to eschew diplomacy, and pondered the possible fallout from ICANN’s decision:
Now the next question is – what next?
How will people react?
Are we going to see a flood of nastygrams from Afilias and PIR being sent to the ICANN board demanding them to backtrack?
Across the pond, Minds + Machines CEO Antony Van Couvering quickly rattled off a typically eloquent blog post that focussed on what he seems to see as ICANN’s sudden spine growth:
This is the only principled decision the ICANN Board could have come to, and they deserve a lot of credit for doing it. By “principled,” I mean taking ICANN’s stated institutional principles and following them to their logical conclusion.
…
The new landscape will require everyone in the domain name business to re-examine their business, their partners, their strategy. It will have consequences between those I enumerated above. It will re-invigorate the industry, and it will help establish the respect that ICANN has lacked for so long.
Another new TLD applicant, Constanine Roussos of .music tweeted:
ICANN allows Vertical Integration for new top-level domains. .MUSIC is thrilled. #ICANN makes history. The lobbying effort was well worth it
Over in Japan, Jacob Williams of new TLD consultants UrbanBrain reflected some of the industry’s shock that ICANN went against many observers’ expectations.
This announcement is a full 180 degree turn from the verbiage in DAG 4 and the resolutions passed at the public meeting in Nairobi earlier this year. This decision comes huge surprise, but surely a relief to many New gTLD applicants.
On the policy side of things, veteran ICANN commentator Danny Younger expressed surprise of a different kind on his new ICANNology blog:
I’ve been wondering how an ICANN Board session that is “not designated as an Official Board Meeting” can result in official Board Resolutions.
…
If the meeting is specifically not designated as “special”, but rather as a board “retreat”, should official board resolutions be promulgated at the conclusion of such sessions?
Fellow policy wonk George Kirikos tweeted:
“It is better to remain silent and be thought a fool than to open one’s mouth and remove all doubt.” applies to #ICANN’s latest moves.
Former ICANN staffer Kieren McCarthy tweeted, less ambiguously:
Good call #ICANN Board. Recognizing the realities of new top-level domains and standing up for principles over pressure
Finally, EnCirca, a US-based registrar, tried to pick winners and losers and concluded that it is the “.brand” TLDs that will gain the most, and that it is the registrars that are in for a shake-up.
the real winners will be the major brands on the internet: Apple, Yahoo, Google, Facebook, Microsoft. Any one of these could launch their own TLD to rival dot-com.
Who are the biggest losers? The Registrar channel. Registrars will no longer be assured of being able to offer new TLD’s to their customers. Registries will start to bypass their registrar partners and deal directly with end-users.
Registries and registrars will need to start innovating to remain relevant. It is time to start competing.
As you might expect, there has been not much reaction yet from those, such as Go Daddy, which opposed full vertical integration.
But Warren Adelman, Go Daddy’s president, tweeted within the last hour:
Let the games begin
Quite.
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