Could VeriSign be banned from new TLDs?

Governments have proposed stricter background checks on new top-level domain operators that could capture some of the industry’s biggest players.
Top-five registrar Network Solutions and .com manager VeriSign may have reason to be concerned by the latest batch of Governmental Advisory Committee recommendations.
The GAC wants checks on new gTLD applicants expanded to include not only criminal convictions and intellectual property violations but also government orders related to consumer fraud.
The GAC advised ICANN, with my emphasis:

The GAC believes that the categories of law violations that will be considered in the background screening process must be broadened to include court or administrative orders for consumer protection law violations. If an applicant has been subject to a civil court or administrative order for defrauding consumers, it should not be permitted to operate a new gTLD.

This is not new – the GAC has proposed similar provisions before – but it seems to be the only GAC advice on applicant screening that ICANN has not yet adopted, and the GAC is still pushing for it.
Why could VeriSign and NetSol be worried by this?
One reason that springs to mind is that, back in 2003, NetSol was officially barred by the US Federal Trade Commission from the practice known as “domain slamming”.
Domain slamming, you may recall, was one of the dirtiest “marketing” tactics employed by the registrar sector during the early days of competition.
Registrars would send fake invoices with titles such as “Renewal and Transfer Notice” to the addresses of their rivals’ customers, mined from Whois data.
The letters were basically tricks designed to persuade customers ignorant of the domain name lifecycle to transfer their business to the slamming registrar.
Respectable registrars have nothing to do with such practices nowadays, but a decade ago companies including NetSol and Register.com, the two largest registrars at the time, were all over it.
At the time NetSol was carrying out its slamming campaign, it was part of VeriSign. It was spun off into a separate company earlier in 2003, before the FTC entered its order.
The order (pdf) was approved by a DC judge as part of a deal that settled an FTC civil lawsuit, alleging deceptive practices, against the company.
NetSol was not fined and did not admit liability, but it did agree to be permanently enjoined from any further slamming, and had to file compliance notices for some time afterward.
It seems plausible that this could fall into the definition of a “civil court or administrative order for defrauding consumers” that the GAC wants added to the Applicant Guidebook’s background checks.
Whether the GAC’s advice, if implemented by ICANN, would capture NetSol and/or VeriSign is of course a matter of pure speculation at the moment.
I think it’s highly unlikely that ICANN would put something in the Guidebook that banned VeriSign, its single largest source of funding (over a quarter of its revenue) from the new gTLD program.
Sadly, I think I may also be unfairly singling out these two firms here – I’d be surprised if they’re the only companies in the domain name industry with this kind of black mark against their names.
Existing background checks in the Applicant Guidebook governing cybersquatting are already thought to pose potential problems for registrars including eNom and Go Daddy.
UPDATE: It looks like NSI and VeriSign are probably safe.

3 Comments Tagged: gac, ICANN, network solutions, new TLDs, slamming, verisign

Experts say piracy law will break the internet

Five of the world’s leading DNS experts have come together to draft a report slamming America’s proposed PROTECT IP Act, comparing it to the Great Firewall of China.
In a technical analysis of the bill’s provisions, the authors conclude that it threatens to weaken the security and stability of the internet, putting it at risk of fragmentation.
The bill (pdf), proposed by Senator Leahy, would force DNS server operators, such as ISPs, to intercept and redirect traffic destined for domains identified as hosting pirated content.
The new paper (pdf) says this behavior is easily circumvented, incompatible with DNS security, and would cause more problems than it solves.
The paper was written by: Steve Crocker, Shinkuro; David Dagon, Georgia Tech; Dan Kaminsky, DKH; Danny McPherson, Verisign and Paul Vixie of the Internet Systems Consortium.
These are some of the brightest guys in the DNS business. Three sit on ICANN’s Security and Stability Advisory Committee and Crocker is vice-chairman of ICANN’s board of directors.
One of their major concerns is that PROTECT IP’s filtering would be “fundamentally incompatible” with DNSSEC, the new security protocol that has been strongly embraced by the US government.
The authors note that any attempts to redirect domains at the DNS level would be interpreted as precisely the kind of man-in-the-middle attack that DNSSEC was designed to prevent.
They also point out that working around these filters would be easy – changing user DNS server settings to an overseas provider would be a trivial matter.

PROTECT IP’s DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.

If bootleggers start using dodgy DNS servers in order to find file-sharing sites, they put themselves at risk of other types of criminal activity, the paper warns.
If piracy sites start running their own DNS boxes and end users start subscribing to them, what’s to stop them pharming users by capturing their bank or Paypal traffic, for example?
The paper also expresses concern that a US move to legitimize filtering could cause other nations to follow suit, fragmenting the mostly universal internet.

If the Internet moves towards a world in which every country is picking and choosing which domains to resolve and which to filter, the ability of American technology innovators to offer products and services around the world will decrease.

This, incidentally, is pretty much the same argument used to push for the rejection of the .xxx top-level domain (which Crocker voted for).

6 Comments Tagged: DNSSEC, ICANN, protect ip

Cialis maker files UDRP on over 200 domains

Eli Lilly seems to have filed a single UDRP complaint covering 209 domain names that all contain its Cialis trademark.
The contested domains include duffers such as bestcialisinfoguide.com, cialisblogfeed.net and affordablecialistips.com.
Based on a sample, they all appear to be affiliate splogs pimping pills for the Belize-based mail-order pharmacies Pharm4All and Generics4All.
They all appear to have been registered in September 2010 by the same Moscow-based registrant.
While such large cases are not unheard of, they still constitute a material chunk of the annual UDRP workload. WIPO, for example, processed 4,370 domains last year.
This particular complaint was filed with the National Arbitration Forum, which has not yet disclosed the complainant. It’s pretty obviously Lilly, or the biggest chancer on the planet.
Lilly is a fairly strict enforcer of its trademarks. Its number of UDRP complaints to date is around the 100 mark, and most of those related to the Cialis brand.
The company is also one of those pushing most heavily for greater law enforcement take-down powers over “fake pharma” domain names.

3 Comments Tagged: cialis, eli lilly, pharma, udrp

Can ICANN make a trademark deal with the GAC?

The ICANN board and its Governmental Advisory Committee have yet to reach agreement on how to protect trademarks in new top-level domains, following their Friday teleconference.
The two parties are still stuck on at least four trademark protect issues, according to sources familiar with the talks, and the GAC is due to provide updated written advice to ICANN tomorrow.
Two of the areas still outstanding were previously marked “1A” in ICANN documents, meaning ICANN’s board believed the GAC’s concerns had already been resolved.
Trademark Claims
Details of the proposed Trademark Clearinghouse database and the related Trademark Claims service are still the subject of debate.
Trademark Claims provides an alert to a trademark holder if somebody tries to register their trademark in a new gTLD. The would-be registrant also gets a warning that they may be infringing rights.
As the Applicant Guidebook stands today, new gTLD managers will have to operate the service for the first 60 days of general availability, but the IP lobby and the GAC believe it should be permanent.
The sticking point for ICANN, as I understand it, is that there’s already a commercial market for brand protection services that have some overlap with Trademark Claims.
Several companies, such as MarkMonitor, CSC and Melbourne IT, offer services that alert customers when somebody appears to infringe their brand in a domain name.
If Trademark Claims ever made it into com and other gTLDs, it could effectively monopolize the brand watch services market. The Clearinghouse(s) will be ICANN contractors, after all.
Remember what happened when VeriSign announced its Wait List Service, which promised to effectively take over the existing domain back-order services market? It wasn’t pleasant.
Proof of Use
ICANN has already dropped its requirement for “substantive review”, but it still requires trademark holders to provide “proof of use” before they can add their marks to the Clearinghouse.
Without proof of use, companies will not be able to file Uniform Rapid Suspension complaints or defensively register their brands during new gTLD Sunrise periods.
The IP lobby and the GAC want this requirement scrapped. Any trademark of national effect should be enforceable using these rights protections mechanisms, they say.
One of the justifications is that some trademarks are obtained before the owner actually launches the product or service they pertain to.
If ICANN were to make these changes, there’s a good chance that bulk-registering bogus trademarks in loose jurisdictions may become an effective strategy for gaming the second level in new TLDs.
This has happened before, such as in .eu, and that wasn’t pleasant either.
Brand+Keyword
The current draft of the Applicant Guidebook only allows exact trademark matches into the Trademark Claims and Sunrise mechanisms.
But the the IP crowd (and, again, the GAC) thinks non-exact matches should be allowed in. In the .com space, the majority of cybersquatting nowadays is of course either a brand+keyword or a typo.
Millions are being needlessly spent on UDRP complaints over typos and brand+keyword domains, and the trademark lobby don’t want to risk having to spend even more.
But there could be implementation problems. Both types of variant could throw up lots of false positives during the Claims service, for example, creating conflicts where there aren’t any.
An automated system designed to scare off typosquatters could catch the generic domain goggles.tld as an infringement of Google’s trademark, to use an obvious example.
If brand+keyword Sunrise claims were allowed, holders of trademarks in generic terms could find themselves with a lucrative payday.
Any company that has a trademark on words such as “free”, “live”, “sexy” or anything that could act as a cool prefix, could have a field day during a Sunrise period.
Uniform Rapid Suspension
I understand a sticking point here continues to be the burden of proof required to make a URS case stick.
It’s currently “clear and convincing evidence”, but the IP lobby and the GAC want it reduced to “preponderance of evidence”, a lower burden.
To non-lawyers, the difference may seem trivial. Both standards are used in civil cases in many countries, but one’s a bit strong than the other.
“Preponderance of evidence” basically means “more likely true than not”, whereas “clear and convincing”… well, it’s a bit stronger than that.
The choice of burdens will have repercussions for years to come. Registrants in new gTLDs will know what they’re getting into, but if URS ever makes it into .com…
The Road to Singapore
It’s less than a month before ICANN’s next major meeting, and only a week until it plans to publish the next version of the Applicant Guidebook.
The ICANN board is due to meet face-to-face (and presumably in public) with the GAC on the first day of the meeting, June 19, but it seems that talks will be ongoing behind the scenes until then.
A great deal of progress has been made, but with complex issues still apparently unsettled (and there are more unresolved issues unrelated to trademarks) it’s little wonder that some are now wondering whether ICANN is as confident as it once was that June 20 is Guidebook Approval Day.

9 Comments Tagged: cybersquatting, gac, ICANN, new TLDs

Interpol wants to join the GAC

Interpol plans to apply to join ICANN’s Governmental Advisory Committee as an observer, according to ICANN.
The news came in a press release this evening, detailing a meeting between ICANN president Rod Beckstrom and Interpol secretary general Ronald Noble.
The meeting “focused on Internet security governance and enhancing common means for preventing and addressing Internet crime”. Beckstrom said in the release:

We seek the active engagement of law enforcement in our multi-stakeholder community where all parties are welcome. We recognize Interpol as an important international leader in this field. We are very pleased by its expression of interest in joining the ICANN Governmental Advisory Committee as an observer.

The GAC already has about 20 members with “observer” status, which can be granted to any intergovernmental or treaty organization.
Also in attendance at the meeting in Lyons, France, was ICANN’s new chief of security, Jeff Moss, VP of government affairs Jamie Hedlund, and Alice Jansen of its Organizational Reviews unit.
Law enforcement has been trying to get a louder voice at ICANN for some time, and calls have grown in volume given the increasing use of domain names as tools to shut down crooks.
At ICANN’s recent meeting in San Francisco, Interpol’s top cop on the child abuse imagery beat, Michael Moran, launched a withering critique of what he saw as the industry’s failure to help police the web.
Moran called for a system to be put in place for law enforcement to more easily be able to shut down peddlers of such content and more easily track the abusers.

Comment Tagged: crime, gac, ICANN, interpol

A UDRP decision to scare the pants off domainers

Is this the most blatant case of UDRP abuse you’ve seen?
A company has won a generic domain name using a trademark it has had registered for less than a year, despite the fact that the current registrant has owned it for well over a decade.
The domain medicalexpo.com was first registered in 1997. It has been in the control of the same registrant since at least 2000, according to historical Whois records, but has never resolved to a web site.
The complainant, Benoit Thiercelin, who has has a history of attempted reverse domain name hijacking, was granted a European trademark on the term “Medical Expo” in June 2010.
In April 2011, Thiercelin filed a UDRP complaint with the little-used ADR Center of the Czech Arbitration Court, citing its European trademark and a US trademark as proof of its rights.
The US trademark was not fully “registered” until May 3, 2011, a month after the UDRP was filed, according to USPTO records.
On May 15, CAC ruled in his favor and awarded him the domain.
The panelist, Joseph Cannataci, found that the domain was registered “or at least re-registered” in bad faith, simply on the grounds that it had never been used.

If one is in good faith when registering a domain name, then the intention is understandably to use it for the purposes of one’s business or activity. If it remains unused for an unreasonable length of time then such registration is open to accusation of constituting “passive holding”. Irrespective of whether the domain name was registered before or after some of the Complainant’s marks, the current holder of the domain name does not seem to have used it or currently be using it.

The decision goes on to refer to the domain as a “TLD”.
The registrant did not help his cause by not responding to the complaint.
But it beggars belief that a UDRP panelist could infer bad faith registration of a generic domain that was registered 13 years before the complainant first acquired a trademark.
The idea that “re-registration” – presumably the panelist means the domain was renewed at some point after the trademark rights were acquired – could show bad faith does not even hold water.
The domain has been due to expire in 2012 since at least 2008, historical Whois records show. The registrant clearly bought a multi-year registration at some point before then, likely in 2002.
The complainant did not form his Medical Expo company until 2009, and did not file for his trademarks until December 2009 and February 2010. The registrant has not renewed the domain since then.
What we have here is a generic domain name, registered for 14 years, seized by complainant with only recently acquired rights, based on non-use and a flimsy piece of panelist reasoning.
Under other circumstances, it would be a slam-dunk case of reverse domain name hijacking.
In fact, Thiercelin has form when it comes to domain hijacking.
Last year, WIPO ruled that that he had attempted to use UDRP to hijack VirtualExpo.com, which also had been registered 10 years before he acquired his trademark rights.
The case was virtually identical to the MedicalExpo.com case, but the panelist ruled in exactly the opposite way, saying:

In the view of the Panel this is a Complaint which should never have been launched. The Complainant knew that the Domain Name was registered nearly 10 years before the Complainant acquired his registered rights, no attempt was made to demonstrate the existence of any earlier rights nor was any attempt made to address the issue arising from the disparity in dates. It simply was not mentioned. Instead, a flagrantly insupportable claim was made as to the Respondent’s bad faith intent at time of registration of the Domain Name and the Panel can only assume that it was hoped that the Panel would miss the point.

Can anybody say “forum shopping”?
This should be enough to scare the pants off of any domainer.

25 Comments Tagged: czech arbitration court, medicalexpo.com, udrp, virtualexpo.com

Poor nation support crucial to new TLD talks

Whether to provide discounts for new top-level domain applicants from poor countries has become a critical obstacle in the process of getting ICANN’s new gTLD program approved.
Not only are its policy-making bodies going through a bout of infighting over proposals to help developing nations, but it is also being seen as a “major political risk” to ICANN’s global credibility.
Sources say that the Governmental Advisory Committee is increasingly concerned that a lack of support for poorer nations could used to bash the gTLD program and discredit ICANN itself.
There are fears that the Group of 77 could use the perception that ICANN works primarily for the benefit of the developed world to push for more UN-based governmental control of the internet.
These concerns were apparently raised during the ICANN Board-GAC teleconference on Friday, and will continue to be discussed in the run-up to the Singapore meeting.
Merely applying for a new gTLD will cost a minimum of $185,000 in direct ICANN fees, potentially rising dramatically in the case of complex or contested applications.
That sum also excludes the many more hundreds of thousands of dollars required to create an application that meets ICANN’s stringent financial and technical stability demands.
Many have estimated that an application for a new gTLD could require an first-year outlay of easily over $1 million.
Unsurprisingly, this may exclude applicants from poorer nations, particularly non-profit and community-based initiatives.
There’s a worry that if support mechanisms are not in place for the first round of applications, culturally or commercially valuable IDN gTLDs will get snapped up by wealthy western companies.
Warning: More Acronyms Ahead
To come up with solutions to this problem, ICANN in April 2010 asked for what is now called the “Joint SO/AC Working Group on New gTLD Applicant Support” – JAS for short.
JAS was chartered by, and comprised of members of, the Generic Names Supporting Organization and the At Large Advisory Committee, two of ICANN’s policy bodies.
Earlier this month, JAS submitted its draft second milestone report (pdf) was submitted to the ICANN board. It’s more of a collection of ideas than a structured framework for applicant support.
It calls for, among other things, fees and financial commitments reduced by as much as three quarters for applicants from about 50 poor nations, if they can show they are (essentially) worthy and needy.
It also suggests that such applicants could have their requirements to support the new DNSSEC and IPv6 technologies from day one – which would raise start-up costs – eliminated.
Unfortunately, the GNSO and ALAC apparently had quite different expectations about what the JAS would produce, and since January the group has been working under a split charter.
Registries and registrars were (and are) worried that JAS was going too far when it recommended, for example, discounted application fees.
Because ICANN has priced applications on a cost-recovery basis, there’s a real concern that discounts for poor applicants will translate into higher fees for wealthier applicants.
Broadly, it’s an example of the usual tensions between commercial domain name industry stakeholders and other groups playing out through quite arcane due process/jurisdictional arguments.
For the last couple of weeks, this has manifested itself as a row about the fact that JAS submitted its report the report was submitted to the ICANN board before it was approved by the GNSO.
Mind The GAC
If it’s the case, as sources say, that the GAC is urgently pressing for applicant support measures to be available in the first round of new gTLD applications, this puts another question mark over ICANN’s ability to approve the Applicant Guidebook in Singapore a month from now.
The GAC “scorecard” of problematic issues has since November stated that ICANN should adopt the findings of the JAS.
But today the JAS is nowhere near producing a comprehensive solution to the problem. Its recommendations as they stand are also unlikely to attract broad support from registry/registrar stakeholders.
Many of its current suggestions are also highly complex, calling for ICANN to establish special funds, staggered payment or repayment programs and additional applicant background checks.
They would take time to implement.
There’s been some talk about the idea that ICANN could approve the Applicant Guidebook before the JAS work is complete, but I’m not sure how realistic that is or whether it would receive the GAC blessing.
If the GAC is worried that ICANN’s very legitimacy could be at risk if it goes ahead with the program before the developing world is catered for, we could be looking at another big roadblock.

6 Comments Tagged: alac, gac, gnso, ICANN, jas, new TLDs

Short .uk domain landrush opens

Nominet opened the landrush phase of its one and two-character .uk domain names within the last hour.
The landrush will see the remaining 2,640 super-short domains that have not already been claimed by trademark holders start to become available.
It costs £10 ($16) to apply, plus the cost of the registration. All contested domains will head to auction, the proceeds of which will be donated to the Nominet Trust.
The available domains are all in the .co.uk, .me.uk, .net.uk and .org.uk spaces. Restrictions may apply – for example .me.uk domains are reserved for individuals.
The landrush will run until June 15. Uncontested domains will be allocated June 23, at which point all unclaimed domains will be released into the available pool. The auctions will kick off July 20.

2 Comments Tagged: .uk, landrush, nominet, sunrise

TechCrunch abandons Disrupt.co

TechCrunch seems to have abandoned the .co domain name it acquired with much fanfare last year to promote its Disrupt technology conference.
Disrupt, which kicks off its 2011 show in New York today, was one of the first organizations to obtain a .co domain under .CO Internet’s pre-launch Founders Program.
The conference used the domain to promote its Startup Battlefield competition in May 2010.
But today, just hours before the latest conference begins, disrupt.co still leads to this legacy content. It does not appear to have been updated for the 2011 show.
There was no mention in last year’s announcement of a multi-year commitment to use the domain, so perhaps it was a one-time thing.
The official Disrupt site can be found at disrupt.techcrunch.com.

4 Comments Tagged: .co, .co internet, disrupt, techcrunch

M+M adds .mumbai to client roster

Minds + Machines has been named as the “exclusive registry and consulting services provider” for a .mumbai top-level domain application.
The company said that India TL Domain Pvt Ltd, which appears to be a new company, has also secured the necessary government support for its ICANN application.
According to M+M, Mumbai’s deputy mayor, Shailaja Girkar, has written to ICANN to say:

The city of Mumbai fully and exclusively supports the application of India TL Pvt Ltd for .Mumbai. We believe that this application best represents the interests and the community of the City of Mumbai and we request that ICANN approve this application.

Local government support is a requirement for city TLDs, under ICANN’s current rules. But the latest version of the Applicant Guidebook suggests it can be trumped at the national level.
M+M, owned by Top-Level Domain Holdings, is also linked to applications for .gay, .eco, .berlin and .nyc, among others. Some of these are contested by rival applicants.

6 Comments Tagged: .mumbai, india tl domain, Minds + Machines, tldh