ICANN to kill auction fund bylaws change

A controversial proposed amendment to ICANN’s bylaws is set to be killed off after the community flexed its muscles over the board of directors.

The amendment, which sought to give ICANN a switch to turn off its accountability mechanisms under certain circumstances, is now likely to be replaced by one that limits accountability only when it comes to ICANN’s $220 million Grant Program.

News of the board’s change of heart came during a Monday call between the GNSO Council and the two GNSO appointees on the board.

“I think it’s pretty clear that the bylaw that was put together and circulated is not going to pass the Empowered Community,” board member Becky Burr told the Council “So we need to go back and and revisit that.”

The community had wanted an amendment that makes the Independent Review Process and Request for Reconsideration mechanisms unavailable to organizations applying for grants and those that oppose them, to avoid splurging money on lawyers rather than good causes, but the board had floated text that would have made it easier to turn these mechanisms off in future scenarios too.

ICANN’s amendment was supported by the At-Large Advisory Committee, but every other community group, in a rare example of across-the-aisles agreement, reckoned it was overly broad and risked weakening ICANN’s accountability.

The board’s decision to revert to what the community originally wanted appears to be a reluctant one. Burr said that the IRP needs to be looked at in future because the way the bylaws are written now invites over-use.

“As they are currently written, a disappointed bidder, an engineering firm in response to an RFP, could use those, could bring an IRP,” she said. “At some point we’re going to have to look at this more holistically.”

The were also calls from the Council to take a look at the RfR process, or at least how RfRs are handled by ICANN’s legal team. RfRs are too often seen as an adversarial exercise where ICANN lawyers are simply try to “win” against the requester rather than solve the problem at hand, they said. This has led to a situation where dozens of RfRs have been filed over the year, almost all of which are dismissed.

GNSO mulls lawyering up over auction fund dispute

The GNSO Council has started discussing bringing in the lawyers over ICANN’s recent handling of issues related to its $200+ million auction fund and Grant Program.

The Council today raised the possibility of deploying the never-before-used Community Independent Review Process, which would involve every major community group ganging up on ICANN’s board in a protracted quasi-judicial bunfight.

Ironically, the beef concerns the way ICANN is trying to stop people invoking its accountability mechanisms, including the IRP, to challenge decisions it makes under its Grant Program, which hopes to distribute $10 million to worthy causes this year.

ICANN policy is that nobody should be able to challenge grant decisions, because that would mean funneling the available funds into the pockets of worthless lawyers, rather than worthy causes. But how it proposes to achieve that goal is in dispute.

The original community recommendation was for a bylaws amendment that specified that the Grant Program was out-of-bounds for IRP and Request for Reconsideration claims, and the board initially agreed, before changing its mind and instead plumping for a clause in the program’s terms that prevents grant applicants appealing adverse decisions.

After community pushback, the board said it would also propose a bylaws amendment, but many believe the amendment it came up with goes way too far and risks making it far too easy for ICANN to wriggle out of its accountability obligations in future.

Leading the fight against the board is the GNSO’s Intellectual Property Constituency, which filed a Request for Reconsideration in November, asking ICANN to reverse its decision to “contract around” its accountability promises and scale back its over-broad bylaws amendment.

But the RfR was thrown out, with the Board Accountability Mechanisms Committee ruling that the IPC had failed to say how it had been specifically harmed by the board’s actions, accusing the constituency of merely “speculating” about possible future harms.

GNSO Councillor Susan Payne, today expressed the IPC’s disappointment with BAMC’s decision on the Council’s monthly conference call.

“We think that’s wrong,” she said. “If you purport to change a fundamental bylaw by using a process that cuts out the GNSO and effectively therefore also its constituencies and stakeholder groups then clearly there’s a harm there.”

She also noted the financial expense of challenging the board’s decisions.

“Constituencies or stakeholder groups will have real difficulty in withstanding the ICANN machine,” Payne said. “It’s a really expensive process to to challenge these kind of decisions. We asked if other constituencies and stakeholder groups would be able to join the IPC in bringing that RfR and no one had the finances to do it.”

The IPC has joined ICANN in a Cooperative Engagement Process — a kind of informal discussion that is often a precursor to an IRP filing — but Payne raised the possibility of ICANN’s Empowered Community filing its own IRP.

Under ICANN’s bylaws, the EC has the special ability to bring a Community IRP and ICANN has to pay for it. It’s never been used before, and it doesn’t look to me like the complex conditions required to trigger it are close to having been met.

The IPC had broad support in principle from the other Councillors speaking in today’s meeting, but some urged caution due to ICANN’s past behavior when the lawyers are called in.

“Once you get into the IRP process, ICANN buckles down, hands it off to their outside counsel, and you really get a nasty litigation fight,” said Jeff Neuman, a liaison on the Council. “You’re talking about years of litigation, outside counsel, and no progress”.

Fellow council member Thomas Rickert of the ISPs constituency suggested looking for a law firm that would handle the IRP on a no-win-no-fee basis before committing further.

While it seems a Community IRP may be unrealistic for now, the fact that it’s even being discussed shows how seriously the GNSO is taking this apparent power grab by ICANN’s board and lawyers.

ICANN accused of power grab over $271 million auction fund

ICANN has acted outside of its powers by ignoring community policy recommendations and leaving its $271 million gTLD auction windfall open to being frittered away on lawyers, according to community members.

The Intellectual Property Constituency of the GNSO has filed a formal Request for Reconsideration over a board resolution passed at ICANN 78 last month in Hamburg, and other constituencies may add their names to it shortly.

The row concerns the huge cash pile ICANN was left sitting on following the auction of 17 new gTLD contracts between 2014 and 2016, which raised $240 million (as of July, around $271 million after investment returns and ICANN helping itself to a portion to fund its operations reserve).

It was decided that the money should be used to fund a grant program for worthy causes, with organizations able to apply for up to $500,000 during discrete rounds, the first of which is due to open next year with a $10 million pot. Around $220 million is believed to be earmarked for the grant program over its lifetime.

But the Cross Community Working Group for Auction Proceeds (CCWG-AP) that came up with the rules of the program was concerned that unsuccessful applicants, or others chagrined by ICANN’s grant allocations, might challenge decisions using ICANN’s accountability mechanisms.

This would cause money earmarked for worthy causes to be spaffed away on lawyers, which the CCWG-AP wanted to avoid, so it recommended that ICANN modify its fundamental bylaws to exclude the grant program from mechanisms such as the Independent Review Process, which usually incurs high six-figure or seven-figure legal fees.

ICANN seemed to accept this recommendation — formally approving it in June last year — until ICANN 78, when the board approved a surprise U-turn on this so-called Recommendation 7.

The board said it was changing its mind because it had found “alternative ways” to achieve the same objective, “including ways that do not require modification to ICANN’s core Bylaws on accountability”. The resolution stated:

As a result, the Board is updating its action on Recommendation 7 to reflect that ICANN org should implement this Recommendation 7 directly through the use of applicant terms and conditions rather than through a change to ICANN’s Fundamental Bylaws.

This left some community members — and at least one ICANN director — scratching their heads. Sure, you might be able to ban grant applicants from using the IRP in the program’s terms and conditions, but that wouldn’t stop third parties such as an applicant’s competitors from filing an IRP and causing legal spaffery.

The board was well aware of these concerns when it passed the resolution last month. Directors pointed out in Hamburg that ICANN is still pursuing the bylaws amendment route, but has removed it as a dependency for the first grant round going ahead.

This left some community members nonplussed — it wasn’t clear whether ICANN planned to go ahead with the program ignoring community recommendations, or not. The reassuring words of directors didn’t seem to tally with the language of the resolution.

So the IPC took the initiative and unironically invoked an accountability mechanism — the RfR — to get ICANN to change its mind again. I gather the request was filed as a precaution within the 30-day filing window due to the lack of clarity on ICANN’s direction.

The RfR states:

the impetus behind the Bylaws change was to prevent anyone from challenging grant decisions, including challenges from parties not in contractual privity with ICANN. The Board’s hasty solution would only prevent contracting grant applicants from challenging decisions; it would not in any way affect challenges by anyone else – including anyone who wished to challenge the award of a grant. The grant program could be tied in knots by disgruntled parties, competitive organizations or anyone else who wished to delay or prevent ICANN from carrying out any decision to grant funds. This is exactly what the CCWG-AP sought to prevent

The IPC says that by bypassing the bylaws amendment process, which involves community consent, the ICANN board is basically giving itself the unilateral right to turn off its bylaws-mandated accountability mechanisms when it sees fit. A power grab.

It wants the Hamburg resolution reversed.

Discussing the RfR a few days before it was filed, other members of the GNSO Council suggested that their constituencies might sign on as fellow complainants if and when it is amended.

RfRs are handled by ICANN’s Board Accountability Mechanisms Committee, which does not currently have a publicly scheduled upcoming meeting.

You can’t appeal a UDRP appeal, ICANN Ombudsman says

ICANN’s independent Ombudsman has called an Indian vaccine maker’s second Request for Reconsideration over a failed UDRP case a “misuse” of the Org’s appeals process.

Zydus Lifesciences lost its UDRP over the domain zydus.com earlier this year, with a finding of Reverse Domain Name Hijacking, then used the RfR process to try to get ICANN’s board of directors to overturn the WIPO decision.

The Board Accountability Mechanisms Committee dismissed the complaint because Reconsideration is designed for challenging ICANN’s actions and WIPO is not ICANN.

Zydus immediately filed a second RfR, calling WIPO “an extension of ICANN itself” and that BAMC’s inaction on the first RfR meant the case was now subject to the board’s jurisdiction.

In a rare intervention, Ombudsman Herb Waye poo-poos that notion, writing: “Decisions by the WIPO Panel in a domain name dispute are not sufficient basis for an RfR (hence the BAMC had no ‘jurisdiction’ other than the jurisdiction necessary to dismiss the Request).”

I feel that [the second RfR] has placed the BAMC in the awkward position of policing itself; hence perhaps, its hesitancy to summarily dismiss a Request concerning its own actions. A clear attempt by the requestor to appeal the decision in [the first RfR]. An unfortunate situation that, to me, amounts to misuse of this accountability mechanism.

He concluded that for the BAMC to consider the complaint would be a “waste of resources” and that it should be dismissed.

Zydus will still be able to appeal the UDRP in court, but that of course will be much more expensive.

ICANN throws out prostitution complaint

ICANN has rejected a complaint from a man about a web site apparently offering prostitution services.

As I reported last month, the American had filed a Request for Reconsideration with ICANN’s board of directors after his complaints to Compliance about Namecheap were rejected.

He’s unhappy that US-based Namecheap won’t take down the domain adultsearch.com, which operates as a marketplace for sex workers, many of whom are offering services that may well be illegal in most parts of the US.

But ICANN’s Board Governance Committee rejected the complaint (pdf) for lack of standing.

While the ruling is procedural, rather than substantive, the BGC does spend quite a lot of time tying itself in knots to show that while the complainant may well believe prostitution is harmful to society in general, he failed to state how he, specifically, had been harmed.

The decision also directly references the part of the request the requester has specifically asked to be redacted (but was not).

Covid vaccine maker takes RDNH loss to ICANN board

An Indian pharmaceuticals firm with a $2 billion turnover has complained at the highest level of ICANN after it was handed a Reverse Domain Name Hijacking decision over the .com matching its company name.

Zydus Lifesciences, which produces mainly generic drugs but last year earned government approval to manufacture a Covid-19 vaccine, says a UDRP panel “exhibited extreme bias” when it threw out its UDRP complaint against the owner of zydus.com last month.

The company had claimed the anonymous registrant was cybersquatting, but the WIPO panel instead found RDNH.

The panel was not convinced that the registrant should have been aware of Zydus’ existence when he registered the name in 2004, and said his use of the name — which it characterized as a fanciful five-letter generic — to redirect to various affiliate marketing sites was not “bad faith”.

But now Zydus is claiming that the panel ignored evidence that it was already a very large company, with a $110 million turnover, at the time of registration, and says the UDRP decision shows evidence of bias against developing-world companies. The latter card is played pretty hard.

I believe this is only the second time that a UDRP decision has been challenged with a formal Request for Reconsideration with the ICANN board of directors, and there’s a pretty good chance it will be summarily dismissed like the first one.

Zydus will probably have to sue, or pay up.

ICANN throws out another challenge to the Donuts-Afilias deal

ICANN is set to reject a plea for it to reconsider its decision to allow Donuts to buy Afilias last December.

Its Board Accountability Mechanisms Committee recently threw out a Request for Reconsideration filed by Dot Hotel and Domain Venture Partners, part of a multi-pronged assault on the outcome of the .hotel gTLD contention set.

The RfR was “summarily dismissed”, an infrequently used way of disposing of such requests without considering their merits. BAMC concluded that the requestors had failed to sufficiently state how they’d been harmed by ICANN’s decision, and therefore lacked standing.

The requestors, both applicants for .hotel, had said that they were harmed by the fact that Donuts now owns two applications for .hotel — its own open, commercial one and Afilias’ successful community-based one.

It also said that ICANN’s seemingly deliberate opacity when it came to approving the deal broke its bylaws and sowed confusion and risk in the registry industry.

At some point before the December 17 board meeting that approved the acquisition, ICANN staff briefed the board on its decision to approve the deal, but no formal resolution was passed.

By exploiting this loophole, it’s not clear whether the board actually voted on the deal, and ICANN was not obliged by its bylaws to publish a rationale for the decision.

But BAMC, acting on the advice of ICANN’s lawyers, decided (pdf) that the statements of alleged harm were too vague or seemed to rely on potential future harms.

DVP and Dot Hotel are also party to a lawsuit and an Independent Review Process case against ICANN related to .hotel.

A Documentary Information Disclosure Request related to the Afilias acquisition was also thrown out in March.

BAMC’s dismissal will be rubber-stamped by ICANN’s full board at a later date.

Rival wants the truth about the Afilias-Donuts deal amid “collusion” claims

Portfolio gTLD investor Domain Venture Partners wants ICANN to fully explain its decision to approve Donuts’ acquisition of Afilias, claiming the deal gives the combined company an unfair advantage in the long-running battle for the .hotel gTLD.

DVP has filed a formal Request for Reconsideration with ICANN, tearing it a new one for seemingly going out of its way to avoid its transparency obligations when it came to the December approval of the acquisition.

ICANN’s board of directors had been scheduled to discuss the mega-deal at a special meeting December 17, but instead it carried out these talks off-the-books, in such a way as to avoid bylaws rules requiring it to publish a rationale and meeting minutes.

As I noted recently, it was the second time in 2020 (after the Ethos-PIR deal) the board resorted to this tactic to avoid publicly stating why it was approving or rejecting a large M&A transaction.

DVP notes the contrast with the Ethos-PIR proposal, which endured months of public scrutiny and feedback, adding in its RfR:

Why did the ICANN Board have a Special Meeting on this topic? Why did they not publish or otherwise identify a single background fact or point of discussion from the Special Meeting? Why did they not identify a single source of evidence or advice relied upon in coming to the decision? Why have they refused to provide even the slightest hint as to anything they considered or any reason why they came to their decision? How did they vote, was there any dissent? Nobody knows, because ICANN has kept all that secret.

The company argues that all this secrecy leaves itself and other registries at a loss to predict what might happen should they be involved in future acquisitions, particularly given the allegedly anti-bylaws “discriminatory” treatment between PIR on the one hand and Afilias on the other.

DVP stops short of asking for ICANN to overturn its decision to permit the acquisition — it would be moot anyway, as the deal has already closed — but it does demand that ICANN:

Provide complete, published rationale for the Resolution of Dec. 17, 2020 to essentially approve the Afilias acquisition of Donuts, including identification of all materials relied upon by the Board and/or Staff in evaluating the transaction, publication of all communications between Board, Staff and/or outside advisors relating to the transaction, and publication of all communications regarding the transaction between ICANN on the one hand, and Afilias, Donuts and/or Ethos Capital on the other hand.

Develop, implement, publish and report results of a clear policy as to what registry combination transactions will be approved or rejected, including clearly defined criteria to be assessed — and clearly defined process to assess that criteria – as to each and every future proposed transaction.

It’s interesting that nobody has filed a Documentary Information Disclosure Policy request for this information yet.

But it’s not all just about transparency for DVP. Its big concern appears to be its application for .hotel, which is in one of the few new gTLD contention sets still not resolved almost a decade after the 2012 application round.

DVP is the Gibraltar investment vehicle that controls the 16 new gTLDs that were formerly managed by Famous Four Media and are now managed by GRS Domains (which I believe is owned by PricewaterhouseCoopers). Dot Hotel Limited is one of its application shells.

Donuts is now in possession of two competing .hotel applications — its own, which is for an open, unrestricted space gTLD, and the Afilias-owned HTLD application, which is for a restricted Community-based space.

Back in 2014, HTLD won a Community Evaluation Process, which should have enabled it to skip a potentially expensive auction with its rival bidders and go straight to contracting and delegation.

But its competing applicants, including DVP and Donuts, challenged the CPE’s legitimacy with an Independent Review Process appeal.

To cut a long story short, they lost the IRP but carried on delaying the contention set and came back with a second IRP (this one not including Donuts as a complainant), which involves claims of “hacking”, one year ago.

The contention set is currently frozen, but DVP thinks Donuts owning two applications is a problem:

Donuts now owns or controls both that Community Application, and another pending standard application in the contention set for .hotel. There is no provision in the Applicant Guidebook for applicants to own more than one application for the same gTLD string. It certainly indicates collusion among applicants within a contention set, since two of them are owned by the same master.

…

DVP is concerned that Donuts may have no intention of honoring those Community commitments, and instead intends to operate an open registry.

DVP wants ICaNN to publish a rationale for why it’s allowing Donuts to own two applications for the same TLD.

It also wants ICANN to either force Donuts to cancel its HTLD application — which would likely lead to a .hotel auction among the remaining applicants, with the winning bid flowing to either ICANN or the losing applicants — or force it to stick to its Community designation commitments after launch, which isn’t really Donuts’ usual business model.

RfRs are usually resolved by ICANN’s lawyers Board Accountability Mechanisms Committee in a matter of weeks, and are rarely successful.

ICANN ordered to freeze .hotel after “serious questions” about trade secrets “theft”

ICANN has been instructed to place the proposed .hotel gTLD in limbo after four applicants for the string raised “sufficiently serious questions” that ICANN may have whitewashed the “theft” of trade secrets.

The order was handed down last month by the emergency panelist in the Independent Review Process case against ICANN by claimants Fegistry, MMX, Radix and Domain Ventures Partners.

Christopher Gibson told ICANN to “maintain the status quo” with regards the .hotel contention set, meaning currently winning applicant Hotel Top Level Domain, which is now owned by Afilias, won’t get contracted or delegated until the IRP is resolved.

At the core of the decision (pdf) is Gibson’s view that the claimants raised “sufficiently serious questions related to the merits” in allegations that ICANN mishandled and acted less than transparently in its investigation into a series of data breaches several years ago.

You may recall that ICANN seriously screwed up its new gTLD application portal, configuring in such a way that any applicant was able to search for and view the confidential data, including financial information such as revenue projections, of any other competing applicant.

Basically, ICANN was accidentally publishing applicants’ trade secrets on its web site for years.

ICANN discovered the glitch in 2015 and conducted an audit, which initially fingered Dirk Krischenowski — who at time was the half-owner of a company that owned almost half of HTLD as well as a lead consultant on the bid — as the person who appeared to have accessed the vast majority of the confidential data in March and April 2014.

ICANN did not initially go public with his identity, but it did inform the affected applicants and I managed to get a copy of the email, which said he’d downloaded about 200 records he shouldn’t have been able to access.

It later came to light that Krischenowski was not the only HTLD employee to use the misconfiguration to access data — according to ICANN, then-CEO of HTLD Katrin Ohlmer and lawyer Oliver Süme had too.

HTLD execs have always denied any wrongdoing, and as far as I know there’s never been any action against them in the proper courts. Krischenowski has maintained that he had no idea the portal was glitched, and he was using it in good faith.

Also, neither Ohlmer nor Krischenowski are still involved with HTLD, having been bought out by Afilias after the hacking claims emerged.

These claims of trade secret “theft” are being raised again now because the losing .hotel applicants think ICANN screwed up its probe and basically tried to make it go away out of embarrassment.

Back in August 2016, the ICANN board decided that demands to cancel the HTLD application were “not warranted”. Ohlmer barely gets a mention in the resolution’s rationale.

The losing applicants challenged this decision in a Request for Reconsideration in 2016, known as Request 16-11 (pdf). In that request, they argued that the ICANN board had basically ignored Ohlmer’s role.

Request 16-11 was finally rejected by the ICANN board in January last year, with the board saying it had in fact considered Ohlmer when making its decision.

But the IRP claimants now point to a baffling part of ICANN’s rationale for doing so: that it found “no evidence that any of the confidential information that Ms. Ohlmer (or Mr. Krischenowski) improperly accessed was provided to HTLD”.

In other words, ICANN said that the CEO of the company did not provide the information that she had obtained to the company of which she was CEO. Clear?

Another reason for brushing off the hacking claims has been that HTLD could have seen no benefit during the application process by having access to its rivals’ confidential data.

HTLD won the contention set, avoiding the need for an auction, in a Community Priority Evaluation. ICANN says the CPE was wholly based on information provided in its 2012 application, so any data obtained in 2014 would have been worthless.

But the losing applicants say that doesn’t matter, as HTLD/Afilias still have access to their trade secrets, which could make the company a more effective competitor should .hotel be delegated.

This all seems to have been important to Gibson’s determination. He wrote in his emergency ruling (pdf) last month:

The Emergency Panelist determines that Claimants have raised “sufficiently serious questions related to the merits” in in relation to the Board’s denial of Request 16-11, with respect to the allegations concerning the Portal Configuration issues in Request 16-11. This conclusion is made on the basis of all of the above information, and in view of Claimants’ IRP Request claim that ICANN subverted the investigation into HTLD’s alleged theft of trade secrets. In particular, Claimants claim that ICANN refused to produce key information underlying its reported conclusions in the investigation; that it violated the duty of transparency by withholding that information; that the Board’s action to ignore relevant facts and law was a violation of Bylaws; and further, to extent the BAMC and/or Board failed to have such information before deciding to disregard HTLD’s alleged breach, that violated their duty of due diligence upon reasonable investigation, and duty of independent judgment.

The Emergency Panelist echoes concerns that were raised initially by the Despegar IRP Panel regarding the Portal Configuration issues, where that Panel found that “serious allegations” had been made188 and referenced Article III(1) of ICANN’s Bylaws in effect at that time, but declined to make a finding on those issues, indicating “that it should remain open to be considered at a future IRP should one be commenced in respect of this issue.” Since that time, ICANN conducted an internal investigation of the Portal Configuration issues, as noted above; however, the alleged lack of disclosure, as well as certain inconsistencies in the decisions of the BAMC and the Board regarding the persons to whom the confidential information was disclosed and their relationship to, or position with HTLD, as well as ICANN’s decision to ultimately rely on a “no harm no foul” rationale when deciding to permit the HTLD application to proceed, all raise sufficiently serious questions related to the merits of whether the Board breached ICANN’s Article, Bylaws or other polices and commitments.

It’s important to note that this is not a final ruling that ICANN did anything wrong, it’s basically the ICANN equivalent of a ruling on a preliminary injunction and Gibson is saying the claimants’ allegations are worthy of further inquiry.

And the ruling did not go entirely the way of the claimants. Gibson in fact ruled against them on most of their demands.

For example, he said their was insufficient evidence to revisit claims that a review of the CPE process carried out by FTI Consulting was a whitewash, and he refused to order ICANN to preserve documentation relating to the case (though ICANN has said it will do so anyway).

He also ruled against the claimants on a few procedural issues, such as their demands for an Ombudsman review and for IRP administrator the International Center for Dispute Resolution to recuse itself.

Some of their claims were also time-barred under ICANN’s equivalent of the statute of limitations.

But ICANN will be prevented from contracting with HTLD/Afilias for now, which is a key strategic win.

ICANN reckons the claimants are just using the IRP to try to force deep-pocketed Afilias into a private auction they can be paid to lose, and I don’t doubt there’s more than a grain of truth in that claim.

But if it exposes another ICANN cover-up in the process, I for one can live with that.

The case continues…

ICANN throws out “Ugly Houses” UDRP appeal

ICANN has rejected an unprecedented attempt to get a UDRP decision overturned using the Reconsideration process.

The Board Accountability Mechanisms Committee late last week summarily dismissed a Request for Reconsideration filed by a group called the Emily Rose Trust.

Emily Rose had lost a UDRP case in May concerning the domain name uglyhousesri.com, which it had been using for the last couple of years to run a home renovation-and-resale service in Rhode Island.

The complainant was a company called HomeVestors, which has been running a near-identical service called We Buy Ugly Houses (a phrase it has trademarked) for substantially longer.

The National Arbitration Forum panelist had decided that the domain was confusingly similar to the mark, and that the similarity of the services constituted bad faith use.

In filing the rather poorly-written RfR, Emily Rose argued among other things that “Ugly Houses” is a generic term not protected by the mark.

But ICANN did not consider the merits of its request, instead rejecting the RfR for being outside the scope of the process.

The BAMC said that UDRP decisions do not involved the action or inaction of the ICANN board or staff, and are therefore not subject to board Reconsideration.

While UDRP decisions are often contested in court, this RfR makes it clear that ICANN is not an avenue for appeal in individual cases.