Facebook cybersquatter asks ICANN to overturn UDRP ruling

A registrant who lost a slam-dunk cybersquatting complaint to Facebook owner Meta has asked ICANN to overturn the ruling, accusing WIPO of of breaching the UDRP rules by not publishing its decision fast enough.

The registrant apparently registered meta-platforms-inc.com earlier this year out of “frustration”, and in a state of some distress, after her social media accounts were closed by Meta. Meta’s full name is Meta Platforms Inc.

The registrant then asked Meta, when contacted by its lawyers, for financial compensation in exchange for the domain, according to WIPO’s findings (pdf).

It’s pretty much a clear-cut case of cybersquatting under the UDRP, and Meta prevailed. The domain was transferred to its ownership.

But the registrant has now complained to ICANN, using its Request for Reconsideration accountability procedure, saying WIPO broke its rules and behaved “fraudulently”.

The RfR is somewhat confusingly written, but the main thrust appears to be based on a misunderstanding of the UDRP rules, which require panels to submit their rulings to WIPO within 14 days of the complaint being submitted.

The registrant takes this to mean that the decisions also need to be published online within 14 days, which doesn’t appear to be the case. She wants the decision overturned on this basis.

Regardless of the merits, the RfR has zero chance of success. UDRP losers have tried and failed to invoke the Reconsideration policy to have their decisions reversed in the past.

Most notably, in 2022 Indian Covid-19 vaccine maker Zydus Lifesciences got miffed about the Reverse Domain Name Hijacking ruling it was given and filed two RfRs with ICANN.

The first was dismissed because RfR is used to challenge ICANN’s decisions and WIPO is not ICANN. In the second case, the Ombuds made a rare intervention to confirm that ICANN has no responsibility for UDRP rulings.

Some Guy wants to take over .com and .net

Some Guy has noticed that domain name prices keep going up and has offered to take over the .com and .net registries from Verisign.

The Some Guy recently filed a formal Request for Reconsideration with ICANN, asking it to overturn its recent decision to renew Verisign’s .com contract and award it to him instead. The RfR reads:

I seek to become a registry operator committed to making .COM domains more affordable and accessible to students, startups, and developers. The decision to renew Verisign’s contract hinders competition, limiting opportunities for more innovative registry operators like Asxit LLC to contribute to the digital ecosystem.

The request is accompanied by a 25-page, ChatGPT-odored analysis of why Asxit LLC would be a better .com registry than Verisign, which concludes:

The introduction of Asxit LLC as a .COM registry operator would bring significant improvements in pricing, innovation, support, and accessibility compared to Verisign’s current management. By focusing on affordable and flexible solutions, Asxit LLC aims to create a more inclusive and competitive environment for all users. This change would enhance the value of the .COM domain and support the growth of a diverse and innovative digital community.

In August, Some Guy with the same last name, who said he is a student at Liberty University in Virginia, said Asxit LLC should take over .net as well.

They’re not the funniest or craziest submissions ICANN has received over the years, but they might be worth a chuckle if you’re clock-watching on a Friday afternoon.

The sad part is of course that ICANN is now duty-bound to commit legal and board resources preparing a response to this request before throwing it out entirely.

ICANN U-turns on appeals loophole after community revolt

ICANN has backtracked and substantially pared down a proposal that could have weakened its accountability mechanisms after most of the community said they didn’t like it.

The Org has published for public comment a proposed amendment to its bylaws that will exclude its new Grant Program from the Request for Reconsideration and Independent Review Process mechanisms.

The amendment would specifically exclude claims “relating to decisions to approve or not approve an application to the ICANN Grant Program” from both procedures.

An earlier proposal would have created a new procedure to enable ICANN to also exclude other programs from accountability in future, if certain conditions were met.

But the community largely reacted with revulsion to that proposal, saying they could not support something so overly broad, forcing ICANN to narrow it down to the Grant Program only. ICANN needs the support of its sovereign Empowered Community if it wants to amend its fundamental bylaws.

The $220 million Grant Program is seeking to distribute ICANN’s new gTLD auction funds to worthy causes, but there was a fear the cash could be siphoned off by lawyers if unsuccessful grant applicants were allowed to trigger the accountability mechanisms.

The revised language is likely to be much more palatable to the community, based on previous comments.

The public comment period is open until September 16.

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.