URS comes to .mobi as ICANN offers Afilias lower fees

Afilias’ .mobi is to become the latest of the pre-2012 gTLDs to agree to adopt the Uniform Rapid Suspension policy in exchange for lower ICANN fees.
Its Registry Agreement is up for renewal, and Afilias and ICANN have come to similar terms to .jobs, .travel, .cat, .pro and .xxx.
Afilias has agreed to take on many of the provisions of the standard new gTLD RA that originally did not apply to gTLDs approved in the 2000 and 2003 rounds, including the URS.
In exchange, its fixed registry fees will go down from $50,000 a year to $25,000 a year and the original price-linked variable fee of $0.15 to $0.75 per transaction will be replaced with the industry standard $0.25.
It’s peanuts really, given that .mobi still has about 690,000 domains, but Afilias is getting other concessions too.
Notably, the ludicrous mirage that .mobi was a “Sponsored” gTLD serving a specific restricted community (users of mobile telephones, really) rather than an obvious gaming of the 2003-round application rules, looks like it’s set to evaporate.
Appendix S to the current RA is not being carried over, ICANN said, so .mobi will not become a “Community” gTLD, with all the attendant restrictions that would have entailed.
Instead, Afilias has simply agreed to the absolute basic set of Public Interest Commitments that apply to all 2012 new gTLDs. Text that would have committed the registry to abide by the promises made in its gTLD application have been removed.
But the change likely to get the most hackles up is the inclusion of URS in the proposed new contract.
URS is an anti-cybserquatting measure that enables trademark owners to shut down infringing domains, without taking ownership, more quickly and cheaply than the UDRP.
It’s obligatory for all 2012-round gTLDs, and five of the pre-2012 registries have also agreed to adopt it during their contract renewal talks with ICANN.
Most recently, ICM Registry agreed to URS in exchange for much deeper cuts in its ICANN fees in .xxx.
In recent days, ICANN published its report into the public comments on the .xxx renewal, summarizing some predictably irate feedback.
Domainer group the Internet Commerce Association, which is concerned that URS will one day be forced upon .com and .net, had a .xxx comment that seems particularly pertinent to the .mobi news:

Given the history of flimsy and self-serving justifications by [Global Domains Division] staff and the ICANN Board for similar actions taken in 2015, we are under no illusion that this comment letter will likely be successful in effecting removal of the URS and other new gTLD RA provisions from the revised .XXX RA. Nonetheless, we strenuously object to this GDD action that intrudes upon and debases ICANN’s legitimate policymaking process, and urge the GDD and Board to reconsider their positions, and to ensure that GDD staff ceases and desists from taking similar action in the context of future RA renewals and revisions until the RPM Review WG renders the community’s judgment as to whether the URS and other new gTLD RPMs should become Consensus Policy and such recommendation is reviewed by GNSO Council and the ICANN Board.

The Intellectual Property Constituency of the GNSO, conversely, broadly welcomed the addition of more rights protection mechanisms to .xxx.
The Non-Commercial Stakeholder Group, meanwhile, expressed concern that whenever ICANN negotiates a non-consensus policy into a contract it negates and discourages all the work done by the volunteer community.
You can read the summary of the .xxx comments, along with ICANN staff’s reasons for ignoring them, here (pdf).
The .mobi proposed amendments are also now open for public comment.
Any lawyers wishing to rack up a few billable hours railing against a fait accompli can do so here.

.xxx to get lower ICANN fees, accept the URS

ICM Registry has negotiated lower ICANN transaction fees as part of a broad amendment to its Registry Agreement that also includes new trademark protection measures.
The company’s uniquely high $2 per-transaction fee could be reduced to the industry standard $0.25 by mid-2018.
As part of the renegotiated contract, ICM has also agreed to impose the Uniform Rapid Suspension policy on its registrants.
URS is the faster, cheaper version of UDRP that allows trademark owners to have domain names suspended in more clear-cut cases of cybersquatting.
The $2 fee was demanded by ICANN when ICM first signed its RA in 2011.
At the time, ICANN said the higher fee, which had doubled from a 2010 draft of the contract, was to “account for anticipated risks and compliance activities”.
The organization seemed to have bought into the fears that .xxx would lead to widespread misuse — something that has noticeably failed to materialize — and was expecting higher legal costs as a result.
The companion TLDs .adult, .porn and .sex, all also managed by ICM, only pay $0.25 per transaction.
The overall effects on registrants, ICANN and ICM will likely be relatively trivial.
With .xxx holding at roughly 170,000 domains and a minimal amount of inter-registrar transfer activity, ICM seems to be paying ICANN under $400,000 a year in transaction fees at the moment.
Its registry fee is usually $62, though a substantial number of domains have been sold at lower promotional pricing, so the cost to registrants is not likely to change a great deal.
The reduction to $0.25 would have to be carried out in stages, with the earliest coming this quarter, and be reliant on ICM keeping a clean sheet with regards contract compliance.
Under the deal, ICM has agreed to adopt many of the provisions of the standard Registry Agreement for 2012-round gTLDs.
One of those is the URS, which may cause consternation among domainers fearful that the rights protection mechanism may one day also find its way into the .com registry contract.
ICM has also agreed to implement its existing policies on, for example, child abuse material prevention, into the contract as Public Interest Commitments.
The RA amendment is currently open for public comment at ICANN.

Odd-couple coalition wants URS deleted from legacy gTLD contracts

Commercial and non-commercial interests within ICANN have formed a rare alliance in order to oppose the Uniform Rapid Suspension policy in three new legacy gTLD contracts.
The groups want ICANN to delete URS from the .travel, .cat and .pro Registry Agreements, which were all renewed for 10-year terms last week.
The Business Constituency and the Non-Commercial Stakeholders Group put their names to a Request for Reconsideration filed with ICANN yesterday.
The Internet Commerce Association, a member of the BC, filed a separate RfR asking for the same thing yesterday too.
These groups believe that ICANN contracting staff are trying to create consensus policy by the back door, from the top down, by imposing URS on gTLDs that were delegated before the 2012 application round.
URS was created specifically for the new gTLD program and therefore should not apply to legacy gTLDs, they say. The BC/NCSG request states:

Our joint concern… is that a unilateral decision by ICANN contractual staff within the [Global Domains Division] to take the new gTLD registry agreement as the starting point for renewal RAs for legacy gTLDs has the effect of transforming the PDDRP [Post Delegation Dispute Resolution Process] and the URS into de facto Consensus Policies without following the procedures laid out in ICANN’s Bylaws for their creation. To be clear, we take no objection to a registry voluntarily agreeing to adopt RPMs in their contractual negotiations with ICANN.

The ICA has the same objections. It’s primarily concerned that the new contracts set a precedent that will ultimately force URS into the .com space, when Verisign’s contract comes up for renewal.
Both RfRs ask ICANN to delete the URS requirements from the just-signed .pro, .travel and .cat registry agreements.
The requesters suspect that rather than including URS as “the result of even-handed ‘bilateral negotiations'”, it was “staff insistence that the registries accept it to achieve timely registry agreement renewal.”
They want the ICANN board to demand to see the emails that were exchanged during negotiations in order to determine whether the registries were strong-armed into signing up for URS.
The BC/NCSG request is here. The ICA request is here.

URS arrives in three legacy gTLDs

The legacy gTLDs .cat, .pro and .travel will all be subject to the Uniform Rapid Suspension policy from now on.
Earlier this week, ICANN approved the new Registry Agreements, which are based on the new gTLD RA and include URS, for all three.
URS is an anti-cybersquatting policy similar to UDRP. It’s faster and cheaper than UDRP but has a higher burden of proof and only allows domains to be suspended rather than transferred.
The inclusion of the policy in pre-2012 gTLDs caused a small scandal when it was revealed a few months ago.
Critics, particularly the Internet Commerce Association, said that URS (unlike UDRP) is not a Consensus Policy and therefore should not be forced on registries.
ICANN responded that adding URS to the new contracts came about in bilateral negotiations with the registries.
The board said in its new resolutions this week:

the Board’s approval of the Renewal Registry Agreement is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so. In the case of .CAT, inclusion of the URS was developed as part of the proposal in bilateral negotiations between the Registry Operator and ICANN.

The concern for ICA and others is that URS may one day be forced into the .com RA, putting domainer portfolios at increased risk.

URS fight brewing at ICANN 53

Should the Uniform Rapid Suspension process spread from new gTLDs to incumbent gTLDs, possibly including .com?
That’s been the subject of some strong disagreements during the opening weekend of ICANN 53, which formally kicks off in Buenos Aires today.
During sessions of the Generic Names Supporting Organization and the ICANN board and staff, ICANN was accused of trying to circumvent policy-making processes by forcing URS into the .travel, .pro and .cat registry agreements, which are up for renewal.
ICANN executives denied doing any such thing, saying the three registries volunteered to have URS included in their new contracts, which are modeled on the standard new gTLD Registry Agreement.
“It’s just something we’ve suggested and they’ve taken up,” said Cyrus Namazi, ICANN’s vice president of domain name services.
If a registry wants to increase the number of rights protection mechanisms in its gTLD, why not let them, ICANN execs asked, pointing out that loads of new gTLDs have implemented extra RPMs voluntarily.
ICANN admits that it stands to benefit from operational efficiencies when its registry agreements are more uniform.
Opponents pointed out that there’s a difference between Donuts, say, having its bespoke, voluntary Domain Protected Marks List, and bilaterally putting the URS into an enforceable ICANN contract.
URS is not a formal Consensus Policy, they say, unlike UDRP. Consensus Policies apply to all gTLDs, whereas URS was created by ICANN for new gTLDs alone.
Arguably leading the fight against URS osmosis is Phil Corwin, counsel for Internet Commerce Association, which doesn’t want its clients’ vast portfolios of .com domains subject to URS.
He maintained over the weekend that his beef was with the process through which URS was making its way into proposed legacy gTLD contracts.
It shouldn’t be forced upon legacy gTLDs without a Consensus Policy, he said.
While the GNSO, ICANN staff and board spent about an hour talking about “process” over the weekend, it was left to director Chris Disspain to point out that that was basically a smokescreen for an argument about whether the URS should be used in other gTLDs.
He’s right, but the GNSO is split on this issue in unusual ways.
Corwin enjoys the support of the Business Constituency, of which he is a member, in terms of his process criticisms if not his criticisms of RPMs more generally.
ICA does also have backing from some registrars (which bear the support costs of dealing with customers affected by URS), from the pro-registrant Non-Commercial Stakeholders Group, and from groups such as the Electronic Frontier Foundation.
The Intellectual Property Constituency thinks that the process is just fine — .travel et al can sign up to URS if they want to.
While the registries have not yet put forward a joint position, the IPC’s view has been more or less echoed by Donuts, which owns the largest portfolio of new gTLDs.
The public comment period for the .travel contract ended yesterday. Comments can be read here. Comment periods on .cat and .pro close July 7.

Two more legacy gTLDs agree to use URS

The registries behind .pro and .cat have agreed to new ICANN contracts with changes that, among other things, would bring the Uniform Rapid Suspension policy to the two gTLDs.
Both gTLD Registry Agreements expire this year. Proposed replacement contracts, based heavily on the base New gTLD Registry Agreement, have been published by ICANN for public comment.
They’re the second and third pre-2012 gTLDs to agree to use URS, which gives trademark owners a simpler, cheaper way to have infringing domains yanked.
Two weeks ago, .travel agreed to the same changes, which drew criticisms from the organization that represents big domain investors.
Phil Corwin of the Internet Commerce Association is worried that ICANN is trying to make URS a de facto consensus policy and thereby bring it to .com, which is still where most domainers have most of their assets.
Following DI’s report about .travel, Corwin wrote last week:

this proposed Registry Agreement (RA) contains a provision through which staff is trying to preempt community discussion and decide a major policy issue through a contract with a private party. And that very big issue is whether Uniform Rapid Suspension (URS) should be a consensus policy applicable to all gTLDs, including incumbents like .Com and .Net.
…
ICANN needs to hear from the global Internet community, in significant volume, that imposing the URS on an incumbent gTLD is unacceptable because it would mean that ICANN staff, not the community, is determining that URS should be a consensus policy and thereby undermining the entire bottom-up policy process. Domain suspensions are serious business – in fact they were at the heart of the SOPA proposal that inspired millions of emails to the US Congress in opposition.

The concern about .com may be a bit over-stated.
Verisign’s current .com contract is presumptively renewed November 2018 provided that it adopts terms similar to those in place at the five next-largest gTLDs.
Given that .net is the second-largest gTLD, and that .net does not have URS, we’d have to either see .net’s volume plummet or at least five new gTLDs break through the 15 million domains mark in the next three years, both of which seem extraordinarily unlikely, for .com to be forced to adopt URS.
However, if URS has become an industry standard by then, political pressure could be brought to bear regardless.
Other changes to .pro and .cat contracts include a change in ICANN fees.
While .pro appears to have been on the standard new gTLD fee scheme since 2012, .cat is currently paying ICANN $1 per transaction.
Under the new contract, .cat would pay $0.25 per transaction instead, but its annual fixed fee would increase from $10,000 to $25,000.

URS coming to .travel under big contract changes

The .travel gTLD, which was approved 10 years ago, will have to support the Uniform Rapid Suspension service, one of several significant changes proposed for its ICANN contract.
I believe it’s the first legacy gTLD to agree to use URS, which gives trademark owners a way to remove domain names that infringe their marks that is quicker and cheaper than UDRP.
Tralliance, the registry, saw its .travel Registry Agreement expire earlier this month. It’s been extended and the proposed new version, based on the New gTLD Registry Agreement, is now open for public comment.
While the adoption of URS may not have much of a direct impact — .travel is a restricted TLD with fewer than 20,000 names under management — it sets an interesting precedent.
IP interests have a keen interest in having URS cover more than just 2012-round gTLDs. They want it to cover .com, .org, .net and the rest too.
Domain investors, meanwhile, are usually cautious about any changes that tilt the balance of power in favor of big brands.
When .biz, .org and .info came up for renewal in 2013, the Intellectual Property Constituency filed comments asking for URS to be implemented in the new contracts, but the request was not heard.
I’m aware of two ccTLDs — .pw and .us — that voluntarily adopted URS in their zones.
Other changes include a requirement for all .travel registrars, with the exception of those already selling .travel domains, to be signatories of the stricter 2013 Registrar Accreditation Agreement.
That’s something Afilias and Neustar only agreed to put in their .info and .biz contracts if Verisign agrees to the same provisions for .com and .net.
The fees Tralliance pays ICANN have also changed.
It currently pays $10,000 in fixed fees every year and $2 per billable transaction. I estimate this works out at something like $40,000 to $50,000 a year.
The proposed new contract has the same fees as 2012-round new gTLDs — a $25,000 fixed fee and $0.25 per transaction. The transaction fee only kicks in after 50,000 names, however, and that’s volume .travel hasn’t seen in over five years.
Tralliance will probably save itself thousands under the new deal.
The contract public comment forum can be found here.

Could you survive a .sucks UDRP?

If you register a .sucks domain matching a brand, could you survive a subsequent UDRP complaint? Opinion is mixed.
In my view, how UDRP treats .sucks registrants will be a crucial test of Vox Populi Registry’s business model.
Vox Populi Registry clearly envisages — and is actively encouraging with its policies — genuine critics, commentators and consumer advocates to register .sucks domains that match famous trademarks.
I really like this idea. Power to the people and all that.
But will UDRP panelists agree with me and Vox Pop? Cybersquatting case law under UDRP says, very firmly: “It depends.”
Statistics generally favor mark owners
To date, there have been exactly 100 resolved UDRP complaints against domains that end in “sucks.com”.
Of those, 47 cases ended up with a full transfer of the domain to the trademark owner. Only 30 resulted in a the complaint being denied.
Another 19 cases were withdrawn or terminated; the remainder were split decisions.
So it seems, based on historical “sucks” cases, that the odds favor trademark owners.
But each case is, theoretically at least, judged on its merits. So it does not necessarily hold that most .sucks UDRP complaints will be successful.
What does WIPO say?
The World Intellectual Property Association, which administers most UDRP cases, published a set of guidelines for its panelists.
Some guidelines specifically addresses “sucks” sites, but the advice is not always clear-cut.
There are three elements to UDRP. First, the complainant must show that the domain name in question is identical or confusingly similar to its trademark.
According to WIPO, it’s the “consensus view” of UDRP panelists that adding “sucks” to a trademark at the second level does NOT stop a domain being confusiningly similar. WIPO says:

Generally, a domain name consisting of a trademark and a negative or pejorative term (such as [trademark]sucks.com) would be considered confusingly similar to the complainant’s trademark for the purpose of satisfying the standing requirement under the first element of the UDRP (with the merits of such cases typically falling to be decided under subsequent elements). Panels have recognized that inclusion of a subsidiary word to the dominant feature of a mark at issue typically does not serve to obviate confusion for purposes of the UDRP’s first element threshold requirement, and/or that there may be a particular risk of confusion among Internet users whose first language is not the language of the domain name

Some panels have disagreed with this prevailing view, however.
It remains to be seen whether moving the string “sucks” to the right of the dot would affect the outcome, but it’s established UDRP case law that the dot in a domain can be pretty much ignored when testing for similarity.
The TLD a domain uses can be taken into account if it’s relevant or disregarded if it is not, according to precedent.
The second test under UDRP is whether the registrant of the domain has legitimate rights or interests.
Panelists disagree on this point. WIPO says:

The right to criticize does not necessarily extend to registering and using a domain name that is identical or confusingly similar to the complainant’s trademark. That is especially the case if the respondent is using the trademark alone as the domain name (i.e., [trademark.tld]) as that may be understood by Internet users as impersonating the trademark owner.

That view would seem to apply specifically to the use cases Vox Pop has in mind — the registry wants critics to own [trademark].sucks domains in order to criticize the trademark owner.
In the 2003 case of natwestbanksucks.com, the WIPO panel drew on earlier precedent to find that the registrant had no rights to the domain.

Respondents’ can very well achieve their objective of criticism by adopting a domain name that is not identical or substantially similar to Complainants’ marks. Given the free nature of the media which is the Internet and the chaotic spamming that has become epidemic, it does not appear that one can be at full liberty to use someone else’s trade name or trademark by simply claiming the right to exercise a right to freedom of expression”.

In other words: you may have a right to free speech on the internet, but you do not have the right to exercise it simply by adding “sucks” to a famous trademark.
But other UDRP panelists have disagreed. WIPO says that some panelists have found:

Irrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if such use is fair and noncommercial.

The third element of UDRP is bad faith. Complainants have to show that the registrant is up to something dodgy.
Some panelists have a pretty low threshold for what constitutes bad faith. Merely having the page parked — even if you did not park it yourself — can point to bad faith, especially in “sucks” cases.
WIPO says that “tarnishment” of a trademark — such as posting porn, which is banned under Vox Pop’s AUP anyway — can be bad faith, but legitimate criticism would not usually:

While it would not normally extend to the mere posting of information about a complainant, or to the posting of genuine, non-commercial criticism regarding the trademark holder, it may extend to commercially motivated criticism by (or likely on behalf of) a competitor of such trademark holder.

So, with all that in mind, here are some tips for improving your odds of surviving a .sucks UDRP.
How to beat a .sucks UDRP
Poring over dozens of “sucks.com” decisions, it quickly becomes clear that there are certain things you should definitely do and not do if you want to keep a hold of your brand-match .sucks domain.
Given the volume of precedent, you’ll have a hard time showing that your domain is not identical or confusingly similar to the trademark in question — strike one — but there are ways to show legitimate interests and rebut claims of bad faith.
1. Respond
To show you lack legitimate interests, the complainant only needs to make a face-value argument that you do not. Then the burden of proof to show rights switches to you.
If you don’t respond to the UDRP, the panel will find you lack rights. Panelists rarely try to fight the corner of a registrant who has not responded.
That’s strike two.
2. Don’t allow your domain to be parked
If a domain is parked, UDRP panelists in “sucks.com” cases invariably find that the registrant lacks legitimate interests and has shown bad faith.
Parking is considered a commercial activity, so you won’t be able to argue convincingly that you’re exercising your right to non-commercial free speech if your domain is splashed with links to the trademark owner’s competitors.
This holds true even if the domain was automatically parked by your registrar.
Dozens (hundreds?) of UDRP cases have been lost because Go Daddy parked the newly registered domain automatically, enabling the complainant to show commercial use.
Panelists are usually happy to overlook the lack of direct bad faith action by the registrant in such cases.
Parking will usually lead to strikes two and three.
In the case of .sucks, parking is actually banned by Vox Populi’s acceptable use policies (pdf).
But the registry will only enforce this policy if it receives a complaint. I don’t know if the Registry-Registrar Agreement, which isn’t public, prohibits registrars auto-parking new domains.
3. Develop a site as soon as possible
In some “sucks.com” cases, respondents have argued that they had intended to put up a criticism site, but could not provide evidence to back up the claims.
If you register a .sucks matching a trademark, you’ll want to put up some kind of site ASAP.
In the case of kohlersucks.com, the registrant had merely framed a Better Business Bureau web page, which was found to show non-commercial criticism use.
4. Don’t offer to sell the domain
It should go without saying that offering to sell the domain to the trademark owner shows bad faith; it looks like extortion.
Panelists regularly also find that registrants give up their legitimate rights to a domain as soon as they make it available to buy.
5. Don’t make any money whatsoever
The second you start making money from a domain that matches a trademark, you’re venturing into the territory of commercial use and are much more likely to fail the WIPO test of “genuine, non-commercial criticism”.
6. Be American
Depressingly, you stand a better chance of fighting off a UDRP on free speech grounds if both the case involves US-based parties and a US-based panelist.
Panelists are more likely to draw on the US Constitution’s First Amendment and associated non-UDRP case law when determining rights or legitimate interests, when the registrant is American.
Merely registering with a US-based registrar is not enough to confer First Amendment rights to a registrant living outside of the US, according to UDRP panels.
Even though freedom of speech is a right in most of the world, in the universe of UDRP it seems the rest of us are second-class citizens compared to the yanks.

Uniform Rapid Suspension comes to .us

Neustar is to impose the Uniform Rapid Suspension policy on the .us ccTLD.
This means trademark owners are going to get a faster, cheaper way to get infringing .us domains taken down.
From July 1, all existing and new .us names will be subject to the policy.
Neustar’s calling it the usRS or .us Rapid Suspension service, but a blog post from the company confirms that it’s basically URS with a different name.
It will be administered by the National Arbitration Forum and cost mark owners from $375 per complaint, just like URS.
Neustar becomes the second ccTLD operator to support URS after PW Registry’s .pw, which implemented it from launch.
URS and usRS only permit domains to be suspended, not transferred to the mark owner, so there’s less chance of it being abused to reverse-hijack domains.
The burden of proof is also higher than UDRP — “clear and convincing evidence”.

How NetSol opts you in to cybersquatted .xyz names

Clear-cut cases of cybersquatting seem to be among those .xyz domain names that Network Solutions has registered to its customers without their explicit request.
Some of the domains I’ve found registered in .xyz, via NetSol to the registrants of the matching .com or .net names, include my-twitter.xyz, facebook-liker.xyz and googledia.xyz.
Domains including other brands, such as Rolex, Disney, iPhone, Amazon and Pepsi can also be found registered to third parties, via NetSol, in .xyz’s zone today.
They’re all registered via NetSol’s Whois privacy service, which lists the registrant’s “real” name in the Whois record, but substitutes mailing address, email and phone number with NetSol-operated proxies.
I think the chance of these names being paid for by the registrant is slim. It seems probable that many (if not all) of the squatty-looking names were registered via NetSol’s promotional program for .xyz.
As previously reported, NetSol has been giving away domain names in .xyz to owners of the matching .com names. Tens of thousands of .xyz names seem to have been registered this way in the last week.
The “registrants” did not have to explicitly accept the offer. Instead, NetSol gave them the option to “opt-out” of having the name registered on their behalf and placed into their accounts.
The effect of this has been to propel .xyz into the leading spot in the new gTLD league table. It had 82,236 names in today’s zone file. a clear 15,000 names ahead of second-place .club.
But it’s not clear how much, if any, support NetSol has received from the registry, XYZ.com. CEO Daniel Negari told Rick Schwartz, in a coy interview last week:

The Registry Operator is unable to “give away” free domain names. I never even saw the email that the registrar sent to its customers until I discovered it on the blogs.

The opt-out giveaway has also prompted speculation about NetSol’s right to register domains without the explicit consent of the registrant, both under the law and under ICANN contract.
Under the Registrar Accreditation Agreement, in order to register a domain name, registrars “shall require” the registrant “to enter into an electronic or paper registration agreement”.
That agreement requires the registrant to agree to, among many other things, the transfer or suspension of their domains if (for example) they lose a UDRP or URS case.
But that doesn’t seem to be happening with the opt-out names,
Barry Shein, president of The World, had shein.xyz registered on his behalf by NetSol on Saturday. He already owns shein.com, also registered with NetSol.
NetSol’s email informing him of the registration, which Shein forwarded to DI, reads as follows:

Dear Valued Network Solutions Customer,
Congratulations, your complimentary SHEIN.XYZ domain has arrived!
Your new .XYZ domain is now available in your Network Solutions account and ready to use. To go along with your new .XYZ domain, you have also received complimentary access to Professional Email and Private Registration for your .XYZ domain.
If you choose not to use this domain no action is needed and you will not be charged any fees in the future. Should you decide to keep the domain after your complementary first year, simply renew it like any other domain in your account.
We appreciate your business and look forward to serving you again.
Sincerely,
Network Solutions Customer Support
www.networksolutions.com
http://www.networksolutions.com/help/index.jsp

Importantly, a footnote goes on to describe how NetSol will take a refusal to opt out as “continued acceptance” of its registration agreement:

Please note that your use of this .XYZ domain name and/or your refusal to decline the domain shall indicate acceptance of the domain into your account, your continued acceptance of our Service Agreement located online at http://www.networksolutions.com/legal/static-service-agreement.jsp, and its application to the domain.

So, if you’re a NetSol customer who was picked to receive a free .xyz name but for whatever reason you don’t read every marketing email your registrar sends you (who does?) you’ve agreed to the registration agreement without your knowledge or explicit consent, at least according to NetSol.
I am not a lawyer, but I’ve studied enough law to know that this is a dubious way to make a contract. Lawyers I’ve shown this disclaimer to have laughed out loud.
Of course, because each registrant already owns a matching .com, they’ve already accepted NetSol’s registration agreement and terms of service at least once before.
This may allow NetSol to argue that the initial acceptance of the contract also applies to the new .xyz domains.
But there are differences between .com and .xyz.
Chiefly, as a new gTLD, .xyz registrants are subject to policies that do not apply to .com, such as the Uniform Rapid Suspension policy.
URS differs from UDRP in that there’s a “loser pays” model that applies to complaints involving over 15 domains.
So these .xyz registrants have been opted into a policy that could leave them out of pocket, without their explicit consent.
Of course, we’re talking about people who seem to be infringing famous trademarks in their existing .com names, so who gives a damn, right?
But it does raise some interesting questions.
Who’s the registrant here? Is it the person who owns the .com, or is it NetSol? NetSol is the proxy service, but the .com registrant’s name is listed in the Whois.
Who’s liable for cybersquatting here? Who would Twitter file a UDRP or URS against over my-twitter.xyz? Who would it sue, if it decided to opt for the courts instead?