question ICA: Big Players propose to change domain owners rights?

@jberryhill
@biggie

How could you think that Godaddy or other big registrars would not have a vested interest to be against these major potential changes....

Yes a lot of people register domains that are clear-cut TM infringements, but there's millions of domains which are registered which are not. If sweeping law changes regarding domain ownership go through and you have to absolutely develop a domain in order to have some right to own it or if someone files a TM after you bought the domain and can now have claims, that would deter the whole domain industry from registering legit names which are based on speculation. Especially in the brandables' market. Not everyone owns generic premium domains.

The comment about an endless supply of nitwits who would still register all kinds of TM infringements so the registrars/registries don't really care since they can deviate liability is just a ridiculous generalization. That's an easy type of comment to make when you take things out of context. What is the percentage of TM infringement domain registrations vs legit domain registrations... I doubt the majority are TM infringements..

This is a serious issue which fellow domainers are raising smart questions about which if it goes through would give the complainant sweeping rights vs the domain holder. How is this not a major concern for all the players in the domain industry.

I personally spend thousands yearly on legit domains and there's thousands of domainers who spend multiple of what I spend. If these changes go through as "use only" registrations as the accepted norm in an extreme ownership rights change move, definitely it would reduce millions in investments in domain registrations / renewals which would affect all the big companies like Godaddy in terms of their bottom line.

pokainc said:

If sweeping law changes regarding domain ownership go through and you have to absolutely develop a domain in order to have some right to own it

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Let's assume we are forced into a corner. So, for the moment imo the answer is to populate each domain with content. It does not have to be good content, but obviously not garbage spun junk either. So to avoid "non-usage" issues ftp in batch a standard set of several different generic html sites. Even if you have say 5,000 domains, you would still need to disconnect them from your existing parking company and can simply ftp a 5 page no overhead/no wordpress website in html on a VPS or large hosting plan all under several ip's and have a script generate some standard info, change the title and description data for each in the title and park it forever. This is what I have done with a few high value domains I don't want issues with. That's my plan, not saying it is without flaws, but legally a website exists- if you own a dictionary word- you could simply post the definition of the word and some examples say of using that word in sentences, lol. All of this could be automated to some extent. All domains would have the same about page, contact and details, no for sale sign on them, etc. then make the main page and another one unique. I don't think they can create a non-use claim from anyone owning 5,000 separate "companies", all subsidiaries of one company.
Or use Dub.io and populate it with rss feeds. If I am wrong, please chime in.

What you're saying does makes sense, unless they start arbitrating what constitutes "proper" development (if everyone does very simple page propagations).... Also another downside is that I (and many others) sell domains to business owners or sometimes first time buyers who are interested in the domain but are not familiar how any of it works. For them seeing the for sale sign and a contact form is what makes them more likely to inquire. It is still obviously too early but doesn't hurt to be prepared for different scenarios..

pokainc said:

For them seeing the for sale sign and a contact form is what makes them more likely to inquire.

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Something I have posted various places here is the real need for a centralized marketplace that comes up in the serps for the secondary domain market not controlled by any one company or registry. This "type in JoesDomain.com" at google and find you, may go away one of these days anyway. Now with voice control search, it's going to be interesting. Whois is changing too to this RDAP as you know, making it more difficult to access for better or worse depending upon how you look at it.

In such a centralized marketplace you could place a "Company and Domain name for sale". The "company" includes an email address you create under the domain name, some content you make ad hoc upon sale- say a starter package explaining basics of running a sample business under the name. The fact you are not selling a domain name only, but a value added service and "business plan" (That the buyer probably has no interest in anyway) then makes it more difficult and muddies the water. I dunno. My lawyer once said his job description was to "create darkness and confusion". If a dba needs to be filed, so be it. Some batch process could be done by some industrious young entrepreneur to tackle this mess.

Yea agree. These domain sale landing pages will become, pages with content & 'website for sale'.

Domainers will be careful.. Not so educated SMEs may leave their domains undeveloped and domainers will find a way to claim those as well ..

Another thing we'll have to consider is what happens with redirected domains. Can I just forward all my for-sale domains to my personal webpage, where I say I'm such and such and I enjoy playing tennis blah blah, and contact me at [email protected]

Then we have some big companies owning multiple domains "for future projects" which are either forwarded or not resolving at all. Take Google, they own 10,000 domains I think. Should they lose those domains too ? Some of these are very valuable domains.

equity78 said:

John do you share Nat's concern that IP interests could find a way to make all of domain investing practically illegal and on the way to extinction?

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I do share Nat's concerns, but the "all of domain investing practically illegal and on the way to extinction" bit is a little over-the-top. I also provide advice to more than one participant in the relevant working group.

pokainc said:

How could you think that Godaddy or other big registrars would not have a vested interest to be against these major potential changes....

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That's a very easy question to answer. GoDaddy and all of the major registrars and registries are well-engaged members of the ICANN community, and have representatives in the relevant working group:

https://community.icann.org/pages/viewpage.action?pageId=58729950

Also from that link, you will find the link to the WG mailing list, so you can get the general tenor of the discussion.

But take a look at that membership list, their affiliations, and the prospects of domainer interests being anything other than a slim minority on any vote on any topic in that group.

However, if you take a look at the mailing list archives, there is very little active participation from the Ry's and Rar's. One thing that is convenient to simply monitor ICANN working group discussions is to just join the group, don't participate, but review the mailing list from time to time. But you can just as easily bookmark the mailing list and read it from time to time. I would imagine the proportion of commenters on this thread who do that is approximately zero.

But, take something like trademark gaming for sunrise periods. The registrars and registries have utterly zero interest in whether people are getting dodgy trademarks in order to qualify to buy domain names at premium rates during sunrise periods. In point of fact, having seen a lot of TMCH notices in the course of processing bulk registrations during TLD launches, it is absolutely clear to me where the money is being made on "TMCH agents", who is making it, and how much they are making.

But making "all of domain investing practically illegal and on the way to extinction" is an exaggeration. Yes, they certainly want to make it more difficult, and that's neither a surprise nor anything new. But it really doesn't help the cause of a rational discussion for the sides to engage in exaggerations.

For example, I was at a seminar at WIPO two weeks ago, and the WIPO rep on that working group gave a summary of the discussions going on within the working group. Now, one of the topics of discussion in the WG has been the pre-emption of dictionary words by TM claims in new TLD sunrise procedures, and the gaming which has gone on around that. His characterization of these discussions was to say things like, "They've spent two months arguing over whether Apple should have a trademark."

Well, no, they haven't. But that's what partisans do in these things. The various debates over ICANN policies on TM protection have been going on since ICANN was started. They will continue to go on. I was on the first iteration of an ICANN UDRP review workgroup back in 2004ish, and the arguments (and many of the participants) haven't changed. I wasted a substantial portion of my professional life on that sort of nonsense. But you aren't going to change the mind of someone who is being paid to disagree with you. The "model" is that you get a bunch of bright, reasonable people, get them to talk stuff over, and they come up with a consensus. But, frankly, that model is ridiculous, because ICANN policy discussions are simply not good faith discussions, and the required "interest statements" are a joke. Sometime in the next couple of weeks, I will be releasing some interesting data that demonstrates why.

pokainc said:

I personally spend thousands yearly on legit domains and there's thousands of domainers who spend multiple of what I spend.

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Well, it sure sucks that the domain community couldn't spend enough to keep their primary ICANN advocate from wandering off to greener pastures then.

It's clear that you have knowledge about the inner workings of these type of organizations which often for the average to semi-average domainer is still not transparent. Definitely trying to get more familiar with the details of some of these organizations' workings.

Looking forward to the data you intend to release.

I'm sure if the problem of the great advocate leaving was a salary/money problem, we could've partly fixed that with a crowdfunding type of campaign. With so much potentially at stake, I'm sure a interesting amount could have been raised.

pokainc said:

With so much potentially at stake, I'm sure a interesting amount could have been raised.

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And if my aunt had wheels, she'd be a wagon.

We'll good for her. Make sure she doesn't add a "V" anywhere on her as she'll be potentially sued by VolksWagen. Then again, that's probably more money for you.

I see you have faith in no-one.

jberryhill said:

I do share Nat's concerns, but the "all of domain investing practically illegal and on the way to extinction" bit is a little over-the-top. I also provide advice to more than one participant in the relevant working group.

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John he said "In other words, the changes being pushed by many of the most powerful companies and their teams of well-paid IP attorneys would delegitimize the domain investing industry and put at risk most of our domains."

So I didn't think I was being over the top, if an industry becomes delegitimized that's on the road to extinction.

Is all the advice you provide pro domainer?

pokainc said:

Then again, that's probably more money for you.

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Zing! And there it is.

Yeah, that's pretty much why I reached the conclusion that volunteering my time for this stuff was as pointless as it was thankless for more than a decade. I'm just rolling around on piles of cash here.

I can assure you that had I never gotten involved with ICANN, I would be much better off than I am today.

Here's where the concept of "sunrise registration" was born (of which the TMCH nonsense is the latest evolution):

https://archive.icann.org/en/dnso/wgb-report-17apr00.htm

That working group ran for 12 months back in 1999 and 2000, and despite all of the various discussions which had gone on under the charter of whether and how to develop protections for "famous marks" in new TLDs, the chair of the group and some unidentified buddy of his came up with the sunrise proposal in the last couple of days and sprung it on the group.

You can scroll down to my comments on that one. I never saw one thin dime from my participation in that group, and several others over the course of years. In fact, one of the reasons why I eventually went solo was that my volunteer activities dealing with ICANN nonsense was at odds with my former firm's billing expectations.

So, that's one glimpse of a year of my life spent for nothing in telephone conferences and emails so that I can have the honor of being told I'm a biased, evil, greedy and faithless lawyer after all.

But having gotten the "oh, you make money from this stuff" line enough times to eventually break this camel's back, I realized that...

I see you have faith in no-one.

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I have faith in a lot of things, and have had faith in a lot of things for the last 18 years of time wasted. But I have also a substantial amount of experience at odds with it, including efforts to organize domainers to act in their own bests interests. Do you remember the Domain Name Rights Coalition? No? Oh well. We were fighting this battle under the old NSI trademark dispute policy in 1995. Domainers didn't give much of a shit then either.

Okay, so I was calling out the sunrise bullshit in 2000. We'll skip the 2004 UDRP review and fast forward to the 2011 "issues report" group which was chartered to determine what, if any, changes were needed to the UDRP.

Now, it's pretty clear, and again I refer to the composition of the group to which I provided the link above, that if you are one person and you volunteer to walk into a room of 90 people, most of whom are being paid to be there and disagree with you, then you aren't going to come out with a whole lot of balanced compromise that you are going to like. "Faith" won't fix that.

So that's why, back in 2011, me, Ari Goldberger, and other attorneys who primarily represent domainer interests and have actual experience dealing with the UDRP as it is, were urging that while there could be a number of procedural improvements (which we got, e.g. Rule 17 to avoid gratuitous cybersquatting decisions when the domain was in a bulk purchase etc.), it was preferable to avoid ripping the lid off of the substantive Policy when it's pretty obvious the ICANN deck is stacked against domainers.

I even had one of my own clients take the same line that, "Well, that's because you make money from the system" and it was the beginning of the realization that volunteering my time for years to fight against the exact thing which is happening now was an utter and complete waste of time.

So, thanks for that reminder for me to stay out of these discussions.

If this anti-investment happen, registries will lose 20-30% of "users" overnight. Imagine if a stock's demand sinks dramatically. Why would f.e. Verisign (.com) & US Commerce allow this to happen?

@jberryhill I am somewhat aware of the many free legal advice posts you have made here on Namepro’s and read a few in my short time here where you are very helpful for free on a voluntary basis and for PR. Just wanted to say that I believe there are more than one of us who recognize your positive contribution. The history you quote is quite interesting that of an ugly politicized system, like so many organizations. I hope you can continue to participate in the future, and not let one or two comments from NP members or an errant client will dissuade you as though all of us are of the same mind set. It costs money for good legal representation and it is well worth it when needed. Thank you for posting.

equity78 said:

Is all the advice you provide pro domainer?

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Boom. Thanks again.

I'm a little cranky this week, because I've been dealing with injuries sustained in a fall just before leaving Geneva two weeks ago. I slipped in the bathroom and then had to take an international flight with three broken ribs. Maybe I should step away from the keyboard.

But in answer to your question, no, I get secret kickbacks from the International Trademark Association for messing with everyone on domain forums. Gonna buy that Lambo I've had my eye on with it.

@jberryhill
I respect your views and comments on many of these matters. You had mentioned something sarcastic on a serious point I was making, I returned the favor.

Contrary to what you may think, I respect lawyers who have integrity and I do love law matters.

There's no need to take things so personally. Yes volunteering to help often goes unthanked... in case you hadn't noticed I did click "thanks" to one of your prior posts which added value to this situation.

I've helped many in different types of situations and often got worse than not even a thank you..

jberryhill said:

I also provide advice to more than one participant in the relevant working group.

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If it was in response to that, btw, no, the advice is not to any of the IP interests.

And, like I said, a couple of broken ribs is not conducive to a cheery disposition.

It was to the aunt with wheels comment haha

@jberryhill Registrars, including GD, own large portfolios of investment names. GD has invested tens of millions in them. With these changes, all those holdings could be interpreted as "bad faith", as they are for sale and GD has no intention to develop them.

jberryhill said:

Boom. Thanks again.

I'm a little cranky this week, because I've been dealing with injuries sustained in a fall just before leaving Geneva two weeks ago. I slipped in the bathroom and then had to take an international flight with three broken ribs. Maybe I should step away from the keyboard.

But in answer to your question, no, I get secret kickbacks from the International Trademark Association for messing with everyone on domain forums. Gonna buy that Lambo I've had my eye on with it.

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John I was not implying you were getting kickbacks, I meant were you giving ICANN advice too on how to implement things? Get well soon.

Recons.Com said:

@jberryhill Registrars, including GD, own large portfolios of investment names. GD has invested tens of millions in them. With these changes, all those holdings could be interpreted as "bad faith", as they are for sale and GD has no intention to develop them.

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Exactly my thoughts!

Domain Registrars like GD (& there are many), who have no intention of developing domains, will find themselves in some trouble for sure.

At the very least, they'll see a dramatic decrease in rate of new domain registrations which is sure to hit their bottom-line.

equity78 said:

I meant were you giving ICANN advice too on how to implement things?

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Not as their attorney, but, sure, I've submitted public comments on ICANN proposals for a long, long time.

The only functional role I've had in relation to ICANN was a two-year stint on the Nominating Committee (2014 and 2015)

https://www.icann.org/resources/pages/2014-2014-01-30-en
https://www.icann.org/nomcom2015

That was an uncompensated position for which ICANN provided accommodations and travel to the physical meetings of the group. Reimbursement for expenses was also available, but I've never been a big fan of obsessively collecting taxi receipts etc., so I never put in for any. So it cost me a few bucks here and there.

ICANN Policy development and implementation are open processes. Me, you, or anyone else, can "give ICANN advice" on anything.

pokainc said:

It was to the aunt with wheels comment haha

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If my aunty had a **** she would be my uncle ....

It would be so terrible for domainers if they get through this! One of the major purpose of this forum is information and now that this is exposed to huge numbers of domainers; the option is to proffer solutions to avoid the whole plans.

Oh Boy, this is sending shivers in my spine,

Why every one is silent on this ?

Will be a Huge blow to all the Domain Investors if the new UDRP rule comes into effect.

Would big registrar's like GoDaddy and domain Marketplaces Afternic,SEDO and Uniregistry do anything to stop this ? or just watch it kill all the domainers ?