legal Duplicitous ICANN Working Group Jeopardizes Domain Owners’ Rights

[GeorgeK]

A duplicitous ICANN Working Group has issued a report that is open for public comments that would have severe negative consequences for domain name owners. In particular, it would tilt the playing field in a domain name dispute (i.e. a UDRP or the URS) involving IGOs (intergovernmental organizations like the United Nations) in such a manner that it would be nearly impossible for domain owners to have their dispute decided on the merits by the courts. This would encourage consequence-free reverse domain name hijacking. Rather than accept the findings and recommendations of the prior working group, which reached a consensus, this new working group instead had tunnel vision and focused instead on ramming through an alternative recommendation (involving arbitration) for which there was an express consensus against in the prior working group!

The current deadline for comments (unless extended) is October 24, 2021.

Read more about this dangerous report and what you can do to stop its recommendations in my blog post at:

https://freespeech.com/2021/10/12/duplicitous-icann-working-group-jeopardizes-domain-owners-rights/

 

[eternaldomains]

@Dynadot @DAN.COM @DaaZ @Deven Patel @Nick R

 

[eternaldomains]

@name.com

 

[GeorgeK]

I made a new blog post today, to respond to the GAC and IGOs which have been overstating the nature of the IGO protections:

https://freespeech.com/2021/10/14/an-open-letter-to-the-icann-board-regarding-igo-protections/

 

[GeorgeK]

FYI: Chris Disspain of Donuts, the chair of the working group, responded and he refused to extend the deadline for comments (despite numerous other ICANN comment periods being extended historically). e.g. search for "public comments" extended:

https://www.google.com/search?q=site:icann.org+extended+"public+comments"

10 days left.

While I escalated to the Complaints Office (adding to my existing complaint from April, which they still never responded to), it wouldn't hurt if more people demanded more time to study the issues in order to submit meaningful public comments.

I can't do things alone, folks. It only takes a few minutes to help yourself (and others like myself are investing dozens of hours on this, on top of the thousands of hours in the past, to help all domain name owners). The other side wants you to simply "give up", so that they can get their way. Never give up!

 

[GeorgeK]

Jeff Neuman and I have been going back and forth on Twitter all day, and so I was researching historical documents. And I found a juicy one. In particular, I found the old article I wrote about what IGOs tried to do in 2007 (changing "AND" to "OR" in the UDRP test):

https://circleid.com/posts/710118_short_domain_names_igo_udrp/

and one of the comments was by Jeff Neuman himself (all the comments are worth reading, including Berryhill, ICA at the time, etc.), where Jeff linked to a 2001 letter by Louis Touton on the subject:

https://www.icann.org/resources/unt...k-for-international-settlements-2001-05-21-en

"Under Article 6ter(1)(c) of the Paris Convention, the protection of abbreviations of international intergovernmental organizations provided by Article 6ter(1)(b) does not extend to exclude use or registration that is "not of such a nature as to suggest to the public that a connection exists between the organization concerned and the . . . abbreviations", nor is there any exclusion if "such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization." In simple terms, the Convention's protection of abbreviations of international intergovernmental organizations, where it applies, only extends to source-identifying uses of those abbreviations."​

That matches my own analysis, in the blog post of today and in the working group I was on, and is the only reasonable analysis.

If this doesn't make you furious, that despite all this, ICANN continues to humour the false arguments presented by the GAC and IGOs, I suppose nothing will. Literally millions of dollars of people's time has been squandered all these years. IGOs shouldn't be rewarded for literally 2 decades of false arguments (repeated again in this week's letter from the GAC) with a "gift" at the expense of domain name registrants' fundamental legal rights.

 

[GeorgeK]

Example of the "quality work", by those who who pretended they read their report. P. 21, footnote 20:

https://itp.cdn.icann.org/en/files/...tive-rights-protections-igo-14-09-2021-en.pdf

"See [INSERT RELEVANT EARLY GOOGLE DOC] for details..." ​

I might be the very first person in the world to have actually read this report.

Remember, there were a lot of working group members and paid ICANN staff, who claimed to actually do the work, to read what they submitted to the public. Why didn't they see what I spotted? (and there were other errors)

 

[namezest]

Well interesting info thanks for that. IMO.... This is just what everything online and computer related has boiled down to by users accepting terms without reading them....

 

[namezest]

ICANN is already in collusion with the big registrars, they are not allowed portfolios and lose their accreditation according to ICANN materials and rules. However we all know it's considered normal but why?
18 cents per reg per year.

 

[GeorgeK]

ICANN is already in collusion with the big registrars, they are not allowed portfolios and lose their accreditation according to ICANN materials and rules. However we all know it's considered normal but why?
18 cents per reg per year.

That's not correct. There was never any policy passed preventing registrars from owning portfolios. I suspect you're misunderstanding the portion of the registrars contract with ICANN which says:

https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en

3.7.9 Registrar shall abide by any Consensus Policy prohibiting or restricting warehousing of or speculation in domain names by registrars.

But, no such "Consensus Policy" was ever proposed, nor would it likely ever get adopted. The list of all Consensus Policies can be found at:

https://www.icann.org/resources/pages/registrars/consensus-policies-en

 

[HotKey]

Right now, if someone creates a dispute involving one of your domain names, and you lose the UDRP/URS, you have the fundamental right to have that dispute decided on its merits in the court system. With this proposal, they'll take that right away from you, starting with a special class of complainants (IGOs, e.g. the UN, WHO, World Bank, and organizations of that type). They'd replace the court access with arbitration.

What of the flipside to this, where as the domain investor we win the dispute, and the complainant now cannot also bring the case to court, thereby potentially saving the domain defendant thousands $ in additional costs? Could this be considered somewhat of a positive outcome to the proposal, or do outcomes like this simply not occur? Eg., this will always swing in favor of IGOs..

 

[Altetra]

I will try to comment tomorrow on ICANN, need to look more into this matter.
I m going to share this topic to the other forum if no one did yet to spread the word.
Thank you for info!

 

[Jason Baudendistel]

Only 4 public comments and one is neutral. I'm actually concerned this could have legs. Or get pushed through.

 

[GeorgeK]

What of the flipside to this, where as the domain investor we win the dispute, and the complainant now cannot also bring the case to court, thereby potentially saving the domain defendant thousands $ in additional costs? Could this be considered somewhat of a positive outcome to the proposal, or do outcomes like this simply not occur? Eg., this will always swing in favor of IGOs..

No trademark owner or rightsholder who loses a domain dispute (UDRP or URS) is ever prevented from going to court. These current proposals wouldn't change those legal rights for them, only diminish your rights as a domain name owner.

As I noted last night on Twitter (as I went through the transcripts of their past working group calls), they knew there'd be blowback and opposition. That's why they did very little in terms of public outreach to affected stakeholders, to try to sneak this through unnoticed.

IGO call of Aug 2, 2021, page 10, by Chris Disspain (the chair of the working group):


https://gnso.icann.org/sites/defaul...nscript/transcript-gnso-igo-wt-02aug21-en.pdf

"One of the things that I’m personally very concerned about is the response we’re going to get from this when we go out for public comment. "

July 26, 2021 call, page 34, Chris Disspain again:

https://gnso.icann.org/sites/defaul...anscript/transcript-gnso-igo-wt-26Jul.en_.pdf

“We are asking the registrant community to agree some significant changes to the way that the UDRP operates specifically for the purposes of allowing IGOs to use that mechanism.”

Where's the outreach to the "registrant community"? Did you know about it before I blogged about it? (and of course, as I blogged, IGOs have already used that mechanism successfully, so changes aren't needed, especially changes that jeopardize our legal rights)

 

[GeorgeK]

Only 4 public comments and one is neutral. I'm actually concerned this could have legs. Or get pushed through.

If you have concerns, posting on this message board won't change anything. Create an account at ICANN, and let them know your concerns, and/or ask for more time to study the issues. It takes just a few minutes.

Folks who read this thread can never say "I wasn't warned about this", if they later are negatively impacted. The question is, are you just going to do nothing, or will you do something? The folks at ICANN have "trained" people to expect that their comments will be ignored, and that they shouldn't bother to speak up. But, if you give in to that kind of thinking, then they win!

Remember, if you say nothing at all, they interpret that as "ICANN is on the right track!"

That really speaks to how things are messed up. The standard should be that: if you want to make a drastic change, you need to have lots of vocal support from the public and affected stakeholders for it.

They instead rely upon folks being kept in the dark, so they can sneak through horrible policies, as we've seen repeatedly throughout their history.

 

[smarti]

with this approach icann just speeds up DNS transformation to metaverse.

 

[GeorgeK]

A brand new argument about the report:

https://freespeech.com/2021/10/19/i...-not-be-limited-to-just-domain-name-disputes/

namely that "If ICANN Creates An Arbitration System, It Could Not Be Limited To Just Domain Name Disputes". Otherwise, there'd be issues of forum shopping, if IGOs could selectively waive immunity for some parts of disputes, where domain names are only one aspect of a much bigger dispute.

 

[eternaldomains]

[[[Reposting here]]]

For those who believe that comments are useless, see the attachment on this post here https://www.namepros.com/threads/th...it-about-control.1167444/page-10#post-7686998 , an important hint on how we won the battle to stop the sale of .org.

It may look like it's just the Californian Attorney General & the State having an actual effect on ICANN, but without the people doing the mass-protesting, the C-AG & the State wouldn't have made a move.

The people did the mass-protesting BECAUSE they were pissed off by ICANN choosing to ignore their comments.

And ICANN chose to ignore their comments BECAUSE THERE WERE OPPOSING COMMENTS IN THE FIRST PLACE.

============================================================
To summarize, in order to win any battle against ICANN, this is the order of things we need to achieve:

Comment to ICANN >>> Raise awareness to as many end users (8000-25000 minimum) >>> ICANN disregards opposing comments >>> Stage mass protest >>> Get news coverage >>> Attorney General sees and takes action
============================================================

So go to https://www.icann.org/en/public-com...c-curative-rights-protections-igos-14-09-2021 and help yourselves already FFS!

 

[GeorgeK]

With the help of Kevin Ohashi of ReviewSignal, I did some quantitative analysis of participation levels in the working group, to document capture. I don't think anyone has ever done that before, reviewing words spoken by each participant across all the working group meetings. See the new thread I created at;

https://www.namepros.com/threads/un...rticipation-harms-domain-name-owners.1255839/

for more.

 

[cipcip]

Am I missing something I don’t see what the problem here is?

specially trademark names

Same here, do not register trademarked names and you are going to be fine. Since 2006 when I started domaining, i Never had a udrp case.

 

[GeorgeK]

Same here, do not register trademarked names and you are going to be fine. Since 2006 when I started domaining, i Never had a udrp case.

Nearly every dictionary word, and most acronyms have an associated registered TM somewhere in the world (plus there are common law marks, too, that are unregistered). Unless you have a completely garbage portfolio, there is somebody out there that covets a domain name you own. If they feel an entitlement to it, they might misuse the UDRP/URS, and you could lose your asset without the full recourse available to reverse that unjust outcome. Look at what happened to Francois with ADO.com, or other cases like that, where it was an obvious case of a bad panel decision.

If bad panel decisions can't be reversed, that would lead to a great injustice (and arbitration isn't the 'answer', as that that could still lead to bad decisions; remember, ADO.com had 3 experienced panelists, i.e. the "best" roster!).

Furthermore, if panelists know that their decisions can't be reversed by courts, that they're the final say, that's when the most mischief can take place (i.e. I biased panelist can be left unchecked, with no safeguards to correct a biased decision).

Looking at your own portfolio (via the DAN.com link in your signature), [redacted, a 3-letter domain].xyz is a holding, yet "[redacted]" has registered TMs, e.g. search at:

https://www.tmdn.org/tmview/#/tmview

(change "CONTAINS" to "IS", and do a search for [redacted].

[change the status to only look at registered and filed ones, to exclude the dead ones, and there are 25 matches]

[one can also check at the USPTO website, but that's only US registered TMs]