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/

 

[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]

Though the Complainant will have to prove an actual infringing usage of the domain.
If the domain is merely a for sale page or have no name servers, there couldn't be any evidence of infringing on the trademark.
Unless ofc it is a blatant infringement on a trademark like "bestfacebook" or "thefacebook".

*The above is not a legal advice.

For ADO.com, it was just a for sale page, read the UDRP decision at WIPO yourself:

https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2017-1661

The Domain Name resolves to a website, which in turn links to the website at “www.catchy.com”. The Domain Name is offered for sale on the “www.catchy.com” website with a list price of UDS 500,000.

(sic, it should have been "USD" not "USD", presumably]

The Domain Name currently resolves to a landing page, which re-directs Internet users to a website operated by Respondent at “www.catchy.com”, where domain names are being auctioned and sold.

The website to which the Domain Name resolves features a logo that prominently displays Complainant’s ADO trademark in red capital letters, similar to the distinctive and famous features of Complainant’s mark, along with the phrase “Do you like this domain? Make an offer!’’, thereby communicating that the Domain Name is being auctioned for sale or rent.

so what you said is not correct, in the view of some panelists....that's why court access is essential.

https://circleid.com/posts/20180301_ica_statement_on_adocom_udrp_decision_overreaching_panelists
https://domainnamewire.com/2019/01/10/ado-com-domain-dispute-settled/

to protect against such injustices. Note, we're not asking for anything special, to have MORE than what we deserve. We're just asking for our exact legal rights, which only the national courts can ensure are respected (any "arbitration panel" or ADR process is subject to forum shopping, and lots of other biases, unless it's voluntary for both sides).

 

[eternaldomains]

Out of all comments:
- 8 against
- 5 pro IGO goons including 1 pretending to be concerned, all submitted at the "last minute" just 1 day before end date, like last-minute auction bidders who know how to play their game.

This is how serious this is. If you don't comment against it, don't blame anyone but yourselves once their shit hits your fan.

 

[namezest]

I said years back icann was corrupt. The issues we all have go way beyond domain names. This is what happens when we all just click yes without reading terms. Our rights are being taken away with every excuse under the sun. If you read the terms you wouldn't have a computer or phone let alone domains.

 

[GeorgeK]

I tried to simplify things as best I could, to focus on the "mutual jurisdiction" issue, and how that doesn't match what the working group was told to do (i.e. preserving rights). See:

https://freespeech.com/2022/05/15/n...eserve-registrants-rights-to-judicial-review/

i.e. registrants' rights to judicial review are NOT being preserved.

 

[GeorgeK]

Here's a shocking new development --- the registrars constituency is trying to rewrite history, to claim the IGO final report's recommendations are in scope, and don't violate their own charter!

https://freespeech.com/2022/05/17/i...rewrite-history-of-the-new-igo-working-group/

It appears folks are beginning to realize that something is wrong, and are trying to fix things by rewriting history, perhaps to later gaslight opponents.

 

[GeorgeK]

We got a small victory today — the vote scheduled for today was deferred 1 month, at the request of the Registrars Constituency! There’s still a big hill to climb, to convince the ICANN community to reject the final report of the new IGO working group (we’d need to prevent a supermajority vote, so we don’t actually need a majority – just need to block a supermajority). Consensus policies require supermajority votes.

 

[robinnx]

they are either very stupid OR some people are going to make so much money from it very soon

 

[eternaldomains]

Been (speed-)reading past threads/articles about .org; so how do we get the attention of C-AG Xavier Becerra?

 

[eternaldomains]

@GeorgeK You should use a better acronym example in your blog instead of UN/ESCObakery - e.g. UNmarketing.com, UNcapital.com, UNconsulting.com

Using UN/ESCO as an example is undermining the seriousness of the problem. People at your blog are going to think that as long as they don't reg "obviously TM"-looking names they "aren't going to go into trouble", the kind of thinking that became ONE of the MANY reasons why many previous actions against ICA/NN failed miserably.

EDIT: for the record, UN already uses un.org & un.int; I'm sure they're now drooling to get un.com for free

 

[tonyk2000]

First of all, thanks to @Eric Lyon or whomever the actual mod is who put up the banner. Just one thing: Is it possible to change the banner color to something like red to bring more attention to such super important matters?

.. as well as perform necessary actions (code, image size etc.) to make this thing visible in case of adblock solutions used. Or, in oher words, please do not use the current banner rotating/publishing system for this banner. Yeah, it is normal to whitelist sites you like, and we all like NP, but, due some some specific ads shown @ NP, some members do block NP ads all together, so they may not see this useful banner (link).

Also - sticky thread, text link or anything similar...

 

[eternaldomains]

It's double-edged sword for many possible reasons.
No one wants scammers getting free UDRP wins all over the place, it will create chaos all over the internet, from the small business to large corporations.
I don't believe there is a chance for it to be finally approved.

Beliefs don't matter. Only actions matter. Do your part or lose your rights. Do your part or prepare to see the most ridiculous shit approved arbitrarily by greedy and powerful people.

 

[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.

 

[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....

 

[Jason Baudendistel]

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

 

[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.

 

[GeorgeK]

WIPO has submitted their own comments, pushing for arbitration and the elimination of the ability for domain name registrants to seek justice in the courts when there's a bad decision, see:

https://itp.cdn.icann.org/forms/pub...N on IGO Curative Initial Report (22-Oct).pdf

Deadline to submit comments is Sunday at 23:59 UTC time, folks. Take a moment to have your say:

https://www.icann.org/en/public-com...2021/submissions?page=1&sort-direction=newest

 

[GeorgeK]

ICA just submitted their own comments:

https://www.internetcommerce.org/ic...nts-of-recourse-to-court-following-igo-udrps/
https://www.icann.org/en/public-com...2021/submissions?page=1&sort-direction=newest

Others might want to create an account to endorse/agree with them, if you agree with their positions, to "get out the numbers" (as that's what the other side has been doing, as WIPO filed a comment already).

I'm still working on my own comments, and a deadline extension of even a few days would really help.

 

[GeorgeK]

After a lot of stress, I managed to complete my company's 54 page comment. See:

https://freespeech.com/2021/10/23/f...o-icann-to-protect-domain-name-owners-rights/

Comments are due less than 24 hours from now (23:59 UTC on Sunday October 24, 2021). If you have a moment and want to protect domain name registrants' rights, please submit a comment. You can endorse/support the comments of others, if you'd like (that's what some of the IGOs did, to support WIPO).

 

[GeorgeK]

Thanks to those who invested the time to submit comments.

 

[GeorgeK]

The ICANN working group just published a draft final report to their mailing list that doesn't reflect the public comments, see:

https://freespeech.com/2022/03/06/s...mple-on-domain-name-registrants-legal-rights/

for my discussion. This is a complete sham, one that will trample over the legal rights of domain name registrants.

 

[GeorgeK]

P.S. I made a blog post about it today too:

https://freespeech.com/2022/05/12/i...ed-capture-of-the-original-igo-working-group/

 

[GeorgeK]

And another blog post today:

https://freespeech.com/2022/05/13/p...undermined-the-legitimacy-of-the-icann-model/

 

[GeorgeK]

The vote by GNSO Council is tomorrow (Wednesday June 15, 2022), see item #4 of:

https://mm.icann.org/pipermail/council/2022-June/025719.html

It looks like the sham final report, which will harm the interests of registrants, will be approved. This sell out of registrants' rights will not be forgotten.