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/

 

[Sheogorath]

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.

 

[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).

 

[cipcip]

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]

So in 10 pages you wrote here you said that basically if you have not been through an UDRP, you have a sh*t portfolio...

Wow... Just wow

 

[GeorgeK]

So in 10 pages you wrote here you said that basically if you have not been through an UDRP, you have a sh*t portfolio...

Wow... Just wow

No, that's not what I said. I said nearly every word and acronym has either a registered TM in some country, and even unregistered (common law) TM rights exist. Thus, there is very likely to be somebody out there that covets those kinds of domain names, and might misuse the UDRP/URS accordingly. Go do a TM search for the term corresponding to your best names, and you'll see for yourself.

 

[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.

 

[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.

 

[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.

 

[eternaldomains]

Looks like it's a "tie". Somebody cheated with 13 names in 1 comment

 

[GeorgeK]

FYI, ICANN just responded to my open letter to them of mid-October re: IGO protections (and I immediately replied):

https://freespeech.com/2021/12/09/icann-responds-to-my-open-letter-regarding-igo-protections/

 

[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.

 

[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]

As I noted on Twitter:

https://twitter.com/x/status/1524743084533243905

the ICANN GNSO Council will be voting on the flawed final report next week (May 19, 2022). I hope that those here who have some sway (e.g. GoDaddy and other registrars) will oppose that working group's final report, as the working group ignored the public comments opposed to it, including those that noted that the recommendations went far beyond the actual charter. Registrants will be directly harmed, as their due process protections via court will be eliminated! When that happens, you can expect IGOs to take advantage of the situation and engage in reverse domain name hijacking attempts, as an incorrect decision wouldn't be able to be corrected by the courts.

As we've seen in the ADO.com UDRP and similar decisions, panelists are biased against domain name owners, and this will become even worse if they know that their decisions can't be challenged in the courts.

 

[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]

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]

A brand new blog post on this topic:

https://freespeech.com/2022/05/18/i...y-would-be-significantly-challenged-on-scope/

regarding scope, again (with apt quotes from the Chair, Chris Disspain). And also miscellaneous notes at the bottom.

 

[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.