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ICA: Big Players propose to change domain owners rights?

Labeled as question in Legal Discussion started by offthehandle, Nov 3, 2017.

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  1. offthehandle

    offthehandle . Gold Account VIP

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    https://domaininvesting.com/phil-corwin-leaves-ica/

    Eliot quoted on reprint from his blog this statement.

    We see the next 18-24 months as critical for the domain industry. In the policy arena there are ongoing initiatives that have the potential to dramatically impact our ability to protect our assets and conduct business. There are large, well-funded and determined players working to change domain intellectual property law in ways that could dramatically impact our community.

    Anybody have an idea who is behind the changes in IP Law?.

    I did a search on the ICA website and found no results.
    https://www.internetcommerce.org/
     
    Last edited: Nov 3, 2017
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  2. Nat Cohen

    Nat Cohen Member ICA PRO ICA Member VIP ★★★★★★★★★★

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    It is no secret that big brands and the IP lawyers that represent them are frustrated that the UDRP currently makes it difficult to take control of a domain that is being used in bad faith if the domain was registered before the trademark rights arose.

    They want to turn the key test in the UDRP into simply "used in bad faith to take advantage of a trademark".

    While that may sound reasonable, in practice it wouldn't work out so well for domain investors. UDRP panels have found that parking a domain name (whether or not with infringing links) is evidence of bad faith. Also offering a domain name for sale is evidence of bad faith. Also using privacy protection is evidence of bad faith. Also failing to develop a domain name is evidence of bad faith. Also using a domain name for an otherwise legitimate business that is similar to an existing trademark is evidence of bad faith. Also having your registrar set up a coming soon page without your knowledge with advertising links is evidence of bad faith.

    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.

    The Working Group that will review the UDRP and propose changes is already underway, with UDRP revision on the table next year.

    Paul McGrady, the incoming head of the International Trademark Lawyers Association (INTA)'s Internet Committee has publicly announced his support for turning the UDRP into a "use only" standard-

    "While there could be some positive reforms to the UDRP – such as seeking a change that would allow a trademark owner to seek relief in cases where a domain name was registered before the trademark rights came into existence but was used in bad faith after the trademark rights came into existence – there are also reforms which would not be positive for brand owners."
    https://www.lexology.com/library/detail.aspx?g=e52b6020-7b94-4c84-af73-c2989864a9eb

    The domain industry has its work cut out for it to explain our business practices, and to prevent well-intentioned but misguided polices that would enable companies to plunder our portfolios taking whatever valuable domains they want that are similar to trademarks that they starting using long after we acquired the domains.

    The ICA (http://www.ica.domains) is the main voice of the domain community on these matters. If you want to continue to have a healthy domain industry, I'd encourage you to join with the dozens of your friends and colleagues from the domain industry in support of the ICA and become part of our community.
     
  3. Kuffy

    Kuffy Name Stag VIP

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    Any chance of turning it round, and claiming that branding a name where a domain is already registered is a bad faith trademark registration?
     
  4. offthehandle

    offthehandle . Gold Account VIP

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    @Nat Cohen

    Thank you kindly for such a detailed and prompt response. This is big news to me. I am fairly new to this Industry, but not new to small business ventures and such problems occuring in other Industries. I didn’t know the IP Lawyers and powerful Corps were busy working on attacking domain investors. Frankly, for the past 20+ years, it’s not surprising the way the entire large corporation feeding frenzy of M & A’s and buyouts we have all witnessed so many changes and consolidation. The end goal is to gobble up and remove all small businesses, imo. Like Amazon is in the process of doing to retail.

    I was not aware of this undercurrent in this industry. Maybe it isn’t a secret, but with all the thousand plus hours reading blogs and on this forum, I don’t recall reading about this pending threat as a consolidated effort. The UDRP’s are ad-hoc here and there and are covered on blogs quite well. Not sure if it is my own ignorance or lack of publicity, in either case I agree we all should become vocal like the EFF has done with the recent net neutrality, MPAA, etc. and their crusades.

    Can you provide any list of who these specific corporate entities and law firms that are the most vocal and active in going after us? If you prefer not to do so publically, if you can please PM me or post a URL to any such list if it exists.

    Thank you for your efforts and contribution to this forum.
     
  5. Branko Jovanovic

    Branko Jovanovic Established Member

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    In every indrustry a "big phish" will try to swallow the small one. That is why the small fish needs to have spikes :)
     
  6. Kuffy

    Kuffy Name Stag VIP

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    Hopefully the registrars and registries will be the ones to resist this. They risk losing their milking machines.
     
  7. urlurl

    urlurl Top Member VIP

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    you hit the nail on the head there - the registers would lose millions - they can't afford this to happen
     
  8. bmugford

    bmugford www.DataCube.com PRO ICA Member VIP ★★★★★★★★★★

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    GoDaddy is one of the largest portfolio owners now after all their recent acquisitions. It would be silly if they were not willing to fight for registrant's rights in a major way. It is in their interest both registration and re-sale wise.

    Brad
     
  9. BaileyUK

    BaileyUK Top Member VIP

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    Well thanks for the Heads-up Nat Cohen and the thread start and offthehandle for the opener. It looks like this thread is going to run for some -time. I'm not surprised it hasn't hit the mainstream domaining community until now. I'm sure that those that are pushing for the changes want it to remain as low-key as possible, until they had it further down the road. Probably helps to explain some big portfolio sales as well
     
  10. BaileyUK

    BaileyUK Top Member VIP

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    Perhaps we should rename this thread "the cats ARE amongst the pigeons" certainly the biggest Shock-read I've had in a long time. I think we all know, even before judgement day that there will be some sort of compromise , but just how serious that impact is going to be remains to be seen. if there is that many (Money) influencing change, then we can guess somethings are certainly going to change to the detriment of domain investing. Perhaps time to get my head down on development.
    I for one am always baffled by the number of registered trademarks that came long after my domain registrations - and I mean by many years. Maybe I'll be the type in the firing line.

    I had read something about proposed changes at UDRP earlier but, I just put it down to a tightening-up of the conflicting judgements, i.e. more clarity, not the sort of reworking of the whole system
     
    Last edited: Nov 4, 2017
  11. offthehandle

    offthehandle . Gold Account VIP

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    If you look at this from the outside of the domain industry and examine all the unused and parked names and non-use the general public would gasp and side with the IP lawyers. There might be public backlash labeling investors as squatters I predict to deal with as well. Fortunately, there are some major portfolio owners who have a vested interest in protecting them as was pointed out.
     
  12. karmaco

    karmaco Top Member VIP

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    All the parking services would be highly against this if to cover “no bad faith” we have to unpark domains and all the selling platforms will crumble if we have to stop selling on a platform and wait for whois inquiries only.

    Domainers won’t be willing to pay top dollar for aged domains if the age is no protection. Hand regs would dwindle along with the rest. Basically the whole industry would be in chaos and damaged.

    It seems implausible that bad faith can happen when the domainer got there first and had no magical knowledge about a future trademark or shelled out big bucks to acquire a premium aged domain and have it potentially snatched away.

    If they do crack down it should be on rules pertaining to post trademark registrations (some domainers make foolish purchases) and on trademark holders who offer to buy don’t like the price and retaliate.

    Will be watching this thread. Also using privacy protection is just that personal protection from spammers and privacy of your assets and should not be used against any individual as “bad faith” reason.
     
    Last edited: Nov 4, 2017
  13. GeorgeK

    GeorgeK Leap.com PRO VIP ★★★★★★★★★★

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    Folks can join the ICANN RPM PDP at any time, see:

    https://community.icann.org/display...ms+(RPMs)+in+all+gTLDs+PDP+Working+Group+Home (click on the FAQ link to see how to join)

    As you can see from the current members list:

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

    there are quite a few TM lawyers on it, so having more representation from domain name registrants would be a positive development.

    In terms of time commitment, there's one 90 minute phone call each week, and one would also be expected to keep up with the mailing list (maybe another hour or so per week, on average).
     
  14. imadoer

    imadoer Top Member PRO VIP

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    This whole reseller market will crumble if this goes through. This is very bad. Who ever came up with this idea wasn't thinking about the whole picture.
     
  15. offthehandle

    offthehandle . Gold Account VIP

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    Thank you George for posting and taking the time to put in the links.

    Here is the FAQ page:
    https://community.icann.org/display/gnsoworkgroupres/GNSO+Working+Group+Frequently+Asked+Questions

    The instructions in the page are to send an email to : [email protected]
    and state if you wish to be a "member" or "observer"

    I went ahead and joined. Thank you again.
     
  16. pokainc

    pokainc Top Member VIP ★★★★★★★★★★

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    ==> I do see the Afternic logo on the ica site's member section (https://www.internetcommerce.org), but I don't see the Godaddy one. I know Godaddy owns Afternic, but seeing the Godaddy logo shown evidently with all its influence sends a stronger message imo not to mention it would be more re-assuring.

    Does anyone know if this is on purpose? Is there a legal reason why Godaddy prefers Afternic to show and not their logo?
     
  17. Lox

    Lox ----- Gold Account VIP

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  18. pokainc

    pokainc Top Member VIP ★★★★★★★★★★

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    @Loxline thank you for the path. Should be on the main page too ..
     
    Last edited: Nov 5, 2017
  19. consumers

    consumers Established Member ★★★★★★★★★★

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    This points towards the main problem with the UDRP which most people don't realize. there is no appeal for a UDRP decision so the universe of decisions gets larger and larger and not smaller. Now you can make up almost any screwball claim and pull out a decision that agrees with you.

    Many of the arbitrators and INTA members will misrepresent this and others will think there is an appeal because they are confused. They claim a court review is an appeal but that is false under US law. You can file a case that says false information was supplied to the panel and you can claim use of your domain was "not unlawful" under the Anti-Cyersquatting Protection Act but there is nothing I know of that allows you to go into court and say the arbitrators made the wrong decision. the Courts use US law and not the UDRP so there is no appeal.

    I also note some of the arbitrators (Like Richard Hill) try to misrepresent what the UDRP is by saying the UDRP is prima facie evidence of cybersquatting. "prima facie" means "first look" but with the UDRP there is no opportunity for a "second look" and the UDRP is not a cybersquatting law.
     
  20. jberryhill

    jberryhill Top Member John Berryhill, Ph.d., Esq. VIP ★★★★★★★★★★

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    Not at all.

    Principally, registries and registrars don't care what dispute mechanisms are applied to domain name registrations, as long as there is a dispute mechanism under which the registry/ar may point to the dispute mechanism to avoid liability on their part for domain name registrations undertaken by their customers.

    At the time the UDRP was written, the US ACPA was also being drafted. The ACPA was specifically drafted to excuse registrars etc. from liability so long as there was a "reasonable policy" in place for resolving TM disputes over domain names. That was by design.

    If people register 10,000 domain names which are then claimed by TM holders under some dispute policy, it is entirely revenue-neutral to the registry/ar. They don't care who registers the names. Their primary interest is in (a) avoiding liability and (b) offloading dispute resolution which is simple for the registry/ar to implement.
     
  21. biggie

    biggie Top Member VIP ★★★★★★★★★★

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    i was gonna say what Mr. JB said above, but he said it before me, and stated it much more eloquently than i would have.

    :)


    imo....
     
  22. Asfas1000

    Asfas1000 Top Member VIP

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    But this will discourage further registrations from the same (and other) individuals, so some drop in revenue will ultimately exist.
     
  23. jberryhill

    jberryhill Top Member John Berryhill, Ph.d., Esq. VIP ★★★★★★★★★★

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    ...if you believe some "tweak" to domain dispute proceedings will have any impact whatsoever on the next nitwit in the endless supply thereof, who is going to register the NNNNth variation of "Amazon" in some oddball TLD.

    By a wide margin, the bulk of UDRP and URS cases are pretty clear cut no-brainers, and there has never been a shortage (as many of the questions in this forum suggest) of people who re-invent the wheel.

    With few "frequent flyer" exceptions, I doubt the prospect of losing a domain name through some dispute mechanism has ever had any deterrent impact on most names which have been subject to a UDRP, which overall seem to arise through simple ignorance that the UDRP exists. I mean, if you look at the type of "help" that is requested and offered in this forum alone - and that's among people who have some fraction of a clue - it's safe to say the supply of fresh faces is nowhere near exhausted.

    Where any of this stuff gets "interesting" is in the relative handful of cases which aren't no-brainer abusive domain registration.
     
  24. equity78

    equity78 Top Member TLDInvestors.com TheDomains Staff PRO Gold Account VIP ★★★★★★★★★★

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    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?
     
  25. Haykay2005

    Haykay2005 Top Member VIP

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    Let's see how it goes
     

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