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EFF files reconsideration request over .Org decision

by — Policy & Law 1 Comment

Advocacy group blasts ICANN decision to apply URS to legacy top level domain.

Electronic Frontier Foundation logoElectronic Frontier Foundation (EFF) has filed a Reconsideration Request with ICANN over the terms of ICANN’s contract renewal for .org with Public Interest Registry.

It’s the second Reconsideration Request filed over the .org contract extension. Namecheap filed one primarily focused on pricing. EFF’s filing (pdf) focuses on the extension of Uniform Rapid Suspension to .org and permission from ICANN for PIR to “at its election, implement additional protections of the legal rights of third parties” unilaterally and without further consultation with existing .org registrants or the ICANN community.

EFF notes that these provisions were developed for the rollout of new top level domains, not legacy domains like .org. Now ICANN is extending them to legacy top level domains.

ICANN points to the bottom-up decision making in designing the new base agreement for new top level domains as justification for applying it to all new top level domains:

The Base RA was developed to support the new generic top-level domains (gTLDs) being created through the 2012 New gTLD Program. It was developed through the bottom-up multistakeholder process including multiple rounds of public comment and aligns with the underlying Generic Names Supporting Organization’s (GNSO’s) policy recommendations for new gTLDs. Established in 2013, the Base RA now applies to over 1,200 gTLDs. The ICANN org has consistently used the Base RA as the starting point for discussions with legacy gTLD operators about renewing their Registry Agreements. The Base RA provides additional safeguards and security and stability requirements compared to legacy agreements. Since 2014, several legacy gTLDs have renewed their agreements adopting the Base RA: cat, .jobs, .mobi, .pro, .tel, .travel, and most recently, .asia, .biz, .info, and .org.

But that’s not what the community decided when it designed the base agreement. The community differentiated between “new” top level domains and old ones, and for good reasons. EFF is a member of the GNSO Working Group for Review of All Rights Protection Mechanisms in All gTLDs, which is tasked with determining if things like URS should be applied to legacy TLDs.

EFF also points out ICANN’s flawed thinking about choice in new top level domains: that if someone isn’t happy with how a TLD operates, it can just switch domains.

Some might respond that .org registrants should simply change to a different TLD, but such change is often extremely difficult and costly for longstanding .org users. A group like EFF, or Amnesty International, will have spent decades building value in their existing domain names and would incur enormous costs in switching.

ICANN: All your Base Agreement are belong to us

by — Policy & Law 13 Comments

ICANN responds to (some) questions about why it decided to remove price controls.

Meme "All your base are belong to us" but with "All your base agreement are belong to us" referring to ICANN

Earlier this month, Internet Commerce Association asked ICANN to explain its decision to remove price controls on .org domains.

Cyrus Namazi, Senior Vice-President Global Domains Division, has responded (pdf). What he said is what many people feared when the ICANN community worked on a base agreement for new top level domain names: it is being used as the foundation for all top level domains, not just the new ones.

I recall people specifically warning against this during new top level domain discussions. They pointed out that new TLDs are being introduced in a different market and by different rules than legacy top level domains and that it was important to draw a distinction between the two.

From the letter:

The Base RA was developed to support the new generic top-level domains (gTLDs) being created through the 2012 New gTLD Program. It was developed through the bottom-up multistakeholder process including multiple rounds of public comment and aligns with the underlying Generic Names Supporting Organization’s (GNSO’s) policy recommendations for new gTLDs. Established in 2013, the Base RA now applies to over 1,200 gTLDs. The ICANN org has consistently used the Base RA as the starting point for discussions with legacy gTLD operators about renewing their Registry Agreements. The Base RA provides additional safeguards and security and stability requirements compared to legacy agreements. Since 2014, several legacy gTLDs have renewed their agreements adopting the Base RA: cat, .jobs, .mobi, .pro, .tel, .travel, and most recently, .asia, .biz, .info, and .org.

Had the community discussions when formulating the new TLD base agreement earlier this decade  been about creating a new agreement that applied to all top level domains, I can assure you the results would have been very different.

Namazi’s response also includes ICANN’s common refrain about price increases: that registrants can renew for ten years at today’s prices if an increase is announced.

Great, but who is around ten years from now to handle the complaints from registrants?

Or, who handles the complaints from registrants who didn’t know about the price increase? Sure, the registry gave notice to the registrars, but did the registrant ever find out?

Cyrus’ response is in paragraph form and does not explicitly answer all of Internet Commerce Association’s numbered questions.

ICANN will have to provide more answers in response to a Request for Reconsideration filed by domain registrar Namecheap.

MorningSave.com vs. MorningSafe.com

by — Policy & Law 0 Comments

A Mediocre Corporation files a mediocre cybersquatting case.

Screenshot of MorningSave.com

The owner of MorningSave.com filed a UDRP against MorningSafe.com.

I’m often perplexed at how some UDRP Complainant lawyers argue a case. I had these thoughts again while reading a decision over the domain MorningSafe.com.

A Mediocre Corporation, which operates the discount site MorningSave.com, filed a UDRP against the domain name MorningSafe.com.

My first reaction when seeing the domain is that MorningSafe.com seems entirely different from MorningSave.com. MorningSafe sounds like a morning after pill. MorningSave sounds like a discount/coupon site.

But when you look at your keyboard, you’ll see why the Complainant is concerned about this domain. The letter F is just offset from V.

Therefore, with proper arguments, it could have argued that this is a case of typosquatting. But the Complaint falls well short of that.

UDRP panelist Debrett Lyons found that that the Complainant didn’t show the domain is identical or confusingly similar to the trademark:

The comparison resolves to that of MORNINGSAVE with “morningsafe” and in that regard Complainant’s legal representatives make the extraordinary submission that the expressions are “phonetically identical … because phonetically the terms … are indistinguishable.” The Panel notes that the expressions are only indistinguishable to someone with no facility in English spoken language. If what Complainant’s representatives meant to say was that the expressions are phonetically similar, that is another matter.

Even though the case failed on the first element, Lyons also found that the Complainant didn’t show that the domain was registered and used in bad faith. The Respondent registered the domain prior to A Mediocre Company filing a trademark application for its brand. However, it claims use prior to the registration of MorningSafe.com.

The Complainant cited an exhibit of a website screenshot to show the early use. But, according to Lyons, the exhibit “in fact shows various screenshots of Complainant’s website on April 24, 2019 and nothing else.”

There are plenty of Wayback Machine screenshots showing early use of the MorningSave. These could have been included with date stamps to show the use.

The domain owner didn’t respond to the UDRP filing.

I’m mindful that a panelist’s write up of a case might not include all of the assertions, but there were some missed opportunities here. Maybe not enough to swing the decision, but enough to put forth a plausible argument.

Royal Caribbean Cruises loses UDRP against James Booth for RCC.com

by — Policy & Law 10 Comments

Company uses RCCL.com for corporate email and some email was misdirected.

Picture of three Royal Caribbean cruise ships on the ocean with a cityscape in the back

Picture of Royal Caribbean ships from the company’s website. The company lost a cybersquatting case it filed to get RCC.com.

Royal Caribbean Cruises has lost a cybersquatting claim it filed against domain broker James Booth of BQDN.com over the domain name RCC.com.

Booth has bought/sold about 250 three-letter domain names and acquired this domain with similar plans. A couple of years after acquiring the domain, he turned on an email catchall and found that people were emailing sensitive information intended for the cruise line to RCC.com. Royal Caribbean uses RCCL.com for its email addresses.

It was at this point that things get a bit confusing. Even though Booth is a broker himself, the case states that Booth hired a broker to contact Royal Caribbean about the misdirected email and inviting them to buy it. That overture stated:

“Do you want me to continue to forward these emails? / I think you have a major problem here, not just because of the confusion from your customers not getting their emails answered but also email security. At some point RCC.com is going to sell and the new owners may not be as nice to forward your info. / Let me know if you have time to talk this week.”

Booth admitted that it was “an arguably ill-considered solicitation.”

Of particular concern to Royal Caribbean is that Booth shared the emails with an apparent outside party (the domain broker). That’s a bad idea.

Still, the panel found that the domain was likely not registered to target Royal Caribbean, and instead because of the acronym value of RCC.com.

Zak Muscovitch represented Booth in the UDRP.

Whois API removes .NZ records to settle lawsuit

by — Policy & Law 1 Comment

Whois data seller quickly folds after facing lawsuit.

Logo for Whois XML APIDomain Name Commission (DNC), which manages New Zealand’s .NZ namespace, has dropped a lawsuit it filed against Whois API after the parties quickly settled the matter.

Domain Name Commissioner Brent Carey released this statement to Domain name Wire:

We are very pleased to announce that WhoisAPI and DNCL have been able to settle their dispute without the need for ongoing litigation.

Our agreement has resulted in WhoisAPI deleting all historical .nz WHOIS records and any related data or records that were formerly stored in its database or otherwise retained in its systems.

This is good news for .nz registrants and protection of their domain name privacy rights. WhoisAPI will not publish any non-current .nz WHOIS data.

We commend WhoisAPI on their open dialogue and good faith negotiations which led to the settlement. We hope more companies will take domain names owners privacy as seriously as WhoisAPI has now done.

That last sentence is obviously directed at DomainTools. DNC filed a lawsuit against DomainTools last year that is still dragging on in court.