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ICANN is MIA on .XYZ

Philip S. Corwin

By now anyone who's part of the domain investment or broader ICANN community is aware of the curious saga of the recently launched .XYZ registry. Soon after its young CEO boldly stated, "we hope to reach 1 million .XYZ registrations in the first year and 5 million registrations in the first three years", the registry launched with a remarkable total of nearly 18,000 registrations on its first day, a total that has quickly grown to more than 100,000.

But it was soon noted that "the zone files showed that over 70% of all .XYZ registrations had been made at NetworkSolutions, an expensive registrar that has a less than 5% share of most new gTLD registrations." (The NetSol percentage of .XYZ registrations has reportedly since climbed to more than 85%.) Then it was further discovered that the surprisingly large number of registrations was not the result of affirmative registration decisions made by individuals responding to a compelling marketing or incentive campaign, but to a NetSol decision to give away "free domains" matching those already owned by its customers if they did not "opt out" of the domain registration in response to an e-mail. That revelation prompted one of the two organizations tracking new gTLD to delete all NetSol-supplied free .XYZ names from its gTLD rankings, dropping .XYZ from a number one position to "number 14 on the list of most registered new gTLD's with just under 15,000 registrations".

These events gave rise to questions whether the .XYZ registry had made arrangements with NetSol to embark on this promotion and thereby turbocharge its initial registration numbers. But in a published interview, its CEO stated:

Each Registrar (or store) then makes its own decision on the retail price it wants to charge for the different domain names (products) it offers.

We have over 200 registrars from all around the world in all languages offering .xyz domain names. I do not know the details of every promotion or marketing campaign that they are doing every day.

Here is what I do know:

Regardless of whether a registrar charges $100, $5, or gives the domains away for free, I get paid the ENTIRE wholesale price, which is the same price that every registrar pays.

Yet there remains no explanation for why NetSol embarked on this aggressive campaign for this one new gTLD registry. But, regardless of whether the registry had any active part in these actions, the damage to the registry's reputation has been done. As one respected industry observer recently observed:

With NetSol you have a registrar that is three times more expensive than other registrars making themselves an even less attractive option by telling customers we will decide what domains are put in your account instead of you!

... With .XYZ you have a registry that has proclaimed themselves the next .com but instead are proving themselves not to be an alternate .com but an alternate reality based on fictional numbers of real registrants. Instead of becoming the next .com they are in danger of becoming the next .tk — the ccTLD for the obscure Pacific Ocean territory of Tokelau that gives away its domains for free.

Is deception really the business plan a registry expects to succeed with? While declaring oneself the winner based on a blatantly stuffed ballot box still happens in places like Syria it is generally regarded as poor form in the rest of the world (and is certainly not a good calling card for any business).

Of course new gTLD skeptics are loving this, saying that it proves the new extensions are already on the ropes, having so little of value to sell that they have to resort to giving the product away (and not just giving it away, but forcing it upon people who never asked for it) and then trumpeting inflated numbers. As you would expect registries that are doing it the right way hate that they are being unfairly painted with the same brush. I've seen key executives from at least three other new gTLD registries publicly post their dismay over how this is tarnishing the entire new GTLD program.

So far the discussion has mostly been about what arrangement if any existed between NetSol and .XYZ and how to dissect new gTLD registration numbers to meaningfully decide which ones are successful — should it be based on gross registrations, registry revenues, or websites that have been actively developed?

But that misses two other big issues.

What about the rights of the registrants who have been involuntarily signed up for these "free" .XYZ domains?

And, presuming that someone at ICANN monitors the domain industry press that has been feverishly reporting this story, why hasn't it stepped forward to announce that, for the protection of registrants and to protect the integrity of the new gTLD program, it is investigating to see whether either party is in violation of its contract with ICANN.

After all, ICANN's CEO proclaimed last year that registrants were its number one concern.

And, given continued misgivings about the effectiveness of ICANN's contractual compliance enforcement efforts, as well as the intense scrutiny it is undergoing in conjunction with stakeholder consideration of IANA functions transition and accompanying enhanced accountability mechanisms, you'd think the organization would welcome a chance to demonstrate that it doesn't need a third party monitor to tell it that it should look into the situation.

For one thing, NetSol may be creating potential trademark infringement liability for these involuntary registrants. As has been reported"Clear-cut cases of cybersquatting seem to be among those .xyz domain names that Network Solutions has registered to its customers without their explicit request… They're all registered via NetSol's Whois privacy service, which lists the registrant's "real" name in the Whois record, but substitutes mailing address, email and phone number with NetSol-operated proxies."

One website cited in that article is www.disneytime.xyz . That parked website features a Network Solutions corporate name and logo in the upper right hand corner along with an "under construction" notice, and has links to entertainment-related topics such as "Top Ten Music Artist" and "Pop Hits Music". Clicking on any of those links brings one to yet more pages with pay-per-click (PPC) ad links. Overall, the parked page appears to be under NetSol's control and presumably they choose the PPC link labels and receive any income derived from the ads.

"Registrants" shouldn't be involuntarily exposed to the potential for receiving a cease-and-desist letter, much less the target of UDRP or URS arbitration or even a trademark infringement suit. As for the trademark owners, they may not have effective recourse to the UDRP or URS. One element that must be proven by a complainant is "bad faith registration", and bad faith involves affirmative intent — and there's not much intent involved with a failure to click on an opt-out link in an e-mail that may or may not have been read. There's even a plausible argument that NetSol might be considered the registrant for dispute resolution purposes, since it chose the domain name and completed the registration absent any clear direction from its customer. There's also the twist that, where NetSol matched the registered .XYX domain to one the customer already had in an incumbent registry, the existing agreement with the registrant does not include consent to be subject to the Trademark Clearinghouse (TMCH) and Uniform Rapid Suspension (URS).

And that raises another critical question: If any of these opt-out registrations of infringing domains triggered a Trademark Claims Notice to the involuntary registrant, did any of them ever see it and have an opportunity to opt-out then? After all, as described above, the registrant's real name was listed in the WHOIS record, but not their e-mail address; instead, the listed address was for NetSol's proxy service.

There's also the matter of whether involuntary registrations are in compliance with the 2013 Registrar Accreditation Agreement (RAA) entered into by all those selling new gTLDs. Section .7.7 states, "Registrar shall require all Registered Name Holders to enter into an electronic or paper registration agreement with Registrar". An opt-out procedure arguably fails to satisfy that requirement. NetSol reportedly tried to get around that by including, as a less than conspicuous footnote in its e-mail, this statement, "Please note that your use of this .XYZ domain name and/or your refusal to decline the domain shall indicate acceptance of the domain into your account, your continued acceptance of our Service Agreement located online at http://www.networksolutions.com/legal/static-service-agreement.jsp, and its application to the domain." But it's not clear that any court would view that as satisfying the RAA's contractual requirement.

The RAA also contains an addendum titled "ADDITIONAL REGISTRAR OPERATION SPECIFICATION" that includes a statement of "Registrants' Benefits and Responsibilities". One of those rights is, "You shall not be subject to false advertising or deceptive practices by your Registrar or though (sic) any proxy or privacy services made available by your Registrar. This includes deceptive notices, hidden fees, and any practices that are illegal under the consumer protection law of your residence."

Was the opt-out registration a deceptive practice and notice, or illegal under any national law? If a registrant involuntarily received a free .XYZ domain, and had opted for automatic renewal of its domains held by NetSol, would reregistration a year hence at a hefty fee be an unfair and deceptive trade practice? Those are questions that the Federal Trade Commission (never a fan of the new gTLD program) or other national consumer protection agency might want to investigate, especially if ICANN doesn't move quickly.

Overall, this situation appears to raise the most significant questions about the effectiveness of the RAA and ICANN's compliance enforcement since the Registerfly fiasco of early 2007. It is not of the same character, since that situation involved a registrar stealing customer domains and funds, but it is still quite disturbing. Back in 2007 then-ICANN CEO Paul Twomey declared, "What has happened to registrants with RegisterFly.com has made it clear there must be comprehensive review of the registrar accreditation process and the content of the RAA. This is going to be a key debate at our Lisbon meeting scheduled for 26 — 30 March 2007. There must be clear decisions made on changes. As a community we cannot put this off… Registrants suffer most from weaknesses in the RAA and I want to make sure that ICANN's accreditation process and our agreement gives us the ability to respond more strongly and flexibly in the future."

While the 2013 RAA is substantially stronger on paper than the one in use seven years ago, in the end it is only as strong as ICANN's compliance enforcement makes it.

As for .XYZ, if they did have some arrangement with NetSol to undertake this involuntary registration program, and if it involved any consideration not offered to other registrars, that might place them in violation of their Registry Agreement, as Section 2.9 of that contract requires non-discriminatory access for all registrars.

There's also an open question regarding the efficacy of the ICANN background check for new gTLD registries and their top executives. The CEO of .XYZ, along with his company Cyber2media, were the lead defendants in a Lanham Act lawsuit filed by Facebook on July 22, 2011, months before the new gTLD application window opened in January 2012. That complaint alleged four separate violations of the Lanham Act as well as two other civil counts. Further, the scheme that defendants were alleged to be engaged in was far more sophisticated than the one described above for disneytime.xyz. According to the lawsuit, rather than landing on pages that were clearly parked, consumers who mistakenly typed in typographic variations of Facebook were redirected to websites that mimicked Facebook's design and used its distinctive marks and logos. They were then invited to take part in social media "surveys" and thereby have a (fictional) chance to win a MacBook, iPad, or iPhone — in exchange for divulging proprietary personal information including their phone number and e-mail address.

Of course allegations are not proof of guilt, and this lawsuit appears to have been dismissed against those two defendants within days after the .XYZ application was submitted to ICANN. But, if only to inform ICANN of potential background check alterations for the next round of the gTLD program, it would be useful to know whether this very relevant litigation was revealed in that application — and, if not, whether the background screeners conducted a simple web search that should have brought up information about the lawsuit — and in either event what further investigation was undertaken and resolved.

Summing up here, there's a lot more at stake in this situation than which registry has the most registrations or has suffered self-inflicted damage. There are significant contract compliance and consumer protection issues, compounded by possible involuntary trademark infringement. Thousands of registrants are directly affected, and all registrants are at risk.

It should be as simple as ABC for ICANN to realize it needs to step up to the plate and take responsibility for initiating a full inquiry and report on what's transpired in the initial .XYZ registration phase. The answer is important for registrants, registrars who don't engage in such practices, and other operators of new gTLD registries. It's also of consequence for ICANN's own reputation as a critical time in its history.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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Let me see if I understand this... John Berryhill  –  Jun 13, 2014 1:39 PM PST

You are okay with the City of Paris, against which a JUDGMENT for reverse hi-jacking was entered to the tune of US $124,000 getting the .paris TLD, but if someone was dismissed from a lawsuit, then it raises "questions"?

I don't understand the point of this article Bret Fausett  –  Jun 13, 2014 1:42 PM PST

I'm not sure I understand this article, much less why it was published on the ICA website. What's the domainer angle? A registrar may have given a domain name registrant an .XYZ domain that matched the .COM, and now you want to complain that the free domain name is a problem worthy of an ICANN investigation? When I go to the grocery store and buy Tide laundry detergent, I sometimes get a coupon at checkout encouraging me to try a different brand next time. Alert the FTC!

The domainer angle... John Berryhill  –  Jun 13, 2014 1:45 PM PST

The domainer angle appears to be that if you've ever been accused of cybersquatting, the ICA is going to cast aspersions on you which, given the number of times the ICA's own board members have been sued for cybersquatting, is an interesting new direction for the ICA.

Bret,I think the free domain giveaway could Constantine Roussos  –  Jun 13, 2014 2:26 PM PST

Bret,

I think the free domain giveaway could create huge problems in the case of open sensitive strings without any eligibility criteria or a name selection policy attached to the string (i.e if the string is open).

Sector-led extensions where trademarks can be closely tied to a TLD's string are the ones that are more vulnerable to this.

Let us say you owned EaglesSite.com and you were monetizing under your registrar using PPC. Now your registrar does a free promotion in which you are given Eaglesite.music for free. PPC are automatically launched for that Eagles .music domain based on music-related ads relating to the Eagles band trademark.

Would this be a problem to the unsuspecting registrant? They would be clueless to what just happened but would monetize on the PPC. Wouldn't the band Eaglesm which is strongly related to music have an issue with this? My bet is they would. we certainly have a grey area here.

The unintended consequences are many without appropriate enhanced safeguards especially for those sector-driven, sensitive strings. I am sounding like a broken record (I am sure John Berryhill agrees with this statement) but it seems my prognostications has been spot on thus far.

I am sure ICANN is keeping an eye out and is aware of the situation. Daniel Negari is innocent until proven guilty and if there have been violations I am suspecting ICANN is making the necessary inquiries given the outcry. A lot remains to be seen.

Constantine Roussos
.MUSIC

Eagles... John Berryhill  –  Jun 13, 2014 3:12 PM PST

I'm from Philadelphia.  The Eagles play football. 

Where the TLD indicates a type of goods or services then, yes, there would be a big difference between Eagles.football and Eagles.music.  With an intentionally-meaningless string like "xyz", it doesn't work as well, since nobody makes "coms" or "xyzs".

A similar stunt was pulled years ago in .info, but where was the ICA to use that to assert that Afilias shouldn't be running a registry in the new round?  It's not as if that adventure was not known to everyone in the domain community going into the new TLD program.  Did the ICA object to Afilias applying for and running a new TLD registry because Enom gave away free .info domains?  No. So it would be interesting to understand how the ICA gives one registry a pass for the same registrar marketing shenanigans.  It suggests something else behind the outrage du jour, since the .info adventure in "free domain" marketing was known on the way in.  Although to be fair to Phil, he may just simply be ignorant, and now has an opportunity to be consistent.

Agreed John.While .XYZ or .WEB are "ultra" Constantine Roussos  –  Jun 13, 2014 3:59 PM PST

Agreed John.

While .XYZ or .WEB are "ultra" generics such as a .COM, my worries concern the classification-based TLDs, especially in regulated sectors.

Constantine Roussos
.MUSIC

The other point of the article... John Berryhill  –  Jun 13, 2014 5:32 PM PST

Is that Mr. Corwin's firm, Greenberg & Lieberman, is defending a client who is being sued for breach of contract by a company associated with Mr. Negari.

"Md.org Sells for $555,655"
http://en.paperblog.com/mdorg-sells-for-555655-in-an-all-time-record-for-namejetcom-496425/

"Suit Filed Over Non-Payment of MD.Org Namejet Record Setting $555,650 Auction"
http://www.thedomains.com/2013/07/11/suit-filed-over-non-payment-of-md-org-namejet-record-setting-555650-auction/

This personal smear likely has more to do with Mr. Corwin's deadbeat client, than internet policy.

And to be clear... John Berryhill  –  Jun 13, 2014 7:25 PM PST

Mr. Corwin may, in fact, have no personal knowledge of that litigation, regardless of whether it may be imputed.  But, by the standard of the article above, it is illustrative of how one can construct theories of events which, to the conspiratorially-minded, "raise questions" about the unbesmirched and well-deserved fine reputation of the capable firm of Greenberg & Lieberman with whom it has been my privilege to have worked as co-counsel in matters past.

Okay Steve? ;-)

just sayin Steve Cheatham  –  Jun 14, 2014 6:01 AM PST

I am still waiting on my free .xyz. Oh yeah, I left NetworkSolutions the day a second registrar opened.

Author's Response Philip S. Corwin  –  Jun 14, 2014 3:06 PM PST

Responding briefly to the tag team criticism of my article by Uniregistry’s legal team:
• While I have long been able to post articles on the ICA website blog, they constitute my own views and are not official positions of ICA. ICA’s official views are contained in documents such as ICANN comment letters that are submitted after review and approval by the Board.
• NetSol’s involuntary opt-out .xyz registrations raise questions regarding ICANN’s enforcement of provisions of the 2013 RAA that protect registrants. It also speaks to ICANN’s performance at a time when transition of the IANA functions away from the US is being considered (a prospect that concerns many domainers) and enhanced accountability measures are being formulated. Finally, NetSol’s decision to populate the .xyz pages with ad links that may facilitate successful UDRP or URS actions, or Lanham Act litigation, and may give ammunition to groups like CADNA that advocate amending the ACPA in various ways, including substantially heightened monetary penalties and the creation of secondary trademark infringement liability. Such a result would be contrary to the interests of professional domain registrants and companies serving the secondary domain market. The esteemed domain industry journalist Ron Jackson certainly understood the relevance of the article to domainers when he praised it in his June 13th Lowdown column at http://www.dnjournal.com/archive/lowdown/2014/dailyposts/20140613.htm.
• Being an involuntary domain registrant is of an entirely different legal character than being the voluntary purchaser of a discounted box of laundry detergent.
• My understanding is that Afilias dropped the registration price for .Info domains to zero in a promotion about ten years ago, before ICA existed. However, I would not have criticized that action since it was an opt-in program designed to attract voluntary registrations, and thus of a completely different character than NetSol’s current opt-out activity.
• I am completely familiar with the fact that any individual or corporate holder of a large domain portfolio is likely to be the subject of UDRP and trademark infringement legal filings that may have no merit. I am also aware that there is a lack of consistency in UDRP decisions based upon similar fact patterns. That is why I worked against ICANN adoption of a rigid “Three Strikes” UDRP loss provision in the Applicant Guidebook provisions regarding applicant eligibility. While ICANN would not budge on that it did add a similar provision regarding findings of reverse domain name hijacking.
• It is false and outrageous to suggest that I wrote the article to further a case in which the law firm I am associated with as “Of Counsel”, Greenberg & Lieberman, is representing a client being sued by Mr. Negari — and then to gratuitously state, “This personal smear likely has more to do with Mr. Corwin's deadbeat client, than internet policy.” My Of Counsel affiliation allows G&L;to refer its clients to me for assistance on policy matters and for me to provide clients with legal services beyond the scope of my practice at Virtualaw LLC. I am not advised by the firm of its day-to-day activities and had no knowledge of, much less involvement in, this litigation. As for the personal smear upon G&L;’s client as a “deadbeat”, if Mr. Berryhill has a professional interest in the litigation then the statement is improper, and if he is not involved in the case then he does not have full knowledge of the facts at issue.

Double Standard Much? John Berryhill  –  Jun 15, 2014 7:29 PM PST

Congratulations, Phil, on discovering this idea:

"if he is not involved in the case then he does not have full knowledge of the facts at issue"

Your recent discovery of this principle is laudable.  Now, scroll up and read the article you wrote.  Your response is a profile in hypocrisy.

"Being an involuntary domain registrant is of an entirely different legal character than being the voluntary purchaser of a discounted box of laundry detergent."

I agree with that Phil, which is why I posted about whether Netsol's promotion complied with the RAA in the various blog comments which you recycled into your article.  This member of the "tag team" does not agree Bret's analogy is a good one. So there goes your other nascent conspiracy theory.  In point of fact, on several blogs, I specifically raised the question of whether the Netsol promotion was compliant with the ICANN RAA.

It is a legitimate question, and I believe ICANN will look into it. The suggestion that “ICANN is MIA” on the issue is entirely premature, as it is not ICANN’s practice to publish reports of ongoing investigations, particularly within days of it coming to anyone’s attention.  There is never a shortage of loud voices demanding immediate action at ICANN over something or other.

So, there is a certain irony in the fact that your article recycles commentary I had originally made on the actual subject at hand - and the only relevant subject at hand.

However, whether Netsol complied with the terms of the RAA is a question for Netsol to answer to ICANN. It is not an occasion for the hypocritical double standard which you spectacularly demonstrate in your response to precisely that sort of “let’s read a civil complaint and cast aspersions” technique used in your article. That type of tactic is used day in and day out by the sort of people who regularly attack domain registrants, registrars and registries alike.

Absolutely, there are many hosting companies, registrars, and other service providers, let alone domainers, who have been drawn into UDRP disputes or civil suits. The one referenced above includes something like a dozen named defendants and 119 John Does. 

One could conclude on the basis of this “one lawsuit from which you are dismissed and you are a scumbag” standard, any number of things about the ICA members, quite a few of whom I have defended against such accusations time and time again, and indeed have engaged the very capable Steve Lieberman as co-counsel on such matters. 

Businesses get sued. That’s a fact of life in America. It’s true of every entity and niche in the domain ecosystem, and it is true of the vaunted “brand owners” who are regularly sued for everything from antitrust violations to product liability and false advertising.  Of course, statements in a civil complaint enjoy immunity in court proceedings which they do not enjoy when those statements are published elsewhere.

Have you demanded to know what disclosure, for example, Google made in its TLD applications in relation to judicial findings, not mere allegations, about its business practices?  If not, why not?

What matters in all of this is “can a registrar do this under the RAA?” If the answer, based on whatever the Netsol legal department may provide to ICANN, turns out to be “yes”, then we will have discovered a hole in the RAA which should probably be fixed. If the answer turns out to be “no”, then I expect ICANN to take appropriate corrective action relative to Netsol.  What I don't expect from either Netsol or ICANN is shooting from the hip with a blunderbuss aimed at one's own professed constituents' feet.

But that's not very exciting to the "bang my shoe on the table" level.

However, for someone looking for a stick with which to beat ICANN as discussions of the NTIA transition proceed then, sure, any occasion to run around with one's hair on fire making lurid and unconnnected allegations will do. The original point of ICANN was to get the root away from government control. Despite that, and despite the NTIA's specific comments on the subject of avoiding government capture, various domestic political elements have latched onto this as a “wave the flag” issue.  Absolutely, an elected official who believes dinosaurs drowned because they couldn't fit onto Noah's ark is a perfectly appropriate individual to opine on technically intensive issues.  Your articles on the subject make Rep. Shimkus into a paragon of wisdom, and I appreciate a guy who takes on tough jobs.

But dredging up resolved allegations in a suit from which an individual has been dismissed in the service of that purpose is reaching toward the bottom of a barrel which does a disservice to the often-accused constituency of the ICA.

"NetSol’s involuntary opt-out .xyz registrations raise questions regarding ICANN’s enforcement of provisions of the 2013 RAA that protect registrants."

That is correct.  As you know, the registry is not a party to the 2013 RAA.  And should you read the 2013 RAA sometime, it provides a process for ICANN to investigate and enforce which takes longer than a week. 

It is where you diverge into character assassination of someone whom, the last time I checked, was not running Netsol and thus not relevant to that question, that you go off onto quite a tangent.

It is a classic “at long last, have you no decency” moment, and is on all fours with the type of personal smear that Senator McCarthy was advancing in the original context of that famous quote.

If you are offended, then I suggest you meditate on why, and read your article again.

Personal Clarification Regarding .XYZ Article Philip S. Corwin  –  Jun 16, 2014 10:57 AM PST

Several days ago I posted an article – “ICANN is Missing in Action on .XYZ” – expressing my personal views regarding Network Solutions’ involuntary opt-out registration of .XYZ domains for its existing customers. It was posted, as many of my opinion pieces are, at both the website of the Internet Commerce Association, which I have served as Counsel since its founding in 2006, and at CircleID.com; the two websites attract different audiences.  The article was not requested by the ICA and does not represent any official policy of the ICA in regard to such involuntary domain registrations. The ICA has not yet adopted any position on this practice.

The article questioned whether this opt-out practice violated registrant rights and was in compliance with the Registrar Accreditation Agreement (RAA) that all registrars enter into with ICANN. A particular concern was that, unless ICANN stepped in, this practice could spread to other new gTLDs, adversely affecting registrants while undermining the integrity of the new gTLD program and raising additional questions about ICANN’s contractual compliance enforcement.

Toward the end of the article I referred to a 2011 Lanham Act litigation filed by Facebook against the CEO of the .XYZ registry, Daniel Negari, and another company he headed, Cyber2media. I noted that the case had been dismissed, and stated “Of course allegations are not proof of guilt”. I also tried to give even-handed treatment earlier in the article on the question of whether .XYZ had entered into any arrangement with Network Solutions in regard to the opt-out program by reprinting the relevant text of an interview he had engaged in on that question.

I now regard my referencing of the Lanham Act litigation as a mistake in judgment.

First, it was extraneous to the main focus of the article and has generated some unintended controversy that has diluted focus on the important policy question of whether opt-out domain registrations are an ethical practice consistent with RAA provisions that protect registrants and, if not, what ICANN should be doing in reaction.

More importantly, it appears to have created the misimpression that I believe that the award of the .XYZ registry contract to Mr. Negari and his registry enterprise was questionable. I am not aware of any facts that would lead me to such a conclusion and to the extent that my unartful words may have created such an incorrect impression I offer my sincere apology to him, his colleagues and his enterprise.

That section of the article also stated that it “would be useful to know” whether the application for .XYZ had disclosed the litigation. I have since learned through a third party that it was disclosed and considered by ICANN. Such information is redacted and not made part of the publicly available portion of any gTLD application.

There also seems to be a misperception that I may have been advocating amendment of the gTLD program Applicant Guidebook to create review of dismissed or settled trademark legal actions. In fact such a provision is already part of the program’s Evaluation Questions Criteria (see http://newgtlds.icann.org/en/applicants/agb/evaluation-questions-criteria-04jun12-en.pdf).

At Section 11(g) of the Applicant Background portion of that document this Question appears:
(g) Disclose whether the applicant or any of the individuals named above has been involved in any administrative or other legal proceeding in which allegations of intellectual property infringement relating to registration or use of a domain name have been made. Provide an explanation related to each such instance. (Emphasis added)

This Note appears next to that Question:
ICANN may deny an otherwise qualified application based on the background screening process. See section 1.2.1 of the guidebook for details.

That provision is the very reason why a dismissed Lanham Act lawsuit would need to be disclosed by a gTLD applicant. It is in addition to preceding Section 11(f), the inflexible “three strikes” UDRP/ACPA disqualification clause against which I lobbied at considerable length; while that effort was unsuccessful, a similar disqualifier was added for those cited for repeated Reverse Domain Name Hijacking. ICANN has stated that it intends to conduct a thorough review of all provisions of the Applicant Guidebook prior to any second round of new gTLDs, and that will provide an opportunity to revisit all these provisions.

I hope that this clarification facilitates a return to consideration of the opt-out registration issue and an appropriate ICANN response. I wish Mr. Negari and his marketing team well in their efforts to promote affirmative domain registrations in the .XYZ registry.

New Rule John Berryhill  –  Jun 16, 2014 11:53 AM PST

Henceforth, when the full moon falls on a Friday the 13th, I will step away from the keyboard, lest I too fall victim to rhetorical excess.

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