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Uniform Rapid Suspension Not Appropriate for .com Domain Names

The Internet Commerce Association has been actively involved for the last four years on the ICANN Working Group reviewing the Uniform Rapid Suspension (URS) policy and the Uniform Domain Name Dispute Resolution Policy (UDRP). The Working Group is currently wrapping up its review of the URS. The UDRP will be reviewed in an upcoming second phase.

The URS is a kind of stripped down UDRP — it costs about $375, has a single panelist, the respondent is allowed only 500 words in response, rather than around 5,000 words allowed for in a UDRP response, and the decisions are often only a handful of words which barely explain the case. The UDRP is itself "arbitration light," as it lacks nearly all the procedures and has none of the powers of discovery available when a case is decided through the courts. The URS is, therefore, a cut-rate procedure of a cut-rate procedure.

Yet the outcome of losing a URS is severe — it results in the permanent suspension of the domain name until the domain name expires. The domain owner cannot continue renewing the domain name, nor can the domain owner transfer the domain name to a third party. While the penalty for losing a URS is often minimized as merely a suspension of an associated web page, the penalty is instead the eventual termination of the registrant's rights to his or her domain name.

The URS was originally conceived and implemented in order to deal with the anticipated rash of blatant cybersquats on new generic top-level domains (gTLDs). It was considered at the time that the flimsy URS process was adequate for that purpose because 'the stakes were so low,' i.e., it wouldn't affect longstanding registrations in the well-established legacy registries, in particular .com. Registrants of domains in the new gTLDs were also forewarned that the rules would be different for new gTLDs than for the legacy gTLDs. For instance, new gTLD registries were given virtually unrestrained ability to change registration pricing on relatively short notice, in addition to new gTLD domain names being subject to the URS. From the outset, new gTLDs were substantially different to legacy TLDs and were accordingly, treated differently.

Fundamentally, the primary issue involving the URS is whether it is an appropriate procedure to be applied to .com and .net. Trademark interests are pushing for this, and now Verisign is too. ICANN itself is eager to do this as well. We have seen ICANN repeatedly over the years impose URS on registries through bilateral contract renewals, despite no consensus from stakeholders. Indeed, it was the imposition of URS on .org despite no community agreement that was one of the critical factors which led to the immense public outcry over the .org registry agreement renewal.

From trademark interest perspectives, despite its shortcomings, URS is another tool to be used and can be helpful in combatting phishing and fraudulent websites in particular. A review of the approximately 1,200 URS cases confirms that, for the most part, the URS has been used in clear-cut cases of cybersquatting in new gTLDs. But there are some cases where it is readily apparent that the threshold of "clear and convincing evidence" required to order a suspension under the URS has not been met. Panelists have, at times, misinterpreted and mis-applied this standard, particularly when it comes to three-letter domain names. Moreover, we are concerned that registrants, who already have to deal with unjustified UDRP complaints, will soon be faced with unjustified complaints under yet another procedure, the URS, that has an even lower price point for complainants and less protections for registrants.

The question is whether a relatively inadequate procedure that is already being poorly applied in some cases should be imposed on .com and .net domain name registrants. Trademark interests argue that it is a 'tried and tested' procedure with excellent outcomes and that it will be an 'effective tool' to quickly shut down phishing and fraud websites in .com and .net. Yet even many of those who support the imposition of URS on .com and .net acknowledge that the URS is flawed, is ill-suited to its task, and that many IP attorneys do not make use of the URS because they do not view it as an effective solution to the problem of DNS abuse.

Although the URS is faster than the UDRP, it is still relatively slow, requiring 20 days or more to shut down a fraudulent or phishing web site. While it provides a short-term solution, eventually, the problem domain name will expire and become available for re-registration. Most importantly, the URS is focused on trademark infringing domain names when many websites engaged in phishing, fraud or other forms of DNS abuse do not make use of a domain name that itself is confusingly similar to the brand it is targeting. The URS is, therefore, a poorly designed tool for combatting DNS abuse and provides limited benefits.

Imposing the URS on .com and .net, however, could produce severe consequences. As much as ICANN staff and self-interested parties among the Intellectual Property lobby wish to deny the reality, the .com namespace is not just another gTLD. It is by far the largest gTLD — with over 147 million registered domain names and is home to the commercial Internet, making it the single most valuable gTLDs under ICANN's purview by far.

URS was imposed on .org over a year ago, over widespread community opposition. The URS's lack of utility is seen in that despite there being over 10 million registered .org domain names, there have only been five URS complaints against .org domain names in the past year. Yet the record is not a good one. Of those five proceedings, two were meritless, one was questionable, and only two cases in a universe of 10 million domain names fulfilled the purpose of the URS. This is not strong evidence that URS is needed in .com. And indeed, adding URS to .org may have done more harm than good, as 40% of the URS complaints filed (albeit in a small sample) were meritless complaints targeted at innocent .org registrants who had to go to needless trouble to defend themselves to protect their domains from the harassment of those baseless complaints.

We also have the example of the UDRP to go on, for the UDRP applies to all gTLDs under ICANN's mandate. Since 2018 there have been 99 instances where a UDRP complainant has been found guilty of abusing the UDRP by misusing the UDRP for attempted Reverse Domain Name Hijacking (RDNH). In many of these RDNH cases, the complainant targeted the disputed domain name because it was valuable and desirable, not because it was infringing on any rights the complainant had. Domain names targeted in these UDRP disputes where RDNH was found include Sante.com, Karma.com, TheSun.com, CWJ.com, GEN.com, Airy.com, AVK.com, among others. These are all inherently valuable domain names.

The 99 instances of RDNH since 2018 involved three .org domain names, two .net domain names, 94 .com domain names, and no new gTLD domain names. To argue that URS is working well on new gTLD domain names tells us nothing about the possibility and likelihood of the misuse of URS if it is ever applied to the 147 million .com domain names that represent the vast majority of the value of all domain names in the DNS. As most commercial activity occurs in .com, URS could be used to harass complaint web sites, fan web sites, review web sites, comparison web sites, and even inactive web sites, by seeking to suspend these web sites by making baseless claims that the Complainant's trademark is being infringed by the associated domain name.

Ultimately, the URS has proven unpopular with complainants and registrants, and there is a real question of whether it should exist at all for new gTLDs, let alone legacy TLDs. It is a skeletal procedure that doesn't adequately protect registrants and is ripe for mis-use. And for trademark interests, it not only doesn't result in transfer, but it isn't that much faster than the UDRP and doesn't really effectively address serious issues of phishing and counterfeit websites which may require a more targeted and efficient procedure. It would be far better to get rid of the URS altogether and find a better solution for blatant abusive registrations, while protecting registrants and domain name investors in particular, from abusive complaints.

The Working Group requires consensus in order for a change to the URS to become a Working Group Recommendation. The ICA made many proposals to address deficiencies in the URS in an attempt to make it more robust and fairer.

This has involved proposing certain changes to the URS and also opposing certain changes to the URS. The ICA has been successful in seeing some improvements made to the URS to one extent or another, however, the ICA also, unfortunately, saw strong opposition to many of suggested improvements, which has the effect of watering down improvements or maintaining the URS as a primarily one-sided tool favoring brand owners without providing adequate protections for registrants.

We are particularly concerned that Verisign has come out in support of URS. In our view, Verisign should stand up for its own customers and object to the URS as being a lackluster and ineffective procedure, or at least leave this issue to others such as registrants and trademark interests, rather than coming out in favor of one side to this issue. Verisign has also implied that if it doesn't get its way on imposing URS through the Working Group, that it can try to get its way directly with ICANN staff by renegotiating its contract. As we saw with the .org fiasco, any such attempt to circumvent the multistakeholder process would be ill-advised and would result in further erosion of ICANN's legitimacy and credibility.

The ICA is committed to ensuring fairness for all stakeholders and looks forward to examining new and better opportunities for improving domain name dispute resolution when it comes to the UDRP in Phase 2 of the Working Group's report, which will likely start in the new year.

By Zak Muscovitch, General Counsel, Internet Commerce Association

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Comments

No URS for .COM By David Castello  –  Sep 06, 2020 6:40 am PST

Absolutely agree with you, Zak.

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