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Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure

ICANN staff has published a draft report on dispute resolution procedures for IGO (inter-governmental organization) domain names. This proposal has deep flaws and should be rejected by the community, as it does not have the balance and protection of registrant rights present in the existing UDRP.

Initially, the proposed policy would apply to new Top-Level Domains (TLDs), but via a Policy Development Process (PDP) it could be extended to existing TLDs.

Under the current UDRP the rules state that:

4. a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

I've emphasized above the words "and" and "each." Contrast this with the language in the draft report for IGO dispute resolutions:

"4. a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that an International Intergovernmental Organization (IGO) (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that

(i) the registration or use, as a domain name, of the name or abbreviation of the complainant that has been communicated under Article 6ter of the Paris Convention is of a nature:

(a) to suggest to the public that a connection exists between the domain name holder and the complainant; or

(b) to mislead the public as to the existence of a connection between the domain name holder and the complainant; or

(ii) on the ground that the registration or use, as a domain name, of a name or abbreviation of the complainant protected under an international treaty violates the terms of that treaty.

In the administrative proceeding, the complainant must prove that any of the elements (i)(a) or {i)(b) or (ii) - is present."

Notice that in the proposed policy, the domain registrant (respondent) has much weaker protection compared to the UDRP because the complainant need only prove a single element is present. If one is for the rights of registrants, then this proposal is clearly preposterous, especially for registrants of short domains (2 to 5 characters in length) which may randomly collide with the acronyms of IGOs.

Under this draft policy, the existing registrant would not even be able to argue that the domain name was registered in good faith, or that they had a legitimate use of their own that is entirely unrelated to that of the complainant. The existing registrant might even have a trademark of their own (e.g. AOL, who owns the short AOL.com as well as AIM.com), but that could not be used as an affirmative defense. Under the UDRP, a complainant would need to show that a domain was "registered and used in bad faith," but element 4.(ii) of the proposed policy is much less balanced, allowing the complaint to theoretically succeed only on the basis that an abbreviation of the complainant is identical to that of the registered domain name. This is a recipe for mass reverse domain name hijacking of short domain names by IGOs. Many businesses, individuals, law firms, non-profits and others legitimately own short domain names that have nothing to do with IGOs, yet these domain names would potentially be at risk under this proposed policy, especially if it was extended to existing TLDs like .com or .org.

To pick some random examples from a list of IGOs (a further problem is that there exists no authoritative list of ALL IGOs!), the Economic Commission for Europe has an abbreviation of "ECE" — if the policy was adopted for .com through a PDP, what would be the defense of ECE Projektmanagement G.m.b.H. & Co., who happens to own the ECE.com domain name? The draft policy would not allow them to argue they have a legitimate use for the domain name (to reflect their own company name since 1965!), like the UDRP permits. The draft policy would not permit the current owner to demonstrate that they registered the domain name in good faith, and are using it in good faith for activities totally unrelated to the Economic Commission for Europe. Similarly, what would be the defense of the Independent Film Channel, who owns IFC.com to make it easier for repeat visitors to their website and reflecting their own identity against a theoretical complaint by the International Finance Corporation (an IGO that is part of the World Bank Group)? Would ICO Global Communications, a satellite company, be able to fend off any reverse hijacking attempts by the International Coffee Organization who might covet their ICO.com domain name?

The impetus for creation of this policy was jurisdictional, namely that IGOs don't want to face the jurisdiction of any national court, like they would under the existing UDRP. This is "delivered" in spades by the proposed policy, as the only appeal process (4.i, "Availability of Arbitration Procedures") is international arbitration. The courts of the registrant (or that of the registrar) are no longer an option. This should be a scary proposition for any registrant, that their domain name can be essentially expropriated with extremely limited rights to due process by international agencies. A registrant in the USA or Canada or Mexico or any other country would not be able to appeal a poor decision in their courts, following their own laws.

IGOs already have their own gTLD, .int, yet it seems they want an even larger "land grab" if this draft policy was adopted.

In conclusion, this draft policy is very poorly written (unless you're a covetous IGO), and threatens to permit mass reverse hijacking of short domain names, with limited recourse. I propose at a minimum that the draft policy be amended to compel the complainant to prove bad faith registration AND use of the domain name, like the UDRP, and to permit the respondent to create an affirmative defense that they do have their own legitimate rights or interest in the domain name. This would add balance to the policy, and limit the ability of reverse domain name hijacking to occur. With the use of appropriate Sunrise procedures for new TLDs, the need for any specific policy for IGOs is lessened.

By George Kirikos, President, Leap of Faith Financial Services Inc.
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Re: Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure Danny Lee Younger  –  Oct 02, 2007 5:50 AM PST

George, the proposed policy under consideration also allows for an objections-based approach for strings at the top level in the event that an IGO asserts that a TLD will be in conflict with the name or abbreviation of the IGO protected under Article 6ter of the Paris Convention.

At a surface level this seems like a reasonable policy as it appears to be rooted in almost universally accepted treaty language… but let's dig deeper.

Let's just imagine for a moment what our world would look like if the policy had been put into place back in the days when we only had com/net/org as gTLDs. Along come the new boys on the block — .INFO and .BIZ — but wait! A test-case objection is filed…

The argument is put forward that BIZ will violate the terms of Article 6ter, and that the Internet community will be devastated by the rampant confusion that will occur should BIZ ever find its way into the root.

As "everybody knows" BIZ is the 6ter protected acronym/abbreviation for the BANK FÜR INTERNATIONALEN ZAHLUNGSAUSGLEICH — or (in English, the Bank for International Settlements, a distinguished IGO), so we can't possibly allow BIZ to enter into the root… just think of the havoc that would ensue!

Well here it is several years later, with millions of registrations in .BIZ, and not a single complaint of confusion.

The policy recommendations tendered thus far are ill-conceived without anyone in either ICANN Staff or in the IPC even aware of which acronyms are protected (as they apparently can't be bothered to do their due diligence).

Here's a link to one page out of many in the WIPO database that records the protected acronyms:

http://www.wipo.int/cgi-6te/guest/...

Research reveals that a great many of these acronyms are of the three and four letter variety, and it's an open-ended list as new acronyms/abbreviations for IGOs and for their "projects" may be added at will by the IGO community.

Re: Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure Daniel R. Tobias  –  Oct 02, 2007 3:48 PM PST

ICANN is a US-based organization, so they don't have the global immunity to litigation that the international treaty organizations have.  Should ICANN push this policy into effect, and some large corporation with lots of money, lawyers, and trademarks gets its domain hijacked under it, I can see them suing the pants off of ICANN and anybody else they can manage to drag into court.

Re: Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure Jeff Neuman  –  Oct 02, 2007 6:31 PM PST

I posted this on the GA list, but it should be posted here as well.

The substance of Danny's post I believe (personally speaking) is on point.  In fact, after .biz was approved we did receive a letter from the Bank of International Settlements stating that .biz was a protected IGO name and therefore ICANN should have retracted its approval of .biz. See:

http://www.icann.org/correspondence/bank-for-international...

At that point time, we had discussions with the ICANN General Counsel, Louis Touton, and drafted a response which is posted here: 

http://www.icann.org/correspondence/touton-letter-to-bank...

I have a hard time reconciling how ICANN staff can issue this legal opinion letter to the Bank of International Settlements in 2001 and now draft this "staff report".

Here is the conclusion of the ICANN GC Letter:

"While we appreciate the Bank's desire to formally assert whatever legal rights it may have, an exclusion of the use of the string "biz" as an Internet top-level domain is not supported by legal principles and would be contrary to the global public interest. With respect for the proper scope of the Bank's rights under Article 6ter, ICANN is proceeding with the introduction of the .biz top-level domain."

We should continue to follow that precedent here.

Re: Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure John Berryhill  –  Oct 03, 2007 6:19 PM PST

It is long past time to put to bed the downright intellectual dishonesty involved in citing Article 6ter of the Paris Convention as prohibiting the registration of domain names of any kind.

Let's read the operative section - it is simple enough:

The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view.

(b) The provisions of subparagraph (a), above, shall apply equally to armorial bearings, flags, other emblems, abbreviations, and names, of international intergovernmental organizations of which one or more countries of the Union are members, with the exception of armorial bearings, flags, other emblems, abbreviations, and names, that are already the subject of international agreements in force, intended to ensure their protection.

If you read the sections I have bolded, several things should be apparent.

FIRST - The treaty is binding on the governments which are signatory to the treaty.  The treaty is not binding upon ICANN.  The treaty is not binding on any registry.

SECOND - The treaty requires governments to refuse to register as trademarks or permit use as trademarks, the names or initials of IGO's.

We are not talking about trademarks, we are talking about domain names.  There is nothing - utterly nothing - in this treaty that relates to a requirement binding upon ICANN or a domain name registry to refuse to permit the registration of internet domain names of any kind.

Sorry, if the acronym of my organization is GFY, then I can use GFY as a domain name for my organization.  That is a situation that has nothing to do with whether I am using GFY as a trademark - as I might not even be using the acronym as a trademark.

Do we require the New York Stock Exchange or the NASDAQ to refuse to issue stock ticker symbols which are IGO's?  No, we don't.  Should a public corporation be allowed to register its stock ticker symbol as a domain name, even if that symbol corresponds to the initials of an IGO?  I cannot for the life of me imagine why they should not.

This notion concerning Article 6ter is sheer stupidity.  For those who know better, it goes well beyond stupidity, and straight into the realm of outright dishonesty.

Re: Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure Michael Collins  –  Oct 05, 2007 12:05 PM PST

Another concern about the proposed Dispute Resolution Procedures is that it would likely be expanded for use by governments. The main argument presented for the need for new procedures is that IGOs should be sovereign and not be subject to any nation’s courts. Current UDRP rules require the complainant to agree that enforcement of the panelist’s decision will be blocked if the losing party files a lawsuit. If IGOs obtain special DRP to avoid subjecting their organizations to any national court, how long will it take governments to convince ICANN that they should not be subject to the laws of another nation and ask to use this DRP process?

ICANN’s Government Advisory Committee (GAC) is already on record saying “Applicant registries for new gTLDs should pledge to: a) Adopt, before the new gTLD is introduced, appropriate procedures for blocking, at no cost and upon demand of governments, public authorities or IGOs, names with national or geographic significance at the second level of any new gTLD.” b) Ensure procedures to allow governments, public authorities or IGOs to challenge abuses of names with national or geographic significance at the second level of any new gTLD.” Governments, some with little respect for private property, want to be able to dispute all names with national or geographic significance and they want new rules to prevent domain owners from defending their rights in court.

This is bad policy and it is a major threat to domain registrants.

Michael Collins
Internet Commerce Association
InternetCommerce.org

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Buying or Selling IPv4 Addresses?

Watch this video to discover how ACCELR/8, a transformative trading platform developed by industry veterans Marc Lindsey and Janine Goodman, enables organizations to buy or sell IPv4 blocks as small as /20s.