Recently in trademark Category

Nominet, the registry operator that manages *.uk, is planning on releasing both single and two character domain names.

In common with a lot of other ccTLD registry operators, Nominet had blocked single and two character domain names from being registered. However they are now planning on releasing them to the public in a phased plan.

The exact details of "how" the domains will become available have not been decided, which is why the registry is now conducting a consultation period with the public.

The current proposal is not drastically different to the kind of methodology used by several of the gTLD registry operators to handle similar scenarios, although there are a few extra twists. To start with Nominet is speaking of the entire project in terms of "cost recovery", whereas other registries have used this kind of release as a revenue generator. The other thing which is quite interesting is how they plan to differentiate based on the second level ie. org.uk domains, according to their proposal, should be given to charities and not for profits, while co.uk should go to business users. While this is very logical it's still interesting to note that they've "gone back to basics" in some respects.

You can view full details of what Nominet are planning on their site and share your thoughts.

It will be interesting to see how the Nominet registrars and the public react to this news.

If you work in the domain industry it's only natural that you would put big brands' choices under the microscope to some degree.

In the case of Apple they are a very big target.

Earlier today Apple released, to much hype, their latest product offering. The iPad.

You can read all about its features here, but where would you go to find out about the product itself and actually order one?

You would assume that ipad.com was owned by Apple.

You'd be wrong.

The owner of ipad.com will probably see a huge increase in their web traffic over the next few days, but they're just an innocent bystander.

The domain ipad.com has been registered since 1997 and so any attempt by Apple to grab the domain would have been difficult, if not futile. Having said that, however, they may have tried it!

Apple is using a simple sub-directory off their main site to provide all the info about their new product.

Of course if you are in favour of new TLDs this is just another wonderful example of how a company like Apple could make use of their own TLD. If Apple owned .apple or .mac they'd have been able to launch their new product via the more memorable ipad.apple instead of apple.com/ipad

You'll have to excuse me for the Shakespeare quote, but something is rotten in the state of Denmark.

While talking to some of the people involved with the Danish domain industry it becomes evident that there is something something seriously wrong with how .dk handles disputes.

A recent case revolved around the domain orango.dk

The domain had been registered for nearly 10 years (since 2000)

The registrant was using the domain in good faith since they registered the domain name, but now found themselves subject to a dispute.

The dispute involves a 3rd party that have requested a trademark for "orango", but only did so this year.

Somehow, and this is the bit that makes absolutely no sense to me, the arbitration court found in favour of the complainant!

If that isn't a reverse hijack then I'd love to know what it is!

Maybe Danish registrants would be better off using other TLDs?

You can download the original text of the decision here (it's in Danish)

Thanks to the guys in Larsen Data for providing various translations of it. (Peter has posted about it also - again in Danish)

Trademark holders do funny things with domains.

Bebo.ie, which was registered in bad faith, was handed back to its rightful owners last year.

However Bebo Inc obviously don't care enough about the .ie domain to hold onto it, so it's been dropped.

So will anyone try to grab it again?

It will be interesting to see if someone else makes a play for it. With the number of active Irish users on Bebo the domain would probably generate quite a bit of type in traffic.

So what does a ccTLD operator do when they're worried about cashflow?

They go off and spend thousands on a glossy annual report obviously!



The IEDR's annual report and review for 2008 is the glossiest one they've produced to date. As usual it contains plenty of fluff while ignoring anything of substance.

In the Chairman's introductory statement they reveal that:

"The board has agreed terms of reference for a Policy Advisory Committee (PAC) to advise on .ie namespace policy matters, the membership to be representative of relevant stakeholder organisations"

Well that's charming.
The document that was being discussed between the IEDR and its resellers was firmly slanted in the IEDR's favour and had not been accepted by the reseller community.
So now it looks like the IEDR have done what they always do and unilaterally implemented a change without accepting feedback from the companies that pay their bills (registrars / resellers) or those that give them a raison d'etre (registrants).

Scanlan goes on to infer that the IEDR have been appointed as the registry operator for the .ie namespace permanently. This is not the case, unless whoever wrote the Comreg documents is a very bad communicator, which I somehow doubt.

Making repeated reference to the Comreg report is annoying, as Comreg did not actually publish the report of the external consultants. All that was published was the result of the public consultation - and even that was months behind schedule and did not reveal anything really meaty.

So what about the rest of this year's report?

Well it has got lots of plenty glossy photos of IE registrants (Why aren't they using this in publications that the public see???) there isn't a huge amount of substance.



The report states the following about the aftermarket which underlines the level of their ignorance

".. Furthermore, there is no secondary market for .ie domains, which reduces the incentive for 'domainers' to engage in cybersquatting and domain warehousing"

So all "domainers" are "cybersquatters"?

Why does the IEDR have such a ridiculous fear of the secondary market?

Other registry operators such as AFNIC, which also restricts registrations to some degree, do not see aftermarket activity in such negative terms.

It could also be argued that the registry's restriction on trade in domains is unlawful

One could also argue that the IEDR's current "managed registry" model, whatever that is exactly, contravenes Article 10 of the European Convention on Human Rights.

In case you're not familiar with that specific article here it is:

"ARTICLE 10

   1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
   2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. "

Has anyone ever challenged the consitutionality of the IEDR's stance?

As a body that draws its powers from Comreg's regulation and Irish legislation it cannot continually use the excuse of being a private company.

But I still fail to see how the IEDR can justify the expense of a glossy report like this yet be incapable of communicating an important policy change to its stakeholders (sole traders may now register their surname). Spending money on improving their communications with stakeholders would appear to be a better way of investing their funds.

Do Comreg care enough to actually act?

Or will they sit idly by while the IEDR cherrypick which voices to hear and implement policy changes with little or no real input?

UPDATE: I've attached the full report (4.2 MB PDF):
IEDR AN Report 08-web.pdf

Today marks the last day for public comments on the IRT (trademark protection) final report.

The report, which I've mentioned a few times in the past, was drafted from the perspective of trademark holders in an effort to allay their fears and concerns associated with the launch of the new TLD program.

You can see the comments submitted to date here and read the report here.

I've already made several submissions on the topic, but to summarise:

• Whois and privacy is a matter of concern
• The concept of a "global" trademark list is dangerous
• The rapid suspension model is dangerous and open to abuse

Whether you agree with my views or not is not important, but if you have an opinion on the report you should speak your mind today.

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HarperCollins, the UK based publishing house, has won a WIPO domain dispute.

The dispute centred around the domain: collinsdictionary.com

According to Hosterstats the domain was first registered back in 2005, but has been parked ever since.

The registrant did not respond, so the domain dispute was decided in HarperCollins' favour.

The only odd thing is that the decision is dated almost 2 years ago, yet it was only published today.

Lead Networks, an Indian based registrar, has been sent a "notice of breach" by ICANN.

The letter goes into details of how the registrar has failed to meet its requirements under the RAA and also its obligations under the UDRP.

Seemingly Lead Networks' registrants have attracted no less than 61 separate UDRP proceedings and their lack of cooperation with WIPO led to a letter from WIPO being sent to ICANN. WIPO's letter goes into some detail about how Lead Networks may have been involved in what has been described as "contributory cybersquatting" ie. helping registrants to act in bad faith towards trademark holders.

According to DotandCo Lead would appear to be the registrar of record for about 130 thousand domains and judging by the IP blocks they're using is probably relying on someone else to handle some of their backend processes.

ICANN's letter does not leave much room for misinterpretation - they're clearly not impressed, but they are granting Lead a 30 day "stay of execution". Whether Lead Networks will be able to show ICANN's compliance team that they are going to "behave" or not at this juncture remains to be seen, but based on the body of evidence cited in both ICANN and WIPO's letters it's doubtful.

On a positive note the wider community should welcome the fact that ICANN is taking action against registrars who do not "play by the rules". Of course not all of the rules may be perfect, but they're the only ones we have at the moment.

Remember the draft IRT report? Well they've published the final version after supposedly taking into consideration comments and feedback.
However you'd be forgiven for thinking that their view on the feedback process was ever so slightly biased.
Basically they seem to have taken on board any comments and feedback that supported their views and either ignored or dismissed any that didn't.

To view all the comments that were left you can go here (they seem to have moved the pages around, so the other links I had to the comments are no longer working)

The comments that were submitted came from a wide variety of sources, but included end users, end user groups, registrars, lawyers and companies interested in launching new gTLDs.

So what is in the final report that is so abhorrent?

Take the issue of whois and privacy, which I mentioned during the comment period:

After carefully consideration, the IRT believes that the provision of WHOIS information at the registry level under the Thick WHOIS model is essential to the cost-effective protection of consumers and intellectual property owners. For this reason, the IRT recommends that ICANN amend the proposed Registry Agreement to include an obligation that all registry operators for new gTLDs must provide registry-level WHOIS under the Thick WHOIS model currently in place in the .info and .biz registries

I love the way they lump "consumers" in with "intellectual property owners", but I digress. There is a footnote that basically brushes off concerns about privacy:

The IRT acknowledges that some comments raised privacy concerns about this recommendation. However, it notes that the thick registry Whois model has been employed in many new gTLDs for many years without any evidence of legal problems, and also that ICANN, on the unanimous recommendation of the GNSO Council, has established a procedure that can be invoked by any registry that believes it faces a conflict between its contractual Whois obligations and requirements of national privacy laws. See http://www.icann.org/en/announcements/announcement-18dec07.htm. To date, this procedure has never been invoked.

They have completely ignored or are ignorant of the very important difference between data collection and display. As I mentioned in my comments on this particular subject:

The IRT recommendation for Thick WHOIS as implemented by the .BIZ and .INFO registries could be put forward for incorporation into the next version of the Guidebook, but the IRT should also recognize that variations may occur depending on local law (Telnic is one example). In other words, the data that is displayed to the public vs. the data that is actually captured is something that needs to be clarified.
As I already stated, I would have huge issues with the display of personally identifiable data without there being safeguards in place. The .tel implementation is very sane and balances individual's rights to privacy with law enforcements requirements

In essence if the IRT has their way private individuals will be left with three options:

1. Not register domains if they value their privacy
2. Provide bogus contact information, while this may breach registry rules it's quite easy to provide plausible information that is not correct
3. Use a proxy service, which would again lead to issues of display (self defeating?)

The IRT's take on WHOIS is incredibly shortsighted and contradictory.

From their report (my emphasis added):

In order to test the efficacy of each proposal and the solution to be developed by the IRT Sub-Groups based upon the proposals prioritized, the IRT also developed the following list of questions to be asked as a benchmarking checklist against which to measure all proposals:
what are the harms that are being addressed by the solution;
will it scale;
does it accommodate territorial variations in trademark rights;
does it conform to extent of actual legal rights;
does it work in light of IDNs;
can it be gamed and abused;
is it the least-burdensome solution;
is it technologically feasible;
how will it affect consumers and competition; and
what are the costs and who pays them.

There is no clear distinction to my knowledge between a "user" and a "consumer", as a "consumer" can also encompass registrants, who, as private individuals have rights.
While a right to privacy may not be guaranteed under US law, it is definitely guaranteed under EU law, so how a namespace for global use, which may be legally constituted within the EU could be compatible with a "thick whois" display is beyond me.
And as I already mentioned, abuse of whois is child's play. So by ignoring registrants' rights to privacy they seem to be doing themselves no favours.

With regard to proxy registration services the IRT does consider them worthy of research, but doesn't actually make any firm statement on them:

However, the IRT did identify one proposal, in particular, that it believes should be further considered to determine whether it has any merit; namely the development of universal standards and practices for proxy domain name registration
services.
Many of those who filed comments to the DAG have asked that ICANN consider the issue of proxy domain name registrations with regard to new gTLDs. The IRT
recognizes that proxy domain name registration services raise complex concerns that require a great deal more analysis and consideration that were outside the limited time frame available. As a result, the IRT takes no position at this time on proxy domain name registrations. The IRT does recommend, however, that ICANN consider this issue and report to the community on whether it should or is able to make any recommendations with regard to the use, standards and practices of proxy registrations.
The timetable of such recommendations may be independent of the timetable for the introduction of new gTLDs, but the IRT strongly recommends that ICANN's consideration of this issue commence as soon as possible.

Considering how much of a policy "football" whois is in ICANN circles it is understandable that the IRT did not wish to get too deeply embroiled, but that they would also insist on their thick whois model is abhorrent.

Other areas that caused issues for people in the draft report have also been more or less ignored. While the original draft report spoke of a specific number of trademark registrations qualifying an IP holder to special protection, they have toned this down in the final document. Unfortunately they still haven't dropped the idea completely, so the "tiered" trademark holder concept is still alive and well in IRTville.

It is obvious to anyone reading this final report that the document was drafted from the perspective of intellectual property rights owners only, and even within that group only the "heavyweights" seem to really matter.

George Kirikos sums up some of the issues very nicely:

The URS in particular is an extremist view of trademark rights, tilted in favour of IP interests compared to the UDRP and beyond what is protected or
recognized by law and due process. It also obfuscates the dual requirement of BOTH bad faith use AND registration (there are lots of inconsistencies in the
language that seek to weaken the standard to make it "OR" instead of "AND").
The level of defaults will be even higher than the UDRP simply because good faith registrants never receive actual notice of complaints. Even faxes were
considered too expensive! A 1 page fax, using email-to-fax technology (so it can easily be automated by the URS provider) would cost less than $1 ANYWHERE
in the world! The IRT team should try sending registered letters in a statistically valid sample size and measure how long it takes them to be
delivered to different parts of the world -- it can be more than a week, even from the USA to Canada, let alone from Europe to Canada

As I mentioned previously, not all WIPO UDRP decisions go as smoothly for trademark holders as they would like. In many cases the trademark holders seem to work under the assumption that their trademark and IP gives them rights that negate those of 3rd parties.

Of course, in common with other ICANN documents, there is now a public comment period open for people to make their feelings heard. You don't need to be a registrar or anything special to make your voice heard.

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One of the WIPO decisions published today relates to gillette.ro.

The registrant (respondent) didn't make any submissions in their defence, so the decision could have been quite banal.

However some of the panelist's comments under the "Registered and Used in Bad Faith" section are quite interesting under:

The Panel disagrees with the Complainant's submission that the only conclusion that can be drawn from the registration of a domain name consisting of a well-known trade mark such as the Complainant's GILLETTE trade mark and the history of the Respondent's similar conduct in respect of other well-known trade marks is that the Respondent registered the Domain Name in the hope of obtaining financial compensation from the rightful trade mark owner.

It appears to the Panel that while this is definitely a possibility, such an intention cannot simply be assumed in the circumstances as the Complainant has not adduced any evidence as to the Respondent's offer for sale or other attempt at reaping financial benefits through registration of the Domain Name. The Panel notes that the Domain Name is not in use, and does not resolve to any page which would suggest that the Domain Name is for sale.

Put in simpler English. You can't just make assumptions. You need to provide evidence.

Ultimately the case was won by Gillette, but the "assumptions without evidence" are an interesting sidenote.

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