George Kirikos just published a comment to ICANN on the new Guidebook v5 on this issue and points out that Godaddy’s “Standard Tactics” has lost plenty of UDRP’s and therefore why shouldn’t Godaddy’s officers, directors and shareholders be barred from ever owning a new gTLD?
Here is Mr. Kirikos comment:
“””The “3 UDRP losses and you’re out” in particular needs to be explored.””
“For example, GoDaddy was involved with domain name warehousing under a company called “Standard Tactics LLC”, as was documented in a series of articles by DomainNameWire.com, see:”
http://domainnamewire.com/2008/12/03/standard-tactics-llc-how-godaddy-profits-from-expired-domains/
http://domainnamewire.com/2008/12/17/go-daddy-to-shut-down-standard-tactics-llc/
“Standard Tactics has lost numerous UDRP decisions, though. See, for example:”
http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0164.html
http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0863.html
http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1469.html
http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1909.html
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1632.html
http://domains.adrforum.com/domains/decisions/820358.html
“So, the question is simple: Are the current rules, as currently drafted, “bulletproof”, to prevent registrars who’ve lost UDRP decisions on multiple occasions from applying for new TLDs? Or, are there loopholes that will allow them to skirt the intent of the “rules”, so that they can still apply for TLDs indirectly, e.g. via shell companies, offshore holding companies, etc.?”
“Note that GoDaddy is not alone with the above kind of history other registrars are in the same boat.”
“However, read the draft language. It says (on 1-18):”
“Where the applicant, or any individual named in the application”
“This is a HUGE loophole. Because, as noted above, the party guilty of the UDRP losses would NOT have been GoDaddy itself, but would instead be the shell company “Standard Tactics LLC”. GoDaddy would not appear to be “caught” by this language.”
“Why is ICANN protecting entities who have engaged indirectly in cybersquatting, by allowing them to apply for new TLDs, as long as their cybersquatting happened under shell companies that they can disassociate themselves from? “Oh, that wasn’t us it was a different company” is what they will be able to say.”
“I believe ICANN has intentionally left in this gaping loophole, because it wants to ensure that those who’ve gamed the system in the past will still be able to apply for new TLDs (so that ICANN can rake in the huge fees). How can ICANN pretend that they are serious about stopping cybersquatting when they would leave open such a huge loophole that registrars can hop through?””
“I call for the following:””(1) an independent study on the extent of cybersquatting by registrars and their related companies (very easy to do; just look at UDRP losses, and also look at legal cases in the PACER system in the US, and also seek input from the public who I’m sure have many cases that they can bring to light.”
“(2) correction of the guidebook to ensure that the “intent” of preventing cybersquatters from applying for TLDs is matched by the actual language. In other words, remove the loopholes that permit cybersquatting from related companies!””(3) Why would ICANN disqualify certain parties from being TLD operators, but smile, wink and allow those same parties to be registrars, without any penalty whasoever? What’s the acceptable “standard” to become a registrar?”
“The public deserves answers. ICANN has proven, through the loopholes in DAGv5, that it is impossible for this to be the “final” guidebook. It’s simply unacceptable. We reiterate our past comments, and ask whether a deeper investigation on ICANN “insiders” is warranted, to explain how and why such a gaping loophole could be permitted to be published in a guidebook that ICANN believes is “final”?? There has been great staff turnover at ICANN lately perhaps a “housecleaning” might be in order, to ensure that the public has true trusted custodians in place that are watching out for the interests of consumers.”
George makes a great point.
Many registrars have holding companies or other entities that hold their own domains and many have lost UDRP
Tucows.com has at least 3 UDRP losses
Is ICANN going to enforce these rules against the registrars and their affiliated companies especially now since registrars can own gTLD registries?
Is “Demand Domains” related to eNom/”Demand Media”? If you search at udrpsearch.com, they’ve lost many UDRP cases too. In one of the cases at NAF, “Demand DOmains” was represented by “Christine G. Radocha”. A search on LinkedIn leads to a “Christina Radocha” who describes herself as:
“I am currently Corporate Counsel for Demand Media, Inc., an online social media giant with offices in Santa Monica, CA, Bellvue, WA, Austin, TX and the UK.”
So, if they are indeed related, then “Demand Media” and all its related companies should also be barred from being able to apply for new TLDs.
@ MHB
We reiterate our past comments, and ask whether a deeper investigation on ICANN “insiders” is warranted, to explain how and why such a gaping loophole could be permitted to be published in a guidebook that ICANN believes is “final”?? There has been great staff turnover at ICANN lately perhaps a “housecleaning” might be in order, to ensure that the public has true trusted custodians in place that are watching out for the interests of consumers.”
————————————
Who would you suggest for the role of Investagative Advocate,
to conduct this accountability regarding …
the questionable ICANN “insiders.”
Nice work George
I would assume Oversee/moniker have lost 3 UDRP as well through some company.
Buydomains.com has 3 losses including one in the last 4 years so NameMedia is out as well.
http://www.udrpsearch.com/index.php?query=buydomains&search=parties
Landon
That was part of George’s quote.
Mike was quoting me, Landon. Ben Edelman came to mind.
However, I’m sure the DOC, NTIA, and DOJ could also be up to the job. Given those are US government agencies, they’d be able to have subpoena powers to use to get to the bottom of things.
#ICANN see a Virtual Rock Star may not be a gTLD Applicant ? http://dvice.com/archives/2010/11/the-next-lady-g.php #ISOC #IETF #NewTLDs #DNS
Don’t worry, regardless of what ever the final policy turns out to be, godaddy will be able to buy as many gtlds as it works. That’s kinda how these things work, w shouldall know that by now. It’s futile although Nobel to believe otherwise. Worst case there will be some gtlds brought to you “by the same people who brought you godaddy”, or a strategic partnership funded by gd. I’m not really even intending on bashing gd here, just continuing to use them as an example. Don’t expect things to be fair for everyone. Expect they will be fair inthe way that is most profitable.
“Expect they will be fair in the way that is most profitable.”
He who has the .PESO has the Say.So
@ George Kirikos
Do update …
This is a important consumer issue,
and just the tip of other ICANN issues
that should not be swept under the rug ….
No matter what giants like gd will will be able to buy a gtld, even if it says specifically in the policy “GoDaddy Can Not apply or own a gtld”. We can only make it more annoying for gd to buy a gtld. The problem is if we make it That annoying/expensive for billionaires to buy a gtld then imagine how difficult it will be for everyone else assuming the system is at least sorta fair. Essentially we will make it so only billionaires can do it coz they will be the Only ones with the resources to work around it all. Ironic If the case. It’s all about the happy medium and just the right amount of legislation I suppose. Look at brick an mortar businesses in the US, it’s really hard for a little guy to run one now. Too many rules to follow, too many permits, etc…. It is possible for a little guy to run one but really really hard to get rich off it. Barriers get smaller te more money you have.
If the loophole applies to them (registrar companies who have lost at least 3 UDRPs for domains held under seperate companies) then surely it should apply to anyone else? For anyone who has previously lost 3 or more, coudn’t they apply for a gTLD through a seperate company using this loophole and the defense that those UDRPs were in the name of the ‘other’ company?
The premise that UDRP losses equate to cybersquatting is as ludicrous as the UDRP process itself. For your kind information, UDRP cases are often brought by predatory parties seeking to game the system and thereby obtain something without paying for it.
Failure to appeal one of the many erroneous UDRP decisions can stem from a calculated decision that the cost of an appeal is not economical, compared to the market value of the domain being taken. If losing parties had known that a ‘three strikes’ rule would be retroactively applied to exclude them, in the future, from the right to apply for a TLD, then their actions in UDRP disputes would, in many cases, have been decidedly different.
The use of UDRP scores to retroactively deny certain parties from equal protection and equal access to new TLDs is unconstitutional. It magnifies flaws inherent in the UDRP system itself, which is need of fundamental reform.
If UDRP losses are to be used in this biased and punitive manner, for which they were never intended, then the original UDRP cases should be allowed to be reprocessed, at the discretion of the losing party, with new fees collected and new, original notifications of intent to bring a UDRP case and new UDRP filings required from parties bringing UDRP disputes.
My recommendation would be to stop this vengeful foolishness about three strikes. The winners of UDRP cases received what they wanted. That should be enough.
The losers of UDRP cases received lessons that should make them more sensitive to how the domain-name system is administered and regulated. In the cases of the registrars named above, I would argue that losing a UDRP case makes them better qualified to administer a TLD than a party that has never lost a UDRP dispute – or even participated in one.
Anthony
Thanks for your thoughtful comments.
However the 3 strike rule is its even worse than your stating because there is NO appeal from a UDRP.
The only thing you can do if you lose a UDRP is file a separate case in federal court asking for a declaratory judgment that you have not infringed on the trademark.
The filing itself stops the domain from being transferred pending the outcome of the case.
Regardless of whether you settle the case and with you getting paid and the domain getting transferred or even going to a trial in which you are declared the winner, it does not overturn the UDRP.
The UDRP still stays on the books and counts as a loss against you.
Finally any case in federal court unless you get a quick settlement, and I mean real quick one, within the 1st 60 days, its going to cost you $25K minimum ($10K if you can get that real quick settlement) and could easily run past the $100K mark.
How many domains are worth $100K in legal fees?
And as I said even if you do spend the $100K and win the UDRP remains on the books against you as a strike
@MHB – Yes, you’re right. Thanks for clearing that up and for the great insights.
“How many domains are worth $100K in legal fees? And as I said even if you do spend the $100K and win the UDRP remains on the books against you as a strike”
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@MHB
Don’t you think the end result of all of this will be the .BRAND will “win” and Real.People will wander away to FB, Twitter, 3D name.spaces ?
Have you noticed there is no UDRP or $100k Federal lawsuits for name.spaces used by Real.People ?
Look at the trends. You have major IT Consulting companies that are now compiling “the List” of the 100 BRAND Internet names. That may get pushed to 1000, if people are lucky.
The Internet is seeing the BIG.BOX domination continue to “win”.
Jim
There are plenty of trademark lawsuits involving real companies, go check out advertising.com vs advertise.com for example.
Except those tend to wind up with seven figure legal fees
“There are plenty of trademark lawsuits involving real companies, go check out advertising.com vs advertise.com for example.”
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Real companies not Real.People
Real.People will (or have) walked away from the domain .BRAND domination.
Now that .CO is “launched” it can be meshed over to .COM. That will end the .CO
roll-out phase. Everything can (will?) move back to the .COM Platform prior to the next phase. Eventually, most “disputes” will end.
It appears the new .COM trend will be leasing. .COM domains will never be “sold” or moved from the Premium (Ft. Knox) Registrar. The .COM domains will be leased to the new “user”, for some term and fee.
Do you think there will be more than 5,000 .COM domains when this shakes out?
Do you think there will be more than 5,000 .COM domains when this shakes out?
==
By the way, there are people (mammals) currently on planet Earth who will tell you with total seriousness that only 8 or 10 domain names are needed.
They view the rest as Trailer Park Trash (.TPT)
I don’t read this as a 3 strike rule the way you do. If you lost 20 UDRPs and they were all bogus and subsequently turned around in the courts, those UDRPs are nullified from the view of the application process. You can’t be guilty if you ultimately proved your innocence. I think the ambiguity in this language will get cleared up by the final version of the DAG. It’s not equitable that somebody ultimately proven innocent could be disqualified as a result of the initial accusation of impropriety (which is really all an unresolved UDRP ruling represents). The courts have the final word in disputes. More troubling is that those writing the DAG failed to consider that large commercial registrants of SLD domain names are more susceptible to UDRP challenges than an average registrant. Ironically, those holders of large portfolios of names are clearly the most qualified (in terms of practical experience) to run a new TLD registry. What other lack of vision is built into this process when some of the most capable and profitable domain name operators are excluded from the get-go? Again, I think this all sorts itself out in the final version of the DAG. The bigger question is the long term value of TLD registries when thousands of them come into the mix and compete against one-another. You can see from the domainer community skepticism around .CO and .XXX that it is going to be difficult to get more and more registrants and speculators to take SLD positions in new namespaces when there are 1000’s of namespaces competing against one-another for SLD registrants. Look past the excitement of the domain hunt to a world where all these name spaces exist and I think you’ll see a world where the only SLD registration which the majority of people really WANT are .COMs. If nothing else this whole process will serve to set a floor price to the value of great (and even moderately good) .COM SLD registrations.
“What other lack of vision is built into this process when some of the most capable and profitable domain name operators are excluded from the get-go?”
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Were you around in the 2000 Beauty Contest TLD Market Trials ?
TLD Operators were selected that had ZERO experience with DNS or the Internet in general. They were then given over TWO (2) years of on the job training to get up to speed.
ISPs and companies who had brought “the process” to that point were shoved aside. To make matters worse, some had over $40,000 picked from their pockets. THE Community laughed all the way to the .BANK.
TI
I’m a practical guy.
So there is the discussion we can have on a theoretical level like a law professor or a practical one which is real world
1st of all when you say turned around in the courts, do you mean a settlement was reached by the parties or you have to go to a trial and get a verdict?
2nd of all what is your authority that a court decision overturns a UDRP?
3rd If would cost you at least $2 million dollars in attorney fees to litigate 20 cases in the federal court and go to a jury decision.
4th the average federal court decision takes 4 years from the case being filed.
5th at best you would then have another lawsuit against ICANN once the application for new gTLD was denied based on your involvement.
Assuming as a domainer you are part of a larger group which applied for a new gTLD and your group’s application is denied because of your involvement do you think the rest of the group is going to wait for you to file a federal lawsuit to get your issue resolved or do you think they are going to move forward without you?
This is the why for all practical purposes 3 strikes and your out
You’d think those creating the process would get “smarter” over time though. This is a much bigger process than 2000. If it’s to succeed then the rule-book needs to be even handed and the process much more magnanimous (in the way rules are created and applied).
“You’d think those creating the process would get “smarter” over time though.”
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They certainly have become much richer and much “smarter”. Don’t kid yourself.
The Cash.COWS are well-protected… a long way from any “new process”.
Based on a comparison of what people discuss and what is really going on, the next “round” will be fascinating to watch.
The abuses of the entire process rival Ellis Island and Angel Island.
“If it’s to succeed then the rule-book needs to be even handed…”
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NOTE WELL: “to succeed” may mean one thing to one group and another thing to another group.
Some people measure everything as $$$$ at the end of the day.
IF you had $250,000 rolling in EACH day, and you could do NOTHING to continue that or add risk and lose some of it, what would you do ?
Door #1: risk
Door #2: NOTHING
Door #3: RiSK
MHB, does the present language make your points 1-4 correct, YES. Will that language stand in the final DAG?.. No.
My point was if an APPLICANT lost exactly 3 UDRPs, and they turned all three around the courts (Court orders saying the RESPONDENT did nothing wrong), then applied for new tlds, after those reversals; and those judging the applications denied the applicant based on the UDRP losses (ignoring the subsequent court court orders) the applicant would have a good argument for relief. It is not equitable that those proven innocent have their reputation sullied by an accusation (which is all a reversed UDRP decision represents). We are arguing about something essoteric because this language will “absolutely” be changed in the final DAG.
There’s the Haves and the Havenots, but that is too simple.
If the powerful can morph themselves into different entities to accomplish what they need with no accountability for their actions – such as move their business to their wife’s name, and register in Nevada to escape regular taxes, or send their $$ overseas under a different name by a sham company with a board of nominees , and carry out one application under one name that they would be barred to from another, even as it exists under the umbrella of the parent company, it violates my rights! That is, it strips me of my rights. It’s like a monopoly gaming the system heavily in it favor through its ability to leverage funds and knowledge of loopholes to make itself invisible to me, or the little guy, therefore unaccountable!
Thanx for listening! 🙂
This world isn’t going on much longer: JW.org , so I might as well spill the reason of ranting about sham companies which operate invisibly to US authorities!
1. 2004: Godaddy, Inc of Arizona sued Yahoo, Inc
2. 2004: Godaddy, Inc incorporated in Nevada
3. 2006: The Go Daddy Group, Inc., filed as a Delaware Corporation
4. 2008: Godaddy, Inc reinstated in Nevada ( details not available on Nevada Business search )
5. 2009: Godaddy, Inc., of Nevada filed with the California Franchise Tax Board, which levies a franchise tax on businesses for doing business in California.
6. 2009: I sued Godaddy, Inc and won – yay! I picked up a copy of NOLO Small Claims Court in California days before the hearing, to study court etiquette.
7. 2009: Godaddy, Inc of Nevada tried to get the ruling overturned, claiming “Godaddy, Inc HAS NEVER WILL NEVER DO BUSINESS ONLINE,” and that I should have sued Godaddy Group, Inc., of Arizona, that I sued the wrong party, failing to do my research.*
8. 2009: Godaddy, Inc., license revoked in Nevada
9. 2014: Godaddy, Inc., of Arizona incorporates in Delaware.
10. 2014: Godaddy, Inc., of Arizona files IPO.
*after a long-drawn out fight in the Court of Long Beach, where I finally appealed to the presiding judge that records of some court appearances had disappeared, after which my case got handled with kid gloves, and being sued twice personally in Compton by the Godaddy exec., but they got dismissed.
Nice going, Godaddy, Inc of Arizona – woohoo!