Don’t allow IGO’s to block your rights to defend your domain names

by

George Kirikos posted information on an ICANN comment period that could have significant impact on domain investors, especially those holding valuable names like LL.com and LLL.com.

Essentially IGO’s or Intergovernmental organizations want to find ways to get their hands on valuable digital real estate. The working group is especially seeking comments on how to deal with the situation where an IGO wins the UDRP, the domain owner appeals in court, but then the IGO successfully asserts immunity at the court level to block the appeal from proceeding any further.

There’s an important ICANN comment period on a working group’s initial report that ends on Wednesday March 1st at 23:59 UTC time (6:59 pm NYC time), The new deadline is now March 30, 2017 23:59 UTC i.e. 2 days from now:

https://www.icann.org/public-comments/igo-ingo-crp-access-initial-2017-01-20-en
https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf

The existing comments are at:

https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/

My own submission is at:

https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/msg00004.html

and one can submit comments by email using: comments-igo-ingo-crp-access-initial-20jan17@icann.org (ICANN will followup with an email, usually within an hour, containing a link to validate/confirm your submission, as an anti-spam measure; click the link so that your comments appear in the archives with everyone else’s, and check the above comments archive to verify that it does appear; the comments archive only updates around once per hour, though, so don’t worry if it doesn’t show up immediately; check back an hour later).

The working group is especially seeking comments on how to deal with the situation where an IGO wins the UDRP, the domain owner appeals in court, but then the IGO successfully asserts immunity at the court level to block the appeal from proceeding any further. My position (along with the majority of the PDP) is that the UDRP decision should be set aside or vitiated, thereby preserving the legal rights of all parties (as if the UDRP hadn’t existed). The alternative is to compel binding arbitration before another UDRP-like panel, thereby eliminating the domain name owner’s recourse to its national courts. I explain my position in detail at the beginning of my comment submission.

While the working group’s report is 100 pages, the latter half mostly consists of an external legal report prepared by a professor. While I would encourage people to read the entire document, one can read the summary and the recommendations to get the gist of what’s going on. Or, read the comments of others to get a sense of what is at stake.

Essentially, IGOs (intergovernmental organizations, like the World Bank, UN, NATO, etc.) want to eliminate the ability for domain owners to use the courts to defend their domain name, and instead make binding arbitration compulsory. They particularly covet domain names matching their acronyms. You can see the kinds of names they want in the list of reserved names they got ICANN to blacklist in new gTLDs:

https://www.icann.org/sites/default/files/packages/reserved-names/ReservedNames.xml (bottom half of the list is for IGOs)

The IGOs created their own set of recommendations via their own private “small group”, instead of working with the open and transparent multistakeholder PDP process which would threaten domain name owners’ legal rights to due process. Those recommendations are compared with the PDP’s recommendations in the document.

While it’s best to submit your own original thoughts in your own words, it’s certainly acceptable to endorse the views of others who made comments (that’s what NATO did, for example). While my comments are so far the only ones representative of the interests of domain name registrants, it’s my hope that the ICA and others will also submit comments before the deadline.

You can check out the working group’s mailing list at:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/

and the Wiki at:

https://community.icann.org/display…urative+Rights+Protection+Mechanisms+PDP+Home

for more background material.

This might be your last chance for input on this topic (which has been going on for more than 2 years now). Should IGOs remove the right of domain owners to seek recourse through their national courts, it would be a slippery slope. IGOs are the creation of governments, and they would likely try to continue to erode domain owners rights to due process by targeting geo-names (e.g. City of Paris with Parvi.org) for cases that could not be appealed to national courts. Indeed, TM owners might even try to do the same thing for the UDRP, turning it into its own kangaroo court that can’t be appealed to a real court. Thus, it’s important to take a stand to defend rights to due process.

About Raymond Hackney

Raymond is a writer, domain trader and consultant based in Pennsylvania. Raymond is the founder of 3Character.com and TLDInvestors.com.

Comments

  1. George Kirikos says

    Thanks for bringing this issue to a wide audience, Raymond. I hope everyone who cares about due process chimes in with their own original thoughts. Given there’s roughly a month now to respond (since the deadline was extended), there’s ample time to catch up on the topic. If it gets near the deadline and you still want to make a difference, endorsing the comments of others that you support would also help (just like NATO endorsed the OECD position).

  2. JohnUK says

    I would suggest that holders of these valuable domains get a trade mark themselves for the 2 3 or 4 char domains . It is easy to do (well you could use me and I will do for a very small fee . No prior use necessary .

      • JohnUK says

        In answer to your questions (1) If UNopposed 3 months but protection ,when registered, is from date filed. BUT also it will in any event immediately give credence to a DRS defence (2) circa $500 +/- depending on how many classes etc etc but good ballpark $500. (3) You can get trade marks to protect globally BUT of course “A” trademark will protect you “globallY” (or should do) against UDRP’s etc . I am only giving my opinion NOT LEGAL ADVICE and NO RELIANCE SHOULD BE PLACED ON IT.

          • Raymond Hackney says

            The USPTO trademark classification system divides all goods and services into 45 trademark classes – 34 for goods and 11 for services. There are many goods or services that fall into each class, and they’re not always obvious from the class name. For example, class 25 (clothing) includes aprons, dresses, t-shirts, socks and shoes. Class 29 (meat, fish, poultry) includes meat and milk, but also jam and potato chips, while class 30 (coffee, flour, rice) includes popcorn, spices, ice cream and cereal in addition to coffee.

            Goods and services are never lumped together in the same class. So if you sell bags of coffee to grocery stores, you’re selling a product that’s in class 30. But if you operate a café, you’re providing a service that belongs in class 43 (food services). Depending on your business (if you sell roasted beans at your coffee shop, for example), you may need to register in both classes.

            When you file your trademark application, you must select the class of goods or services that your trademark will protect, and you must also identify the goods or services you provide. Your trademark will only protect the goods, services and class that you name in your application.

            https://www.legalzoom.com/articles/what-are-trademark-classes

          • JohnUK says

            I myself am speaking of UK trade marks but Raymond has explained it in the same way as UK trade marks work as well. IN UK ,as I guess in USA, you pay an amount for each extra class of goods & services that you include. Of course you might think “well I may as well include all of the goods & classes I can see” but this can backfire as case law exists that says such a scattergun approach can constitute bad faith etc etc. Anyway you only need one or two classes usually. UK trade marks have some advantages over USA ones.

  4. George Kirikos says

    There’s just 1 more week left to submit comments to this working group (deadline is now March 30, 2017, 23:59 UTC). Please do so, if you want to ensure that due process and the right to go to a court of law are preserved.