DomainPulse.com: ICANN is seeking volunteers to serve on the second review of Registration Directory Service (formerly known as the WHOIS Review). Interested individuals are invited to provide the following information, in the template [PDF, 2.7 MB]...
DNJournal: Serial entrepreneur and domain industry veteran Rob Monster, the founder of Epik.com, believes in going big or going home and his latest plan is VERY big.
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CircleID: As I've written before, domain name disputes involving multiple trademarks sometimes raise interesting issues, including whether a panel can order a domain name transferred to one entity without consent of the other. While panels typically have found ways to resolve this issue, one particularly troubling fact pattern arises when a panel denies a complaint simply because a disputed domain name contains trademarks owned by two different entities.
The situation presents itself when a panel considers whether a domain name containing two trademarks is "identical or confusingly similar" to a single trademark — that is, the trademark owned by the complainant — as required by the first factor of the Uniform Domain Name Dispute Resolution Policy (UDRP).
In one odd case, a UDRP panel confronted the issue when a complaint was filed by the owner of the trademark NSK, but the disputed domain name also contained the trademark SKF — "which is a third-party brand of bearing products which competes with Complainant." Therefore, the panel was faced with the question of whether the domain name <skfnsk.com> was confusingly similar to the complainant's SKF trademark.
Many UDRP panels apply this first UDRP factor liberally. Indeed, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, says, "The first element of the UDRP serves essentially as a standing requirement."
And, many UDRP panels have adopted the position that "the fact that a domain name wholly incorporates a complainant's registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy."
Still, the panel in the <skfnsk.com> case saw things differently, writing:
The Panel finds that Complainant has not met its burden regarding confusing similarity. Complainant has adequately alleged its interests in and to the NSK mark; however, Complainant has no rights or interests in the SKF mark. Complainant alleges no nexus between it and the owner of the SKF mark. As such, Complainant essentially has standing to bring this claim regarding the NSK mark but not the SKF mark.
As a result, the panel denied the complaint, allowing the respondent to retain registration of the disputed domain name even though it contained the complainant's trademark.
Amazingly, two days after the decision in the <skfnsk.com> case had been published, the Forum published another UDRP decision in a similar case also filed by the owner of the trademark NSK and also containing the SKF trademark. And the panel in that case reached a different conclusion! In that case, the panel found <nsk-fag-skf-ntn.com> confusingly similar to the NSK trademark, writing that "the Panel agrees that the additions Respondent has made to the NSK mark are insufficient to overcome Policy ¶ 4(a)(i)."
The panel's denial in the <skfnsk.com> case also contradicts an earlier decision with similar facts, involving the domain name <skf-nsk-bearings.com>. There, the panel simply wrote: "Complainant argues that the <skf-nsk-bearings.com> domain name is confusingly similar to the NSK mark for the following reasons: 'skf' refers to a third-party brand of bearing products which competes with Complainant, and 'bearings' is a term descriptive of Complainant's business. The Panel agrees."
The panel's denial in the <skfnsk.com> case is difficult to reconcile with the other decisions, and it seems to be quite unusual. Still, it is not the only time a panel has taken this perspective. In a case involving the domain name <nikegoogle.com>, a panel denied the complaint because it was filed only by Nike, not by Google, and "Complainant has failed to establish rights in or to the GOOGLE mark per" the first requirement of the UDRP.
Interestingly, the <nikegoogle.com> case was refiled soon after the denial, with both Nike and Google as complainants. The second panel ordered the domain name transferred — to Nike, as the parties requested. (Oddly, the second decision does not address the first decision, which raises the interesting question of whether the second complaint was a proper case for refiling, which UDRP service providers and panels typically accept only in limited circumstances.)
While the <skfnsk.com> and (first) <nikegoogle.com> cases are outliers, the decisions reinforce the importance of joining all relevant trademark owners in a UDRP complaint, or at least ensuring that the record demonstrates their relationship and consent. As in all domain name disputes, nothing should be taken for granted.
Written by Doug Isenberg, Attorney & Founder of The GigaLaw FirmFollow CircleID on TwitterMore under: Domain Names, Intellectual Property, Law
The post When Two Trademarks Aren’t Confusingly Similar to One Trademark appeared first on iGoldRush Domain News and Resources.
CircleID: The Republican-controlled FCC on Thursday suspended the net neutrality transparency requirements for broadband providers with fewer than 250,000 subscribers. Grant Gross from IDG News Service reports: "The transparency rule [official FCC release], waived for five years in a 2-1 party-line vote Thursday, requires broadband providers to explain to customers their pricing models and fees as well as their network management practices and the impact on broadband service. The commission had previously exempted ISPs with fewer than 100,000 subscribers, but Thursday's decision expands the number of ISPs not required to inform customers. Only about 20 U.S. ISPs have more than 250,000 subscribers. The five-year waiver may be moot, however."
Follow CircleID on TwitterMore under: Access Providers, Net Neutrality, Policy & Regulation
The post FCC Rolls Back Net Neutrality Transparency Rules for Smaller ISPs appeared first on iGoldRush Domain News and Resources.
Whats Your Name: We get it: Domain registration and website management can get confusing sometimes. We’re always doing our best to make your Name.com experience as painless as possible, so our support team has created series of video tutorials that answer the most common domain and website questions. Although new tutorials are still coming out each week, take a look […]
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CircleID: The non-contracted parties of the ICANN community met in Reykjavík last week for their annual intersessional meeting, where at the top of the agenda were calls for more transparency, operational consistency, and procedural fairness in how ICANN ensures contractual compliance.
ICANN, as a quasi-private cooperative, derives its legitimacy from its ability to enforce its contracts with domain name registries and registrars. If it fails to implement the policies set by the community and to enforce its agreements with the contracted parties, the very legitimacy and credibility of the multistakeholder governance model would be threatened, and the ability of ICANN to ensure the stability and security of the Domain Name System could be questioned.
The Commercial and Non-Commercial Stakeholder Groups are not unified in their views on how ICANN should manage contractual compliance, but both largely agree that ICANN should be more open with the community regarding its internal operating procedures and the decisions that are made.
Some members of the Commercial Stakeholder Group desire an Internet policeperson, envisioning ICANN's compliance department as taking an active role in content control, disabling access to an entire website on the mere accusation of copyright infringement. ICANN has previously said it is not a global regulator of Internet content, but there is a sentiment in some circles that through shadow regulation, well-resourced and politically-connected companies should be able to determine which domain names can resolve and which cannot.
The Non-Commercial Stakeholder Group believes that the Domain Name System works because Internet users trust it to redirect them to their intended destination. Likewise, if a registrant registers a domain name in good faith, they should expect to be able to use this Internet resource to disseminate the legal speech and expression of their choice. Domain names enable access to knowledge and opinions that sometimes challenge the status quo, but ultimately enable the fundamental human right to dissent and to communicate speech.
If a website is hosting illegal content, it is the courts that have the authority to make such a determination and to impose appropriate remedies — not private enterprises that have struck deals with registries, and certainly not ICANN.
The problem is, there is mission creep, and ICANN is indirectly regulating content by repossessing domain names from registrants sometimes without any investigation of fact.
During the intersessional, the Non-Commercial Stakeholders Group probed the compliance department to outline how complaints can be filed, how they are reviewed, and to describe how the interests of registrants are represented during the investigation of complaints.
The answers were very revealing: anyone can file a complaint with ICANN, even anonymously; there are no public procedures on the complaint process; and registrants can neither know that a complaint has been filed against them, nor can they feed into the decision-making process, nor challenge the decision. This is problematic, not least because ICANN staff admitted last November in Hyderabad that there has been abuse of the compliance department's complaints form, with some entities having made bad faith attempts to have domain names taken down.
This is not a theoretical issue. In 2015, ICANN's compliance department caused financial harm to a domain name registrant because of a minor, perceived inaccuracy in their domain name's WHOIS records. In this instance, the registrant had a mailing address in Virginia and a phone number with a Tennessee area code. While both details were valid, and the registrant was contactable, a "violent criminal” filed a complaint with ICANN alleging that the details were inaccurate. The complaint was accepted by ICANN and passed along to the domain name registrar. The registrar, fearing a non-compliance notice from ICANN, suspended the domain name without performing any investigation into the claim, resulting in the registrant losing access to their business email account and website.
Representatives from the Non-Commercial Stakeholders Group argued during the intersessional that ICANN should not accept anonymous complaints. Anecdotally at least, there appears to be a pattern of domain names being taken down based on inaccuracies in WHOIS records, many of which the casual observer may perceive as being either very minor, or not a legitimate complaint. It is not simple to track patterns of abuse when you do not know who is submitting the complaints. Transparency does not necessarily mean transparency to the world. But it should be possible for the parties against whom a complaint has been made to request information on who has filed a complaint against them. They should also be able to feed into the complaint process, provide evidence, and have a mechanism of appealing the decision that a contracted party or ICANN's compliance department has made. ICANN has been recruiting for a Consumer Safeguard Director for more than two years now; perhaps once this post is finally filled, registrants — the very parties paying for domain names year-after-year — will have more of a voice in ICANN's complaint processes.
Because as things stand at present, if a domain name can be repossessed from a registrant for any reason at all, without any due process being followed, and in direct violation of Article 1 of the organisation's bylaws, it might well be ICANN that is posing a threat to the security and stability of the Domain Name System.
Ayden Férdeline is a London-based Internet policy consultant. He was appointed to the Policy Committee of the Non-Commercial Stakeholders Group in January 2017.
Written by Ayden Férdeline, Internet Policy ConsultantFollow CircleID on TwitterMore under: DNS, DNS Security, Domain Names, ICANN, Internet Governance, Policy & Regulation, Whois
The post At the NCPH Intersessional, Compliance Concerns Take Centre Stage appeared first on iGoldRush Domain News and Resources.
CircleID: Robert Cannon writes: Over the past year, the National Telecommunications and Information Administration in the Department of Commerce has convened a series of meetings and sought feedback on the policy implications of the Internet of Things. In January, prior to the administration transition, NTIA released a draft working paper Fostering the Advancement of the Internet of Things (also reported here on CircleID). It is unclear how agency work released in January might survive the transition. However, indicating that NTIA's IoT paper is still viable, NTIA under the new administration released a notice extending the comment period on the draft. Comments will now be accepted until March 13, 2017.
Follow CircleID on TwitterMore under: Internet of Things, Policy & Regulation
Domain Name Wire: Company claims owner of MarlboroWeed.com is cybersquatting. Philip Morris USA Inc., an Altria company that makes Marlboro cigarettes, has filed a cybersquatting complaint with World Intellectual Property Organization. The company is demanding that the owner of MarlboroWeed.com hand over the joint. MarlboroWeed.com was registered in 2010 and doesn’t appear to have ever been used. The […]
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