Trademark Lawyers Push For Crazy New Domain Rules Making It Easy For Them To Take Away Others' Domains

from the maximalist-land-grab dept

IP maximalists now seem to be targeting ICANN as yet another way to overclaim their rights and block legitimate domains from existing. As we've been discussing, there have been several fights concerning the new generic top level domains (gTLDs) where we've seen folks like the entertainment industry demand extra special measures to keep them from being used to infringe copyrights. But the trademark folks may be going even further. We already have the (somewhat flawed) UDRP (Uniformed Domain Dispute Resolution Process) system for trademark holders to try to claim rights over a domain. This process lets trademark holders go through an arbitration process if they feel someone is abusing a trademark in a domain. In the past, we've discussed how this process is pretty sloppy, but it still heavily favors trademark holders. As in many arbitration situations, the big companies who bring back business to the arbitrators (magically) seem to win quite frequently.

However, that's just not enough for these trademark holders. Last year, for these new gTLDs, they were also able to establish a separate process, the URS (Uniform Rapid Suspension System) which, everyone was told, would only be used for the most egregious cases of trademark infringement -- the cases where it's so totally obvious that the domain in question infringes that the whole process can be cheap and streamlined.

However, before this process has even really been tested, trademark holders are trying very, very hard to basically lower the standards on URS and broaden the reach of it, such that it more or less replaces the UDRP process -- and thus makes it a system that lets trademark holders seize the domains of those they accuse of infringement very cheaply, with minimal review, and to also block certain words from being registered in domains. Even more incredible? They're abusing an ICANN comment process to push this plan (which ICANN had earlier rejected).

All of this came out recently in a letter to ICANN's board raising concerns about this effort. ICANN had opened up a comment period for a specific issue having to do with gTLDs, and the trademark folks went hogwild, asking for all of these other things, including:
  1. Lowering the standard for when the simplified URS process (seize domains quickly, ask questions later) process can be put in place. Originally, the bar had been set high so that this process could only be used in truly egregious cases where there was no question that the domain was infringing. But the proposal sought to lower the standard such that it's the same as the UDRP standard (effectively stepping in and replacing UDRP).
  2. Changing the already agreed upon URS system, such that domains that go through the process aren't just suspended, but transferred to the trademark holder. In other words, rather than just shutting down the domain, this fastpass system would simply turn the domains over to the trademark bullies.
  3. Saying that the URS process (which was developed just for these new TLDs) should also be expanded to cover the most important TLD of all: .com. Yes, that's right. That's the goal in all of this. To actually make it much, much easier for trademark bullies to completely shut down and gain control of domains that they don't like others to use, and to do it cheaply, with very little review.
And they did all this by abusing a comment process that has nothing to do with these issues, and despite the fact that earlier hard-fought battles over these issues came out with them on the losing side. But, this is how IP maximalists work. They just keep trying every way possible to get the same ridiculous rules made in their favor.


Reader Comments (rss)

(Flattened / Threaded)

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    :Lobo Santo (profile), Mar 30th, 2012 @ 10:59am

    Alt DNS

    A thought occurs:

    Anybody can decide they're going to print a phone book.

    EG ANYBODY can decide to become an independant domain registrar and completely ignore the ICANN DNS BS.

    They could actually kinda replace the DNS system altogether by using the same IPv6 endpoints and encapsulating the data in such a way as to ignore the old standards--which means they'd also be free to make a new standard... maybe use torrent peering techniques to replacing the tcp/ip packet routing & bandwidth limitations (like a super TOR, kinda...)

    Maybe Google, Anonymous, 4chan, ThePirateBay or anybody else should look into doing such...

    /free flowing thought rant

     

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      Cowardly Anonymous, Mar 30th, 2012 @ 11:19am

      Re: Alt DNS

      There are a number of issues with doing that, which is the reason DNS came into existence in the first place. Primarily, having a single resolution authority allows for ensuring there is one site per URL. Removing the system would eventually require users to directly interface with IP addresses.

      That said, browsers (through bookmarks/caches/histories) and search engines could potentially take on the brunt of content to address translation. It would certainly make telling someone a specific site a little harder, though.

       

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        :Lobo Santo (profile), Mar 30th, 2012 @ 11:28am

        Re: Re: Alt DNS

        There's been other systems before, now that I think of it.

        Anybody remember "AOL keywords"?

        Pretty sure there's others too, just not coming to mind.

         

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        :Lobo Santo (profile), Mar 30th, 2012 @ 11:30am

        Re: Re: Alt DNS

        Don't you mean "lightbulb (c)"?

         

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        Anonymous Coward, Mar 31st, 2012 @ 8:24pm

        Re: Re: Alt DNS

        I envisioned an app that would allow a user to selectively store a cached DNS entry as long as he wanted that would then act as an alternate on demand resolver upon request if the site at some time in the future did resolve to where the user expected on the first request. If the user didn't have a previous record the app could ask a certain configured number of other systems to try and find an alternate destination address. To combat attempts to poison the system, it would be programmed to do confidence testing on the results returned.

         

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      aldestrawk (profile), Mar 30th, 2012 @ 4:41pm

      Re: Alt DNS

      Peer to peer protocols will be of no benefit to DNS whether they use the current root or an alternate one. The main benefit of peer to peer is relieving bandwidth requirements on what would otherwise be the sole source of distribution. That benefit comes when the files being distributed are sizable. DNS records, even ones with certificates, are not very big. The response to a root query is contained, by design, in a single 512 byte IP packet. This is why there are only 13 root servers. (Yes, I know this is amplified by anycast and load balancing to some 242 physical root servers).
      The other main benefit of peer to peer protocols is redundancy and a distributed architecture. DNS already is structured to be redundant and distributed in other ways. The contents of the root zone file is determined at a single point, but the distribution of these contents is indeed, redundant and distributed.

       

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    Jeremy Lyman (profile), Mar 30th, 2012 @ 11:14am

    In a darkened, smoky room of an evil volcano island...

    "Damn, we are having the toughest time getting the government to approve these latest round of ex post facto laws that benefit no one aside from us."

    *lightbulb appears over head*

    "Hey, ICANN isn't beholden to stupid voters! Lets get them to do the dirty work that keeps us in control of things we're not qualified to be in charge of!"

     

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    Anonymous Coward, Mar 30th, 2012 @ 11:28am

    so when do these new rules start then? it's obvious that nothing will be done to prevent it in case something good comes out of it that could favour whoever registered the domain in the first place. i wonder who will be the first politician to back it?

     

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    Ninja (profile), Mar 30th, 2012 @ 11:35am

    All of this can be summarized in one tiny word: Control.

    You see, even ppl with very small and limited power (ie: your supervisor) often abuse that small little power to try to fully restrain and control those who are below them, why wouldn't any1 with shitloads of power try to do the same?

    It's yet another very unpleasant human trait: to cling and abuse power to control other human beings, just because they can. Just give them a tiny little bit of power (financial, political, hierarchic) and they'll show their true colors.

     

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    DogBreath, Mar 30th, 2012 @ 11:41am

    Just the latest in attempts to make an end run around perfectly legal criticism sites

    I can see them abusing this system all too clearly in the: Insert - "Product/Company Name"sucks.com/.net/.org sites to shut them up.

    http://www.techdirt.com/blog/?tag=sucks+sites

    Company legal mouthpiece referring to citizen protest websites on the Internet: "Their speech may be legally protected, but not without our permission"

    If they have their way, say goodbye to the fill-in-the-blank "TRADEMARKED NAME"sucks.com/.net/.org/.whatever sites.

     

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      Anonymous Coward, Mar 30th, 2012 @ 11:54am

      Re: Just the latest in attempts to make an end run around perfectly legal criticism sites

      They really just need to make a .sucks gTLD that anyone who doesn't like a company can register a gripe domain.

       

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      Anonymous Coward, Mar 30th, 2012 @ 12:34pm

      Re: Just the latest in attempts to make an end run around perfectly legal criticism sites

      Therein may actually lie the challenge to defeat this through the legal system. As 1. trademark protection is designed for the soul purpose of avoiding confusion in the market place between competing brands in commerce, 2. such sites are likely not in commerce and instead be simply critical commentary on the company, and 3. it would seem to be pretty difficult to argue that that any rational person would confuse site with such a domain to be the company. What is left is blatant censorship in violation of 1st amendment rights. So if they put this in place, the first time it is used to seize a thiscompanysucks.com domain. Legal precedent could possibly be set to bar the practice of ever using the capability again.

       

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    Anonymous Coward, Mar 30th, 2012 @ 11:53am

    This would only accelerate the movement away from gTLDs like .com/.net/.org. I have seen several websites already moving from a gTLD to a ccTLD.

    Since each ccTLD is managed by its own country, the ICANN rules do not apply to domains registered under ccTLDs.

     

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    sophisticatedjanedoe (profile), Mar 30th, 2012 @ 12:11pm

    It would be interesting to know where Marc Randazza stays on this issue. Last week I became aware (via my site referrals) of the war between Crystal Cox (a blogger who was hit by insane defamation charges recently, a highly publicized event) and Marc Randazza. I did not have time to go through the details, but it seems that, after exchanging some initial hostilities, ms. Cox registered marcrandazza.com and Marc demanded it back, while ms. Cox accused him in hypocrisy saying that Randazza defended against attempts to take over domains based on personal names in the past.

    Disclaimers: I'm just a spectator in this war, I don't have an opinion one way or the other. I don't have any opinion on ms. Cox as I don't know her or her activities well enough. I don't like mr. Randazza.

     

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      sophisticatedjanedoe (profile), Mar 30th, 2012 @ 12:24pm

      Re:

      Funny, just as I posted, I saw a tweet with a link to Randazza's side of the story. Again, I have no active interest in this debacle.

       

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        sophisticatedjanedoe (profile), Mar 30th, 2012 @ 12:37pm

        Re: Re:

        ...although going after family members is even lower than copyright trolling... So now I don't have sympathy to both sides and as such, don't have any desire to follow this story.

        I was merely interested in the issues surrounding personal name domains: not exactly on topic, but related.

         

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      G Thompson (profile), Mar 31st, 2012 @ 1:41am

      Re:

      Carol Cox to put it bluntly, and I take full and absolute responsibility for this statement (come at me Carol) is an absolutely batshit insane woman who is bordering on extortion and high end harassment to get her own way because she doesn't like how some people treat her. In fact the extortion attempts are very well documented.

      To go after toddlers and family members in this way, no matter what you think of the targets themselves is criminal in most places in the world. Not to mention any parent who has this happen to their daughter is going to dream of acts to do to this idiot that might land them on the front page of the paper.

      For examples of this do a google search on "Randazza Cox" nearly every single one of those sites is owned by Ms Cox via GoDaddy and Blogger and they all try to extort money from people after she has written the post and then tried to intimidate and harass them.

      Her diatribe on Marc Randazza is just the tip of an extremely large iceberg of in my opinion onset of a psychological disorder

      Even her Flickr account has this disorder showing throughout.

      I'd encourage anyone who has a blog to draw attention to this woman's unethical and wrongful conduct. And I would encourage any attorney who is representing her to seek help for her in her own best interest and the interest of the court.

       

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        G Thompson (profile), Mar 31st, 2012 @ 1:51am

        Re: Re: Apologies to Carol Cox (A lovely lady)

        Oops.. I have mistakingly referred to Crystal Cox as Carol.

        I apologise profusely for this error.

        The person in question is in fact Crystal Cox who is the defendant in "Obsidian Finance Group, LLC v. Cox" with Eugene Eugene Volokh and Benjamin Souede as representatives.

        Carol Cox is in no way, to my knowledge, associated with Crystal Cox or this matter.

         

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        sophisticatedjanedoe (profile), Mar 31st, 2012 @ 2:01pm

        Re: Re:

        I did some reading since then and no matter what I think about Mark Randazza, I must admit that "batshit crazy" is a very good description.

         

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    Anonymous Coward, Mar 30th, 2012 @ 12:43pm

    Can this steal domains from the chinese government?

     

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    Anonymous Coward, Mar 30th, 2012 @ 12:48pm

    ICANN will do whatever's most profitable for ICANN

    I guarantee it -- they're corrupt to the bone and insatiably greedy. So expect the outcome that generates the most revenue, and the hell with the Internet.

     

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      Anonymous Coward, Mar 30th, 2012 @ 1:40pm

      Re: ICANN will do whatever's most profitable for ICANN

      ICANN isn't inherently corrupt - or at least they didn't start out that way. It just appears that they have become infiltrated with the minions of the powers of evil that are the Content Cartels.

       

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      Anonymous Coward, Mar 30th, 2012 @ 4:58pm

      Re: ICANN will do whatever's most profitable for ICANN

      Specifically, the outcome that generates the most revenue in the short term. If they were thinking long-term they'd be trying to keep customers, not sell them out.

       

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    Woot, woot!, Mar 30th, 2012 @ 12:51pm

    Pass the pop-corn.

    As a technology person of many, many years experience, all I can say is "have at it, arseholes". I could also say "you're through with opression through the old extortion model (artificial scarcity) and you can't stuff the genie back in the bottle, so stop wasting your time and (our) money", but it’s so much fun to watch antiques crash and burn that I can't bring myself to say it. It's infinitely better than any so-called "reality" series. It's like watching ants running frantically in circles as they dry up and fry in the desert sun.


    Look, the Internet is the ultimate socialist tool. It is an incontrovertible fact of this new (check your calendars arseholes) millennium. It was developed initially by the United States of Greed and Paranoia’s mighty military-industrial-greed and brain-trust complex (funded by the UsoGaP’s own fascist money - can you say "hoisted by their own petard?").

    These people are utterly mind-fucked. They can't even win a conventional war they started against a country with 1/15th the population, they can’t even shut down the Pirate Bay, after 10 years of pissing in the wind, er, trying.

    Yeah, they'll slow down a few of the less knowledgeable (e.g.: many windows losers, er, "users", who know jack-shit about computers, or even electricity for fuck's sake) until new tools for the dumb are available and then sharing will grow yet again exponentially as it has each time they “killed” it in the last 10-15 years. They will never win, period.

    But let's get real: they can steal domain names (make no mistake: they ARE thieves for stealing domain names) and shut down whatever domain names they fucking want (boy, all that effort to kill megaupload, and already 10 more have taken its place, and they’re better and harder to get - thanks for spurring on innovation bullshit, I mean bush, obummer and all you other fascist dimwits). They tell us that they can literally kill whoever they want (whimsical execution by a hanky-wave of the state is called legal in the United States of Gone Butt-fuck Insane), but it won't do anything more than wear the fascists down to nothing by trying to kill file-sharing. Will you dumb fucks ever learn the meaning of the term "root cause"? The Internet is jist one way of many to file-share, dumg-asses.

    It’s too late. Your decades of pure avarice are back, fascists. Only this time, they’re after YOUR LUNCH and they’re dying of starvation thanks to you and your horrible track record. Maybe it’s time to, I don’t know, rescue your country from its precipitous decline or something.

    You simply cannot kill ideas. A domain name is just a 20-year-old idea to make the World-Wide Web easier to use for the intellectually-challenged (like typical windows user types). There are many other existent ways to move around the Internet that don't need domain names and new convenience methods are constantly in development.

    Look, you can take a person's name, but guess what - the person still exists, and so does a domain, even if you steal the name (which is what you're doing - you are thieves). You can kill the person, but the idea will NEVER go away. Give the "fight" up, you lost before you even knew there would be a fight.

    This ought to blow your minds: take away the internet completely and you now what? There will still be massive file-sharing. File-sharing would probably just increase in magnitude.

    The trouble with money-blinded greedy fuckers is they cannot fight a fight where money is not involved - they cannot fins a way to oppress ideas – only people (and that is always purely temporary).

    Heh, heh, heh. Pass the popcorn. I love to watch these dinosaurs flail and die.

     

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    aldestrawk (profile), Mar 30th, 2012 @ 4:15pm

    not an abuse of comment process

    I think it is a little unfair to say that the comment process was being abused. The topic for these comments was "Defensive Applications for New gTLDs". ICANN was opening up, for further comment, a discussion about why corporations or individuals feel the need to defensively register for gTLDs to protect their brand(s), whether or not it is a trademark or service mark. An important motivation for defensive registrations is how the brand owner perceives the effectiveness of rights protection measures (RPMs). ICANN has pointed out that the objection process for domains that are either already registered or in the process of being registered by someone else, is easier and cheaper than defensively registering a domain. So, bringing up issues surrounding the RPMs, such as URS, is a valid part of this current discussion.

    Given that, I don't view items 1 and 2 above as being good ideas. It was Verizon, AT&T, Microsoft and CRIDO/ANA (Coalition for Responsible Internet Domain Oversight and Association of National Advertisers) that were the main parties making comments in support of making URS more favorable to big brands. One of their arguments was that defensive registration of 2nd level domains under a new gTLD was more expensive than registration of just a gTLD.

    Readers here ought to be interested in the following portion of a Verizon comment:

    "Amending the PDDRP to offer real remedies against new registries that become havens for cybersquatting and other crimes, with the lower “preponderance of the evidence” standard of proof. Registries should be held accountable when acting in bad faith and with willful blindness for fraudulent and illegal activities shown to arise on a continued basis in their delegated gTLD." Verizon (29 Feb. 2012).

    I find the phrase "cybersquatting and other crimes", as if cybersquatting itself was a crime, to be rather revealing.
    I think it's funny that someone, other than Verizon, registered verizonwireless.xxx, though I don't see why Verizon should get so freaked out about that as it's not plausible that Verizon would run a porn site. Am I being naive?

    ICANN's summary of all this indicates that nothing will change for the current round of gTLD applications. These battles will be seen again for the next round, in 2 or 3 years.

    Please note that item #3 above, applying URS to .com, was not part of this ICANN comment process, but a "horrendous idea recently advocated by a former President of ICANN’s Intellectual Property Constituency" (from the referenced article).

     

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      Anonymous Coward, Mar 31st, 2012 @ 7:22am

      Re: not an abuse of comment process

      Anyone else notice that the only concerns expressed by the companies is the COST of the process, a cost that by via either method they as large hugely profitable corporations can afford? In other words, they only are concerned with THEIR bottom line, and no concern whatsoever for any fairness to others or collateral damage caused by the changes.

       

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    Anonymous Coward, Mar 31st, 2012 @ 8:02pm

    Speaking of "fuck you" uses for domain names...

    Does anyone remember when someone (allegedly affiliated with 2600.com) registered the domain fuckingmorons.com and pointed it to the MPAA webserver back in the day? I remember laughing my ass off at that one.

     

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    Dave, Jul 9th, 2012 @ 11:16pm

    Trademark Lawyers Push For Crazy New Domain Rules Making It Easy For Them To Take Away Others' Domains

    "Hi,
    You have a very good point of view when it comes to own email domains. You could also visit the site http://ownemaildomain.net/ as it gives you the best information that you will need regarding creating your own e-mail domain. The site has step by step instructions and the site creator shares his lessons learned from his over seven years of having his own email domain. This surely gives satisfaction guaranty.
    Best of luck."

     

    reply to this | link to this | view in chronology ]


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