Trademark Law, ICANN, trademark abuse, domain name theft

A big problem for domain investors is that neither ICANN, nor UDRP panels, understand trademark law --

As Judge Kozinski famously wrote, sometimes trademark holders must be “advised to chill.” (source infra)

Trademark Law Does Not Require Companies To Tirelessly Censor the Internet | Electronic Frontier Foundation: "Quite simply, the view that a trademark holder must troll the internet and respond to every unauthorized use (or even every infringing use) is a myth. It’s great for lawyers, but irritating and expensive for everyone else. And when done clumsily or maliciously, it chills free expression." (read more at the links above)

Not only that, but a legal authority reports that two companies can both use the same mark without infringement, as long it isn't likely to confuse consumers.

Prediction: domain names are a form of free expression, protected by the First Amendment in the US; it will not be long before ICANN and/or its enabling of trademark abuse and domain name theft, gets slapped down by a Federal Court.

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ICANN Strategy Panel, Internet Governance, survey, webinar

Strategy Panel on ICANN's Role in the Internet Governance Ecosystem | ICANN seeks your input by January 31st - the Panel invites you to submit your feedback by Friday, 31 January 2014 – 23:59 UTC. (see below)

"The Strategy Panel on ICANN's Role in the Internet Governance Ecosystem is reviewing the assumptions, linkages and frameworks that dictate ICANN's responsibilities in the current Internet ecosystem. It seeks insights into ways to maintain and enhance ICANN's stewardship of the evolving ecosystem while cultivating thought leadership on ways in which ICANN can serve a complex set of Internet constituencies.

The Panel's deliverables are:

* Facilitate review of the assumptions, linkages and frameworks that underlie ICANN's responsibilities in the current Internet ecosystem;

* Seek insights on ways to maintain and enhance ICANN's stewardship in an evolving ecosystem; and

* Cultivate thought leadership on ways in which ICANN can serve a complex set of Internet constituencies.

* Provide a set of guiding principles to ensure the successful evolution of ICANN's transnational multistakeholder model in cooperation with national and international bodies;

* Propose a roadmap for evolving and globalizing ICANN's role in the Internet governance ecosystem in consultation with global players; and

* In coordination with the many other global players and ICANN stakeholders, propose a framework for implementation of ICANN's role, objectives and milestones in global Internet governance."

Share Your Thoughts--
Email: ioepanel@icann.org. Please note that this email address is tied to an open mailing list from which messages are made publicly available ...
Survey: https://www.surveymonkey.com/s/33X7SY2 

Also webinar on Friday - "Join the Strategy Panel on ICANN Multistakeholder Innovation for an update and interactive discussion.

Date: Friday, 31 January 2014
Time: 16:30-17:30 UTC (time converter: http://tinyurl.com/qxwfmrz)

You are invited to an update on the activities of the Strategy Panel on ICANN Multistakeholder Innovation. The work of the ICANN Strategy Panels will inform ICANN's new, overarching vision and five-year strategic plan.

As it prepares to offer its advice to the ICANN President and CEO, the Multistakeholder Innovation Strategy Panel wishes to walk you through the work it has undertaken and to seek your input on the preliminary set of conclusions it has reached. This webinar will also be the opportunity for you to ask questions. ICANN Strategy Panels serve as an integral part of a framework for cross-community dialogue: your feedback and contributions are key to this project and will be carefully considered. Panel output will be posted for community consideration and public comment.
Webinar Details

The webinar will be run in an Adobe Connect room with a slide presentation along with a dial-in conference bridge for audio. The session will be conducted in English."

https://www.icann.org/en/news/announcements/announcement-23jan14-en.htm

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Hacked, Domains at GoDaddy Lost, Twitter Handle Lost

Quite a story at the link below -- guy gets hacked, loses his domains at godaddy and hacker tells him later not to use godaddy but NameCheap or eNom (as they are more secure) --

How I Lost My $50,000 Twitter Username — Medium: Hacker: "I called paypal and used some very simple engineering tactics to obtain the last four of your card (avoid this by calling paypal and asking the agent to add a note to your account to not release any details via phone) - I called godaddy and told them I had lost the card but I remembered the last four, the agent then allowed me to try a range of numbers (00-09 in your case) I have not found a way to heighten godaddy account security, however if you’d like me to recommend a more secure registrar i recommend: NameCheap or eNom (not network solutions but enom.com)" (read more at link above)

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How one company made big money on the new gTLDs

Tucows Reports Financial Results for the Third Quarter of 2013 - Yahoo Finance: "Net income for the third quarter of 2013 was $2.6 million, or $0.06 per share, compared with $1.6 million, or $0.04 per share, for the third quarter of 2012. Net income for the third quarter of 2013 included the benefit of the previously announced confidential arrangements related to the Company's withdrawal of its applications under the ICANN New gTLD Program for .media and .marketing."
There was more than one way to profit from new gTLDs if you had the $185,000+ required to play!

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Global Internet Governance, Multistakeholderism, Multilateralism, Will ICANN be replaced?

Internet Society,"Institutionalization of Global Internet Governance, Multistakeholderism, Multilateralism and Beyond," Internet Governance, the multilateral model, ITU, WTO, WIPO . . .  

Will ICANN even be around in 2-3 years?

Giving away the ICANN might please a few; the Swiss, the Brazilians, and the usual faithful digital US allies such as the Swedish and British, but what about the Germans, the French and other Europeans, not to mention the Africans and Asians? (source infra)

Sacrificing the ICANN Will Not Be Enough for the US to Restore Its Internet Ethics | Jean-Christophe Nothias: " . . . By the way, what are the media telling us on this huge battle and challenge? They might buy the 'internationalization' of the ICANN as a good step forward (!?). Many among foreign governments might not go for it. The first Internet political war is going to last until we get a fair and open debate."

Indeed, some even in the US are starting to call for ICANN's replacement and successor!

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Oncoming Tide of Generic Top-Level Domain Name Disputes

New gTLDs and the coming nightmare: money quote below (full article embedded further below)

Handling the Oncoming Tide of Generic Top-Level Domain Name Disputes | JAMS, The Resolution Experts - JDSupra: "Even with these new mechanisms and procedures (for trademark protection), the gTLDs could be a trademark nightmare for some brands."

Domain Mondo wrote about this issue: Let's Get One Thing Straight, ICANN Doesn't Care About Your Trademarks




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Hiring a Trademark Lawyer, What to Ask

10 Things to Ask Before Hiring a Trademark Lawyer: Part 1 | Hodgson Legal - JDSupra

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Domain Availability

Domain Availability – What You Need to Know | Hodgson Legal - JDSupra

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Buying Domain Names Already Registered infographic

How to Buy a Domain Name That's Already Registered at WhoIsHostingThis.com:

Source: Who Is Hosting This.com

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Trademark Protections, Infringing domain names

Caveat Emptor domainers! Domain Names bought and used in a way that infringes on a trademark is a big "no, no." In addition, certain marks have broad protection, read the article below.



source: JDSupra

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ICANN Global Multistakeholder Meeting on the Future of Internet Governance, São Paulo, Conference Update

Where: São Paulo, Brazil
When: April 23rd and 24th 2014

The Global Multistakeholder Meeting on the Future of Internet Governance, São Paulo - Conference Update | ICANN: "The official website for the meeting will be launched on January 27th 2014. The website will enable the global community to provide contributions for the substantive agenda of the meeting, which consists of the following two specific topics: Internet governance principles; Roadmap for the further evolution of the Internet governance ecosystem. The roadmap should address the desirable properties for globally effective, legitimate and evolving governance frameworks. The roadmap should also encompass a path to evolve and globalize the current institutions and mechanisms, as well as address emerging needs."

The meeting will focus on crafting Internet governance principles and proposing a roadmap for the further evolution of the Internet governance ecosystem. The meeting will be live webcast enabling remote participation.* The meeting is a partnership between CGI.br and /1net. Meeting hashtag: #netmundial2014
"Based on the principles of multilateralism, transparency and democracy, CGI.br represents a multistakeholder Internet governance model with the effective participation of all society sectors in their decisions. One of its formulations are the 10 Principles for the Governance and Use of the Internet (http://www.cgi.br/principios). More information: http://www.cgi.br/ " (source: ICANN)

*/1net provides an inclusive and open platform to discuss Internet governance matters for all those interested (individuals, governments, civil society, academia, technicians, and business).
More information on how to participate here: http://1net.org/

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Fadi Chehade, ICANN, Internet Governance

Fadi Chehade - MIT ECIR 2014  - We have 18 months to find new governance for a single Internet - 
Fadi Chehade, ICANN, at MIT Cyber Security & the Governance Crisis: Complexity, Contention, Cooperation 2014 with Dave Vellante and Jeff Kelly - Published on Jan 7, 2014
@thecube
#mitecir

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Domain Names and Trademarks

source: Domain Names Are Not Trademarks | Hodgson Legal - JDSupra

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Trademark, Intent, Bad Faith, Domain Names, Abuse

When Intent Matters in Trademark Matters | Winthrop & Weinstine, P.A. - JDSupra: " . . . Permission to focus on intent is almost ubiquitous in trademark practice. The fruits of proving intent can be rewarding. When we seek to establish cybersquatting or compel the transfer of an offending domain name, bad faith intent to profit is required. And, proving that an adversary lacked a bona fide intent-to-use a trademark can achieve cancellation of the resulting registration. Invalidating an opponent’s trademark for abandonment calls for proof of non-use coupled with no intention to resume use in commerce and in the ordinary course of trade. . . .Imputing motives and intentions to people is a messy, dangerous, and emotional business, trademark types should honor the law’s permission to to explore proof of bad faith intent, but not abuse it." (read more at link above)

For examples of abuse -- go to Hall of Shame.

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What To Do If Your Domain Name is Hijacked

What To Do When Your Domain is Hijacked? | Hodgson Legal - JDSupra: " . . . . What should you do if there is no response from the owner? The remedy to recover an infringing domain is to file a Uniform Domain Dispute Resolution Proceeding (“UDRP’). For .com endings, the filings are before the National Arbitration Forum or the World Intellectual Property Association in Geneva, Switzerland (WIPO). The proceedings are in writing, and the cost is a fraction of a real lawsuit. In some cases, you may still be better off paying off the offender and getting back the domain. However, remember that an offer to sell you an infringing domain containing a trademark is evidence of bad faith if the demand is too high and you have to file a UDRP!" (read more at link above)

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gTLDs Legal Objections, ICANN just wants the money

New gTLDs? To ICANN it's all about the money! --

Lessons From New TLDs Legal Objections: Dictionary-Word Brand LRO Won't Block TL... | Bloomberg BNA: " . . . unless the rules change, ICANN lets the biggest wallet win and performs no qualitative analysis of competing bids or the overall effect on competition in situations where deep-pocketed parties like Google are an applicant,” Corwin said. Filing a legal rights objection against a TLD application for a string that is a dictionary term and has an open domain name registration model is a waste of time and resources, Brian J. Winterfeldt, Katten Muchin Rosenman LLP, Washington, D.C., told Bloomberg BNA. “Legal rights objections should be saved for cases where an unauthorized licensee or other business partner has applied for the owner's mark as a TLD or in other cases where the TLD application specifically states that it will be used for related goods and services,” Winterfeldt said."

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Startups, Domains, Quirky Names

A generic, category defining dot com domain name, while valuable, is a poor name for brand and trademark purposes (ask a trademark lawyer). And while the BIG LIE ("we are out of dot com names") continues to make the rounds, the truth is the supply of brandable names that one can "trademark" in a dot com is still very, very plentiful--

Why Startups Are Sporting Increasingly Quirky Names - WSJ.com: "Quirky names for startups first surfaced about 20 years ago in Silicon Valley, with the birth of search engines such as Yahoo—which stands for "Yet Another Hierarchical Officious Oracle," and Google, a misspelling of googol,” the almost unfathomably high number represented by a 1 followed by 100 zeroes. By the early 2000s, the trend had spread to startups outside the Valley, including the Vancouver-based photo-sharing site Flickr and New York-based blogging platform Tumblr, to name just two. The current crop of startups boasts even wackier spellings. The reason, they say, is that practically every new business—be it a popsicle maker or a furniture retailer—needs its own website. With about 252 million domain names currently registered across the Internet, the short, recognizable dot-com Web addresses, or URLs, have long been taken. The only practical solution, some entrepreneurs say, is to invent words, like Mibblio . . . " (read more at link above)

Editor's note: Actually the supply of 5-6 letter dot coms is still very, very plentiful!

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ICANN encourages fraud and scams with its new gTLDs

The biggest winner from the new gTLDs? ICANN--it will make millions! The biggest loser? The public.

Why you should prepare for the domain expansion plan | VentureBeat: "Note that ICANN stands to profit from the virgin Internet real estate — whoever gains control will sell licensing rights for the resulting new web addresses, with a portion of the revenues going to ICANN."

“These new domain names will make it easier for scammers and provide many more avenues to get payment information,” said Pieter Gunst, an Internet policy expert and lawyer. It’s not just consumers who will pay the price. “Online payment businesses will pay a high cost for fraud,” said Gunst, who is also the founder of LawGives, a startup that provides online legal services. For this reason, payments giant PayPal has sharply rebuked ICANN for the expansion — and issued a stern warning to consumers. After all, increased incidences of fraud would drive up the cost of payment processing. PayPal’s Information Risk Management officials Brad Hill and Bill Smith wrote a letter to ICANN in March: “The potential for malicious abuse is extraordinary, the incidental damage will be large even in the absence of malicious intent, and such services will become immediate targets of attack as they inadvertently collect high-value credentials and private data from potentially millions of systems.” Read more at http://venturebeat.com/2013/07/16/why-you-should-prepare-for-the-domain-expansion-plan/#hcBOLbItJlXyKBDh.99

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Name Collisions, more ICANN chaos and confusion

After disregarding the advice of everyone from reputable business associations to governmental organizations, ICANN plunged ahead with its misguided new gTLDs program. Then it realized it had serious problems with its new gTLDs (see below). This is just the tip of the iceberg, so get used to more chaos, litigation, economic loss, frauds, theft, and instability of the Domain Name System --  Addressing the Consequences of Name Collisions | ICANN. One thing for sure, ICANN no longer operates in the public interest, if it ever did. And remember that ICANN itself is one of the primary risks of anyone involved with domain names or the domain name industry in any capacity.

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