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Updated: 2017-06-25T03:39:00-08:00


What to Expect at ICANN 59, Johannesburg


I'm excited! Not because of the 30 hours that it will take me to get to Johannesburg, but because this ICANN meeting will be the second time we've put the Meeting B Policy Forum to the test. If the second time is a charm then hopefully we'll have cemented the Policy Forum into the ICANN meeting structure, and we can start a conversation about having two Policy Forums each year and one AGM meeting. From a Generic Names Supporting Organization (GNSO) perspective, this meeting is great opportunity to get involved in a number of policy activities by attending PDP WG sessions on the following: New Generic Top Level Domain Subsequent Procedures (Sub Pro PDP WG) Next-Generation Registration Directory Service to Replace WHOIS (RDS PDP WG) Review of All Rights Protection Mechanisms in all Generic Top Level Domains (RPMs PDP WG) International Governmental Organisation-International Non-Governmental Organisation Access to Curative Rights Protection Mechanisms (Curative Rights PDP WG) The Sub Pro WG has its hopes set on finding a path forward on the protection of geographic names in the context of future new gTLD rounds. A professional moderator has been engaged to assist with the task. Four and a half hours has been allotted on the schedule for this discussion and to answer your question — yes four and half hours is probably not enough time. Kudos to the PDP WG Leadership Team of Jeff and Avri and their ICANN support team for getting this one top billing. The RDS PDP WG has ballooned in size in recent months as special interest groups mobilise to have their voices heard, but I understand the WG is in good hands and the train is still on the tracks. This WG would like to get your views on a number of issues they have been discussing during a cross-community discussion session on Monday afternoon. The RPM WG is currently discussing the sunrise and claims processes that were developed for new gTLD registry operators that were established as part of the 2012 new gTLD program. The Curative Rights PDP WG is expected to reveal its likely Final Report recommendations during the meeting. No doubt there will be a lot of interest from the community, given the considerable number of comments submitted on the draft recommendations posted for public comment prior to Copenhagen. Other topics of interest include a moderated panel discussion that will explore the impact of the General Data Protection Regulation (GDPR) on the domain name industry and its users; the project that ICANN's CEO describes as 'hubbabubba' will get an airing; and who sets ICANN's priorities could be interesting. The opening ceremony will be a low key affair, but it will include a presentation of this year's Multistakeholder Ethos Award recipient. As a privileged member of the Selection Panel, I can only say that our community is blessed to have so many hard-working and valued contributors who are worthy of this award — it's just a shame we can't recognize them all with this Award. Written by Donna Austin, Policy & Industry Affairs Manager at NeustarFollow CircleID on TwitterMore under: Domain Names, ICANN, Policy & Regulation, Privacy, Top-Level Domains [...]

How to Dispute a Third-Level 'Country-Code' .com Domain Name (Such as


Shortly after I recently wrote about WIPO's new role as a domain name dispute provider for the .eu ccTLD, the Forum published its first decision on another type of "eu" domain name: The decision involved the domain name What makes this case interesting is that it represents one of the few .com domain name disputes that includes a country-code in the second-level portion of the domain name. To be clear, the .com top-level domain is subject to the UDRP — which means that domain names in the second level (such as "example" in can be disputed under the UDRP. But, historically, third-level .com domains (such as "three" in have been considered outside the scope of the UDRP. CentralNic Dispute Resolution Policy Despite this, the registrants of a handful of second-level domain names that correspond to country codes have adopted domain name dispute policies for third-level domain names. Most of these second-level domain names are controlled by CentralNic, a registry operator: Third-level domain names registered within these second-level domains are subject to the CentralNic Dispute Resolution Policy ("CDRP"). In addition, the operator of the domain name has adopted the UDRP for third-level domain names. CDRP v. UDRP The CDRP is very similar, but not identical, to the UDRP. Here are a few key differences: The CDRP defines a "domain name" as "any domain name registered under a sub-domain provided by CentralNic," while the UDRP applies to second-level domains within those top-level domains that have adopted the UDRP (such as .com, .net, .org and all of the new gTLDS). The CDRP requires a trademark owner to participate in a 10-day free CentralNic mediation process before filing a CDRP complaint. The UDRP contains no such mediation process. The third element of the CDRP requires only that a trademark owner prove that the domain name "should be considered as having been registered or being used in bad faith" (emphasis added), but the UDRP requires a trademark owner to prove both registration and use in bad faith. The Forum (formerly the National Arbitration Forum) is the only CDRP-approved dispute resolution provider and has handled about a dozen CDRP cases since 2015. But the case was the first one involving the "eu" second-level domain. The Decision The panel in the case apparently found the dispute straightforward, writing that "Complainant's NIKE trademark is well-known and registered in many countries throughout the world" and noting that "Respondent uses the domain name to perpetrate a phishing scheme whereby website visitors, who may also be Complainant's customers, are deceived into revealing proprietary personal data such as email addresses and account passwords." As a result, the panel ordered the domain name transferred to Nike, Inc. A Reminder for Trademark Owners While there's nothing novel in the decision, the case is an important reminder that some third-level domain names within .com (and also .net and .org — as the list above shows) are subject to a very useful dispute policy. Trademark owners should consider these policies if a dispute arises. Written by Doug Isenberg, Attorney & Founder of The GigaLaw FirmFollow CircleID on TwitterMore under: Cybersquatting, Domain Names, Top-Level Domains, UDRP [...]

Three Reasons Why Broadband Is So Unreliable


We all take the predictability and reliability of other utilities for granted. So why is broadband such a frustrating exception? Why do our Skype calls fail mid-way? What makes Netflix buffer like crazy? How come our gaming sessions are so laggy? No real experience intention Imagine if the design of your electrical supply was optimised to apply the biggest possible voltage and current to anything that was plugged in. That would clearly be ridiculous! Imagine if the design of your kitchen tap was optimised to deliver as much water as possible at the highest possible pressure the moment you turned it on. That would clearly be ridiculous! Imagine if the design of your gas cooker was optimised to burn everything to a crisp as fast as possible in a white hot inferno. That would clearly be ridiculous! So, why have we optimised broadband to deliver as much bandwidth as possible? That's clearly ridiculous! In order to work, applications need enough packets to arrive "fresh" enough. In other words, they are sensitive to quality, and need a sufficient quantity of good enough quality. Instead, we've aimed to deliver a maximum quantity with an undefined quality. This is disconnected from what the user values, unlike all the other utilities. There is no specific experience intention, merely a "you get what you get". Missing engineering specification With a domestic AC power supply, we primarily define its quality through having a stable voltage and frequency. With gas we have a regulated composition and energy content. With water, it has to be potable and delivered under sufficient pressure. So what's the specification for the quality of broadband? It is, and please don't laugh too hard, purely accidental. Yup, the quality of all current ISPs is an emergent property of random processes. Whilst it may be a stable and managed property, it is (unlike all those other utilities) not engineered to a specification with a known safety margin. The quality of your broadband can and will suddenly shift (under load) in ways your ISP has effectively no control over. Some genius came up with the PR term of "best effort" to describe "out of control" and "not engineered". Inappropriate operational mechanisms With power, gas and water we understand that there are switches, valves and taps to regulate flow. With networks we have buffers. And we've chosen the wrong kind. Absolutely everywhere. Honest! In every network you are likely to encounter, the default policy is to send as many packets as quickly as possible. After all, we wouldn't want any expensive data link to become sinfully idle, would we? We want a network that is busy, busy, busy! Regrettably, this is a really dumb thing to do. Other industries figured this out decades ago with their 'lean' revolutions. More work in progress and busyness is not the same as delivering value. What is happening is that we are sending packets into networks faster than downstream data links can process them. The excess "work" we do can only have one effect: those packets get in the way of other data being delivered, without creating any value. So we have optimised our networks for instability and overload, not for smooth flow of packets within the inherent limits of the system. This architecture error (called "work conservation") is ubiquitous. The core (and mistaken) industry belief that the job of the network is to create as much "bandwidth" as possible by delivering as many packets as fast as possible. It doesn't matter whether it is cable, cellular, DSL, fibre or any other bearer: everyone is selling on bandwidth with unpredictable quality. This is not the same as delivering a predictable user experience. Whoever first switches to an outcome-centric and engineered performance model may well revolutionise the broadband industry. Written by Martin Geddes, Founder, Martin Geddes Consulting LtdFollow CircleID on TwitterMore under: Access Providers, Broadband [...]

Cloud Computing and Digital Divide 2.0


Internet connectivity is the great enabler of the 21st century global economy. Studies worldwide unequivocally link increases in Internet penetration rates and expansion of Internet infrastructure to improved education, employment rates, and overall GDP development. Over the next decade, the Internet will reinvent itself yet again in ways we can only imagine today, and cloud computing will be the primary operating platform of this revolution. But not for everyone. Worldwide, the estimated Internet penetration rate ranges between 44% and 50%, much of which is through less productive mobile devices than desktop workstations. Overall, Internet penetration rates in developed countries stand at over twice that of underdeveloped economies. For many, high-quality Internet services are simply cost-prohibitive. Low-quality infrastructure and devices, unreliable connectivity, and low data rates relegate millions to a global online underclass that lack the resources and skills necessary to more fully participate in the global economy. First recognized as early as the 1990s, these persistent quantitative inequities in overall availability, usability, etc., demarcate a world of Internet "haves" and "have not's" known commonly as the "Digital Divide". In the decade to come, cloud computing and computational capacity and storage as a service will transform the global economy in ways more substantial than the initial Internet revolution. Public data will become its own public resource that will drive smart cities, improve business processes, and enable innovation across multiple sectors. As the instrumented, data-driven world gathers momentum, well-postured economies will begin to make qualitative leaps ahead of others, creating an even greater chasm between the haves and have not's that we will call Digital Divide 2.0. At one end of the chasm are modern information-driven economies that will exploit the foundational technologies of the initial Internet revolution to propel their economies forward as never before. In particular, cloud technologies will unleash new capabilities to innovate, collaborate and manage complex data sets that will facilitate start-ups, create new jobs, and improve public governance. Meanwhile, many in the developing world will continue to struggle with the quantitative inequities of the first Digital Divide. Developing economies will very likely continue to make some progress; however, their inability to rapidly bridge the Internet capacity gap will inhibit them from fully participating in the emerging, instrumented economies of the developed world. Failing to keep pace, these economies will continue to face the perennial problems of lack of investment, lack of transparency within public institutions, and a persistent departure of talent to more developed economies. In the early 1990s, there was much sloganeering — and some real public policy—in the United States regarding the development of "information superhighways" that would connect schools and libraries nationwide. Information sharing across educational institutions provided the critical mass for launching today's emerging information economy. However, implementation was uneven, and since that time there remain winners and losers, both nationally and globally. As cloud computing emerges as the principal operating platform for the next-generation information economy, we are again challenged by many of the same questions from two decades ago: who will benefit most from the upcoming revolution? Will progress be limited solely to wealthy urban and suburban centers, already hard-wired with the necessary high-capacity infrastructure, and flush with raw, university-educated talent? Will poorer and rural economies be left to fall that much further behind? Not necessarily. Industry experts and economists worldwide broadly recognize the tremendous latent economic value of cloud. Clever public-private partnerships in cloud adoption are reinvigorating and trans[...]

Trump's Cuba Policy and Its Impact on the Cuban Internet


President Trump showing a signed executive order on Cuba policy, Fri, 16 Jun 2017 in MiamiOverall, I don't see anything in Trump's policy that will directly impact the Cuban Internet, but it will have an indirect impact by delaying the eventual rapprochement between the US and Cuba. On June 12th, I speculated on Trump's forthcoming Cuba policy and its impact on the Internet. He outlined his policy in a June 16th speech (transcript) and the Treasury Department published a FAQ on forthcoming regulation changes. It looks like my (safe) predictions were accurate. I predicted he would attack President Obama, brag about what he had done, make relatively minor changes that would not upset businesses like cruise lines, airlines, and telecommunication and hotel companies. I also said he would criticize Cuban human rights, while hypocritically ignoring the issue in other countries. For example, he slammed President Obama and bragged that "I am canceling the last administration's completely one-sided deal with Cuba." This does not come close to passing a fact-check. He said he was going to restrict people-to-people travel and stop people from doing business with companies owned by the Cuban Military, but that is far from canceling President Obama's "deal," which included little things like establishing diplomatic relations, reducing constraints on remittances, dropping the wet-foot, dry-foot policy, allowing US companies to do business with self-employed Cubans, allowing US companies to sell telecommunication equipment and services in Cuba, taking Cuba off the list of state-sponsors of terrorism, etc. You get the idea — he canceled none of this. His statements on Cuban human rights are either 100% hypocritical, or he has changed his mind since his speech in Saudi Arabia last month. At that time, he promised that "America will not seek to impose our way of life on others but to outstretch our hands in the spirit of cooperation and trust." If he really has changed his live-and-let-live human-rights policy, we can expect a spate of new sanctions, from Manila to Moscow. I had one surprise — his singling out hotels and other businesses operated by the military-run conglomerate, Grupo de Administración Empresarial S.A. (GAESA). Officials say existing hotel deals will not be effected, but the detailed regulations have not yet been released. This change will cut Cuban worker's jobs and GAESA's profit, but I guess the ban is good news for AirBnB and any future Trump hotel or resort in Cuba. How about changes affecting the Cuban Internet? I read the Fact Sheet on Cuba Policy, looking for changes that would affect the Internet, and did not find much. The first "key policy change" is "allowing American individuals and entities to develop economic ties to the private, small business sector in Cuba." Someone should let him know that President Obama made such changes some time ago, for example in allowing software imports from the private sector. In fact, someone should read him President Obama's 2009 Fact Sheet – Reaching out to the Cuban people. That document introduced many changes which enhance the ability of Cuban private, small businesses to "develop ties to the US," for example by authorizing "greater telecommunications links with Cuba to advance people-to-people interaction at no cost to the U.S. government." The fact sheet lists seven concrete telecommunication policy changes, none of which were "canceled" by Trump. He has canceled none of President Obama's changes to encourage private Cuban business and added nothing new himself. One change he did make is stopping "self-directed, individual travel" to Cuba. That will force would-be tourists to join fake groups and fake their travel reports or go to Aruba instead of Cuba, but it will not slow the deployment of Chinese telecommunication infrastructure. I hope Trump's policy will not undo the progress made by Google in establishing a r[...]

New Standard for Reverse Domain Name Hijacking


Uniform Domain-Name Dispute-Resolution Policy (UDRP) Rule 1 defines Reverse Domain Name Hijacking (RDNH) as "using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name" (further defined in Rule 15(c)). There has been a mixed history in granting and denying this remedy for overreaching rights. Some Panels consider RDNH regardless whether it has been requested (even if respondent defaults in responding to the complaint); others will only consider the issue if requested. There are also variant views on the burden of proof. Some panelists simply ignore the request even though dismissing the complaint. In Impossible BV v. Joel Runyon, Impossible Ventures, D2016-0506 (WIPO May 22, 2016) () the majority denied RDNH over the objection of the third-member: I am conscious that the Panel majority do not regard the issue of RDNH as being of any great relevance in the context of this dispute. I fundamentally disagree. The reasons for this fundamental disagreement (from one of the veteran panelists) are interesting and I'll come back to them further below. In the recently released WIPO Overview 3.0 the editors now acknowledge that "following some early cases to the contrary, panels have more recently clarified that, for an RDNH finding to be made, it is not necessary for a respondent to seek an RDNH finding or prove the presence of conduct constituting RDNH" (Paragraph 4.16). It would appear from this that the standard has tightened in favor of RDNH although there continue to be baffling examples, as noted by Andrew Allemann in Domain Name Wire: "I can't believe it's not RDNH:" referring to Entertainment Technology Investments, Inc. d/b/a Gloo, LLC v. Contact Privacy Inc. Customer 011945202 / K Blacklock, D2017-0606 (WIPO May 31, 2017). The surprise in this case of not finding RDNH is that the registration of predated the mark by many years. (The Panel didn't even bother to explain itself!) Granting standing to complainants whose trademarks were not distinctive at the time of the domain name registration is now been woven into the fabric, but it should be a de rigour finding that overreaching mark owners be slapped with sanctions. The one constant of marks not distinctive at the time of domain name registration is that by definition the registrations could not have been in bad faith regardless how subsequently they may have been used. There should be a rule (memorialized in the UDRP Rules or accepted by consensus) that complainants of this stripe be marked with an "A" (abusive) for commencing the proceeding. See also EBSCO Industries, Inc. v. WebMagic Staff / WebMagic Ventures, LLC., FA1703001722095 (. RDNH requested and granted); Platterz Inc. v. Andrew Melcher, FA1705001729887 (Forum June 19, 2017) (. RDNH requested and granted). The only reason for granting standing it to give complainants the opportunity to prove common law rights predating registration of the domain name. WIPO Overview 3.0 points out "NB, parties may be aware that unlike in the UDRP system, certain national courts may (where invoked) impose monetary penalties (including punitive damages) where the equivalent of RDNH is found" (Paragraph 4.16). While domain name holders have prevailed in district court in direct cases under the Anticybersquatting Consumer Protection Act (ACPA) up to now there have been no cases in which they have commenced an action for damages after winning RDNH. (There are cases in which domain holders lost in UDRPs and prevailed in ACPA actions). There is now a case in which a prevailing Respondent with RDNH in hand has filed an action under the ACPA for $75,000, CORPORACION EMPRESARIAL ALTRA S.L. v. Development Services, Telepathy, Inc., D2017-0178 (WIPO May 15, 2017) (). See here for copy of complaint and comment from Domain Name Wire). This cou[...]

Internet Governance for Sustainability


Sustainability is a difficult term to avoid these days. With that in mind, it's somewhat surprising that last week's European Dialogue on Internet Governance (EuroDIG), now in its tenth year, featured one of its first workshops looking at the subject. But while the workshop focused on issues of energy usage and e-waste, the concept of sustainability raises some much broader and likely difficult questions for the Internet governance community. The one thing that is abundantly clear after two days of workshops and sessions at EuroDIG is that "Internet governance" is hard to pin down — in one session you'll be talking social policies for employment, in another, international trade arrangements, another will delve into industrial and manufacturing policy, while in the next room you'll find a multistakeholder discussion on law enforcement practices. This is a natural reflection of the fact that the Internet has effectively infiltrated all spheres of human activity. But what then is Internet governance? Practically, these kinds of Internet governance events are about sharing and consolidating knowledge and information — everyone comes away better informed and more able to contribute in venues where policymaking actually takes place (whether it's national government, international standards organisations or elsewhere). But as participants share information across such diverse range of topics, we also see the emergence of a broader consensus on themes, approaches or priorities — not solid policy outcomes or even recommendations, but rather approaches for governance relating to the Internet. And sometimes it can be about changing dominant paradigms. When we think about the Internet, we think of growth. More than perhaps any other area of human activity, the Internet has been defined by growth, graph lines racing "up and to the right" as we marvel at the speed with which the Internet has developed, spread and transformed our societies. Internet governance has reflected this — one of the primary motivations for the initial World Summit on the Information Society (WSIS) discussions was that the Internet grows so quickly and dynamically that new processes and structures were needed for its governance. That growth is also an underlying premise of the Internet governance community's focus on "development", an effort to address the inescapable fact that despite the rate of growth, the benefits of Internet access have not been evenly spread. "IG4D" (Internet governance for development), prioritising efforts to steer growth and development towards under-served populations, has been one of IGF community's most important contributions to the global Internet governance discussion. Looking at Internet governance in this way, and reflecting on the EuroDIG session on e-waste, I wonder if it's time to consider a new paradigm, parallel, but separate to the idea of development: Internet governance for sustainability. At the mention of sustainability, people immediately think of issues like e-waste, Internet energy consumption and environmental impact. But an Internet governance sustainability paradigm could (and must) go beyond these relatively straightforward environmental concerns to larger questions of how we can ensure the continued viability of the Internet and its benefits, based on finite resources. In doing so, it would inevitably raise deeper questions about the limits of "growth" in the Internet context. Is our current approach to the Internet and its governance sustainable? A model that focuses on growth may not immediately appear unsustainable, but even based on the discussions at EuroDIG last week, I think there are some troubling indicators visible in the current trends. Consider just two: In discussions on the Internet of Things, many people have noted the problematic market dynamic whereby consumers demand (or applications require)[...]

Questions About Cuba's 3G Mobile Expansion


ETECSA, Cuba's telecom provider and sole operator of fixed telephony, mobile, and data in the country, is rolling out 3G mobile service in Havana and elsewhere in the country. Telegeography reports there are now 229 3G base stations in Cuba. Where and how extensive is the coverage? ETECSA says 3G coverage is available in all of Havana, provincial capitals and tourist resorts. AT&T says there is GSM/GPRS coverage for 85% of national territory. Here is a crowdsourced 3G coverage map of Cuba as of February 17, 2017: Strong signal: received signal strength indicator (RSSI) > -85dB, Weak: RSSI < -99dB Again, this is a crowd-sourced map, so it represents a lower bound on coverage, but it paints an unsurprising picture of 3G deployment — near a backbone and strongest in cities. Who has access to the 3G network and what can they access? Google Fi service was available earlier this year.Tourists and foreign business travelers have had expensive Internet access while roaming in Cuba for some time. For example, AT&T and T-Mobile charge $2 per megabyte. Recently Digicel recently announced much lower cost roaming on a "dedicated tourist-only 3G mobile network," which sounds like the network described by ETECSA above. They charge between 17 and 25 cents per megabyte, depending on the size of the prepaid order. The best deal of all was fleetingly offered by Google on their Fi mobile service. Earlier this year, users reported that Google was treating roaming data the same as domestic data — $10 per gigabyte. Unfortunately, that capability has been turned off, but it may be a hint of things to come. But which Cubans — other than Raúl Castro — have 3G access? I have been told that some people have 3G access because of their work, but have no confirmation of that. I've also been told that some hackers have been able to get 3G access, but, again, have no confirmation. Assuming that some Cubans have access to the 3G network, are they able to see the global Internet or are they restricted to services offered on the national network? (I bet Raúl has international access). How about speed? Source: Carpe DiemArmando Camacho ran a number of 3G speed tests in Havana (near the corner of Patrocinio and 10 de Octubre) and observed ping time to a server in Miami as ranging from 91 to 127 milliseconds, upload speed from .48 to 1.58 Mbps and download speed from .85 to 10.42 Mbps. He observed considerable speed variance, suggesting that others were sharing the same radio or backhaul resources. What is the interim plan for 3G access? Today the 3G network serves tourists, foreign business people, and perhaps some Cubans at work or in government. ETECSA may be planning to extend the service to subscribers as a much-needed supplement to their current public-access centers. I don't know what their plans are, but more 3G will require more fiber and microwave connectivity for backhaul. Only ETECSA knows what they are installing today. They may also be planning to extend 3G mobile to rural areas. In April, the Ministry of Agriculture announced plans to bring Internet connectivity and other computer services to rural areas beginning in Granma, Ciego de Ávila and Isla de la Juventud. Will 3G be part of this promised rural coverage? Again, backhaul would have to be provided. What is the long-run mobile plan? Regardless of the short-run, 3G technology is only an interim step. Since Cuba has so little legacy infrastructure, they are in a position to leapfrog today's 4G technology and plan for 5G mobile connectivity. If that is the case, they should be investing in fiber for backhaul in places that microwave can serve today — long, microwave "daisy chains" will not have the speed or capacity for a modern Internet in five or ten years. They should also be planning on fiber to the curb, building, and ho[...]

Trademark Owner Loses Two Domain Name Disputes - On Same Domain Name


I've said many times that winning a domain name dispute under the Uniform Rapid Suspension System (URS) is much more challenging than under the Uniform Domain Name Dispute Resolution Policy (UDRP). But, that doesn't mean trademark owners should take the UDRP for granted. One complainant learned that lesson an especially hard way — first by losing a URS determination and then by losing a UDRP decision on the same domain name. The complainant, Bloomberg Finance, is the owner of the well-known Bloomberg trademark and has significant experience in filing (and even winning) both UDRP and URS cases (about 170 of them) through the years. Many of the cases involve variations of its Bloomberg trademark, and, increasingly, the company has filed complaints involving new top-level domain names, such as, and But Bloomberg lost a URS determination for on March 15, 2017, and then a UDRP decision for on June 8, 2017. To be clear, there's nothing wrong with filing a UDRP complaint after filing a URS complaint on the same domain name. Indeed, the URS states that a "URS Determination shall not preclude any other remedies available to the appellant, such as UDRP (if appellant is the Complainant)." This rule makes it possible, as I've written before, for a trademark owner to use the URS as a sort of preliminary injunction, getting a domain name suspended quickly and then later transferred under the UDRP. Unfortunately for Bloomberg, however, neither the URS nor the UDRP was helpful for the domain name A review of the decisions raises questions about whether the domain name was really appropriate for a legal dispute and, if so, whether Bloomberg made its strongest possible arguments. What the URS and UDRP Decisions Said First, in the URS determination, the examiner wrote that Bloomberg's complaint was "devoid of any allegations or proof of facts tending to show, even prima facie, either that Respondent has no right to or legitimate interest in the domain name, or that the domain name was registered and is being used by Respondent in bad faith." As a result, the examiner refused to suspend the domain name. Undeterred, Bloomberg then filed a UDRP complaint for the same domain, apparently hoping that the UDRP's lower burden of proof (and perhaps the UDRP's more generous filing guidelines) would result in a better outcome. However, the UDRP panel found numerous faults in Bloomberg's case, calling an exhibit in the complaint on trademark rights "poorly presented" and containing "inadequate proof of registered trademark rights." But Bloomberg's fatal mistake was on the UDRP's "bad faith" element. Apparently, Bloomberg failed to learn any lessons from its URS loss, because the UDRP panel wrote that "an inference of likely bad faith use could here only rest on supposition." Although UDRP case files are not publicly available, this language from the decision would indicate that Bloomberg failed to present factual evidence or legal arguments as to why the panel should have found bad faith — and, the panel appropriately saw no need to go out of its way to make the complainant' arguments for it, noting that Bloomberg "is a common family name which might remain open to use in good faith by any number of traders." The UDRP panel concluded with some harsh words for Bloomberg: ...Complainant, having failed with its URS complaint, took nothing from the experience and again did not present argument concerning bad faith use in these proceedings. The Panel finds that Complainant has not met even the lower burden of proof of bad faith use under the UDRP. Lessons for Trademark Owners The cases hold some very important lessons for trademark owners in domain name disput[...]

Experience is Paramount at the 2017 ANGA COM


Right as May turned into June, we joined thousands of attendees at the latest edition of ANGA COM in Cologne, Germany. Over the course of three days, I had the opportunity to listen and gain insights on the challenges faced today in the industry. As we're already aware, data consumption and demand continue to march upwards. This is further evident by the sheer amount of FTTx-related vendors and solutions present at the show. Cable service providers can look at DOCSIS 3.1 or tilt their HFC towards FTTx. Regardless of what access network technology is in place, the bandwidth throughput will be ample for today's demands. However, due to the widespread adoption of disruptive services such as HDR OTT video, advanced gaming platforms, virtual reality consoles, and the Internet of things (IoT), the requirements and expectations for quality of service (QoS) and quality of experience (QoE) will continue to inch upwards. There is certainly an imperative to maintain subscriber satisfaction and mitigate churn rates. I noticed more attention being driven towards the customer network experience. Communication service providers (CSPs) need to perform to subscriber expectations to bridge content providers with their audiences (the subscribers). Many years ago, subscribers may have tolerated the occasional outage — Internet connectivity wasn't considered as vital as it is now. Today, a short interruption or quality downgrade will lead to subscribers scrambling to find their provider's toll-free number. High-fidelity media like 4K streaming is more vulnerable to interruptions on the network. Buffering can only achieve so much, especially when premium subscribers won't accept a lengthy "buffer" from the start. Allocating more funds and time into call centers and maintenance crews is not the ideal answer, it's a bandaid solution at the cost of revenue. Deploying systems that can actively monitor key performance indicators (KPIs) and provide the notifications necessary to proactively keep tabs on network performance puts CSPs one step closers. Many service providers already have such solutions in place — but it is also important to ensure that the right KPIs are being tracked and acted upon. Furthermore, a network analytics suite can help service providers understand subscriber usage patterns and network resource utilization, paving the way to congestion minimization and traffic management policy development. Properly implemented, service providers can also see CAPEX and OPEX benefits through well-informed decisions on the network. Device management has been the go-to, a standard answer for years — especially when it comes to WiFi quality in the premises. Devices that support diagnostic tests and return mission critical parameters can also give service reps better insight on the state of the network beyond the demarcation line. These solutions are just fundamentals towards an excellent customer network experience. The data and analytics produced can be used to feed an existing support or ticketing system, providing additional context that can assist customer service representatives. Whether it's knowing the ideal next steps to resolve issues or having better empathy of the situation, customer service representatives (CSRs) can be empowered to drive better support. On top of that, the combined effort of multiple analytics, reporting, and diagnostics will enable better prioritization of network maintenance and repair efforts. With DOCSIS 3.1 and FTTx, service providers already have good throughput options to address increased demand for data. For customer experiences, there are several subjective factors that make the answer not so clear cut. "Where Broadband Meets Content" was the slogan/motto for the ANGA COM exhibition and congress. Something needs to slot in th[...]

Building a Case for Cybersquatting Under the UDRP


A number of recent UDRP decisions remind trademark owners (and counsel) that cybersquatting cases have to be built from the ground up. Each stage has its evidentiary demands. The first two demand either/or proof; the third, the most demanding, requires proof of unified or conjunctive bad faith registration and bad faith use of the accused domain name. Priority, which intuitively would be thought a factor under the first stage (as it is under the ACPA) is actually a factor under the third stage. Entertainment Technology Investments, Inc. d/b/a Gloo, LLC v. Contact Privacy Inc. Customer 011945202, D2017-0606 (WIPO May31, 2017) (); Technologies Sensopia Inc. v. BLUE NOVA INC, FA1704001725217 (Forum June 9, 2017) (). For the third stage, any proof less than both is insufficient to establish infringement. Charles A. Saunders / Saunders Archery Company v. Lisa Katz / Domain Protection LLC., FA1704001727959 (Forum May 31, 2017) (&llt;>); Gabs S.r.l. v. DOMAIN ADMINISTRATOR — NAME ADMINISTRATION INC. (BVI), CAC 101331 (ADReu February 26, 2017) (). Among country code-anticybersquatting policies including the U.S.'s statutory scheme, the ACPA the UDRP's insistence on conjunctive bad faith is sui generis. Under these other policies, bad faith (or abusive registration) can be established with evidence of either registration or use (add "trafficking in" under the ACPA). But for the first two stages of the UDRP complainants succeed by offering either/or proof of standing — the domain name is either identical to a mark in which complainant has a right or it is confusingly similar (paragraph 4(a)(i) of the Policy) — or respondents have neither rights nor legitimate interests in the accused domain names (paragraph 4(a)(ii)) (respondents have the shifted burden of rebutting complainant's prima facie case by proving the either/or of rights or legitimate interests). I'm going to address only the first stage. It's a low bar to prove standing; not a no-bar. There's no magic in understanding the term "identical": if the characters of the SLD match the characters of the mark character for character, it is identical (all of the above domain names fit this description). If there's no perfect match, but there's some identity of characters, perhaps differently arranged or combining a dictionary word with the dominant element of the mark, then it's most likely to be confusingly similar. Open Society Institute v. Gil Citro, FA1007001333304 (Forum April 24, 2010) (OPEN SOCIETY INSTITUTE and ). The burden for proving standing is so low that Panels ordinarily find complainants satisfy the requirement, but this is not always the case. SportSoft Golf, Inc. v. Sites to Behold Ltd., FA 94976, (Nat. Arb. Forum July 27, 2000); Fabricators & Manufacturers Association, International v. Domain Administrator / Namefind, LLC, FA1704001728625 (Forum June 1, 2017) (disclosure: I was Respondent's counsel in this matter). There are SLDs that incorporate non-dominant elements of the mark, similarity alone is not sufficient to support standing. SportsSoft Golf is an early example of defining the boundary between similar and confusingly similar, similar but not confusingly so. In its decision, the Panel held that (consisting as it does of two generic words) was not confusingly similar to GOLF SOCIETY OF THE US. The former clearly references to the generic nature of a society interested in golf or the general body or community of golfers while the mark was specific to a particular geographic entity, the United States. The distinction between confusingly similar and similar but n0t confusing is further illuminated in B2BWorks, Inc. v. Venture Direct Worldwide, Inc., FA 9[...]

Speculation on Trump's Forthcoming Cuba Policy Speech and Its Impact on the Cuban Internet


Trump has a dilemma. He has to take some executive action that will allow him to ridicule President Obama and show that he is punishing Cuba for its human rights violations and the confiscation of businesses and property after the revolution, but not harm US telephone companies, hotel chains, airlines and cruise lines. Trump is expected to announce his Cuba policy next Friday in Miami. There can be little doubt that he will reverse some of President Obama's executive orders in order to brag to his base supporters and try to make the Cuban diaspora hardliners happy. He will say the President was weak and made a terrible "deal," which the world is ridiculing. He may even take yet another shot at Hillary Clinton. There are some things that I bet he does not say. He will not compare Cuban human rights with those of his friends in Turkey, the Philippines, Saudi Arabia, Russia, et al. and he will not mention that he is lending credence to the tired claim that the US is the Evil Empire that is responsible for Cuban economic problems. He probably won't note the unpopularity of his action in Latin America and I don't expect him to say much about the security implications of alienating Cuba at a time when Russia, China, and Iran are moving closer either. (Someone should tell him about the Cuban missile crisis). But, I can't imagine that he would do something major like break off diplomatic relations or do anything to harm the tourism and travel industries. That would hurt our economy, cost jobs and be unpopular with the general public which favors lifting the trade embargo. What about the Internet? By and large, the Cuban Internet is constrained by political/power considerations, tired political rhetoric and mistrust, the cost of infrastructure, the bureaucracy and economic interests of the ETECSA monopoly and Cuban government bureaucracy, not US policy. But, what Internet-related changes might Trump reverse? During his first hundred days, President Obama "reached out to the Cuban people” (emphasis added) by easing restrictions on remittances, family travel and gifts.[1] Increased remittances and gifts meant more Cuban people had laptops, tablets and smartphones to use in public access hotspots and access rooms as well as the money to pay for time online. Reversing these changes would deny ETECSA Internet-access revenue, but it would harm Cuban citizens with family abroad and give the government anti-US talking points. I will be surprised if Trump reverses these changes, but that does not mean he won't do it. At the same time, the president eased restrictions on telecommunications allowing: Phone companies to offer voice and data roaming People in the US to pay for Internet-access and other telecommunication bills for Cubans US Companies to establish fiber-optic cable and satellite links to Cuba Satellite Internet and TV companies to serve Cuban companies Companies to export personal communication equipment like mobile phones, computers and software and satellite receivers to Cuba Cutting roaming would hurt US tourism and telephone companies — it is hard to imagine Trump doing that. He might be willing prohibit Americans from buying phone and data minutes for Cubans — that would only hurt Cuban people and payment services like (an Irish company). While US companies have permission to sell communication equipment and infrastructure to Cuba, I am not aware of any significant sales. Since China has dominated the Cuban Internet infrastructure market, stopping infrastructure sales would have little or no immediate impact, but it could become significant next year when Miguel Díaz-Canel, who seems to be pro-Internet, replaces Raúl Castro. The FCC removed Cuba from their exclusion and revers[...]

A Diversity Success Story from the Apps for Ag Hackathon Competition


And the winner is... Deema Tamimi had one plan for the 2016 California Apps for Ag hackathon: get in and get out. She thought the weekend-long event would be a good opportunity to meet people, but she didn't feel ready to launch a new app, and so she planned on stealing away soon after the hackathon began. This, despite the very impressive resume she'd accrued and the fully-formed idea for a gardening-based app that had been brimming for half a year. But something magical can happen when so many engineers, experts, change-makers, and creatives converge at a hackathon. Tamimi felt a wave of inspiration. In five minutes, she prepared her slides for the pitch session and, with the power of a half year of visioning, presented a cogent idea for a gardening app that would reduce food waste, connect gardeners to experts, and provide hyper-local advice. After her presentation, industry experts including Gabe Youtsey, CIO at the UC Division of Agriculture and Natural Resources (UCANR) and Bobby Jones, Chief Data Officer at the USDA, offered questions that expanded the idea and her confidence. As she said, "I was in my element and I loved every minute of it." After the pitch, two engineers approached Tamimi and offered to help build the app. What followed was a 48-hour scramble where Tamimi, her husband Josh Livni, Scott Kirkland, and John Knoll worked together to create the app that ended up winning the hackathon competition. They walked away with a cash prize, office space and support from AgStart, legal advice from Royse Law Firm, and awards from the California State Fair. Best of all, their collaboration didn't end at the hackathon. The team has incorporated as a business and they've developed their app, called Giving Garden, for iOS and Android marketplaces that will be fully available by this summer. Hackathons building diversity in tech Tamimi has now become an evangelist for hackathons, and is working to bring more women and students to this year's Apps for Ag hackathon. She knows first-hand how powerful the experience can be to actualize your goals and gain support at a hackathon. Last year, she was the only woman to pitch an idea, which is why she felt compelled to do so. She says she "didn't want this hackathon to happen without a single woman getting up and saying something." Tech is an environment that is often unkind to women and people of color, and she believes that success and collaboration at a hackathon can provide the confidence that marginalized people need to keep going, despite discrimination. She's been reaching out to students at UC Davis, connecting with professors and student organizations, and spreading the word over social media. This is strategic: she wants to provide technology-minded students with a success that will bolster their career early on. This year's Apps for Ag hackathon The 2017 Apps for Ag hackathon is open to anyone who is interested in food innovation through technology. You don't need to be a programmer, you just have to be willing to collaborate with others. The hackathon is run by UCANR as part of their effort to increase innovation and entrepreneurship in food and agriculture. The hackathon takes place July 28-30, 2017. Organizers are still looking for a place to host the event in either Davis or Sacramento, California. Registration is open, and the early-bird pricing is available until June 15. Food is provided throughout the weekend, but participants must cover their own accommodation and/or transportation. The hackathon will start on a Friday and end in the late afternoon Sunday, with the final presentation at the California State Fair. This year, prizes include a top cash prize of $10,000, tickets to the UC Davis Food and Ag Ent[...]

The Future Internet I Want for Me, Myself and AI


Artificial Intelligence has the potential to bring immense opportunities, but it also poses challenges. Artificial intelligence (AI) is dominating the R&D agenda of the leading Internet industry. The Silicon Valley and other startup hubs are buzzing about artificial intelligence and the issue has come at the top of policymakers' agenda including the G20, the ITU, and the OECD, where leaders gathered this week in Paris. AI isn't new, but its recent acceleration can be explained by its convergence with big data and IoT, and the endless applications and services it allows. In the market, this translates into investments across all industries as stakeholders try to understand the potential of AI for their own businesses. For instance, at the beginning of the year, Ford motors announced a plan to invest $1 billion over the next five years in Argo AI, an artificial intelligence startup that is focused on developing autonomous vehicle technology. It's an indication that AI is a hot topic beyond the traditional ICT sector. How our community feels about AI There is a growing expectation on the part of many stakeholders that AI and machine learning will fundamentally reshape the future of the Internet and society around it. This is one of the trends we've observed in our own project about the Internet's Future, where AI, together with five other areas, have been identified as key "Drivers" of change in the coming 5 to 10 years. There is a sense that "we may be experiencing a new [technology] Renaissance." Indeed, in 10 years' time AI technologies may dominate all aspects of our day to day lives from driving to banking or even working. Yet, the uncertainties raised by our community about this technology in the context of the Internet are extensive. These include the potential loss of human agency and decision-making, lack of transparency in how algorithms make decisions, discrimination, the pace of technological change outstripping governance and policy, and ethical considerations. A number of participants raised concerns related to the impact on industry and employment — and therefore society — noting the consequences of automation-led change across industries and business practices, and the possible increase in inequalities and societal disruption. Will AI replace human labour? The discussions at the OECD this week revolved around a specific issue: Will AI replace human labour? What do humans do at work? They perceive their environment, learn, use language to communicate, plan and navigate tasks — all of them abilities that can be imitated to varying degrees by machines. Looking back at the history of AI, the concept was born when a group of visionary researchers, including Marvin Minsky and John McCarthy, gathered in the summer of 1956 at Dartmouth College to kick off the project to create computers programmed to act as humans. The risk — or opportunity — was embedded, although perhaps not consciously, in the group's objectives: replicating human intelligence. So, is it realistic that we could all be replaced by robots and algorithms? It depends who you ask and how you analyse the challenge. So far the estimated impact on job displacement has had a broad range: from 9-47%. From the OECD to the University of Oxford, the measuring techniques are quite different. The numbers are alarming and should be taken seriously, but they also do not tell the whole story. Shaping a future we can look forward to Fears are natural, but should be put into perspective. Lets think about how AI could improve human performance and lives. Deep learning has made tremendous progress in reasoning to the benefit of humans. See the example of [...]

June 8 Deadline for Survey on Recommendations for Future of the Internet


What do you think must be done to ensure the development of an open, trusted, accessible, and global Internet in the future?

As part of the Internet Society's "Internet Futures" project, we'd like your input on recommendations for Internet leaders and policy makers.

PLEASE TAKE OUR SURVEY by Thursday, June 8.

For more background, please read "Help Shape the Future of the Internet” by my colleague Constance Bommelaer, or browse through the Internet Futures pages.

Your help would be greatly appreciated. If you can take a few minutes to complete the survey, and also pass the link along to others, it will greatly help us build a solid set of recommendations for how to ensure the development of an open, trusted, global Internet accessible to everyone, everywhere.

Thank you!

Written by Dan York, Author and Speaker on Internet technologies - and on staff of Internet Society

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More under: Access Providers, Cybersecurity, Policy & Regulation, Privacy

Charting the Balance between Trademark Owners and Domain Name Holders: A Jurisprudential Overview


Efforts to combat cybersquatting began in earnest in 1998 when the World Intellectual Property Organization (WIPO) (at the request of the United States Government supported by all member states) began an extensive process of international consultations "to address cross-border trademark-abusive domain name registrations." I'm quoting from WIPO's newly released Third Edition of the Overview of WIPO Panel Views on Selected UDRP Questions: ("WIPO Jurisprudential Overview 3.0") (May 2017). The extensive process concluded in the Spring of 1999 with WIPO publishing a detailed report, The Management of Internet Names and Addresses: Intellectual Property Issues, Final Report of the World Intellectual Property Organization Internet Domain Name Process (April 30, 1999) (Final Report) followed in the Fall by the Internet Corporation for Assigned Names and Numbers (ICANN) adopting and implementing the Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP is a simple-worded, non-territorial, specialized forum for adjudicating claims of cybersquatting. It is conducted wholly online. It is not a trademark court. If there's any analogy with litigation, it is that the complaint should be treated as a motion for summary judgment. Whether there is cybersquatting depends on arbitrators (called Panels) applying core principles to the particular facts that have been brought to their attention. The record is paramount; silence (failure to make a case) is deadly. On UDRP's emergence, the meaning of its prescriptions/proscriptions meant only what could either be construed from its language or drawn from the consensus reflected in the Final Report. Thus, for example, in the very first decision in January 2000, the Panel construed Paragraph 4(a)(iii) of the Policy as requiring the complainant to prove respondent (that is the registrant of the domain name) both registered the domain name in bad faith and used it in bad faith. In 2009 the same panelist changed his mind. But it was already too late because the construction had hardened into the jurisprudence we now have. The consensus among panelists is that conjunctive bad faith was for the better. I tried to explain this in a recent essay, Core Principles of Domain Name Law). The conjunctive model was the oxygen needed to create a totally new market in domain names. (Oddly, the phrase "conjunctive bad faith" is not found in the Third Edition). What WIPO gives us in the Third Edition is a synthesis and restatement of Panel views on a limited number of issues. What should be understood is that the jurisprudence didn't come fully formed and it's not finished. It is the creative work of many panelists construing the simple commands of the Policy. The Third Edition calls itself a "Jurisprudential Overview" and weighs in at 155 pages. It significantly expands on the Second (2011) (26 pages) and First or Original (2005) (a mere 14 pages) editions. While it expressly "supersedes" it does not literally replace the Original and Second Editions; both remain available online.If I have complaints or express a preference for some language in the Second Edition or point out editorial decisions that I think should be rethought it is not in criticism because overall the Third Edition is a welcome addition to WIPO's palette of research tools. As the editors point out in the Introduction to the Third Edition, "the UDRP does not operate on a strict doctrine of binding precedent." Nevertheless, "it is important for the overall credibility of the UDRP system that filing parties can reasonably anticipate the result of their case." This tension is accommodated by a consensus that relies heavily on prece[...]

Landmark IPv6 Report Published: State of Deployment 2017


On the fifth anniversary of World IPv6 Launch, we're excited to share a detailed report on the State of IPv6 Deployment in 2017. It really is staggering how far IPv6 deployment has progressed in five years. In mid-2012, Google measured less than 1% of users accessing their services over IPv6. Today that figure is getting close to 20%. Since World IPv6 Launch, several major operators are now delivering the majority of traffic from major content sources like Google, Akamai and others over IPv6. Individual operators, like T-Mobile USA, have deployed IPv6-only networks for their subscribers. Six years ago, the Internet Society helped to organize World IPv6 Day, where thousands of ISPs and websites joined together for a successful, global-scale, 24-hour trial of IPv6. A year later, for World IPv6 Launch, major ISPs, home networking equipment manufacturers, and web companies around the world permanently enabled IPv6 for their products and services. How much progress have we made in the five years since World IPv6 Launch? All the details are included in our landmark report marking the launchiversary. While you download the report and check out our other IPv6 materials, here are the highlights: IPv6 has increased 3000% since the beginning of World IPv6 Launch five years ago. Deployment is occurring around the globe: Measurements show 37 countries exceed 5% of traffic is IPv6 to major content providers. Over 25% of the Alexa Top 1000 websites are reachable using IPv6. Some networks are now IPv6-only internally (e.g. JPNE, T-Mobile USA, SoftBank), and some major networks are now majority-IPv6 (e.g. RelianceJIO, Verizon Wireless, SkyBroadcasting, XS4ALL). Some organizations are in the process of turning off IPv4 within their networks and/or data centers to reduce network complexity and cost (e.g. T-Mobile, Facebook, LinkedIn). The Internet Society's core recommendations are to: (a) start now if you haven't already, (b) use established RFP requirements like RIPE-554: Requirements for IPv6 in ICT Equipment, and (c) take advantage of existing IPv6 deployment information including the Internet Society's Deploy360 Program. IPv6 use is set to continue growing for the rest of this year and beyond as more operators start and grow their deployments around the world, and new content and hosting providers enable IPv6 for their customers. As we mark this milestone in IPv6 deployment history with this new landmark report, we wish all our readers a Happy Launchiversary! This post was originally published on the Internet Society Tech Matters blog. Written by Mat Ford, Internet TechnologistFollow CircleID on TwitterMore under: IPv6, Networks [...]

Email Marketer's Dilemma: Disappearing Domains


On May 31, British broadband provider EE discontinued service for a number of email domains:,,,,,,,, and These domains were acquired by EE as part of multiple mergers and acquisitions. On their help page, EE explains that the proliferation of free email services with advanced functionality has led to a decrease in email usage at these domains. Last week, announced they were discontinuing email to a number of their free domains as of June 30, 2017:,,,,,,, and I'm not surprised to see these domains going away and I think we'll see more of it going forward. The reasons are pretty simple. Mail is not an easy service to run. Mail doesn't bring in a lot of money. Dedicated mailbox providers do a great job, and the addresses from them are portable. Mail is not an easy service Managing a mail server is not an easy task. There's so much to pay attention to and monitor to keep the network and users safe. Spammers are always changing tactics and modifying their methods. They work tirelessly to find ways to get their mail in front of people. Filters cannot be set and forgotten. Someone must manage and tweak them constantly. Sure, you can outsource it to commercial filters, but that's still a cost. It's not just spam filtering that requires expertise, it's also virus and malware filtering. Think about the botnets and worms affecting users recently. They're often infecting machines by way of email. But they use broadband networks to spread. Broadband providers, at least the responsible ones, have dedicated security teams to monitor infections, cut off infected users, and assist them in cleaning up and getting back online. All of these functions take money, which leads me to the second point. No one wants to pay for mail OK, maybe not NO one. But, in general, consumers won't pay extra for email service. It's a core feature, not an add-on. This means that broadband providers have to pay for spam and virus filtering out of general revenues. They can't add features and then bump rates. Consumers expect all the bells and whistles with their email accounts, and if it's not there, well, they'll go to Gmail. Which leads me to my third point. Free mail providers are driving innovation Mailbox providers, like Gmail and Microsoft, are driving innovation in the inbox. Both companies have announced new products over the last few years like Sweep, Tabs, and Focused inbox. They're also driving standards and innovation in the backend email space. Gmail has already started using ARC, they support TLS, and they have one of the most advanced spam filtering systems in the world. All of these factors are contributing to the decrease in mail usage at broadband providers. Even better, a free mail address isn't tied to your location. If you move out of your broadband provider's area, you can lose your email address. Freemail addresses are portable and stick with you forever. I've had one Hotmail address for over 20 years now, and the same username at Gmail since someone sent me one of the coveted invites to the Gmail beta test. Ironically, over the years there's been a push by marketers to find users real email address. The theory was that the free mail addresses weren't the addresses recipients really used, and so weren't as valuable as the real address. But that's not what happens. Many people use freemail addresses as their primary addre[...]

Does ICANN's UDRP Preserve Free Speech and Allow Room for Criticism?


The phenomenal growth of the Internet has resulted in a proliferation of domain names. The explosion of '.com' registrations coincided with an increase in domain name disputes, and with it the legal branch of intellectual property devolved into virtual mayhem. ICANN's Uniform Domain-Name Dispute-Resolution Policy (UDRP) was created to allow for trademark holders to challenge domain owners, bring the respondents into binding arbitration, and possibly gain control of the domain name in question. The UDRP was brought into force in October 1999, and it can be said that it has contributed handily to the resolution of domain name disputes. However, deeper investigation into the UDRP paints a different picture. The fair use of domain names relative to non-commercial negative or critical statements is the subject of many UDRP grievances. Nonetheless, panelists still express divergent views as to whether this constitutes 'fair use'. The evaluation of fair use hangs on the importance a panel attributes to the registrant's right to freedom of expression in each case. In some cases, free speech is not viewed as a legitimate right under the UDRP to register a domain that is 'indistinguishable' from a complainant's trademark for the purpose of criticism, even in the absence of commercial intent. An opposing view is also taken, where it is argued that non-commercial free speech is the justifiable fair use of a domain name to criticize a trademark owner. As such, a major complaint about the UDRP is that it is unconstitutional with respect to the protection of free speech. 'Sucks'-Type Cases A problematic feature of UDRP cases regarding free speech, and one that is linked to the 'WIPO Overview Majority View' is where 'sucks'-type domain names are deemed as confusingly similar to complainant trademarks. For example, in Walmart Stores, Inc. v Richard MacLeod, the panel explained that its decision to transfer to the complainant was based on its belief that "the phrase 'identical or confusingly similar' [is] greater than the sum of its parts". The panel also concluded that their process does not examine if "the domain name causes confusion as to source… but instead whether the mark and domain name, when directly compared, have confusing similarity". Taking into account that the respondent admitted that his original intention in registering the name was to sell it for profit, there was a strong argument for ruling in favor of the complainant based on the third element of the UDRP, which refers to a domain being used in bad faith. Moreover, the precedent established in Bally Total Fitness Holding Corp. v Faber should have been considered whereby it was held that the addition of "sucks" prevents any reasonable user from confusing that website with an official website. In Royal Bank of Scotland Group plc v Pedro Lopez, the domain name was registered by the respondent, along with some other domain names that included the complainant's mark. They all resolved to a site that incorporated criticisms of the complainant. Even though the domain name in question included 'sucks' after the mark, which could serve as a distinguishing factor, the panelist held that the use of a confusingly similar mark could not be determined as a legitimate non-commercial or fair use. Another example is Chubb Security Australia Pty Ltd v Mr. Shahim Tahmasebi, where the respondent (a former employee of the complainant) utilized the domain name for a website that detailed the complainant's poor employee rel[...]

Breaking the Mold: Reclassifying Over a Billion .XYZ Domains for Alternative Uses


Three years ago, my team and I launched .xyz with the mission of bringing competition, choice, and innovation on the internet. .xyz was probably the only domain extension that had no built-in meaning, included very few domains priced at a premium, and relied on low margins and high volume. We brought with it the message that .xyz was for every website, everywhere. And instead of targeting one vertical, we connected with the next generation of internet users, such as young adults, new businesses and startups, and people in emerging internet markets. Even before launch, we had introduced the concept of Generation XYZ, the online community we have now been fostering for years to connect people all over the world, regardless of their age, location, or interests. Today, the #GenXYZ community is made up of millions of business and individuals from over 230 countries, and .xyz is the most popular new domain in over 80 of them, according to nTLDstats. All in all, .xyz has been registered at over 180 registrars — more than any other gTLD. Adoption ranges from creative users, like Point in Passing's VJ tool,, and Dr. Adam's series; to industry leaders including MIT's startup accelerator,, and Deloitte's leadership communities, such as and Then there are the truly innovative registrants, like, who is launching their cancer treatment platform later this year, and Google's parent company, Alphabet, with one of the best domains on the internet: Thanks to our creative global marketing efforts and passionate customers, .xyz has received extensive media coverage from many of the most respected media outlets in the world. Whether it's the #XYZsquad getting on TV or receiving $17 million in funding, more and more people are learning that .xyz is the new go-to domain ending for their next project or venture. I have also had the pleasure of speaking on air with Maria Bartiromo on Fox Business News, Emily Chang on Bloomberg, and David Kestenbaum on NPR, among other stations, as well as with major publications like Wired and Reuters. The result of our relentless coverage led to XYZ's first ever award as a Techweek 100 Innovator, and my recognition as a Techweek 100 Ambassador in 2016. Rather than resting on our laurels, my team and I set out to come up with a new concept that would appeal to the audiences that have helped make .xyz what it is today. We wanted to continue to foster innovation and creativity, and I really worked hard to think of a way of utilizing the domain naming system (DNS) in a manner that had not yet been exploited. That's when I learned of a bulk registrant in China had created a currency using thousands of 6-digit numeric .xyz domains that started or ended with "88." The registrant had requested a price reduction on an ongoing basis to support the development and tradability of these domains, since $10 renewal and transfer fees were cost prohibitive for this alternative domain usage. As a dreamer, I started to wonder how many other registrants out there with equally interesting ideas who could utilize hundreds, thousands, or even millions of .xyz domain names, whether it be a digital currency, for the Internet of Things (IoT), or any other yet-to-be discovered purpose. This brought the opportunity for .xyz to create a solution for innovators and entrepreneurs by reclassifying 1.111 billion domains to just $0.65 per year wholesale ($0.99 recommended retail price) to create, renew, and [...]