Short Domain Names Threatened by Proposed Policy on IGO Dispute Resolution Procedure


ICANN staff has published a rough draft on dispute resolution procedures for IGO (intergovernmental organization) domain names. This proposal has serious flaws and should be rejected by the community, as it lacks the balance and protection of registrant rights present in the existing system. UDRP.

Initially, the proposed policy would apply to new top-level domains (TLDs), but through a policy development process (PDP), it could be extended to existing TLDs.

Under the Current UDRP the rules state that:

4. a. Applicable Disputes. You are required to submit to a mandatory administrative procedure in the event that a third party (a “complainant”) asserts to the Service Provider concerned, in accordance with the Rules of Procedure, that

(i) your domain name is the same or similar to a trademark or service mark in which the Complainant has rights; and

(ii) you have no right or legitimate interest in the domain name; and

(iii) your domain name has been registered and is used in bad faith.

In the administrative procedure, the plaintiff must prove that each of these three elements are present.

I underlined the words “and” and “each” above. Contrast this with the language used in the draft report for IGO dispute resolutions:

“4. a. Applicable Disputes. You are required to submit to a mandatory administrative procedure in the event that an International Intergovernmental Organization (IGO) (a “complainant”) asserts to the Service Provider concerned, in accordance with the Rules of Procedure, that

(i) registration or use, as a domain name, of the name or complainant’s abbreviation which has been communicated under Article 6ter of the Paris Convention is of a nature:

(a) to suggest to the public that a connection exists between the Registrant and the Complainant; or

(b) mislead the public as to the existence of a relationship between the Registrant and the Complainant; or

(ii) on the grounds that the registration or use, as a domain name, of a name or complainant’s abbreviation protected by an international treaty violates the terms of that treaty.

In the administrative procedure, the plaintiff must prove that any of (i)(a) or {i)(b) or (ii) – is present.”

Note that in the proposed policy, the domain registrant (respondent) has much weaker protection compared to the UDRP because the complainant only has to prove a Single the element is present. If we are in favor of registrants’ rights, then this proposal is clearly absurd, especially for registrants of short domains (2 to 5 characters) who may bump into IGO acronyms at random.

Under this draft policy, the existing registrant would not even be able to argue that the domain name was registered in good faith or that it made a legitimate use of its own that has no relation to that of the complainant. The existing domain name holder may even have its own trademark (eg AOL, which has the abbreviation AOL.com as well as AIM.com), but this cannot be used as an affirmative defense. Under the UDRP, a complainant would have to prove that a domain was “registered and used in bad faith”, but element 4.(ii) of the proposed policy is much less balanced, theoretically only allowing the complaint to succeed on the basis that a complainant’s abbreviation is identical to that of the domain name checked in. This is a recipe for mass hijacking of reverse domain names of short domain names by IGOs. Many businesses, individuals, law firms, nonprofits, and others legitimately own short domain names that have nothing to do with IGOs, but those domain names would potentially be at risk under this policy. proposed, especially if extended to existing TLDs like . com or .org.

To choose a few random examples from a list of IGOs (another problem is that there is no authoritative list of ALL IGOs!), the Economic Commission for Europe has the abbreviation “ECE” – if the policy was adopted for .com via a PDP, what would be the defense of ECE Projektmanagement GmbH & Co., who owns the domain name ECE.com? The draft policy would not allow them to claim that they have a legitimate use of the domain name (to reflect their own company name since 1965!), as permitted by the UDRP. The draft policy would not allow the current owner to demonstrate that he registered the domain name in good faith and that he is using it in good faith for activities totally unrelated to the Economic Commission for Europe. Likewise, what would be the defense of Independent Film Channel, owner of IFC.com, to make it easier for regular visitors to visit its website and to reflect its own identity against a theoretical complaint by the International Finance Corporation (an IGO that part of the World Bank Group)? Would ICO Global Communications, a satellite company, be able to fend off any reverse hijacking attempt by the International Coffee Organization that might covet its ICO.com domain name?

The impetus for the creation of this policy was jurisdictional, namely that IGOs ​​do not want to face the jurisdiction of a national court, as they would under the existing UDRP. This is “delivered” in spades by the proposed policy, as the only appeal process (4.i, “Availability of Arbitration Proceedings”) is international arbitration. Declarant’s Courts (or Registrar’s Courts) are no longer an option. It should be a frightening proposition for any registrant that their domain name could be essentially expropriated with extremely limited rights to due process by international agencies. A registrant in the United States, Canada, Mexico, or any other country could not appeal a wrong decision to their courts, according to their own laws.

The IGOs ​​already have their own gTLD, .int, but it seems they want an even bigger “land grab” if this draft policy is adopted.

In conclusion, this draft policy is very poorly drafted (unless you are a greedy IGO) and threatens to allow mass hijacking of short domain names, with limited recourse. I propose at a minimum that the draft policy be amended to require the complainant to prove bad faith registration AND use of the domain name, such as the UDRP, and to allow the defendant to create an affirmative defense that it has its own rights or legitimate interests in the domain name. This would balance the policy and limit the possibility of reverse domain name hijacking. With the use of appropriate Sunrise procedures for new TLDs, the need for a specific policy for IGOs ​​is reduced.

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