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Fairwinds: Time For UDRP Reform To Change Bad Faith Requirement From Registration Date To Renewals

November 11th, 2013 Comments off

Fairwinds Partners, which also heads up the Collation Against Domain Name Abuse (CADNA) has weighted in on the recent UDRP decision on Big5.com and whether the bad faith for a domain holder should be judged from only at the time the domain was first registered or acquired or each time the domain name was renewed on its blog today.

Domain investor Nat Cohen wrote an excellent analysis of the issue on  domainarts.com, last week and I highly recommend that all domain holders take the time not only to read the post but to understand the issue.

Why?

If you read Fairwinds post today, they are calling for UDRP reform but not to help domain holder, s but rather to make the test of bad faith one that is judged everytime the domain name is renewed.

In the Big5.com case the panel found the domain holder registered the domain is good faith which was years before the trademark was registered, however the domain holder’s renewal of the domain was found to be in bad faith and ordered the transfer of the domain name.

Fairwinds writes:

“”The panel looked at Par. 2 of the UDRP, which states that when domain name owners register or renew a domain they “represent and warrant” that it does not infringe on the legal rights of others, such as a brand owner. Relying on this paragraph, the panel concluded that, even if the domain was originally registered in good faith, “the elements of the Policy can be studied at the time of the registration or at the time of the renewal….”

“This satisfies the long-held desire of brand owners to use the UDRP to enforce their trademarks in situations where use of a domain has turned from good to bad. But it raises the question of what the drafters of the UDRP intended by also requiring proof that a domain “has been registered and is being used in bad faith.”

“If the Big5.com panel’s conclusions are applied in other cases, could its interpretation lead to odd situations where a domain can flip back-and-forth between good and bad faith depending on how it is being used at the time of its most recent renewal?”

Rather than letting Panelists settle these thorny issues, these inconsistencies should be a matter for those seeking to amend the language of the UDRP itself after a full and open debate (after all, the thing is almost 15 years old and could use some renovation!).

Categories: cadna, External Articles, udrp Tags:

CADNA Calls On Congress To Address Cybersquatting Issues in New gTLD Program & Under ACPA

October 15th, 2013 Comments off

The Coalition Against Domain Name Abuse (CADNA) in a press release today quoting Rep. Tom Marino, R-Pa said “Congress has an obligation to take a hard look at ICANN’s new generic top-level domain (gTLD) program”,

Marino is vice chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, which has investigated new generic top-level domains in the past (WID May 5/11 p1).

“I’m sure there will be hearings” to ensure Congress understands the expansion of the Internet and to ensure rights holders can protect their trademarks amid that expansion, he said.

“Educating Congress and the public on the issues on new gTLDs is critical, Marino said. “There are still many senior members in the House and Senate that simply rely on their staff concerning anything to do with computers or the Internet,”  “They have a rough time figuring out how to turn the computer on, let alone what the ramifications are.”

“He said members of the House and Senate Judiciary committees had a better understanding than most of the gTLD expansion and the corresponding concerns over trademark rights and over cybersquatting problems. ”

We have to make sure we have all the players at the table, we have all the information, and we do what is going to be most efficient and the most effective,” he said. “We’re determined to do this right,” even if it has to be done slowly, he said.

“The problem of cybersquatting is going to “explode by at least 2,500 percent,” when new gTLDs go live, said CADNA Director Josh Bourne.”

“CADNA will start a letter-writing campaign and continue to seek a sponsor for a revision to 1999′s Anticybersquatting Consumer Protection Act (ACPA), it said.”

“CADNA’s proposed revamp would establish stronger deterrence for all violators, including establishing liability against an affiliate, representative or other entity acting in concert with the registrant, including registrars and registries,”

“It would also amend the damages provision in ACPA to award damages of at least $25,000 per domain name targeted by cybersquatters.”

CADNA’s first goal for its “Know Your Net” campaign is to raise awareness about new gTLDs, as well as stories about the real impact of cybersquatting, said CADNA Communications Director Yvette Miller.

Interestingly CADNA which is led by Josh Bourne who is also one of the founders of Fairwind Partners a bradn protection company and also a representative for many .Brand new gTLD applications, they don’t seem to own the two natural domain names for this campaign.…

Categories: ACPA, cadna, External Articles, ICANN, Legal, new gTLDs Tags:

CADNA Calls On Congress To Address Cybersquatting Issues in New gTLD Program & Under ACPA

October 15th, 2013 Comments off

The Coalition Against Domain Name Abuse (CADNA) in a press release today quoting Rep. Tom Marino, R-Pa said “Congress has an obligation to take a hard look at ICANN’s new generic top-level domain (gTLD) program”,

Marino is vice chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, which has investigated new generic top-level domains in the past (WID May 5/11 p1).

“I’m sure there will be hearings” to ensure Congress understands the expansion of the Internet and to ensure rights holders can protect their trademarks amid that expansion, he said.

“Educating Congress and the public on the issues on new gTLDs is critical, Marino said. “There are still many senior members in the House and Senate that simply rely on their staff concerning anything to do with computers or the Internet,”  “They have a rough time figuring out how to turn the computer on, let alone what the ramifications are.”

“He said members of the House and Senate Judiciary committees had a better understanding than most of the gTLD expansion and the corresponding concerns over trademark rights and over cybersquatting problems. ”

We have to make sure we have all the players at the table, we have all the information, and we do what is going to be most efficient and the most effective,” he said. “We’re determined to do this right,” even if it has to be done slowly, he said.

“The problem of cybersquatting is going to “explode by at least 2,500 percent,” when new gTLDs go live, said CADNA Director Josh Bourne.”

“CADNA will start a letter-writing campaign and continue to seek a sponsor for a revision to 1999′s Anticybersquatting Consumer Protection Act (ACPA), it said.”

“CADNA’s proposed revamp would establish stronger deterrence for all violators, including establishing liability against an affiliate, representative or other entity acting in concert with the registrant, including registrars and registries,”

“It would also amend the damages provision in ACPA to award damages of at least $25,000 per domain name targeted by cybersquatters.”

CADNA’s first goal for its “Know Your Net” campaign is to raise awareness about new gTLDs, as well as stories about the real impact of cybersquatting, said CADNA Communications Director Yvette Miller.

Interestingly CADNA which is led by Josh Bourne who is also one of the founders of Fairwind Partners a bradn protection company and also a representative for many .Brand new gTLD applications, they don’t seem to own the two natural domain names for this campaign.…

Categories: ACPA, cadna, External Articles, ICANN, Legal, new gTLDs Tags:

CADNA Calls On Congress To Address Cybersquatting Issues in New gTLD Program & Under ACPA

October 15th, 2013 Comments off

The Coalition Against Domain Name Abuse (CADNA) in a press release today quoting Rep. Tom Marino, R-Pa said “Congress has an obligation to take a hard look at ICANN’s new generic top-level domain (gTLD) program”,

Marino is vice chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, which has investigated new generic top-level domains in the past (WID May 5/11 p1).

“I’m sure there will be hearings” to ensure Congress understands the expansion of the Internet and to ensure rights holders can protect their trademarks amid that expansion, he said.

“Educating Congress and the public on the issues on new gTLDs is critical, Marino said. “There are still many senior members in the House and Senate that simply rely on their staff concerning anything to do with computers or the Internet,”  “They have a rough time figuring out how to turn the computer on, let alone what the ramifications are.”

“He said members of the House and Senate Judiciary committees had a better understanding than most of the gTLD expansion and the corresponding concerns over trademark rights and over cybersquatting problems. ”

We have to make sure we have all the players at the table, we have all the information, and we do what is going to be most efficient and the most effective,” he said. “We’re determined to do this right,” even if it has to be done slowly, he said.

“The problem of cybersquatting is going to “explode by at least 2,500 percent,” when new gTLDs go live, said CADNA Director Josh Bourne.”

“CADNA will start a letter-writing campaign and continue to seek a sponsor for a revision to 1999′s Anticybersquatting Consumer Protection Act (ACPA), it said.”

“CADNA’s proposed revamp would establish stronger deterrence for all violators, including establishing liability against an affiliate, representative or other entity acting in concert with the registrant, including registrars and registries,”

“It would also amend the damages provision in ACPA to award damages of at least $25,000 per domain name targeted by cybersquatters.”

CADNA’s first goal for its “Know Your Net” campaign is to raise awareness about new gTLDs, as well as stories about the real impact of cybersquatting, said CADNA Communications Director Yvette Miller.

Interestingly CADNA which is led by Josh Bourne who is also one of the founders of Fairwind Partners a bradn protection company and also a representative for many .Brand new gTLD applications, they don’t seem to own the two natural domain names for this campaign.…

Categories: ACPA, cadna, External Articles, ICANN, Legal, new gTLDs Tags:

CADNA: Costs Of Defensive New gTLD Registrations To Be Double The Total Cost Of All .Com Registrations

September 21st, 2013 Comments off

As pointed out by the Phil Corwin of the Internet Commerce Association (ICA) The Coalition Against Domain Name Abuse (CADNA) has launched another offensive at the new gTLD program teaming up with the Council of Better Business Bureaus (BBB) to launch a month-long “‘Know Your Net’ gTLD public awareness campaign”

“Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants. If such a proposal was enacted it would vastly increase the litigation leverage of trademark owners and tilt the playing field against defendants in a manner that would result in a high probability of domain shutdown without any final verdict from a court. In short, it’s a SOPA-like proposal grounded in trademark rather than copyright.”

CADNA has claimed that defensive registration costs to brand holder will cost $2.4 Billion dollars

“If businesses register as aggressively [as they did at the .XXX adult content TLD] in all of the new ‘open’ gTLDs, they will be forced to spend almost $10 billion….“Domain name registrations in the new gTLDs likely will be lower than they where (sic) in .XXX. But even a quarter of the .XXX number of registrations would cost about $2.4 billion

The ICA counters that CADNA is basically claiming that the total cost of defensive domain name registration will be double the total cost of the cost of owning every .com and .net in the registry.

According to the most recent April 2013 VeriSign Domain Name Industry Brief there were 252 million registered domains at the end of 2012, of which about half (121 million) were in .Com or .Net. The average annual registration fee for a .Com or .Net domain is less than $10 – but let’s go high and assume that the average annual fee for all .com and .net’s are $10, they the total amount spent on all .com and .net registrations is around $1.2 Billion.

How can defensive registrations cost brand holders twice as much money as the total registration cost of the new .com and .net registry combined?

Of course there are a lot of other issues with the CADNA numbers.

To use .XXX as an example which had a retail registration fee of $100 and a had a high degree of defensive registrations due to the nature of the subject matter, we at TheDomains.com would expect only .sucks which is only one of 1,400 or so new gTLD strings to generate the amount of defensive registrations that .XXX saw.…

Categories: cadna, External Articles, ICA Tags:

CADNA Wants ACPA Amended To Increase Penalties & Cover PPC Providers & Parking Companies

April 11th, 2013 Comments off

The Collation Against Domain Abuse (CADNA) issued a paper last night calling for lawmaker to increase the penalties for Cybersquatters and to expand the parties that are held responsible for cybersquatting,  not only the domain holder,  but basically everyone  in the monetization food chain,  which would including parking and PPC companies presumable the upstream providers  including Google by amending the Anticybersquatting Consumer Protection Act (ACPA).

“With much of the nation’s, and therefore the Senate’s, focus on gun control and immigration reform, schedules are tight and visiting hours, short. ”

“But, given the economic, national security, and consumer protection implications of cybersquatting and intellectual property infringement, shrewd politicians are keenly aware of and supportive of strengthening the ACPA.”

“Cybersquatting is a serious issue in the current domain name space, and with the launch of new gTLDs, the opportunity for cybersquatting will only increase. “

“Josh Bourne (President of CADNA) described the first launches as “the chickens coming home to roost.”

“The cost of defensive registrations in total, he continued, will be – conservatively – $2 billion.

“That’s money companies won’t spend on jobs, expansion, or investment. Some companies will simply decide to throw up their hands and decline to defensively register, leaving themselves and consumers exposed to the cyber crooks.

“Bourne’s proposed solution: updating and strengthening the ACPA by:

1.  Increasing penalties against cybersquatting. 

Under current law, cybersquatters face statutory damages of between $1,000 and $100,000 per domain name. The courts have, however, generally awarded limited damages closer to $1,000 per domain name. For cybersquatters that monetize hundreds of thousands, or even millions, of Internet domain names through automated programs, this is not a lot of skin in the game. Cybersquatters know that, for brand owners, the cost of filing and pursuing legal action far exceed the potential damages the mark owner is likely to be awarded, and are therefore unlikely to use the ACPA as a weapon. Amping up the risks associated with cybersquatting by increasing the damages (and implementing a “loser pays” system for the associated legal fees) would make more bad actors opt out of the business.

2. Expanding the parties that are held responsible for cybersquatting.

“Certain parties profit from revenue-sharing arrangements with cybersquatting entities through Internet parking pages, pay-per-click advertising, and other monetization schemes.  ACPA should be expanded liability to cover those in active concert or participation with the registrant. This isn’t about pursuing third parties that act in good faith and support a safe and flourishing Internet – this is about discouraging third parties who purposefully shield bad actors and turn a profit because of it.”

Before anyone gets to excited about changers to the ACPA, I’m going to predict right now that if these changes would to become law and the upstream providers such as Google, Yahoo and Bing became liable for each “cyber-squatted domain name to a statutory amount, domain parking as we know it would come to end overnight, not just for TM infringing terms but for all generic terms as well.…

CADNA Reports: 27% of U.S. Congressional Members’ Domain Names Used in Identity Squatting: What A Bunch Of Crap

September 26th, 2012 Comments off

The Coalition Against Domain Name Abuse (CADNA) published a report today concluding that 27%  of congressional members’ domain names are used in identity squatting.

I don’t know what the difference is between cybersquatting and identity squatting other than trying to label the same conduct in a new fashion which makes it sound worse.

As In, Oh last year we had cybersquatting and now look we have identity squatting.

Anyway first to the report:

“Overall, CADNA found that members of Congress own only 31% of the domain names examined in this report.

“CADNA measured the extent to which identity squatting – the practice by which individuals register domain names, containing the names of famous persons, in bad faith – occurs among the most intuitive .COM and .ORG domain names related to the current 535 members of the U.S. Congress. ”

“These websites are typically used for campaigning and providing access to personal stories, since all members of Congress are allowed to use a .GOV domain as their official government site.”

“The 27 % of domain names that are owned by third parties can damage a politician’s reputation and cause confusion for Internet users,” CADNA President Josh Bourne explained. “Cybersquatting can be hugely detrimental for businesses, resulting in lost sales, fewer impressions, and tainted reputations, and identity squatting can prove similarly costly for members of Congress, whose reputations can suffer because of misinformation and confusion among constituents.”

“We looked at six domain names corresponding to each member of the U.S. House of Representatives and the Senate, a total of 3,210 domains, and analyzed the results.

Key Findings:

  • On average, all members of Congress only own 1.86 of the six domain names examined in this report, and a surprising 95 (22 Senators and 73 Representatives) do not own a single one.
  • Only 15 members of Congress, two senators and 13 representatives, own all six of the domain names that we examined in this report.
  • 49 percent of senators and 57 percent of representatives own their FullName.com domain names; 29 percent of senators and 29 percent of representatives own their FullName.org domain names.
  • 49 percent of senators’ FullName.com domain names and 64 percent of their FullName.org domain names are owned by third parties.
  • 39 percent of representatives’ FullName.com domain names and 32 percent their FullName.org domain names are owned by third parties.
  • 65 percent of senators’ FullNameForSenate.com and 71 percent of their FullNameForSenate.org domains are available.
Categories: cadna, Domains, External Articles Tags:

Fairwinds Partners Leader of CADNA Hires CEO

September 10th, 2012 Comments off

FairWinds Partners which leads the Collation Against Domain Name Abuse (CADNA) announced today that it has hired Nao Matsukata, as CEO.

Mr. Matsukata has “most recently served as the managing director for Six Trees Partners, working on global trade and regulatory issues in Asia and Europe for public and private sector clients”.

“Starting in 1995, Matsukata served as a senior policy adviser to Sen. Joe Lieberman, and continued through the 2000 presidential campaign. He also once served as U.S. Trade Representative Robert Zoellick‘s director of policy planning and was a senior policy adviser at Alston & Bird, LLP.

“Matsukata, who tells the Alley that “the Internet is probably the next issue that is truly global in nature,” has a deep background on global issues. And that experience is particularly pertinent for the company’s main focus: domain name strategies.”

“It really gets into issues about Internet governance, and not just from a United States perspective but a global one,” he said. “A lot of our companies are global companies interested in protecting their brands beyond the United States.”

“When it comes to FairWinds’ legislative priorities, cyber-squatting tops the list, although Matsukata says he won’t be directly involved in many congressional issues. He will, however, work with the company in educating the public, including lawmakers.”

“From a public policy prospective, a lot of this stuff is new to policy makers,” he said. “We feel like there’s a role we can play in informing the public and government on what’s going on.”…

Categories: cadna, External Articles Tags:

CADNA Publishes Its Wish List For The New gTLD Program & Its A Long One

January 3rd, 2012 Comments off

The Coalition Against Domain Name Abuse (CADNA), issued a press release today of its “recommendations” for ICANN, the US Congress and the NTIA for the new gTLD program,  and its a pretty long wish list.

Here it is in full:

“”"”For ICANN:

The ICANN Board should determine and announce when the next round of new gTLD applications will occur. A major source of anxiety that businesses feel around the New gTLD Program stems from fear that if they do not acquire their own new gTLD in this first round, they will be put at a disadvantage relative to their competitors, in the event those competitors apply and gain a theoretical advantage from owning gTLDs, for an unknown period of time. Announcing the date of a second round would go far towards alleviating this anxiety.

To lessen the financial burden on trademark owners and improve consumer protection, ICANN should consider including a requirement in the Applicant Guidebook that all new gTLD registries that choose to sell second-level domains to registrants adopt a low-cost, one-time block for trademark owners to protect their trademarks in perpetuity.

ICANN should consider adopting a pricing structure where a single applicant applying for multiple gTLDs pays a reduced rate for the subsequent gTLD applications, provided that the applicant has trademarks for those applied-for strings predating 2008, and that those strings are exact matches of their registered marks. Many businesses that choose to apply for their own gTLD will likely also feel they need to apply for other gTLDs, either in other languages or scripts, or for other vital business units.

ICANN should allow non-profit organizations that want to apply for their organizations’ names as gTLDs to qualify to participate in the Applicant Support Program, as described by the Joint Applicant Support Working Group (JAS WG) to lessen the financial burden on non-profits.

For the U.S. Congress:

The U.S. Congress should take much-needed action to improve the Anti-Cybersquatting Consumer Protection Act (ACPA) in order to provide stronger deterrents against cybersquatting, both in existing gTLDs and any new ones that are created.

For the NTIA:

If ICANN is awarded the new IANA contract following its expiration in March 2012, its structure and policy development process should also be subject to an audit. To ensure that this is done, the contract should be renewed for a short period of time, perhaps only two years. During this time, there should be an evaluation of whether ICANN followed through on its commitments with regard to the gTLD process, and extension of the contract should be contingent on conducting internal reforms to improve governance and transparency.

In addition to presenting these suggestions at the meeting with Assistant Secretary Strickling, CADNA delivered the same suggestions in a letter to ICANN, which includes further details on each of these recommendations.”"”

CADNA hopes that its recommendations are as well received by ICANN as they were during the meeting with the NTIA, and looks forward to working with ICANN to implement the suggested changes.

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From House Hearing: CADNA “There Are Probably Tens of Millions of Cybersquatting Domains” in .Com

December 14th, 2011 Comments off

At The House Energy and Commerce Committee’s hearing on new gTLDs Josh Bourne President of CADNA’s testified:

“”The U.S Congress should take much-needed action to improve the language of the Anti- Cybersquatting Consumer Protection Act (ACPA), so that it provides proper deterrents against cybersquatting.”"

“”Cybersquatting to the left of the dot is already a massive problem; with approximately 200 million domain name registrations concentrated mainly in .COM there already exist millions of brand-infringing domains. We know it is unlikely that the new gTLDs will garner this volume of cybersquatting, but that doesn’t mean they won’t have a significant impact. In reality what we need is an immediate update to U.S. law and a process that not only curbs and deters
cybersquatting in the existing TLDs, but any new ones that are created.”

“At this point, CADNA’s best guess is that there could be around 800 applications in early 2012 during the three-month application period. Of those estimated 800 applications, what CADNA has also come to realize is that likely two-thirds to three-quarters of applications could come from
strategic enterprises that will choose to run their registries in a “closed” way, for their own internal marketing uses and will not make second-level domain names available to registrants.”

“That leaves about 200 to 300 applicants representing communities or acting as entrepreneurs pursuing mainly geographic and generic gTLD strings that will likely be “open” in the sense that they sell second-level domains to registrants, some of whom will be cybersquatters.”

“”Cybersquatting to the right of the dot is very unlikely to occur,  this is a complex application, it’s an expensive process, the planned evaluation appears to be rigorous, and the objection process would certainly allow the owner of a trademark to prevent a party without rights from receiving a contract from ICANN.”

“”Therefore, the after-the-dot concerns for companies with very unique and strong trademarks are mainly related to competition. Will I be at a disadvantage? If I don’t apply and new gTLDs become popular, will my current URLs look out of date?”"

In response to a question from Subcommittee Chairman Walden, Bourne just stated that “there are probably tens of millions of cybersquatting domains in .com”,  and that CADNA was discussing revisions to the ACPA with Judiciary Committee staff.

Of course with a little of 100 Million .com registrations to say there are “tens of millions” of Cybersquatted domain names, its obvious that CADNA definition of a cyber sqautted domain is MUCH broader than current law.

This testimony  clearly indicate that CADNA may make a huge push next year for Congress to amend the ACPA with a much broader definition.

As we have noted for years, almost every dictionary word is trademarked, so is every term, phrase, expression, as well as every two and three letter combination.

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Categories: cadna, External Articles, ICANN Tags: