News and Updates

Caribbean Peering Forum Brings Dream of Better Internet Closer

Domain industry news - Mon, 2018-07-02 23:34

The dream of a faster, safer, more affordable Internet in the Caribbean sometimes seems elusive. One group of Internet pioneers is taking steps to make it a reality.

The Caribbean Peering and Interconnection Forum, or simply CarPIF, is an annual event that brings together the people responsible for delivering Internet services to the region, including internet service providers, internet exchange point operators, content delivery networks, data centre managers and other computer network professionals.

"CarPIF provides a very important service to the local Internet community, as it the only regional forum where the diverse group responsible for building, managing and securing the Internet across the Caribbean come together to discuss how to improve internet services and maximise the value to businesses and consumers alike," said Bevil Wooding, Caribbean Outreach Liaison with the American Registry for Internet Numbers (ARIN), and one of the co-founders of CarPIF.

"CarPIF is where the economic underpinnings of the traffic exchange and peering relationships that define the Internet are discussed using Caribbean data and Caribbean examples, to a Caribbean audience," Wooding said.

At peering forums around the world, network operators broker deals with each other and with content providers such as Google, Facebook, Netflix and Akamai, which service up some of the most popular content on the Internet. It was no different at the CarPIF event. The main meeting hall of Belize City's Radisson hotel was abuzz with sound of over fifty CarPIF delegates engaged in conversation, meeting contacts, drumming up leads and striking new deals.

But the event involved more than the swapping of business cards. The two-day program featured high-profile speakers from across the region and around the world. From the outset, a tone of Caribbean collegiality was set by event moderators Wooding and Shernon Osepa, Regional Affairs Manager for Latin America and the Caribbean at the Internet Society, and one of the co-founders of CarPIF. Presenter after presenter openly shared their real-world experience and exchanged practical insights to help improve and advance the Internet in the Caribbean.

Keynote speaker John Curran, CEO of ARIN, regaled participants with stories from the earliest days of the Internet, illustrating how the network connections that make up the global Internet ultimately rely on an underlying fabric of social relationships.

Etienne Sharp, coordinator of the Belize internet exchange point, sat on a panel with local internet service providers, openly discussing some of the challenges affecting their technical interconnection and business relationship. Riyad Mohammed, a representative of the ttix2 internet exchange point in south Trinidad, vividly described some growing pains of the team behind the region's newest internet exchange.

The flow of the conversation also pivoted to explore avenues for new business. Jamaican-born Stephen Lee, Program Director at the Caribbean Network Operators Group (CaribNOG) and CEO of US-based technology services firm Arkitechs, gave a practical overview of local content development opportunities available for Caribbean entrepreneurs. Peter Harrison, CTO of Silicon Valley-based data centre firm Colovore, gave insights into the nuts and bolts of managing high-performance colocation facilities.

Nico Scheper, coordinator of the AMS-IX Caribbean internet exchange point in Curacao, shared valuable data on the positive impact of internet exchange points on Internet speed in the Caribbean over the last decade. And Arturo Servin, Manager of Content Deliver and Interconnection Strategy for Latin America and the Caribbean at Google, gave expert insight into how Google balances business interests with other considerations in choosing the locations for its caches.

"CarPIF has really grown over the years into a significant event on the Caribbean calendar, for operators as well as for international content providers," Osepa said. "We were pleased to see another strong turnout in Belize. More importantly, the issues impacting access and affordability tackled at this year's event should result in tangible benefit to consumers."

Kevon Swift, Head of Strategic Relations and Integration at the Latin American and Caribbean Internet Addresses Registry (LACNIC), remarked, "The representatives from four major Internet organisations, ARIN, LACNIC, ICANN and the Internet Society are all here, working together to build a more stronger Caribbean Internet."

The event was held from June 13 to 14, with the support of several other Internet organisations, including CaribNOG, the Caribbean Telecommunications Union and Packet Clearing House. The local host was Belize's Public Utilities Commission (PUC).

Delivering closing remarks, PUC Chairman John Avery thanked all the event supporters.

"The PUC has derived significant benefit from CarPIF, and we plan to use the information and insights gained to improve internet service and affordability for Belize. I think the Forum lives up to its goal of connecting the Caribbean, both its networks and its people," he said.

Written by Gerard Best, Development Journalist

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Combinations of Dictionary Words in Domain Names: Common vs. Distinctive Phrases

Domain industry news - Mon, 2018-07-02 21:30

The lexicon of domain names consists of letters, words, numbers, dots, and dashes. When the characters correspond in whole (identical) or in part (confusingly similar) to trademarks or service marks and their registrations postdate the first use of marks in commerce registrants become challengeable under the Uniform Domain Name Dispute Resolution Policy (UDRP) as cybersquatters. Ninety-plus percent of challenged domain names correspond to marks with deep market penetration nationally and internationally that are well-known or famous, which makes denying knowledge implausible. Since these registrants have no defensible right or legitimate interest (the second limb requirement, but also a factor in assessing bad faith registration and use) they rarely appear to defend their registrations.

However, as a complainant's mark recognition descends to local, regional, or niche markets or its mark is more generic or common, the heavier the burden of proving cybersquatting. A smorgasbord of phrases recently under the microscope illustrates the point: "citify marketplace," "bank direct", "draft coin," "sail mate," "nutri home," "forest gate," "manor park," "nano dark," "chrome bones," and "snap chat." For different reasons, some of these combinations are infringing and others not. Words alone or combined into phrases and longer lexical units are, after all, coinages of everyday speech; equally capable of forming uncommon and distinctive phrases as stale and generic ones.

Understandably, mark owners can become overly heated by domain names containing similarities they believe violate their exclusive rights, but on this issue some are confusing and others not. Even where the domain is identical to the mark, there is no actionable claim if the registration predated the mark. This is the story in the "chrome bones" case (Complainant alleged but was unable to prove common law rights), Chrome Bones / CB Luxury Brands, LLC v. Laursen, Shawn / Shawn's pasta & bake shop, FA1805001787926 (Forum June 27, 2018) (<chromebones.com>. In other cases, Respondents have been found to have rights or legitimate interests in the domain names where they are able to establish rights under paragraph 4(c)(1). "Nutri home" and "sail mate" are in this group, whereas the facts in "draft coin" and "snap chat" supported Complainants' claims.

If a registrant is to be accused of cybersquatting, mark owner and domain name holder alike should be educated about the distinction (and the necessary facts to support) what is and what is not confusing, as a preliminary to proving or rebutting rights/legitimate interests (second limb) and cybersquatting (third limb of the UDRP). In Chrome Bones, the Panel was convinced Respondent was using the domain name in bad faith, but "that is immaterial because a complainant must prove both bad faith registration and bad faith use in order to prevail."

At the threshold, the complainant has to negotiate three elements: 1) the subject domain name is identical or confusingly similar to 2) a mark in which 3) it has a right. So, for example, there can be no right for a registration filed for an "intent to use" mark. Walker Edison Furniture Company LLC v. Manor Park (Guernsey) Ltd, FA180400 1784458 (Forum June 15, 2018) (<manorpark.com>).

There is also the issue of what is common, generic or ordinary as opposed to an unusual combination of words. To take as examples of this issue, consider "bank direct" and "direct banking." Why is one both confusing (under the first limb) as well as evidencing "likelihood of confusion" (third limb of the Policy)? The question has come up recently in a number of disputes, but particularly in Texas Capital Bank N.A. v. WhoisGuard, Inc. / Aleksandr Osipov, Private, D2018-1040 (WIPO June 19, 2018) (<bankdirect.online>) and "anciently" (for those who consider 16 years a lifetime) in Salem Five Cents Savings Bank v. Direct Federal Credit Union, FA0112000103058 (Forum February 15, 2002) (<directbanking.biz>).

In Texas Capital Bank, the Panel notes that although the "BANKDIRECT trademark comprises a combination of two ordinary English words, 'bank' and 'direct' [that] ... are individually descriptive ... in combination they form a term which the Panel considers is capable of being distinctive and which has been used by the Complainant for many years." Ordinarily, an answering respondent would attempt to rebut "distinctive" or offer evidence showing common use of the phrase by other banks but here

Respondent [has not] advanced a claim to having used them for their descriptive meaning ...[and] [t]hose facts are sufficient in the Panel's opinion to at least raise an inference that the Respondent knew of the Complainant and/or its BANKDIRECT trademark when registering the Disputed Domain Name and intended in some way to take improper advantage of the Complainant.

A Google search for "bank direct" brings up Texas Capital Bank on top while "direct banking" brings up many banks. There is a direct correlation: as the number of potential users increases the association of particular phrases with any one party claiming exclusive right becomes increasingly tenuous. The Panel in Salem Five Cents Savings Bank, found it

simply makes no sense to this Panel to preclude the Respondent from registering and using a domain name that accurately describes the type of banking services it offers. To do anything else would be to deny a domain name registrant, and correlatively the Internet community, if not the public at large, of the benefit of using a term, consistent with its common ordinary meaning that accurately describes that registrant's services; to do otherwise would unjustifiably withdraw such terms from the public lexicon. Furthermore, this view is particularly telling inasmuch as the Respondent (not the Complainant) is the party which first registered the name.

There is a similar result in Citigroup Inc. v. LYON LESHLEY, FA1805001788603 (Forum June 29, 2018) (<citifymarketplace.com>). Citigroup's CITI has no exclusive right to all "citi" formative phrases. For a start, "citify" is a dictionary word and "market place" a generic phrase.. Additionally, the parties operate in different markets: "Because Respondent's activities are sufficiently unrelated to those of Complainant, and because those activities amount to a legitimate offering of on-line marketing services and goods, Respondent has satisfied the requirements of Policy ¶ 4(c)(i).")

Equally tenuous as exclusive signs are "sailmate" and "nutrihome." In Myriel Aviation SA v. Olli Jokinen, D2018-0828 (WIPO May 28, 2018) the term "sailmate"

comprises two ordinary English words, "sail" and "mate". The Panel considers these could readily be independently derived by a person developing a software product associated with boating, particularly given that the word "sail" is commonly used in English (i) as a noun in relation to the fabric structure used to catch the wind in a wind-propelled boat (ii) as a verb (to sail) to refer to the act of travelling by boat; and the word "mate" is commonly used in English (i) as a noun which is a colloquial term for a friend or companion, and (ii) as a noun which is a position or rank occupied by an experienced seaman on a vessel who supervises the vessel's crew and reports to its more senior officers.

Similarly in Fresenius Kabi S.A. v. Domain Manager, EWEB Development, Inc., D2018-0491 (May 24, 2018) (<nutrihome> in which the Respondent was in the business of trading in domain names:

[It] claims to have registered the disputed domain name, combining the commonplace prefix "nutri-" with the dictionary word "home", as being of potential interest to customers wishing to offering nutrition-related services online. It provides evidence of other "nutri-" related domain names that it registered in the same year as the disputed domain name or in the preceding two years.

Thus,

Based on the parties' submissions in this case, the Panel can find no evidence upon which to conclude that the Respondent was aware of the Complainant's Argentinian trademark NUTRI-HOME at the date it registered the disputed domain name (being the Complainant's only registered trademark at that date) or that it registered the disputed domain name with the intention of taking unfair advantage of that trademark.

The "nutri" Complainant also "provided little or no evidence of its business activities and public profile in 2009 and (while there was a brief period prior to August 2009 during which its website at "www.nutrihome.com.ar" appears to have been active) it has adduced no evidence that the Respondent was, in fact, aware of its trademark, or identified circumstances from which to infer that it must have been so aware.

As evident from the above illustrations, one of the considerations is what respondents can demonstrate about themselves, their status and the commonness of their lexical choices. The Respondents in Myriel Aviation and Citigroup are using the domain names commercially, and prove it. In contrast, Respondent in BTCDRAFT INC. v. Brian Boyer, D2018-0613 (WIPO June 1, 2018) is an investor, which could also qualify as making a bona fide offer of goods or service, but fails because it lacks the kind of evidence marshaled by the "nutri" Respondent.

In BTCDraft, Respondent acquired the domain name to hold for resale. The Panel explained that "[w]hile the term 'Draftcoin' consists of two dictionary words, in the Panel's view the combination is not an obvious one." This is an important point that has been expressed by other Panels: some word combinations are surprising and not obvious, making it unlikely they could be independently thought of or invented. In any event, Respondent's credibility was also a factor because of its claimed intention for the website without offering any evidence of "demonstrable preparations."

The SNAP CHAT combination is also "not obvious." In Snap Inc. v. Ali Alshumrani/Ali Aleryani, FA180500 1788602 (Forum June 14, 2018) (<snaps.chat>, <snapkm.com>, <snapei.com>, and <snaprz.com>) Respondent attempted to circumvent the claim of bad faith by arguing he was using the domain name "in connection to [its] dictionary meaning in Arabic." Not a particularly persuasive when considered in the totality of circumstances: "[Although] Respondent's disputed domain names redirect to websites written in Arabic [they were] displaying logos identical or similar to Complainant's trademarked and copyrighted logos, as well as profiles of Complainant's Snapchat users and links to those profiles on Complainant's own website." Also, the "websites connected to the disputed domain names ... include[d] sponsored advertisements."

<Nanodark.com> illustrates a different, although frequently found situation that I have written about before. Colin LeMahieu v. NANO DARK, FA1805001786065 (Forum June 9,2018). Here, Respondent creates the combination by adding "dark" to the mark NANO. Complainant operates a digital currency business. Respondent registered the domain name a couple of months after the NANO registration. The Panel found that the domain name was registered with actual knowledge of Complainant's mark because it was attempting to "pass itself off as Complainant and divert Internet users to a website offering competing digital currency."

The strengths and weaknesses of claims and defenses rest on facts parties are able to prove. If they can, they prevail, while naked assertions fail.

Written by Gerald M. Levine, Intellectual Property, Arbitrator/Mediator at Levine Samuel LLP

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More under: Domain Management, Domain Names, Intellectual Property, Law, UDRP

Categories: News and Updates

FarFetch paid $12.5 million for Style.com assets

Domain Name Wire - Mon, 2018-07-02 17:42

Company got a lot more than domain names as part of the deal, but Style.com is a very valuable domain.

Last year luxury clothing company FarFetch bought the assets of Conde Nast’s ecommerce venture Style.com. The price wasn’t disclosed, but an eagle-eyed DNW reader reviewed a FarFetch filing with Companies House in the UK. It discloses that the total consideration was $12.5 million.

Two of the assets FarFetch received were Style.com and Style.co.uk, which now forward to FarFetch.com. That said, this wasn’t just a domain purchase. The Style.com intellectual property FarFetch bought probably included some customer data.

Perhaps more importantly, FarFetch cemented its relationship with Conde Naste, publisher of target publications like Vogue, GQ and Vanity Fair. It includes content partnerships and potentially product placement. Conde Naste is also an investor in FarFetch, so there’s that.

Clearly, this wasn’t just a domain name deal. But Style.com is a valuable domain name.

(Hat tip: Chris Perrett of hotdrops)

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Categories: News and Updates

The domain name reseller business – DNW Podcast #192

Domain Name Wire - Mon, 2018-07-02 16:45

Understand the changing market for domain name reseller services.

The business of domain name resellers is constantly changing. This week, we speak with Aditya Arya, the AVP of Business Operations for LogicBoxes. LogicBoxes helps companies manage their own registrar or become a domain name reseller. Learn how this type of business is changing and the impact GDPR has one it.

Also: WP Engine’s acquisition, ICANN goes to Cancun for Spring Break, a nice .Ca sale, Whois and more.

Subscribe via iTunes to listen to the Domain Name Wire podcast on your iPhone or iPad, view on Google Play Music, or click play below or download to begin listening. (Listen to previous podcasts here.)

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Categories: News and Updates

How Verisign hit its Q1 growth numbers

Domain Name Wire - Mon, 2018-07-02 15:55

Verisign called on China to deliver Q1 domain growth.

.Com registry Verisign (NASDAQ:VRSN) provides guidance each quarter for how much it expects its total base of .com and .net domain names to grow. The company hardly misses because it’s quite easy for the company to pull some levers to hit the numbers.

Consider Q1 of this year. Verisign forecasted 1.5 million to 2.0 million net adds for the quarter. The company was pretty far behind at the end of February, as you’ll see:

.Net Domains
End of Q4 2017: 14.95 million
Jan 14.79
Feb 14.75
March 14.73

.Com Domains
End of Q4 2018: 135.03 million
Jan 135.52
Feb 135.78
March 136.83

By the end of February, .Net was down 0.20 million and .com was up 0.75 million based on the official data Verisign provides to ICANN. That meant Verisign had grown the combined base by 0.55 million domains with one month to go, well below what it promised the street. (Verisign has many measures for domains under management, so the numbers here are off slightly from what the company reported to the street.)

What do to? Verisign can throw “marketing dollars” at registrars to move the needle. It can pay them to promote .com and .net domains. What really moves the needle is offering discounts if the registrar hits certain growth targets.

For example, with time running out, Verisign could go to its Chinese domain name registrars and offer them steep discounts if they hit certain registration targets for the quarter. The registrar then informs top customers (which are sometimes the registrar itself) and passes a discount to them.

Presto–lots of last-minute registrations and the numbers hit.

Take a look at the three Chinese registrars that landed in the top 10 in terms of new .com registrations in March based on the final tally Verisign provided to ICANN.

In March, these were the top 10 registrars in terms of new .com registrations. (Keep in mind that there were three additional days in March than in February.)

1. GoDaddy.com* 975,008 (846,327 in February)
2. HiChina Zhicheng Technology Ltd. 252,159 (81,015)
3. Tucows** 217,900 (206,361)
4. Xin Net Technology Corporation 173,893 (52,388)
5. Endurance+ 170,700 (149,255)
6. NameCheap Inc. 131,423 (117,911)
7. Web.com++ 109,275 (103,383)
8. Google Inc. 96,621 (87,990)
9. West.cn 81,838 (not in top 10)
10. NameSilo 65,566 (60,550)

Do you think that demand in China for new .com domain names suddenly tripled? Or was it pushed?

Verisign’s official domain growth in Q1 was 1.91 million, neatly tucked into the high end of its forecast.

As for where registrars ended up at the end of Q1, here’s the current leaderboard of the top registrars in terms of total .com registrations as of the end of March 2018. :

1. GoDaddy* 47,815,002 (47,490,250 in February)
2. Tucows** 12,960,646 (13,014,976)
3. Endurance+ 7,793,869 (7,844,339)
4. Web.com++ 6,721,816 (6,705,866)
5. HiChina 5,156,343 (4,999,217)
6. NameCheap 4,195,705 (4,085,262)
7. 1&1 3,771,035 (3,766,579)
8. GMO 2,097,311 (2,111,351)
9. Xin Net Technology Corporation 1,928,276 (1,778,658)
10. Google 1,603,663 (1,534,162)

Many domain companies have multiple accreditations and I’ve tried to capture the largest ones. See the notes below.

* Includes GoDaddy and Wild West Domains
** Includes Tucows and Enom
+ Includes PDR, Domain.com, FastDomain and Bigrock. There are other Endurance registrars, but these are the biggest.
++ Includes Network Solutions and Register.com

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Categories: News and Updates

Lawsuit filed to recover 6-digit domain names

Domain Name Wire - Mon, 2018-07-02 14:22

Complaint alleges that five domain names were stolen.

A person in China has filed a lawsuit in an effort to recover domain names they allege were stolen from their domain name registrar account.

Xiaomei Chen filed the in rem action against the domain names 789365.com, 402013.com, 402014.com, 402015.com, and vip999365.com. It also names Lin Bing Jun, but the plaintiff believes the Whois information is fake.

According to the complaint (pdf), the domain names have generated $6,000 in revenue and 325 visits on average each month. The domains were acquired in 2016.

The plaintiff believes the domains were stolen around October 7, 2017 and moved from their GoDaddy account. Most of the domains are still at GoDaddy and one is at NameSilo.

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Categories: News and Updates

Comcast Sneaks in Another Billing Line Item and "Earns" an Additional $1 Billion

Domain industry news - Sun, 2018-07-01 19:05

My Comcast bill arrived today with a sneaky new $2.68 charge, $2.50 for leasing one (and only one) set-top box and $0.18 for the remote. This new billing line item, like the many others Comcast has introduced, adds to its bottom line with no additional capital expenditure. It shows how resisting the obligation to return to accepting set-top box free, "cable ready" sets was a smart strategy. Now Comcast can charge for a device rental that it used to provide free of charge (for the first one) because consumers cannot access its service without one.

Remarkably, the FCC never got around to replacing its CableCard "solution" with a viable, consumer-friendly update. For their part, cable operators never followed through on a "commitment" to offering "true two-way" consumer access using increasingly versatile and intelligent television sets to handle rather simple upstream commands to the cable operators' Headends.

Of course, Comcast subscribers now can use their own set-top boxes, such as a Roku, but the company has a perfect, profit-maximizing strategy for that as well: charge $9.50 a month and rebate $2.50 for "subscriber supplied equipment." Brilliant and incredibly greedy at the same time.

I am well overdue for a return to Over the Air Reception ("OTAR") of broadcast television even in my quite rural locale, centrally located in the middle of nowhere: State College, PA. Comcast all but wants me to do this, so it can concentrate on its transition to being a vertically integrated broadband venture combining its owned content and conduit. Besides, broadband has far greater profit margins, none of which have to be shared with content providers through retransmission consent. Actually, revenues flow the other way as when Netflix agreed to compensate Comcast for content carriage.

Subscribers of Comcast should revolt, but I suspect few will even notice the increase. What's a few dollars more, especially after Comcast's now $8.00 "Broadcast TV Fee," some of which flows to the company's NBC stations? Comcast also has a "technology fee" that most high definition television subscribers have to pay. I guess the company can justify this recurring line item as helping it recoup the costs for upgrading networks to handle high definition signals.

You really should examine the line items in cable television bills. Few companies can quantify and foist onto customers their estimate of having to comply with government regulations and pay local governments franchise fees. But my bills has line items entitled Franchise Fee and FCC Regulatory Fee. I call these costs overhead, but Comcast frames them as "fees" that they can pass through to customers.

Finally, I have reached the tipping point where gouging nudges — makes that pushes — me to old school technology. I expect Neighborhood Homeowners Association opposition to my outdoor antenna. Maybe I can assert a First Amendment right.

Written by Rob Frieden, Pioneers Chair and Professor of Telecommunications and Law

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More under: Law, Policy & Regulation, Telecom

Categories: News and Updates

Australia’s .Au domain names are now managed by Afilias

Domain Name Wire - Sat, 2018-06-30 23:28

Handover to Afilias is now complete.

It’s already July 1 in Australia, and that means that Afilias is now the backend registry service provider for over 3 million domain names ending in .Au.

.Au domain overseer auDA put the contract for managing .au out to bid, and in December of last year announced that Afilias won the contract, which had been handled by rival Neustar.

Transitioning a 3.1 million-domain namespace is unprecedented. The previous record for the size of a registry transitioned was .org back in 2003. At the time it had 2.4 million names under management. The gaining registry in that case was also Afilias.

As a result of the .au transition, Afilias now helps run 200 TLDs and more than 22 million domain names.

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Categories: News and Updates

How Gary Millin's World Accelerator Continues to Develop Some of the Web's Best Domain Names

DN Journal - Fri, 2018-06-29 21:23
Several years ago we wrote about the spectacular .com domain portfolio being developed by Gary Millin's World Accelerator. Forbes just featured Gary in a new interview.
Categories: News and Updates

Andrew Sullivan Selected as the New President &amp; CEO of Internet Society

Domain industry news - Fri, 2018-06-29 19:05

The Internet Society announced today that it has selected Andrew Sullivan as the organization's new President and Chief Executive Officer. Sullivan will assume leadership of the global non-profit organization on 1 September 2018. As President and CEO, Sullivan will also join the Internet Society's Board of Trustees. From the announcement: "Sullivan brings many years of experience in the Internet industry to his new role, having worked to enhance the Internet's value as an open, global platform throughout his career. Among his notable achievements is the launch of the .info Internet top-level domain name. While at Dyn, now a Global Business Unit of the Oracle Corporation, he managed the Domain Name System (DNS) development and architecture departments. This led to his appointment to the Internet Architecture Board (IAB) — which oversees the technical evolution of the Internet — where he was elected Chair from 2015-2017."

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Google Adwords no more

Domain Name Wire - Fri, 2018-06-29 18:53

Google is changing the name of its iconic Adwords advertising service.

For those nostalgic about the old days of online advertising, we’re almost at the end of an era.

Google Adwords is rebranding its service as merely Google Ads in the coming weeks.

The rebranding makes sense. Adwords started out as an ad program made up of only text ads but has grown to include display ads, video ads and more.

Still, I can’t help but feel a bit nostalgic. I was an early advertiser with the pioneer in text ads, GoTo, which later became Overture and was then acquired by Yahoo. Adwords was Google’s answer to GoTo.

I remember placing ads on the system in the early days when you had to bid on a CPM basis rather than clicks.

While Adwords has changed a lot over the years, one thing that hasn’t changed is its moniker.

Until now.

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  2. Google AdWords Now Supports Internationalized Domain Names
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Should Domain Names be Considered 'Contracts for Service' or 'Property Rights'?

Domain industry news - Fri, 2018-06-29 03:24

The legal status of domain names is one of the most hotly debated topics with regards to evolving property rights and how they should be applied to technological and intellectual property 'innovations' in cyberspace. At present, there are two opposing factions on this topic: On one hand, there are those who maintain that domain names should be considered as contracts for services, which originate from the contractual agreement between the registrant and the registrar. On the other hand, we have the parties who contend that domain names are intangible property rights that reside with the domain name holder.

As the law has evolved, property has been defined as "an abstract right or legally constructed relationship among people with respect to things" or "a bundle of rights, powers, privileges and immunities that define one's relationship to a resource." These theories have been beneficial more so for normal property rights, but law courts have found it quite challenging when attempting to determine how these concepts apply to domain names.

In this theme report, I will discuss service contract rights and the 'bundle of rights' property theory, as well as examine case law in a number of jurisdictions, and present an argument for why domain names should be considered as 'property rights'.

Domain Names as Contracts for Service

A number of courts have categorized domain names as contracts for service. This in itself is not incorrect, as domain names are transferred to an individual through a contractual agreement between them and the domain name registrar. The role of the registrar is to provide a functional mapping and translation between the domain name and an IP address. The registrant maintains their right to the domain name as long as they pay the associated fee to the registrar and ensure that the domain name is not utilized in bad faith or infringes on the intellectual property of others.

An analogy has been made between domain names and telephone numbers, accompanied by an argument that both domain names and telephone numbers are allocated and ultimately managed by either a registrar or a telephone company, and as such should be recognized as a contract for use and services. Hence, a person who registers a domain name or is assigned a telephone number is simply the contractual holder of that resource and does not become its owner. Ownership remains with the registrar or phone company.

Dorer v. Arel was the first litmus test of the theory that domain names form contracts for service, and that owners have no property rights to them. The judge ruled in favour of the plaintiff, Rose Marie Dorer, finding that the defendant Brian Arel's domain name had infringed on the plaintiff's trademark. The court awarded the plaintiff damages of $5,000 and ordered the defendant to desist from infringing upon the plaintiff's trademark. However, the defendant failed to satisfy the judgment that was made against him. Subsequently, in an attempt to be creative, Rose Dorer filed a writ of execution to satisfy the judgment from the debtor's property. The plaintiff's desire was to have the court order the defendant's registrar to transfer the domain name to her. The court opined that domain names, which are not afforded protection under trademark law, are nothing more than contracts of services and cannot be freely traded on the open market. As such, "a judgment creditor may not levy upon and sell a judgment debtor's registered service mark or trademark."

This case did not ultimately answer the question whether domain names constitute property, specifically with regards to the writ of fieri facias. Instead, the court indicated that other options were available to the plaintiff, namely the registrar's policy or ICANN's UDRP process. Either option afforded Rose Dorer the chance of procuring a successful transfer of the domain name.

A similar view was held by the court in Network Solution Inc. v. Umbro International whereby it was reasoned that the act of registering a domain name does not entitle an individual to any rights enforceable against a third party (garnishment) aside from the right of the registrant to possessory interest during the contractual term with the registrar. The Supreme Court of Virginia, in reversing the judgment of the court of first instance, held that domain names cannot be abstracted from the contractual agreement with the registrar, and are inherently linked to the services provided by Network Solutions Inc.

Dr. Konstantinos Komaitis argues in his book 'The Current State of Domain Name Regulation: Domain Names as Second Class Citizens in a Mark-Dominated World' that domain names should not be given protection on the sole basis of commercial use. Instead, he asserts that the value of a domain name is in the name itself. The potential value of domain names is contained in their popularity, memorability, and other key elements of value creation. Hence, confining the assessment of domain names to their relationship with trademarks ignores the evolution of the Internet and its true character of perpetual innovation.

Why Domain Names Should Be Viewed as Property Rights

The concept of property has been characterized by a number of conflicting philosophies and postulates before it attained a certain degree of harmonization among legal experts. However, it was Hohfeld and Honore that first articulated the 'bundle of rights' theory, which is widely accepted as one of the strongest definitions of property. The term 'property' is a multidimensional concept that incorporates a bundle of rights, immunities, privileges and powers that define the established situation of an individual, institution or government to a resource.

This includes the right to possess, to receive income from, to alienate, to exclude, to dispose or to recover title from whoever has illicitly obtained ownership of the resource. Property includes virtually every type of valuable rights and interests. Therefore, it can be argued that while the process/system of registering a domain name can be viewed as a contract for service, the value accrued and revenue derived from a domain name via legitimate contract rights means that it can be viewed as property. Consequently, domain names are being increasingly recognized as intangible property, subject to seizure or applicable as a source of in rem jurisdiction.

For example, in Commonwealth of Kentucky v. 141 Internet Domain Names, the court opined that since property is largely rationalized as a bundle of rights which is comprised of the right to ownership, controlling interests, the right to prohibit, the right to earn revenue, the right to transfer inter vivos and causa mortis, domain names should be recognized as a kind of property.

In another case, Kremen v. Network Solutions, Inc., the court held that a three-prong test should be adopted to establish whether domain names are property. There must be (1) an interest capable of precise definition, (2) it must be capable of exclusive control, and (3) the putative owner must have established a legitimate claim to exclusivity. The court found that domain names satisfied all the outlined criteria, and as such should be classified as property.

Referencing legal approaches to domain names in the United States, Britain, and India, the court ruled in Tucows.Com Co. v. Lojas Renner S.A. that domain names could be viewed as personal property. The ruling appeared to be an extension of jurisprudence that regards other types of intellectual property, such as patents, as property. The court also cited academic theory from Hohfeld by acknowledging that property is not a thing but rather a bundle of rights held by persons over physical things, particularly the right to exclude others.

The Anti-Cybersquatting Consumer Protection Act (ACPA) makes allowances for trademark owners to bring proceedings where the domain name registrar or registry is situated in the USA. This is particularly useful when the registrant is anonymous or cannot be located. Taking into consideration that in rem proceedings are commonly restricted to tangible property, one could argue that the ACPA is applying property rights to intangible items. A supporting viewpoint was tendered in Cable News Network v. cnnnews.com whereby the court ruled that domain names are properties that are located where they are created (where the registrar is domiciled).

Conclusion

So why is it important for domain names to be categorized as property? For one, it permits owners to exploit its commercial value, especially with regards to acquiring financing. Additionally, property rights in a domain name provide legitimacy that enables domain name holders to robustly challenge the claims of trademark owners in court actions. The ability to develop a domain name to attract millions of visitors and potentially yield millions of dollars is where its value lies. However, to date, there is still insufficient case law to establish a strong precedent for legal proceedings that address domain names as property rights. Still, court decisions and legal opinions in the US, UK and EU are seemingly converging towards property rights and away for contracts of service.

Written by Niel Harper, Managing Director

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More under: Domain Management, Domain Names, Intellectual Property, Law

Categories: News and Updates

Data Broker Reported to Have Exposed a Database Containing Close to 340 Million Individual Records

Domain industry news - Thu, 2018-06-28 19:22

A data broker based in Palm Coast, Florida, is reported to have exposed a database that contained close to 340 million personal records on a publicly accessible server. The leak was discovered earlier this month by security researcher Vinny Troia. Andy Greenberg reporting in Wired: "The haul comprises close to 2 terabytes of data that appears to include personal information on hundreds of millions of American adults, as well as millions of businesses. While the precise number of individuals included in the data isn't clear — and the leak doesn't seem to contain credit card information or Social Security numbers — it does go into minute detail for each individual listed, including phone numbers, home addresses, email addresses, and other highly personal characteristics for every name. The categories range from interests and habits to the number, age, and gender of the person's children."

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Yes, your domain name registrar has made it impossible for people to contact you

Domain Name Wire - Thu, 2018-06-28 17:04

Many registrars have removed all means for people to contact you.

I received an anonymous voicemail yesterday from an Enom customer who was frustrated that the Whois records for his domain names had been replaced with “fake” information. Here’s what he said:

I was just calling to see if you had heard anything about Enom changing everybody’s contact information to completely false information without their permission. I guess trying to comply with the European thing, but it’s a pretty sloppy way to do it. The address is a fake address, doesn’t forward, all the information is fake, there’s no way to contact anybody about technical issues or anything and they changed every one of mine for hundreds of domain names. I don’t know if they did everybody or not.

Here’s what a Whois record for one of my domains at Enom looks like:

The only way to reach someone about this domain through the Whois record is to email Enom’s abuse address.

Whois is in flux because of ICANN’s last-minute decision on how to handle Whois thanks to the EU’s General Data Protection Regulation (GDPR).

Technically, registrars must provide a way for people to contact the domain name owner via email or a web form. That might take some time to implement, though. It will essentially be like anonymized emails addresses used in Whois privacy and proxy products.

Also, the registrar must give customers the option to publish their contact information. But the deadline for this is “as soon as commercially reasonable”. Here’s the relevant section from the temporary specification:

7.2.1. As soon as commercially reasonable, Registrar MUST provide the opportunity for the Registered Name Holder to provide its Consent to publish the additional contact information outlined in Section 2.3 of Appendix A for the Registered Name Holder.

Here’s what’s in section 2.3 of Appendix A:

Registry Registrant ID
Registrant Name
Registrant Street
Registrant City
Registrant Postal Code
Registrant Phone
Registrant Phone Ext
Registrant Fax
Registrant Fax Ext

Additionally, the registrar may (but is not required) provide customers with the opportunity to publish admin, tech and other contacts.

We’re in a rough period right now. ICANN is suing an affiliate of Enom over the company’s interpretation of GDPR as it relates to Whois data. Some registrars, like GoDaddy, continue to publish the data.

It’s going to take months for this to all shake out. And that might be optimistic.

© DomainNameWire.com 2018. This is copyrighted content. Domain Name Wire full-text RSS feeds are made available for personal use only, and may not be published on any site without permission. If you see this message on a website, contact copyright (at) domainnamewire.com. Latest domain news at DNW.com: Domain Name Wire.

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  2. Whois GDPR carnage continues: Afilias to ditch almost all data in Whois on millions of domains
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Categories: News and Updates

Essential Cyber Security Steps for Your Business

Domain industry news - Thu, 2018-06-28 16:42

Layered security is a concept that's important for anyone who wants to create a strong, successful defense strategy to understand. This is a strategy that relies on the use of multiple lines of defense in an attempt to repel any potential attacks. For this reason, it's based on the principle that says "no single form of protection is enough to stop a determined cybercriminal." However, there's much more to layered security than simply applying multiple layers of defense. It's also important to spend time analyzing your defense's weak spots and where they can be found in your IT system. While this can be challenging, here again, you'll find the need for a layered approach. There are 5 important elements here — each of which you must understand when you want to comprehend how an effective layered defense strategy works together to form a mesh of protection around your company's various IT systems.

Patch Management

One of the most popular attacks that are launched by cybercriminals today lies in their attacking any software that you haven't yet been able to update. They do this in hopes of being able to exploit its know vulnerabilities before they "disappear." Verizon says that about 99.99% of all cyber attacks in 2014 took advantage of these types of vulnerabilities once they'd been cataloged in the Common Exposures and Vulnerabilities (CVE) database. (Many experts seemingly believe that this number has grown even higher in the years since this was first discovered.)

Verizon continues on to say that once a cybercriminal detects a flaw in a specific piece of a company's software they get right to work. They actively write scripts that search the entire internet for other systems and devices that are still running these same versions of the software. Once they're able to find them, cybercriminals launch their attack. This is why patch management has become so important today. It's a quick way for IT administrators to win the battle against this cybercriminal activity. They can also use scripting tools to automate the patching of this software. Multiple software vendors may also join in the "fight" here working to download, test, and administer these patches so they can be improved on.

Antivirus

IT Pro says antivirus services should be a key part of your company's IT defense strategy. Unfortunately, it isn't sufficient in and of itself to stop attacks, but it can provide your company with a useful line of defense against malicious software that cybercriminals are choosing to use as a way of gaining a foothold in your corporate systems. Although antivirus technology has recently evolved, this is still possible regardless of the fact that it now features more advanced capabilities. These exist to help the antivirus software detect any virus or Trojan software that it isn't yet familiar with. There are still a large number of attacks that use malware as an entry point into your company's networks. What this does is transform your antivirus software from being optional into something that's mandatory for every business to have today.

Web Protection

When you look at the Verizon Data Breach Incident Report you'll see that about 54% of all malware infections that happen today are caused by interactions that take place on the web. Many of these malware strains are delivered via a browser. This is why web protection is another important part of your company's layered defense strategy. In a way that's similar to how your antivirus software works, web protection services also receive updates on a regular basis. This includes updating the list of domain names and IP addresses that are associated with any known malicious behavior. These updates are important because they can be used to block visits from corporate networks. Additionally, they can also be used as a detection mechanism when they spot any suspicious surfing activity that's taking place, which is important because it can indicate that an attack is about to take place.

Mail Protection

One of the most important tools any business has is their email system. However, email is also a significant way that attackers can deliver an attack today. This is because these attackers can send you links directing you to visit malicious websites or to open an attachment that's infected with malware. Some cybercriminals go out of their way to be successful here by taking time to study a company so they can find pertinent details to include in these emails. You need to take steps to protect your company here. One of the most important steps you should take is to make sure that your company's email security is up-to-date because this is critical to effectively protecting you and your business. It's also important for you to educate your employees about common phishing methods and other email scams. Hopefully, this will help stop crude attacks from being successful.

Backup

Irrespective of what other protection measures you're using, it's also important for you to always have a backup plan that takes the latest cybersecurity threats into consideration. You can think of this as the final step in an effective backup, layered strategy plan. By keeping this up-to-date you'll have some peace of mind when it comes to your company's security standpoint. This is important not only for you but also because even the best type of protection systems can be successfully compromised today.

The best backup plan is one that uses incremental cloud-based backup services because this makes it easier to test and guarantee the safety of your organization. Not having physical backup media also reduces the risk of your backup data is corrupted, lost, or stolen. This is because cloud-based backup technology isn't something that can be accessed by ransomware. As such, it's a lot easier to restore files if a successful, attack ever does occur.

Unfortunately, rolling out layered security isn't inexpensive, but it's essential today, with the increase in vulnerabilities and criminals' determination in being successful. With a layered approach to security, you'll have the protection that traditional approaches can't match.

Written by Evan Morris, Network Security Manager

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More under: Cybersecurity

Categories: News and Updates

UDRP after GDPR: challenges without Whois

Domain Name Wire - Thu, 2018-06-28 13:53

Lack of public Whois makes filing a UDRP a two-step process.

GDPR is impacting the Uniform Domain Name Dispute Policy process. Without public Whois, companies that believe someone is cybersquatting on their domain might have to “go blind” into a UDRP filing; they won’t know who the domain name registrant is.

This is one of the things World Intellectual Property Organization is grappling with, and it has an FAQ for complainants that explains how this works.

Once a complaint is filed, WIPO gets the registrant’s information from the registrar and passes it along to the complainant. The complainant has a chance to amend its complaint at this point.

The complainant can also drop the case at this point based on what it learns about the registrant. According to WIPO, 20% of cases are settled before a panelist is assigned to a case. (I suspect most of these are cases in which the domain owner voluntarily hands over the domain.)

The WIPO FAQ does not address a common argument made by complainants: that the domain owner acted in bad faith by using a Whois privacy service. Item 3.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition explains what panels infer from the use of a privacy or proxy service. There are plenty of legitimate uses for privacy that don’t include hiding a cybersquatter’s identity.

But with GDPR, the privacy/proxy argument is effectively dead. Whois is masked by default at most registrars now and some are using their Whois proxy services to do this. It’s not up to the registrant.

I still expect some complainants to make this argument, probably cutting-and-pasting from their argument database. But the argument is null and void.

© DomainNameWire.com 2018. This is copyrighted content. Domain Name Wire full-text RSS feeds are made available for personal use only, and may not be published on any site without permission. If you see this message on a website, contact copyright (at) domainnamewire.com. Latest domain news at DNW.com: Domain Name Wire.

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Categories: News and Updates

Garry Chernoff Takes Top Spot on This Week's Sales Chart with One of Year's 10 Biggest Sales

DN Journal - Thu, 2018-06-28 01:01
Garry Chernoff has been making big domain sales for longer than we have been publishing (over 15 years) - and he is still at it!
Categories: News and Updates

When the Backend Domain Name Registry Is Too Expensive

Domain industry news - Wed, 2018-06-27 17:03

What we call a "backend registry" is the mandatory technical platform to operate a domain name extension and all registries have one. It is the backend registry that allows accredited registrars to technically sell domain names for each top-level domain (TLD).

The question here is: what happens to a registry, who sells domain names to accredited registrars when his backend registry solution provider is too expensive?

Creating your backend registry solution

In 2008, I remember going to a .BRAND meeting with Stephane Van Gelder and a technical guy told us: "we don't need a backend registry, we have enough resources to do it ourselves". Well… one can try to do it so for the next round of the ICANN new gTLD program — and there are tools for this — but I would certainly not recommend it for three reasons:

  1. It requires serious skills to develop a backend registry platform;
  2. It requires to pass the ICANN tests;
  3. It's awfully expensive.

How to lower the expenses

There are less than 10 solution providers that I would work with worldwide, and the reason why I would not create my own backend registry solution is simple: the more your new gTLD project costs you, the more you will be tempted to increase the price of your domain names. Accredited Registrars, the ones Registries sell their domain names to, will have to take a margin so they will increase the price too, and here is what happens next:

1) The final price at the Registrant level (the person who buys the domain name) will be higher than a ".com"; it may be a bad sign sent to new consumers: "Hey, why should I pay more for a domain name?" Remember that the average price known to consumers for a domain name is between $10 and $12;
2) It will make your registry more difficult to develop the volume of domain names if your target is the general public. For domain names to meet with adoption: "use" is needed but "volume" is needed too to increase its visibility on Internet.

Think twice about creating your own backend registry solution: it will drastically increase the price of your new gTLD project.

Note that 500 registries have less than 10,000 domain names registered but is this what a new registry wants when creating a new domain name extension? I stopped counting at 200 domain names registered (June 2018) to exclude .BRAND new gTLDs from this approximate calculation.

Less than $2 per domain

Backend registry service providers offer a different range of services but there is now stronger competition between them and offers should change for the next round of the ICANN new gTLD program. Prices should change too and there are three parameters that I will focus on when selecting a backend registry provider:

  1. One price per domain name "only" should constitute the offer: a registry which wants to gain recognition cannot be blocked from lowering the price of his domain names because the annual financial commitment with his backend registry is too high: let's not forget that the more domain names a registry puts on the market, the more it benefits the backend registry.
  2. No leaving fee: the knowledge to operate a registry relies a lot on the backend registry solution provider but it has now become easier and, for example, one might be tempted to change to a Chinese solution provider to access the profitable Chinese market with an MIIT license. Once you're blocked with an important leaving fee, it blocks you from spending this money to find a better solution: a Chinese backend registry solution provider will be very efficient combining complementary solutions for you: the backend registry solution plus the MIIT license for example.
  3. A "minimum annual commitment"? I read this fee at a service provider (...) With the number of registries to have launched at the same time in 2012, how can a niche TLD survive when it sells less than 1,000 domains a year (also because its retail price is already too high)? Added to a leaving fee, it makes it almost impossible to develop. For some, it means going "bankrupt". By the way: a backend registry asking for a minimum annual commitment does not care about the success of your project.

Note that such offers already exist: some providers have adapted to the market. It costs less than $1 for certain registries to create a domain name: "the lower the price is at the backend, the lower it will be for your clients".

If the backend registry is too expensive… it will impact the final price of your domain names at Registrars and it is unlikely that new consumers will want to pay more than $12 to buy them. Registration volumes seem to confirm this: when new gTLD registration volumes are low, it is also because the price of domain names is often too high, the reason is that.

Written by Jean Guillon, New generic Top-Level Domains' specialist

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More under: Domain Names, Registry Services, New TLDs

Categories: News and Updates

End user sales: Canadian companies spend $50k on .ca domain name

Domain Name Wire - Wed, 2018-06-27 16:55

Loyalty program partnership puts .Ca domain on top of the leaderboard.

Royal Bank of Canada and WestJet recently announced a new loyalty platform, and they paid dearly for the associated domain name: Ampli.ca for $50,000.

This was Sedo’s top reported sale for the past week. There are some notable sales that we don’t know the buyer for yet. Firehose.com sold for $35,000. This domain reminds me of Shane Cultra’s BlowTorch.com. It will make a great brand.

Also, SongExchange.com sold for $25,000.

Here are the domains I was able to determine sold to end users at Sedo during the past week:

(You can view previous lists like this here.)

Ampli.ca $50,000 – Royal Bank of Canada. This domain is for a new loyalty program between RBC and WestJet. Ampli.com is owned by a company that sells portable sound systems.

TheLocal.fi €19,000 – The Local is a website with news in Finland written in English.

Orchesto.com $5,500 – Technology company Zebware launched Orchesto, a multi-point object storage gateway compatible with Amazon S3 cloud storage, earlier this month.

Reason.co £4,000 – Reason calls itself a “digital product and service studio.”

Jam.net $3,990 – WildWorks is the gaming company behind Animal Jam.

Strenia.com $3,500 – Strenia Solutions is a tech company with offices in Australia, Germany and South Africa. It uses the domain name StreniaSolutions.com.au.

RealtorNow.com $2,950 – I hope the guy who bought this domain has rights to use the Realtor trademark.

Laramie1.com €2,900 – Laramie County School District No. 1 in Wyoming.

GotCramps.com $2,000 – Avadim Technologies is a life sciences company. One of its products, called Theraworx Relief, helps prevent foot and leg cramps.

© DomainNameWire.com 2018. This is copyrighted content. Domain Name Wire full-text RSS feeds are made available for personal use only, and may not be published on any site without permission. If you see this message on a website, contact copyright (at) domainnamewire.com. Latest domain news at DNW.com: Domain Name Wire.

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Categories: News and Updates

MERGE! Aims to Help You Make Money AND Memories at Impressive New Venue for September 2018 Show in Orlando

DN Journal - Wed, 2018-06-27 16:19
We had an opportunity to spend a few days exploring the new hotel and surrounding Disney Springs area where MERGE! 2018 will be held in September. Here are the photos & highlights.
Categories: News and Updates

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