BRANDS’ CHALLENGE TO .FEEDBACK DOMAIN TO TEST LITTLE-USED PROTECTION MECHANISM

 domainsimage

Facebook Inc., Adobe Systems Inc. and 11 other brand owners are challenging the operator of the .feedback internet domain for allegedly breaching its commitment to the public interest.

The brand owners are invoking a little-used rights protection mechanism finalized in 2013 by the Internet Corporation for Assigned Names and Numbers, the non-profit entity that coordinates the domain name system.

The mechanism, called the Public Interest Commitment Dispute Resolution Procedure (PICDRP), allows for challenges to top-level domain registries who have allegedly breached a set of public interest commitments stipulated in their agreements with ICANN.  Those commitments require registries to, among other things, operate their domain in a transparent manner and prohibit fraudulent or deceptive practices.

The complaint against Top Level Spectrum will be an early test of the PICDRP’s effectiveness. 

“It is important to see how this new mechanism works and whether ICANN is going to stand behind these public interest commitments,” Brian J. Winterfeldt, counsel for the brand owners and an intellectual property partner at Mayer Brown LLP in Washington, told Bloomberg BNA Oct. 31.

ICANN has created a number of rights protection mechanisms designed to protect trademark owners in its new generic top-level domain program, including the Trademark Clearinghouse and the Uniform Rapid Suspension System.  ICANN conducted a review of the various mechanisms in 2015 but said that analysis of the PICDRP was premature at the time because no complaints had been filed, according to a September 2015 report

The brand owners alleged in an Oct. 24 complaint that at the time of the domain’s launch, registry Top Level Spectrum Inc. failed to make its domain registration policies available to the public.  Top Level Spectrum also failed to make publicly available material changes to those policies, including a purported plan to sell domains matching 5,000 top brands to a third party, the brand owners alleged.

In addition, the brand owners alleged that Top Level Spectrum falsely registered domain names corresponding to trademarks and urged them to validate registrations that they never registered in the first place.

Top Level Spectrum allegedly also solicited and paid third parties to post fake product reviews on websites within the .feedback domain, the brand owners said.  Paid bogus reviews “predominate in .FEEDBACK, breaching the public trust and creating a registry business model based on falsehoods,” they said.

Top Level Spectrum spokesman Jay Westerdal told Bloomberg BNA Oct. 31 that the allegations were “baseless.”  He said that Top Level Spectrum is “operated in an open manner consistent with general principles of openness and nondiscrimination and has only one wholesale price that it provides to ICANN registrars.” 

Westerdal said that the complaint was the first to allege the registry wasn’t being transparent and that the brand owners didn’t reach out to it directly to resolve their claims.

It remains to be seen whether ICANN will open an investigation into the registry’s practices.