Collected news and opinion about the Internet Corporation for Assigned Names and Numbers, the domain name business, Internet governance, and miscellaneous other cyberlaw topics for January 9, 2015.
URS, UDRP Numbers for 2014
As everybody knows, the new top-level domains now being released are accompanied with protections for intellectual property owners that are not found in the so-called "legacy" domains such as .com, .net, and ,org. Among these protections is the Uniform Rapid Suspension Service, a "UDRP Lite" mechanism for suspending a domain name that clearly violates a trademark owner's rights. However, even before a name is registered, a would-be registrant may encounter a notice from the Trademark Clearinghouse that the registration of the desired domain might be unlawful. Additionally, trademark owners have the additional ability to defensively block registrations across all TLDS operated by Donuts via the Donuts Domains Protected Marks List. Brands and go TLDs have special registration requirements that also have the effect of stemming cybersquatting.
The table below shows the number of domains that were the target of a URS complaint in 2014, the first year in which the URS was available and the first year in which more than trifling number of new top-level domains came to market.
I chose to count the number of domains at issue in the URS filings, rather than the number of URS complaints filed. For example, if a single complaint was lodged against three domains, I counted that as three proceedings. This seems to me to be a better measure of the size of the cybersquatting problem.
I was surprised at the small number of URS claims filed so far. The .club TLD was the leader in 2014 with 25 domains attracting a URS complaint, followed by .email with 23 allegedly unlawful registrations. After that, it's small potatoes all the way down the list.
Complainants had an impressive winning streak from Oct. 10 to Dec. 22, 2014, prevailing in 60 consecutive cases.
The average length of time for a National Arbitration Forum examiner to decide a URS case was 18 days from filing.
The shortest turnaround time was 0 -- same day service! -- in the playinnovation.email dispute, though there were a half-dozen or so others decided within a week's time.
The longest time to decision was lufthansa.email, in which a single examiner determination was followed by a three-examiner appeal, a process that took 72 days from start to finish.
In addition to the URS remedy, trademark owners have the option of bringing a claim under the Uniform Domain Name Dispute Resolution Policy. The UDRP costs more in filing fees and resolution takes somewhat longer. In theory, a UDRP case should be a more "winnable" remedy than the URS. The UDRP protects a broader range of trademark-related rights (e.g., common law marks, trade names, personal names) than the URS (registered marks only). The UDRP also offers a more potent remedy: transfer of the domain name to the successful complainant.
In 2014, trademark owners obtained 92.9 percent of the domains they went after in UDRP proceedings at the National Arbitration Forum and the WIPO Arbitration and Mediation Center (4,516 domains transferred; 50 cancelled; and 350 denied). This figure is slightly better than the 90.2 percent success rate for URS claims at NAF.
The trademark owners' success rate for UDRP claims directed to new gTLD domains was remarkable. Not a single complaint was denied. Trademark owners prevailed against 160 new gTLD domains, losing against none, and voluntarily terminating their case against 34 domains.
Totals. In 2014, 214 domain registrations in the new gTLDs were challenged with a URS complaint. A slightly smaller number, 193, faced a UDRP complaint at NAF or WIPO. Final total: 407 domains faced either a URS or UDRP complaint.
I haven't been able to uncover a federal case under the Anticybersquatting Consumer Protection Act having been filed against a new gTLD domain in 2014.
The following TLDs have been on the market for over 200 days without attracting either a UDRP or URS complaint: .singles, .plumbing, .camera, .kitchen, .tattoo, .voyage, .enterprises, .ruhr, .recipes, .shoes, .domains, .limo, .computer, .builders, .kiwi, .camp, .institute, .guitars, .gift, .pics, .build, .florist, .solar, .marketing, .rich, .dance, .democrat, .pink, .shiksha, .kim, .codes, .wed, .zone, .cheap, .bargains, .boutique, .immobilien, .nagoya, .cool, .wien, .qpon, .works, .exposed, .foundation, .voting, .best, .villas, .maison, .properties, .condos, .webcam, .bid, .dating, .partners, .productions, .jetzt, .ink, .pub, .community, .rest, .bar, .archi, .moda, .moe, .supplies, .supply, .industries, .cooking, .country, .vodka, .horse, .rodeo, .fishing, .fish, .report, .vision.
I'm not sure what to make of this data.
Certainly the situation in .com/.net./org looks bad in relation to the new gTLDs. Looking over the very long list of domains that drew a UDRP complaint in 2014, I saw quite a few that might have drawn a notification from the Trademark Clearinghouse if the TMCH had been in place for those TLDs. Other trademark protections for the new gTLDs, such as DPML, might also have cut down on cybersquatting in the legacy TLDs. Let's hope that Deloitte and Donuts will share their 2014 numbers so that public can have a better understanding of the efficacy of those remedies.
It's possible that the relatively higher pricing in the new gTLDs is discouraging cybersquatting.
It's possible that the relatively lower public knowledge of the new gTLDs makes them less-valuable targets for cybersquatters. Type-in traffic is likely quite low in the new gTLDs. As investments, who knows?
It's possible that the semantic, niche nature of many of the new gTLDs makes them unattractive to cybersquatters. This observation is somewhat supported by the 2014 data: the more generic a new gTLD is, the more likely it was to attract cybersquatters. See .club, .guru, .email, .xyz at the top of the URS table.
The table below shows the number of domains that were the target of either a UDRP or a URS complaint in 2014.
I'm happy to share my data with anyone who wants to look it over. Just send an email to me at email@example.com.
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