ICANN’s Single-Character .COM Malarkey
Auctions Betray Brands and Trademark Registrants
This past Saturday a most remarkable thing happened when, for the first time in 26 years, the IANA registrar opted not to renew its registrations for the single-character .COM domain names (SCDN). These names were initially registered in 1993 by the man who was IANA, Jon Postel, and ever since then have been maintained as active registrations by ICANN — until now.
Presumably, there will be a Grace Period followed by a Pending Delete period before the names expire and, as is likely to be the case, they will cease to exist. The .COM registry agreement prohibits the registry operator from conjuring any of them back into existence — except one, O.COM, which the Second Amendment to the .com Registry Agreement specifies can be released, following an auction process that determines the highest bidder.
But the auction — like the recent .ORG mess and pretty much everything ICANN-related — is a disingenuous fraud and a mockery of the letter and spirit of multistakeholder governance.
Never mind that millions of dollars in auction proceeds from a public interest asset are to be distributed to a non-public list of organizations by a trustee whose selection — and length of tenure — is in the sole discretion of the registry operator. After all, it’s much easier to just keep $7.85 and secretly funnel the rest of the money through a hand-picked trustee to a hand-picked set of organizations than to seek a waiver of consumer pricing safeguards from pesky competition regulators at the National Telecommunications and Information Administration (NTIA) and the Justice Department.
Much more sordid, however, have been the bad-faith waivers that ICANN and the registry operator granted unto themselves to ignore standard trademark rights protection mechanisms (RPMs) for new and previously reserved domain names (e.g. Sunrise Period, Trademark Clearinghouse, Priority Access) and VeriSign’s commitment — made multiple times over multiple years — to enhanced protections for trademark owners.
The argument has been made that RPMs don’t apply to SCDNs and therefore, that owners of registered trademarks with a clear claim can be denied their property rights. This is self-serving nonsense that, if allowed to prevail, would be a demonstrable failure by ICANN, its Intellectual Property Constituency, and the International Trademark Association (INTA) to safeguard brands and trademark registrants. It is only in the instances where rightsholders cannot be clearly ascertained – or if they are ascertained but forego their claim – that any auction can be contemplated.