Demand Media Demands Three-Strikes Rethink

By Kevin Murphy

Demand Media has asked ICANN to reconsider an anti-cybersquatting provision in the fresh top-level domain Applicant Guidebook that may ban the firm from running a TLD.

ICANN will do background checks on the firms applying for TLDs and their officers. If they are found to have lost three UDRP decisions in the last four years, their applications will be rejected.

Demand Media, which owns eNom, calls this “draconian”, saying that three UDRP losses can hardly be considered a “pattern” of cybersquatting when a firm owns thousands of domains.

As DNW noted last month, a Demand Media subsidiary has six UDRP losses to its name just this year, although the ICANN guidebook may contain enough loopholes to let the firm bid anyway.

Demand stated the three-strikes rule is “an extremely broad standard that we believe will unintentionally disqualify otherwise qualified applicants”.

It went on to say that such a rule was never envisioned by the UDRP, and that some respondents may have chosen to fight complaints more fiercely had they known the full consequences.

Using UDRP decisions as an additional ex post facto punishment to disqualify an otherwise qualified applicant is an inappropriate and draconian penalty. The result is a retroactive change in the legal consequences of all UDRP decisions.

Demand Media’s position is backed up by the Internet Commerce Association, which represents big-volume domain investors.

But the rules are supported by ICANN’s intellectual property stakeholders, which have been fighting for stronger IP protections in the fresh TLD program for years and seem to be getting their way.