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 Analysis of .info Sunrise Registrations
posted by tbyfield on Tuesday July 08 2003, @07:23PM
JeffD has written a fairly extensive, qualitative and quantitative, "Analysis of .info Sunrise Registrations." One would hope that analyses like this would play a pivotal role in assessments of ICANN's past performance and, therefore, in its future performance; unfortunately, ICANN seems to be exempt from many of the basic principles of organizational governance (except, maybe, from the Peter Principle). Anyway, Read more to see it...
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In 1999, the US Government proposed the privatization of Internet technical co-ordination. As part of this process it encouraged the examination of means to protect internationally “famous’ trademarks – such as ‘pepsi’ and ‘burger king’ from cybersquatters who registered such names with an intent to use them for infringing purposes or sell them to the trademark holder for exorbitant sums.
This sensible proposal became corrupted during its consideration by ICANN’s bizarre policy-making processes as a result of the influence of powerful, minority groups within its structure and the arbitrary actions of such people as Michael Palage - who was chairman of the committee formulating such policy while also being associated with a company who was seeking ICANN’s approval to operate a new domain registry incorporating such policies.
As part of its agreement with ICANN to operate the .info registry, Afilias proposed a ‘Sunrise Period’ that would allow any trademark holder to register “their” trademark as a domain name prior to the opening of registration to the general public.
This proposal ignored the fact that numerous people and entities owned trademarks to the same names as a result of trademarks being granted for use of the same word for different commercial purposes.
For example, the single word ‘sun’ is currently trademarked for at least 29 classes of goods and services at the US Patent and Trademark Office:
Water treatment chemical – 2478594 Chemical delivery systems – 1344208
Fabric softener – 2001463 Laundry detergent – 1618291
Cosmetics – 2412683 Windows – 1571941
Travel trailers – 2287659 Tungsten electrodes – 1547109
Bus transportation services – 2214701 Antifreeze – 1444658
Bleach – 2196458 Auto fan belts and filters – 1415773
Internal combustion engines – 2101324 Mineral oil – 1393731
Entertainment newspaper – 2199246 Plastic molding chemicals – 1399078
Computers – 1794747 Maintenance services – 1467012
Printing press blankets – 1617612 Motor oil – 1295525
Piggy banks, umbrellas, mugs, key chains, jackets, clocks, lighters, etc. – 1876330
Chrysanthemums – 1991588 Credit services – 1245580
Wire spoke wheels – 1194279 Cameras – 1238084
In-store displays – 1255506 Vehicle test equipment – 1105536
Liquid detergent – 0569580 Electric test equipment - 1596377
There are a further 3, 626 current trademarks that include the word ‘sun’.
Trademark law also allows the free use of trademarked words for non-commercial or non-infringing purposes. Afilias’ proposal therefore provided for an unlawful, exclusionary preference to be given to trademark holders over non-commercial users.
Both Afilias and ICANN were warned by senior US Government lawyers that their proposals for a Sunrise Period were unlawful, not in the interests of small businesses in the US and unlikely to achieve their purpose of preventing ‘cybersquatting’. However, Afilias went ahead with its plans and, from July 25 to August 25, 2001, provided an exclusive registration period for trademark holders to register .info domain names.
Afilias predicted that, at a 50% (moderate) confidence level, it would register 700,000 domain names during the Sunrise Period. In fact, 52,209 domain names were registered.
Afilias did not validate any of the registrations and it quickly became apparent that a large number of fraudulent registrations were being made. Afilias announced that it would not intervene in the process to validate registrations but might challenge invalid registrations at the end of a Sunrise Challenge Period during which other Internet users could pay fees to Afilias and the World Intellectual Property Organization (WIPO) to challenge invalid registrations.
Afilias referred to estimates that 15 - 20% of registrations might be invalid as “greatly exaggerated”.
In fact, after almost 2,000 challenges had been filed by others during the Sunrise Challenge Period, Afilias‘ Challenge of Last Resort’ resulted in 17,353 (some 33% of Sunrise registrations) being cancelled as invalid and were then resold by Afilias to new registrants (and, in some cases, to ‘old’ registrants).
Afilias has claimed that its Challenge of Last Resort would result in all invalid Sunrise registrations being cancelled and offered for re-registration. Their challenge process concluded in late April, 2002.
One year later, Afilias maintains a lock on some 1,458 (4%) of the remaining 34,856 Sunrise registrations.
The current analysis was performed to attempt to identify:
1. if remaining Sunrise names were, in fact, valid Sunrise registrations;
2. the extent to which the Sunrise Period was successful in its objective of minimizing abusive registrations;
3. the extent to which the granting of exclusionary preferences to trademark holders had allowed the creation of new Internet content associated with the trademarked purpose or, alternatively, the extent to which the Sunrise Period had resulted in ‘defensive’ registrations that had merely prevented others from making legitimate, non-infringing use of domain names;
4. if there were identifiable reasons for the maintenance of locks on certain remaining Sunrise domain names.
The analysis was carried out between April 3 and April 26, 2003
Of the 34,856 Sunrise registrations that remain after the conclusion of public and Afilias’ challenges, 14,092 are based on claimed US trademark registrations. This population was selected for analysis due to the US maintaining a comprehensive online database of trademarks (at the US Patent and Trademark Office - http://www.uspto.gov/main/trademarks.htm) that would allow verification of trademark claims. As part of the Sunrise rules, all applicants had to provide the trademark reference number relied upon to validate the registration. The reference number was used to validate the trademark rather than the trademark name due to the uniqueness of the reference number versus the multiple occurrence of a trademarked name in the US PTO database (as a result of the same word being capable of being “trademarked” for different goods or services – see above).
Invalid Registrations
Of the 14,092 registrations that were studied, 7,298 (52%) were either confirmed as not based on a valid US trademark or no valid trademark could be identified at the USPTO relating to the serial or registration number provided by the registrant.
If this percentage is assumed to apply to the total population of remaining Sunrise names, this would suggest that a further 18,000 Sunrise registrations are invalid – making a total of 35,000 (67%) of the 52,209 initially registered. This is likely to be a very conservative assumption as a fraudulent registrant would be much more likely to claim a non-US trademark (due to the added difficulty of checking its validity) and the percentage of fraudulent registrations based on non-US trademarks would be likely, therefore, to be higher.
Some registrations regarded as invalid were, in fact, based upon valid trademarks but were regarded as invalid because the domain name claimed did not match the ‘textual element’ of the trademark as required by the Sunrise rules. Registrations based on ‘graphic’ marks were considered to be valid even though the trademark did not grant any right to the textual element of the trademark (this was permitted by the Sunrise rules).
Of the 7,298 invalid registrations, 512 are locked by Afilias (92% of the total of locked registrations). 6,786 are unlocked.
Valid Registrations
6,794 (48%) of registrations were confirmed as valid. Of these, 43 are locked (7% of the total of locked registrations). Of the locked registrations, 3 are registered by Afilias itself (nic.info, whois.info and www.info). Of the remainder, some 20 appear to be invalid for reasons other than the validity of the trademark (such as the registrant being unconnected to the trademark holder). It is unclear why the remaining 20 are locked.
Even though the 6,794 registrations are valid according to their being based on valid trademarks, 1,269 (19%) of these could be regarded as invalid because no registrant details have been provided as required by the Sunrise and general registration rules. It is therefore not possible to determine that the registration was effected by the person or entity who actually owned the rights to the trademark relied upon to validate the registration. Other registrations could be similarly regarded as invalid because of failure to conform to registration rules but, for the purpose of this analysis, they have been regarded as valid.
Of the 6,794 valid registrations, 4,517 (67%) have no valid web site or page associated with the domain name. A further 1,520 (22%) registrations display a standard “parked” page provided by the registrar. 6,037 (89%) of registrants have, therefore, registered their names and then done nothing whatsoever with them.
Of the 757 remaining, 649 are redirected to existing web sites maintained by the registrant, 12 are ‘under construction’ (defined as minimal work having been carried out to provide site content) and 3 are listed as being for sale. 89 are broken – they point to non-existent web servers or pages or contain a significant number of broken links or unlinked graphics.
4 registrations link to unique and new Internet content. Only one of these provides content that is related to the trademark that provided the basis for the registrations. One is used for the private use of the entity’s employees (non-commercial use unrelated to its trademark). The other two are used in respect of the generic (non-trademarked) meaning of the domain name. One of them is locked by Afilias.
Conclusions
Afilias justified its Sunrise Period by suggesting that it would:
1 avoid abusive registrations
2 ensure the legitimate use of domain names associated with trademarks
Avoidance of abusive registrations
It has been authoritatively estimated that some 0.000269% of domain name registrations result from attempted cybersquatting (http://forum.icann.org/newtlds/395D801600000270.h tml). If this estimate is applied to the 52,209 Sunrise registrations, then some 13 abusive registrations would be expected to have resulted. Afilias’ Sunrise process resulted in at least 17,000 (and probably over 35,000) abusive registrations.
Afilias’ claims to have produced a policy that avoids abusive registrations are clearly unsupported.
The legitimate use of domain names associated with trademarks
Of the 6,794 confirmed valid Sunrise registrations (at least to the extent that they are based on valid trademarks), 6,037 (89%) do not have associated websites or are merely “parked” with their chosen registrar. A further 89 point to missing content. A further 12 provide some temporary content (are ‘under construction’) and 3 are listed for sale. Of the 653 remaining, 649 are simply redirected to identical content at existing .com, .net or .org web servers.
Only 4 registrations have been identified that have actually been used to create and publish new Internet content that would benefit the registrant and Internet users. Of these, one has been used for a private, non-commercial purpose (not protected by trademark rights - NYSE.INFO), and 2 are used in respect of the generic meaning of the domain name rather than the purpose for which the trademark was granted (FOOTBALL.INFO - caps, hats, shirts, jackets, pants and shirts (USPTO registration 2296382). One of these – football.info - is locked and is probably an illegitimate registration. The other – sex.info - is based upon an extremely ‘interesting’ trademark claim (check registration 2306348 at http://www.uspto.gov/main/trademarks.htm). The applicant has ‘creatively’ registered the word “sex” for a child’s mechanical toy....!
Afilias’ Sunrise Policy has enabled this registrant to “legitimately” claim the right to register and use probably the most valuable .info domain name – sex.info.
Only 1 registration in this analysis of 14,092 registrations – brainworks.info - has resulted in entirely new content.
It is clear that by far the majority (over 90%) of the Sunrise registrants identified in this analysis did not want their new domain names. For them, the release of the .info tld resulted only in more money being paid to their IP attorneys to secure “their” trademarks in the new domain. They clearly registered them only to prevent their use by others. Having registered them, only 649 (9%) of registrants took the minimal effort that would have been required to point their domain name registrations to existing web sites and content. The 91% that did not, include the largest corporate names in the USA - and the World. This evidence suggests that these Corporations do not consider it likely that anyone will try to locate them on the Internet by typing ‘theirname.info’ into a browser. Perhaps more demonstrative of the minimal perceived value of the .info domain is the fact that 89 registrants – which include such well known companies (who also spend millions of dollars per year advertising themselves and their products) as Geocities, Yahoo, Publishers Clearing House, General Electric, Sara Lee, etc. – are content to have themselves portrayed within the .info domain as incapable of providing a working web site.
It is therefore clear that the Sunrise policy has not resulted in the useful extension of the Internet name space and has merely had the effect of depriving trademark holders (who were not successful in the Sunrise period) and non-commercial users alike of the opportunity of using new domain names in totally fair and uninfringing ways - and also of depriving Internet users of the opportunity of viewing new Internet content provided by registrants other than those that want to monopolize the use of “their” names on the Internet.
Afilias’ evaluation of the validity of Sunrise registrations.
In view of the large number of Sunrise registrations that appear to be invalid but have been unlocked (validated by Afilias), Afilias seems to have acted quite arbitrarily in evaluating the validity of Sunrise registrations and choosing those that were to be challenged in its Challenge of Last Resort.
There are, for example, 315 unlocked registrations that are clearly invalid in respect of the date of the trademark used to validate the registration – a fact that is very simple to validate using the USPTO online database. Under Sunrise rules, an applicant’s trademark had to have been registered prior to October 1, 2000 in order to qualify. Of the 315 unlocked registrations, 18 were not even filed at the USPTO until after the 10/1/2000 deadline; 47 were not published for opposition (an intermediate step in the registration process) until after 10/1/2000; and 174 were not registered until after the 10/1/2000 deadline. A further 76 unlocked registrations are based on trademarks that had expired without renewal or had been cancelled prior to the start of the Sunrise period.
Similarly, Sunrise rules specifically invalidated registrations based upon trademarks registered on the Supplemental Register. Of the 74 registrations based on Supplemental Register trademarks, 67 have not been challenged and have been unlocked (validated) by Afilias.
This analysis has been submitted to Afilias for comment. They declined.
The data resulting from the analysis is summarized below:
Data Total %
Total Sunrise registrations 52,209 100
Invalid registrations cancelled by Afilias 17,353 33
--------- ----
Remaining registrations 34,856 67
Remaining registrations with claimed USA trademarks 14,092 40
Confirmed valid trademarks 6,794 48
Locked 43
Unlocked 6,751
Invalid because no registrant details provided 1,269 19
No web site associated with domain name 4,517 67
Web sites associated with domain name 2,277 33
Parked – no content 1,520 66
Under construction 12
For sale 3
Redirected 649 29
Broken 89 3
Unique site with new content 4
Used for trademark purpose 1
Used for private, non-trade use only 1
Used for generic (none-trademarked) purpose 2
Confirmed invalid or no trademark data at USPTO 7,298 52
Locked 512 7
Unlocked 6,786 93
Invalid because of trademark date 400 3
Locked 85
Unlocked 315
Filed after 10/1/2000 25
Locked 7
Unlocked 18
Published for Opposition after 10/1/2000 67
Locked 20
Unlocked 47
Registered after 10/1/2000 225
Locked 51
Unlocked 174
Expired or cancelled before 7/25/01 83
Locked 7
Unlocked 76"
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Analysis of .info Sunrise Registrations
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I am not very surprised. What I find very interesting is that the few applicants in the first 'round' of selections who specifically declined to have a sunrise provision were immediately dismissed.
The .WEB application by IO Design, if I recall, correctly _predicted_ these problems in advance, as part of their rejection of sunrise.
At every turn, ICANN's decisions, and the decisions and behaviours of the 'winners' are proven to be mistakes. When will ICANN remedy this by allowing more honest and ethical competition, I wonder?
++Peter
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[ Reply to This | Parent
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The article claims that: It has been authoritatively estimated that some 0.000269% of domain name registrations result from attempted cybersquatting and provides a link to an ICANN forum post by Dr. Mueller. In fact that is not at all what was claimed, the linked to quote actually states: Currently, trademark-disputed registrations are filed at a rate approximately 0.000269 of monthly domain name registrations. which is an entirely different thing. Further, I don't know that Dr. Mueller is claiming to be an authoritative source on this, and if he is, there are other sources I consider more authoritative who put cybersquatting rates much higher.This article does seem to show quite clearly that there is no great demand (and apparently little need) for new relatively open and undifferentiated gTLDs. -g
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[ Reply to This | Parent
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ICANN wanted a TLD to compete with .COM, and Afilias attempted to steal .WEB to do that. Had they been successful, it is likely that .WEB, under Afilias, might have had a very different outcome than has.INFO. For those who appreciate justice, Afilias thankfully did not get .WEB.
Perhaps it is time for ICANN to try again at creating competition for .COM, and do it right this time by giving the pioneer applicant a go.
++Peter
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You are incorrect.
Michael Palage was, for example, the Chief Policy Officer for ICM Registry which applied to be the registry of the porn-based .xxx TLD.
The Palage is described in their application as one of the 2 founders of the company - which was formed in June 1999.
ICANN's Working Group B - which Palage chaired, and appeared, at times, to be its only member - began its life around this time and its final report was issued one year later.
The Palage was was also directly involved with two other registry submissions.
Jeff Davies
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