A high-profile, market-moving Internet fraud has brought to light a little-known alternative to the popular domain name dispute policies, and this alternative can provide almost immediate relief for trademark owners. In other words, this tool can be even better -- or, at least, faster -- than either the Uniform Domain Name Dispute Resolution Policy (UDRP) or its speedier cousin, the Uniform Rapid Suspension System (URS).
So, what is it?
It's called a registry operator's "Anti-Abuse Policy."
And here's how it may have worked in one important domain name dispute.
The <bloomberg.market> Fake News Site
According to news reports, someone registered the domain name <bloomberg.market> and posted a fake news article -- mimicking the popular Bloomberg news service -- that Twitter had received an offer to be acquired for $31 billion. As a result, Twitter's stock soared, before Twitter and Bloomberg both exposed the report as fake.
While this cybersquatting incident received a lot of attention, it was, in many ways, no different than a typical domain name spat: Someone registers a domain name that contains a well-known trademark and creates a website that misleadingly confuses the public. These disputes are resolved every day via the UDRP and, with some regularity, the new URS.
But UDRP and URS proceedings can take weeks or months to resolve. In the case of <bloomberg.market>, though, the domain name was "suspended at mid-afternoon" on the same day that the fake Twitter article was published!
It's unclear exactly what happened, but as of this writing the domain name's whois record lists its status as "serverHold" -- which ICANN describes as follows: "This status code is set by your domain's Registry Operator. Your domain is not activated in the DNS."
The Registry Operator's Anti-Abuse Policy
The whois record doesn't say why <bloomberg.market> was put in this status. But ICANN's registry agreement for the <.market> top-level domain has a requirement, known as "Specification 11," that contains an "Anti-Abuse Policy" giving a registry operator broad discretion to suspend a domain name. In particular, the policy says (emphasis added):
Registry Operator reserves the right, at its sole discretion and at any time and without limitation, to deny, suspend, cancel, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status as it determines necessary for any of the following reasons:
domain name use violates the Registry Operator’s acceptable use policies, or a third party’s rights or acceptable use policies, including but not limited to the infringement of any copyright or trademark...
Plus, the registry operator's own Anti-Abuse Policy gives it "sole discretion" to suspend a domain name that "[i]mpersonat[es] any person or entity."
Thus, it could be that Bloomberg simply complained to the registry operator, Rightside (which, ironically -- given the fake Twitter article on the fake Bloomberg site -- uses the advertising tagline, "Rightside Registry means more opportunity for storytelling").
If Bloomberg complained, Rightside may have concluded that it had the right, under its Anti-Abuse Policy, to suspend the <bloomberg.market> domain name because it infringed Bloomberg's trademark or was being used to impersonate Bloomberg. Which makes perfect sense.
Limitations of Anti-Abuse Policies as Domain Name Dispute Tools
Still, if this is how the dispute was resolved, it raises a number of important questions, most importantly:
- Since registry operators and registrars generally defer to the UDRP and the URS, why did Rightside exercise its discretion to suspend the domain name in this case?
- Under what circumstances will Rightside (and other registry operators with similar Anti-Abuse Policies) suspend domain names in the future?
The answers to these questions could be helpful to all trademark owners in cybersquatting disputes. Without such guidance, trademark owners could never rely on Anti-Abuse Policies.
Unfortunately, we're unlikely to get answers to the above questions. As a result, Anti-Abuse Policies will never gain the authority or precedent that UDRP proceedings offer as a result of tens of thousands of published decisions over the past 15 years.
Finally, the <bloomberg.market> story is unfinished even as this blog post was written: One week after the domain name was suspended, Bloomberg filed a UDRP complaint at the Forum (Claim No. 1629058, according to a search of the Forum's website).1 Perhaps because Rightside apparently only suspended the domain name, but the UDRP offers the ability to get a domain name transferred to the trademark owner.
Thus, while invoking a registry operator's anti-abuse policy may be an effective way to get a domain name suspended (or "taken down," as it is sometimes called), doing so is likely to remain an unpredictable and incomplete strategy. At best, it's probably a tool worth considering in addition to traditional approaches such as the UDRP in disputes that are clearly fraudulent and causing immediate and significant damage perhaps not only to the trademark owner but to a larger population.
1 Update (August 26, 2015): A UDRP panel ordered transfer of the domain name <bloomberg.market> to Bloomberg Finance L.P. In its decision, the panel wrote: "Complainant alleges that once the... fake article gained media recognition, use of the domain was suspended and currently resolves to a blank page displaying the message: 'Network Error.'"