It is impossible to create a blanket rule against all domain names incorporating the exact match of a domain name or a part thereof. This is not what domain name policy is all about and it certainly was not the intention (and vision) behind the creation of the domain name system. Let's not forget that domain names do not only have a commercial purpose and, in most of the cases, more than one mark exists around the world incorporating a certain term. to use the YMCA example, if the Village People were to register YMCA.com would that be illegal? even if they wanted it for commercial purposes there is no judicial system that would reach a fair conclusion denying them the right to stop using it. But, it all comes down to content/context - that's why we have the burden of proof as a judicial test in all adjudication system.

my 2 cents.

KK


Jul 23, 2012 11:01:50 PM, [log in to unmask] wrote:

===========================================

Michael,

How exactly do you (or does the law) define "fraudulent domain names"? 
That's my first question.  Is it something that an entity that is not a
public court could determine feasibly in practice?

I am dubious of this claim without at least one compelling example and
simple, clear criteria for making this judgment.  Fraudulent web sites are
common (misrepresentation in the content of the site), but I cannot
imagine how you can make a clear determination of a fraudulent *domain
name* per se, certainly not without lots of contextual evidence to help
out -- it cannot be done on an "armchair" basis, so far as I can tell.

As far as a "do nothing" approach, I'm not suggesting that nothing be done
to combat fraud, just that I am not convinced that ICANN is a proper
authority to do it, and that whatever should be done should be based on
the web site content/activity not on the domain name per se.

If it eventually leads to law enforcement mandating a take-down of a web
site (perhaps by having the registrar remove the domain from DNS), as long
as there is effective due process involved in that action (to prevent
preemptive removal of legitimate web sites that do no more than annoy a
powerful organization) I have no a priori objection to that, and it would
seem to be a good thing in principle.

But this should be addressed in the realm of courts and judges, not by a
wild-cowboy QUANGO like ICANN setting itself up as an authority for
frontier justice (both judge and policeman, as well as policymaker --
where's the structural separation of powers here? -- not good enough for
democracy).

Best,
Dan


-- 
Any opinions expressed in this message are those of the author alone and
do not necessarily reflect any position of the author's employer.



On Mon, July 23, 2012 2:33 pm, Michael Carson wrote:
>
> Dan,
>
>
> I agree with you with regard to the content of the site being an important
> component to determine fraud. However, there are fraudulent domain names
> and they are troubling to brand owners such as the YMCA. Considering the
> nature of our service to millions of individuals, it is very important to
> us to stop third parties from using YMCA in it's domain name. For profit
> entities and individuals/organizations engaged in nefarious activities
> (domains I will not mention) have been guilty of and continue to do so not
> only to misrepresent themselves to the public, but also to the many YMCA
> organizations around the world.
>
>
> The answer should not be an "do nothing" approach, but possibly something
> that protects everyone's (including nonprofit corporations) rights.
>
>
> Best,
>
>
>
>
>
>
> Michael Carson
>
> YMCA of the USA
> ----- Original Message -----
> From: "Dan Krimm" 
> To: [log in to unmask]
> Sent: Monday, July 23, 2012 3:17:17 PM
> Subject: Re: Opinions? Fwd: [] List of possible approaches for Red
> Cross/IOC names in new gTLDS
>
> Is the following really a fair statement?
>
>> ICANN's denial of responsibility for cleaning up a problem that its
>> policy
>> enabled (ie, creation of fraudulent domains)
>
> If a web site is engaged in fraudulent activity, the fraud inheres mainly
> in that content and activity, not in the domain string itself.
>
> A domain such as "redcrosshaitirelief.com" (suggested as an example below)
> could easily be used as a third party commentary site, or some other
> information supplementation site -- a perfectly good-faith use of such a
> domain that ought to cause no problems at all, in and of itself. So any
> judgment of fraud still depends on the web site content itself, not the
> domain string in isolation.
>
> Does the site represent itself to be operated by the RC? Not all sites
> using such a domain would necessarily do so. And if a site did do so,
> using some *other* domain, it would still constitute the same fraud. The
> domain string in and of itself is simply not determinative in this regard.
>
> So can we now agree that there is no such thing as a "fraudulent domain
> name" per se?
>
> Dan
>
>
> --
> Any opinions expressed in this message are those of the author alone and
> do not necessarily reflect any position of the author's employer.
>
>
>
> On Mon, July 23, 2012 11:52 am, Evan Leibovitch wrote:
>> On 23 July 2012 13:54, David Cake  wrote:
>>
>>> As far as the issue of charitable names being exploited for
>>> fraudulent purposes, as discussed by Evan and Milton - it seems to me,
>>> from
>>> discussions with the charities, that the *real* solution that the
>>> charities
>>> need (and not just the ICRC, with its unique legal protections, but ANY
>>> charity) is basically a takedown solution like those provided by the
>>> APWG
>>> etc. Fraud is fraud, we need good solutions to stop fraud - but not
>>> only
>>> will special rules for the ICRC not have a large effect on fraud
>>> targeted
>>> against charities in general, it won't even eliminate fraud against the
>>> ICRC - much fraud against the ICRC appears to use domain names that
>>> don't
>>> include the specific protected designations redcross etc, but just
>>> variations such as just somethingrc.org. If the specific redcross term
>>> and other protected designations were protected at the second level,
>>> we'd
>>> see fraudsters simply switch to less preferred names, such as
>>> variations
>>> on
>>> namerc type 2LD names, and 3LDs and such.
>>
>>
>> Agreed 100%.
>>
>> The kind of issue people in ALAC were responding to were the short-term
>> scam sites such as "redcrosshaitirelief.com", ones that specifically
>> used
>> the charity's name (specifically its conventional Internet 2LD names)
>> inside bogus 2LD strings. As I mentioned in the earlier email, there's
>> also
>> agreement that nothing is special about the Red Cross in this regard, I
>> would consider "unicefhaitifelief.org" or "oxfamhaitirelief.net" to be
>> just
>> as bad.
>>
>> As such, I would remind that ALAC has never been in favour of any Red
>> Cross
>> or IOC or IGO restrictions on TLDs -- ever. Some of you may recall that
>> I
>> was in the room near the end of the g-council debate on the issue in San
>> Jose, ready if necessary to detail ALAC's just-passed statement
>> supporting
>> the NCSG position. There is similarly no belief in special treatment for
>> IGOs, *especially* considering that most of them possess the rare
>> qualifications for the exclusive .int TLD already. So our position on
>> gTLDs
>> is still one of no change to existing policy.
>>
>> Furthermore... I never, in my original comment, suggested that prior
>> restriction -- at any level -- was our direction, only that a legitimate
>> larger issue, buried within the RC/IOC/IGO mess, did bare consideration.
>> We
>> don't claim the answer yet, just ask the question (that indeed does not
>> yet
>> appear to have been asked -- in all these years -- from the PoV of the
>> end
>> user rather than the registrants.) There are many possible approaches,
>> not
>> all of which have had a proper hearing to date. We're totally aware of
>> the
>> limitations of ICANN and domain names, and that removing obviously
>> fraudulent strings won't eliminate phishing or fraud. But it is also
>> wrong
>> to refuse to do anything because no solution can be complete. And
>> denying
>> of scammers the ability to use (clearly) fraudulent domain names impairs
>> their ability to do SEO to increase traffic to their sites.
>>
>> ICANN's denial of responsibility for cleaning up a problem that its
>> policy
>> enabled (ie, creation of fraudulent domains) simply offers useful
>> ammunition to those who would dispense with the multi-stakeholder model
>> completely, through demonstrating that one significant stakeholder --
>> the
>> end user being scammed -- is going unheard by the MSM.
>>
>>
>>
>>> Their is a fundamental difference between the ICRC arguments based on
>>> its
>>> special legal status, and arguments based on the ICRCs mission and
>>> specific
>>> operation concerns. The arguments based on the ICRCs special legal
>>> status
>>> are one thing. But the arguments based on the humanitarian mission and
>>> operational concerns of the iCRC could just as easily apply to
>>> organisations such as the MSF or UNHCR. I wish a lot more of the effort
>>> that has gone into the ICRCs arguments had gone into practical fraud
>>> takedown measures that would be applicable to all charitable
>>> organisations.
>>>
>>
>>
>> Agreed. IMO, ALAC is seeking to drive this forward in a useful manner,
>> by
>> steering and focusing (rather than outright rejecting) the claims in a
>> manner that benefits the public interest.
>> It would be nice if we could do this together with the NCSG, which is
>> why
>> I'm writing this.
>>
>> - Evan
>>
>