[gnso-rpm-wg] New blog and whitepaper "How Threats Against Domain Names Are Used to Censor Content"

Jeremy Malcolm jmalcolm at eff.org
Thu Jul 27 22:49:44 UTC 2017

EFF is now encouraging registrants to avoid domains that are subject to
the TMCH.  From

"Today EFF and Public Knowledge are releasing a whitepaper titled Which
Internet registries offer the best protection for domain owners?
<https://www.eff.org/files/2017/07/26/domain_registry_whitepaper.pdf> ...

To draw one example of out of our whitepaper, if you're running a
website to criticize an established brand and you use that brand as part
of your domain name, it may be wise to avoid registering it in a
top-level domain that offers special rights and procedures to brand
owners, that could result in your domain name being wrongly taken away
or could embroil you in dispute settlement proceedings.

This probably means you'll want to think twice about registering in any
of the newer global top-level domains (gTLDs), which provide brand
owners access to a privately-run Trademark Clearinghouse that gives them
veto powers that go far beyond those they would receive under the
trademark law of the United States or those of most other countries.

For example, under U.S. trademark law, if a trademark applicant sought
to register an ordinary word such as smart, forex, hotel, one, love,
cloud, nyc, london, abc, or luxury, they would have to specify the
category of goods or services they provide, and protection for the mark
might only be extended to its use in a logo, rather than as a plain
word. Yet each of the plain words above has been registered in
the Trademark Clearinghouse
to prevent them being used in /any /of the new gTLDs without triggering
a warning to prospective registrants about possible infringement.

This applies regardless of whether the planned usage covers the same
category of goods or services as the original trademark—indeed there
isn't even any way for the registrant to find out what that category
was, or even which country accepted the mark for registration, because
the contents of the Trademark Clearinghouse database are secret. And
since 94% of prospective registrants abandon
<https://www.icann.org/news/announcement-2017-02-23-en> their attempted
registration of a domain after receiving a trademark warning, this has a
drastic chilling effect on speech. 

EFF is currently participating in an ICANN
<https://www.eff.org/issues/icann> working group fighting to ensure that
brand owners' veto rights aren't extended even further (for example to
catch domains that include /typos/ of brand names), and to prevent these
outrageous rules being applied to older gTLDs such as .com, .net, and
.org. But for now, you can minimize your exposure to trademark bullying
by avoiding registering your website in one of the new domains that is
subject to these unfair policies. Our whitepaper explains what to look for."

Jeremy Malcolm
Senior Global Policy Analyst
Electronic Frontier Foundation
jmalcolm at eff.org

Tel: 415.436.9333 ext 161

:: Defending Your Rights in the Digital World ::

Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt
PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122

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