Kentucky Supreme Court Overturns Ruling That Blocked State Seizure Of Gambling Domain Names

from the jurisdictional-mess dept

As you may recall, in a move that was blatantly designed to protect local gambling interests (no one denies this particular point), Kentucky passed a law allowing the governor to declare any gambling related website (even parked domains) "illegal gambling devices" and then to seize those domains. The governor moved to do so on over 100 domains -- none of which had anything to do with Kentucky whatsoever. Amazingly, a judge agreed that the governor had every right to seize these domain names, despite the lack of a Kentucky connection. It's not hard to see how problematic a ruling this is from a jurisdictional standpoint. Thankfully, the state's appeals court overturned the lower court ruling. Separately, a UK court ruled that Kentucky had no right to seize UK-based domains.

The state appealed the ruling in the appeals court, and many assumed that the Kentucky Supreme Court would agree with the basic logic of the appeals court. Instead Ragaboo alerts us to the news that the Kentucky Supreme Court has overturned the appeals court ruling, effectively allowing the state to seize the domain names again. The ruling focused on a technicality, rather than on the merits -- arguing that the Interactive Media and Gaming Association (iMEGA) and the Interactive Gaming Council (IGC), two gaming associations who brought the lawsuit in the first place, had no standing in the case and could not bring the case in question.

"Instead of owners, operators, or registrants of the website domain names, the lawyers opposing the Commonwealth claimed to represent two types of entities: (1) the domain names themselves and (2) gaming trade association who profess to include as members registrants of the seized domains, though they have yet to reveal any of their identities."

The court even acknowledged that the lawyers on behalf of the associations made "numerous, compelling arguments endorsing the grant of the writ of prohibition," but that "(a)lthough all such arguments may have merit, none can even be considered unless presented by a party with standing."

Of course, it seems rather ironic that the issue here is standing, when you could just as easily ask what sort of standing the state of Kentucky has to seize a domain name based elsewhere? In the meantime, if any of the actual domain owners is willing to step forward, the case may be reheard -- and hopefully the Kentucky Supreme Court will rule against the state on the merits and the simple fact that seizing domain names that have nothing to do with Kentucky sets an incredibly dangerous precedent.

Filed Under: domain names, gambling, kentucky

Independent Review Finds ICANN Screwed Up In Approving... Then Rejecting .xxx

from the who-did-what-now? dept

If you haven't followed the .xxx saga, it's been a bit convoluted. While it's still not at all clear why we need top level domains at all any more (or, if we must have them, why they should be limited to the ones chosen by ICANN), for many years, ICANN has been in charge of reviewing various proposals to expand the available top level domains (things like .com, .net, .org, etc.). That's how we got other such useless TLDs like .info, .jobs and .mobi -- which have mostly just turned into money grabs for the companies that operate them, rather than anything that was really needed. .xxx is the same story. Obviously, it's a huge money grab, because whoever would operate it would stand to rake in the cash from porn operators looking to set up new sites. While ICANN initially rejected the proposal at the beginning of the decade, the guy behind .xxx tried again, and in 2005, ICANN agreed that .xxx met all the criteria and should be allowed.

So why doesn't the internet yet have this official redlight district?

Well, what really happened was that "protect the children"-type family groups freaked out about admitting to the fact that (gasp!) porn exists on the internet. Amusingly, some of those same groups and their favorite politicians had pushed for .xxx anyway, in an effort to force all porn to be located there. But, for some reason, after .xxx was approved, they suddenly freaked out that this somehow meant porn was okay, and started causing trouble. Suddenly, months after ICANN had already approved .xxx, the federal government (under whose umbrella ICANN kinda-sorta belonged) suggested rather strongly that .xxx was not a good idea. Suddenly, everything was put on hold, and in 2007, ICANN officially said no to .xxx.

This infuriated the folks behind .xxx, a group called ICM, and they asked for an independent dispute resolution, which was released last Friday. So, after all these many years, the review found that ICANN totally screwed up, and it never should have backed down after its 2005 approval of .xxx. It's also demanding that ICANN pay up for this review process, in the range of half a million dollars. Of course, the ruling is non-binding, so it doesn't necessarily mean that ICANN now does need to approve .xxx, but it makes it harder to explain why it hasn't. Also complicating matters is ICANN's more recent decision to let pretty much anyone with a ton of cash to throw away create their own TLD. So, perhaps the .xxx guys can just do that...

Filed Under: .xxx, domain names
Companies: icann, icm

Is The .mobi Madness Finally Over?

from the that-would-be-nice dept

From back when it was first suggested six or so years ago, we were quite skeptical of the need for a "mobile only" top level domain called .mobi. It wasn't difficult to predict that devices would get better and wireless data services would get better, such that there would be no need for a special separate mobile web -- as everything could easily be delivered via the "regular" web. If anything, like many new TLDs, the whole thing just seemed like a cash grab, because companies would feel obligated to pay up to reserve their .mobi domain names before someone else did. And while .mobi tried to position its offering as something much more than a splinter scaled-down internet, most people pretty quickly realized that it served no reasonable purpose. To be honest, I hadn't even heard much at all about .mobi in a couple years, and as more and more people moved onto phones that could handle full webpages -- or, companies set up their own regular websites to automatically scale down for mobile browsers -- the whole concept seemed to have faded away. MobHappy reports that .mobi has been sold off to the company that also owns the rights to the .info domain -- so both can now live together in uselessness. But, best of all, as Carlo explains:

And in case you were wondering, my favorite .mobi site, flowers.mobi -- you remember, the one that was purchased for $200,000 in 2006 and was supposed to be developed into a legit site with "relevant content" -- is still just a parked domain with ads. And it's still not compliant with .mobi's rules for its sites. Big surprise there.

Filed Under: .mobi, domain names, mobile, mobile data, tlds, top level domains

Should ISPs And Registrars Be Responsible For Bogus Online Pharmaceutical Sites?

from the a-thousand-times-no dept

Michael Scott points us to an article at CircleID that appears to be little more than a disguised press release for a company pitching "brand protection service," suggesting that registrars and ISPs need to crack down on illegal online pharmacies and drug trafficking or face legal consequences. While the analysis is correct that trademark violations are a loophole not protected by CDA section 230 safe harbors, that doesn't necessarily mean that a registrar or ISP is automatically liable for hosting such a site. The whole point of section 230 is to make sure that liability is properly placed on the user, rather than the service/tool provider. That should stand even without section 230 protections. You can't just blame a third party because they're easier to find. The article seems to imply that if anyone complains about a trademark in a domain name, registrars and ISPs should automatically shut down that site -- but that would create serious problems. The real issue here is a serious loophole in safe harbor protections when it comes to trademarks. The answer shouldn't be a moral panic for registrars and ISPs, but to close the loophole and harmonize the various safe harbor provisions.

Filed Under: domain names, isps, liability, pharmaceuticals, registrars, trademarks

Arbitrators Says Groovle Not Confusingly Similar To Google

from the didn't-expect-that dept

In domain name arbitration disputes, it often seems like the big name almost always wins -- but apparently not always. Canadian search engine Groovle (which actually uses Google as its underlying technology) has won a domain name dispute with Google, as the panelists reviewing the dispute said that Groovle wasn't simple enough to confuse people, and people probably thought of the word "groovy" or "groove" more than Google when they saw Groovle. This really is a bit surprising, since it's pretty rare for the small players to win these sorts of disputes.

Filed Under: domain names, trademark
Companies: google, groovle

Australian Domain Authority Circumvents Standard Process To Shut Down Site Critical Of Australian Internet Filters

from the due-process? dept

With the news that Australia has decided to censor the internet, a group of protesters decided to set up a website complaining about this effort by Communications Minister Stephen Conroy (who laughably called internet filters "100% effective" based on absolutely no metrics). In setting up this protest site, they were able to register the domain stephenconroy.com.au. Not surprisingly, that got some press attention, and suddenly the Australian domain authority, AuDA, took notice. As Slashdot points out, AuDA completely circumvented its usual due process mechanism, and it gave the holders of the site a grand total of 3 hours to defend themselves. When they asked for more time, they were shut down. Now, there are legitimate questions about whether or not they deserve this domain name. But you would think that AuDA would be willing to at least give them the normal amount of time to craft a reply and defend why the site is legit. The speed of the takedown certainly suggests political motivations -- more than a typical review process -- and highlights the very problem the site was set up to illustrate: why it's bad when the government can suddenly snuff out websites with views it does not like.

Filed Under: australia, censorship, domain names, filters, stephen conroy
Companies: auda

NCAA Tries To Bully Fan Discussion Site Into Handing Over Its Domain Name

from the how-about-ncaasucks.com? dept

Reader Eileen writes in to alert us that the NCAA -- known for its overly restrictive views at times -- is trying to bully the owner of the discussion website NCAAbbs.com into handing over its domain names. The NCAA is, not surprisingly, complaining that any domain name that includes NCAA automatically should belong to the NCAA. Of course, it's not so simple. While the NCAA does have a trademark on its name, that doesn't mean it gets automatic control over any site that uses NCAA in its domain name. The NCAAbbs site is clearly not associated with the NCAA and is pretty clearly just a fan discussion site. The owner of the site says that he's planning to fight the demand, and hopefully he can succeed. While the domain dispute process can be a bit arbitrary, the courts have often realized that a trademark holder does not get full control over every domain that mentions them. Hopefully, that will be the case here as well. Of course, the one area where it's pretty clear that you can keep such a domain name is in cases of "sucks sites." So perhaps if the NCAA wins this, the owner can simple relocate to NCAAreallysucks.com.

More to the point, however, you have to wonder what the NCAA thinks it's doing here. You have a site that has been set up to promote the NCAA and all of the various sports teams within the NCAA. This is an incredibly useful promotional tool that the NCAA should be celebrating and helping rather than attacking. Why do so many organizations think it's smart to threaten, attack or sue their biggest fans?

Filed Under: domain names, ncaa, trademark
Companies: ncaa

FreeCreditReport Wins Over 1,000 Domain Names In Dispute Process

from the trademark-control dept

It's quite common for various trademark holders to go through the UDRP domain dispute process to get back domains held by cybersquatters. Still, it's quite impressive to hear that FreeCreditReport.com was able to get 1,017 separate domain names in a single dispute (found via Slashdot) apparently by using some sort of software that identified all the domains. The company that held the domain names argued, in part, that the term "free credit report" should be seen as generic, not a specific trademark, but the arbitration board simply said that since the USPTO had granted FreeCreditReport.com with a trademark, that the trademark was solid -- and thus most domain names that included those words could be turned over.

This does raise some questions however -- since we've seen plenty of other cases where domains that included trademarked terms, but which would not be confusing to users (such as "trademarknamesucks.com"), have been allowed to be used by the original registrant, rather than handed over to the trademark holder. It's unclear, in this case, if some of those domains were like that -- or if they were all pure squatter domains. Still, it's quite an impressive haul by FCR.

Filed Under: domain names, trademark
Companies: freecreditreport.com

Court Rules That Using Domain Registration Privacy Services Represents 'Material Falsification'

from the that-doesn't-seem-right dept

Lots of people use private registration services for domain names, that lets them register a domain name while keeping their own identities private. There are plenty of legitimate reasons to do so: they don't want spam or they want to keep the identity of the site owners anonymous. However, in a recent spam lawsuit, the Ninth Circuit court of appeals has said that using such a service is "material falsification" of information:

[P]rivate registration is a service that allows registration of a domain name in a manner that conceals the actual registrant's identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant's identity would constitute "material falsification." Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.

While CAN SPAM requires a combination of both material falsification and intent to send spam, it does open up some questions about potential legal problems for anyone who uses such a private registration service in a variety of lawsuits (if those lawsuits are in the Ninth Circuit, of course). The court does seem to admit that this could cause problems, but the job of the court isn't to stop those problems, just to interpret the law.

Separately, in the same lawsuit, the court ruled that the appropriate "community" for judging obscenity standards in email is the "national community" rather than the local community. I have enough problems with the whole "community standards" method of judging "obscenity" in the first place (well, I have trouble with "obscenity" laws entirely), but if you have to have them, it does seem that a national standard makes more sense than a local standard when it comes to email that could go to anyone in any community. As Thomas O'Toole notes in his writeup, the ruling is a bit of a mess, and should keep First Amendment lawyers busy (though, the same is true of any obscenity laws...).

Filed Under: domain names, email, material falsification, private registration

UK Court Says Kentucky Has No Right To Seize Gambling Domain Name

from the not-that-it-cares dept

We've covered the bizarre legal battle in Kentucky, where the governor tried to have a long list of gambling-related domain names (none of which had anything to do with the state of Kentucky) declared "illegal gambling devices" so that the state could seize the domain names. The governor has been pretty open that this has nothing to do with any moral issue over online gambling, but is a blatant attempt to help protect local gambling establishments in the state. Of course, it's ridiculous to think that a state governor could claim the right to seize domain names that are not based in Kentucky at all, and after a lower court (that didn't seem to understand the issue) sided with the governor, an appeal court overturned that ruling. Rather than recognize how silly this campaign is, the case is going to the state Supreme Court.

But, apparently the lawsuits aren't just happening in Kentucky. Michael Scott points us to the news that one of the companies targeted by Kentucky brought a lawsuit both against Kentucky and its own registrar in the UK to get a ruling that it is not subject to the whims of Kentucky politicians. The state of Kentucky ignored the proceedings, which resulted in the court agreeing that Kentucky has no right to seize the domain name. Of course, the state of Kentucky probably couldn't care much less about what a court in England thinks (which explains why it didn't even bother to respond), so the victory may be somewhat meaningless. However, at the very least, if Kentucky somehow wins its case in the US, perhaps the registrars in the UK can point to this ruling to refuse handing over the domain names.

Filed Under: domain names, gambling, kentucky, uk