Trevor Little

MarkMonitor has confirmed the termination of all accreditation agreements for the ‘.feedback’ top-level domain (TLD) following fallout from a public interest commitment dispute resolution procedure (PICDRP) complaint filed by the company and a coalition of brands. Troy Fuhriman, director of domain management at MarkMonitor, has further called on ICANN to review how current policies permit registry operators to engage in retaliatory conduct against those who raise legitimate compliance complaints.

There has been a long-standing tension between trademark owners and the ‘.feedback’ TLD over its pricing and policies. Last year we reported that a collective of brands had filed a PICDRP complaint with ICANN, seeking a review into an allegedly “escalating pattern of discriminatory, fraudulent and deceptive registry misconduct” by Top Level Spectrum (TLS), the operators of the ‘.feedback’ TLD. In March came the news that ICANN had informed TLS that it was in breach of its registry agreement, the first instance a registry has been found in breach of its ICANN compliance obligations as a result of PICDRP complaint.

Last month, Jay Westerdal, CEO of ‘.feedback’, then fired back at one of the one of the parties to the PICDRP, MarkMonitor. In a letter obtained by World Trademark Review he alleged that the PICDRP disclosed a confidential Registrar Accreditation Agreement (RAA) agreement, which “was not for public disclosure”, as an exhibit. While acknowledging that the confidential agreement did not come from MarkMonitor itself, he argued that – as a party to the group – it should have pointed out to co-filers that disclosing the agreement “would jeopardise any ICANN accredited registrar that was a member of the group”. MarkMonitor being the registrar amongst the filers, the letter stated: “It seems incurable. [But] please let us know what actions you will take to cure this breach with us or we will have no other option but to de-accredit your registrars.” MarkMonitor was therefore given 30 days to respond.

It has now been confirmed that MarkMonitor has terminated its relationship with ‘’feedback’, with Fuhriman expanding: “MarkMonitor has terminated all accreditation agreements for the ‘.feedback’ TLD in response to ICANN’s finding that the ‘.feedback’ registry violated its Public Internet Commitments and [the subsequent move by the registry which] sent MarkMonitor a retaliatory breach notification.”

On Domain Incite, Westerdal contended that the registry had terminated the relationship, arguing that MarkMonitor “didn’t want to leave but they knew this was the only spin that would save face”. However, Fuhriman disputes this, expanding: “In retaliation for having been found in violation and breach by ICANN, TLS sent its own breach notification to MarkMonitor, and threatened to terminate its registrar agreement for the ‘.feedback’ gTLD.  [But] No termination notice was received from the registry. MarkMonitor sent a termination to the ‘.feedback’ registry last week.”

Reflecting on the charges levelled by TLS, Fuhriman rejected “any assertion that MarkMonitor violated its confidentiality obligations” and characterised the response of TLS as retaliatory, explaining that no communication was engaged in with the registry following receipt of the breach letter: “The only communication we received from the registry was a breach notification. There was no suggested cure. It was reported by Domain Incite that the registry would accept an apology as a cure, which is not something we considered.” As to the decision-making process around the termination, he adds that this was “pretty straightforward”, noting: “We hoped this wouldn’t be the result – and we reject the breach of confidentiality – but we anticipated that they might try to de-accredit us. We really didn’t have a significant number of names registered anyway. It was a pretty easy decision for us and we think it is important for companies like us to stand up when registry behaviour goes beyond certain lines”.

Reflecting on the PICDRP, then, he observes: “We believe that it was a legitimate complaint that was raised and it is important as a brand protection and corporate registrar that we identify these types of abuses. We therefore wanted to be part of bringing this coalition of brands together.” However, he called on ICANN to examine protections offered to those who use its processes in this way, stating: “MarkMonitor encourages ICANN to critically examine how current policies permit registry operators who have already been found to have acted in bad faith to engage in retaliatory conduct against those who raise legitimate compliance complaints using ICANN’s own mechanisms and processes”.

Noting that “there are mechanisms that ICANN allows stakeholders to bring complaints but there are not enough protections in place for when these are brought against a contracted party”, he suggests that one solution is “non-retaliatory provisions, or stronger ones, in agreements”.

For now, though, the business relationship between MarkMonitor and TLS is over, with Fuhriman explaining: “All domains that clients wished to maintain have been transferred to another registry.”

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