The Uniform Domain Name Dispute Resolution Policy (UDRP) is often described as one of the most efficient dispute resolution systems on the Internet. At the center of that system sits the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, a document that synthesizes how panelists have historically interpreted key provisions of the Policy.

Although the Overview is not formally binding, it functions in practice much like a common law digest. Panels rely on it heavily, practitioners cite it routinely, and parties often assume that its guidance leads to reasonably predictable outcomes. Recent decisions suggest that the reality is more nuanced.

A number of UDRP cases decided within a short period of time illustrate how experienced panelists applying the same Overview provisions can reach different conclusions when faced with similar fact patterns. That divergence does not necessarily reflect inconsistency in the system; rather, it highlights something inherent in the Policy itself. The UDRP leaves room for judgment. For parties bringing or defending domain name disputes, understanding where that discretion exists can be just as important as understanding the written rules.

Willful Blindness — But for Whom?

In recent UDRP decisions, panels have increasingly relied on the concept of "willful blindness." Section 3.2.3 of the WIPO Overview allows panels to find bad faith where a registrant deliberately fails to search and screen domain registrations against available trademark databases or online sources. For domain investors and other registrants, this doctrine effectively imposes a diligence expectation: before acquiring a domain name, one should conduct at least basic searches to determine whether the term is associated with an existing trademark.

Yet some recent cases highlight an interesting asymmetry in how this principle operates. In Carahsoft Technology Corp. v. Ivan Spasenovic (Forum Mar. 3, 2026), the panel addressed the domain name caresoft.co and concluded there was no plausible legitimate explanation for the registration of a domain name that is a misspelling of the Complainant's well-known and distinctive mark.

The statement is striking for its breadth. Yet a simple internet search reveals that numerous companies operate under the name "Caresoft" — in healthcare technology, caregiving software, and medical services. The combination of "care" and "soft" (short for software) is a natural and descriptive construction that arises independently in multiple contexts.

This raises an important question about symmetry. If registrants may be criticized for failing to conduct basic searches before registering a domain name, should panels apply a similar level of inquiry before concluding that a domain has "no plausible legitimate use"? The UDRP expressly permits such inquiry under Section 4.8, which authorizes panels to conduct limited factual research into matters of public record.

The Role of Interpretation in UDRP Decisions

The UDRP was intentionally designed as a streamlined dispute resolution process. Panels apply the same three-part test in every case: (1) the domain name is identical or confusingly similar to a trademark; (2) the respondent lacks rights or legitimate interests; and (3) the domain name was registered and used in bad faith.

The WIPO Overview helps clarify how these elements should be interpreted. While not binding, it functions in practice much like a digest of panel consensus. But the Overview does not eliminate interpretive judgment. Panels still must determine how these principles apply to particular facts, and recent cases demonstrate how those interpretive choices can produce different outcomes even when panelists rely on the same sections of the Overview.

Willful Blindness Under Section 3.2.3

Section 3.2.3 provides that respondents who deliberately fail to search and screen domain registrations against available databases may be responsible for abusive registration. What the Overview does not define, however, is: what constitutes an adequate search; whether diligence expectations vary depending on the registrant's sophistication; or how the nature of the domain term affects the analysis.

In ORCID, Inc. v. Mira Holdings (Forum Feb. 28, 2026), the panel emphasized the coined nature of the term "orcid" and the overwhelming search results tied to the complainant. Because the term had no dictionary meaning and was strongly associated with the complainant, the respondent's claimed lack of knowledge was treated as implausible. A different approach appeared in Naturgy Energy Group, S.A. v. [Respondent] (WIPO 2026), where the respondent documented that it had conducted a limited search prior to acquisition. The panel nevertheless concluded that the search methodology was insufficient for a domain intended for global resale. These cases suggest that panels increasingly evaluate diligence expectations in context, including the nature of the domain name and the registrant's business model.

Default Proceedings and Independent Inquiry

The Carahsoft decision also highlights the procedural dynamics of default cases. Section 4.3 confirms that a respondent's default does not automatically result in transfer. Section 4.8 separately authorizes panels to conduct limited factual research. When a respondent does not participate, the panel may effectively become the only actor capable of introducing publicly available context into the record. Where that inquiry does not occur, the complainant's narrative may remain largely untested, and findings such as the assertion that a domain name has "no conceivable legitimate use" may not withstand even minimal independent verification.

What These Cases Tell Us About the UDRP

Taken together, these decisions highlight a central reality of UDRP practice. The WIPO Overview synthesizes principles, but it does not eliminate discretion. Panels evaluating willful blindness, legitimate interests, typosquatting, and defaults still must apply those principles to real-world facts, and different panelists may weigh those facts differently.

For trademark owners, that means presenting credible evidence of targeting while avoiding overreach. For domain investors, it means demonstrating diligence practices and independent meaning where it exists. For practitioners, it means recognizing that UDRP advocacy is rarely just about citing the correct Overview section — it is about framing the facts in a way that resonates with how panels actually evaluate disputes.

How ICANN's Assurances at ICANN 84 Diverged from Reality — And Why That Undermines Applicant Readiness and Community Trust

For more than a decade, the ICANN community has devoted extraordinary time and energy to preparing for the next round of new gTLDs. ICANN Org frequently emphasizes its own readiness, and there is no doubt that the internal machinery behind this program is finally gaining momentum. Yet readiness is not only an internal measure. It also depends on the reliability of ICANN's communication with the very community the program is meant to serve.

The Public Forum exists precisely to create a transparent space for that communication. It is the venue where community members raise concerns, seek clarity, and expect responses that they can depend on. For the Public Forum to serve its purpose, the answers must be accurate, the commitments must be honored, and any changes to those commitments must be communicated openly. When that does not happen, the Public Forum becomes a ceremonial exercise rather than a meaningful instrument of accountability.

This is not a theoretical concern. At ICANN 84, I raised two issues that go to the heart of applicant readiness: the delayed publication of the Registry Service Provider (RSP) qualification list, and the delayed finalization of the Registry Agreement (RA). Both issues directly affect whether potential applicants — including some of the world's largest corporations — can reasonably participate in the next round.

What I Told ICANN at the ICANN 84 Public Forum

During the Public Forum, I began by expressing appreciation for the outstanding work being done by the ICANN new gTLD team. I then outlined two significant readiness issues. First, the RSP qualification list — originally planned for release in December — was slipping into January or even February. Second, the Registry Agreement, expected in December, was being pushed to March. For many applicants, especially large multinational corporations with complex governance structures, receiving the RA only weeks before the application window opens is an unworkable timeline.

I urged the Board to approve the Registry Agreement in December, with any minor refinements to follow. ICANN used a similar approach with the Applicant Guidebook in the 2012 round, and adopting that model again would give applicants the time they need to prepare.

What ICANN Leadership Said — And What Actually Happened

The response from ICANN's CEO regarding the RSP issue was direct and seemingly reassuring. He stated that the delay should be roughly two weeks, that it would not amount to months, and that ICANN did not believe the slippage would affect the opening date. Despite the CEO's assurances, ICANN later announced that the RSP results would not be delayed by two weeks, but by more than six weeks, with a new publication date of January 30th. This was not simply a modest adjustment — it was a material change with significant implications for applicant preparation.

The disconnect between what was said at the Public Forum and what subsequently occurred is not a minor administrative matter. It goes to the core of what the Public Forum is for. When community members ask questions and receive confident, specific answers from ICANN leadership, they incorporate those answers into their planning. When those answers turn out to be incorrect — and when no proactive correction is made — it erodes the very trust that the program depends upon.

ICANN's readiness cannot be measured only by internal milestones. It must also be measured by whether the community can rely on what ICANN says. The Public Forum is only as valuable as the accuracy and reliability of the responses it produces. If this program is to succeed, ICANN must treat its public commitments with the same seriousness that it asks applicants to bring to theirs.

This week, ICANN finally approved the Applicant Guidebook — essentially the RFP — for the 2026 round of new gTLDs. This marks the single biggest milestone toward accepting applications in just about six months' time.

Most people will never fully appreciate the amount of work that went into this moment — more than a decade in the making. Some of us began this effort back in 2014–2015, right as the first wave of new gTLDs was still being launched. At the time, it was nearly impossible to get anyone to focus on "the next round." I vividly remember scrambling to get even a few minutes on meeting agendas.

Avri Doria, Cheryl Langdon-Orr, and I would often joke that we had to coerce volunteers just to join our early calls to begin the policy process. But those few early believers laid the groundwork for what became a true community movement. Over the years, what started as a handful of passionate advocates turned into a working group of more than 150 dedicated participants — people who invested hundreds upon hundreds of hours in meetings, drafting sessions, and debates that sometimes stretched late into the night.

By 2016–2017, we began to turn a corner. The idea that "another round" could actually happen was no longer dismissed as wishful thinking. We started to earn time on the agendas of each ICANN stakeholder group, the GNSO Council, and — what I'm most proud of — the Governmental Advisory Committee (GAC). Our team became the first Policy Development Process in ICANN's history to not only include GAC members as participants, but to welcome them as part of the leadership team itself. That collaboration helped bridge long-standing gaps between community policy development and governmental concerns, setting a precedent for how inclusive policy can be achieved.

For me, this milestone is personal. Over the past two decades, I've had the privilege of working across every corner of the gTLD ecosystem — from serving as Vice President of Registry Services at Neustar (helping launch .biz, .us, and .co) and supporting more than 300 applications in the 2012 new gTLD round, to now leading the policy and implementation planning for the upcoming 2026 round. Through JJN Solutions, I help registries, registrars, and brand owners navigate every stage of the gTLD process.

If your organization is thinking about applying for a new gTLD, now is the time to start. Reach out — I'd love to help you make the most of this historic opportunity.

The second volume of the Domain Name Chronicle by JJN Solutions is now out covering a host of topics including ICANN's New CEO, New gTLD development and Part 1 of a multi-part series on An Applicant's Journey through ICANN's New gTLD process.

Get Your Copy Today (PDF)

First, let me commend ICANN for finally coming out with a substantive statement on the deplorable antisemitic comments made by Talal Abu Ghazaleh, founder and chairman of the Jordan-based organization, Talal Abu-Ghazaleh Organization (TAG-Org). In its response, ICANN acknowledged that such hate speech "has no place in ICANN's multistakeholder process," and that these comments violate ICANN's Expected Standards of Behavior. ICANN has also apparently reached out directly to inform TAG-Org of the violation and has referred this matter to the Office of the Ombudsperson.

ICANN's response then points out that TAG-Org was not just hosting an instance of the L-Root, but is also a dispute provider, domain name registrar, and an ICANN community member. And in lumping all of these roles together, ICANN punted the issue back to the community by posing the question: what role, if any, should ICANN have in addressing egregious conduct that violates the Expected Standards of Behavior? To sum it up, ICANN condemned the hate speech — but then engaged in over-analysis paralysis to unnecessarily complicate the issues and justify its unwillingness to take any additional affirmative action.

1. ICANN Alone Must Decide TAG-Org's Fate in Hosting the L-Root

There is a reason I only asked ICANN to take action against TAG-Org in its role in hosting the instance of ICANN's L-Root. Unlike the other more complicated roles, hosting an instance of ICANN's L-Root is NOT a community-based function. ICANN's decision on who hosts instances of the L-Root is made solely by ICANN Org without any input from the community. In this role, TAG-Org is strictly a vendor of ICANN Org — no different than who ICANN selects to provide its vending machines or hardware for its data servers.

Of the 195 L-Root instances that exist, the vast majority were selected by ICANN Org engineering staff without any input from even its own Board of Directors. In instances where the Board has been involved, Board Minutes clearly point out that the selection of who gets to host instances of the L-Root "is an Organizational Administrative function that does not require public comment." In other words, the selection or de-selection of who hosts instances of the L-Root is an internal ICANN Organization matter. ICANN does NOT need community feedback in removing a vendor it alone chose.

2. ICANN's Only Role in the Dispute Provider Arena is to Decertify

ICANN's role with respect to dispute providers is indeed more complex than its vendor relationship with TAG-Org for the L-Root instance. However, ICANN has a clear and definitive role that it can take — decertification. ICANN alone determines who gets to be an approved UDRP dispute provider, and it alone has the power to decertify a provider. If a provider's leadership openly advocates for the extermination of an entire religion, ICANN should use that power.

3. ICANN's Role with Respect to TAG-Org as a Registrar

While ICANN's role with respect to registrars is more limited and contractually governed, the violation of ICANN's Expected Standards of Behavior by a registrar's leadership is a matter that ICANN's compliance team should investigate and address through contractual mechanisms if warranted.

To put it simply: ICANN does not need to create new policy to address what a rogue vendor has done. It needs to use the tools it already has.

"Silence is complicity." These are the words United States President Joe Biden used on Monday, December 18, 2023 at the first-ever White House Hanukah Menorah lighting ceremony. He called "on Americans to get off the sidelines and join the fight against rising anti-Semitism in the United States."

It is with great sadness that I am writing this to officially declare that the Internet Corporation for Assigned Names and Numbers ("ICANN"), the global regulator for Internet domain names and IP Addresses, is complicit in Anti-Semitism.

In letters sent to ICANN on November 3rd, November 8th, and again on December 10th, I drew ICANN's attention to the deplorable antisemitic comments by Talal Abu Ghazzaleh, the founder and chairman of the Jordan-based organization, Talal Abu Ghazzaleh Organization. In these awful comments, he called for extermination of Jewish people and asked forgiveness for Hitler's failure to complete the Holocaust. The comments are unambiguous antisemitism.

In my letters to ICANN I reminded them that TAG was a vendor bestowed the honor of hosting an instance of the L-Root in Amman, Jordan. I asked that ICANN terminate its vendor relationship with the antisemitic organization, remove the instance of the L-Root, and move it to a non-antisemitic organization in the region. ICANN's vendor not only violated ICANN's Expected Standards of Behavior, but also the ICANN Management Root Server Principles documented in RSSAC 037, which require that RSOs "must operate with integrity and an ethos demonstrating a commitment to the common good of the Internet."

ICANN's silence has been deafening and clear. Since receiving the first letter fifty-three (53) days ago, ICANN has not only not responded substantively to the request, but has not even issued any statement that the comments were deplorable. In this day and age, what kind of organization would not even issue this type of statement?

In a deeply personal note sent to ICANN's CEO, General Counsel and Chair of the Board on December 13th, I specifically reminded them that there are many institutions under scrutiny for their responses to antisemitism. ALL of those institutions responded immediately by condemning the actions and statements — even if they didn't take further action. ICANN has not even done that.

I am not out to get ICANN Org. I am one of ICANN's biggest supporters. I have spent the past 25+ years trying to defend ICANN and its model, serving on countless committees and spending thousands of hours trying to develop policies that would make ICANN the most respected internet governance organization in the world. But ICANN's silence on this matter has officially crossed a line that I never expected it to cross. ICANN, by its silence, has abandoned the Jewish members of its community.

Dear Tripti, Sally and Danko,

I am just writing to follow up to my letters dated November 3rd and November 8th to get an update from ICANN on the removal of the instance of the L-Root from the Talal Abu-Ghazaleh Organization. I have not received anything from ICANN Org since receiving your acknowledgment.

As you may be aware, yesterday the Anti-Defamation League ("ADL") announced that since the Hamas massacre in Israel on October 7, 2023, "antisemitic incidents reached the highest number of incidents during any two-month period since ADL began tracking in 1979." It called the 337% increase in incidents "unprecedented" and sees no signs of diminishing. Finally it encourages public officials to "take clear action to show this behavior is unacceptable to prevent more violence."

I understand removing an instance of the L-Root may require a transition period, but it is also my understanding that even though the host provides the hardware and network operations for the instance, "ICANN staff looks after the software and the administrative management." Making an announcement that you will be transitioning the instance away from a host that has so flagrantly violated ICANN's Community Anti-Harassment Policy and Terms of Participation is an important initial step.

Last night we celebrated the fifth night of Chanukah, the Jewish Festival of Lights. Observance of this holiday teaches us to never be afraid to stand up for, and do, what's right, no matter how daunting the odds. It also teaches us that when the world is at its darkest, a little bit of light goes a long way. ICANN has an opportunity to provide that light by condemning antisemitism globally, promoting peace, and holding its vendors accountable. Hosting an instance of the L-Root is an honor and a privilege that must only be given to organizations that are representative of the ICANN community and its values.

Sincerely,
Jeff Neuman

Dear Tripti, Sally and Danko,

Thank you for your consideration of my previous letter dated November 3, 2023 regarding the Antisemitic statements made by Talal Abu Ghazaleh, the founder and chairman of the Jordan-based organization, Talal Abu-Ghazaleh Organization, calling for the removal of the instance of the L-Root from this organization.

The response I have gotten from the ICANN community in support for my request has been overwhelming, and I thank community members that have reached out to me personally in dealing with this incredibly difficult and sensitive situation.

I wanted, however, to address a couple of comments I have gotten over the past few days. First, I have heard that my statement can be mistakenly interpreted as advocating that the L-Root instance should not be with an Arabic, Jordanian, or Palestinian organization. That could not be further from the truth. There are hundreds, if not more, organizations in Jordan and other Arabic countries that would be worthy and deserving of hosting that instance. I am only calling for the instance to be at an organization that does not advocate Antisemitic principles or openly call for the eradication of Israel and the extermination of Jewish people.

Second, some have said that the Ukraine situation established a principle for ICANN staying out of these types of situations. However, this is nothing like that previous request. I am not calling for anyone to be removed from the Internet. No one will be harmed by the removal and relocation of 1 of the 195 instances of the L-Root server, especially if it is transitioned to another Jordanian location with a non-Antisemitic organization.

Hosting an instance of the L-Root should be treated as an honor and a privilege, not a fundamental right. And with that privilege comes a responsibility, at a minimum, to act in accordance with ICANN's Expected Standards of Behavior.

Sincerely,
Jeffrey J. Neuman

I am posting this letter I just sent to ICANN's Chair and Vice Chair as well as to the CEO regarding the statements made by the founder of an organization that hosts an instance of the L-Root Server. I am not posting this to be critical of ICANN at all. ICANN has always done the right thing here and I am sure they will do what is right this time as well. I have faith in ICANN Org and their leaders.

Dear Tripti, Sally and Danko,

I wanted to thank you for your unequivocal statement at the ICANN78 Public Forum that certain political commentary has no place at ICANN and at ICANN meetings. As a Jewish person that lost much of my extended family in the Holocaust in Germany (where the meeting was hosted), it was truly upsetting to see a well-intentioned color-board ruined with words which represent a movement that stands for the eradication of Israel and the extermination of all Jews in the world.

It is on this same matter that I want to draw your attention to the comments by Talal Abu Ghazaleh, the founder and chairman of the Jordan-based Talal Abu-Ghazzaleh Organization. In these awful comments, Talal engages in explicit antisemitic speech, including calling for Hitler to have completed the Holocaust. I also recall that TAG-Org hosts an instance of ICANN's L Root in Jordan. I believe ICANN must take immediate action to remove this instance from TAG-Org and find a new home for this instance. In addition, ICANN should make an unequivocal statement ASAP that it does not condone such hate speech and that it will not have any partnerships whose founders or leaders espouse such views.

I do not consider myself a political activist by any means, but I care about ICANN and its future. And that future cannot associate itself with organizations that support antisemitism. Other Organizations have already come out against TAG-Org and ICANN should as well.

Please feel free to post this message to the Correspondence page. I am posting this on my blog in the spirit of openness and transparency.

As ICANN turns 25 and I turn 51, I realize that I have literally spent more than half of my life working in the domain name industry and with the first multistakeholder experiment originally called NewCo — later called the Internet Corporation for Assigned Names and Numbers (ICANN).

My first interaction with NewCo was as an Intellectual Property attorney at the law firm of Arter & Hadden. I was also on the Cyberspace committee of the American Intellectual Property Law Association (AIPLA), which would go on to become one of the original members of ICANN's Intellectual Property Constituency. At the time, I was there solely to represent my clients in the hopes of developing a faster, cheaper, and more efficient dispute resolution mechanism to combat what was later called cybersquatting.

On November 13, 1998, I took an Amtrak from Washington D.C. to Boston to attend the very first ICANN Public Meeting at the Cambridge Marriott. My law firm was not paying for the trip, so I went on my own dime. On the long train ride I was reading "A Civil Action," which described a Harvard professor named Charles Nesson as brilliant, charming, someone always looking to meet the most important person in the room, with long flowing greyish/white hair and an incredible smile.

When I arrived at the Cambridge Marriott and approached the registration table, I was handed a name tag, a Sharpie, and a binder. The first speaker walked to the podium — with long flowing greyish/white hair — and introduced himself as Charles Nesson. After getting over the shock of who that was, and the fact that the book nailed his description perfectly, he went on to introduce the 10 people sitting at a table as the first ICANN Board of Directors, hand-selected by Jon Postel and his counsel, Joe Sims from Jones Day.

After the introductions, all hell broke loose. It was like nothing I had ever seen before. Academics and representatives from civil society and business got up to the microphone in rapid succession. There was incredible passion, some anger, a sense of both excitement and deep concern about what this new organization would mean for the Internet.

What struck me most then — and what strikes me most now, 25 years later — is that the fundamental tension present at that very first meeting has never really been resolved. ICANN remains caught between being a lean technical coordination body and an elaborate policy development organization. Between serving the needs of governments and serving the multistakeholder community. Between moving fast and being accountable. The lessons from NewCo are still being learned.

As ICANN prepares for another round of new gTLDs and continues to wrestle with its evolving role in internet governance, that history matters. Those of us who were there from the beginning have an obligation to share it — not to romanticize the past, but to give the next generation of internet governance participants the context they need to make the future better.

A. Background

Though not in the ICANN Board Scorecard directly, ICANN Board Members Becky Burr and Avri Doria discussed the ICANN Board's ideas for a "steady state" open window for new gTLD applications after one or two "rounds" as envisaged by the Final Outputs of the Subsequent Procedures Working Group. The following sets forth some more details about the SubPro Working Group's extensive consideration of this issue and the rationale for why, by unanimous consensus, it recommended that there always be rounds.

B. SubPro's Extensive Discussions Regarding Rounds

The SubPro Working Group deliberated for hundreds of hours on whether applications for new gTLDs should be assessed in Rounds or on a first-come, first-served basis. At the end of the day, there was full consensus that applications must be assessed in rounds.

Prior to publication of its Initial Report, the Working Group thoroughly considered 6 options for how to assess applications:

1. Conduct one additional "round" followed by an undefined review period.
2. Conduct two or three additional application "rounds" separated by predictable periods for the purpose of major "course corrections."
3. Conduct all future new gTLD procedures in "rounds" separated by predictable periods indefinitely.
4. Conduct one additional "round" followed by permanent first-come, first-served process.
5. Commence two or three additional "rounds" followed shortly thereafter by permanent first-come, first-served process.
6. Immediately commence a permanent first-come, first-served process.

C. Why Rounds Were Chosen Unanimously

The SubPro Working Group ultimately chose Model 3 — conducting all future new gTLD procedures in rounds with predictable intervals for course corrections — by unanimous consensus. The reasons were numerous and compelling.

A first-come, first-served approach would create a race to the filing window that advantages large corporations with dedicated resources and disadvantages smaller applicants, developing nation applicants, and community applicants who need more time to prepare. It creates artificial urgency, undermines predictability, and makes coordinating contention sets nearly impossible. Rounds, by contrast, allow all parties to prepare equally, allow ICANN to manage evaluation resources systematically, allow contention sets to be established cleanly, and allow for course corrections between rounds based on real-world experience.

D. A Proposed Compromise — Managed Open Windows

While acknowledging the unanimous consensus in favor of rounds, this article also explores a potential compromise model that was raised by Board members: a "managed open window" that preserves many of the benefits of rounds while providing a more continuous pipeline for applications. This model would maintain firm evaluation phases and contention set management while allowing applications to be received on a rolling basis, subject to defined intake periods and clear transition rules.

The analysis concludes that while such a model may address some concerns about the pace of gTLD expansion, the risks and complexities it introduces — particularly around contention management and program predictability — argue for maintaining the rounds-based approach endorsed by the Working Group.

Can a UDRP decision be equitable while at the same time potentially set bad precedent? In my mind, the answer to this question is Yes.

In the recently published decision Multitracks.com LLC v. George George / George, a UDRP Panelist for The Forum ruled in favor of the Complainant and ordered the transfer of the seemingly generic/descriptive domain name <multitrack.com>. At a 50,000-foot level a decision like this one can easily be a head scratcher. How is it possible that a Complainant can demonstrate that a domain name registrant registered and used a generic domain name in bad faith?

In Multitracks, the Complainant claimed it had rights to the term MULTITRACKS by virtue of its registration on the United States Patent and Trademark Office's Supplemental Register. Unlike the Principal Register, the Supplemental Register provides very limited trademark rights and consists of marks that do not qualify for the Principal Register — common for terms like MULTITRACKS, which are nondistinctive and not generally associated by consumers with a specific owner.

Recognizing the limited rights afforded to marks on the Supplemental Register, the Panelist stated that Complainants must demonstrate that the mark has become a distinctive identifier associated with their goods and/or services. The Respondent argued that "MULTITRACKS" is a descriptive and/or generic name meaning "individual audio parts recorded separately for audio production." And technically, the Respondent is correct.

So How Did the Complainant Succeed?

Without judging whether this case was right or wrong, it was decided on the specific facts and circumstances of this case alone. The registrant in this case knew of, and was a direct competitor of, the Complainant. The registrant registered the domain name (corresponding to the Complainant's domain name minus the "s") and directed all traffic received to loopcommunity.com, a website the registrant operated that competed directly with the Complainant. The Panelist found that the combination of these facts amounted to registering and using the name in bad faith.

But in a UDRP action, if a Complainant cannot show trademark rights in a particular mark (the first mandatory element), it shouldn't matter if the domain name was registered and used in bad faith. Before assessing bad faith, a Complainant must prove trademark rights in a mark that is identical or confusingly similar to the domain name. You have to have a mark in which you have rights in order to even have standing to bring a UDRP action.

I believe the Panelist may have been lenient in evaluating this first element given the specific facts. The registrant clearly knew of the Complainant, competed directly, and forwarded all traffic to its competing website. The Panelist gave the benefit of the doubt to the Complainant that, in the niche community of Christian worship music production, the term MULTITRACKS had achieved secondary meaning. That is an extremely fact-specific conclusion unlikely to translate into broad precedent — and indeed should not. The UDRP is intended for clear-cut cases of cybersquatting, not cases where the trademark rights are themselves borderline. This case's outcome may have been equitable, but practitioners should be cautious about reading it as a signal that generic terms are now fair game for UDRP complaints.

It has already started. "Why are we rushing towards another new round of gTLDs?" "Why even have more TLDs when most of the ones from 2012 were 'failures'?" "Why don't we just let innovation happen on Web3 domains?" Let's take these one at a time.

1. Why Are We Rushing Towards Another New Round of gTLDs?

It has been more than 11 years since the last round of new gTLDs opened and nearly a decade has passed since the first "new gTLD" was launched. In those 11 years, the entire landscape of the internet has transformed. Lyft began operations, Microsoft Surface was introduced, DoorDash, Amazon Alexa, Google Assistant, Ring Doorbell, Netflix Original Movies, Tinder, Instacart, Robinhood, the Apple Watch, SpaceX, Peloton, Slack, Coinbase, Snapchat, and TikTok all launched after the new gTLD application window opened and closed.

In the ICANN world, over a dozen major studies, reports, reviews, and policy development processes were conducted specifically to prepare for this next round — the RPM Review, the Root Stability Study, the Trademark Clearinghouse Review, the CCT Review, the NCAP Studies, the SubPro Final Report, and more. Calling this "rushing" defies the historical record.

2. Why Even Have More TLDs When Most From 2012 Were "Failures"?

This is the most common objection. But defining "failure" depends entirely on what you measure. If you measure against unrealistic pre-launch registration projections written by venture capitalists who had never operated a registry, then yes — many fell short. But if you measure by whether they are operational, serving communities, and providing value to registrants, the picture is very different. Hundreds of gTLDs are actively used, many by brand owners, by geographic communities, and by specialized interest groups that would have had no meaningful options in a world limited to .com, .net, and .org.

3. Why Not Just Let Web3 Domains Take Over?

Web3 domains exist outside the global DNS. They are not resolvable by the vast majority of internet users without special software. They cannot be used for email. They do not benefit from the global trust infrastructure of SSL certificates and standard browsers. Until that changes fundamentally — and there is no near-term technical path for it to do so — traditional DNS domains remain the only universally interoperable naming system on the Internet.

Why I Have Not Given Up

I have dedicated more than a decade of my professional life to making the next round of new gTLDs possible, better, and fairer than the first. The policy work is done. The operational design is underway. The opportunity is real. I have not given up because the Internet is better served by choice, competition, and innovation in its naming system — and new gTLDs are still the best mechanism we have to deliver that.

For those of you that know me, this post may come somewhat as a surprise given that I am often highly critical of actions taken (or not taken) by ICANN. But I also believe we should give credit where credit is due. ICANN's then-CEO, Goran Marby, officially stepped down and handed the reins to its first female CEO, Sally Costerton. During this transition, it is important for us to give appreciation to Mr. Marby for taking on what I believe is the world's most thankless job.

Goran was announced as the new ICANN CEO in February 2016 and officially joined in May 2016, after the departure of the then-CEO Fadi Chehadi. At that time, ICANN was nearing the end of its transition from being overseen by the United States Department of Commerce to a completely independent organization. From the beginning of his tenure, he encountered difficult circumstances.

His first task was to lead the implementation of the transition including the modification of ICANN's bylaws, the creation of a new organization to perform the IANA functions (PTI), and the building out of all new accountability mechanisms and the Empowered Community. Though registries and registrars had been warning ICANN for years about GDPR, Mr. Marby inherited the burden of getting a very late start to tackling how to address the handling of an open WHOIS with regulations that carried stiff penalties. Prior to GDPR, open access to WHOIS was broadly defended by governments, law enforcement, and intellectual property owners. Privacy advocates had argued for years that it violated existing laws. Welcome to ICANN, Mr. Marby.

Goran also had to deal with hundreds of Review Team Recommendations, the ongoing battle over the .amazon TLDs between Amazon and governments, the loss of multiple Independent Reviews where ICANN found the Board failed to act in accordance with its Bylaws, disputes over new gTLD contract negotiations, cybersecurity threats, and then — COVID-19. For the first time ever, ICANN was forced to conduct all of its meetings virtually from March 2020 through June 2022 and to lead its nearly 400 employees completely virtually.

None of this is meant to excuse ICANN's mistakes during Mr. Marby's tenure — and there were mistakes. But leadership means navigating an organization through storms that no predecessor ever faced. By that measure, Goran Marby served the ICANN community with dedication and deserves the community's genuine thanks.

I am reposting a note that was sent around the ICANN At-Large lists in its entirety because I believe it is incredibly important to have this discussion. This note was submitted by the Ukraine Government representative to ICANN. In light of the clear human rights violations of the Russian Government, and the number of innocent civilians being killed, we need to help.

From: Andrii Nabok [nabok@thedigital.gov.ua]
To: Goran Marby, ICANN CEO
Subject: Ukraine urgently needs ICANN's support

Dear Mr. President and Chief Executive Officer,

As a representative of Ukraine in GAC ICANN, I'm sending you this letter on behalf of the people of Ukraine, asking you to address an urgent need to introduce strict sanctions against the Russian Federation in the field of DNS regulation, in response to its acts of aggression towards Ukraine and its citizens.

On the 24th of February 2022 the army of the Russian Federation engaged in a full-scale war against Ukraine and breached its territorial integrity, leading to casualties among both military staff and civilians. These atrocious crimes have been made possible mainly due to the Russian propaganda machinery using websites continuously spreading disinformation, hate speech, promoting violence and hiding the truth regarding the war in Ukraine.

Therefore, I'm strongly asking you to introduce the following sanctions: Revoke, permanently or temporarily, the domains ".ru", ".рф" and ".su." Contribute to the revoking of SSL certificates for the abovementioned domains. Shut down DNS root servers situated in the Russian Federation.

This letter raises profound questions about ICANN's role and mandate. ICANN's core mission is the coordination of the global Internet's systems of unique identifiers. It is not a political organization, and its actions — including those involving the root zone and country code TLDs — have historically been governed by the principle of not using internet infrastructure as a geopolitical tool, because the consequences could be catastrophic for the global openness and interoperability of the Internet.

At the same time, the horror of what was unfolding in Ukraine made the Ukrainian government's plea deeply human and understandable. This letter, and ICANN's eventual decision not to comply, generated significant community discussion about whether ICANN's neutrality serves humanity's best interests in extreme circumstances — a debate that continues today.

Below is the text of the letter sent by Dot Hip Hop, LLC to the Internet Corporation for Assigned Names and Numbers (ICANN) on January 13, 2022, regarding the proposed Assignment of the .hiphop gTLD.

In the interests of moving the assignment process forward of the .hiphop gTLD from UNR to Dot Hip Hop, LLC (DHH), we are hereby formally withdrawing Reconsideration Request 21-3. We are doing this because we believe that no matter how uncomfortable this action was for DHH, the request served its initial purpose. It is certainly an unfortunate undertaking, but we believe it was necessary to help move the process forward and seems to have done well to open up the channels of communication.

As a result of our formal withdrawal, it is our expectation that DHH's request for the assignment of .hiphop will immediately be put back on track without the need for a "pause" in the process, as stated in ICANN's December 22, 2021, letter to DHH.

We also wanted to use this opportunity to correct the record with respect to DHH and our application for the .hiphop TLD. ICANN's blog correctly pointed out that, "With the exception of one TLD, the assignments are the result of private, non-ICANN affiliated auctions held by UNR for several of its TLDs in April 2021." That one TLD, as you are aware, is .hiphop. Although .hiphop was supposed to be included in the UNR auctions, ultimately it was not sold via the auction process. Rather, the members of DHH negotiated an arms-length deal to purchase .hiphop from UNR in July 2021.

DHH Was Unaware of UNR's Marketing Materials

At the time DHH executed its agreement with UNR for the rights to the .hiphop gTLD, the members of DHH (publicly disclosed as Digital Asset Monetary Network, Cahn Enterprises, and JJN Solutions) were completely unaware of the marketing campaigns used by UNR to promote the auction for its other TLDs. Nor did DHH know about the NFTs that were minted by Innovative Auctions. It was not until shortly before or after the acquisition agreement was signed that DHH was made aware of the NFT that was minted for .hiphop by UNR.

DHH Never Claimed Ownership Rights in the .hiphop TLD

DHH has never made any statements, explicitly or implicitly, that it had acquired intellectual property or ownership rights in the .hiphop gTLD. In all of our communications with ICANN, DHH has unequivocally stated that it was fully aware that the ICANN Registry Agreement states that nothing in the Agreement shall be construed as establishing or granting to Registry Operator any property ownership rights in the TLD string. DHH has consistently represented that neither the NFT nor anything else provided by UNR conveys any rights in and to the .hiphop top-level domain. We remain fully committed to operating .hiphop as a proper ICANN-accredited registry in full compliance with all ICANN policies and the Registry Agreement.

On December 14, 2021, Dot Hip Hop, LLC (DHH) filed an Urgent Reconsideration Request following ICANN staff inaction — over four months — on its Assignment Request for the .hiphop Registry Agreement.

Not only did the ICANN Board Accountability Mechanisms Committee (BAMC) decide against considering the Reconsideration Request on an urgent basis, but on its last day of business for 2021, ICANN Org decided to retaliate against DHH for filing the Reconsideration Request in the first place, by informing DHH that it would be "pausing" any further consideration of DHH's Assignment Request pending the outcome of the Reconsideration Request.

In short: DHH filed a complaint alleging that ICANN had taken too long to evaluate an assignment request. Rather than work more diligently to complete the Assignment Request, ICANN Org made the decision to punish DHH for exercising its right to challenge ICANN Org's inaction — by pausing any further consideration of the assignment request, thereby compounding the original violation of the Bylaws.

The Elements of Retaliation

In general, retaliation involves three main elements. First, it requires the victim to be engaged in a protected activity or exercising its legal rights. Second, it requires that some form of adverse action is taken. Finally, there needs to be a causal link between the negative action and the fact that the victim was engaged in exercising its rights.

The Reconsideration Request involving Dot Hip Hop, LLC vs. ICANN Org presents a clear example of wrongful retaliation. First, it is undisputed that DHH filed a Reconsideration Request against ICANN staff under ICANN Bylaws Section 4.2. Second, on December 22, ICANN sent notice to DHH that it was "pausing" any further action on DHH's Assignment Request while the reconsideration request was considered. This is about as open-and-shut a case of retaliation as there can be.

Why This Matters

ICANN hired NAVEX Global's Advisory Services team in 2016 to review ICANN's Whistleblowing policies. One of NAVEX's key findings — which has yet to be implemented — was the recommendation to make hotline access information accessible to all Business Partners and other appropriate third parties to report ethics or compliance matters. ICANN's retaliation against DHH for using ICANN's own Accountability Mechanisms provides the single best example as to why such a Whistleblower Policy is, in fact, needed for persons other than ICANN employees. When an organization can punish a community member for availing itself of the community's own accountability tools, those tools exist in name only.

Longtime Industry Executive Appointed to Two High Profile Leadership Positions by the Primary Global Policy Body Responsible for Generic Top-Level Domains ("gTLDs").

VIENNA, VA — October 28, 2021 — JJN Solutions, LLC, a leading provider of Internet, Intellectual Property and Entertainment legal and policy services, announced today that its Founder & CEO, Jeffrey J. Neuman has been appointed as the Generic Names Supporting Organization ("GNSO") Liaison to the Operational Design Phase ("ODP") for the implementation of subsequent rounds of new gTLDs. In addition, Mr. Neuman was also reappointed to serve a second term as the GNSO's liaison to the Governmental Advisory Committee ("GAC").

As the ODP Liaison, he will be responsible for serving as the primary contact between ICANN staff and the GNSO Council on questions pertaining to the substance or intent of the GNSO Council recommendations. Prior to serving in this role, Jeff was one of the two Co-Chairs of the multi-stakeholder working group responsible for the development of policies for subsequent rounds of new gTLDs. The working group, which had more than 250 members from around the world, held hundreds of meetings and spent thousands of hours over the past few years reviewing previous new gTLD rounds and examining improvements that could be made to promote competition in the domain name industry.

Mr. Neuman will also serve a second term as the GNSO Liaison to the GAC, responsible for serving as the primary point person between the two organizations. His role is to ensure that the advisory committee comprised of more than 150 national governments from around the world are kept up to date on all gTLD policy development processes, answering questions pertaining to GNSO activities, and encouraging participation by GAC members.

"I am honored to represent the GNSO Council and serve the gTLD community in both of these important roles," said Mr. Neuman. "I have long been an advocate for ICANN's multi-stakeholder model and its mission, which includes the promotion of competition in the domain name industry. My goal has always been to prove that it is only through the active participation of all stakeholders, including governments, that we can maintain a secure, resilient and robust Internet capable of serving its billions of users around the world."

In 2009, prior to the great expansion of gTLDs in the root, concerns were expressed within the community that adding too many top-level domains could crash the security and stability of the Internet. As we get closer to another new gTLD round, you can bet that these same concerns will come out of the woodwork. In fact, they already have.

A decade ago, those leery of adding new gTLDs complained that root server operators might not handle the zone growth, that IANA might become overwhelmed, that recursive resolvers could run out of cache space, and that anti-abuse communities and law enforcement could have trouble managing a greatly-increased number of gTLDs. To mitigate these risks, some ICANN stakeholders strongly urged ICANN to create an early warning system.

What actually happened after adding over 1,100 new gTLDs? In 2017, a consortium of reputable experts concluded that they observed no degradation of the security and stability of the root DNS system as a result of the delegation of new gTLDs, and saw no signs that more delegations would degrade stability in the near future. Despite this conclusion, the report recommended more frequent monitoring and caution.

ICANN's Long-Awaited Answer

On October 1, 2020, ICANN's Office of the Chief Technology Officer finally published its Recommendations for Early Warning for Root Zone Scaling. As a domain name nerd and one of the co-chairs of the Policy Working Group on future rounds, I immediately downloaded the report. Here are its conclusions:

1. There are no objective measurements to determine whether there are any root scaling issues; and
2. In the absence of these measurements, just ask Root Server Operators, IANA, Recursive Resolvers, Anti-Abuse Communities and Law Enforcement Agencies, and the ICANN Community whether they perceive any scaling concerns or issues.

The solution being proposed is purely subjective and not based on any sort of objective evidence or facts. After a decade of the community demanding a scientific early warning system and a decade of experts being unable to come up with one — the answer is simply to ask people how they feel about it. This is a remarkable conclusion for a technical body. It does suggest, however, that the root zone growth question has been thoroughly studied and that the answer is: the root is not fragile, and the concerns that were used for a decade to slow the new gTLD program were largely unfounded.

Note: Jeff Neuman is one of the two Co-Chairs of the New gTLD Subsequent Procedures Working Group within ICANN's GNSO ("SubPro WG"). The opinions expressed herein are his personal opinions and may not necessarily reflect the views of the Working Group, its leadership and/or Members.

In Part 1, I explored the number one complaint about the 2012 process to introduce new gTLDs: namely, that the process was not predictable. Although there was a comprehensive Applicant Guidebook that laid down the rules of the road, there was no predictable process to handle proposed changes to the program when issues arose. This led to substantial delays, ad hoc unilateral changes to the program by ICANN staff and board, forced changes to applicant business models, and an overall loss in trust and confidence in the new gTLD program.

The Predictability Framework

To address this paramount issue, the SubPro WG recommends that a "Predictability Framework" be adopted to address potential changes to the new gTLD program as issues arise. The Framework is a tool to help the community understand how an issue should be addressed, as opposed to determining what the solution to the issue should be. It delineates the types of changes that ICANN staff can make unilaterally (changes to internal processes that do not have a material impact on applicants or the community), and the changes that must involve impacted stakeholders and other parts of the ICANN community.

The SPIRT (Pronounced "Spirit")

The SubPro WG recommends that a Standing Predictability Implementation Review Team ("SPIRT") be created to assist ICANN Org and the Board with: (a) identifying issues that inevitably arise, (b) evaluating those issues, and (c) ensuring that the appropriate body or bodies address those issues. The SPIRT will be overseen by the GNSO Council.

The SPIRT is intended to be a body empowered to provide input to the GNSO Council, the ICANN Board, ICANN Org, and the ICANN community on issues regarding the new gTLD Program after the approval of the Applicant Guidebook. It will be responsible for reviewing potential issues related to the new gTLD Program, conducting analysis utilizing the framework, and recommending the process/mechanism that should be followed to address the issues.

Although the SPIRT is intended to be open to all interested parties, the SubPro Working Group recommends that the GNSO Council make every effort to recruit members who have extensive knowledge and experience with the new gTLD Program and each of its core elements. This ensures that the body can make informed, practical recommendations rather than theoretical ones. The goal is a framework that builds community trust by making program changes predictable, transparent, and fair to all stakeholders — applicants, registrars, registries, intellectual property owners, civil society, and governments alike.

Note: Jeff Neuman is one of the two Co-Chairs of the New gTLD Subsequent Procedures Working Group within ICANN's GNSO. The opinions expressed herein are his personal opinions and may not necessarily reflect the views of the Working Group, its leadership and/or Members.

The number one complaint we heard about ICANN's process to introduce new gTLDs in 2012 was that the process was unpredictable. Though years had been spent coming up with the policies and rules governing the introduction of new gTLDs, there was a perception that ICANN frequently changed the rules to serve its own needs without relying on a consistent process involving impacted stakeholders. In addition, consistent lobbying of the Board by those who never wanted new gTLDs in the first place caused substantial unreasonable delays, because the ICANN Board had no mechanism to deal with the onslaught of pressure it was facing.

This pressure, mixed in with some unforeseen issues, not only resulted in changes to the new gTLD Program that many applicants believed were fundamentally unfair, but in some cases also forced applicants to change their business models in ways from which they could not recover. Despite predictability being one of the overarching goals of the new gTLD program, such predictability was never achieved.

Examples of Changes Introduced After Applications Were Submitted

• Introducing a new baseline registry agreement more than one year after applications were submitted
• Adding new terms and conditions for accessing testing environments and rights protection mechanisms
• Adding additional legal terms (public interest commitments) on certain sensitive TLD strings, including a new dispute resolution process
• Initially preventing certain second-level domain registrations due to name collision risk, followed by a completely new mechanism causing further delays
• Shutting down the application system due to security breaches
• Introduction of new rights protection mechanisms
• Changing testing protocols to satisfy the vendor providing testing services to ICANN
• Preventing applicants for generic strings from using them in a closed manner, limiting registrations to the applicant and its affiliates

The Real Cost of Unpredictability

Whether you believe these changes were individually positive or negative, the fact is that they were all introduced in an ad hoc manner, without following a standard process that ensured feedback from all impacted parties. This resulted in substantial delays for applicants to complete evaluation and launch their TLDs. Some applicants lost faith in the program entirely. Others lost the internal corporate sponsorship that had justified the project, as executives who had championed the applications moved on or retired while the program remained mired in delays.

It is the number one reason why many brands that applied for TLDs were forced to withdraw their applications or ultimately terminate their registry agreements. And it is why the SubPro Working Group made predictability the cornerstone of its recommendations for the next round — which Part 2 addresses in detail.