One of the nuggets in the The 312 page ICANN gTLD Guidebook 4th edition, released over the weekend was a catch all disqualification clause: (Guidebook 1-16/1-17)
“Circumstance where ICANN can deny an otherwise qualified application include, but are not limited to:
“”Where the applicant or any partner, officer, director, or manager or any person owning more than 15% of the applicant:
“”Is the subject of a pattern of of decision indicating liability for or repeated practice of bad faith by acquiring domain names for the primary purpose of selling, renting or otherwise transferring domain name registrations to trademark or service mark holders or to a competitor for valuable consideration in excess of documented out of pocket costs.””
“”Using domain names with an intent to attract for commercial gain internet users to a website, or other online location, by creating a likelihood of confusion with a trademark or service holder as to the source sponsorship, affiliation or endorsement of the website or location of a product or service on a website””
So reading this language, could a domainer who lets say lost 3 UDRP’s or WIPO cases in his life, be disqualified from owning or being involved in a new gTLD?
Could a trademark group to object to an application for a new gTLD, on the basis that one of the shareholders of the applicant was a domainer, who having lost 3 UDRP or WIPO’s engaged in a pattern of bad faith? .
Certainly there would seem, under this language, to be some number of decisions, that if they went against a domainer, that would disqualify him from owning 15% or more of an applicant of a new gTLD or be an officer, director, partner or manager of an applicant.
Of course trademark groups would probably say 2 decisions were enough to form a pattern.
The Guidebook of course doesn’t provide any guidance as to what would constitute a pattern but any applicant should be concerned with their application being potentially knock out because of having a domainer on its team.
With as unpredicatble as UDRP and WIPO decision are, many domainers may have lost 2 or more of these.
Does this sounds a little unfair to anyone?