Comments from INDOM.com to the 2nd Draft Applicant Guidebook

[Stéphane Van Gelder <stephane.vangelder@xxxxxxxxx>]

INDOM is a Paris (France) based corporate domain name registrar. INDOM is an
accredited ICANN registrar and a member of ICANN's Registrar Constituency.
 
After reviewing the Draft Applicant Guidebook v2, INDOM would first of all
like to congratulate ICANN staff on the impressive amount of work that has
gone into preparing this second draft.
 
We also commend ICANN on its willingness to provide detailed answers to the
comments made after the first draft. We feel this is a crucial aspect of the
new gTLD process and recommend that comments made to the second draft also
be addressed in a specific document, listing both ICANN's answers and the
rationale behind those answers.
 
In general, we wholeheartedly support the new gTLD program. We are convinced
that the Internet user's experience will be greatly enhanced by having more
choice at the TLD level.
 
We would however urge ICANN to try and stick to its planned timeline for
launch as much as possible. When it announced the new gTLD program at its
Paris meeting in June 2008, ICANN sent the community the message that new
TLDs would be brought to market, and that they would be brought to market in
a predictable manner.
 
In response, many entities all over the world, including companies,
organisations and even local governments, began working on new TLD
initiatives. A great deal of resources have already been devoted to some of
these. In our view, failure to start the new TLD program in a timely manner
would have a disastrous impact on ICANN's credibility and would be a major
blow for any further innovative programs on the Internet.
 
We therefore urge ICANN, while taking due care to address the issues raised
by the community, to set a precise timeline for the new gTLD program.
Launching a new TLD is a significant task. Prospective applicants need to
know when they will be able to submit their applications.
 
Of course, we recognize that some issues may take longer to resolve than
others. But while this may be true for certain types of new gTLD
applications, others may be simpler to process. We would therefore recommend
that ICANN also consider adding more TLD classes than the ones listed in
1.2.2.1. Different types of projects and applicants will have different
needs, require different amounts of resources from ICANN, and should even be
required to pay different levels of application fees. For example, a
non-profit NGO may wish to launch a TLD as a non-profit endeavour. As the
initial and yearly fees stand at present, this would be hard to do. With the
fees as they are, only commercial, money-making TLD initiatives would really
seem to be viable.
 
In summary, we would ask that ICANN consider:
-      Setting a definitive timeline for the new gTLD program as soon as
possible, and certainly by its next international meeting (Sydney in June
2009).

-      Creating more specific classes of TLDs than just the two "open" or
"community" categories (a third "geographic" category is also implied by the
current draft guidebook).

-      Applying a variable fee structure for these different classes of
TLDs.

 
In addition, INDOM has a couple of specific comments on Module 3, Dispute
Resolution Procedures:
 
3.1.2.2. Legal Rights Objections
It is mentioned that the existing legal rights the objector may bring about
"may include either registered or unregistered marks". The use of this
wording may lead to some uncertainty. "Unregistered mark" can be interpreted
as either a "common law" right (USA) or a sole trademark application (in
civil law countries).
 
We feel it may thus be necessary to clarify which type of unregistered
trademark can be claimed and if there are differences according to different
jurisdictions or countries.
 
3.3.4.1 Administrative Review
As the schedule is set, we believe there is potential for the objector to
run out of time and find himself unable to defend his rights. This may be
the case if the DRSP finds that the objection should be dismissed. Although,
the objector has the possibility to submit a new objection complying with
the procedural rules further to a rejection, he is still obliged to file it
within the time limit (90 days from the publication of the TLD application).
The problem is that the DRSP has 14 days to conduct the administrative
review. So if an objection is filed, say, on day 85 and the DRSP finds that
it does not comply with procedure, then the objector will run out of time to
amend his complaint.
 
We suggest that once an objection has been filed, the time limit requirement
be amended to allow for a possible change to the complaint if requested by
the DRSP on procedural grounds.
 
3.4.2. Legal Rights Objection
Again, the term "unregistered mark" should be used with caution, see our
comments on point 3.1.2.2. above.
 
We note that in point 3.1.1 that legal objections could be filed when the
gTLD string infringes the existing legal rights of the objector. The
definition of this is given in the "attachment to module 3: New gTLD Dispute
Resolution Procedure" as "the existing legal rights of others that are
recognized or enforceable under generally accepted and internationally
recognized principles of law".
 
This would make one conclude that, in addition to trademarks, rights such as
copyrights, trade names and possibly previously registered domain names are
compliant with this definition.
 
However, in 3.4.2. , the emphasis seems to be solely placed on trademarks.
Other IP rights are not specifically mentioned.
 
We suggest this article needs to list with greater precision which types of
rights are in scope.
 
Thank you for reading our comments.
 
 
Stéphane Van Gelder
General manager
INDOM.com