GTLD Comment

[Pat <pat@xxxxxxxxx>]

I admit I don¹t follow ICANN activities too closely, even though I do own a
number of domains. However, the potential damaging impact of this ruling is
enough to make me review the materials and respond. I agree with the points
made in the attached message from MARKMONITOR. Furthermore, this seems alike
a step towards creating a monopolistic situation where the registrars will
effectively eliminate any market opportunity for domain registrants. Opening
the door to this type of exploitation by a few corporations seems like a
step in the wrong direction.

Please do not pass this program with these provisions.


===============

April 13, 2009

To:  ICANN (gtld-guide@xxxxxxxxx)
Re:  Comments to the New GTLD Program and Process

Dear Dr. Twomey and Mr. Dengate-Thrush:

MarkMonitor Inc. (³MarkMonitor²) appreciates this opportunity to submit
these general comments on behalf of the undersigned in connection with the
second version of the Draft Application Guidebook (³DAG²). In a separate
letter, MarkMonitor, individually, will be submitting its comments relating
to the distinct modules of the DAG.

At the outset, we would like to commend ICANN for the significant amount of
time and effort that has been put into revising the DAG as well as all of
the work that has gone into the condensing and analysis of the public
comments (³APC²) made to the DAG to date. The redlined DAG and the detailed
analysis work have created a simpler mechanism from which to evaluate how
the ongoing comments are shaping the DAG.

We are aware that in the second version of the DAG, ICANN outlined several
concerns that were not addressed by the DAG including trademark issues. In
connection with addressing the trademark protection issues, the undersigned
recognizes that the ICANN Board of Directors has approved the creation of an
Implementation Recommendation Team (³IRT²)(comprised of an ³internationally
diverse group of persons with knowledge, expertise, and experience in the
fields of trademark, consumer protection, or competition law, and the
interplay of trademarks and the domain name system²) to develop and propose
solutions to the overarching issue of trademark protection in connection
with the introduction of new gTLDs.

We look forward to reviewing the next version of the DAG (and the solutions
offered by the IRT as adopted by ICANN staff) where these safeguards and
protection mechanisms will be further explained.

Introduction
The introduction of the new gTLDs and the current ongoing application
process raises a host of issues for brand rights holders including the: 1)
significant risk to the health and safety of consumers, 2) lack of adequate
consumer and rights holder safeguards to protect those parties from abuse in
the new name space, 3) potentially large economic impact on brand rights
holders, and, lastly 4) risk for a safe implementation given the compressed
launch timeline expectation communicated by ICANN staff.

These issues are addressed in further detail as follows:

1. Risk to Health and Safety of Consumers
As we indicated in our previous comments to the First Draft Application
Guidebook, we believe that brand abuse and online fraud will likely increase
exponentially upon the introduction of hundreds or thousands of new gTLDs.
Pursuant to the MarkMonitor 2008 - Year in Review Brandjacking Index?, 30 of
the most popular brands experienced a weekly average of over 450,000
instances of cybersquatting targeting their brand. The resulting cost to
companies to protect their valuable brands as well as the potential threats
to the health and safety of consumers without adequate protections and
safeguards will also increase. As delineated in the presentations from the
eCrime Summit at the Mexico City ICANN Meeting, domain name abuse problems
are growing both in terms of number of incidents and in the complexity and
ingenuity of the attacks perpetrated. Consumers are the ultimate victims of
these abuses and they suffer loss of their time, money and even health and
safety.

Although this risk may be mitigated by enabling brand rights holders through
the implementation of rights protections mechanisms and pre-delegation and
post-delegation dispute resolution safeguards (which may be proposed by the
IRT and adopted by ICANN), the tangible and intangible costs of policing and
remediation of top-level and second-level strings will continue to be
shouldered by brand owners.

2. Potential Brand Owner Safeguards and Protections
We are encouraged that ICANN recognizes the importance of brand holder
rights issues and has specifically acknowledged that it must ³protect brand
owners¹ rights and prevent abusive registrations². In fact, the APC sets out
the numerous comments that have been made to date by brand owners relating
to the lack of trademark and rights protection and safeguards in this new
gTLD process. However, there continue to be additional issues that were not
addressed adequately in the DAG:

    ? A Transparent ³thick² Whois Policy

    ICANN should reconsider its minimum requirement calling only for
registry operators to support a ³thin² Whois registry model. As we have seen
in the past, thin registries do not afford proper safeguards to protect
brand holder rights given that control of the registrant¹s data is largely
held by the individual registrar. ICANN¹s decision is purportedly based on
issues related to a ³multitude of laws (including data protection and
privacy laws)². But the recent conduct of some registrars and registrants
under the thin registry model approach has also run afoul of agreements and
laws as well. Without a centralized Whois database at the Registry Operator
level, brand owners will once again struggle to obtain accurate Whois
information required to combat online fraud.

    ICANN has indicated that it is evaluating a ³possible requirement that
Registry Operators would have to collect additional data². We would support
this policy and ask that the data be escrowed by the Registry Operator and
made immediately available in the event of the non-cooperation of any
registrar and, in the event of online fraud or abuse. As it stands now,
Whois issues have not been addressed adequately in this DAG and, without
more stringent policies, registrars will have control over the Whois
information with no binding obligation to insure publicly accessible and
accurate Whois information.

    ? Rights Protection Mechanisms To Help Brand Rights Holders Prevent
Online Abuse

    ICANN should institute Rights Protection Mechanisms (RPMs) that both
protect consumers from abuse and reduce the need for defensive
registrations. ICANN recognizes that the ³proliferation of defensive
registrations is a concern². We are looking forward to reviewing the
solutions offered by the IRT and hope that they will alleviate the need for
costly defensive registrations. Some of the safeguards that ICANN and the
IRT should also consider implementing are: (i) an Expedited Remediation
Process; (ii) an expanded Reserved Names list which would include marks of
rights holders; (iii) the availability of open, publicly available Whois
information with strict proxy registration guidelines; and, (iv) flexible
rights protection mechanisms that can be adopted by new gTLDs.

    Moreover, as we pointed out in our comments to the first version of the
DAG, existing rights protection mechanisms are insufficient to protect
consumers and rights holders. Moreover, it is unfair to force companies to
increase their legal expenditures by requiring expensive sunrise
registrations and UDRP filings in order to correspond with the rising number
of gTLDs. These approaches are not reasonable in light of the economic
conditions and in the face of potentially thousands of new gTLDs. In
addition, sunrise periods have amounted to a fee shifting exercise from
registries to brand owners to help fund the initial start-up costs
associated with launching new extensions.

3. Economic Impact on Brand Owners
Although we are pleased with the creation of the IRT, the fact remains that
brand owners are deeply concerned with the significant impact of the
economic recession on their businesses. Stated simply, the introduction of
these new gTLDs will put an undue cost burden on businesses that are already
financially strapped. As the recession deepens, companies are now struggling
to find the internal capital resources to fund the application costs and
ongoing operations of a new TLD program or even to object to third-party
applications.

In its previous comments, the undersigned requested that a study be
commissioned to evaluate the actual demand for new gTLDs and recommended
that ICANN take a phased approach to this introduction. We recognize that an
economic study was commissioned by ICANN and posted on March 4, 2009 which
studied the effect of the introduction of the gTLDs on competition and
price. This study, however, does not evaluate the global demand or the
economic impact on registrants for these new gTLDs, particularly in light of
this global recession. A study that evaluates this demand would be more
appropriate given that it might suggest that ICANN launch a TLD program
which is isolated only to IDNs or geographic-based TLDs that are supported
by a significant community demand.

4. Adequate Time to Evaluate the Revisions to the DAG
We are concerned that by not having addressed any brand owner issues to
date, brand owners may not have sufficient time to fully digest, analyze and
comment on any pertinent changes. The process of allowing for public
comments and subsequent revisions is an iterative one; changes are made to
the DAG over a period of time and a number of versions are subsequently
released. This process allows interested parties to observe how their
requested changes are affecting the substance and nature of the DAG as a
whole, over a period of time. ICANN has not indicated with specificity when
it intends to begin the application process and the APC seems to suggest
that the application process will begin around December 2009. To the extent
the next version of the DAG contains changes protecting brand holder rights;
brand owners will only have one comment period to address any relevant
concerns. The current timeline proposed by ICANN is too tight. ICANN should
take its time evaluating the comments from all interested parties including
brand owners before formally beginning the application process.

Conclusion
We recognize that ICANN will attempt to incorporate certain policy changes
in the next version of the DAG as recommended by the IRT and approved by
ICANN. We are pleased that ICANN is seeking solutions to address the
trademark issues that have affected brand owners in previous gTLD rounds. We
ask that ICANN take note of the numerous comments which were posted as well
as those referenced in the APC, and implement those changes that will
sufficiently protect brand owners and ultimately the health and safety of
consumers as a whole. However, resolution of the aforementioned issues
notwithstanding, there are evolving consumer health and safety risks that
require further analysis and we look to ICANN and the general community to
work on these issues.

Respectfully submitted,


Irfan Salim
President and CEO
MarkMonitor Inc.