The Global Business Community's Conditions Precedent for a New gTLD Process

["Michael Palage" <michael@xxxxxxxxxx>]

Dear ICANN,

 

While ICANN should be commended for some of the positive steps that it has
taken to address the concerns of the global business community in connection
with the new gTLD process, this progress to date has not represented a total
solution to the problem. What ICANN has failed to do is to take a holistic
(360 degree) view of the concerns and needs of the global business
community, not unlike its failure to date to engage in a "full market"
economic analysis as represented by ICANN president and CEO Dr. Paul Twomey
at the ICANN annual meeting in 2006. 

 

Listed below are a set of recommendations that ICANN must address "in total"
if it hopes to address the minimal threshold concerns of the global business
community prior to the commencement of the new gTLD process. These
recommendations are based upon my professional experience having been
involved in the launch of three new gTLDs over the past decade and my
testimony as an expert in various legal proceedings in connection with
domain name related matters on behalf of large multinational corporations. 

 

The Global Business Community's Conditions Precedent for a New gTLD Process:


 

1) The creation and maintenance of a Rebuttable Reserve Names List of marks
that have been subject to prolific and systematic abusive registrations
(White List") by the World Intellectual Property Organization (WIPO) that
will be initially reserved from registration in connection with the launch
of all new gTLDs;

 

2) The creation of a new administrative dispute mechanism, to provide for a
more expedient and cost efficient mechanism to suspend abusive domain name
registrations modeled in large part upon the proposal recently submitted by
WIPO, see
http://www.icann.org/correspondence/wilbers-to-pritz-03apr09-en.pdf; 

 

3) The development of universal standards and practices for proxy domain
name registration services;

 

4) ICANN should charge all registries on an actual cost recovery basis and
not an arbitrary or unjustified tax based on registry revenue or a per
domain name tax that discriminates between registry operators; 

 

5) ICANN should remove all "double taxation provisions" in the Registry and
Registrar agreements that would penalize corporate branded/single registrant
TLDs that would have to pay individual per domain name registry and
registrar surcharges/taxes;

 

6) With regard to registrar/registry separation, there needs to vigorous
enforcement and compliance regarding  the narrow exceptions set forth in the
CARI report, and a repudiation of the ICANN staff model which proposed a
watered down/expanded proposal that is ripe for gaming;

 

7) The CRAI report has recognized the market "inefficiencies" associated
with a registry/registrar model in a corporate branded/single registrant
TLD, this narrow class of TLDs should not have to seek separate ICANN
registrar accreditation in order for that registry to provide domain name
registration services direct to its registrants.

 

8) Applicants must be permitted to apply for more than one string in an
application, (e.g. .COKE in ASCII, Korean, Kanji, etc.) if those other
strings are IDN/ASCII equivalents of the base application, and ICANN shall
only charge the additional cost recovery fees associated with the string
evaluation not a separate 186,000 application fee for each string.

 

9) Community based and corporate branded/single registrant TLDs need to have
the same authority that sponsored TLDs have today in selecting which
registrars access their registry.

 

10)   The benefits of registrant verification have been widely acknowledged
in minimizing abusive registrations and providing greater Whois accuracy,
ICANN should reflect the actual lower costs in administering these types of
registrant verified TLDs with a lower registry fee consistent with the cost
recovery mechanism that it should be operating by. 

 

11) ICANN needs to carefully explore the viability of an administrative
procedure whereby a trademark holder can bring a claim against a domain name
registration authority (registrar or registry). This administrative
procedure would be limited to those registration authorities that have a
direct contractual relations with the infringing party, and which has failed
to implement reasonable safeguard mechanisms to address such harms. This
procedure would be modeled in part upon the recently submitted WIPO proposal
entitled Post Delegation Dispute Resolution, see
http://www.icann.org/correspondence/wilbers-to-icann-13mar09.pdf. However,
unlike the WIPO proposal that empowers the panelist(s) to make specific
recommendations in its finding, this proposal would limit the panelist to a
finding that the ICANN accredited registration authority failure to
implement reasonable safeguard mechanisms had caused a harm to the
complainant. The matter would then be referred to ICANN for appropriate
action.

 

12) ICANN needs to ensure that there are adequate provisions in the registry
baseline agreement that will protect the "reasonable renewal expectations"
of registrants within those gTLD registries with "market power." 

 

Respectfully submitted,

 

Michael D. Palage