Detailed Comments on Base Agreement, Specification 5 and Specification 7

["Elisa Cooper" <Elisa.Cooper@xxxxxxxxxxxxxxx>]

MarkMonitor is pleased to provide the following comments on the Base
Agreement, Specification 5 and Specification 7. Our consolidated
comments were also sent to 2gtld-guide@xxxxxxxxx.

Comments on 'Base Agreement'

Section 2 - Adherence to Post-Delegation Dispute Resolution Procedures

Given the significant potential for actual infringement post-delegation
by registries, ICANN should adopt the post-delegation dispute resolution
procedures proposed by WIPO. That report can be found at:
http://www.wipo.int/export/sites/www/amc/en/docs/icann130309.pdf. 

Adherence to this policy should be mandated under the Registry
Agreement.

Section 2.4 - Publication of Registration Data

ICANN should require that all new gTLD registries provide 'Thick Whois'
data. See above comments to Question 45. 

The requirement to provide free zone file access for all gTLDs is noted
as a positive inclusion.

Section 2.8 - Use of Registrars

MarkMonitor fully supports non-discriminatory access for ICANN
accredited registrars to offer unrestricted extensions. However, in
cases of a TLD where the gTLD has a single purpose and use, and is
limited to defined registrant communities, the registry should be
allowed to designate a single registrar.

Article 4 - Term and Termination

ICANN should add language that requires that all registry operators
comply with the rights protection mechanisms contained in the Base
Agreement.  Any registry operator that fails to comply should be subject
to termination of its accreditation with ICANN (so long as ICANN has
provided the registry operator with written warnings and a reasonable
time to cure).  

Article 6 - Fees

MarkMonitor endorses the comments of the NTIA with respect to the
inclusion of price caps in the new gTLD registry agreements and adds the
following: ICANN should require price caps in all new registry
agreements in an effort to avoid the potential harm to consumers and
brand owners that could result from discriminatory pricing. The risk is
that registry operators and others may try to exploit the value created
by brand owners. The value inherent in a name that contains a brand is
not the name itself, but the value created by the brand owner. It is
patently unfair for a registry operator to be allowed to profit from the
efforts of the brand owner. More importantly, it is foreseeable that
existing gTLD registry operators would also demand the removal of any
price caps in their registry agreements by invoking the equal treatment
clause in their registry agreements. Removing price caps in current
registry agreements might allow current registry operators to unfairly
charge brand owners different fee amounts depending on the "value" of
the domain name, as subjectively determined by the registry operator.

Section 8.4 - Change of Control

ICANN must reconsider its proposal not to require written approval in
the event of a change of control of the Registry Operator. Registry
applicants/awardees should be required to submit a request to transfer
or sell its registry functions.  Allowing a third party to take over
control of the Registry Operator without undergoing proper due
diligence, may raise potential concerns, including the ability to fully
enforce the originally agreed upon conditions under which the registry
was 'awarded'.  A suggested change would be to require review and
written approval in the event of a change. To the extent all conditions
of operation as originally committed are verified, written approval
should not be unreasonably withheld. If there is a modification in the
terms and conditions, there will need to be an extensive review and
pre-approval of a transfer agreement. 

Comments on Specification 5: Reserved Names List at the Second Level

A Reserved Names List database similar to the Reserved Names List as set
forth above for the gTLDs should be created at the second level. This
Reserved Names List should be created based upon the submission of
trademarks by corresponding rights owners. Only those rights, which have
been granted by jurisdictions requiring trademark review and evaluation,
would be eligible for inclusion in the Reserved Names List.  In
addition, only legitimate owners of names appearing in the Reserved
Names List should be allowed to register these domains, and variations
thereof.  Again, a proper mechanism should be instituted to challenge
and remove any name on the Reserved Names List.

Comments on Specification 7: Minimum Requirements for RPM

In addition to RPM relevant issues mentioned elsewhere in the
MarkMonitor comments in other sections of the guidebook, including, but
not limited to, those referencing Whois, Reserve Lists, we propose the
following RPM elements:

Expedited Remediation Procedure

Upon formal and written notification to a registry of a domain that is
infringing on intellectual property rights and used in bad faith, the
registry should make every effort to remove the domain from the zone
within a 4-hour timeframe on a temporary 'hold' basis. This procedure
can be based in part on the notice and take down procedures set out in
the DMCA.  Registries should be required to make a determination as to
the rightful ownership of the domain name based upon existing
intellectual property rights. Nominet, the registry operator for .uk,
currently employs a similar method for resolving conflicts.  Registries
should bear the cost burden to support this model, and should benefit
from a 'safe harbor' from liability to the extent the registry complies
with the provisions of this Expedited Remediation Procedure. 

Registrant Notifications

At the time of registration, registrants should be provided with a
warning that, pursuant to the terms of the Registry Agreement, any
domain names that infringe on any intellectual property rights and are
being used in bad faith, will be confiscated without refund and returned
to the legitimate rights owner and subject to the express remediation
procedure.