The Coca-Cola Company's Comments on DAG v3

[Paula Guibault/US/NA/TCCC <pguibault@xxxxxxxxx>]

The Coca-Cola Company ("TCCC") submits the following comments to the Draft
Applicant Guidebook, Version 3 ("DAG v3").

TCCC is a global beverage company headquartered in Atlanta, Georgia.  TCCC
is the owner of the world's most famous and valuable brand - COCA-COLA - and
of many other internationally famous and well-known trademarks such as
FANTA, SPRITE, DIET COKE, MINUTE MAID and POWERADE.  TCCC operates some of
the most visited websites in the world, and supports all efforts to create
and maintain a safe, stable internet environment with appropriate
protections against fraud and abuse.

TCCC is concerned that the current version of ICANN's proposal to expand the
gTLD system does not adequately take into account (1) the monetary,
administrative and legal burdens brand owners like TCCC will incur and (2)
the fraud and abuse in the system as it currently exists, which will be
amplified by the rapid addition of new gTLDs as contemplated by the DAG v3.
A phased implementation of new gTLDs would help address these problems and
also would help identify likely additional problems that can then be
addressed before more gTLDs are added.  For example, consideration should be
given to allowing only applications for generic terms - such as insurance,
bank, automobile, restaurant, etc. - during the first round.  Such an
approach would allow ICANN, registrants, brand owners and other
constituencies time to test the system and revise the application process as
needed.

 TCCC also generally supports the trademark rights protection mechanisms
recommended by the Implementation Recommendation Team ("IRT").  These
protection mechanisms included a Trademark Clearinghouse, a Globally
Protected Marks List ("GPML"), a Uniform Rapid Suspension System ("URS"),
standardized pre-launch Rights Protection Mechanisms ("RPMs"),
Post-Delegation Dispute Resolution Mechanisms, thick WHOIS requirements for
new TLDs and the use of algorithms in string confusion review during initial
evaluation.  ICANN's current proposals in the DAG v3 that do not fully
incorporate the IRT recommendations are of particular concern to TCCC.

The IRT, for example, proposed adoption of the URS to allow a faster means
than the present UDRP system of resolving clear-cut cases of rights
infringement, so that abusive sites such as those selling counterfeit
products could be quickly taken down.  The DAG v3, however. identifies
inclusion of a URS as a "best practice" only, thus giving new gTLD operators
the choice not to include a URS.  TCCC believes that all new gTLD registries
should be required to include a URS and to require participation by their
customers.  The resources that brand owners currently dedicate to fighting
trademark abuse and infringement in the domain name space are substantial,
and numerous abusive and fraudulent sites persist despite these significant
expenditures.  The introduction of unlimited new gTLDs will only exacerbate
the current domain name infringement and abuse problems.  Participation in a
URS should be mandatory so that both consumers and brand owners are assured
of an expedited procedure to stop the operation of clearly abusive sites
across all new gTLDs.

The IRT also proposed creation of a Globally Protected Marks List ("GPML")
that would include globally-protected marks meeting high standards.
Applied-for gTLDs would then be analyzed for confusing similarity with marks
on the GPML list in the initial application process.  New gTLD registries
would also initially block registration of second-level domains identical to
marks on the GPML.   ICANN did not adopt this proposal at all, asserting
that it would be too difficult to develop uniformly acceptable standards and
would have only marginal benefits because only a small number of marks would
qualify.  However, criteria for establishing fame already exist.  Countries
such as China and Brazil have created special registries for famous
trademarks, while countries such as the United States have adopted
legislation protecting famous trademarks.  The concept of enhanced
protection for famous marks is internationally recognized.  TCCC is
confident that these existing criteria can be readily adapted for use in a
GPML context.  Also, the fact that the list may be short does not detract
from its usefulness, particularly considering the potential volume of
infringement matters across unlimited new gTLDs and corresponding unlimited
second level domains within each new gTLD.

In addition to the IRT recommendations that have not been adopted, TCCC also
has concerns regarding certain other provisions of the DAG v3.

The DAG v3 leaves brand owners only two (2) weeks to file objections after
ICANN posts the list of Initial Evaluation results on completed applications
for new gTLDs.  This very short time frame is completely inadequate,
particularly for large corporations like TCCC that have many, many brands to
consider.  TCCC will require input from attorneys and management all over
the globe to make informed decisions on how to proceed and whether or not to
object.  At least one month is required to allow for meaningful
consideration of potential objections.

The DAG v3 also does not adequately address the need for standard procedures
for all approved new gTLD with respect to (1) pre-launch "sunrise" periods,
(2) WHOIS requirements and (3) post-delegation disputes.   ICANN should take
the opportunity presented by the new program to implement rules and
regulations that are requirements for the new registries, not just "best
practices."  These rules and regulations should, at a minimum, provide for
adequate notice to brand owners of pre-launch sunrise periods and standard
terms and conditions for sunrise submissions (ideally utilizing the
Trademark Clearinghouse as proposed by the IRT), provision of complete WHOIS
information at the registry level, and mechanisms to allow affected parties
to effectively address registry abuse after the gTLD launch.

TCCC appreciates the brand protections that ICANN has already proposed.
However, as the introduction of new gTLDs moves forward, TCCC urges ICANN to
reconsider the speed and breadth of this undertaking and to seize the
opportunity to put in place the additional mechanisms proposed by the IRT
that would help alleviate the fraud and abuse that occurs even in the
current systems.  TCCC believes that the changes suggested above will help
create a safe and stable platform for all parties involved

TCCC appreciates this opportunity to submit these comments, and requests
that ICANN give them full and serious consideration.

Paula Guibault
Trademark Counsel, Global Trademark Team
The Coca-Cola Company
pguibault@xxxxxxxxx
Mailing Address: PO Box 1734, Atlanta, GA 30301
Physical Address: One Coca-Cola Plaza, NAT 1940, Atlanta, Georgia 30313