ICA Supports Decisive Action to End Abusive Domain Tasting
BUTERA & ANDREWS Attorneys at Law 1301 Pennsylvania Avenue, N.W. Washington, D.C. 20004-1701 202-347-6875 Philip S. Corwin, Partner pcorwin@xxxxxxxxxxxxxxxxxx<mailto:pcorwin@xxxxxxxxxxxxxxxxxx> By E-Mail January 28, 2008 Board of Directors Internet Corporation for Assigned Names and Numbers (ICANN) 4676 Admiralty Way, Suite 330 Marina del Rey, CA 90292-6601 Re: GNSO Initial Report on Domain Tasting Dear Members of the ICANN Board: This comment letter is submitted by the Internet Commerce Association (ICA) in regard to the January 7, 2008 ICANN Notice, “GNSO Initial Report on Domain Tasting”. ICA is a not-for-profit trade association representing the direct search industry. Its membership is composed of individuals and companies that invest in domain names (DNs) and develop and monetize the associated websites. ICA’s members collectively hold portfolios comprised of tens of millions of DNs. Domain name investors and developers are the new media and e-commerce companies of the twenty-first century, with the current asset value of the direct search industry standing in excess of $10 billion and with these assets generating at least $1-2 billion in annual advertising revenues and associated e-commerce transactions. ICA’s mission is to promote the benefits of the activities of professional domain name investors, owners and developers to the press, advertisers, and governmental authorities on a global basis; and to strive for fairness among regulators and in ICANN’s dispute resolution process as well as in the taxation and treatment of DN registrants under all relevant laws, regulations, and agreements in the U.S. and other nations. ICA provides a unified voice for a membership with common interests and a diverse collection of experience in the professional domain name ownership community. The community represented by ICA has risked large amounts of capital in order to develop domain names. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA Position on Domain Name Tasting The ICA believes that abusive domain tasting is an unintended and insupportable misuse of the add/grace period and should be ended. Because the practice of abusive domain tasting is an economic phenomenon based upon the fact that thousands of names can be registered for a short term at no cost we believe that the best means of curbing abusive tasting is to impose a price that is minimal for a single or small group of domain names but substantial for thousands of test registrations. The imposition of a nominal non-refundable registration fee by ICANN, perhaps enhanced by individual actions by gTLD registries, should be tried and evaluated before considering the more radical step of totally eliminating the add/grace period. This is not a new position for our Association. On March 15, 2007 we submitted a comment letter (http://forum.icann.org/lists/registryservice/msg00000.html) in support of the PIR proposal to impose an “Excess Deletion Fee”. As we stated at that time: The ICA supports adoption of the Excess Deletions Fee proposed by the Public Interest Registry (PIR) for .org domain names. This new policy would impose a "restocking fee" of $.05 (5 cents) for registrations deleted during the five day add/drop grace period when the percentage of such deletions by any single registrar exceeds ninety percent of the initial registrations made within a calendar month. The ICA recognizes that repetitive mass registration of domain names (DNs) for the purpose of determining their pay per click (PPC) advertising viability (know as "domain tasting") can lead to abuse of the five day grace period. In particular, the ICA opposes "domain kiting", in which particular DNs are registered and deleted for sequential five day periods within the registry's add/drop grace period, thereby allowing for de facto DN ownership absent its cost. We believe that the PIR proposal is a reasonable policy designed to address such abuse and clearly demonstrates that individual registries can readily take action to address the legitimate concerns that have been raised by the practice of excessive DN "tasting". That proposal was subsequently adopted and, as noted on page 9 of the subject GNSO Report, has resulted in a reduction of domain name deletions on .Org of more than 90 percent and a complete cessation of tasting by the two organizations most involved in abusive tasting. In September 2007 the ICA’s Board adopted a member Code of Conduct (http://www.internetcommerce.org/member_code_of_conduct). That Code addresses domain name tasting and related issues addressed in the subject GNSO Report as follows: The Internet Commerce Association’s (ICA) Member Code of Conduct expresses the ICA’s recognition of the responsibilities of its members to the intellectual property, domain name, and at large Internet communities and will guide members in conducting their domain name investment and development activities with professionalism, respect and integrity. All members of ICA are committed to addressing the issues facing the evolving domain name industry, which include: Protection of Intellectual Property Rights: A registrant shall follow accepted trademark law and respect the brands and trademarks of others. Members will not intentionally and in bad faith register and use a domain name that is identical or confusingly similar to a trademark or service mark. Registrants shall respond promptly to legitimate disputes relating to alleged infringement of intellectual property rights. Domain Name Tasting: Members should be supportive of changes in ICANN policy or self-driven registry initiatives that end abusive domain name tasting, including such market-based approaches as a restocking fee. All activity related to domain name registration should respect all other areas of the Code of Conduct, most notably including protection of intellectual property rights. Domain Name Kiting: A registrant has the responsibility to pay the registration cost of a domain name when used beyond the applicable Add/Grace period. A registrant should not abuse the applicable Add/Grace period by serially deleting and re-registering a domain name with the intent of avoiding payment for such registration and use, a process commonly referred to as “domain kiting.” Strict Adherence to Internet Fraud Laws: Members of the ICA are committed to adhering to all applicable laws that seek to curb and control Internet fraud and abuse. Cybersquatting, the practice of registering and reserving an Internet domain name for the purpose of reselling it to the rightful owner at an inflated price, is condemned; as are practices such as phishing, which is the process of attempting to obtain the personal information of unsuspecting Internet users for illicit purposes. Finally, during the November 1, 2007 Public Forum session at the most recent ICANN Meeting in Los Angeles, I delivered the following oral remarks on this subject (http://losangeles2007.icann.org/files/losangeles/LA-PublicForum2-1NOV07.txt): >>PHILIP CORWIN: Yes, good afternoon. Philip Corwin, Counsel to the Internet Commerce Association, representing domain name investors and developers. I would like to start by expressing the appreciation of our membership to Dr. Cerf for his vision and dedication in helping to create and guide the development of this very incredible and transformative technology that we call the Internet. And thank you, Vint. Briefly, I will address four key issues for our members, but first is domain name tasting. Last month our year-old trade group adopted a formal member code of conduct which opposes abusive domain name tasting and calls for the eradication of domain name kiting. We are pleased that the GNSO approved a PDP on this subject and called on ICANN to consider immediate fee-based steps to eliminate abusive tasting. And we would go beyond that and call on the registries to consider using the dot org action as a model for steps that they might take to address tasting at their individual top-level domains. Thus, in keeping with our Code of Conduct and our prior statements to ICANN on this matter, we enthusiastically support the expeditious adoption of economic measures by ICANN and individual gTLD registries to curb abusive domain name tasting by imposing a meaningful monetary cost on misuse of the add/grace period. In closing, we would make two additional observations regarding the subject GNSO Report: * While we believe that mass domain tasting is an insupportable abuse of the purpose of the add/grace period, we also believe it is important to confine criticism of the consequences of tasting to documented facts. In this regard, we would point out that the concern that tasting may be associated with the criminal activity of financial account “phishing” has been refuted by no less an authority that the Anti-Phishing Working Group DNS Policy Working Group. In its September 14, 2007 report, “The Relationship of Phishing and Domain Tasting”(www.antiphishing.org/reports/DNSPWG_ReportDomainTastingandPhishing.pdf<http://www.antiphishing.org/reports/DNSPWG_ReportDomainTastingandPhishing.pdf> ), it concluded: “APWG analysts found domain name tasting to be antithetical to the phishers’ enterprise model and therefore no relationship exists at this time between phishing and domain name tasting…Domain name registration is inexpensive, with the cost of a retail registration being only $6.00 to $10.00. The cost of a legitimately purchased domain name is the least of a phisher’s concerns. Moreover, since the phishers’ business is to steal financial instruments, they often have a supply of stolen credit card numbers that they can use to illegitimately register domain names. Simply put, phishers have no incentive to practice domain name tasting. In fact, the notion of deleting a domain name that might continue to serve as a phishing site beyond the Add Grace Period because it has eluded detection is entirely contrary to the phishing business model.” · Any final Report adopted by the GNSO on this subject should be careful to confine itself to an objective analysis of domain tasting and effective means of curbing its abuse and refrain from expressing definitive views on complex legal and policy issues which are very much in flux. In this regard, we would note that the courts and legal experts are divided as to whether the mere advertising monetization of a particular term entered into an address/search box constitutes trademark infringement and that web browsers, search engines, and Internet service providers are all now actively engaged in such activity in the rapidly evolving online marketplace. Conclusion The ICA appreciates the opportunity to comment on the subject Report and looks forward to reviewing the GNSO’s final Report and accompanying recommendations. In addition, we urge the ICANN Board to act quickly and decisively in this matter - hopefully at the upcoming meeting in Delhi, India which we shall be attending. Sincerely, Philip S. Corwin Counsel to the Internet Commerce Association Attachment:
ICA-GNSO_DN_Tasting_Report_Comment_-_012808.doc |