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ICA Supports Decisive Action to End Abusive Domain Tasting

  • To: "domain-tasting-2008@xxxxxxxxx" <domain-tasting-2008@xxxxxxxxx>
  • Subject: ICA Supports Decisive Action to End Abusive Domain Tasting
  • From: Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>
  • Date: Mon, 28 Jan 2008 23:41:22 -0500

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
Description: ICA-GNSO_DN_Tasting_Report_Comment_-_012808.doc



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