[gnso-dt-wg] more Pike & Fisher coverage of Tasting WG

["Diaz, Paul" <pdiaz@xxxxxxxxxxxxxxxxxxxx>]

IP Owners Say ICANN Should Remove Add-Grace Period for Domain
Registrations (Pike & Fisher, 100907)

By By Christine Mumford

 

The Internet Corporation for Assigned Names and Numbers' recent
fact-finding campaign into domain tasting yielded an enormous response,
with most participants identifying intellectual property rights owners
among those most disadvantaged by domain tasting, a report issued Oct. 4
suggested. 

The report, "Outcomes Report of the GNSO Ad Hoc Group on Domain Name
Tasting," synthesized the findings of various questionnaires ICANN
distributed in August and September to seek further information on the
"tasting" epidemic. 

Domain tasting occurs when a person registers a domain name, sets up
pay-per-click ads on the associated web site, and waits to see if the
site generates ad income. Domains that are not profitable are dropped, a
function of domain registration's "add-grace" period. 

According to the report, IPR owners and their representatives largely
favor removing the AGP as a way to combat tasting. Registrars, however,
identified ways that the AGP extends benefits to registrants unrelated
to tasting. The responses from the registrar community suggested that
the AGP be curtailed, but not removed entirely. 

 

Answers from Various Sources

ICANN first issued a broad questionnaire to all Internet users and
interested parties, then invited constituencies within ICANN to send
more tailored questionnaires to their participants. 

Dedicated questionnaires went to the intellectual property constituency
and Uniform Dispute Resolution Policy (UDRP) providers, and specific
responses to tasting were sought from the registrar constituency and
country-code top-level domain owners, among others. 

IPR Owners Harmed. When asked to identify parties harmed by domain
tasting, 81 percent of respondents to the general questionnaire
identified IPR owners, and "a clear majority of respondents claim[ed]
that the disadvantages with domain tasting outweigh the benefits," the
report said. 

The general questionnaire received over 200 responses, divided among
nine categories. The report conceded that "most" responses came from
parties identifying themselves as IPR owners, although participants
could select more than one designation. In other words, a party could
legitimately identify as an individual Internet user, a registrant, and
an IPR, or any other combination of categories. 

Regardless of the affiliation of the respondent, the report documented
several patterns in the comments received. The responses consistently
identified the following as among IPR owner disadvantages: 

*         short-term trademark infringement; 

*         erosion of brand names through user confusion; 

*         erosion of reputation through users diverted to dubious sites;


*         loss of revenue through diversion; and 

*         increased monitoring costs.

Responses to the IPC's questionnaire provided more detail on these
disadvantages. Though targeted at trademark and brand owners, all
interested parties were invited to respond. In all, the IPC received 115
responses, the great majority of which came from IPR owners and their
representatives. 

In comments to this questionnaire, respondents described their own
experiences with tasting, and indicated that tasting is increasing. IPC
representative Kristina Rosette, an attorney with Covington & Burling
LLP in Washington, D.C., told P&F parent company BNA as the
questionnaire was being formed that the constituency was particularly
interested in data proving that tasting was increasing, rather than just
that awareness was increasing. 

The final report cited 78 percent of respondents as stating that the
number of tasted domain names incorporating their brands had increased
over the past year. 

"A follow-up question resulted in 34 of 46 respondents (74%) confirming
that tasting had increased in real terms (as opposed to only a perceived
increase due to increased awareness of domain tasting)," the report
said. 

 

Current Mechanisms Problematic

Responses to the IPC questionnaire also indicated IPR owner frustration
with current mechanisms, such as the UDRP, to combat tasting. 

Traditionally, IPR owners turn to the UDRP or to judicial proceedings to
solve domain name disputes. However, respondents identified the AGP as a
hindrance to such formalized resolution in instances of tasting. If the
disputed name was dropped within the allotted five days, most
respondents said that they were virtually without recourse. Preparing a
formal challenge generally takes more than five days, they said. 

The IPC reported that almost two-thirds of IPR owners who said they knew
about tasting of their own brands had not taken any action. 

"The primary reasons for not doing so were because the domain name was
deleted during the AGP and doing so was costly given the number of
domain names," the report said. 

The report went on to say that the amount of time required to prepare
and file complaints was another factor: "47% of respondents reported
spending four or more days for UDRP complaints, and 70% reported
spending four or more days on judicial complaints." 

"The great majority of respondents [in the IPR category] do not view
existing enforcement mechanisms such as the UDRP and judicial
proceedings as effective against domain tasting," the report concluded. 

 

Possible Solutions Ranked

The general questionnaire asked respondents to vote for possible tasting
solutions. Those possibilities were: (A) eliminating the AGP; (B) making
the ICANN annual transaction fee (currently 0.20 USD per year)
applicable to names deleted during the AGP; and (C) imposing registry
"excess deletion fees" charged to registrars for disproportionate
deletes. The questionnaire also provided respondents space to provide
their own solution suggestions. 

"Option A" won 64 percent of the vote; "Option B" won 10 percent,
"Option C" won 14 percent, and 12 percent said no proposed options were
desirable. 

On the whole, IPR owners supported the general questionnaire's proposed
drop of the AGP. 

The Coalition Against Domain Name Abuse, an IPR representative, urged
that dropping the AGP would curb tasting without harming anyone.
"Eliminating the AGP will create an Internet where abusive practices in
the name space are less frequent. All named categories would benefit
from this," CADNA said in comments. 

Though most respondents agreed that curbing abusive practices would
benefit all categories, there was no clear consensus that eliminating
the AGP would best facilitate this result. 

According to the report, those who objected to option A did so because
of the AGP's perceived benefits. 

The AGP was initially built into the registration process as a way for
registrants to correct registration mistakes, and many responses
indicated that this use is still important. Nine percent of respondents
to the general questionnaire said that they had requested a deletion of
a domain name during the AGP for a legitimate purpose. 

In addition to correcting typographical errors, the registrar community
identified four perceived benefits of the AGP: 

*         using a cart "hold" system to provide access to names; 

*         mitigating fraud impacts; 

*         monitoring, testing, and development of registrar
provisioning, production, and merchant gateway systems; and 

*         addressing situations of buyer's remorse.

GoDaddy, a major registrar in the .com domain, said in its comments that
eliminating the AGP may cause unintended harm, as all benefits would be
lost. 

"GoDaddy uses the AGP to correct mistakes based on what we determine to
be legitimate requests and to remove domains that we determine have been
registered fraudulently," GoDaddy said, adding that 90% of its AGP
deletes were due to fraud detection. 

GoDaddy recommended an approach that would curb AGP abuse while still
permitting legitimate uses, such as adding a fee. 

"Even eliminating the AGP will not stop tasting entirely. However, if
there is some cost associated with it those who want to taste will have
to at least give more actual thought to what they are doing instead of
the indiscriminate activity we see in growing volumes today," GoDaddy
said. 

 

Next Steps

The report represents the final fact-finding efforts of ICANN's domain
tasting group, and makes no policy recommendations. The findings will be
submitted to ICANN's policy-making body, the Generic Names Supporting
Organization. 

The GNSO will take the findings into account as it decides whether to
initiate a policy development process on the tasting issue. At its
meeting at the upcoming ICANN meeting in Los Angeles, the GNSO will
either decide to proceed with a PDP, or will decide that more studies
need to be undertaken. 

In the event that the GNSO opts for a PDP, the report offers two
specific areas for GNSO focus. First, the GNSO should review and asses
all the effects of domain tasting that have been identified. Second, the
GNSO should judge whether the overall effects justify measures to be
taken to impede domain tasting. If the answer to this second question is
"yes," the tasting group asks that the GNSO consider the impacts of
potential measures on the constituencies, and recommend measures to
apply in order of priority in view of their overall effect. 

The tasting group's report, with links to the comments received, is
available through ICANN at
<http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-
final.pdf>.