[gtld-council] IPC comments

["Ute Decker" <Ute.Decker@xxxxxxxx>]

Please find attached the initial comments sent by the Intellectual
Property Constituency (IPC) initially to Liz, and now to the list, on
the GNSO Recommendation Summary regarding the Introduction of New
Generic Top-Level Domains (of September 14, 2006).

 

Best wishes

Ute 

 

Ute Decker

Deputy Director

Global Legal Policy

 

IFPI Secretariat

54 Regent Street

London

W1B 5RE

 

Tel: +44 (0)20 7878 7954

Fax: +44 (0)20 7878 6832

Email: ute.decker@xxxxxxxx <mailto:ute.decker@xxxxxxxx> 

Website: www.ifpi.org <http://www.ifpi.org>

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• To: "Liz Williams" <liz.williams@xxxxxxxxx>
• Subject: RE: GNSO Summary Recommnedaitons regarding the Introduciton of New Generic TLDs
• From: "Chicoine, Caroline G." <CCHICOINE@xxxxxxxxxxxxxxxxxx>
• Date: Fri, 20 Oct 2006 20:56:23 -0000

Dear Liz,
 
The Intellectual Property Constituency (IPC) is pleased to submit its initial 
comments on the GNSO Recommendation Summary regarding the Introduction of New 
Generic Top-Level Domains dated September 14, 2006. 
 
Upon reviewing the recommendations, the IPC identified four key areas of 
concern.  First, the selection criteria must include an inquiry into the level 
of support for the string and in particular, whether the string is likely to be 
primarily a magnet for defensive registrations.  Second, ICANN must (rather 
than "may") establish a new dispute resolution process, using independent 
arbitrators, where existing trademark holders could challenge an ICANN decision 
regarding a string.  Third, the contractual conditions must include 
pre-registration mechanisms to prevent conflict with trademark owners. Fourth, 
the recommendations must mandate the maintenance of a robust database, publicly 
accessible in real-time and without cost to those querying it, of contact 
details of registrants in new TLDs. 

1.    Selection criteria.
 
We note with concern that the Selection Criteria discussed in Section 2 of the 
GNSO Recommendation Summary does not require the consideration of the level of 
support for the new TLD, and in particular, the likelihood that the new TLD 
will become primarily a magnet for defensive registrations. Research has shown 
that an overwhelming percentage of registrations for recently introduced TLDs 
were defensive in nature, and not based on true demand.  In a Summit 
Strategies' survey, 52% of .biz registrants indicated that they had registered 
for defensive purposes, 41% of .info registrants were defensive registrants, 
and 34% of .name registrants were defensive registrants.  The only ones that 
benefit from such a practice are registrars and registries, and new TLDs should 
not be added solely to fill their pocketbooks.  Surely, this is not what ICANN 
had in mind in fulfilling one of its core values, namely to introduce and 
promote competition in the registration of domain names where practicable and 
beneficial.  Moreover, it is irresponsible that ICANN will generally abstain 
from considering the criterion of the level of support of the community of 
potential registrants for a TLD, using this only as an additional factor to 
resolve a contention among competing applications for the same string.  ICANN's 
resources are already significantly strained and should not be further drained 
to review applications for TLDs that fail to have a certain level of support 
(i.e., excluding defensive registration support).  In sum, we encourage ICANN 
to adopt selection criteria that will bring about TLDs for which there is 
legitimate demand from communities that are not well served by the current 
TLDs, and prevent a proliferation of TLDs that are likely to simply lie fallow, 
or to depend for their viability upon unproductive defensive registrations.    
 
2.    New dispute resolution process for trademark owners.
 
The IPC notes that the recommendations require ICANN to establish a dispute 
resolution process, using independent arbitrators, where existing registry 
operators could challenge a decision made by ICANN regarding whether a new TLD 
sting is confusingly similar to an existing TLD string.  However, the 
recommendations give ICANN discretion whether to establish a similar dispute 
resolution process for trademark owners who believe a new TLD string conflicts 
with their mark.  We trust that this was an oversight as we can see no reason 
to differentiate between registry operators and trademark owners.  We agree 
that the UDRP could provide a model for such a process,  but note that there 
are important differences too; for example, to reject a proposed string on 
these grounds should not require a showing of bad faith.
 
3.    Pre-registration mechanisms to prevent conflicts with trademarks.
 
Given that the recommendations do not adopt the IPC recommendation that new 
TLDs be introduced in a slow and controlled manner, they must include the 
requirement for each TLD registry to establish mechanisms to prevent conflicts 
with trademarks up front (i.e., prior to the roll-out of the new TLD), since 
there remains a strong likelihood that the rapid rollout of new gTLDs will lead 
to increases in cybersquatting and other similar bad-faith activity.
 
4.    Contractual conditions - WhoIs.

 
The recommendations must mandate the maintenance of a robust database, publicly 
accessible in real-time and without cost to those querying it, of contact 
details of registrants in new TLDs.   Personal data collected by the registry 
should be used in ways that are not incompatible with the purposes for which it 
was collected, taking into account the full range of public policy 
considerations  (see  
<http://www.ipconstituency.org/PDFs/IPC%20Position%20Statement%20on%20Registry%20Contracts%20PDP%20Feb%2006%20050506.pdf>
 
http://www.ipconstituency.org/PDFs/IPC%20Position%20Statement%20on%20Registry%20Contracts%20PDP%20Feb%2006%20050506.pdf,
 point 5a; and  
<http://www.ipconstituency.org/PDFs/2006-Jan31_IPC%20Response%20to%20New%20gTLD%20Terms%20of%20Reference.pdf>
 
http://www.ipconstituency.org/PDFs/2006-Jan31_IPC%20Response%20to%20New%20gTLD%20Terms%20of%20Reference.pdf,
 page 5).  
 
Finally, the IPC notes that the ICANN Board adopted a resolution this week to 
commission an independent study by a reputable economic consulting firm or 
organization to deliver findings on economic questions relating to the domain 
registration market.  This raises the question whether it would make sense for 
the implementation of any new TLD process to await the outcome of the study.  
At the very least, it seems advisable for any such study to address the issue 
of defensive registrations.  
 
Respectfully Submitted,
 
Caroline G. Chicoine
Vice-President of the IPC

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