Comments on New gTLD's

["Michael H. Berkens, President" <Mike@xxxxxxxxxxxxxxxxxxxxx>]

In addition to our own comments which appear herein, we would like to
support and endorse the comments made by  George Kirikos of Leap of Faith
Financial Services Inc. to ICANN posted on November 23, 2008 Mr. Kirikos
comments are well founded, and right on point.

We specifically adopt the following positions of Mr. Kirikos, in his
comments:

The introduction of new gTLDs by ICANN, will create mass confusion in the
public, increase by many fold the already existing problems of trademark
infringement, phishing attacks, and increased spam. The new extensions
threaten the stability and security of the entire internet.

The only applications that should be accepted by ICANN are those few which
will be a net benefit to the broader internet and not just simply because
the applicant ponies up $185,000

No contract be approved that would allow for tiered pricing.  Tiered pricing
has reared its ugly head on several occasions, in the last VeriSign contract
and again for the renewal of the .org, .info and .biz contracts.

We also agree and specifically endorse Mr.Kirikos comments regarding tiered
pricing where Mr. Kirikos states Due to the equal treatment clauses in
existing gTLD contracts, and the removal of price controls, the Base
Agreement represents a Trojan Horse that can be used by existing gTLD
registry operators to engage in tiered pricing.  

As Mr. Kirikos notes the ICANN staff who oversaw the drafting of this base
agreement demonstrated either a) utter disregard for the protection of
registrants, ignoring the outcome of a debate from 2 years ago when the same
contractual flaws existed in the .biz/info/org draft agreements, or b)
incompetence for not understanding the interconnectedness of existing gTLD
contracts that would be impacted by these new draft contracts, if adopted,
or c) both. We agree that this is the equivalent of ICANN staff allowing
SiteFinder or other past contentious issues to be in the base agreement, and
should be treated as such, namely a grave breach of the public trust.

We believe that this topic should be barred from any contract either in this
process or in future consideration of any new or revised contracts.

This issue has been dealt with, discussed and decided.  Enough is enough
with this already.

Allowing a registry to separately price each domain, on a arbitrary and
subjective business, places each domain holder at tremendous risk of losing
their domain, based on its own success.

The more successful an online business gets the more value the domain has
and by allowing a registry to set a price based on the successful use of a
domain, is clearly unfair and punitive to domain holders.

We also agree and specifically endorse Mr.Kirikos comments regarding 1.2.1,
that the eligibility requirements appear to be overly broad. ICANN has a
history of allowing dubious applicants to become registrars from companies
associated with spam or fronts for criminal entities. The standards for
entry into the root, a more serious obligation than that of a registrar,
should be set much higher than that for registrars. These standards should
include at a minimum civil and criminal background checks on its management
and major shareholders.

We also agree and specifically endorse Mr.Kirikos comments regarding section
1.2.2.1, that history has shown that open gTLDs (like .biz or .info) have
been failures. Open gTLDs should not be permitted at this time, and should
be deferred until future rounds.

We also agree and specifically endorse Mr.Kirikos comments regarding section
1.2.2.2, the "Contract Execution and Post-Delegation" that the language must
be made stronger. ICANN routinely approves all material changes to
community-based applications. This represents a reward for "bait-and-switch"
applications, whereby the applicants promise one thing, but then after their
applications are accepted, devolve into something very different from what
they initially promised. Severe financial and other penalties (including
mandatory redelegation or tendering to other prospective registry operators)
need to be in place to ensure that applicants live up to their contractual
obligations, and not be rewarded for these kinds of games.

We also agree and specifically endorse Mr.Kirikos comments regarding section
1.2.5, that applicants will tweak their agreements to favor themselves,
thereby creating Trojan Horses that affect registrants in other gTLDs.

The need for universal standard agreements that cannot be altered except
through well publicized long processes with actual written notice to all
existing gTLD registrants, so that they can make informed public input, is
essential.

We also agree and specifically endorse Mr.Kirikos comments regarding section
1.3, that IDNs can and will be used for phishing, TM infringement, consumer
confusion and malevolent purposes. Strong safeguards must be in place to
prevent these activities.

We would go further and ask that ICANN consider allowing all valid trademark
holders to receive their trademark for each extension for the normal
registration cost for each new gTLD.

There is no reason that a trademark holder should have to pay a premium,
that is an amount well above normal registration fees, to obtain and protect
a trademark.

We have already seen in the rollout of the .me extension many clearly
trademark terms sell for thousands of dollars and tens of thousands of
dollars to other than the trademark holders.

This is an embarrassment to all those in the domain industry and it is ICANN
failure to pass rules to prevent registries from auctioning off trademarked
terms, that allowed this to happen.

To date the highest price paid for a .me domain is Toyota. Me for $90,000 to
a company with no right to the domain.  Moreover several of these .me
domains that sold in the thousands of dollars have already been taken in
WIPO proceeding.

Allowing registries to sell domains of famous trademarks and keep the
profits from the sale, is a basic flaw in ICANN policies, which undermines
ICANN credibility and the entire domain system.

If a trademark holder is entitled to a domain, like pepsi.drink, then they
should not have to pay a premium to obtain it.  It is already costly enough
for large trademark holders to pay for all the defensive registrations,
without charging them 5x-10x the price of a normal registration.

We also agree and specifically endorse Mr.Kirikos comments regarding the
Attachment to Module 2, page A.

This draft contract itself opens up the 2-year old issue of tiered pricing
for existing gTLD registrants, due to the lack of pricing controls in these
draft agreements.

We also agree and specifically endorse Mr.Kirikos comments regarding the
Attachment to Module 2, page A11, the lifecycle of a registration should
require the redemption grace period, for the protection of registrants.
Currently ICANN has created a mess at the .com and.net level for expired,
non-renewed domains. Due to ICANN failure to pass and enforce rules on how a
.com or .net, domain should be dropped by a registrar, we have a wild west
situation where each registrar has can and has  decided what to do whatever
they want with an expired domain.

Some registrars, like Tucows.com pick whatever domains they want to keep
from their customers expired domains, place them in their own name, without
allowing them to drop.  Tucows.com by its own admission has obtained
hundreds of thousands of domains, by taking ownership of expired domains and
warehousing them.  Tucows.com has already set up a site to sell some of
these domains to the public, Yummynames.com.

Enom.com also appears to have taken expired domains of its customers, placed
them into a sister companies name and is selling them through and affiliated
site, AcquireThisName.com

Other registrar send their expired domains to either namejet.com or
snapnames.com where they are auctioned off to the highest bidder.

Other registrars like Godaddy, hold their own in house auctions, setting
different starting prices, going into the thousands of dollars, based on the
traffic a domain receives and the earnings of the expired domains on a PPC
page owned and operated by  the registrar.  Included in these domains are
many domain which are obvious trademark infringing domains, full of PPC ads
containing the trademarked term.

Allowing a registrar to charge a minimum price based on a earnings of
trademarked terms, clearly places registrars in the position where they make
money off of trademarks.  2 Examples of this, just  from the last couple of
weeks, are edhardyclothing.com, an expired Godaddy registered domain, which
sold on TDNAM.com, for its minimum price set by the Registrar, Godaddy.com
,in the amount of $6,880.  The second domain DishNetwork.net
(DIshNetwork.com is the official site of the company) sold for the minimum
bid of $2,880.  In essence Godaddy got paid for the revenue generated from
trademarked terms appearing on clear trademark infringing terms.

The wild, wild west situation has one root cause and that is ICANN's failure
to adopt and enforce uniform rules for the expired domains.

Now with new gTLDs there must be clear and unmistakable rules for deleting
domains for which the renewal fees go unpaid.

We urge ICANN to take this opportunity to adopt such rules for both the new
gTLDs and existing .com and .net domains, that forces all registrars and
registries to drop expired domain, after a standardized grace and redemption
period so that the domain can be registered on a first come first served
basis,  or adopt a central drop service which a deleted domain would go to
the first person to backorder a domain.  A registry or registrar should not
be allowed to keep the domains of its customers nor should it be allowed to
profit from the sale of trademarked domain names and other expired domains.
Each registrar should not be allow to create its own rules on how expired
domains should be handled.

Finally we think it's only fair that ICANN announces in advance if any adult
extensions will be permitted, without requiring applicant to pay $185,000 to
find out.

We all know the history of the .xxx extension, which was ultimately not
permitted and voted down basically on moral grounds, upon the demands of the
US commerce Department.  If the .xxx extension was rejected on moral grounds
ICANN should issue a statement that such an extension or .sex, .porn,
.adult, will or will not be allowed.  To require many companies to pay
$185,000 non-refundable fee to find out ICANN's policy is unfair and to all
applicants and may discourage additional applicant who fear losing $185,000
and therefore do not apply.

This situation has again be dealt with, and the answer is either such
extension will be allowed or they won't.

But of fairness this policy must be made clear, before accepting
applications, and 185,000 non-refundable dollars.

We respectfully request that our comments, along with Mr. Kirikos be given
great weight in determining the future of new gTLDs and the handling of
current extensions.

 

 

Very truly yours,

 

Michael H. Berkens

President

Worldwide Media, Inc.

 

http://www.MostWantedDomains.com <http://www.mostwanteddomains.com/> 

 

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