Comments of Internet Commerce Association Regarding New gTLD Draft Applicant Guidebook

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

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

               December 15, 2008

Board of Directors
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601

Re: New gTLD Draft Applicant Guidebook

Dear Members of the ICANN Board:

This comment letter is submitted by the Internet Commerce Association (ICA) in 
regard to ICANN's October 23rd notice establishing a forty-five day period for 
public comments on ICANN's Draft Applicant Guidebook for new generic Top Level 
Domains. On December 3rd ICANN published additional materials relating to the 
Guidebook and extended the English language comment period by a week.

ICA is a not-for-profit trade association representing the direct search 
industry. Its membership is composed of domain name registrants that invest in 
domain names (DNs) and develop the associated websites, as well as the 
companies that serve them. Professional domain name registrants are a major 
source of the fees that support registrars, registries, and ICANN itself. The 
ICA is an International Member of ICANN's Commercial and Business Constituency 
and presently has more than 120 members located in the United States and 
thirteen other nations.

Executive Summary


·        ICANN must proceed cautiously in its consideration of new gTLD 
applications and should announce in advance a prioritization system to assure 
orderly and comprehensive review.

·        ICANN has not provided sufficient time for review of and comment upon 
the draft gTLD Applicant Guidebook and should provide a comment period of no 
less than sixty days following publication of the next revision, and should 
also consider a third comment period if considerable controversy or questions 
persist.

·        The new gTLD process must not be used to resurrect much less validate 
the concept of differential pricing by registries; any exceptions to this 
policy must only be for a carefully circumscribed group of "closed" registries 
subject to strict numerical registration limits. Likewise, ICANN should 
continue adhering to vertical separation of registries and registrars and to 
enforcing equal access policies for registrars, with any exceptions limited to 
a narrow category of single organization gTLDs.

·        ICANN should reverse its adoption of the GAC position relating to 
prior approval for any geo-gTLD and revert to the GNSO position providing 
governmental entities with standard objection rights. Any suggestion that 
governments have any ability to object to second level geo-domains on any 
grounds outside the scope of the UDRP should be rejected outright.

·        Strong, cost-effective, and readily implemented protections for rights 
holders should be established but they must be limited to enforcing their 
rights under existing law and not be premised upon the creation of broader 
rights by ICANN fiat. It is for this reason that we object to creation of a 
reserve list of trademark names as this would provide rights protections beyond 
the geographic and relevant marketplace limitations of trademark law. We also 
object to the imposition of any new rights or procedures that would supplant or 
supplement the UDRP absent extensive consideration of such proposals in a 
process that ensures that registrant concerns about current UDRP enforcement 
trends are heard.

·        We oppose permitting law and public morality objections to new gTLDs 
unless narrow and clearly articulated criteria for such objections can be 
established, because if they are not then the DNS could become a censorship 
regime grounded in the whims and personal views of individual jurists.



General Overview and Procedural Considerations

There are currently twenty-one gTLDs, both sponsored and unsponsored. ICANN has 
now initiated a process by which the number of gTLDs may, by ICANN's own 
estimate, be expanded more than twenty-fold in a single initial application and 
approval round. At the same time, the application fees received from an 
estimated 500 applicants will, at the current stated fee of $185,000, produce 
an additional cash flow of $92.5 million, representing a one hundred and fifty 
percent increase in ICANN's operating revenues - and following approval, 
contract administration duties in regard to these new registry operators will 
substantially add to ICANN's overall workload. While ICANN's management and 
staff are of high caliber, this is a tremendous amount of rapid and exponential 
change that any organization would find a challenge to successfully manage. 
Therefore, given that the rapid introduction of potentially hundreds of new 
gTLDs will be the most momentous change to the domain name system (DNS) since 
the establishment of ICANN, and that the success or lack thereof will have 
tremendous implications for all present participants in the DNS as well as 
ICANN itself, it would appear that a cautious and exceedingly well thought out 
approach to the proposed opening of the gTLD space would be the preferred 
course of action.

Unfortunately, we do not believe the approach taken by ICANN to date meets that 
advisable standard. Given the magnitude of the change contemplated and the 
stakes involved, as well as the length and complexity of the Guidebook and the 
fact that key issues and details have yet to be provided, two comment rounds of 
forty-five days each are entirely insufficient. We therefore urge that the 
second comment period contemplated by ICANN be for a minimum of sixty and 
preferably ninety days, and that a third comment round be scheduled if key 
issues and details remain absent or incomplete in the second version of the 
Draft Guidebook after considering all first round comments, or if such issues 
and details are provided in the second version but result in considerable 
continuing controversy or disagreement within the community.

We also find it difficult to believe that ICANN can give adequate consideration 
to the volume of application it expects to receive in the first round - even if 
one-third of the anticipated 500 applications were delayed due to objections 
raised against them, that would still require ICANN staff to review and approve 
an application nearly every day of the first year of the program's operation, 
including weekends and holidays, if the first round decks are to be cleared 
before the contemplated initiation of the second application round 
approximately one year later. Such a torrid pace is unlikely to afford adequate 
consideration of applicant qualifications and capabilities or of the soundness 
of their proposals, and is likely to either result in inordinate delays or 
future failures and scandals that will be destabilizing to the DNS and 
negatively impact the ICANN community and ICANN itself. Therefore, we believe 
that ICANN should adopt and state, in advance of accepting applications, a 
prioritization regime that will allow it to process all first round 
applications in a thorough and orderly fashion.

Adding to the need for such clearly articulated prioritization policies is the 
fact that 2009 will also bring with it two major events that will have 
substantial additional impact on the attention and processing capabilities of 
both ICANN and the overall community. The first is implementation of GNSO 
reform; our recent participation in meetings in Cairo made clear that the 
functional success of this exercise is far from assured and that the ability of 
ICANN's primary policymaking body to meaningfully participate in upcoming 
decisions is questionable. The second is the September 2009 Joint Project 
Agreement (JPA) decision point for continuation or termination of U.S. 
oversight of ICANN, along with associated concerns regarding ICANN's potential 
plans to evolve its organizational form and legal status -- as well as its 
ability to withstand capture attempts by the International Telecommunications 
Union or similar entities that would in turn lead to increased politicization 
and bureaucratization of ICANN's activities. In short, ICANN will have other 
major challenges and issues competing for its attention next year in addition 
to a massive expansion of the domain name space.

ICA members are competitive entrepreneurs and we therefore have no objection to 
the general concept of a further expansion of the gTLD space and a 
proliferation of new registry business models. Indeed, some ICA members may 
well be applicants, while others hope to offer backend services to new 
registries, and still others may perceive investment and development 
opportunities in some of the new gTLDs. But this rollout must be carefully 
managed. Overall, it is much more important that the application and approval 
process for new gTLDs be done right than be done fast.

Finally, in regard to both this and other ICANN proposals put out for community 
comment, we find it lamentable and inexcusable that ICANN continues to afford 
inadequate time for analysis and feedback. ICANN staff and Board should have 
clearly heard at the June Paris meeting a chorus of calls for longer comment 
periods generally, as well as great concern over ICANN's pattern of deluging 
the community with new proposals and documents immediately before one of its 
general meetings. Despite these clear expressions of concern, ICANN once again 
released multiple complex proposals and reports in the week prior to the Cairo 
meeting (many of which have had their own comment deadlines over the past few 
weeks), and provided a thoroughly inadequate first round forty-five (now 
lengthened to fifty-two) day comment period on a draft applicant guidebook 
that, with supporting memorandum, exceeds 300 pages in length. Similarly, in 
regard to the CRA International report, "Revisiting Vertical Separation of 
Registries and Registrars"-- upon which we comment in this letter due to its 
direct relationship to overall gTLD pricing policies-- ICANN's December 9th 
announcement that it would conduct a public consultation on this document in 
Washington, DC a scant 48 hours later constituted thoroughly inadequate notice 
and was indeed insulting to the community and made a mockery of the public 
consultation process. Even though we are located in Washington we found it 
impossible to attend this meeting due to prior commitments, and we imagine that 
the situation was even more difficult for interested parties located outside of 
Washington. We believe that the Washington meeting should be rescheduled to 
provide an opportunity for meaningful and fully informed participation and 
that, in the future, any ICANN announcement of a public meeting or consultation 
should provide a minimum of two weeks' notice so that interested parties can 
make arrangements to attend and prepare themselves thoroughly for such event.

gTLD Pricing Regime

The draft contract for new registries lacks any pricing controls and thereby 
introduces the possibility that all new gTLDs, including those that are open to 
unrestricted classes of registrants, may impose tiered pricing. Proceeding 
without such controls would allow incumbent registry operators - including 
those for the four most successful incumbent gTLDs, .com, .net, .org, and 
.info, which collectively constitute 97 percent of all gTLD registration - to 
argue that provisions in their present registry contracts permit them to 
likewise institute tiered pricing. This result is thoroughly unacceptable. The 
issue of tiered pricing has been extensively debated in the context of the 
recent renewals of incumbent gTLD registry contracts and was rejected after 
substantial negative input from the community. This issue should not be 
reopened through the backdoor of these new registry contracts, and it is 
extremely disturbing that ICANN has done so.

ICA's position on this matter has been clearly stated in the past - we believe 
that the award of a gTLD registry contract creates a natural monopoly requiring 
substantial oversight and controls from ICANN to prevent pricing abuse; that 
is, a particular domain name constitutes an Internet address that has specific 
value that cannot be readily transferred to another gTLD in the face of 
unreasonable renewal pricing demands. To the extent that a gTLD registry is or 
becomes successful that success is due to the efforts and expenditures of the 
registrants who have populated it with compelling domains, and not of the 
registry operator which fulfills its operational role of maintaining a secure 
and accurate registration database. Absent evidence to the contrary, the cost 
to the registrar of maintaining the registration of a particular second level 
name is constant regardless of the number of visits to associated web pages or 
the commercial success of any associated business activity. It is also clear, 
given the fact that .com registrations constitute 74 percent of all gTLD 
registrations and that sixteen of the 21 existing gTLDs collectively constitute 
a scant 1 percent of same, that certain gTLDs have substantially more value to 
registrants and the public and that migration of a second level name to another 
gTLD (assuming such name was available) would not be an acceptable alternative 
in reaction to the extortionate pricing policies that could be instituted under 
a tiered pricing regime. In short, registration fees should be just that -- 
flat fees for a ministerial service -- and any allowance of tiered pricing 
would permit gTLDs to institute a thoroughly undeserved and objectionable tax 
on the most successful websites and Internet business models.

We recognize that certain "closed" gTLDs may be proposed in the upcoming round 
of gTLD applications and that tiered pricing may be acceptable in that very 
limited context, For example, an organization might propose to establish a gTLD 
solely for its members and to impose a lesser registration fee on individuals 
than on business entity registrants. However, even allowing this limited 
exception would only be acceptable if ICANN can provide adequate documented 
assurance to the community that such allowance would not permit incumbent gTLD 
registries to argue that such action gives them a contractual green light to 
implement tiered pricing. In any event, tiered pricing on new gTLDs open to the 
general public, broadly defined, should be absolutely prohibited, and should be 
accompanied by establishment of a threshold limit (e.g., 50,000 domain names) 
beyond which even a supposedly closed gTLD will be subject to strict pricing 
controls. In addition, within the extremely limited universe of new closed 
gTLDs that are permitted to establish variable registration pricing of any 
kind, such registries should be required to publicly announce their pricing 
policies in advance of any final application approval and should be bound to 
such policies for the entire ten year term of initial approval with a limited 
exception made for those registries that can demonstrate that an alteration in 
pricing policies is required for their financial survival - and then only if 
ICANN makes such request public and permits adequate time for community input.

Directly related to registry pricing policies is the matter of 
registry-registrar relations. Section 2.8 of the draft registry agreement fails 
to adequately address this issue, stating only "TBD-See paper to be posted on 
ICANN website discussing registrar marketplace issues." We have indeed 
thoroughly reviewed that report, "Revisiting Vertical Separation of Registries 
and Registrars" by CRA International. While it is a well reasoned, 
comprehensively, and adequately documented analysis we must demur from the 
thrust of its recommendations.

Vigorous competition between ICANN-accredited registrars in the pricing and 
range of their registrant services is one of the great successes of the ICANN 
experiment and should not be abandoned. We continue to believe that the 
position taken by the Department of Commerce in its June 1998 White Paper - 
"where possible, market mechanisms that support competition and consumer choice 
should drive the management of the Internet because they will lower costs, 
promote innovation, encourage diversity, and enhance user choice and 
satisfaction" - remains valid a decade later and should be a guiding principle 
for ICANN decisions.

We completely agree with CRA's observation that there are various incentives 
for a registry to discriminate among registrars in a manner that harms 
consumers/registrants, that such discrimination could take on multiple forms, 
and that these incentives are especially clear and strong when a registry is 
operating under a binding price cap; and that vertical separation (of registry 
and registrar) and equal access (of registrars)  are useful tools for limiting 
the possibility of harmful discrimination. As previously stated in this and 
prior comment letters, we believe that award of a gTLD registry creates a 
natural monopoly and that fixed maximum pricing caps and prohibition of 
differential pricing are required to protect registrants from extortionate 
registry pricing actions constituting the imposition of a tax on the success 
that individual registrants have created.

Therefore, we have strong qualms regarding CRA's recommendation that ICANN take 
steps toward relaxing the vertical separation and equal access requirements. We 
recognize that consideration of limited relaxation of such requirements may be 
appropriate for new and innovative single-organization gTLDs where the registry 
and registrants are one and the same, particularly since there may be little or 
any impetus for third party registrars to serve them and also recognizing there 
also may be valid security concerns associated with third party registrar 
services in this limited context. However, we agree with CRA that defining such 
gTLDs may not be a straightforward matter and therefore we would urge extreme 
caution in creating such exceptions lest they swallow the rule.

As for the other possibility for relaxation cited by CRA, the "hybrid model" in 
which a registry has a controlling stake in a registrar so long as it does not 
serve that particular registry, we have even greater concerns. As noted, there 
is already tremendous competition in pricing and services at the registrar 
level so we are not considering this matter in a context of inadequacy of 
providers where new entrants must be encouraged. We have little doubt that a 
registry permitted to directly own a registrar will, at some point after 
initial approval, present arguments to ICANN that it should be permitted to 
offer registration services for its own registry and that such permission can 
be conditioned on various safeguards to protect registrants. Therefore, we view 
the hybrid model suggestion as a camel's nose under the tent of ending vertical 
separation of registries and registrars generally. In addition, incumbent 
registries might well use the CRA report to justify another attempt at removing 
price caps, arguing somewhat disingenuously that such action would reduce the 
discrimination dangers that might otherwise accompany an easing of vertical 
separation.

CRA notes that easing of vertical separation would require more vigorous 
enforcement of equal access requirements by ICANN, and we question whether 
ICANN is up to the task especially given the new administrative and contract 
enforcement burdens it will face in conjunction with the massive contemplated 
rollout of new gTLDs. Therefore, we see little to gain and much at risk and 
oppose ICANN approval of such hybrids.

Summing up, we agree with CRA's recommendation that ICANN move slowly toward 
permitting integration of registry and registrar services. But we dissent from 
its apparent goal of using experimentation with single-organization and hybrid 
registries as a prelude to relaxing vertical separation and equal access 
requirements for a broader pool of gTLDs, as we doubt that any such relaxation 
could be contained to exclude the dominant incumbent registries.

Geographic Names

All recognized governments and a variety of international organizations already 
have been assigned their own country code TLDs (ccTLDs). The ccTLDs have been 
quite successful in attracting registrations, with a total of about 49 million 
registered domain names as of February 2008, about one-half of the 
approximately 100 million gTLD registrations in effect contemporaneously. In 
some regions, such as the European Union (EU), ccTLD commercial registrations 
are more popular than those on gTLDs. At the same time developed geographic 
domains are among the most successful websites, and the principle has become 
well-established that national governments and other governmental entities have 
no valid claim against such geo-domains. Internet users have repeatedly 
demonstrated that many of their Internet informational searches relate directly 
to a specific geographic locale, and geo-domains developed by the private 
sector have served the informational and commercial needs of these users very 
well.

In short, the countries of the world have been given their own registries and 
many have been quite successful in developing them. These nations and lower 
echelon regional, state, county and city authorities should not now be given 
the opportunity to extend their authority over new gTLDs proposed by 
entrepreneurial individuals and organizations by requiring such applicants to 
receive advance endorsement or at least non-objection of the nation or other 
governmental authority associated with a proposed geo-gTLD name (and, even 
then, such applications could still be subject to community objections). Such a 
requirement is a prescription for the awarding of geo-gTLD contracts on the 
basis of lobbying prowess and political connections at best and outright 
corruption at worst. It will impair the best potential development of new 
geo-gTLDs to the detriment of Internet users and will also abet censorship and 
other forms of information control. This proposed requirement is completely at 
odds with the GNSO principles adopted by the ICANN Board and instead acquiesces 
to the unreasonable overreaching on this matter of ICANN's Government Advisory 
Committee (GAC).

It is indeed outrageous that ICANN staff has unilaterally rejected the 
Board-adopted recommendation of its primary policymaking body, the GNSO, and 
acquiesced in part to the advisory recommendations of the GAC. In this matter, 
as well as in regard to several others that we address in this letter, we quote 
with approval the statements made by outgoing ICANN Board member Susan Crawford 
during the Board meeting held in Cairo on November 7th. She stated:


>>SUSAN CRAWFORD:   Thank you, Kurt.

 When I began my service on the ICANN board, the first thing I wanted to push 
for was new gTLDs.  And I am very anxious to see this go forward.  And we've 
heard so many comments from people saying they want it to go forward.

 That being said, I am concerned -- and I hope the board in the future will be 
concerned -- about some quite breathtaking elements of the applicant guidebook 
that exists.  And some of these issues you have raised in your summary, for 
which I thank you.

 The four -- I'm just going to pick the four most outrageous elements that I 
want to bring forward in my last half hour on the board.

 The first is the morality and public order element that we've talked about in 
the past.  As presented in the applicant guidebook and in the explanatory 
memoranda accompanying it, there would be no limit to who could bring a 
morality and public order claim and no constraint on the subject of that claim, 
essentially, nothing.  Anybody could complain about something, and three 
panelists who keep their decision completely secret could decide that it 
offended morality and public order.

 And then the decision of those panelist is not even final.  It just becomes 
another element that then may get bounced back to the ICANN board.

 So you've got complete discretion, plus no finality.  I'm not sure what we're 
gaining through this.

 So if I were king, I would suggest that we find some way of very narrowly 
tailoring the limits on expression that are properly the subject of objections 
and constrain jurists making those decisions.

 Of course, the judges will say they want complete discretion.  That's their 
job.  They want to have the ability to make wide-ranging decisions.  It's not 
ICANN's job to serve as a gatekeeper in this fashion, handing over, at least 
temporarily, this authority to a panel.

 So that's my brief summary of the problems, as I see them, with morality and 
public order as it's been implemented in the draft.

 And please correct me if I've gotten this wrong.

 The second outrageous element of this, in my view, is the suggestion in one of 
the explanatory memoranda that auctions appear to be the best means of 
resolving contention among competing applications.

 Governments auction spectrum because a government can be said to stand for its 
citizens and to have the right to collect monies on their behalf and deposit 
those monies into the treasury for the good of that bounded group of citizenry.

 I cannot imagine on what basis ICANN would say that it has the right to 
auction off domains, top-level domains.  And even if somehow it does have that 
right, the mischief created by trying to figure out how to allocate that money 
is staggering.  You'd have to create a second ICANN to deal with the deployment 
of funds.

 So you and I have discussed this in the past.  But I want to say it again, I 
really think it is potentially destabilizing to assert the authority to hold an 
auction in this context.  And I'm not persuaded by the argument that merely 
flipping a coin would be illegal.  These applicants will have gone through a 
lot of process before they get to the contention stage.

 So forget auctions.

 The third outrageous element, in my view, is --

 [ Applause ]
SUSAN CRAWFORD:   Oh, thank you.
 -- geographic names.  Geographic names.  The GNSO fought over this for a long 
time and made a policy recommendation that objections based -- coming from 
communities, or let's put it the other way, that if an application seems to be 
targeting a community, it can be objected to.  They're very clear that 
opposition must be objection-based, that the burden of going forward must be on 
the objector.  That's the policy as stated by the GNSO.  And the policy, 
frankly, that the board approved.
 The guidebook flips the burden around and suggests that the applicant has the 
burden of coming forward with documents of support or nonobjection from the 
relevant government.
 And I don't understand how this could have happened.  The board approved the 
GNSO policy.
 I hope there will be further discussion about that.
 Possibly the most outrageous element of this entire package has not yet been 
explored by the board at all.  And that's the base contract that would be 
provided to registries.
 Now, these guys are willing to sign a napkin.  They've been waiting for these 
applications to be opened for such a long time.  They have zero leverage.  In 
this context, ICANN is a monopoly, handing out a contract that is essentially 
nonnegotiable.  It is up to the board and management and staff to restrain 
ourselves in making this contract.
 Here's what happened.  The whole point of ICANN is that it's made up of 
private parties signing agreements with each other, a private registry signing 
a private agreement with ICANN.
 These private parties have agreed that, in the future, if the community comes 
up with a mandatory consensus policy, they will change their activity, they 
will be bound by future consensus policies.
 An important element of this is that ICANN has an obligation to treat equally 
-- to treat parties equally.
 ICANN is abusing its power in this draft contract.  We're apparently 
frustrated with the consensus policy model, so it's blown up in two different 
ways.
 One is that the proposed draft contract really has a belt and suspenders 
approach.  First, it allows ICANN to amend the contract for any reason, subject 
to a veto of the registries, and on any topic.
 So the whole bounded nature of consensus policies is gone.
 Second, just in case anybody tries to invoke the consensus policy structure, 
it dramatically expands the scope of what it understands consensus policies to 
be.  Everything is included.
 So the contract can be unilaterally amended by ICANN on any topic unless the 
registries as a body vote to overturn.
 It's quite -- it's actually completely inconsistent with the Board Governance 
Committee's GNSO Working Group report of February 2008 that made very clear how 
this structure is supposed to work.
 So I really find that a destabilizing change.  I'm not sure where ICANN gets 
the authority to do that.  It's apparent that registries will sign this, 
because they will really have no choice if they want to go forward.  And it 
eliminates the essential bargain that was the basis of ICANN's creation.
 So otherwise, it's great, Kurt.  But I just wanted to get all of that on the 
record.
 Thank you very much.
 [ Applause ]
 >>PETER DENGATE THRUSH:   Other than that, Mrs. Lincoln, what did you think of 
 >>the play?
 Thanks, Susan.
ICANN Board Chairman Peter Dengate Thrush chimed in with support of most of Ms. 
Crawford's statements, including those pertaining to geographic names:


PETER DENGATE THRUSH:   Anyone else?

 I would like to associate and agree with Susan's points, except that 
concerning auctions.  I don't use the same -- perhaps quite the same tone as 
Susan.  But I share the same concerns, particularly about public order and 
morality, on which the board has spent a considerable amount of time trying to 
get clear what the proper scope in relation to those issues were under the 
headings, particularly, of standing and standards.  And we have tended to seek 
to limit either one or both of those so that there was clear boundaries for 
everybody in relation to those disputes.

 So I am going to certainly come back to those with some interest.

 Similarly with geographic names, I'm concerned about the substance of that, 
the concept of that being a basis for a reservation or objection.  And, of 
course, I'm concerned about the reversal of the onus that results from adopting 
the way it's been put there.

 And I also share the concern about possibly fundamental changes to the basic 
principle of ICANN's core management processes.  And as we've said before, the 
genius of the policy development process seems to be put at risk by this 
approach.  So I will be coming back carefully to look at those as well.



In our view, national and other governmental authorities should be restricted 
to the same objection rights as other parties in regard to new gTLDs. ICANN's 
staff has already conceded far too much to the GAC, and yet the GAC remains 
unsatisfied. An October 2nd letter from ICANN CEO & President Paul Twomey to 
GAC Chairman Janis Karlkins notes that, while ICANN staff had acquiesced in 
regard to GAC Paragraph 2.2 as regards advance agreement or non-objection from 
the relevant government or public authority, the GAC still was pushing for 
acceptance of Paragraph 2.7, which would require applicant registries for new 
gTLDs to adopt procedures for the blocking, at no cost and upon demand of 
governments, public authorities, on Intergovernmental organizations (IGOs), any 
second level name of geographic or national significance, and further ensure 
procedures to allow the same entities to challenge "abuses" of such names at 
the second level. The notion that national governments and other entities 
should be awarded a cost-free method of blocking second level geo- and 
"national significance" (whatever that broad and undefined term might mean) 
names that have not secured their blessing, and that they further be permitted 
to harass such registrants for alleged "abuses" that fall far outside the 
present scope of the UDRP, is a complete outrage and a threat to free 
expression and enterprise. Further, the notion expressed in the letter that 
such second level restrictions might be inappropriate for "multi-national 
companies" and "brand name holders" implies that they might be acceptable 
vis-à-vis individual and small business entrepreneurs, a notion that we find 
offensive insofar as it would establish one favorable rule for large 
corporations and another far more stringent rule for small businesses.



It is ICA's position that the final application process for new gTLDs must 
revert to the GNSO position regarding the rights of nations and other geo-based 
entities and organizations and that ICANN staff's acquiescence to the GAC in 
this regard is unacceptable. In particular, objections by governments and 
similar entities to second level geo-names must remain limited to the scope of 
the UDRP, as any deviation from that principle threatens dangerous and 
unjustified policy blowback for valuable geo-names registered at incumbent 
gTLDs.



Protection of the Rights of Others



The ICA strongly supports the protection of intellectual property (IP) rights, 
including trademark rights.  We have adopted a Code of Conduct that prohibits 
intentional trademark infringement. And we have supported adoption of policies 
by individual registries, and the adoption of new pricing regimes by ICANN, 
that appear to be successfully eradicating that abuse of the Add/Grace Period 
(AGP) known as domain tasting which is sometimes associated with deliberate 
cybersquatting on the trademark rights of others.



For these reasons ICA strongly supports the adoption of policies in conjunction 
with new gTLDs to support IP rights. We believe that the proposed procedures 
accomplish this by affording IP owners the right to bring objections against 
any proposed string that they believe would infringe their rights. As ICANN has 
noted in its memorandum on this issue, "it is not unusual for more than one 
entity to have a trademark in the same word or phrase either for different 
products or services or registered in different jurisdictions". The Internet 
and trademark rights coexist uneasily, as the former is a global data 
transmission system while the latter is restricted by relevant marketplace  as 
well as geographic considerations. It is for that reason that we oppose the 
suggestion of some IP interests that ICANN establish a master list of trademark 
terms  that will be either off-limits to or extremely difficult to establish as 
a new gTLD; vast tracts of generic dictionary words, in multiple languages, 
would inevitably wind up on such a list. To cite one example, the word dove is 
trademarked as the name of a soap bar as well as of an expensive line of ice 
cream, but the dove is also the universal symbol of peace - and if a non-profit 
peace advocacy group wishes to apply for .dove as a registry devoted solely to 
its activities and goals it should not be subject to blockage or objection from 
either of the cited business entities.



It is critically important that IP rights protections adopted in conjunction 
with the gTLD process be limited to protecting existing rights conferred by 
relevant law and do not create newly expanded rights beyond the scope of 
current law. Therefore, we have some concern that the criteria for resolving 
objections is being developed by IP experts, as such individuals may try to 
utilize this process to exactly such an expansionist end, seeking from ICANN 
what they have been unable to persuade legislatures to confer. In any event, 
until these criteria are fully developed and published for public review it is 
impossible to render an informed judgment upon them. Our concern regarding the 
present vagueness of these criteria stems from our observation, which we have 
articulated to ICANN on numerous occasions, that the Uniform Dispute Resolution 
Process (UDRP) is becoming less and less uniform and predictable and that a 
presumptive burden is being imposed upon registrants that is contrary to the 
clear language of the UDRP.  Any extralegal expansion of IP rights resulting 
from the gTLD process has the potential to find its way into and further bias 
the UDRP against good faith registrants. This concern is particularly acute 
given that the World Intellectual Property Organization, which is inherently 
biased in favor of IP rights and their expansion and also serves as a leading 
arbiter of UDRP cases, is the only designated provider of dispute resolution 
services for legal rights objections and that such disputes will be decided by 
a single panelist.



Notwithstanding that caution, we support requiring gTLD applicants to adopt 
strong best practices to protect IP rights and, if the method chosen is a 
sunrise period, we would urge that trademark owners be charged only a 
reasonable minimum fee to register their protected names at the second level on 
the new gTLD. And, of course, we have no objection to the requirement that all 
second level registrations be subject to the UDRP - so long as it is 
implemented in a uniform fashion in keeping with its clearly stated requirement 
that a party alleging infringement carry the burden of proving the three 
required elements for a finding against the registrant. However, we strongly 
object to suggestions that ICANN establish a near-term requirement for 
cost-free takedown procedures for domains alleged to be established in bad 
faith for both new and existing gTLDs, as establishment of bad faith 
registration is already one of the key elements of the UDRP - it should remain 
one of three elements in a balanced proceeding, and not become the single 
determinative element in a biased proceeding. Any alteration or supplementation 
of the UDRP should not be implemented as a footnote to new gTLD implementation 
but only after presentation to and consideration by the community -- and such 
process must take into consideration and redress concerns with the present UDRP 
voiced by registrants and not simply react to the complaints of trademark 
interests.



We believe that the concerns of many trademark holders will be alleviated when 
the reality of new gTLD applications begins. The impending situation should in 
no way be analogous to current abuses, in which a cybersquatter can seek to 
monetize a clear typographical variation of a famous trademark on .com for less 
than $10 per year, and can hide his identity through a proxy service. New gTLDs 
applicants will put at risk a full $185,000 application fee, will require 
several $hundred thousand more in the bank, and will entail establishing one's 
bona fides as a legitimate organization with ICANN. Given these realities, we 
would be surprised to see any extensive infringement attempted through new 
registry applications. As for the second level, various infringement scams may 
be difficult to implement due to a scarcity of type-in traffic at most new 
gTLDs and their low placement in search engine results. In any event, the UDRP 
remains available for use against bad faith registrations.  In addition, we 
strongly urge ICANN and all registries to increase their commitment to finding 
means of taking down domains that are used to facilitate criminal activity such 
as phishing scams and stand ready to offer whatever assistance the domain 
investment community can provide in that effort.



Morality and Public Order Objections



The ICA does not want to see new gTLDs utilizing names related or dedicated to 
the advocacy of racism, discrimination, violence, terrorism, genocide, or other 
harms and evils. At the same time, we cannot support the DNS being used as a 
censorship regime or as a means of curtailing speech to a far greater degree 
than is permitted in various national jurisdictions - including our base of 
operations, the United States, where the First Amendment provides broad 
protections for speech and expression. One of the major reasons we previously 
objected to the proposed .xxx contract was because it would have involved ICANN 
in the business of reviewing and rating content.



While we are not opposed in principle to permitting objections to certain 
proposed gTLDs based on concerns relating to advocacy of highly offensive or 
criminal activities, we cannot support permitting such objections under the 
vague criteria proposed to date by ICANN. ICANN's memorandum on this subject 
recommends that "TLD strings must not be contrary to generally accepted legal 
norms relating to morality and public order that are recognized under 
international principles of law", yet concedes a few paragraphs later that 
"Extensive research has shown that it is difficult to identify existing 
generally accepted legal norms relating to morality and public order." In 
short, ICANN is proposing that gTLDs not be contrary to norms that do not exist!



ICANN then falls back to a position that such objections will be decided by 
"esteemed jurists" implementing "very broad standards" and imbued with 
considerable discretion, and that this should somehow mute concerns. 
Unfortunately, this seems to boil down to empowering jurists who "know it when 
they see it", an approach that provides only the vaguest guidance to potential 
applicants or protection for free expression. Again, as with IP protections, 
one of our main concerns is that overreaching standards employed against new 
gTLD applicants will set new norms that will find their way into the second 
level and threaten existing registrants at incumbent registries.



While we reserve judgment on this matter pending further information from 
ICANN, we cannot support morality and public order objections against proposed 
gTLDs unless and until ICANN can articulate a narrow range of specific   terms 
that could be subject to them.

Conclusion

We hope that ICANN will find our comments useful as it revises the Applicant 
Guidebook and prepares to release a revised second version for analysis and 
comment. We look forward to reviewing that updated document.

Thank you for your consideration of our views in this matter.



Sincerely,

Philip S. Corwin

Counsel, Internet Commerce Association








Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey