CSC Comments to the New gTLD Program and Process

["Gretchen Olive" <golive@xxxxxxxxxxx>]

To: ICANN (gtld-guide@xxxxxxxxx) 

 

Re: Comments to the New gTLD Program and Process 

 

 

Dear Mr. Twomey and Mr. Dengate-Thrush: 

 

Corporation Service Company(r) (CSC) is the trusted partner of over 50%
of the 100 Best Global Brands, including 3 of the top 4, for global
domain name registration/management and brand protection. Since the
release of the New gTLD Applicant Guidebook ("Guidebook") by ICANN on
October 24, 2008, we have been engaged in significant and on-going
dialogue with our clients and other corporate registrars regarding the
new gTLD program. On behalf of the undersigned companies and individuals
identified below, CSC respectfully submits the following comments
related to the Guidebook and the new gTLD program. 

 

Introduction 

 

Although ICANN is firmly committed to implementing its new gTLD program
in 2009, there remain many unanswered questions related to the
implementation and demand for potentially hundreds of new TLDs at this
time. A quick read of the news clearly highlights the fact that we are
in the midst of a historic, worldwide recession where public and private
enterprise, as well as consumers are experiencing mass lay-offs,
bankruptcies, budget cuts, and all are limiting non-essential spending.
Given this environment, there is significant sentiment among corporate
brand owners that now may not be an appropriate time to be launching
such a costly and expansive initiative. 

In the face of this current climate, ICANN should reconsider its
decision to move forward at this time and conduct broader, global
studies, education and consultation to confirm its assumptions regarding
the economic demand for these new gTLDs. Depending upon the results of
such studies and consultation, it may be appropriate to scale back the
launch of the new gTLD program initially, such as launching only those
IDN or geographic based gTLDs that are supported by a significant
community demand. 

 

However, since it appears that the new gTLD program launch is
inevitable, we understand that some corporations will likely apply for
new gTLDs for primarily defensive reasons, and a few may do so to
support their Internet marketing initiatives. However, most major
corporations prefer that the new gTLD launch be delayed until basic
safeguards are adopted to protect against brand abuse. 

 

Rush to Implementation Causes Those Not Experienced in ICANN Politics
and Processes to be at a Significant Disadvantage 

 

As is evidenced by the creation of ICANN's Fellowship Program and Issue
Briefs, it is recognized by ICANN that the structure, nomenclature,
processes and issues discussed and debated at ICANN Meetings and on the
ICANN.ORG website are highly-specialized, often technical in nature,
complex and are not universally known or understood. Meaningful
participation in the 




 

ICANN policy-making process requires tremendous time, financial
resources and mentorship over a prolonged period of time. While ICANN
has made attempts to specifically encourage and assist the business
community to become more active and engaged in the ICANN
policy-development process with the creation of the "Business Track" at
ICANN Meetings, these efforts only began in earnest in mid-2008 and are
still in their infancy. 

 

Most companies lack dedicated budget and staff to consistently
participate and attend ICANN Meetings. As a result, the voice of the
broader global business community has not adequately been heard and
considered during discussions concerning the need and utility of new
gTLDs. Now companies are faced with the daunting task of reading and
understanding 200+ pages of proposed implementation documentation with
little to no background, warning or time to understand the all
implications the new gTLD initiative can have on their business 

 

Thus, ICANN should allow significantly more time and create many more
in-person opportunities beyond ICANN Meetings for the education of and
consultation with the global business community and other Internet users
about new gTLDs before the implementation proceeds any further. The
timelines currently articulated by ICANN are self-imposed and only cause
those not experienced in the policies and processes of ICANN to be at a
significant disadvantage in understanding and participating in the
policy creation process. 

 

Brand Abuse is Expected to Grow Exponentially in the New TLDs 

 

Assuming that the new gTLD program proceeds, ICANN should adopt better
safeguards against systemic brand abuse in new gTLDs. Due to the
possibility that hundreds, if not thousands, of new gTLDs could be
approved, ICANN should recognize that the UDRP is no longer an effective
remedy for brand holders. The cost, resources required and associated
delays render the UDRP impractical and an undue burden upon rights
holders. As reported by Corporation Service Company in its Spring 2008
Domain Name Cyberscape Report, 74% of domain names containing a brand
were registered by 3rd parties and not the brand owner. We believe that
this number will increase exponentially when hundreds or thousands of
new gTLDs are available. 

 

New Tools to Protect Against Brand Abuse Should be Adopted 

 

Today, brand holders protect against domain name abuse primarily through
UDRPs and defensive registrations. This approach is no longer reasonable
when faced with potentially thousands of new gTLDs, since it is not
feasible for companies to increase their legal expenditures to
correspond with the rising number of gTLDs. Many brand holders view
sunrise registrations as a fee shifting exercise from brand holders to
registries to help fund the initial phase of a registry launch. Instead
of this 'fee shifting', ICANN needs to consider innovative new ways of
dealing with brand abuse that shifts the costs of infringement away from
the brand holders whose rights have been systematically abused over the
last few years. 

 

We were encouraged by Paul Twomey's opening remarks in Cairo that ICANN
would like to consider innovative ways of addressing the needs of the IP
community, including the creation of an ICANN sanctioned rights database
or clearinghouse, where rights holders could submit evidence of their
rights ("IP Registry"). Such a tool could be utilized for purposes
beyond sunrise periods. For example, the IP Registry could be used for
blacklisting purposes, at the top level (i.e., .ibm) and at the second
level (i.e., ibm.web). If a gTLD application conflicts with a name on
the IP Registry, the rights holder should be notified immediately and
given the opportunity to file its own gTLD application or seek other
legal redress. For these potentially infringing applications, ICANN
should verify the applicant's background and motives, and approve only
non-infringing or non-commercial uses. If any applicant is approved for
a non-infringing use, ICANN should require strict compliance of the
approved uses to protect the rights of the brand holder. For second
level registrations, ICANN should mandate a notice/take down procedure
if the domain name is used in an infringing manner to a name on the IP
Registry, or require WHOIS verification and prohibit proxy or anonymous
registrations for registrants intending to register a domain name
conflicting with a name on the IP Registry. These suggestions would
provide a more cost-effective means of dealing with brand abuse in the
new gTLDs, and should discourage abusive registrations and abusive new
gTLD applicants. 

 

Dispute Resolution Costs 

 

A prevailing brand holder in a dispute should not experience any fees or
costs in protecting their brand. The Guidebook should be revised to
provide that a prevailing party in any dispute resolution proceeding
will be reimbursed for all of their costs and expenses, (such as
attorney fees and filing fees). Under the Guidebook, only some of the
filing fees are refunded to the prevailing party. 

 

Commitment to Publicly Accessible, Free and Accurate WHOIS 

 

The Guidelines contain few requirements related to WHOIS. Central to the
concerns of brand holders is the need for a free, accurate, and publicly
available access to WHOIS, to quickly identify the registrant of abusive
domain names. Given the industry-wide problems related to access to
WHOIS, and the proliferation of inaccurate WHOIS, we believe that ICANN
should evaluate the applicant's commitment to maintaining and enforcing
WHOIS requirements. In addition, applicants should be encouraged to
maintain centralized or "thick" WHOIS databases, and adopt additional
WHOIS requirements. For example, ICANN could inquire whether an
applicant intends to allow proxy or anonymous registrations, and, if so
whether the applicant plans to require the disclosure of the "true
registrant" upon request by a brand holder protecting its rights, or
escrow such proxy/anonymous data. This inquiry is appropriate because
continued access to WHOIS is essential to protect the stability and
security of the Internet, as well as to maintain confidence of consumers
in the integrity and safety of e-commerce. 

Dispute Resolution Decisions Should be Binding on ICANN 

 

Under the Guidebook, ICANN has proposed allowing dispute resolution
service providers (DRSP) such as WIPO to evaluate string contention
disputes, including whether a string violates the legal rights of
others. We are supportive of this process, but believe that a decision
from a DRSP should be final and binding on ICANN, rather than be viewed
as an "expert determination" to be considered by ICANN as a factor in
the evaluation of the gTLD application. 

 

Conclusion 

 

The undersigned companies are deeply concerned about their ability to
protect millions of Internet users worldwide from additional forms of
online abuse, such as fraud, phishing, counterfeits, identity theft, and
other forms of brand abuse. We urge ICANN to carefully consider the
request for additional education and meaningful consultation with the
global business community, as well as additional safeguards against
illegal online activities in the new gTLDs. 

 

Respectfully submitted, 

 

James Stoltzfus

Vice President

Corporation Service Company (CSC) 

 

Ted M. Kushner

Paralegal/Domain Administrator

Avis Budget Group

 

Gil Roeder

Director Global Web Infrastructure

Barclays Global Investors (BGI)

 

David Daugherty

Website Marketing Manager

Citrix Systems, Inc.

 

Michael Papadelis

Global Operations Manager

GMAC, LLC

 

Brian Kaihoi

Web Administrator

Mayo Clinic

 

Charlie Pajor
Senior Manager, External Communications
Nalco Company

 

Daniel Schreiber

Senior Vice President and General Manager

AV Business and Global Marketing

Sandisk Corporation

 

Charles Jeffrey Duke

General Counsel

Zippo Manufacturing Company