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MarkMonitor's Specific Comments to Module 1

  • To: <gtld-intro@xxxxxxxxx>
  • Subject: MarkMonitor's Specific Comments to Module 1
  • From: "Margie Milam" <Margie.Milam@xxxxxxxxxxxxxxx>
  • Date: Mon, 15 Dec 2008 14:16:56 -0700

MarkMonitor is pleased to submit the following additional comments
regarding the Guidebook.




Incomplete Application Submissions:                 Section 1.1.1.-
After paying the substantial application fee, applicants should be
allowed to supplement any incomplete submissions within a specified time
frame.  Given the complexity of the application process, it should be
expected that some sections of the application may be incomplete.    

Posting of Applications:                                     Section Trademark Holders listed on a centralized trademark registry or
database should be given notice of potentially infringing applications,
and an opportunity (i.e. an additional 45 days) to submit an application
for such name.

Applicant Reviews:                                           Sections, 1.2., 1.2.3- It is possible that for legal, asset protection,
tax or other issues, an applicant may desire to set up a newly formed
entity to serve as the registry.  The applicant review should allow for
existing entities to set up newly formed subsidiaries or affiliates to
become the registry for the new TLD.   The portions of the Guidebook
that relate to the financial capability of the Applicant should be
written to allow the documentation (such as incorporation documents or
financial statements) to relate to an affiliated entity. 

Role of Public Comment:                                  Section 1.1.3-
It is not clear from the guidelines how ICANN will use the information
provided through the public comment period.   For example, if
significant public objections are submitted to a specific application,
but no dispute proceeding is initiated with respect to the application
in question, will the public comments play any role in the evaluation?
Under the new TLD process, there is a presumption of approval for a new
TLD if all of the criteria is satisfied.   There appears to be no
ability to reject an application that has met the stated criteria unless
an objection has been filed and is successful.   However, it is possible
that a TLD string may receive significant public opposition during the
public comment period yet no formal opposition is filed, perhaps because
of the associated costs.    ICANN should consider reserving the right to
reject a TLD applicant under these circumstances.  

Categories of Applications:                               Section The Guidebook only describes two types of applications- open
and community.  However, neither of these categories appear suitable for
the closed corporate TLD, or the "Corporate-Closed Model", where the
registry is a corporation applying for a new TLD on one of its main
brands, and the registrants are limited to only the registry and its
commonly owned affiliates, and where the registry controls the content
associated with domain names registered in the TLD, and no third parties
can be registrants.   Neither the "community" or "open" distinction in
the Guidebook appears to apply to this model.    For example, can a
corporation endorse itself as a community?   ICANN should designate this
as a third category and allow for deviations from the ICANN consensus
policies, as applicable to the Closed Model.   For example, a
corporation may not desire to allow all registrars to register second
level domain names.   Similarly, policies that are meant to protect
registrants may not be necessary or applicable if the
registry/registrant are the same.   In addition,   we anticipate that
there may be another category of Corporate applicants, which we refer to
as the "Corporate Open Model" where a corporation may apply for a TLD
for one of its brands marketed to its consumers, and the registrants are
limited to its customer base.  In these "Corporate Open Models," we can
envision the adoption of  unique acceptable use policies" that would
restrict the usage of the domain names to certain types of activities or
content.   It is unclear whether these types of TLDs should be treated
as a "community" or "Open" under the Guidelines.   In either
the"Corporate Closed" or "Corporate Open" Model where the TLD string is
based on preexisting trademark rights, such an application should
receive preferential treatment in the evaluation process in the same
manner as a community based application.


Financial Statement Requirement:                      Section 1.2.3- The
requirement for "audited" financial statements should be reworded to
allow applicants to submit the latest "available" audited financials,
due to the delays typically associated with obtaining audited
statements, and to submit unaudited financials for the latest period.

Application Fees:                                              Section
1.5- The proposed ICANN fees serve as a significant deterrent to
corporations considering whether to apply for a new TLD for their brand.
Specifically, the recurring annual fee  (the greater of $75,000, or 5%
of the registry transaction revenue) is high, in the light of the
probability that corporate owned TLDs may not have large numbers of
second level registrations, thereby causing the per domain fee to be
significantly higher than currently charged by ICANN.   ICANN should
consider charging lower fees for smaller registries, and should consider
a maximum fee in the event that the variable component results in an
unexpected windfall to ICANN.  In any event, the Guidebook should be
revised to clarify that the 5% threshold does not apply to non-domain
related registration services or revenue. 


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