Comments on the draft IRTP report

[Patrick Vande Walle <patrick@xxxxxxxxxxxxxx>]

As others have pointed out, the effective 7 day comment period over this
draft report is way too short. It may be wise that the board does not
consider this report before the community has had a real opportunity to
comment.

I totally support Michele Neylon’s comments on the whois model
contemplated by this report. It would be in breach with many privacy
regulations throughout the world. Further, if the ability to comply with
the whois recommendations, as set forth in this report, would become one of
the evaluation criteria for the new gTLD applications, this would favour
registry operators located in countries with little or no privacy laws.
This would put at a competitive disadvantage those businesses which need to
comply with local laws. Questions to the IRT:

    * Did the IRT consider if their recommendations regarding the whois
were actually compliant with relevant legislation throughout the world ?
    * Will the ability to comply with the whois recommendations, as set
forth in this report, be a part of the evaluation process of new gTLD
applications ?

Regarding the IP clearinghouse, it is stated that “The recommendation
should not result in unnecessary or undue costs, either to trademark owners
or to legitimate users and consumers”. Does this mean that the registry
operators will have to bear all the increase of their operating costs for
protecting third parties interests? The net effect of this is that
operators will need to shift the increasing cost among all their customers,
including those who have no IP rights to protect. This will mean raising
the unit price of domain names for every customer, making the TLD less
attractive and potentially be a cause of registry failure. In the case of
community-based TLDs that focus on a limited market through a
not-for-profit model, this may simply mean that the potential costs  and
legal risks may be disporportionate for them to bear.

There is a major concern that different levels of protection for marks may
put the registry operator in a position to have to arbitrate between SLD
applications and become legally involved in disputes between third parties.
Unlike trade marks, which can be multiple according to industrial sectors
and geography, domain names are by nature globally unique. As technical
operators, registries should have no business in deciding who is the
legitimate right owner.

If such IP clearinghouse system is put in place, it should, at a minimum:

   1. Be automated and implementable at a marginal cost by registries and
registrars
   2. Exempt the registry operators from further legal consequences if it
has demonstrated that it has queried the database at registration time.

In addition to the above, I think it would be only fair that whatever
policies are decided as a consequence of this process are also made
mandatory for the existing gTLDs. The new entrants should not be the only
ones having to bear the weight and costs of these policies.

Best regards,

Patrick Vande Walle
ALAC Member, speaking in my personal capacity