IRT Comments by Leap of Faith Financial Services Inc. (May 6, 2009)
- To: irtp-draft-report@xxxxxxxxx
- Subject: IRT Comments by Leap of Faith Financial Services Inc. (May 6, 2009)
- From: George Kirikos <gkirikos@xxxxxxxxx>
- Date: Tue, 5 May 2009 23:16:16 -0700 (PDT)
Comments on IRT Draft Report
Submitted By: George Kirikos
Company: Leap of Faith Financial Services Inc.
Company URL: http://www.leap.com/
Date: May 6, 2009
1. We reiterate all previously submitted comments on the new gTLD program,
2. For all the reasons we've previously discussed, we oppose the introduction
of new gTLDs. We believe the process has been captured by a small group looking
to directly make short-term profits from their introduction at the expense of
the broader community through the resultant confusion for consumers and
imposition of negative externalities upon 3rd parties. None of our comments
should be taken as an endorsement of ICANN's plans or that of the IRT -- we are
simply talking about degrees of damage if the plan in any form is adopted, the
differences between an earthquake measuring 9.5 on the Richter scale vs. one
measuring 9.4. Both are catastrophes where the costs far outweigh the benefits.
It is incumbent upon the NTIA, DOC and DOJ to intervene in order to end the
waste of resources associated with discussing a plan that the public has
3. While ICANN staff state:
"The formation of the IRT does not preclude other contributions. Any member or
set of community members, including other representatives of the IP community,
is also welcome to include independent recommendations to be considered by the
we believe this to be unsupported by facts. There is no evidence that the Board
has considered contributions unless they have been heavily filtered by ICANN
staff. The ICANN Board highly limits its participation in public mailing lists
or other forums where the community can interact with them. Many in the
community have made thoughtful and detailed recommendations that have received
no consideration by the Board. Evidence of that consideration, if it existed,
would be found in Board meeting minutes and in recorded votes.
4. By providing it with funding and promotion through ICANN's official website,
ICANN is giving undue weight to the self-selected and unrepresentative members
of the IRT. This is almost by definition a classic case of co-optation, the
tactic of neutralizing the opposition of a group by assimilating them. We note
that ICANN has not provided similar levels of funding to other thoughtful
opponents of new gTLDs (ones who are harder to co-opt) to finance their own
independent outreach or research endeavours. The unrealistic time period for
comments further demonstrates that ICANN has already made its plans and is
operating in a top-down manner to rush through an unsupported program over the
objections of the community. This is in opposition to the bottom-up consensus
driven manner that it should be operating. The secrecy with which the IRT has
operated, without public mailing list archives and without MP3
recordings/transcripts of meetings, violates the ICANN
principle of transparency.
Indeed, the report stated (page 4 of the PDF):
"The work of the IRT is not endorsed by any particular IRT member, their
clients, companies or affiliated companies or organizations, and participation
in the IRT of any individual member does not signify endorsement, consent or
approval of the work product of the IRT by any business, company, affiliate,
client, association, group or any other party with which the individual IRT
member may be affiliated or may otherwise represent. Indeed, any business,
company, affiliate, client, association, group or any other party with which
the individual IRT members may be affiliated or may otherwise represent, may
disagree with or have differences with any one or several of the solutions
This needs to be kept in mind when properly weighing this report which is not
even endorsed by its own members, against the weight of hundreds of thoughtful
comments against new gTLDs by the world's largest and smallest companies,
consumers, governments, and other organizations who were by far against any
introduction of new gTLDs. To be more blunt, this report should be given the
weight of a single feather, compared to the mountain of existing comments by
stakeholders. Failure by the mountain to comment on the IRT's report should not
be interpreted as acceptance of its proposals, but instead the IRT needs its
own mountain of supporters to overcome existing opposition to new gTLDs.
5.There is a conflict of interest in IP lawyers and national Intellectual
Property offices to be recommending solutions that will benefit their industry
through resultant greater volumes of TM registrations worldwide (e.g. to meet
criteria such as 200 trademark registrations in 90 countries, or having TM
registrations for sunrise purposes, etc.). Thus, their interests are not
necessarily aligned with their clients or other users of the internet and
domain name system. If beef producers were asked for input on the DAG, they'd
probably be suggesting solutions that would involve eating a lot of Big Macs
and Whoppers in order to get a new gTLD. While we do have a list of IRT members
that has been made public, we do not have a "Statement of Interest" from each
of them that has been posted (at least I could not find one) as would be
required in a GNSO task force or work group.
6. We oppose any recommendations that will impact existing gTLDs through the
"equitable treatment" clauses in current contracts. e.g. for dot-com, the
relevant clause is:
"3.2.(b) Equitable Treatment. ICANN shall not apply standards, policies,
procedures or practices arbitrarily, unjustifiably, or inequitably and shall
not single out Registry Operator for disparate treatment unless justified by
substantial and reasonable cause."
bad policy choices in new gTLDs (including but not limited to the elimination
of pricing caps) will propagate back into current gTLDs. Unfortunately while
the IRT says it is for new gTLDs alone, the fact is that they will affect
registrants who want nothing to do with new gTLDs. The IRT shouldn't be used to
rewrite existing contracts through this backdoor, but should instead go through
the GNSO Consensus PDP route.
II. Issues with the IRT Draft Report
1. In general, the report makes no attempt to perform any cost-benefit analysis
for its recommendations, even in rough or qualitative terms (as opposed to
precise quantitative terms). From the list of team members, we see few with
economic or business backgrounds, but instead the team is filled with IP
lawyers. While lawyers have their place in helping to create precise legal
language, it also means that solutions that are superior in economic efficiency
to those proposed by the team were not even considered, simply due to the
biased manner in which the team was self-selected.
2. IP Clearinghouse Proposal
a) We oppose ICANN funding for any "IP Clearinghouse." ICANN funding ultimately
comes from domain name registrants, meaning higher costs imposed upon them.
Domain registrants do not want to be funding a $100 million+ per year
organization. ICANN needs to be a lean and focused organization, and should be
shrinking in size, not one that is engaging in mission creep to create and
operate databases outside its scope of expertise.
b) The description of the IP Clearinghouse is so broad that it need not even be
applied to domain names (why not use it for vanity license plates, vanity phone
numbers, etc.). It even mentions "forerunners of the IP Clearinghouse" that
apparently already exist. If these already do exist, ICANN can mandate that
registry operators use them, but ICANN should not be the one to either create
or pay for them. That would be another boondoggle, in our opinion, a waste of
the money that hardworking registrants pay into ICANN.
c) Any IP Clearinghouse can be created and funded by TM holders, national
intellectual property offices, or even the private sector, without ICANN's
involvement. For example, DomainTools.com has a "Watch Service" for domain
monitoring. I am certain they are not alone. ICANN can mandate that the data be
provided by registry operators to the public at cost or free (e.g. zone files,
etc.) to allow the private sector to create that solution. Those private
competitors can create their own clearinghouses and deal with registry
operators and TM holders on their own.
d) We do not need another set of "contracted parties", the "IP Clearinghouse
Providers" in the ICANN organizational chart, to be lobbying for extra money
e) More cynically, these "IP Clearinghouse Providers" have a conflict of
interest, as more new gTLDs mean more business for them (see the "feather"
argument above when weighing their input, or the "parasitic consultants" in
previously submitted comments).
f) Furthermore, this "IP Clearinghouse" as described by the IRT is yet another
"monopoly provider" (as opposed to multiple operators run entirely by the
private sector and outside of ICANN's scope). Monopolies are a bad thing for
the most part and should be avoided where possible.
g) We oppose the list of "supported applications" of the IP clearinghouse being
anything other than informational in nature, in particular the use as a
"uniform rapid suspension system" or as a "globally protected marks list."
(more on these below)
h) The IP Clearinghouse is yet another failed technological solution to an
economic problem. The myth behind it is that if we build some monolithic
technological solution (a big database), all our problems will be solved. This
is simply not true. Watch services *already exist* -- have they caused
cybersquatting to disappear? Nope. Will having an even "bigger" watch service
magically solve the problem now? Of course not. [just like the entire premise
of new gTLDs --- launching .biz, .info, .pro, etc. didn't lower dot-com costs
for consumers; ICANN's "solution" is to follow up that failure with even *more*
new gTLDs; ICANN is like a dieter who failed to lose weight when they bought a
"miracle" electric ab stimulator. After failing to lose any weight wearing it
for 1 hour per day, their "solution" is to buy 10 ab stimulators and wear them
for 10 hours/day, instead of changing their approach completely to eat less and
Major lawsuits have been launched at some of the biggest cybersquatters. Has
this solved the problem? Not at all. The folks who've been gaming the system
will continue to do so, unless they are wiped out economically. New gTLDs
simply create new playgrounds for them to play new games. The solution should
be to eliminate the idea of any new playgrounds until existing ones are cleaned
up first. Wipe them out of business. Have class-action lawsuits that wipe them
out (the single-plaintiff ones have been ineffective, obviously). It's a poor
military strategist who would willingly go into a war with multiple fronts.
Each new gTLD represents a brand new front. Win the war in dot-com (and other
existing TLDs) first, before thinking of opening up new fronts that simply
divide your attention and resources.
i) Clearinghouses do not easily take into account visual or aural similarity,
or how marks are used. Ultimately the database solution simply doesn't scale.
Human involvement will always be necessary. If clearinghouses scaled, and
technological solutions scaled, then UDRPs would be handled by an automated
computer, instead of by a group of human beings.
j) We oppose all the "principles" (page 10 of the PDF) behind the operation of
the IP Clearinghouse. It's simply something that should be left to the private
sector, instead of being a contracted party with ICANN. Given ICANN's history
working with overpriced contractors, we reiterate our opposition to more
monopoly boondoggles that will be ultimately paid for by dot-com registrants
(who constitute the vast majority of existing and future registrants, let's be
honest), and not by new gTLD users themselves.
3. The Globally Protected Marks List
a) We oppose the introduction of any list that gives favourable treatment of
one rightsholder relative to another, and in particular TM rights relative to
other kinds of rights. In particular, from our past comments highlighting the
views of Tim Berners-Lee on new TLDs being harmful:
"The value of each domain name such as example.com also drops because of brand
dilution and public confusion. Even though most people largely ignore the last
segment of the name, when it is actually used to distinguish between different
owners, this increases the mental effort required to remember which company has
which top level domain. This makes the whole name space less usable."
Note, that not only are so-called "famous" trademarked domains diminished in
value. It happens to EACH and EVERY domain name.
The GPML, on the other hand, is saying that one set of rules applies to
everyone, EXCEPT certain "special" people. Everyone of course likes to think of
themselves as "special" just as a parent thinks their newborn baby is the most
beautiful baby in the world.
b) The GPML is an attempt to create new law through arbitrary and self-selected
criteria of a small secret group. This is also a form of co-optation, as
described earlier, where a few large companies whose TMs fit the criteria and
who oppose new gTLDs currently are induced to "hold their nose and say nothing"
by getting special privileges, at the expense of everyone else (smaller
competitors, the public, consumers), suffering.
For example, I've not looked it up but a famous mark like Ralph Lauren's "Polo"
might fit the criteria. It might not, but let's say for example it did fit. It
would be granted special rights relative to those who are simply interested in
the sport of polo (horse or water polo).
c) The GPML disadvantages smaller companies and individuals unduly. It's like
saying that the depreciation rate on computers should be 100% if you're IBM,
but if you're a startup company, your depreciation rate is only 30%. It's this
kind of lobbying by special interest groups that overcomplicates regulations
and creates unfairness. Creating a GPML is an attempt to solve one "wrong" (new
gTLDs) with another wrong (GPML), and two wrongs simply do not make a "right",
as any parent will tell a child.
4. Protection for GPMS at the top level
a) Obviously since we do not support the idea of a GPML, we do not support any
special protection for them at the top level.
b) We DO agree with the IRT that the String Similarity Algorithm is extremely
flawed, and needs to take into account other factors as per our prior comments,
including aural, braille, meaning, and other forms of similarity (based on
future user input technologies).
5. Watch Notice for Top-Level Domains
a) While a watch notice might seem to have advantages, it is simply another
boondoggle that we cannot support, as we don't support the IP Clearinghouse as
b) Instead, we believe that any new gTLD applicant should be compelled to give
wide public notice of their applications (e.g. placements in the Wall Street
Journal and other papers of record world-wide).
Such a list of newspapers of records that cover at least the G20 countries and
preferably more (e.g. The Economist Magazine, etc.) should be something that I
believe the IRT would support.
c) ICANN can provide application details in XML and as RSS feeds. Commercial
and private companies would be free to parse and collect the data from ICANN's
website and use it for their own providers.
d) The combination of (b) and (c) would not only inform more stakeholders, but
would do so far more economically than the creation of an IP Clearinghouse
6. IP Claims Service
a) While the IP Claims Service solution might appear attractive at first
glance, it is clear we are simply going down the road of past failures, and not
learning from history. If the idea (or "myth") behind new gTLDs is that they
are going to expand the namespace, then how do these RPMs accomplish this?
Honestly, they simply do not work. To go back to the prior example of Ralph
Lauren's "Polo" mark, if an application for .sport was approved, why should
Ralph Lauren have superior rights to polo.sport relative to anyone else, when
it would simply duplicate their polo.com and not expand the namespace? The
principle of first-come first served should be preserved, if the IRT is going
to be supportive of new gTLDs. Obviously the even better solution is to have no
new gTLDs at all, but if the IRT is going to be supportive of them, then they
can't be bought off for that support by undermining the supposed reason for the
new gTLDs, namely expansion of the
b) The IRT should be compelled to make a clear statement as to whether or not
they support expansion of the namespace (to followup on point (a) above),
because if they are supportive of the expansion, they need to justify why their
"solution" is to diminish that expansion and simply reduplicate dot-com for
c) The notion that for GPMs that there should be a "be a process by which these
applicants should be permitted to register the initially-blocked names if they
can demonstrate to an independent third party that their registration of those
names would be consistent with generally accepted trademark laws; namely that
its use of the domain name would not infringe the legal rights of the GPM
owner" is a reversal of trademark law, and reverses the presumption of
innocence. Folks are assumed guilty if they want to register polo.sport, or
pontiac.tribes, and need to prove they are innocent.
d) The procedure in relation to non-GPM marks simply repeats failed solutions
of the past. The reason we have cybersquatting isn't because people are unaware
of what they're doing --- the vast majority of it, especially amongst the
"industrial cybersquatters" know exactly what they're doing. This
"affirmatively opts into" language is simply another way of rewriting the RAA
agreement, or modifying it without a consensus process as required within the
GNSO structure of ICANN.
7) Standard Sunrise Registration Process
a) We reiterate our comments of 6.b) above by reference. If the IRT truly
supports expansion of the namespace, than how does reducing its space through
re-duplication of .com accomplish that objective? Of course, one can eliminate
the hypocrisy by opposing new gTLDs as our company does.
b) Any sunrise period is simply a way for the registry operator to price
discriminate, i.e. to charge higher prices for the "desirable" domains, i.e.
the 100,000 common words, acronyms, brand names, etc. that are in demand for
SEO purposes, vanity, and defensive registrations. Let's be honest -- this is
where registry operators want to milk their new gTLD as much as possible.
c) Once again, the IRT is recycling solutions that have failed in the past. The
only new ideas are a new set of acronyms like "SER" or "SRDP" that they hope to
add to the ICANN glossary --- this is hardly anything worth congratulating.
8) Potential Gaming of TM Applications
a) The entire IRT report implicitly assumes that the TM database itself has not
been gamed. Obviously, this is false. As seen in multiple sunrise periods,
sophisticated individuals and organizations will seek out trademark
registrations for popular terms well in advance of any sunrise (i.e. and are
currently in effect). For instance, in the EU ADR decision for "AUTOTRADER" it
"On 22 November 2005 the Respondent applied to register a Benelux Trade Mark
for Auto Trader in Class 15 of the Nice Classification system in respect of
“plectrums” a category of goods unrelated to the natural meaning ascribed to
the words Auto Trader."
"The Complainant submits that in addition the Respondent has filed over 100
trade mark applications in the Benelux Registry all of which were registered on
22 November 2005. The trade marks were registered by the Respondent and
another company, First Internet Technology Limited that is registered at the
same address. The trade marks registered by the Respondent include marks such
as “Digital Camera”, “Mortgage Loan” and “Online Poker” for goods and services
such as “computer games for Catholic kids”, “services of a funeral director”
and “table silver” respectively."
And in the EU ADR decision for "ASK" it was asserted:
"The Panel quite frankly does not believe the Respondent's submission as to the
true intention behind the Benelux Mark. In the Panel's view, the more credible
explanation of the Respondent's interest is offered by the Complainant who
points out that the Benelux Mark was filed purely for the purpose of
application for the disputed domain name. The terms of the Respondent's other
Benelux trade marks, of which some 47 were listed by the Respondent following a
request by the Panel, are apparently very similar; in general they consist of
an English word for which the associated goods and services are generally
plectrums; all of which were applied for on 22 November 2005."
These are not isolated incidents. There is rampant abuse of TM applications for
the sole purpose of capturing domains in sunrise periods (and even for
capturing gTLDs themselves), and the IRT report fails to recognize or discuss
this. By proposing special rights for TM holders, it encourages gaming of TMs
themselves. For every action, there will be a reaction. The IRT members
implicitly make the assumption that the folks whose behaviour they wish to
discourage are unsophisticated and poor, when the opposite is true. Indeed,
some of the most malevolent and well funded might engage in acquiring TLDs of
b) In addition to the types of abuse in (a) other trademark registrations have
been made in order to reverse-hijack the domain names owned by others. The IRT
does not discuss how they will prevent this sort of gaming either.
9) Uniform Rapid Suspension System (URS)
a) We oppose the introduction of the URS as drafted by the IRT team, as it is a
violation of due process. While there are good intentions behind it, it will
lead to abuses.
b) The facts are that the number of UDRPs in relation to the total number of
domain names is extremely small (say 5,000 UDRPs per year divided by 100
million domain names). That's a rate of 5 per 100,000 per year, roughly
speaking. That's below the homicide rate in the USA in 2007 of 5.9 per 100,000:
We agree, though, that the amount of abuse is rising, however, the URS is not
the solution. I'd invite the IRT to participate in the Registration Abuse
Policies working group of the GNSO instead:
c) The more appropriate method to deter abuse (not only TM abuse, but other
abuses) is through WHOIS verification, which we've advocated for a long time.
See our prior comments in:
http://forum.icann.org/lists/gtld-guide/msg00026.html (F, Module 5, point 15)
"To deter abuse, we suggest that there be a system of address verification by
registries in new gTLDs, similar to what exists in some current ccTLDs, in
order to stem the tide of domain name abuse. No domain would resolve until a
mailed PIN code was entered into a central system, so that the registrant is
verified. This would ensure a higher degree of registrant WHOIS accuracy,
reducing abuse from those who routinely use fake WHOIS. This should eventually
be adopted into existing gTLDs as a universal standard, with financial
penalties to registrars who permit fake registrations above a certain level."
We've advocated the same position in the fast flux workgroup:
and elsewhere. This allows private parties to seek private solutions to their
problems, without making ICANN into the universal police of the internet.
d) We sympathize with the fact that many brand owners spend large amounts of
money to build up portfolios of domain names they do not want (i.e. defensive
registrations). Indeed, this would be a sweet spot for new gTLD registry
operators, the focus of many of their business models. The solution isn't to
have a URS, but instead to reduce the price of these unwanted domains.
i) First, the IRT should explicitly support price caps for all new gTLDs (and
existing ones too), and also that registry operators for a gTLD be selected
through competitive tenders for fixed periods, just like any other procurement
contract. This is aligned with the NTIA/DOJ/DOC recommendations we've discussed
and supported before.
ii) The IRT should support a pricing structure for domains that consists of 2
components, namely a price for the registration itself, and a separate
(optional) price to have the domain name resolve (i.e. to have nameservers
associated with that domain name). Thus, a domain name that is registered
purely for defensive reasons that doesn't need nameservers (and thus would not
resolve) would have a lower carrying cost. For instance, if we assume that
under a competitive tender situation .sport prices are $3/yr under the current
system, that might be $1/yr for the actual registration and $2/yr for insertion
into the zone file. By separating out the fees, names without nameservers that
don't resolve would be considerably less expensive. Also, by separating out the
fees, there could be separate tenders for the DNS resolution of a zone and the
management of the zone itself.
For example, .ca and many other ccTLDs might run some of their nameservers
themselves, but also supplement those nameservers by ones operated by UltraDNS
or other companies. This is similar to how the root itself operates, with
ICANN/NTIA/DOC managing the master root zone file itself, but the nameservers
(resolution of the zone) are handled not only by them, but by other companies,
universities, the US military, and other organizations.
By breaking this into 2 components, we would receive economic benefits, and the
TM benefits (lower defensive registration costs) across all gTLDs.
e) Any balanced URS, if one were to exist (which we don't support as drafted by
the IRT) would take into account the age of a domain, and allow registrants to
white-list themselves (perhaps via verified WHOIS as we discussed above). A
domain name registrant who has owned their domain for 10 years should be able
to take a month long vacation without worrying that they might lose their
domain by not responding to some email notice that they've never actually
received, and should be given ample time to obtain legal counsel to defend
their property. This puts the onus on the mark holder to not wait years before
asserting a claim. While not going so far as to requiring laches or statutes of
limitations to bar a claim, domain holders are entitled to reasonable amounts
of time to respond, determined by law and not by those making allegations. One
formula might be:
Time To Respond = Age of domain (in months) + 15 days
Thus, for a freshly registered domain (0 months), one would have 15 days to
respond to a complaint. A 2 year old domain (24 months) would have 39 days. A
10 year old domain (120 days) would have 135 days.
f) The draft URS is essentially a way of rewriting the UDRP without going
through the PDP process, and on that basis we oppose it. It would also affect
registrants in existing gTLDs via the "equitable treatment" clause as discussed
g) Allowing complainants to go forward without posting a security bond is not a
"complication" as the footnote on the bottom of page 22 of the PDF declares,
but is a reasonable step to prevent abuse. URS complainants are asking for an
extraordinary action to take place, one that could cost an innocent domain
registrant millions of dollars in damages (e.g. loss of search engine position,
loss of ecommerce sales, etc.). If the complainants are not going to be posting
a bond, then the decision provider should explicitly be liable for damage and
be compelled to carry $100 million in liability insurance, and also to
explicitly consent to the jurisdiction of the registrant. This might cause
problems for WIPO, which does not like to be dragged into court (and probably
asserts that they should not submit to any jurisdiction at all). We've seen
some frivolous decisions in the UDRP process (that later got overturned in real
court). UDRP panels would be more
responsible and accountable if they were on the hook financially (or their
insurance rates would be higher if they hired sloppy panelists) for incorrect
decisions that caused damage to registrants. The URS is simply a lower cost and
expedited system to cause damage through false positives (i.e. claimed abuse
that does not actually exist, but that results in damage to innocent
h) We do not believe registrars will accept the indemnifications of
complainants (as described in page 22 of the PDF), and could be held liable for
incorrectly taking down a domain of their customers. Indeed, many reputable
registrars (we use Tucows/OpenSRS, a highly reputable one) KNOW their clients,
and are in a far better position to make a decision than a URS case manager.
Registrars should not be compelled to act against the interests of their own
clients if they actually have superior knowledge of that client.
i) We've also suggested in the past that WHOIS be supplemented by the use of a
"Legal" contact. This Legal contact can be used for notices of disputes
(including the URS), to ensure actual notice and reduce default decisions. This
Legal contact could either be visible in the WHOIS output, or optionally
visible only to the registrar.
j) Obviously notice via email is insufficient and unreliable. We found it
ironic and hypocritical that WIPO, in discussing their own proposals/solutions:
sent documents to ICANN via both email *AND courier.* Even the registered
letter sent 5 days after the complaint is filed (which can be really 7 or 8
with weekends and holidays) might not be received until after 14 days has
passed. Thus, it is highly probably that actual notice will never be received,
or leave insufficient time to contact a lawyer, etc.. No attempt would even be
made to send a complaint via FAX when a registrant might have good FAX info in
the WHOIS, or to other contacts besides the registrant (i.e. the admin contact,
the technical contact, the billing contact can all be different than the
registrant). Obviously this is unacceptable. I would imagine half the IRT
members would not be able to provide a response within 14 calendar days of a
complaint if an attacker (and I do consider abusive complaints to be attacks)
carefully crafted the complaint date (i.e. around Xmas holidays, etc.). With
the prevalence of spam, email is simply
unreliable, and compound that with vacations, life beyond monitoring domains,
etc., the short notice period is unacceptable.
k) As above, registrants should be able to opt-out of any URS (and also the
UDRP), via whitelisting themselves (e.g. having valid legal contact, verified
WHOIS, or other steps to indicate they are not abusive).
l) Just as in the UDRP, the registrant is unable to do discovery or cross
examination of the complainant in order to contradict their evidence. This can
lead to a contest of who can fabricate better "evidence" (e.g. by manipulating
images in Photoshop or other procedures).
m) IRT team members can/should consider approaching the upstream providers of
domain monetization or hosting for relief (e.g. Google/Yahoo are the major
pay-per-click providers), as well as webhosting companies and DNS providers.
Registrars are not the only means to suspend an abusive domain.
n) Footnote 12 notes that the fee level would be in the area of $35 to $40. My
company owns extremely valuable domain names (as I'm sure do many IRT members
and their associated companies). How much time do IRT members actually believe
examiners will spend on a complaint when they're only making $20 or $30
(assuming the provider takes a cut), and less after taxes? This must be some
kind of a joke, that complaints will be handled by the WIPO equivalent of
burger flippers. Or, perhaps examiners will be outsourced to poorer countries
like India or China where $20 is a lot of money, but which might lack the
qualifications and experience of those in first-world economies. Upstanding and
responsible companies like ourselves should be able to pay $50, then, on
deposit with our registrar, as a "security bond" to whitelist all our domains,
to say "no" to having cases handled by McPanelists using URS as a McJob (with
apologies to McDonald's).
o) The "default procedures" (page 26) are clearly one sided in favour of the
complainant. First off, as above they don't allow the registrar latitude to
come to their own decision, if they actually have superior knowledge. Second,
they certainly don't even allow the examiner to look more closely into a matter
(beyond the "prima facie" level). Thirdly, even a defective answer is
completely ignored, even if it was filed in a timely manner (with the terribly
short time limits which we objected to). Certainly UDRP history has taught us
that average responses often make mistakes (and need to be amended). We are not
even shown sample forms for Answers, to determine how much prone they are to
incomplete answers by innocent respondents making casual errors (because they
didn't have time to get a lawyer, for example), relative to pro se UDRP cases.
p) The IRT doesn't appear to understand how DNS works, as evidenced by their
statement that the "domain name will be deactivated from use in connection with
any registrant's website. Instead, a standard page will be posted in connection
with the domain name...."
Most registrants do not use the nameservers of their registrars (i.e. they use
that of their webhosting companies, etc.). Thus, in order to post a "standard
page", i.e. create an A record associated with a website under the control of
the registrar, the registrar will have to change the nameservers to their own
control. This means that if the domain name was being used for any other
purpose besides the web, e.g. email for 10,000 people, DNS services for 500
other domains on a shared hosting service, game servers, FTP servers, backup
servers, time servers, they would all immediately fail. The internet is more
than just the "web", and the URS doesn't appear to understand this basic fact.
The amount of collateral damage can be significant from wrongly deactivating a
domain name, because the URS doesn't preserve the "status quo" --- thus the
consequences from an incorrect URS decision are significantly more dangerous
than the UDRP (which does preserve the
nameservers, pending appeal), yet the decisions are being handled by
McPanelists as McJobs as noted in point n above.
q) The IRT goes on to say that "During the period of default, the Registrant
cannot (a) change the content found on the site...." Since the site could have
been hosted on a server not controlled by the registrar, the registrant could
certainly change that content to anything they like. It would just not be
visible to anyone. If there was legitimate content on it, and did not need to
be changed, it would also not be visible (and this would make a Default Answer
likely fail, as the examiner would not be able to independently see what the
website looked like before it was switched to the nameservers of the registrar).
r) The IRT report says that "To avoid improper gaming of the system, the
decision of the
URS Examiner shall be based on the status and use of the disputed domain name at
the time of the filing of the complaint." We certainly doubt the ability of the
panelists to create an active snapshot of ALL uses of a domain (every single
webpage, not just the homepage, subdomains, email usage, FTP usage, use as
nameserver for other domains, etc.) and all for $40. Instead, we expect that
this "status" will simply be what the web homepage (if it even exists) will be
archived, a single page demonstrating a possibly distorted and biased use of
what could be a very complex domain. For instance, Google has in its index 535
million pages for the Yahoo.com domain name (doing a "site:yahoo.com" search at
Google). If someone filed a URS against Yahoo, which of those 535 million pages
will the examiner be expected to look at, at their $20 McJob?
s) Page 27 shows that the IRT has been constructed in an unrepresentative and
twisted fashion, and appears to be a cut/paste job of WIPO's April 3rd letter
to ICANN. In particular the 3rd element under examination is stated as:
"Whether the domain name has been registered ** OR ** used in bad faith."
This is different from the UDRP, which requires BOTH elements, i.e. "AND". Aha!
Gotcha! Bad boys and girls. This is clearly an unacceptable revision of the
UDRP, a backdoor way of rewriting it in order to make it esaier to reverse
t) Page 27 also suggests that trademarks need to be issued by a jurisdiction
that conducts substantive examination of a trademark application prior to
registration. This is clearly something even the best jurisdictions advertise,
but in reality many are sloppy. For example, had it not been for our own TM
Opposition, the Canadian Intellectual Property Office would have gladly issued
a TM for "bling" in the field of jewelry. See:
(click on trade-marks database, search for "bling" and go to page 2,
Of course, "bling" is a dictionary term directly related to jewelry, that long
predated that application, and our lawyers crushed that application once we
opposed it (the applicant abandoned the application completely).
Preposterous TM applications squeak through the system all the time, and if
they're not caught before registration, are challenged after registration when
TM holders try to assert them. There are trademark trolls
who would certainly abuse the URS just as they do the UDRP, and the URS would
embolden them as currently drafted (it certainly lowers their fees and makes it
easier to get submarine default decisions). There are UDRP decisions that have
gone the wrong way, in our opinion, which embolden those kinds of reverse
u) Only a year penalty for filing *3* abusive complaints? Certainly you're
joking. The bar must be set much higher, folks. This is why there should be
security bonds or insurance policies, to ensure that registrants who are abused
can receive justice, as certainly they cannot rely upon the safeguards proposed
by the IRT to date.
v) Obviously the registrant should not suffer from deactivation of their domain
name until they've had an opportunity to appeal in court (even the UDRP allows
this), or go to court instead of the URS (i.e. override by going immediately to
court, and ignoring the URS). Often that's the optimal response to a UDRP, to
demonstrate that one will not be abused by aggressive complainants.
10) Post-Delegation Dispute Mechanism
a) At this point, the horse has left the barn. The focus should be on
eliminating bad operators before they get their hands on a gTLD in the first
place. Not granting new gTLDs in the first place is the simplest approach,
given the vast opposition. The other "obvious" point is to not give presumptive
renewal to registry operators, or give them unlimited pricing power. Those are
recipes to attract abusers.
In our view, it should simply go to court, as at this stage ICANN has already
failed. There's no need to create new projects for WIPO and other dispute
providers. The Damocles Sword of litigation, combined with large security bonds
(or insurance policies) posted by registry operators would mitigate some of
their potential incentives to not follow their own stated policies. But, it's
so subjective and open to gaming that many will simply factor in legal expenses
as their cost of doing business, especially when their real intention is to
profit from sunrise periods, landrushes and uncapped prices in a short-term
manner, and then walk away with their booty.
11) Thick WHOIS and Universal WHOIS
a) We support thick WHOIS, and furthermore registrant address verification via
PIN codes (as discussed above and in prior comments). Domains can be
registered, but not resolve until the registrant passes verification of their
b) We find it highly amusing that the IRT is only now appreciating the
importance of Universal WHOIS. Where were they when myself and others were
inquiring about it since 2003, in relation to VeriSign's Appendix W obligations
under their prior contract (an obligation that they negotiated away)?
as just a few examples. Do a search for: kirikos "universal whois" (with the
last 2 words in quotes) or for: kirikos "appendix w" and you'll find more
examples. If ICANN couldn't compel VeriSign to produce Universal WHOIS even
though VeriSign was supposed to spend $200 million in R&D and deliver it
substantially by the end of 2002, what makes anyone think ICANN will do it now?
This is something that IRT members need to complain to the DOC, DOJ and NTIA
more vigorously about, as they were certainly asleep for the past 6 years.
ICANN never even posted the alleged R&D reports documenting VeriSign's
expenditures. Universal WHOIS should be a precondition to ICANN getting JPA
renewal, let alone proceeding with the gTLD boondoggle. New gTLDs need to wait
until ICANN gets its house in order.
The money for Universal WHOIS should come from VeriSign and other gTLD
operators, with no additional fees paid by domain registrants (or money coming
into ICANN from registrants). This was something that should have been
delivered long ago. It should also not be "maintained" by ICANN, but should be
put out to competitive tender and *overseen* by ICANN. ICANN has not proven it
can operate any scalable database, let alone WHOIS. Leave it to experts, and
send the bills to the registry operators.
12) String Confusion Algorithm
a) This algorithm was a complete was of money. We reiterate our suggestion in
5.b above, namely that applications be widely advertised in newspapers of
record (e.g. the Wall Street Journal, The Economist and other global
III. Other Solutions
1. No Wildcarding
The IRT has not mentioned that wildcarding of new gTLDs (and existing ones)
should be explicitly barred. This is a major source of typosquatting as folks
are aware in .cm (Cameroon) and other TLDs.
2. Ascended TLDs
We propose (in a separate document, see separate comment in this comment
archive) that instead of using the convoluted approach that ICANN has taken,
that if new gTLDs are to be introduced (and we continue to oppose their
introduction) that this be done using an entirely different method than they've
taken in their DAG, one that is economically superior and would be more
consistent with ICANN's mission of stability. I believe it would also be less
offensive than the current DAG to members of the IRT, as it handles TM issues
in a more elegant manner. See that separate document for a description, as this
comment is long enough.
In conclusion, the IRT while well-intentioned has produced no magic solution
that paves the way for new gTLDs to be introduced. Their report has no easy
fix. The IRT should be disbanded, and GNSO work groups should be formed to
study the issues raised over the coming years, to achieve a bottom up consensus
with the involvement of many stakeholders including those not already engaged.
Greater outreach is necessary. ICANN should suspend further plans to produce
guidebooks, and focus on more pressing matters like DNSSEC, IPv6 and shoring up
the security of existing gTLDs.
We would be happy to answer any questions the IRT might have on our submission
(feel free to contact us via email from our website).