IRT Final Report Comments

["Alexander Ripps" <alex@xxxxxxxxxxxxxxxxxx>]

To Whom It Concerns,

 

I own a small internet development firm that owns and operates several
domain names, many of which are generic in nature. I write these comments in
response to the IRT's recommendation of the Uniform Rapid Suspension System
(URS). While no one disputes that trademark holders should be entitled to
protection of their marks, this particular method is both unnecessary and
unfair to the majority of domain owners.

 

The IRT states that "The URS is not meant to address questionable cases of
alleged infringement (e.g., use of terms in their generic sense) or for
anti-competitive purposes or denial of free speech, but rather for those
cases in which there is no genuine contestable issue as to the infringement
and abuse that is taking place." This statement neglects the realities of
trademark law. Specifically, a domain name that has as part of its name a
trademarked term is not automatically infringing. While a true cyber
squatter may just accept his domain name being shut down, an owner using the
domain name for a legitimate purpose (a non-infringing use) would have their
domain name frozen prior to any rational review of the facts other than
looking at the name itself. 

 

The IRT's recommendation that a registry freeze the domain name within 24
hours of notice that a URS petition has been filed places an enormous amount
of power in the hands of trademark holders. This proposed system, in which a
domain name is frozen based solely on the accusations of a trademark holder,
and where the domain registrant is barely provided any notice (if any at
all), and then given only a 14 day window to file response, is prejudicial
and unilaterally favors one party over another. 

 

The IRT goes on to say "The URS is intended to address efficiently  and
cost-effectively the most clear cut cases of abuse. It does not replace
other current options available, such as the UDRP or other litigation
options. Rather, it is intended to address the hole not filled by current
available remedies." The only party that the URS would "cost-effectively"
benefit is the complaining trademark holder. For very little upfront costs,
trademark holders can file frivolous claims with nothing to lose.
Comparatively, domain name owners will lose whatever income they are
generating from their name (since it is frozen), and will have minimal time
to hire and consult an attorney who can adequately represent them.
Presumably, if a company has expended the time and resources to develop and
protect a trademark (or many trademarks), they possess the resources and/or
financial ability to fairly contest an allegedly infringing domain name, as
opposed to shifting the financial burden to the domain registrant who more
times than not will not have in-house legal counsel.   

 

Finally, the IRT gives no persuasive reasoning why the URS is necessary to
replace the UDRP system that is already in place. The IRT alludes to the
fact UDRP cases are on the rise, but does not intimate that the UDRP, or the
organizations who process the claims, has been unable to cope with the
increase of cases. While the UDRP certainly has its own set of problems, it
certainly represents a much more equitable system that recognizes that each
case has two parties entitled to fair and equal treatment. 

 

I encourage ICANN to review the IRT report with some consideration for those
involved in the legitimate practice of domaining. No one denies cyber
squatting is a problem; but those unscrupulous infringers represent a small
percentage of the larger domaining community. ICANN should be very careful
to implement new procedures that discriminate against their core
constituency and may have very negative unintended consequences.

 

Sincerely,

 

Alexander Ripps