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INTA Response to ICANN Presidential Strategy Committee

  • To: <psc@xxxxxxxxx>
  • Subject: INTA Response to ICANN Presidential Strategy Committee
  • From: "Michael Heltzer" <mheltzer@xxxxxxxx>
  • Date: Tue, 15 Aug 2006 14:12:47 -0400

The International Trademark Association (INTA) (http://www.inta.org
<http://www.inta.org/> ) is grateful to submit these comments in
response to the questions posted by the ICANN Presidential Strategy
Committee.  These comments are consistent with the views expressed by
INTA in its response to request for comment issued by the U.S.
Department of Commerce on the transition of DNS administration to the
private sector.  INTA is a not-for-profit membership association of more
than 4,900 trademark owners and professionals, from more than 190
countries, dedicated to the support and advancement of trademarks and
related intellectual property as elements of fair and effective national
and international commerce.  For more than 10 years, INTA has been the
leading voice for trademark owners on the future of the Internet DNS,
and we are a founding member of the Intellectual Property Constituency
of the Internet Corporation for Assigned Names and Numbers (ICANN).


Question 1:  What are some of the main challenges to ensuring continued
stable and secure operations of the Internet's domain name and IP
addressing system, and are there steps that could be taken to improve


Response:  The challenges are not only of a technical nature, but also
relate to policy and enforcement.  One of the main challenges for
continued stable and secure operations of the DNS is recognizing and
effectively dealing with the fact that these principles are not merely
about technical assurance.  Making the decision to add a new global top
level domain (gTLD) to the root, accrediting a new registrar, and
determining protocols for internationalized domain names (IDNs), all of
which and more fall under the purview of ICANN, go beyond engineering
principles.  These decisions have consequences that affect every
Internet user, from the online shopper to the academic to the computer
professional to the corporate entity to the young person who "surfs" the
Net to learn more about his or her favorite television show.  Because of
the undeniably important role that the Internet plays today in culture,
commerce, and everyday communication, the challenge to ICANN is to
ensure that decisions regarding the DNS are not made solely in an
engineering vacuum.  


A second challenge to ensuring stable and secure operations is contract
enforcement.  The safety and reliability of the DNS is threatened when
ICANN does not enforce the contracts on which its business is based.  Of
principal concern to trademark owners is registrar and registry
compliance with policies regarding Whois access and accuracy and the
UDRP.  We recommend that ICANN develop a graduated system of sanctions
for noncompliance by registrars and registries.  A range of possible
sanctions should be available to ICANN, and the GNSO should be tasked
with developing and ICANN with implementing, in its registrar and
registry agreements, an enforceable penalty system.  For example, one
workable system might be to allow ICANN to levy fines for violation of
provisions of the agreement, which could escalate for subsequent
violations. In the cases of repeated disregard of contractual
obligations, the system should culminate, after a certain, definite
number of violations, in well-deserved termination of the accreditation.


Not only would a contract enforcement mechanism incentivize registrars
to comply, it would also provide a revenue incentive for ICANN to
enforce its rules, rather than the disincentive ICANN now faces to
discipline its paying registrars.  Indeed, a third challenge is a steady
and reliable stream of funding for ICANN.  ICANN's limited financial
resources are not commensurate with its many responsibilities, rendering
the operation of the Internet's domain name and IP addressing system
vulnerable to instability.


Question 2:  Members of the Committee accept that there are a number of
administrative challenges that ICANN faces as it is a unique model of
bottom up participation and coordination of policy decision making. What
are examples of how other global organizations have met similar
challenges? Can experiences in other organizations be applied to ICANN
to inform consideration of how best to serve the global community? 


Response:   INTA's strategic plan is an excellent example of how a
global organization like ICANN can successfully address such challenges.
Like ICANN, INTA represents a global community - 4,900 members from more
than 190 countries.  To meet the challenges faced by the global
trademark community, INTA has in place a strategic plan, which is
reviewed and updated on a regular basis.  See
84&getcontent=4.  In addition, the INTA Board of Directors has
established standing committees that are built around and designed to
implement the provisions of the strategic plan.  The membership of these
committees consists of volunteers, experts in the field of trademark
law, who, along with a professional staff, conduct the day-to-day
implementation of the strategic plan.  The role of staff in global
organizations like ICANN and INTA is vital, insofar as a high degree of
institutional knowledge and background concerning policy and procedure
is required to ensure timely completion of assignments.  Facilitation of
regularly scheduled meetings and conferences, including teleconferences,
and the establishment of calendars and diaries with achievable
milestones is also a necessity. Trained and experienced staff should
fill these roles, leaving the volunteer experts the time and energy to
devote towards the substantive matters relevant to the association.  


Question 3:  Is the organization's ability to scale internationally
affected by its legal personality being based in a specific


Response:  The obvious reality is that any organization must be based
somewhere and the historical nature of the DNS has led to ICANN being
based in Marina del Rey, California.  And, as with any organization
(even one of international scope) the legal framework under which it is
created has some impact on how it operates.  However, as has been
evidenced since ICANN's inception, its legal status has not affected its
ability to scale internationally.  In fact, it is likely because of its
legal status that ICANN has gone out of its way to ensure it does not
operate in a US-centric vacuum.  Of the twenty-six meetings ICANN has
had since 1999, only three (3) of them have been in the U.S., the other
meetings having been held in Morocco, New Zealand, Canada, Luxembourg,
Argentina, South Africa, Malaysia, Italy, Tunisia, Brazil, the
Netherlands, China, Romania, Uruguay, Sweden, Australia, Japan, Egypt,
Chile, Germany and Singapore.  In order to ensure broad international
representation on the Board, Article XI, Section 2 of ICANN's bylaws
require that at no time shall a Director be selected to fill any vacancy
or expired term of a Board member whose selection would cause the total
number of Directors (not including the President) who are citizens of
countries in any one Geographic Region (i.e., Europe,
Asia/Australia/Pacific, Latin America/Caribbean islands, Africa, and
North Americas) to exceed five, and at all times the Board must include
at least one Director who is a citizen of a country in each ICANN
Geographic Region.  ICANN has reached out to ccTLD operators and has
already entered into relationships with several ccTLD operators,
including .de, .uk, .au, .jp and .ke.  The .eu TLD is now up and
running, the .asia TLD is soon to follow, and the proposed introduction
of IDNs into the root zone of the DNS is well under way. ICANN has also
opened an office outside the U.S. in Europe.  All of these actions
evidence ICANN's ability and commitment to scale internationally despite
its legal status. 


Question 4:  Given ICANN's narrow technical coordination mission and
responsibilities, how should ICANN respond to relevant issues or
challenges deriving from the WSIS decisions, including those related to
Internet governance?


Response:  We do not agree with the premise of this question.  ICANN's
mission is not merely technical, but, as noted above, somewhat broader
insofar as the consequences of the technical decisions for the user
community must be carefully addressed prior to any implementation.  With
respect to responding to relevant challenges or issues from the WSIS
decisions, we recommend that ICANN rely on its most valuable resource,
its volunteer community, which possess a wealth of resources and
experience to address such challenges and issues. 


Question 5:  Specifically, how should ICANN further enhance cooperation
of all ICANN stakeholders on those Internet governance issues that fall
into ICANN's scope of activities? 


Response:  Enhanced cooperation can be fostered by creating a voting
scheme within the GNSO where all relevant stakeholders are at the table
have an equal voice.  The weighted voting accorded to the Registrar and
Registry Constituencies within the GNSO removes the incentive for
stakeholders to spend their time, talents and energy participating in
the ICANN process, knowing the Registrar and Registry Constituencies
have the power to veto anything they do not like and to push through
policies that benefit their interests to the detriment to others.  This
imbalance of power has unmistakably increased the influence of
registrars and registries to the detriment of all other stakeholders and
has shifted debate away from issues that are critical for users of the
Internet DNS. 


Question 6:  What can ICANN do to further improve the value that the GAC
and its individual members offer to the multi stakeholder framework and
addressing public policy concerns? 


Response:   We are pleased that the GAC is holding more open
consultations during ICANN meetings, and we encourage their continuation
at future ICANN venues.  Direct access between constituents and
government is vital to addressing the public policy concerns raised
within the context of the DNS. 


Question 7:  What can be done to assist in the evolution of a more
widely informed participation from all regions from all interested
stakeholders, including governmental representatives? 


Response:   Greater outreach.  To assist in the evolution of a more
widely informed participation from all interested stakeholders, we
invite senior ICANN staff and directors to conduct a coordinated
in-person outreach campaign to stakeholder communities outside of the
regularly scheduled ICANN meetings.  Given the already tight schedule of
meetings at ICANN events, it is understandably difficult for ICANN's
leadership to engage stakeholders in a sustained dialogue.  A greater
degree of in-person, "one-on-one" attention by ICANN's leadership at
events such as stakeholder annual meetings and conferences, will help to
keep stakeholders informed and more engaged in the development of


Question 8:  Are there activities or steps that would build on existing
processes to continue to enhance global accessibility to the
transparency of ICANN's processes and input into the decision-making


Response:  We invite the committee to consider our response to Question


Respectfully Submitted by,


Michael Heltzer

External Relations Manager

International Trademark Association

655 Third Avenue

New York, NY 10017

Phone:    (212) 642-1741

Fax:        (212) 768-7796

E-mail:    mheltzer@xxxxxxxx

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