Internet Commerce Association Supports Adoption of this Proposal

["Phil Corwin" <pcorwin@xxxxxxxxxxxxxxxxxx>]

Butera & Andrews

Attorneys At law

1301 Pennsylvania Avenue, N.W.

Suite 500

Washington, DC 20004-1701

PCorwin@xxxxxxxxxxxxxxxxxx <mailto:PCorwin@xxxxxxxxxxxxxxxxxx> 

 

                                                                                
                

By E-Mail

                                                                                
                March 15, 2007

 

Board of Directors

Internet Corporation for Assigned Names and Numbers (ICANN)

4676 Admiralty Way, Suite 330 
Marina del Rey, CA 90292-6601

 

Re: ICANN Opens Comment Period on PIR Amendment to Implement Approved           
      

       Registry Service 

 

Dear Members of the ICANN Board:

 

This comment letter is submitted by the Internet Commerce Association (ICA) in 
regard to the February 22nd ICANN notice, "ICANN Opens Comment Period on PIR 
Amendment to Implement Approved Registry Service". ICA is a not-for-profit 
trade association. Its membership is composed of individuals and companies that 
own, buy, sell, resell, host and manage Internet traffic emanating from domain 
names. ICA's mission is to promote the values and benefits of Internet traffic, 
including the value of purchasing direct navigation traffic, to the press, 
advertisers, and governmental authorities on a global basis. ICA stands for 
Internet prosperity and entrepreneurship and for fairness among regulators and 
in the dispute resolution process, taxation, and treatment under other relevant 
laws, regulations, and agreements in the U.S. and other nations. ICA provides a 
unified voice for a membership with common interests and a diverse collection 
of experience in the Internet traffic marketplace. The website ownership 
community represented by ICA has risked large amounts of capital in order to 
develop domain names as the first new form of property of the virtual age. 
These professional registrants are a major source of the fees that support 
registrars, registries, and ICANN itself.

 

The ICA supports adoption of the Excess Deletions Fee proposed by the Public 
Interest Registry (PIR) for .org domain names. This new policy would impose a 
"restocking fee" of $.05 (5 cents) for registrations deleted during the five 
day add/drop grace period when the percentage of such deletions by any single 
registrar exceeds ninety percent of the initial registrations made within a 
calendar month.

 

The ICA recognizes that repetitive mass registration of domain names (DNs) for 
the purpose of determining their pay per click (PPC) advertising viability 
(know as "domain tasting") can lead to abuse of the five day grace period. In 
particular, the ICA opposes "domain kiting", in which particular DNs are 
registered and deleted for sequential five day periods within the registry's 
add/drop grace period, thereby allowing for de facto DN ownership absent its 
cost. We believe that the PIR proposal is a reasonable policy designed to 
address such abuse and clearly demonstrates that individual registries can 
readily take action to address the legitimate concerns that have been raised by 
the practice of excessive DN "tasting". ICA would oppose any amendment of the 
trademark law of the United States or any other jurisdiction, or any alteration 
of international conventions relating to trademarks, when the legitimate 
complaints of trademark holders can be readily addressed by responsive registry 
policies.

 

The ICA participated in the Domain Name Marketplace Workshop that took place on 
December 6, 2006 during the ICANN meeting in Sao Paulo, Brazil. As a review of 
the transcript of that workshop 
(http://www.icann.org/meetings/saopaulo/captioning-dnmarket-06dec06.htm 
<http://www.icann.org/meetings/saopaulo/captioning-dnmarket-06dec06.htm> ) 
makes readily apparent, there is no consensus in regard to proper definition or 
actual extent of abusive "tasting", the actual economic or other harm suffered 
by various parties as a result of the practice, or the most efficacious means 
of addressing true abuse. Given that lack of consensus, the ICA supports 
experimentation by the registries and registrars with various approaches to 
this issue. 

 

In this regard, we are concerned by the March 12th Press Release of the World 
Intellectual Property Organization (WIPO), "Cybersquatting Remains on the Rise 
with Further Risks to Trademarks from New Registration Practices" 
(http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html 
<http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html> ). In that 
Release, WIPO Deputy Director General Francis Gurry is quoted, "Practices such 
as 'domain name tasting' risk turning the domain name system into a mostly 
speculative market. Domain names used to be primarily specific identifiers of 
businesses and other Internet users, but many names nowadays are mere 
commodities for speculative gain." In this statement, Mr. Gurry clearly 
exhibits a pronounced bias in favor of expansion of the rights of trademark 
holders to the detriment of the equally legitimate rights of domain name owners 
who have risked considerable capital and labor to develop their DNs as valuable 
properties monetized through the provision of content and associated 
advertising. ICA members do not support trademark infringement, but they resent 
having a senior executive of the lead arbitrator of UDRP cases characterize 
their business as one of "speculative gain". 

 

The 25% increase in so-called cybersquatting cases cited by WIPO can just as 
easily be explained by a growing realization among trademark holders and their 
attorneys that DNs constitute virtual real estate with rising legitimate 
economic value and that many DN owners lack the sophistication or the financial 
means to defend their legitimate rights in a Uniform Domain Name Dispute 
Resolution Policy (UDRP) proceeding or related legal action. In other words, we 
would like to see WIPO express concern about the growing incidence of reverse 
domain name hijacking being carried out by trademark holders and their counsel 
that is equivalent to its concern about intentional cybersquatting. While 
trademark holders do have legitimate rights, those rights do not include a 
claim upon every possible typographical variation of their trademarked names 
nor do they include a right to abuse the UDRP or related legal processes. ICA 
is developing policies to assure that the UDRP process maintains an appropriate 
balance between the rights of trademark holders and those of DN owners and we 
will forward those recommendations to your attention when they are ready for 
your review and consideration.

 

We appreciate the opportunity to comment upon this matter.

 

Sincerely,

Philip S. Corwin

Counsel, Internet Commerce Association 

 

 

 

 

 

 

 

 
Philip S. Corwin 
Partner 
Butera & Andrews 
1301 Pennsylvania Ave., NW 
Suite 500 
Washington, DC 20004 
202-347-6875 (voice)/-6876 (fax) /202-255-6172 (mobile)
"Luck is the residue of design." -- Branch Rickey