RE: PIR Amendment to Implement Approved Registry Service

["Chicoine, Caroline G." <CCHICOINE@xxxxxxxxxxxxxxxxxx>]

I am Vice President of the Intellectual Property Constituency (IPC) of
the GNSO and chair of the Registration Practice and DNS Administration
subcommittee of the Internet committee of the International Trademark
Association.  I am also a former Names Council representative to the
GNSO representing the IPC.  While I am making these comments on my own
behalf, INTA is likewise extremely concerned with this proposed
amendment and would like to reserve the right to submit further comments
on its own behalf.

First, thank you for the opportunity to submit comments in connection
with the referenced matter.

I strongly disagree with PIR's proposed solution to the domain name
tasting problem.  Domain name tasting is an abusive registration
practice and ICANN's approval of this amendment to the .org Registry
Agreement would effectively legitimize this practice.

The five day grace period created by ICANN was originally intended to
allow registrars who had mistyped a domain name to return them to the
registry for a full refund, or to allow registrars to obtain a full
refund in the event that a registrant's payment did not clear. In both
cases, such mistakes or non-payment should simply be a cost of doing
business, as is the case for any company that decides to go into
business. I can think of no business where a company is fully and
immediately reimbursed for non-payment by one of its customers.  

Moreover, even assuming arguendo that the origins of the five day grace
period were virtuous, its widespread abuse warrants its elimination.
According to the Coalition Against Domain Name Fraud, "[t]he majority
opinion amongst industry insiders is that approximately 30 million
domain names are currently being tasted."  According to a
BusinessWeek.com article (The Great Internet Brand Rip-Off, December 15,
2006): 

"The practice has soared in the past two years.  In late 2004, roughly
100,000 domain names were tested on any given day, and now, the number
has ballooned to 4 million, according to Jay Westerdal, chief executive
officer of the domain name consultancy firm Name Intelligence.  Experts
estimate that less than 2% of the sites that are tried out for a few
days are ultimately purchased by registrants."

Not only does this practice take millions of good domain names off the
market, it is my understanding that this practice places an unnecessary
burden on each registry and an unnecessary load on the domain name
system.  This in turn jeopardizes the stability of the DNS in clear
contravention to one of the "Core Values" set forth in ICANN's bylaws
(http://www.icann.org/general/archive-bylaws/bylaws-28feb06.htm#I).

Under the proposed amendment, a US$.05 (five cents) excess deletion fee
is proposed.  For the same reason that the low domain name registration
fees (i.e., US$5-10) have not acted as a deterrent against abusive
conduct (see,
http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html
indicating that the number of domain name disputes filed with WIPO has
increased by 25% as compared to 2005), surely ICANN cannot reasonably
believe that five cents will act as a deterrent.  

Moreover, this excess deletion fee only applies to those registrars in
which the "Grace Period Deletes" during any thirty (30) day period are
in excess of ninety percent (90%) of the number of initial registrations
made by the registrar over the relevant time period as determined by
PIR.  Not only does this high threshold remove the "teeth" from this
proposed amendment and severely limit the actual application of this
fee, leaving the length of the time period open ended and at the sole
discretion of PIR makes it almost meaningless.

Instead, I direct ICANN to take a more proactive approach to solving the
domain name tasting problem, and refer ICANN to Nominet's efforts in
this regard which is taking action against any registrar that uses the
delete operation in its automatic system other that for the correction
of registration errors (see
http://news.zdnet.co.uk/internet/0,39020369,39280558,00.htm).  

Thank you for your time and consideration.

Caroline G. Chicoine
Thompson Coburn LLP
One USBank Plaza
St. Louis, MO 63101
cchicoine@xxxxxxxxxxxxxxxxxx