Donuts' Comments

[Jon Nevett <jon@xxxxxxxxx>]

Donuts Inc. Comment: IPC/BC Quest for New RPMs and the “Strawman Proposal” 

Donuts Inc. submits these comments regarding ICANN staff’s “strawman proposal,” 
made in response to the IPC/BC quest for additional new rights protection 
mechanisms (RPMs). 

Donuts has applied for 307 generic top-level domains (gTLDs).  Our gTLDs 
represent generic dictionary terms that we believe will fulfill ICANN’s mission 
to introduce long-overdue consumer choice and competition to Internet naming.  
Donuts is a well-prepared and well-resourced company that is committed to 
offering consumers new and varied domain name alternatives through safe, stable 
and secure registry operations.  The company participates actively in ICANN 
policymaking through its membership in the New TLD Applicants Group (NTAG), 
which operates under the umbrella of the Registry Stakeholder Group.

Donuts is a strong proponent of RPMs, as evidenced by the suite of voluntary 
RPMs we have included in each of our gTLDs.  We also are open to discussing 
with the community, through an appropriate process, potential post-launch RPMs 
that would apply to all gTLDs, existing and new. 

With that said, Donuts very much supports the comments offered by the NTAG on 
this issue (http://forum.icann.org/lists/tmch-strawman/msg00014.html).  It is 
Donuts’ strongly-held view that mandatory RPMs in the Applicant Guidebook (AGB) 
were reached by a community-wide process, were relied upon by applicants, and 
should not be changed unilaterally by ICANN.  As such, Donuts opposes the 
imposition of new RPMs at this stage that would apply at the time of launch 
and/or apply only to new gTLDs and not existing gTLDs.

We support the bottom-up policy development process that would appropriately 
review the costs and impacts of proposed RPMs for all TLDs.  The RPMs in the 
AGB are powerful and were agreed to through the multi-stakeholder process, and 
were memorialized in the application agreement between applicants and ICANN.  
Absent broad community support, which does not exist, they should not be 
further tampered with at this time.

There is no doubt that the strawman proposal represents changes to policy, and 
not implementation of settled policy.  Accordingly, changes are the remit of 
the GNSO Council and community.  Moreover, under the terms of the AGB, because 
the proposals would have significant impact on applicants, support of the 
applicant community should be a condition precedent of any change to these 
agreements.

Specific Proposals

Sunrise: notice requirement

Donuts does not object to either a 30-day notice to trademark holders regarding 
sunrise, or a 60-day sunrise process, at the discretion of the applicant.

Trademark Claims 1: extension from 60 to 90 days

There is no basis to extend Claims 1 from 60 to 90 days.  Any proposed 
extension should be subject to GNSO Council support. 

We agree with ICANN CEO Fadi Chehade’s letter to the U.S. Congress stating that 
60 days should not be extended unilaterally by ICANN. 

Trademark Claims 2: new RPM

Claims 2 is a new RPM proposal, not previously considered by the GNSO 
community, that requires community review, input and approval before it could 
be implemented.  This proposal is a longer-term RPM with potentially 
significant impact, not merely implementation of an agreed-to RPM. 

Such a proposal requires exploration of the complex issues it entails and, if 
adopted, should apply to all gTLDs.  By trying to implement Claims 2 without a 
fair community review, ICANN would be circumventing the very bottom-up 
multi-stakeholder process that is at the core of the ICANN model. 

Extension of Trademark Claims Scope

Donuts agrees that trademark claims scope expansion (beyond exact match) is a 
matter of policy—this was specifically stated in ICANN CEO Fadi Chehade’s 
letter to Congress:

“It is important to note that the Trademark Clearinghouse is intended to be a 
repository for existing legal rights, and not an adjudicator of such rights or 
creator of new rights.  Extending the protections offered through the Trademark 
Clearinghouse to any form of name would potentially expand rights beyond those 
granted under trademark law and put the Clearinghouse in the role of making 
determination as to the scope of particular rights.  The principle that rights 
protections ‘should protect the existing rights of trademark owners, but 
neither expand those rights nor create additional rights by trademark law’ was 
key to work of the Implementation Recommendation Team…”

Blocking

Consistent with its stance on scope expansion, Donuts strongly believes any 
effort to block registrations, including the IPC/BC “Limited Preventative 
Registration,” represents a change in policy and should be a matter of Council 
policy business if it is to be considered. 

Donuts appreciates the opportunity to provide comment on this important matter.