Comment in support of the Generic Names Supporting Organization Council ("GNSO") adoption of Motion # 2 of the WHOIS Working Group

["Agdern, Barry S" <bagdern@xxxxxxxxxx>]

The Hearst Corporation respectfully urges the Generic Names Supporting
Organization Council ("GNSO") to adopt Motion # 2 of the WHOIS Working
Group, which was offered by Kristina Rosette and seconded by Mike
Rodenbaugh.

 

The Hearst Corporation together with its subsidiaries ("Hearst")
publishes and distributes around the world magazines, books, newspapers
and periodicals among its other activities.  Some of Hearst's
publications are directed to impressionable young adults who have
identified with the wholesome nature of those publications. Other Hearst
publications have developed a reputation for honesty and integrity in
reporting on goods and issues relating to consumers.  All of Hearst's
publications have developed particular points of view which are well
known to the public at large, and to both readers and advertisers alike.
This recognition of each publication's identity has been achieved at
considerable effort and expense.

 

Hearst operates numerous websites based on, and related to, the
publications which it owns.  It does not find the ICANN registration
requirements for its domain names to be burdensome.  Hearst's websites
contain both its own copyrighted material, some taken from its print
publications others created especially for its websites, as well as
material licensed from third parties.  Each publication's identity is
carefully reflected on its related website so as to increase the
public's awareness of the individual viewpoint of the publication and to
emphasize that Hearst is the source of that publication.

 

Hearst however has seen instances in which both its copyrighted material
and its trademarks have appeared on third party websites without its
approval.  Indeed Hearst has found its copyrighted material and
trademarks on websites whose viewpoint and activities Hearst strongly
disagrees with.  Hearst, as many other companies whose business depends
on its reputation and goodwill, must be in a position to take immediate
steps against an infringer who could damage its hard won image.
Unfortunately Motion # 1 establishes an intermediary, the Operational
Point of Contact ("OPOC"), between the registrant of a domain name and
the owner of intellectual property who believes his rights have been
infringed. 

 

The OPOC is not required under Motion # 1 to be authorized to accept
service of process on behalf of the registrant; the OPOC can only relay
requests to the registrant. This procedure will at the very least delay
the take down of the unauthorized and objectionable material.  Further
an owner of intellectual property should not have to prove its rights to
an intermediary, who has no authority over the contents of the offending
website.  An owner of an infringing website should not have the ability
to hide behind an intermediary when time is essential to prevent
irreparable harm. Moreover, in some countries, the absence of the full
details of the domain name registrant may make it impossible to proceed
on an expedited basis with copyright and trademark infringement actions.
Not having any details about the registrant of a domain name, or an
OPOC, which would be the result if Motion # 3 were adopted, is
completely unacceptable.

 

Third parties have also taken Hearst's valuable trademarks without
permission and registered them with slight variations as domain names.
Of course Hearst is not alone as being the victim of cyber-squatters.
The danger in not being able to immediately proceed against a
cyber-squatter is twofold.  Potential customers may be diverted to the
cyber-squatters website, thinking they are either dealing with the
trademark owner's website or an authorized website.  Or the viewing of
the cyber-squatter's website may damage the potential customer's opinion
of the trademark owner's business and reputation.  In either case speed
in stopping the cyber-squatter is essential to make sure that potential
customers have the opportunity to view and evaluate for themselves the
case being made by the trademark owner for its goods and services.  The
rationale for an intermediary is even less persuasive in the case of a
cyber-squatter.  The cyber-squatter is simply not likely to comply with
a request made through an intermediary that it stop the use of an
infringing domain name.  Thus the trademark owner needs the information
about the registrant of the domain name without any delay. 

 

For the above stated reasons Hearst urges the adoption of Motion # 2 of
the WHOIS Working Group.

 

Respectfully submitted by,

Barry S. Agdern

Counsel

The Hearst Corporation

Office of General Counsel

(212) 649 - 2032 Office

(646) 280 - 2032 Fax

(212) 649 - 2634 Fax 
 
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