Comment in support of the Generic Names Supporting Organization Council ("GNSO") adoption of Motion # 2 of the WHOIS Working Group
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 *************************************************************************************************************** This e-mail message is intended for the personal use of the recipient(s) named above. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify the Hearst Information Services HelpDesk (helpdesk@xxxxxxxxxx) immediately by e-mail and delete the original message.