Comment on proposed changes to the WHO-IS database

["Keogh, Michael" <michael.keogh@xxxxxxxxx>]

Dear ICANN
We understand that you are currently inviting comments and opinions on
the future of the accessibility of the 'who-is' database.
 
In relation to the three motions soon to be voted on by ICANN we would
strongly support 'Motion 2' - that ICANN conduct an objective and
comprehensive study on the abuses and legitimate uses of 'who-is' data,
before making policy changes that may permanently alter the structure of
the domain name 'who-is' system. To support this, we would make the
following comments.
 
The possibility of a restriction to 'who-is' data concerns us greatly.
The who-is database is an essential tool for companies in the protection
of their valuable brands and trade marks. For example, at BP we rely on
the who-is database for the following: 

- To obtain relevant information about cyber squatters.

- To obtain relevant information about registrants with whom we might
have a dispute over a domain, who may not necessarily be cyber
squatters.

- To obtain contact information for domain registrants who we may wish
to purchase a domain from.

- During trade mark clearance searches we refer to the who-is database
to check whether a name has already been registered, and if so by whom.
We can then investigate to establish what interest the registrant
company has in that name, if any.

- We often refer to the who-is database for up-to-date information about
our own domain names. For example, to check which BP entity has
registered a domain (and that it has been registered with the correct
company name), to check contact and technical details, as well as expiry
dates.

- BP is a very large company, with over 120,000 employees across many
countries of the world. The who-is database is a useful source of
information as to which BP departments/employees are registering domains
for the company. We are often alerted to new projects within BP at an
early stage (which may require trade mark/legal assistance) because
someone has registered the relevant domain name (and this has been
picked up by our watch of the who-is).

- Third party associates working on projects for BP will often register
domains in the names of their own companies (or worst still, in the name
of BP with the associate company's address), or in the name of the
individual working on the project. This is not a favorable situation,
and it is against BP's company policy, as all domains registered for/on
behalf of BP must be registered in BP's name. The only way that we would
learn of these instances would be through the who-is database.

Although domain names do not by themselves grant trade mark rights, they
do give the exclusive right to a web-address on the Internet, and in
many respects they have become as important as trade mark rights.
Companies would be ill advised to launch a new trade mark unless the
mark in question was cleared, protected, and the corresponding domain
name registered. With this in mind, we would submit that the who-is
register should therefore be treated in the same way as the trade mark
register, which is a public record. To our knowledge it has never been
suggested that access to the details of trade mark owners should be
restricted.

One of the main purposes of a domain name is to direct people to the
registrant's web-site. We must therefore presume that when an individual
or company registers a domain name there is a high probability that they
have an intention to publish material to 'the world at large' on the
Internet, and to direct users to that material. Publishing any kind of
material is not something that should be taken lightly, particularly
given the global nature of the Internet. Those who choose to do so must
accept responsibility, part of which should involve the availability of
their contact information as public record.

Finally, turning to cyber squatting, fraud and Internet crime, which are
unfortunately on the increase. The nature of the Internet grants a
certain level of cover and anonymity to the perpetrators, which would
most certainly be enhanced by the restriction of access to who-is
information. It is already hard for brand owners to guard against misuse
of their brands on the Internet (and thereby protect the public from
frauds, counterfeit goods etc.), and without access to the who-is
database this would become a nearly impossible task. Brand owners will
be forced to obtain court orders at great expense, and will therefore
have to be more selective as to which matters they pursue. This will
arguably in turn encourage the prevalence of fraud and crime on the
Internet.

To conclude, we appreciate that in today's society there is an
increasing need for the protection of personal information, and there
are valid arguments in favor of the restriction of the who-is database.
However, on balance a restriction to who-is data would give rise to more
serious problems. If access to the who-is database were to be restricted
this would be great news for cyber squatters and fraudsters. Brand
owners would severely struggle to put a stop to fraud or crime involving
their brands on the Internet, and in turn struggle to protect the public
from such mischief.

Yours faithfully,

Michael Keogh
Senior Trade Marks Officer, Group Trade Marks, BP p.l.c., 20 Canada Sq,
London, E14 5NJ
Tel: +44 (0)20 7948 5494
Fax: +44 (0)020 7948 7723
Email: keoghm@xxxxxx <mailto:keoghm@xxxxxx> 

BP p.l.c., a company registered in England and Wales with the company
number 102498 and whose registered office is 1 St James's Square, London
SW1Y 4PD

The information contained in this electronic transmission may be
confidential and/or privileged. Access to this electronic transmission
by anyone other than the intended recipient(s) is unauthorised. If you
have received it in error please notify the sender immediately. Please
then delete the e-mail and do not disclose its contents to any person. 

Within the bounds of law electronic transmissions through internal and
external networks may be monitored to ensure compliance with internal
policies and legitimate business purposes.