WHOIS

["Bagnall, Mary" <MBagnall@xxxxxxxxxxxxxx>]

Dear Sirs 

We refer to GNSO's vote regarding the future of the domain name and
WHOIS system and urge you to adopt Motion 2, that ICANN conduct an
objective and comprehensive study on the legitimate abuses and uses of
Whois data - before making policy changes that may permanently alter the
structure of the domain name and Whois system, for the following
reasons.  

The information available through the WHOIS system regarding the
ownership of domain names is an invaluable tool in assisting us in the
provision of services to our clients, including commercial due diligence
and the protection of intellectual property rights.

When advising a client on the acquisition of a business, it is now
standard practise to conduct searches to check the ownership of related
domain names using WHOIS. This allows us to confirm whether the domain
names that a business claims to own are actually registered in its name.
This is often not the case, generally as a result of administrative
oversight.  The WHOIS system also allows us to establish whether any
related domain names have been registered by third parties.  Information
provided by WHOIS helps us to establish whether domain names have been
registered by legitimate businesses, or people intending to use the
known name or trade mark of a legitimate business as a means to conduct
unlawful activity, whether through infringement of intellectual property
rights or other fraudulent purposes.  
  
As is widely known, the legitimate interests of businesses are often
threatened, and their intellectual property rights infringed, by
so-called cybersquatters seeking to profit from the names or trade marks
of others, or worse using these names or trade marks to cause consumer
confusion and/or other damage to the legitimate owner of the name or
trade mark. The WHOIS system assists us to establish the identity of
such persons and to take appropriate measures to protect our clients'
interests and indeed the interests of consumers. If this information
were not freely available via the WHOIS system it would be a very
difficult, time consuming, expensive task, to identify such persons, as
those who use the Internet and domain names for unlawful purposes are
unlikely to provide details regarding their identities elsewhere.

There are also a number of persons who piggyback on the identity of
established businesses by registering similar domain names and operating
businesses from the connected websites, taking unfair advantage of the
goodwill and brand strength established by another. This can include the
sale of grey imports, infringing the manufacturer's patents and/or trade
marks. The identity of such persons is often concealed behind PO Box
numbers or companies registered in countries that do not provide public
access to their details. The information available via WHOIS helps us
again to identify such persons, obtain contact details, and take steps
to protect our clients' rights.

Internet websites are also often used to reproduce copyright material
without the owners consent. Once again, the information available from
the WHOIS system regarding domain name ownership allows us to discover
the contact details for such persons, to inform them of the copyright
owner's rights, and to ensure that such material is removed.

The WHOIS system also helps to provide a additional layer of comfort for
consumers.  It can often be difficult to establish, by simply looking at
a website, whether a business is legitimate or not.  The ability to
check the identity of the domain name registrant via the WHOIS system
allows consumers to cross-refer that information to any contact details
provided on the website.  This helps them to make a more accurate
assessment as to whether a business can be trusted or not, and allows
them to contact the registrant if something goes wrong.

We appreciate that there are important issues to be considered regarding
the privacy of individuals who operate websites.  However, given the
considerable value of the information provided by the WHOIS system, to
legal practitioners and businesses who wish to protect their legal
rights, a thorough investigation should be carried out into the uses and
abuses of WHOIS before any changes are made. Therefore we respectfully
request the GNSO to reject Motions 1 and 3, and approve Motion 2, in the
forthcoming vote. 

Yours faithfully

Mary Bagnall
Partner - Intellectual Property and IT Group
Mayer Brown International LLP
11 Pilgrim Street
London
UK

Direct Tel: + 44 (0) 20 7782 8843
Direct Fax: + 44 (0) 20 7782 8155
E-mail: mbagnall@xxxxxxxxxxxxxx
www.mayerbrown.com
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