Best Western International's Comments to the Preliminary Task Force Report on WHOIS Services

["Youssefi, David" <David.Youssefi@xxxxxxxxxxxxxxx>]

January 12, 2007  

 

From:  Best Western International, Inc.

 

To:  ICANN WHOIS Task Force (whois-services-comments@xxxxxxxxx)  

 

Re:  Comments to the Preliminary Task Force Report on WHOIS Services  

 

Dear Task Force Members:  

 

Best Western International, Inc. is the owner of the Best Western(r)
brand which designates over 4,100 hotel properties in over 80 countries
worldwide and is The World's Largest Hotel Chain(r).  Best Western, like
other hospitality and travel companies, has grown increasingly reliant
on the Internet to conduct its business.  Millions of consumers visit
Best Western branded websites every year.  This past year alone Internet
bookings accounted for approximately 70% of the reservations made
through Best Western's central reservations system which generated in
excess of one billion dollars in revenue.  Protecting and enhancing the
strength of the Best Western brand on the Internet is therefore a top
priority that we take very seriously.  

 

Unfortunately, over the past several years it has been increasingly
difficult for brand owners, especially those in the travel industries
and the like that rely heavily on online commerce to support their
business, to fend off the growing tide of cybersquatting.
Cybersquatters typically register large numbers of domains that
incorporate well known brands and then use those domains to divert
customers to competing businesses, to suggest endorsement of unapproved
and often fraudulent activity, and to lead consumers to pornographic
content on the Internet.  It is also common for cybersquatters to demand
large ransoms for the transfer of domains that they have registered
unlawfully and without the permission of the brand owner. 

 

Not only do these practices harm the brands, they also harm the public
at large who are often confused and in the worse cases are deceived into
paying for goods or services that they do not want, do not expect or do
not receive.  Well known brands represent promises to the public at
large that the products and services being sold are safe and legitimate
and that the online sites they visit will be secure and non-offensive.
When a cybersquatter misuses a brand like Best Western it harms not only
the IP owner but also the consumers who have put their faith in our
name.  Even worse, when a cybersquatter is allowed to conceal its
identity the IP owner and the consumer alike are deprived of a fair
opportunity to stop the unlawful activity or seek redress for harm that
is caused.  These are growing problems that companies like Best Western
are forced to spend tens or even hundreds of thousands of dollars a year
to address.  

 

An important tool that we have grown to rely on in this battle is the
WHOIS database.  WHOIS allows us quickly and inexpensively to determine
the identities of the registrants of infringing domains and the
registrars that sell the domains to the cybersquatters.  In cases where
inaccurate data has been supplied to the WHOIS database we attempt to
work with the registrar to obtain the correct information, though it
seems that fewer registrars are cooperating than in the past.  On that
note, while there are certainly many legitimate registrars that
understand the importance of the brand promise and that are helpful in
stopping cybersquatters, there are some that seem to be playing an
increasingly active role in the typical cybersquatting scheme.  

 

For example, it is not uncommon for a single registrar to sell large
numbers of infringing domains to known cybersquatters, e.g., those who
have had multiple UDRP proceedings decided against them.  These
registrars profit not only from the sale of the infringing domains but
also from "privacy services" they sell to the cybersquatters to conceal
their identities and, possibly, additional revenue generated by domains
linked by the registrars to pay-per-click advertising in automatically
generated search pages.  These practices raise substantial questions
about the good faith and supposed independence of these registrars in
the context of online cybersquatting.  

 

It is in this context that we must assess the calls for more restrictive
WHOIS policies that would make it more difficult for brand owners to
ascertain the identities of these cybersquatters and enforce their
rights.  When a brand owner cannot identify the registrant of an
infringing domain its ability to provide notice of its rights to the
cybersquatter, to investigate the infringement, and to effect legal
service on the registrant are all substantially curtailed.  The harm
done to the brand owner and the public is not only substantial but
potentially unstoppable if the WHOIS data is restricted and/or
inaccurate.  

 

We therefore believe it is imperative that any WHOIS policy adopted by
ICANN at the very least provide mechanisms (i) to allow IP owners to use
WHOIS to easily and quickly identify registrants of cybersquatted
domains and (ii) to obtain true and correct contact information where a
registrant has provided false information to the WHOIS database.  We
believe that neither of the proposals outlined in the Task Force's
report effectively addresses these important issues and ask that the
Task Force consider the comments below on these policies, respectfully
submitted by Best Western International.  

 

The Operational Point of Contact (OPOC) Proposal  

 

We view this proposal as completely unacceptable.  Allowing a registrant
to appoint any third party as an operational point of contact to be
published in the WHOIS directory could potentially deprive brand owners
of the ability to identify, contact, or effect legal service on the
cybersquatters who are misusing their trademarks.  Notably, this
proposal does not establish any qualifications or standards for an
entity acting as an OPOC.  It can be assumed that if this proposal were
adopted the number of cybersquatting cases would increase dramatically
as ill-intentioned registrants would easily be able to conceal their
identities by utilizing OPOCs unwilling or even incapable of contacting,
identifying or otherwise acting on behalf of the cybersquatters.  In
such cases IP owners would have little if any recourse.  

 

The only parties that would benefit in this scenario are the
cybersquatters and the registrars they use to purchase infringing
domains and conceal their identities.  While IP owners recognize and
appreciate the importance of protecting the privacy of some registrants
in appropriate situations, it is not clear how the OPOC Proposal would
address this issue effectively.  And in any case, there are other
mechanisms for protecting privacy without depriving IP owners of the
ability to contact and identify cybersquatters.  Finally, while this
proposal ostensibly provides a mechanism for correcting WHOIS data, it
is unclear how a brand owner would be able to request correction of such
data if it cannot access the registrant's WHOIS information in the first
place.

 

The Special Circumstances Proposal  

 

We view the Special Circumstances Proposal as preferable to the OPOC
Proposal, but still deficient in terms of the two important points
raised above.  First, it provides no mechanism for brand owners to
obtain WHOIS information that has been withheld from publication.  No
matter how diligently the Special Circumstances policy is administered
there can be little doubt that, from time to time, cybersquatters - who
are notorious for disseminating false information and employing other
unscrupulous tactics to conceal their identities -  will manage to block
publication of their WHOIS information by falsely claiming special
circumstances.  IP owners should be permitted in such cases to obtain
the improperly concealed WHOIS data.  

 

Second, the proposal fails to address the growing problem of
cybersquatters inserting false and/or incomplete contact information
into the WHOIS database.  We strongly suggest that this policy be
amended to include a mechanism for IP owners to request correction of
inaccurate WHOIS data.  A good first step would be a mechanism similar
to that included in the OPOC proposal for requesting correction of WHOS
data and for restricting or revoking registration if the information is
not corrected.  

 

But we believe more is necessary.  Registrars can and should be required
to take measures to ensure that the WHOIS information being supplied is
valid.  These measures include rejecting obviously fake information,
verifying the data against credit card or other payment details, and/or
verifying the data by requiring responses to e-mail and/or hard copy
mailings to the registrant.  These are all reasonable, relatively
low-cost methods of verifying the identities of online subscribers
utilized by Internet companies, such as ebay.com and paypal.com.  If
mandated for all registrars these requirements would result in no
competitive disadvantage.  Moreover, such measures would represent only
a modest cost to the registrars as compared to the damage done to online
consumers and businesses when cybersquatters are allowed to evade the
law by hiding their true identities.  

 

We thank you for your efforts on the WHOIS Task Force and for your
consideration of the above comments.

 

Sincerely,

David H. Youssefi 
Corporate Intellectual Property Counsel 
Best Western International, Inc. 
6201 North 24th Parkway 
Phoenix, AZ  85016-2023 
ph:  (602) 957-5758 
fax: (602) 957-5551