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Title: Message Response to Request for Comments on the Criteria to be Used in
the Selection of New Sponsored TLDs
You will be aware,
from my current lawsuit against Afilias, of my interest in the lawfulness
of the granting of exclusionary preferences to trademark holders in so-called
'Sunrise Periods' prior to other registrants being able to register domain names
in the implementation of a new TLD.
Further legal
action against ICANN and/or the US Department of Commerce is pending an
evaluation resulting from your statements to the Court (in your defense of
my earlier lawsuit) that you were not responsible for the terms under which
Afilias was granted the right to operate the .info domain and that your
role was limited to making recommendations to the US Department of Commerce.
In the
context of the issue of further TLDs, I believe that it should be made
clear to all concerned as to whether it is ICANN or the US Department
of Commerce that will ultimately determine the terms under which the release of
new TLDs will be implemented.
Your proposed
criteria for selecting applicants for new TLDs contains two sections that
concern me:
Section D. 5 relates
to the protection of the rights of others. Without being specific, the criteria
refers to the applicant's requirement to "ensure compliance with other ICANN
policies designed to protect the rights of others". I trust that this does not
signify that a "Sunrise Period" should be provided. Clarification as to
what this vague and ambiguous language actually means in real and practical
terms should be provided to applicants and the public before the process
proceeds further.
Section C. defines
the RFP process as "an extension of the Proof of Concept that was commenced
through the selection of the seven new TLDs in November 2000". I think that
sufficient should have been learned about the use of a Sunrise Policy
for this process not to be deemed to be continuing. The widespread abuse that it
spawned in the .info rollout - that resulted in over 17,000 abusive
registrations being made and earned widespread criticism for Aflias and ICANN -
should suffice. The condemnation of the .biz process by the Courts that has cost
its registry $1million+ should provide further impetus for a clear decision
of ICANN that future TLDs will be released in a manner that allows free and fair
registration to all - without arbitrary exclusions and conditions
that serve only to provide an impetus for, and numerous examples of, abuse.
The operation of a business or non-profit organization or the possession of
simple skills and interest in the provision of new Internet content
relating to a descriptive domain name should be reason enough to grant an
applicants request for a domain name. The possession of trademark rights is an
extremely poor criterion for the award of a domain name - especially as the US
Courts have clearly determined that there is no right to a domain name as a
result of the possession of trademark rights. Attempting to enforce
such unlawful preferential policies serves only to exclude
applicants who intend to make wholly fair and uninfringing use of a domain name
- and leads to such abuse as the granting of the right to the domain name
sex.info as a result of flawed Sunrise Policies and a trademark for a
child's pull toy... If ICANN's Proof of Concept is a valid process - and
not hiding a hidden agenda to enforce Sunrise Policies -
ICANN should immediately provide the reports of the registries that
were due to be published a year ago and were to have assessed the extent to
which such policies succeeded or failed. Let applicants - and the public - see
the evidence from the Proof of Concept of the new TLD launch of
2 years ago before the process proceeds further...
Jeff
Davies
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