Continued:
Q38: In cases where sponsoring organizations
are appointed, what measures should be established to ensure that the interests of
the global Internet community are served in the operation of the TLD?The measures
which have already been applied in other domains which provides protection for intellectual
property and trademarks together with the application of appropriate dispute resolution
procedures. In addition mechanism for renaming for recovery should be included.
Q39: How should global policy requirements (adherence to a TLD's charter, requirements
of representativeness, interoperability requirements, etc.) be enforced?
The "contract"
between the ICANN and the registrar should detail the measures that will be
taken / inculding greivance proceedure and the resulting actions that could be performed.
Enforcement could be at the extreme, the removal of the registrar and transfer of
the registry. There should also be the option for resolution through arbitration
or the courts of appropriate jurisdiction.
Q40: Are there any types of new TLDs
that should not be included in the initial introduction? If any types should be excluded,
why?
Undifferentiated fully open TLDs because of the aim to improve the ease of
access for the users and avoid confusion.
Q41: Does the start up of a new TLD pose
additional risks to intellectual property rights that warrant additional protections?
BT
considers that the creation of new TLDs may create new risks for intellectual property
rights holders, unless appropriate conditions are applied which reflect the needs
of famous names, trademark and brand holders ownership of such property. The creation
of new domains may necessitate additional protective registrations, reflecting unwarranted
speculation on such property, particularly in territories where there is no legal
principle established which imposes penalties for cyber-squatting, warehousing, cyber-piracy,
cyber-imposture or cyber-fraud. Clearly where the applicants and operators of these
TLDs are incorporated in territories without appropriate legislation, then the risk
increases unacceptably. While the UDRP provides a degree of redress, there are no
preventative conditions that are universally applicable to these practices. ICANN
should consider how these concerns might be resolved before new TLDs are assigned
by incorporating appropriate principles in the policies governing TLD assignments.
Q42: Should the protections afforded intellectual property in the start-up phase
of TLDs differ depending on the type of TLD?
BT considers that the protection
afforded to intellectual property should be consistently applied across all types
of TLD irrespective of their nature or purpose.
Q43: Is the availability of the
UDRP and court proceedings as remedies for violations enforceable legal rights an
appropriate element of protection of intellectual-property rights that should apply
to all new TLDs? Are there any other protections that should be made available in
all new TLDs, regardless of their type?
BT has not yet used the UDRP but regards
it as a viable option for recovering domain names. Experience shows that where there
is an "open and shut" case against a cyber-squatter, there is no reason why, in the
UK jurisdiction at least, BT cannot use existing Court procedures including seeking
interim injunctions. However, the global nature of the Internet means that
it is not always possible either to locate cyber-squatters here in the UK or, more
importantly, not possible to bring action here. In such cases a UDRP or similar
arrangement would be invaluable and BT strongly advocates the same or substantially
similar policy being introduced in any new TLDs, and hence proposes that ICANN should
apply this as a minimum requirement for all TLD operators.
Q44: Does the start
up of a new TLD pose difficulties for those other than intellectual property owners
that should be addressed through special procedures?
BT considers that the interests
of IP owners are the paramount issue. The only other issue would be to ensure
that entry into one of the new TLDs is not on a closed-shop basis, (for instance
I would not want to see a .lawyer TLD introduced as a trial chartered TLD as envisaged
at Q31 above unduly restricting users to those, for example, who are members of The
Law Society or the Bar Association), I would want there to be the widest possible
membership from within the interest group concerned.
Non-commercial organisations
may face difficulties in enforcing rights where these are, for instance, not by way
of intellectual property rights in the usual sense. For example, a religious
organisation in a new "religion" based TLD may want to have redress available for
defamatory , libellous or offensive statements on a website in the domain.
The present UDRP is very commercially oriented so should be amended so that where
non-commercial domain name holders perceive they have a valid right which is being
infringed in some way they have redress.
ICANN should also seek to ensure that
the rights of existing TLD owners are not infringed.
Q45: What mechanisms for
start up of a new TLD should be followed to ensure that all persons receive a fair
chance to obtain registrations?
However desirable fairness is almost impossible
to achieve. New TLDs should be assigned on a first- come first-served basis. An open
registration process that is the same for all (Bulk pre-orders not accepted)
Q46:
Is exclusion of names appearing on a globally famous trademark list a workable method
of protecting such marks from infringement at the present time? Would an exclusion
mechanism be appropriate in the future?
At present it is not possible to protect
trade marks completely against infringement through use as domain names in view of
the limitless variants for registrable domain names available (words with spaces,
hyphenated, commonly used abbreviations, deliberate misspellings etc). A mechanism
of exclusion of names appearing on a famous marks list would, only work if either
(i) there exists a fast-track process for removal of names conflicting with marks
on that list (possibly linked with the UDRP) and (ii) the mechanism allows action
against obvious abuses such as the examples mentioned here (hyphens etc) as well
as against the identical names to those actually on the list where there is clear
bad faith involved.
BT supports the position proposed by the Business and
Commercial constituency of the DNSO, which is quoted as follows.
"In trade mark
law outside of e-commerce co-existence of names is common place. Trade mark offices
accept identical or similar names for dissimilar products or services so long as
the distinctive character or repute of the prior mark is not affected without due
cause. So there is no confusion over Lotus tissues and Lotus computer software nor
is the distinctive character or repute of the prior Lotus mark affected. However,
in trade mark law there are special provisions for well-known marks. These provisions
recognise that names such as Coke, Mars, or Heineken which are widely known across
countries and cultures, deserve extended protection."
"The BC recognises the importance
of relevant sector in that some well-known marks may be well-known to some but not
to others. In national trademark regimes with a definable sector and trademark classification
this problem can be overcome. Creating a list of well-known marks is a problematic
task in a single country due to changes in the market place. This task gets more
problematic the more global you want the list to be."
"In global e-commerce it
presents special difficulties. But the protection of well-known trademarks is especially
important because the Internet reaches to every corner of the globe which means:
§
Well-known trademarks become even better known,
§ Use by a third party in bad
faith has global implications,
§ Consumer confusion and the possibility of fraud
are therefore increased."
"To counteract these problems and so add certainty and
consumer trust the BC recommends a system of protection that recognises the increased
likelihood of confusion with well-known marks. "
"The BC proposes that well-known
marks should be looked at simultaneously with the concept of generic top-level domain
names (gTLDs) which fulfil a classification role. These are called charter or topic
related gTLDs. Charter gTLDs can be viewed as consumer-friendly parallels to the
classification of trademarks (such as the Nice system) and may themselves be used
to define relevant sector. A name owner could make a case via the UDRP to take ownership
of a gTLD in a relevant charter gTLD. This should give protection where it matters
and because irrelevant registrations would be valueless, cyber-squatting would be
significantly reduced."
"The BC therefore calls for a change to the UDRP to modify
the legitimate rights to hold a domain name when the name is identical or confusingly
similar to a well-known mark. Criteria for awarding or refusing transfer of ownership
would relate to the nature of the gTLDs and its relevance to the area of business
of the well-known mark."
BT is not convinced that topic-related gTLDs are
workable in the way envisaged since the Nice Classification is not as consumer-friendly
as it might seem. Whilst it only has 42 possible classes, would ICANN want
42 TLDs? Also, there are numerous sub-divisions within each class and it would not
be practical to create a new gTLD for each discrete area of goods or services.
If the system mirrored the Nice system, how would it deal with newly emerging technologies
for example?
At present there is in fact no definitive Famous Marks list in existence,
notwithstanding the fact that the Paris Convention has been around since 1883.
However, protection for such "Famous" marks is enshrined in most countries' trade
marks legislation, including the UK's Trade Marks Act.. BT considers that ICANN are
not the appropriate body to dictate what should be included on such a list - and
would anticipate years of argument from trade mark owners disputing whether their
particular marks should be included/excluded from the list and which marks are defined
as famous. The legislation in most countries makes a distinction between trademarks
that are locally well-known and have a local, but significant reputation, and those
which are truly globally famous and thus subject to protection via the Paris Convention
provisions. Furthermore, ICANN is primarily an administrative/ technical body,
and is not best placed to create and/or control such a list since the content will
be difficult to define either at the outset or on an ongoing basis - the content
would be best judged by trade-mark practitioners. Finally, BT would support
ICANN setting up its own, arbitrarily devised, system of listing famous marks because
this organisation is charged with representing all constituents' interests, not simply
those of trade mark owners and it may find these ideals conflicting.
Q47: Should
introduction of new TLDs await completion of an evaluation of the operation of the
UDRP and be subject to a finding that the UDRP has been successful in meeting its
objectives? How long would such an evaluation likely take to complete?
BT supports
the Business and Commercial constituency position that the UDRP is evaluated for
a 12 month period (from its implemented date of 24 October 1999), and subject to
conclusions on whether it has been successful in meeting its objectives,
should proceed to enhance the UDRP in an appropriate manner in line with introducing
new TLDs. IPRs protect brand names from unfair copying in order to allow brand
owners to benefit from the investments in their brands and to allow consumers to
purchase safe from fraud. The prevalence and perception of both cyber-piracy and
cyber fraud has reduced opportunities for enterprises large and small to benefit
from e-commerce as quickly as they would have done. It is essential that new TLDs
do not increase opportunities for fraud and piracy. BT supports the proposal of the
Business and Commercial constituency that there are changes needed now to ICANN's
uniform dispute resolution policy (UDRP) and the BC will return to ICANN in the coming
months with proposals. The BC calls for a rapid evaluation starting immediately of
the first year of operation of the UDRP. The BC seriously questions the evaluation
of ICANN staff that UDRP evaluation and UDRP revision would take nine months. The
BC expects this could be done within the proposed ICANN timetable for introducing
new TLDs. ICANN should also consider the need to trial an inter-TLD dispute resolution
process, where one TLD 'markets' itself to acquire registrations that 'belong' to
another TLD from the viewpoint of user confusion, DNS efficiency, charter etc..
Since
the first UDRP arbitration decisions in January 2000, the emerging pattern is one
of favouring complainants/trade mark owners. In the first 6 months of issued
decisions there has been little citation by the (primarily single) arbitrators of
precedent UDRP cases. So whilst trade-mark owners would naturally favour the system
as it stands, BT considers that a much longer period, would be desirable, within
which to obtain meaningful data on operation of the UDRP generally. For instance
ICANN should gain a better understanding of how the three person panels will be applying
the policy and whether this will follow the single member panels' decisions thus
far.
Q48: Should introduction of new TLDs await extension of the UDRP to cover
claims for transfer of domain names based on the relevance of a well-known trademark
to a chartered gTLD? How long would implementing such a revision to the UDRP likely
take?
BT considers that the changes proposed for the UDRP could be introduced in
parallel with the development of policies and proposals for the new TLDs, so that
the new TLDs could be launched into an environment which is consistent for all existing
and future domains.
Q49: Does the schedule allow sufficient time for formulation
of proposals?
This is a matter of priorities and resource assignment.
Q50: Does
the schedule allow sufficient time for public comment?
ICANN has earned a reputation
for resolving difficult problems in short time-scales, in the interests of the majority
of its participants. Provided that there is appropriate openness and that the views
of interested groups are not dismissed by elected representatives, then there should
be an adequate opportunity to sustain such progress.
Q51: Should all proposals
be posted for comment simultaneously to maintain equal time for public comment? Should
all proposals be posted for public comment as they are received to allow the greatest
possible time for public analysis and comment?
Option 2 is preferable because otherwise
the public could be swamped with a high volume of proposals to evaluate in a short
period of time.
Q52: Should the formal applications be posted in full for public
comment? If not, which parts of the applications should remain private?
There continues
to be a serious risk of further 'land grabs' being promulgated in this area and so
it would be advisable for the full details of proposers identities, locations and
applicable jurisdictions to be posted together with details of their organisations.
Q53: Should proposals choose a single proposed TLD or numerous possibilities?
In
the trial period when there should only be a limited number of new domains, it will
be important to ensure that diversity is maintained and hence only one proposal per
applicant. BT considers that an applicant could supply more than one possible label
string for the TLD; e.g. One application might allow a preferred label string with
a secondary selection to run say a retail outlet TLD and propose a TLD string of
say "shop" or "shp" or "retail".
Q54: Should ICANN select the TLD labels,
should they be proposed by the applicants for new TLD registries, or should they
be chosen by a consultative process between the applicants and ICANN?
Applicants
should be free to suggest the new TLDs but BT considers that it is essential that
ICANN should retain ownership of the rights over the designation and the uniqueness
through differentiation. This should help prevent confusion by users and ensure that
there is scope for a framework within which some clear semantic differentiation can
be provided. The TLD operators should be 'leased' the rights to run the domain and
registry functions.
Q55: Should there be minimum or maximum length requirements
for TLD codes? Are restrictions appropriate to avoid possible future conflicts with
ISO 3166-1 codes?
ICANN should adopt an approach which minimises the scope for
conflict or confusion. This may require the exclusion of any two letter codes which
do not reflect ISO3166-1 and represent self-governing geographical territories to
avoid confusion with ccTLDs. . It would seem sensible to avoid any future conflicts
with ISO 3166-1 codes (possibly including the three-letter form of the country codes
- more investigation probably needed here). TLD codes must be carried by DNS and
other Internet protocols, stored and processed by apps and users so well known rules
must be applied. A one letter code is probably not useful either Obviously there
should be a maximum or someone will try to register supercalifragilisticep etc. As
for a specific value probably more investigation is needed here which may require
IETF definition and evaluation.
Q56: Should there be restrictions on the types
of TLD labels that are established (for example, a prohibition of country names)?
See
the answer to Q55 Above: ICANN should also preclude country names fully spelt out
e.g. England
Q57: What should be the criteria for selecting between potential TLD
labels? Should non-English language TLD labels be favored?
BT considers that ICANN
should ensure that the names suggested must meet a set of criteria which establish:-
·
A long term and viable namespace (not fashion driven, nor short term gain)
· Meaningful
names with obvious or at least obviously non-overlapping scope (.com and .ecom are
bad)
· A Significant community of registrations (large number of insignificant
TLDs would be really inefficient)
· Established relationships to existing names
(ie identify the gap being served)
· Reason why it should not be a sub-domain
under one of the open TLDs
· Obscene names or names likely to cause offence or
incite racial hatred etc should also be prohibited.
Exercising any positive or
negative linguistic preferences for TLD labels would be discriminatory in one
direction or another, and should be avoided as conflicting with the principles of
openness which characterise the Internet.
Q58: How many new TLDs of each type should
be included in the initial introduction?
BT supports the view that the initial
introduction should be limited to a few new TLDs, pending assessment of the effects
on the stability of the Internet and operational success and growth of new domains.
There is clearly a need to address a variety of new TLD attributes, and the initial
trial domains could be based on proposals arising from these options. BT considers
that there should be no more that two of each type, in the interests of competition
and no more than a total of six in the trial.
Q59: Which types of TLDs will best
serve the DNS?
TLDs to enable increased structure and diversity in comparison with
.com, .org, .net and .edu
New TLDs to support names not covered by existing open
TLD's
Delegated TLD's representing large as well as minority communities, structured
in an efficient use of namespace.
Q60: Are there any types of TLDs that ICANN
should not consider?
BT considers that ICANN should avoid:-
· A short-term and
expiring namespace (i.e. not fashion driven, nor short term gain)
· Meaningful
names with obvious or at least obviously non-overlapping scope (.com and .ecom are
bad)
· Large number of small-scale TLDs which would be very inefficient
· Obscene
names or names likely to cause offence or incite racial hatred etc should also be
prohibited.
Q61: Which types, if any, are essential to the successful testing period?
Sponsored
TLDs
Q62: Which other structural factors, if any, should ICANN consider in determining
the potential success of a specific TLD proposal?
BT considers that the scope of
the potential user community should be a significant factor in determining the likely
success. Not only would the absolute size of the community be considered significant
but also the benefit likely to be gained from the available resource. A TLD devoted
to medical matters would have wider benefits that one which deals solely with adreno-leuco
dystrophy, which could be incorporated at a sub-domain level.
Q63: Should ICANN
accept proposals from companies formed/forming for the purpose of operating or sponsoring
a new TLD? If so, how should ICANN determine the competence of the company?
There
area several questions included in this: entities formed for the purpose of sponsoring
or operating may be commercial or non-commercial. If an association of businesses
were to sponsor a TLD for the use of the sector, or if a social organisation were
to do so, then they may not consider running the registry operations directly but
subcontract them to an appropriate entity. Whereas ICANN could choose to discriminate
on the basis of commercial competence, viability, and professional and financial
resources, the suitability of a company to sponsor or operate a TLD, these criteria
may not be comparably applicable to non-commercial entities, associations or social
organisations. Many of the ccTLDs were set up within academic or governmental
departments, whose competence has not been subject to ICANN assessment. However ICANN
should reserve the right to assess the competence of the proposed registry operations,
compared against best practice recommendations as determined at that time. However,
the principle should be adopted that the sponsor retains the liability for the domain
and is responsible for ensuring the performance of the registry operations, whether
these area directly or indirectly controlled. In the same way that abuse of a TLD
holding can be lead to it being re-assigned, ICANN should retain the ability to exercise
appropriate sanctions in these new assignments also.
Q64: If a company has
significant operational or policy positions not yet filled, how should ICANN
evaluate the level of competence of officers and employees?
By deferral until such
appointments can be assessed.
Q65: How should ICANN evaluate the competence of
officers and employees?
ICANN should establish a minimal model of what is considered
necessary to operate successfully as a TLD operator, and identify the levels of professional
competence against each of the essential functions. Then a simple comparison of the
officers and employees Curriculae Vitae and accredited qualifications against these
requirements would be a simple starting point. Clearly the level of verification
would depend on the nature of the individuals and their skills.
Q66: How much
capital should be required? Should it be a fixed amount or should it vary with the
type of proposal and the sufficiency of the business plan? How should the sufficiency
of capital be evaluated?
This is an issue which is best commented on by existing
gTLD and ccTLD operators.
Q67: Should ICANN seek diversity in business models as
well as TLD types? Which, if any, business models are essential to a successful evaluation
phase?
Yes as there may be significant differences between commercial and non-commercial
TLD types. ICANN should seek business models which require an investment consistent
with establishing a viable user base which will cover costs. This implies that registry
fees will have to be adequate for financial viability, but not dis-incentivise registrars
and registrants. The registries should be required to demonstrate their break-even
points and critical success factors.
Q68: What measures should be in place to protect
registrants from the possibility of a registry operator's business failure?
The
authority of ICANN to re-assign a failing domain to another registry, backed up by
independently maintained escrow. ICANN may need to consider whether this will impose
the need for a DNS renaming capability, although alternative assignment may obviate
this.
Q69: What should be the minimum technical requirements to ensure sufficient
stability and interoperability?
Compliance with IETF protocol standards and best
practice RFCs
Q70: How should ICANN evaluate the sufficiency of proposed intellectual
property protections?
BT considers that the best evaluation would be that ICANN
should measure the sufficiency of the proposed protections by comparison of the number
of instances of disputes and how/if they were resolved prior to introduction of new
TLDs and post introduction. ICANN should also determine that the new TLDs were
not seen to be assisting to promulgate fraud and that global/famous trade mark interests
are being sufficiently protected. As stated at Q44/6 ICANN should put sufficient
measures in place to protect the interests of all IP owners, including non-commercial
organisations, whose non-IP interests should also be covered.
Q71: What role should
ICANN have in the start-up procedures for new unrestricted TLDs?
Based on historical
experience ICANN should set the 'best practice' guidelines for the start-up procedures
of new TLDs and monitor their adherence and performance, with the objective of amending
them in the light of further experience. These 'start-up' procedures might also need
to be a required compliance in the contractual assignment of the TLDs.
Q72: In
what ways should the application requirements for sponsored/chartered/restricted
TLDs differ from those for open TLDs?
BT recommends that TLDs should be selected
by ICANN so that they are non-overlapping to avoid confusion among users domain impostures.
Q73: Should ICANN require a statement of policy or should a statement of how
policies will be made be sufficient?
BT considers that ICANN should require compliance
with its expert-defined policies that it regards as 'best practice'
Q74: What level
of openness, transparency, and representativeness in policymaking should ICANN require?
BT
supports the principle that ICANN should maintain openness, transparency and representativeness
in its policy determinations. This will continue to be essential to ensure that problems
can be resolved within the Internet. A good example is the global routing policy
database that is sufficiently open for interoperability reasons, and overall good.
Where this affects the business operations of the TLD operator some commercial operators
may regard this as a business decision that should not be openly accessible on the
grounds of competition.