MarkMonitor's Specific Comments to Module 1
MarkMonitor is pleased to submit the following additional comments regarding the Guidebook. Incomplete Application Submissions: Section 1.1.1.- After paying the substantial application fee, applicants should be allowed to supplement any incomplete submissions within a specified time frame. Given the complexity of the application process, it should be expected that some sections of the application may be incomplete. Posting of Applications: Section 188.8.131.52- Trademark Holders listed on a centralized trademark registry or database should be given notice of potentially infringing applications, and an opportunity (i.e. an additional 45 days) to submit an application for such name. Applicant Reviews: Sections 184.108.40.206, 1.2., 1.2.3- It is possible that for legal, asset protection, tax or other issues, an applicant may desire to set up a newly formed entity to serve as the registry. The applicant review should allow for existing entities to set up newly formed subsidiaries or affiliates to become the registry for the new TLD. The portions of the Guidebook that relate to the financial capability of the Applicant should be written to allow the documentation (such as incorporation documents or financial statements) to relate to an affiliated entity. Role of Public Comment: Section 1.1.3- It is not clear from the guidelines how ICANN will use the information provided through the public comment period. For example, if significant public objections are submitted to a specific application, but no dispute proceeding is initiated with respect to the application in question, will the public comments play any role in the evaluation? Under the new TLD process, there is a presumption of approval for a new TLD if all of the criteria is satisfied. There appears to be no ability to reject an application that has met the stated criteria unless an objection has been filed and is successful. However, it is possible that a TLD string may receive significant public opposition during the public comment period yet no formal opposition is filed, perhaps because of the associated costs. ICANN should consider reserving the right to reject a TLD applicant under these circumstances. Categories of Applications: Section 220.127.116.11- The Guidebook only describes two types of applications- open and community. However, neither of these categories appear suitable for the closed corporate TLD, or the "Corporate-Closed Model", where the registry is a corporation applying for a new TLD on one of its main brands, and the registrants are limited to only the registry and its commonly owned affiliates, and where the registry controls the content associated with domain names registered in the TLD, and no third parties can be registrants. Neither the "community" or "open" distinction in the Guidebook appears to apply to this model. For example, can a corporation endorse itself as a community? ICANN should designate this as a third category and allow for deviations from the ICANN consensus policies, as applicable to the Closed Model. For example, a corporation may not desire to allow all registrars to register second level domain names. Similarly, policies that are meant to protect registrants may not be necessary or applicable if the registry/registrant are the same. In addition, we anticipate that there may be another category of Corporate applicants, which we refer to as the "Corporate Open Model" where a corporation may apply for a TLD for one of its brands marketed to its consumers, and the registrants are limited to its customer base. In these "Corporate Open Models," we can envision the adoption of unique acceptable use policies" that would restrict the usage of the domain names to certain types of activities or content. It is unclear whether these types of TLDs should be treated as a "community" or "Open" under the Guidelines. In either the"Corporate Closed" or "Corporate Open" Model where the TLD string is based on preexisting trademark rights, such an application should receive preferential treatment in the evaluation process in the same manner as a community based application. Financial Statement Requirement: Section 1.2.3- The requirement for "audited" financial statements should be reworded to allow applicants to submit the latest "available" audited financials, due to the delays typically associated with obtaining audited statements, and to submit unaudited financials for the latest period. Application Fees: Section 1.5- The proposed ICANN fees serve as a significant deterrent to corporations considering whether to apply for a new TLD for their brand. Specifically, the recurring annual fee (the greater of $75,000, or 5% of the registry transaction revenue) is high, in the light of the probability that corporate owned TLDs may not have large numbers of second level registrations, thereby causing the per domain fee to be significantly higher than currently charged by ICANN. ICANN should consider charging lower fees for smaller registries, and should consider a maximum fee in the event that the variable component results in an unexpected windfall to ICANN. In any event, the Guidebook should be revised to clarify that the 5% threshold does not apply to non-domain related registration services or revenue.