IRT Final Report Comments

[Elliot Jacob Silver <ejs267@xxxxxxx>]

To Whom It May Concern:

I am an Internet entrepreneur, and my two companies own and operate several 
websites on generic domain names. I read through the IRT final report, and I 
would like to make a couple of comments, as I believe it poses a danger to 
small, entrepreneurial companies, such as mine. My specific issues are related 
to the Uniform Rapid Suspension System proposal, which I believe is flawed and 
will cause an unfair financial burden on small businesses that happen to have 
had the foresight to purchase great generic domain names.

I am in agreement with most of the arguments that trademark holders have. If my 
company spent millions of dollars branding a unique moniker, I would be furious 
if someone owned domain names with the sole intention of generating revenue 
from my company's good will.  I also think that the URS has good intentions for 
trademark holders, however, I don't believe there are measures to prevent the 
abuse of the system by companies whose intentions are to use their financial 
power to take away generic domain names from their legitimate owners.

My two primary issues with the URS system as currently presented:
- There are no ramifications for filing frivolous URS cases, making it a wise 
business decision to file them for generic domain names - low risk/high reward
- There is not enough time for a domain name owner to find adequate legal 
representation and file a complete response

My first issue is that there are no financial or legal ramifications for filing 
frivolous URS cases. A large trademark holder can use its in-house council to 
file URS cases against generic and descriptive domain names without fear of 
financial reprisals for abuse of the system.  A company like Apple (just an 
example), which uses a generic term as its brand, could conceivable try to get 
any apple-related domain names via URS. Even if they file a URS for a domain 
name related to a fruit farm, the fruit farm would be obligated to spend 
thousands of dollars defending its ownership, while there is little to no 
downside to Apple. Sure, if that fruit farm decides to sell computers, there 
would be problems, but nothing prevents a company like Apple from filing an 
inexpensive and quick URS for a generic domain name that isn't infringing.

While most trademark holders aren't ill-intentioned, it would be very easy to 
make a business case to file one, as it would presumably be much less expensive 
than attempting to purchase the domain name from its legitimate domain owner. 
If there were penalties for filing frivolous cases, I believe the risk would be 
greater.  I propose either a financial penalty for losing a case, or URS losses 
can be used against the filer in future cases, so that company is labeled as a 
system-abuser.

My second issue is that the URS system doesn't give adequate time for a domain 
owner to respond to a complaint. Many small businesses (like mine) do not have 
an attorney on staff. If I were to receive a URS against one of my generic 
domain names, I would have to hustle to find an attorney who would then have to 
rush a response to the filing. Not only will the standard legal fees be a 
burden for a small business, but the overtime would be even more expensive, 
since an attorney would have very little time to respond to the complaint.  It 
could cost me thousands of dollars to defend a domain name on which I operate a 
legitimate business, simply because a trademark owner things he has more rights 
to it than I have.

I urge ICANN to look at the IRT final report, and specifically the URS proposal 
from the point of view of ordinary domain owners instead of just the large 
trademark holders. There are millions of companies that own and operate domain 
names, and many could be at risk if this passes "as is."  Although the report 
is well-intentioned, there will almost certainly be over-reaching trademark 
holders who will use it to squeeze small businesses and domain owners unfairly, 
and it doesn't seem like these people were represented when the IRT committee 
convened.


Regards,
Elliot Silver