[comments-gtlds] INTA Response to WG-C Report

[Michael Heltzer <mheltzer@inta.org>]

Response of the International Trademark Association to the WG-C Report

Introduction

The International Trademark Association (INTA) takes this opportunity to
offer its response to the request for comments on the "Working Group C
(WG-C) Consensus Report," which is to be considered by the Domain Name
Supporting Organization (DNSO) Names Council on 18 April 2000 and by the
Board of Directors of the Internet Corporation for Assigned Names and
Numbers (ICANN) on 20 April 2000.  The WG-C report is on gTLD expansion.

INTA is a 121-year-old not-for-profit organization dedicated to, among other
things, educating business, the media and the worldwide public on the proper
use and importance of trademarks.  We have more than 3,700 members in 120
countries around the world.

Conclusions of the WG-C Consensus Report

The "WG-C Consensus Report" states that the WG had reached consensus on two
points:

(1)  ICANN should add new gTLDs to the root; and  
(2)  ICANN should begin the deployment of new gTLDs with the initial rollout
of six to ten new gTLDs, followed by an evaluation period.

Response to the Conclusions

(1)  The Addition of New gTLDs to the Root

In this response, INTA will not address the question of whether there should
or should not be new gTLDs.  The Association's position on this question is
well established through individual submissions, as well as joint
submissions and/or papers submitted on behalf of the Intellectual Property
Constituency (IPC):  
"[T]he primary focus for us [the IPC] is not if new gTLDS should be
introduced, but rather under what conditions. All gTLDs should be required
to operate in accordance with a set of policies that are aimed at promoting
the stability and integrity of the DNS. These policies must be aimed at
minimizing the use of gTLDs to carry out infringements of intellectual
property rights (including piracy and cybersquatting), and at enabling the
detection of infringers and the expeditious resolution of disputes" (IPC
Position Paper on New gTLDs, http://ipc.songbird.com).
We do, however, take issue with pieces of evidence offered to support the
conclusion reached in the WG-C report and ask that the Names Council and
ICANN Board take into consideration the following points.
First, in the first two paragraphs of the section titled "Arguments
Supporting the Consensus Position," the report suggests that all of the more
desirable names are taken in .com, that it is "nearly impossible to register
a new simple domain name" in .com, and that space is at a premium in .com.
We believe that this conclusion grossly overstates the space crisis in .com
and stops short of recognizing that:  (i)  the maximum number of characters
in a URL is now 64; and (ii) it is completely plausible, acceptable, and
realistic for domain name registrants to combine two or more common,
"simple" words, which are still memorable to Web surfers looking for a
particular site.  To support these two counterarguments, one need only take
into consideration the following examples:  http://www.hearme.com;
http://www.mysap.com; http://www.statusfactory.com; http://www.webmd.com;
http://www.razorfish.com; http://www.globaltravel.com;
http://www.urologychannel.com; http://www.verbaladvantage.com; and
http://www.goldportfolio.com.  All of these domain names, and more, take two
"simple" words and combine them to create a URL that is still easy to
remember.
Second, in paragraph 3 of the same section, it is stated that, with the
addition of new gTLDs, "the entry barriers to successful participation in
electronic commerce will be lowered."  We believe that the reference to the
lowering of e-commerce entry barriers implies that e-commerce is an
inhospitable environment in which to do business.  Nothing could be further
from the truth.  As proof of this position, we note the growing e-commerce
figures which show that an increasing amount of business to business and
business to consumer transactions are taking place over the Internet.  A
study by the University of Texas' Center for Research in Electronic
Commerce, which was sponsored by Cisco Systems and cited by the U.S.
Department of Commerce in its report entitled The Emerging Digital Economy
II,  indicates that 1998 total e-commerce (business-to-business plus
business-to-consumer) was $102 billion. (See,  A. Barua, J. Shutter, & A.
Whinston, "The Internet Economy Indicators," Initial report results issued
June 10, 1999 (see also, The Emerging Digital Economy II
(http://www.ecommerce.gov/ede/chapter1.html).  This $102 billion figure has
grown since 1998 and by all estimations, will continue to do so.
The very next sentence in paragraph 3 states "Addition of new gTLDs will
allow different companies to have the same second-level domain name in
different TLDs."   Indeed, there is no denying that new gTLDs would permit
United Airlines and United Van Lines to each have a www.united.[TLD].
However, we believe that there should be mechanisms recommended by the
report to help alleviate consumer confusion in cases where "different
companies have the same second-level domain name in different TLDs,"
especially since, as was noted above, e-commerce is rising, and more and
more people around the world are using the Internet to make important
commercial decisions.  These mechanisms certainly do exist.  For example,
there are gateway pages. There is a symbiotic relationship between new gTLDs
and consumer confusion.  Recommendations for alleviating consumer confusion
should have been proposed in the report.  
Third, in paragraph 6 of the section titled "Arguments Opposing the
Consensus Position, it is stated that those of us in the Intellectual
Property Constituency would like to impose "substantial delays" on the
initial deployment of new gTLDs.  We disagree with this statement.  The
intellectual property community is not seeking to delay the process. We urge
the Names Council and the ICANN Board to look at the cooperative efforts
between the IPC and other constiuencies on the development of the ICANN
Uniform Dispute Resolution Policy (UDRP) and the Working Group B report,
which notes the discussions between the Registrar Constituency and the IPC
on protecting trademarks from abusive registrations.  These are excellent
examples of the intellectual property community working with other ICANN
constituencies towards progressive solutions.  
(2)  Initial Rollout of Six to Ten New gTLDs
For two reasons, INTA questions the six to ten number which is purported to
have consensus within WG-C.   
First, the report does not breakdown the members by their constituency or
primary interest.  We are therefore unable to determine whether the active
and voting members of the Working Group represent the interests of all
stakeholders in a proportional manner.  Specifically, if the majority
position is held almost exclusively by members of one constituency, then the
appearance of a "consensus" is misleading. A true consensus position
requires a broad base of support from all facets of the Internet
community--not merely the loudest constituency to comment. We urge the Names
Council to immediately develop rules (perhaps through WG-D) to ensure not
only comprehensive, but proportional representation in the Working Group it
establishes as part of the consensus building process. 
Second, the lack of participation in terms of actual voting within WG-C
makes it clear that this cannot be a consensus position. In paragraph 5, the
"Discussion" section, it is stated, "A substantial number of working group
members did not cast votes."    This fact calls into question whether or not
consensus truly exists within WG-C.  The report tries to downplay the lack
of participation by placing this all too important fact in a parenthetical.
Given that what we are debating is the growth of the Internet, is it
responsible for ICANN or any entity for that matter to accept a conclusion
for which the majority of  the group of supposed participants did not
participate?  Clearly,  the answer is  "No".  Of the 142 to147 members (the
number varies) of WG-C, only 66 participated in the "six to ten" vote
(December, 1999) and only 54 participated in the vote to approve the
so-called "consensus" report and send it to the Names Council.  Ten members
of WG-C voted against sending the report and  * 88 * did not even
participate.  In addition, without further information regarding the
interests represented by those that did vote, it is impossible to determine
whether a consensus of the Internet community was reached.  INTA therefore
believes that the six to ten number should not be treated as a consensus
postion.
Conclusion  
INTA appreciates this opportunity to provide comments to the Names Council
and the ICANN Board on the "WG-C Consensus Report" and we look forward to
working with our ICANN colleagues towards achieving consensus on a final
recommendation .