[comments-whois] International Trademark Association Comments on Whois Report

[Michael Heltzer <mheltzer@inta.org>]

The International Trademark Association (INTA), the world's largest
organization dedicated exclusively to the protection of trademarks and to
their preservation as valuable tools for consumer protection, is pleased to
submit comments in response to the "Interim Report of the Names Council's
Whois Task Force."  

Trademark owners use the Whois database as an identification tool, for
example in legal audits of property rights, especially when conducting due
diligence for the purpose of acquisitions, buy-outs and mergers, or in
enforcement processes. Regarding enforcement, Whois allows intellectual
property right holders to identify the operator of a site that is hosting or
transmitting infringing materials, as well as bad faith registrants, persons
engaged in unfair commercial practices, and counterfeiters. By enforcing
their rights on the Internet, trademark owners fulfill their legitimate duty
and right to prevent infringement, abuses, misuses and tarnishment of their
marks, which represent important signs of consumer trust and confidence. 

For these reasons, INTA welcomes many of the recommendations put forth by
the task force.  In particular, we are pleased to support the recommendation
that ICANN enforce the existing contractual obligations (in the Registrar
Accreditation Agreement and in the ICANN agreements with the new gTLD
registries) regarding accuracy of Whois data.  In particular, we agree that:

1)	ICANN should ask registrars to identify, by a date certain, a
reliable contact point for reports of false 	Whois data and for requests
for registration cancellations [OR TEMPORARY SUSPENSION] based 	thereon;

2)	ICANN should post those contact points on its web site (perhaps on
the list of accredited registrars); and

3)	ICANN should add a standardized complaint form on this issue to the
internic.net site.   	 

We also suggest that the following be adopted:  

1)	Verification tools designed to weed out false contact data;

2)	A reminder sent to registrars by ICANN that "willful provision of
inaccurate or unreliable information" is a 	material breach of the
registration agreement;
3)	A statement by ICANN clearly acknowledging that "accepting
unverified 'corrected' data from a registrant 	that has already
deliberately provided incorrect data IS NOT [not "may not be," as the
advisory states]
	appropriate." 
4)	A requirement that registrars spot-check a sample of registrations
in order to validate the accuracy of 	contact information submitted.
Equally important to the accuracy of Whois data is the need for greater
uniformity across both the gTLD and ccTLD spaces.  This policy is consistent
with the principles of universality and harmonization, principles upon which
the Internet was founded and which continue to play an important role in the
operation of today's online world.

A robust policy concerning registrant contact details is one of the key
elements of any intellectual property compliant domain name registration
system.  INTA believes that all TLD policies should include explicit
requirements that a registrant provide accurate and reliable contact
details, that these details be available through Whois services, and that
there are consequences outlined in the registration agreement when
inaccurate or unreliable contact details are provided, including
cancellation of the domain name. 

We are therefore pleased that the task force's survey results "strongly
indicate that uniformity of data elements and formats across as many TLDs as
possible would be in the best interests of Internet users." Ideally, we
envision a system that includes data from both gTLDs and ccTLDs -- a
one-stop-shop that is a "portal approach to offering centralized access to
Whois data, across multiple TLDs." But, we recognize that "there is great
diversity of the number of registrations of various ccTLDs, and differing
national laws."  So, we therefore endorse the task force recommendation for
continuing a dialogue on efforts to identify barriers to uniformity, a
dialogue that will eventually lead to solutions that inspire uniformity and
consistency as well as take into account applicable mandatory provisions of
local privacy/other applicable law.

In addition to the above, INTA also supports the task force recommendation
that searchability is needed on additional elements beyond domain names.  It
should be possible, for example to search using the name of the registrant.
Such a function could help a trademark owner determine whether a particular
individual has developed a pattern of cybersquatting, which is an indicator
of bad faith under the Uniform Dispute Resolution Policy.

Thank you for the opportunity to provide comments.

Sincerely,

Mike Heltzer