[wg-c] WGC Position Paper

["Chicoine, Caroline" <chicoinc@PeperMartin.com>]

WG-C POSITION PAPER

QUESTION ONE: HOW MANY NEW gTLD's, AND HOW FAST?

We strongly believe that the question of how many gTLD's should be added
and how fast, should not be addressed until appropriate safeguards are
in place in the form of i) improved domain name registration procedures;
ii) implementation of speedy and effective uniform dispute resolution
procedures for abusive registrations; and iii) adoption of a system for
protecting famous and well-known trademark across all gTLDs. 

Once these safeguards have been adopted and are shown to be effective,
we believe new gTLDs may be introduced, if necessary, provided they are
introduced in a slow and controlled manner followed by an evaluation
period before any further new gTLDs are added. The evaluation must
include all technical and legal aspects of the new gTLDs and registries,
in order to make any necessary amendments of rules and conditions. Only
after assessing the results of the evaluation should it be possible to
add more, if needed.

We strongly support WIPO's conclusion that there is a need for
improvement of the registration practices in the Domain Name System
(DNS), and in particular, centralized access to the "WHOIS"-type data.
The lack of reliable information about domain name registrants
dramatically increases the amount of time and money expended by
intellectual property owners in defending their intellectual property
against abusive domain name registrations.  Such limitations only serve
to encourage abuse of intellectual property rights, frustrate the
effective enforcement of legitimate intellectual property rights and,
inevitably, increase the cost of doing business on the Internet for the
end user, as well as reducing their confidence in same.  ICANN has
recognized the importance of such data and proposes requiring that all
accredited registrars be obligated to provide query-based access to
registration data and be barred from placing conditions upon any legal
use of the data under the tentative agreements among ICANN, the United
States Department of Commerce and NSI (see
http://www.icann.org/nsi/factsheet.htm ).  While this is a step in the
right direction, we believe access to the data must be centralized in
light of the number of registries being accredited by ICANN.

Specifically, the primary concern of the intellectual property community
is with the clear cases of abuses which are occurring daily under the
current DNS without such safeguards.  However, the intellectual property
community also has a strong secondary concern in resolving disputes
between owners of competing, legitimate interests in trademarks/domain
names.  While we agree that ICANN must quickly move to implement systems
that will thwart, if not eliminate, the cases of clear abuse, we also
believe that ICANN must develop procedures that will adequately address
situations where owners of legitimate trademark rights in the real world
marketplace come into conflict within the DNS of the virtual world
marketplace.

Similarly, we agree with WIPO's observation that the current dispute
resolution policy that is maintained by current registries is
unsatisfactory. For this reason, we strongly support WIPO's
recommendation that the development and implementation of an
administrative dispute resolution procedure will assist in alleviating
the problems currently faced by all intellectual property owners under
the current DNS.  By instituting a dispute resolution procedure, ICANN
will provide intellectual property owners with a cost effective and
speedy option for resolving domain name disputes without the onerous
task of resorting to litigation.  It should be noted that we believe
that a uniform dispute resolution policy should be implemented shortly
since ICANN has a proposed policy pursuant to the August 26th resolution
reached at the ICANN meetings in Santiago which is supposed to be
completed within forty-five (45) days of same.

Likewise, we agree with the WIPO recommendation that ICANN implement a
procedure designed to protect famous and well-known trademarks.  Working
Group B of the Domain Name Supporting Organization is already working on
this issue, and we believe we should await the preparation of its report
and wisdom before adding any new gTLDs.

QUESTION TWO: HOW TO SELECT TLD STRINGS AND REGISTRIES?

We believe that ICANN should decide on a set of new gTLD strings, and
then solicit applications from would-be registries (or existing
registries) to run those TLDs.  In picking the new gTLD strings, it
should have the assistance of a standing Working Group who would make
periodic proposals for new gTLDs. 

With regard to the issue of differentiation between commercial and
noncommercial gTLDs, we are somewhat skeptical that such a distinction
would resolve a number of the intellectual property problems existing
under the current DNS.  We are concerned, for example, that adopting a
less stringent standard for contact information for so-called
"noncommercial" gTLDs may encourage abusive practices in such gTLDs.
Given that trademarks may be diluted by uses that are claimed to be
"noncommercial," we believe that uses masquerading as "noncommercial"
have the potential to be just as abusive as  "commercial uses."  More
importantly, we are wary that end users of the Internet might not
appreciate such a distinction and that consumer confusion would abound.
Furthermore, based on the nefarious activities which intellectual
property owners are already facing in the existing gTLDs, we are mindful
that a system relying on such a distinction may lend itself to abuse.  

Therefore, should a system that differentiates between commercial and
non-commercial TLDs be put in place, we believe that very specific and
stringent protections should be established to prevent a party from
establishing a "noncommercial" Web site that lambastes its competitors'
products or services.

We believe that a more constructive solution to the current problems
facing the DNS is to develop systems and procedures to greatly reduce
current abuses and to provide intellectual property owners with the
tools and mechanisms to effectively eradicate the abusive practices
causing controversy in the DNS.


QUESTION THREE: SHOULD REGISTRIES BE FOR-PROFIT OR NON-PROFIT?

We believe some registries would be run on a not-for-profit,
cost-recovery basis, and could operate any number of gTLDs.  Other
registries, however, could be run on a for-profit basis, and would be
limited to a small number of gTLDs.  Assuming the proper safeguards are
in place, we see no problem with having for-profit registries.
 
QUESTION FOUR: SHOULD ICANN REQUIRE SHARING?

An ICANN rule would presumptively require that gTLDs be shared, but
ICANN would allow exceptions in particular cases. There may be new gTLDs
for special purposes, that should be excluded from the general rule of
sharing

SUMMARY

In summary, we believe that it is incumbent upon ICANN and all Internet
stakeholders to work together in order to develop the appropriate
safeguards to effectively deal with the problems which exist in the
current gTLDs and ccTLDs before confronting the challenges associated
with adding new gTLDs to the DNS.  After the necessary safeguards are in
place, ICANN and WIPO should evaluate whether these safeguards are in
fact alleviating the problems currently plaguing the DNS.  Once it is
clear that the proposed safeguards are working, we agree with the WIPO's
recommendation that, if any new gTLDs are to be introduced to the DNS,
they should be introduced in a controlled manner on an as needed basis.

Anthony Lupo
Caroline Chicoine
Petter Rindforth