In support of ICANN’s new trademark protection rules (mostly)
Yesterday, I sent ICANN my comments about the draft recommendations from ICANN’s Implementation Recommendation Team (IRT), which has been tasked with coming up with a trademark protection scheme for new top-level domains. For the most part, I think they did an excellent job.
From the perspective of an Internet user (which we all are), having a clean namespace — no parked pages, no domains used for phishing, spam, malware, etc. etc. — is pretty important for having a good experience with your email and web browsing. Right now, .com and .net are cesspools, filled with garbage, and we all have to live in the filth, because more than half of all domain names are in the .com and .net zones. From the perspective of a business owner (which I am), having a clean namespace means that my domain names and associated businesses are more valuable. For everyone who is not a polluter, the less garbage, the better.
Cleaning up trademark abuse is part of cleaning up the neighborhood. I’m not supporting an erosion of fair use, or condoning the cynical reverse hijacking that some trademark owners engage in, or trying to expand trademark rights beyond what the law provides for. But everyone working in the domain name field has seen plenty of clear instances of someone registering someone else’s trademark as a domain name, then profiting from it, to the detriment of both the trademark owner and the Internet user who was fooled. There’s no reason these cases shouldn’t be treated separately from edge cases where the facts aren’t so clear. In fact, there’s a good reason to do so — it makes the neighborhood a nicer place to live.
I’m hopeful that new TLD registries will regulate themselves better than the current crop of gTLDs has done, and some of the trademark protection rules proposed by the IRT provide some tools to make that easier.
It’s not all good news: the IRT produced some ill-considered attempts to usurp some of ICANN’s authority, and I don’t agree with everything they’ve done. Nonetheless, I think they went a long way to removing what has been the Number One obstacle to the introduction of new TLDs.
My comments to ICANN are more specific:
Minds + Machines, a registry services operator with several clients participating in the new gTLD process (including, “.eco”, the environmental Top Level Domain application backed by Al Gore and the Sierra Club) thanks ICANN for the chance to comment on the new draft from the the Implementation Recommendation Team (IRT), and we commend the IRT on a well-thought-out and timely report.
In general, Minds + Machines supports new TLDs and namespaces that have semantic coherence and meaning, such that a TLD string informs an Internet user about the content likely to be found on websites within that TLD. We believe the restoration of semantic meaning to the top- level domain namespace will increase the usefulness and use of the Web and as a consequence make the Internet more valuable to both producers and consumers. We are concerned that the meaningless effluvium now proliferating within many current gTLDs harms the experience of Internet users and therefore reduces the value of Web sites within those TLDs. We expect that the new round of TLDs will be better regulated and more trusted than the current crop. Protecting the legitimate rights of intellectual property holders, while preserving the freedom to innovate with and within a new TLD, is an important step in that direction.
We therefore welcome and support most of the recommendations from the IRC, with some caveats.
First, we are strongly in favor of a rapid takedown mechanism for clearly abusive domain names, whether used for phishing, spam, malware, trademark abuse or other illegal behavior. We thank the IRT for spelling out a mechanism to deal with these obvious cases and encourage ICANN to empower registries to act in similar fashion against abusive domain name use beyond the trademark arena. We note that the IRT’s recommendations in this regard are similar to policies used to great effect by CoCCA, Minds + Machines’ cousin in the ccTLD world. While we recognize that the system of watch lists and alerts may add some burden to registries and registry operators, we feel that this is small cost to pay to if it means a cleaner namespace — we note, however, that registries should be able to charge a reasonable price to cover costs.
Further, we strongly support the establishment of a centralized IP clearinghouse be set up as an outsourced agency under a long-term contact with ICANN. We thank Bart Lieben of Lada for championing this innovative solution. This solution will make new TLD launches far more economical for all parties and will significantly reduce errors and their associated expense.
We also support, albeit with some trepidation, the IRT’s findings that a list of Globally Protected Marks should be established. We understand that the compilation of such a list will be fraught with controversy, but we are hopeful that the limits of the list and its uses will soon be established by the courts. A list for exact matches will make it easy for registries and registrars to combat trademark abuse in a programmatic way. Registries cannot, however, be expected to police “confusingly similar” matches or other inspections that require intervention by a human with trademark expertise.
We strongly agree with the proposal that applicants be able to apply for more than one string in an application, without an additional application fee, providing such strings represent IDN variants of the same .BRAND in different alphabets. We furthermore recommend extending this concept to geographical TLD’s with multiple spellings and variants in different languages and IDNs (“Mumbai”, “Bombay” and the IDN variants of that city name for example).
Finally, we fully support the idea of “thick” whois. In our view, the “thin” whois is an artifact of a commercial ploy dating from the formation of ICANN and plays no useful role. A “thin” whois endangers the security of registrant data by spreading it across multiple registrars, some percentage of whom can be expected to run sloppy or shady operations, causing registrant data to go missing or to be held hostage in a registrar’s negotiations with ICANN. The “thin” whois is an idea whose time never was, and we would be pleased to see it piled on the scrapheap of rejected mistakes. We note, however, that the TLD registry must retain the right to create the policy regarding disclosure of contact data in order to ensure privacy protection. As a global operator, a registry should not be forced by ICANN rules to violate national privacy laws (in Europe, for instance) without complete indemnification.
Sadly, in one important area, we find that the IRT team has produced an unrevivable Frankenstein. Especially insofar as it relates to second-level domain names, the proposed “Post-Delegation Dispute Mechanism” mandates a scheme that undercuts ICANN’s authority, imposes impossible duties on registries, and, despite various safeguards proposed by the IRT, is an invitation to abuse. While the proposed mechanism may be viable (with amendment) for abuses relating to the TLD string itself, we feel that when applied to second-level domains names it will require registries to police the TLD namespace for potential infringements, which they are neither competent nor empowered to do, while leaving them without any enforcement mechanism. Instead, any diligence in regard to preventing trademark abuse will simply invite multiple punitive administrative actions by ICANN, in which the registry is set up as the “defendant.” Furthermore, the recommendation does not specify a date of registration of a trademark for a complainant, so that anyone could get a trademark after the fact for the purpose of filing complaints. Finally, we note that the language of the “ten point test” for this section is full weak wording: it is “probably” scalable; “we think it could”; “possibly”; and “may be workable.” This language indicates that the authors do not really believe this is the proper solution for ICANN enforcement of registry contracts, and neither do we. Minds + Machines strongly recommends striking this entire section; if ICANN is not doing its job properly, then the proper avenue is complaint to ICANN.
Despite this one area of disagreement, we congratulate the IRT team on their hard work and creativity, which has obviously yielded substantial results and promises to settle many long-standing arguments, and again thank ICANN for the chance to comment.
Sincerely,
Antony Van Couvering, CEO
Minds + Machines
