I preface this letter with the statement that I believe the speculation or
aftermarket in domain names is a legitimate industry, and that Mr.
Blankenhorn and I have locked horns on this issue before. That said, The
trademark restrictions Mr. Blankenhorn notes NeuStar, Register.com and
VeriSign putting in their registry agreements, are an ICANN-bullied requirement.
ICANN's Working Group B (famous marks), comprised of both large corporate trademark attorneys and unaffiliated trademark attorneys as well as academics and others, was tasked with deciding if
*famous* trademarks should be protected in the domain name space.
The group could come to no consensus that *any* trademark protections, famous or otherwise, were either warranted or legal. (See http://www.dnso.icann.org/dnso/WGs.html.) (I was and remain a Working Group B participant.)
So three things happened.
First, ICANN ignored the group's non-consensus outcome, and the Uniform Dispute Resolution Policy (UDRP) was written, with acceptance mandatory in order to get a domain name.
Second, registrars (who were to be the new registry TLD applicants) were called to a private registrar meeting, attended by VeriSign's Roger Cochetti and IP Attorney aka Working Group C (Registrars) secretariat Michael Palage. (It is Mr. Palage who stated at a January 10, 2000 Small Business Administration meeting on Domain Name Issues that I attended, "The trademark lobby must be placated because of its potential ability and inclination to bankrupt new registrars and wreck havoc on their registrant databases." (See A href="http://www.icbtollfree.com/article.cfm?articleId=1393">http://www.icbtollfree.com/article.cfm?articleId=1393)
In contravention of the Constituency's bylaws, the Registrar Meeting was held in secret; no minutes were taken. Registrars were gathered to be told that IP protections were going to be instilled in the new registry contracts; that congress was "in their pockets" or something to that effect so don't bother complaining; and that if they wanted approval of any new TLDs at all, to lay down and shut up.
Third, the new TLD trademark applications included a number of questions rewording the same question over and over: how do you intend to protect trademarks? (See http://www.icann.org/tlds/app-index.htm.) It was clear that registry applications that did not succumb to these questions with adequate responses, would not be considered for new TLD's or registry status.
ICANN can claim, though, that these protections are the registries' choice, not an ICANN requirement, this facade necessary because ICANN has no policy making authority, and in fact is being questioned by both houses of Congress on this among other issues. (See http://www.icannwatch.org/article.php?sid=59&mode=thread&order=0and
I have said and written all along that the IP lobby used the straw man cybersquatter as the path to control the domain name system - the DNS - for he who controls the DNS, controls the Internet. (Consider for a moment, the few thousand UDRP cases filed since its inception, in ratio to the 15 or 20 million+ domain names registered. Consider as well, rules written by and for the richest and most powerful, to protect them from the smallest and weakest! Also consider that the only actual Consensus Policy that "technical coordinator" ICANN has ever issued, is the UDRP.)
Now, I have to ask you, do you want the internet to be content controlled? Do you want content to be regulated? Perhaps you should be aware that there is pressure from the IP lobby for ICANN descent into copyright enforcement and content regulation.
At the March 23 House Judiciary Committee hearing, Intellectual Property Constituency president Steve Metalitz complained that the proposed Neulevel .biz TLD charter did not expressly exclude companies engaged in copyright infringement from the definition of "bona fide businesses," and he asked that the charter be amended to specifically exclude such companies. Since Neulevel contemplates that its Charter will be enforced through a variant of the UDRP - the Uniform Dispute Resolution Policy, another trademark lobby invention - under Mr. Metalitz's proposal, copyright owners would be able to use the proposed biz charter-enforcement UDRP to shut down companies such as Napster or MP3.com that chose to register in .biz.
There was also discussion that whois should be broadened to include ISP and other data, in order to shut down copyright infringing websites. How long will it be before other powerful groups use whois and the UDRP to shut down sites whose content disagrees with their ideologies?
Remember, "The trademark [read IP] lobby must be placated because of its potential ability and inclination to bankrupt new registrars and wreck havoc on their registrant databases."
So depending on what you want, be careful what policies you endorse. Its a slippery slope ... be careful what you wish for.
Judith Oppenheimer, Publisher
p.s. The new proposed TLD contracts say that ICANN reserves the right to not initially register or not renew domain names "due to reasons reasonably related to (a) avoidance of confusion among or misleading of users, (b) intellectual property, or (c) the technical management of the DNS or the Internet..." (See http://www.icbtollfree.com/article.cfm?articleId=5205.)