The IRT has released a draft report. The composition of the team is strongly biased towards North American intellectual property interests. Unfortunately, individuals were not represented. Neither were potential new gTLD operators. There was only one US-based registrar present and only one incumbent US-based registry. In summary, this report is partial, both because it does not cover the whole picture and because it is strongly biased towards the interests of a specific group.
Quite confusingly, it was published on 24th April, with a 30 day comment period. However, one needs to comment before 6 May if it wants the IRT to consider the comments. Strange tactics.
As others have pointed out, the effective 7 day comment period over this draft report is way too short. It may be wise that the ICANN board does not consider this report before the community has had a real opportunity to comment.
I totally support Michele Neylon’s comments on the whois model contemplated by this report. It would be in breach with many privacy regulations throughout the world. Further, if the ability to comply with the whois recommendations, as set forth in this report, would become one of the evaluation criteria for the new gTLD applications, this would favour registry operators located in countries with little or no privacy laws. This would put at a competitive disadvantage those businesses which need to comply with local laws. Questions to the IRT:
- Did the IRT consider if their recommendations regarding the whois were actually compliant with relevant legislation throughout the world ?
- Will the ability to comply with the whois recommendations, as set forth in this report, be a part of the evaluation process of new gTLD applications ?
Regarding the IP clearinghouse, it is stated that “The recommendation should not result in unnecessary or undue costs, either to trademark owners or to legitimate users and consumers”. Does this mean that the registry operators will have to bear all the increase of their operating costs for protecting third parties interests? The net effect of this is that operators will need to shift the increasing cost among all their customers, including those who have no IP rights to protect. This will mean raising the unit price of domain names for every customer, making the TLD less attractive and potentially be a cause of registry failure. In the case of community-based TLDs that focus on a limited market through a not-for-profit model, this may simply mean that the potential costs and legal risks may be disporportionate for them to bear.
There is a major concern that different levels of protection for marks may put the registry operator in a position to have to arbitrate between second level domain name applications and become legally involved in disputes between third parties. Unlike trade marks, which can be multiple according to industrial sectors and geography, domain names are by nature globally unique. As technical operators, registries should have no business in deciding who is the legitimate intellectual right owner.
If such IP clearinghouse system is put in place, it should, at a minimum:
- Be automated and implementable at a marginal cost by registries and registrars
- Exempt the registry operators from further legal consequences if it has demonstrated that it queried the database at registration time.
In addition to the above, I think it would be only fair that whatever policies are decided as a consequence of this process are also made mandatory for the existing gTLDs. The new entrants should not be the only ones having to bear the weight and costs of these policies.