In the context of the Post Delegation Dispute Resolution Process (PDDRP), the World Intellectual Property Organization (WIPO) made a comment (attached) which, while registry operator specific, has a bearing upon the issue. The WIPO proposal, if adopted, would hold a registry operator accountable for trademark infringement that occurs within a TLD if it "knowingly permitted, or could not have reasonably been unaware of" infringing domain names within the TLD. This is sometimes referred to as "Willful Blindness" and is used by trademark owners to hold third parties liable for contributory trademark infringement. Support for this proposal came from the International Trademark Association, the Intellectual Property Constituency of ICANN, the International Olympic Committee and other trademark owners and associations. Quoting from Jeff Neuman's note to the Temporary Drafting Group Legal (tdg-legal) mailing list of May 5th, 2010: "In the United States, with respect to whether or not domain name registries and registrars can be liable for contributory trademark infringement is well settled. The 1999 case of Lockheed Martin v. Network Solutions [1] controls. In that case, the United States Court of Appeals for the Ninth Circuit found that Network Solutions was not liable to Lockheed Martin for contributory infringement as a matter of law because it was acting merely as a domain name registrar in registering domain names. More specifically, it found that in order for a service provider to be liable under the doctrine of contributory infringement, the service provider must exercise sufficient control over the infringing conduct itself. See also Tiffany v. Ebay [2] decided on April 1, 2010. If a trademark owner cannot establish that a service provider has sufficient control over the infringing conduct, then whether or not the service provider knew, should have known or turned a blind eye towards the infringing conduct, is irrelevant." I suggest that asking the set of registrars which currently control the Registrar Stakeholder Group's (RrSG) process if they would like a registrar to held accountable for trademark infringement that occurs within the TLDs it provides registrations if it "knowingly permitted, or could not have reasonably been unaware of" infringing domain names for which it is the registrar of record would have a similar outcome to that provided by the set of registries which currently control the RySG process. A defect in the argument offered by NeuStar to the WIPO proposal that wilfull blindness should be the sole basis for direct or contributory infringement was shown by the authors of the .C variant of the Conficker distributed system. The .C variant attempted to create rendezvous points (domain names) in more than one namespace. The proper scope of the issue is not the isolated affirmative acts of any contracted party, but what contracted parties can reasonably know. The NeuStar defense, if applied to the .C fact pattern, would hold a registry operator or registrar immune from any claim arising from the registry operator's or registrar's failure to block the portion of the algorithmically predicted rendezvous point buys over which the registry operator or registrar has control by the .C attack engine for command and control purposes of a botnet consisting of hundreds of thousands of covertly repurposed computors, if the immediate conduct of the .C system was trademark infringement, aka "cybersquatting". What registry operators can reasonably know, having access to their own, and any and all other gTLD zone files through the zone file bulk access right, is patterns of registration utilizing one or more registrars, and one or more namespaces. I believe that that is the expectation of Derek Smythe. The issue of contracted party conduct and liability, under national law or private contract, is not new, and my participation in an ALAC regional organization is a few weeks short of six months, so I have little idea of prior deliberation on the issue by ALAC or its regional organizations. However, the interest of the contracted parties, or rather, those amongst the contracted parties which manage to be influential on issues which potentially affect their pecuniary interests should not be limiting, nor should any particular national law, on the deliberation of what is in the public interest, by the ALAC. I think a useful and interesting "step" to take, one not in the direction of "WHOIS", is determining what pattern(s) of conduct, by a contracted party, rises to the level of "wilfull blindness", where ever there is a public interest. This necessarily includes the area of trademark infringement. This would form a basis for advice the ALAC may provide. Eric [1] http://scholar.google.com/scholar_case?case=15162974496362566611&q=194+F.3d+... [2] http://www.ca2.uscourts.gov/decisions/isysquery/65a5a693-7086-4d06-a0d2-13e6...