Butera & Andrews Attorneys At law 1301 Pennsylvania Avenue, N.W. Suite 500 Washington, DC 20004-1701 PCorwin@Butera-Andrews.Com <mailto:PCorwin@Butera-Andrews.Com> By E-Mail March 15, 2007 Board of Directors Internet Corporation for Assigned Names and Numbers (ICANN) 4676 Admiralty Way, Suite 330 Marina del Rey, CA 90292-6601 Re: ICANN Opens Comment Period on PIR Amendment to Implement Approved Registry Service Dear Members of the ICANN Board: This comment letter is submitted by the Internet Commerce Association (ICA) in regard to the February 22nd ICANN notice, "ICANN Opens Comment Period on PIR Amendment to Implement Approved Registry Service". ICA is a not-for-profit trade association. Its membership is composed of individuals and companies that own, buy, sell, resell, host and manage Internet traffic emanating from domain names. ICA's mission is to promote the values and benefits of Internet traffic, including the value of purchasing direct navigation traffic, to the press, advertisers, and governmental authorities on a global basis. ICA stands for Internet prosperity and entrepreneurship and for fairness among regulators and in the dispute resolution process, taxation, and treatment under other relevant laws, regulations, and agreements in the U.S. and other nations. ICA provides a unified voice for a membership with common interests and a diverse collection of experience in the Internet traffic marketplace. The website ownership community represented by ICA has risked large amounts of capital in order to develop domain names as the first new form of property of the virtual age. These professional registrants are a major source of the fees that support registrars, registries, and ICANN itself. The ICA supports adoption of the Excess Deletions Fee proposed by the Public Interest Registry (PIR) for .org domain names. This new policy would impose a "restocking fee" of $.05 (5 cents) for registrations deleted during the five day add/drop grace period when the percentage of such deletions by any single registrar exceeds ninety percent of the initial registrations made within a calendar month. The ICA recognizes that repetitive mass registration of domain names (DNs) for the purpose of determining their pay per click (PPC) advertising viability (know as "domain tasting") can lead to abuse of the five day grace period. In particular, the ICA opposes "domain kiting", in which particular DNs are registered and deleted for sequential five day periods within the registry's add/drop grace period, thereby allowing for de facto DN ownership absent its cost. We believe that the PIR proposal is a reasonable policy designed to address such abuse and clearly demonstrates that individual registries can readily take action to address the legitimate concerns that have been raised by the practice of excessive DN "tasting". ICA would oppose any amendment of the trademark law of the United States or any other jurisdiction, or any alteration of international conventions relating to trademarks, when the legitimate complaints of trademark holders can be readily addressed by responsive registry policies. The ICA participated in the Domain Name Marketplace Workshop that took place on December 6, 2006 during the ICANN meeting in Sao Paulo, Brazil. As a review of the transcript of that workshop (http://www.icann.org/meetings/saopaulo/captioning-dnmarket-06dec06.htm <http://www.icann.org/meetings/saopaulo/captioning-dnmarket-06dec06.htm> ) makes readily apparent, there is no consensus in regard to proper definition or actual extent of abusive "tasting", the actual economic or other harm suffered by various parties as a result of the practice, or the most efficacious means of addressing true abuse. Given that lack of consensus, the ICA supports experimentation by the registries and registrars with various approaches to this issue. In this regard, we are concerned by the March 12th Press Release of the World Intellectual Property Organization (WIPO), "Cybersquatting Remains on the Rise with Further Risks to Trademarks from New Registration Practices" (http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html <http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html> ). In that Release, WIPO Deputy Director General Francis Gurry is quoted, "Practices such as 'domain name tasting' risk turning the domain name system into a mostly speculative market. Domain names used to be primarily specific identifiers of businesses and other Internet users, but many names nowadays are mere commodities for speculative gain." In this statement, Mr. Gurry clearly exhibits a pronounced bias in favor of expansion of the rights of trademark holders to the detriment of the equally legitimate rights of domain name owners who have risked considerable capital and labor to develop their DNs as valuable properties monetized through the provision of content and associated advertising. ICA members do not support trademark infringement, but they resent having a senior executive of the lead arbitrator of UDRP cases characterize their business as one of "speculative gain". The 25% increase in so-called cybersquatting cases cited by WIPO can just as easily be explained by a growing realization among trademark holders and their attorneys that DNs constitute virtual real estate with rising legitimate economic value and that many DN owners lack the sophistication or the financial means to defend their legitimate rights in a Uniform Domain Name Dispute Resolution Policy (UDRP) proceeding or related legal action. In other words, we would like to see WIPO express concern about the growing incidence of reverse domain name hijacking being carried out by trademark holders and their counsel that is equivalent to its concern about intentional cybersquatting. While trademark holders do have legitimate rights, those rights do not include a claim upon every possible typographical variation of their trademarked names nor do they include a right to abuse the UDRP or related legal processes. ICA is developing policies to assure that the UDRP process maintains an appropriate balance between the rights of trademark holders and those of DN owners and we will forward those recommendations to your attention when they are ready for your review and consideration. We appreciate the opportunity to comment upon this matter. Sincerely, Philip S. Corwin Counsel, Internet Commerce Association Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (voice)/-6876 (fax) /202-255-6172 (mobile) "Luck is the residue of design." -- Branch Rickey