“The price of freedom is eternal vigilance.” – Thomas Jefferson
As U.S. Citizens prepare to mark the 233rd anniversary of the signing of the Declaration of Independence on July 4th, those in the global domain industry might well consider giving effect to Jefferson’s words, and acting to preserve their own freedom and independence, by taking the time to submit comments to ICANN regarding the Implementation Recommendation Team (IRT) Report and by considering attendance at an upcoming ICANN Consultation on the new gTLD program.
The deadline for submitting comments on the IRT Report has been extended to Monday, July 6th. Background information and links to the final Report can be found at http://www.icann.org/en/announcements/announcement-4-29may09-en.htm; comments should be submitted to irt-final-report@icann.org . While each individual should focus on those aspects of the Report of greatest concern to him, major points that will be made in the comment letter being prepared by the ICA are:
• The IRT operated in violation of ICANN Bylaws requirements for maximum transparency and fair representation. It voted to operate confidentiality; its agenda and membership was controlled by the Intellectual Property Constituency (IPC); and it included no members of the domain investment community. Not surprisingly, its recommendations lack balance and constitute proposed UDRP reform undertaken solely from the perspective of complainants.
• The Uniform Rapid Suspension (URS) proposal would effectively displace the UDRP at all new gTLDs and substantially diminish registrants’ procedural and substantive due process rights. The extreme low cost of filing complaints (as little as $1.50 per domain in mass filings) and the lack of effective sanctions (abusive complainants barred from the URS for one year, and then only after three separate incidents of abuse, with no monetary sanctions or indemnification requirements) would encourage abusive complaint filings. There is also a lack of effective or affordable substantive appeals procedures for registrants who believe that their domains have been unfairly suspended. Further, trademark interests have already voiced the goal of imposing the URS on incumbent gTLDs, including .com, soon after its adoption for new gTLDs.
• Other report recommendations, such as the Globally Protected Marks List (GPML), appear to be both infeasible and have no basis in existing trademark law; their adoption would impermissibly expand ICANN’s function to that of a DNS treaty organization or legislature.
• While the domain investment community is willing to engage constructively with trademark interests, that must occur through a standard but expedited ICANN Policy Development Process (PDP) that is open to all affected interests, transparent in its operation, and balanced in its membership and recommendations. This can result in UDRP reforms applicable to both new and incumbent gTLDs that provide redress to the current problems and abuses faced by both registrants and complainants. It would be an unacceptable precedent to allow a single ICANN constituency to control a short term, ad hoc group and have its skewered policy recommendations implemented absent further review and input by the broad ICANN community.
The close of the comment period is not the end of this process. On Monday, July 13th ICANN will hold in New York City the first of four full day global consultations on the new gTLD program, free and open to all who have pre-registered, with a focus on trademark protection and the potential for malicious behavior. The NYC consultation will be followed by one in London on July 15th; Hong Kong on July 24th; and Abu-Dhabi on August 4th. Information about these consultations and a link to the pre-registration page can be found at http://www.icann.org/en/topics/new-gtlds/consultation-outreach-en.htm. We know that the trademark community is actively encouraging its members to attend and speak out at these consultations, so it is vitally important that the domain investment community, as well as the many other constituencies and organizations that have raised strong concerns about the IRT process and recommendations, be in attendance as well.
ICANN Counsel Philip Corwin is planning to attend the NYC consultation and would appreciate being advised by those in the domainer community and other groups concerned by the IRT Report who are planning to attend – he can be reached by e-mail at pcorwin@butera-andrews.com.
Freedom is never free. Please take the time this weekend to send a comment to ICANN, and please consider attending one of the upcoming global consultations – because those who would diminish registrant rights are already planning to do so.