On Thursday, March 5, 2009 the ICANN Board listened to the views and concerns of attendees at its Mexico City meeting. The full transcript of the Public Forum can be found at: http://mex.icann.org/files/meetings/mexico2009/transcript-public-forum-05mar09-en.txt.
ICA Counsel Philip Corwin made the following remarks on behalf of ICA’s members (note: transcript edited to correct typos and for grammar and to provide clarity) —
->->PHILIP CORWIN: Good morning. I am Philip Corwin. I am counsel to the Internet Commerce Association, which is a trade association of domainers. We have members from around the globe, and we are a member of the ICANN business constituency.
Domainers are entrepreneurs. We view the new gTLD process as one that promotes entrepreneurship.
I will say that among our membership there is divided opinion on the proposal. Some are against it, some have mixed feelings, and some have talked to me about preparing applications for new TLDs. But on the three issues I am going to raise quickly, there is a very strong consensus among our members.
The third — the first one is pricing.
There’s great — We view generally that there’s going to be blow-back. Whatever rules are adopted for new gTLDs will become the rules for incumbent gTLDs as well. And I think everything I have heard at this meeting just reinforces that impression. The issue of [inadequate gTLD] competition was raised with ICANN by the U.S. Department of Commerce — I mean, the Department of Justice in December.
I have asked ICANN staff several times at this meeting whether the lack of price controls in new gTLDs would permit differential pricing at the incumbents, which will be the dominant gTLDs, at least for the foreseeable future, no matter what this does in the long term for competition. And I get very squishy answers.
The answer is kind of “not necessarily”, but whatever ICANN’s understanding or intent is on this issue, there is litigation. We all know that the current dot com contract came out of a settlement of litigation.
So we think at a minimum, even if there are not going to be price controls, there should be a prohibition of differential pricing. That whatever the price is for a domain at a gTLD, it should be the same price for everyone because if registry operators can differentially price, they become tax collectors, and they are taxing the success of domains, which had established a brand at a certain location, and it’s not very easy to move to another registry and continue to be successful.
Another issue is geographic controls. Frankly, we believe — we understand the political pressures from the GAC. We think you have conceded a bit too much already in that each country has its own ccTLD, and there’s no trademark protection for map names. But whatever the rules are at the top level, we believe it needs to be made clear — and I have been satisfied by the answers from staff at this meeting, but we would like to see it nailed down in writing that at generic — new generic top-level domains, that, for example, if there was a dot beach new gTLD, that if some entrepreneur wanted to register Hawaii.beach or Rio.beach Australia.beach or Riviera.beach, that there is no requirement to get the endorsement or non-objection of that from country or city or region, because, frankly, all that does is introduce politics into the domain process where you need a good lobbyist or something else to get that endorsement.
The last thing is protection for trademark owners. We absolutely support processes and procedures that protect the legitimate interest of trademark owners in the new gTLD space, with two caveats. The first is that we need to be careful that it protects their existing rights under national and international law and doesn’t give them rights in the DNS that don’t exist under existing law. The second caveat is that when we get beyond the first level down to the second level, my members have many concerns about the UDRP process. Many of them are the same concerns I hear articulated by trademark interests. But to the extent that there is going to be any new protections or process at the second level, it has done very carefully so that the existing due process rights, legitimate rights of domainers, of registrants, are adequately protected.
The UDRP, in and of itself, could be a subject for a very extensive and complicated review to deal with all the problems that have arisen over the last dozen years in the application of the UDRP, and we don’t want to see extensive and far-reaching changes in protections at the second level kind of as an afterthought in the new gTLD process.
So wrapping up, we think there’s pricing issue. Differential pricing is very important. And in protecting the interest of nations on geo domains and trademark interests on their trademarks, be careful that you don’t go too far because the result will be to not only injure the rights at existing TLDs but, frankly, make so many domains off limits or very complicated that you will inhibit entrepreneurial development of the new gTLDs.
Thank you very much for your attention.
->->PETER DENGATE THRUSH: Thank you for making those six or seven points so concisely.