Did you have any idea that registering idea.gifts might be a prohibited activity because some people think it’s more likely to be acquired by those seeking to mimic the International Development Association than by a new business start-up serving those Internet users searching for birthday gift ideas? Do you believe someone is more likely to register eco.shop as a website for ecologically beneficial products or to cybersquat  the Economic Cooperation Organization? Does imo.cars have more value as an “In My Opinion” blog website about automobile industry developments or as a spoof site targeting the International Maritime Organization? And if you saw an online ad for iso.love would you surmise that it’s a dating website for those “In Search Of” romance rather than for the very small group that is sweet on the International Sugar Organization? Finally, when you see “AU” do you think of Australia, the African Union, or American University?

We think the whole notion that these and hundreds of other acronyms should be barred from registration at the top or second level of the DNS is embl-ematic (European Molecular Biology Laboratory) of serious overreach. Yet a recently published ICANN draft “Final Report on Protection of IGO and INGO Identifiers in All gTLDs” suggests just that and more. What started out as a reasonable attempt to protect the well-known and sometimes abused names of Red Cross/Red Crescent affiliates and the International Olympic Committee has now morphed into a metastasizing  proposal to establish unnecessary and overbroad prohibitions against domains that happen to be the acronyms of obscure International Governmental Organizations (IGO) and International Non-Governmental Organizations (INGO) that few people have ever heard of. Even worse, the proposal would cover not just new gTLDs but incumbents – to the extent that any of the IGO/INGO acronyms have not yet been registered at .Com or any other existing gTLD it would institute a ban against new “front running” registrations, and make any deleted acronym would be permanently ineligible for re-registration. And, while not in the official proposal, there are some participants in the ICANN process who actually advocate expropriating all existing domains consisting of these acronyms!

Rather than see ICANN embrace unjustified overkill, ICA has just proposed a more moderate means of alleviating reasonable concerns about potential misuse of IGO/INGO names.

Our pragmatic approach would:

• Prohibit registration of the exact full name of any IGO or INGO at the top or second level of any new gTLD.
• Permit registration of those full names in the Trademark Clearinghouse so that the IGO & INGO organizations benefit from the associated benefits of sunset registrations and generation of a Trademark Notice against exact match registration attempts.
• Address the highly unlikely possibility of an attempt to abusively register an IGO or INGO acronym at the top level through a new gTLD application via ICANN’s multiple objection processes.
• Permit IGOs and INGO’s to use the UDRP or URS against any second level acronym domain registration where there is actual evidence of bad faith registration and use.
• Other than permitting a UDRP filing, keep hands off all incumbent gTLDs.

There are simply too many organizational and individual names that an acronym can stand for to justify a blanket prohibition against their registration at new gTLDs. Plus, the very specific labels provided by hundreds of new general use new gTLDs will generally have little or nothing to do with the activities of an IGO or INGO, so the potential for successful cybersquatting is close to zero.

Let’s hope that ICANN adopts our common sense suggestions rather than caving in to calls for excessive protectionism.

Our letter follows:

VIRTUALAW LLC

Philip S. Corwin, Founding Principal
1155 F Street, NW  Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

This email address is being protected from spambots. You need JavaScript enabled to view it.

                                                                                                October 11, 2013

By E-Mail

Internet Corporation for Assigned Names and Numbers

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

Re: Draft Final Report on Protection of IGO and INGO Identifiers in All gTLDs

Dear ICANN:

I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.

This letter addresses the draft “Final Report on Protection of IGO and INGO Identifiers in All gTLDs” (Report)  posted for public comment on September 20^th [1]. The Purpose of the comment period is to address the draft Final Report of the GNSO Policy Development Process Working Group (“PDP WG”) on the Protection of International Governmental Organizations (IGO) and International Non-Governmental Organizations (INGO) Identifiers in all gTLDs.

Executive Summary

The primary purpose of our letter is to comment on those provisions of the Working Group Recommendations contained in Section 5.6 of the draft Final Report, titled “Consideration of Recommendations on Incumbent gTLDs”[2]. Those recommendations could affect existing acronym domains held or managed by ICA members and other current registrants at incumbent gTLDs. However, we also address several Report Recommendations relevant to new gTLDs.

In regard to the top level of new gTLDs, we generally favor full protection for exact matches of the full name of all the IGOs and INGOs addressed by the Report by barring their registration by third parties — but we oppose such blanket, registration-blocking  protection of exact matches of their acronyms. We doubt that any party would make the very substantial time and monetary investment to apply for a .acronym registry with the intent of confusing the public in regard to its ownership, sponsorship, or purpose, but in the highly unlikely event that such a situation were to occur it could be readily addressed by existing objection processes for new gTLDs as well as by GAC advice.

In regard to the second level of new gTLDs, we generally favor full protection through registration blocking for exact matches of the full name of all IGOs and INGOs addressed by the Report  –but we oppose blanket protection of exact matches of their acronyms as any misuse could be addressed by existing second level arbitration procedures.

In regard to the Trademark Clearinghouse (TMCH), which is only relevant to new gTLDs — we would support inclusion in the TMCH of exact matches of the full name of all the IGOs and INGOs addressed by the Report in the – but only ifthe Trademark Notice generated by an attempt to register such a name differentiates between trademark rights and the “rights” held in such name by an IGO or INGO that has not trademarked its name .

We oppose inclusion in the TMCH of the exact matches of acronyms of all the IGOs and INGOs addressed by the Report. We do not oppose allowing affected organizations to utilize the curative rights of the UDRP (at new or incumbent gTLDs) or URS (only available at new gTLDs at this time) dispute arbitration mechanisms if they believe that a particular domain using such exact match has been registered and used in bad faith; that is, in such a manner as to deceive and mislead the public that the particular website is being operated by or has been endorsed by the relevant IGO or INGO. As the UDRP currently exists solely to protect trademark rights, and as the URS is a narrow supplement to the UDRP with a similar focus on trademarks and a higher burden of proof, care must be taken in the implementation of such an expansion of their utilization to precisely define the exact nature and scope of the rights that are eligible for such arbitration actions and the factors to be considered by arbitration panelists.

Finally, in regard to any incumbent gTLD, while we appreciate and support the Recommendation that any currently  registered domain matching a protected IGO or INGO identifier “shall be handled like any existing registered name within the incumbent gTLD regarding renewals, transfers, sale, change of registrant, etc.”, we strongly oppose the adoption of any policy that would:

• Define or create a mechanism against the specious and completely speculative possibility of “front-running” of domain registrations of IGO or INGO identifiers.
• Exclude such a domain from any add/drop activities by the registrar in the event it becomes eligible for deletion, or make such deleted domains ineligible for future re-registration.
• In any way sanction the involuntary seizure or deletion of any identifier exact match acronym domain that is registered now or may be in the future at any incumbent gTLD.

Again, as we do not oppose allowing IGOs and INGOs to utilize the UDRP against exact match identifier domains registered at incumbent gTLDs, we believe that any proposed policy going beyond access to such arbitration procedure availability is unnecessary overreach that incorrectly assumes bad faith registration and public confusion where none is likely to exist.

Discussion

The ICA has been monitoring and is fully cognizant of the concerns of the Governmental Advisory Committee (GAC) in regard to the potential registration and misuse of the names of Red Cross/Red Crescent affiliated organizations, the International Olympic Committee, and other IGOs and INGOs at new gTLDs; as well as the consideration of such concerns by the ICANN Board and the Generic Names Supporting Organization (GNSO).

We condemn any registration of the exact match full name of any listed IGO or INGO at any new gTLD by any party other than the particular organization associated with and conducting its activities  under such name, and therefore support blocking of exact full name match domains of all the IGOs and INGOs addressed by the Report by any unaffiliated third party, as well as their inclusion in the TMCH; such support is conditioned on the accompanying requirement thatthe Trademark Notice generated by an attempt to register such a name differentiates between trademark rights and the “rights” held in such name by such organizations that have not trademarked their official name, so that the potential registrant receives an accurate description of the nature and scope of the rights in question[3].

However, we see absolutely no reason to prevent the registration at new gTLDs of exact match acronyms of the hundreds of IGO and INGO acronyms  associated with the potentially protected organizations, at either the top or second level. Such acronyms will often also be exact matches for many other companies, organizations, and individuals around the globe who may wish to register them at relevant new gTLDs and may even possess trademark rights in them; and they may also be sought by other registrants for completely legitimate usage that do not suggest any affiliation with or endorsement by the associated IGO or INGO. Such potential registrants have a legitimate right to such registrations and should be able to acquire acronym domains in new gTLDs as long as the registration is not a bad faith attempt to confuse Internet users in regard to the identity of the registrant and the uses of the website. Further, given the hundreds of general registration gTLDs that will be opening for registration in the near future, there is little reason to think that any Internet user would be seeking to find an IGO or INGO website at a gTLD where the name of the string (e.g., .ninja or .cars) has no possible association with the activities of such organization. While IGOs and INGOs should have protection of their full official name, blocking hundreds of acronyms across all new gTLDs cannot be justified.

Further, since we do not oppose allowing affected organizations to utilize the curative rights of the UDRP or URS if they believe that a particular acronym domain using such exact match has been registered and used in bad faith, we believe that providing access to these rights protection mechanisms is more than sufficient to address what we believe will be the rare cases where bad faith registrants attempt to make misleading and harmful use of such acronym domains. The burden placed on such organizations – which in most cases should be able to quickly and  successfully suspend an offending domain through a URS filing – is so minimal that a blanket prohibition or warning system for their acronyms would not be justified.

Finally, in regard to incumbent gTLDs, we would note three key points:

• Short acronym domains at .Com and other incumbent registries tend to have very substantial secondary market valuations for legitimate good faith usage by individuals and organizations.
• So far as we are aware, the abusive bad faith usage of such domains is infrequent – and to the extent that it does exist, can be adequately addressed by making the UDRP accessible to IGOs and INGOs.
• IGOs and INGOs in all likelihood have already exercised their ability to register full name or acronym domains at existing and appropriate gTLDs, especially .Org and .Int.

Therefore, while we appreciate the Report’s recommendation that currently registered acronym domains “shall be handled like any existing registered name within the incumbent gTLD regarding renewals, transfers, sale, change of registrant, etc.”, we must oppose any proposed policy that would prevent the registration of any currently unregistered exact match acronym domain at an incumbent gTLD (especially as we also oppose such blanket prohibition at new gTLDs). To label such potential registrations as worrisome “front-running” is to ascribe to them a nefarious purpose without any reasonable grounds for doing so. Similarly, an existing exact acronym match domain that becomes eligible for deletion should not be barred from subsequent re-registration in the future; there is no demonstrated reason to shrink the availability of such second level domains at incumbent gTLDs. Further, the ironic effect of such a re-registration ban would be to prevent acquisition of the domain name by the IGO or INGO with which it is associated.

Finally, while it is not currently being recommended, we would strongly oppose the future adoption of any policy that would in any way sanction the involuntary seizure or deletion of any identifier exact match domain that is registered now or that may be in the future at any incumbent gTLD. Such action would amount to a taking without compensation of a domain constituting a valuable intangible asset. While ICANN is not a U.S. government agency its U.S. origins, non-profit corporate status, and public purposes would make the sanctioning of such expropriation of private property highly inappropriate and controversial.

Conclusion

We hope that ICANN finds our views on this matter to be useful and informative.

Sincerely,

Philip S. Corwin

Counsel, Internet Commerce Association

Appendix I – Relevant language of draft Final Report regarding Incumbent gTLDs

5.6 Consideration of Recommendations on Incumbent gTLDs

This section considers the proposed recommendations from the previous sections and if they were adopted as consensus policy, how the implementation of the policy may impact existing gTLDs delegated prior to 2012. WG deliberations determined that no policy implications existed; however, several aspects should be considered when any such policies regarding IGO-INGO protections are implemented for incumbent gTLDs.

From IGO-INGO Charter:

“…determine how incumbent registries should meet the new policy recommendations, if any.”

Scope and Assumptions:

• Existing gTLDs Only (Delegation pre-2012)
• Only second-level proposed protection recommendations apply
• Assumes that the present WG recommendation proposals are supported and adopted for new gTLDs

Principles of Implementation:

• Any policies adopted for new gTLDs shall apply equally to existing gTLDs to the extent they are relevant (for example second-level IGO-INGO protections utilizing TMCH, sunrise, claims will not apply).
• For clarification purposes, second-level names matching a protected identifier, as identified via any consensus policies defined here, and that are not registered within an existing gTLD, shall be immediately reserved from registration in the same manner as for new gTLDs. Due to the time lag between the date the Working Group and GNSO Council adopts recommendations, and the date the recommendations are implemented, there is a possibility of front-running, whereby some identifiers not previously registered could be registered before the policy is in effect. A mechanism to guard against front-running should be defined, such as establishing the date these recommendations were adopted by the Working Group or GNSO Council as the measurement date that determines how a domain name matching a protected identifier is treated.
• A second-level registration within an existing gTLD matches a protected identifier, as identified via any consensus policies defined here, and the registration of said name, if registered prior to implementation of protections or any such cutoff date as may be determined, shall be handled like any existing registered name within the incumbent gTLD regarding renewals, transfers, sale, change of registrant, etc.
• If a second-level name that matches a protected identifier, as identified via any consensus policies defined here, and becomes eligible for deletion after defined grace-periods, the name shall not be eligible for any drop/add activities by the Registrar. At the time the name is deleted, the name shall not be reallocated by the Registry and shall be deemed ineligible for registration per the defined policy.
• Where policy changes to recover protected identifiers of registered second-level names within an existing gTLD deviate from current policy, registry & registrar indemnification should be considered.
• For clarification purposes, second-level names matching a protected identifier that are also registered by a party other than the protected organization and bad faith use vis-à-vis the protected organization is suspected, the protected organization may have access to RPMs like the UDRP, pending a PDP to address how the IGO-INGO organizations may access RPMs.