Letter from Gert Schmitt-Nilson to John Jeffrey
Date: October 1, 2004 10:08 AM
From: Gert Schmitt-Nilson
To: John Jeffrey
Subject: sTLD RFP.
Dear Mr. Jeffries,
FICPI Response to ICANN's Request for Comment Regarding Proposed New Sponsored Top Level Domains
FICPI, the International Federation of Intellectual Property Attorneys, Broadly representative of the free profession in private practice, submits the following comments in response to the call for comment in respect of proposals for new sponsored top level domains (sTLDs). FICPI asks the ICANN Board to consider and assess the following factors when making a decision as to which sponsored top level domains (sTLDs) should be approved. Similarly, FICPI asks ICANN to include these factors when establishing the contractual terms to cover the new sTLDs given access to the Root.
While recognizing the strong emerging concern as to privacy, FICPI urges that in the case of each new TLD there be a renewed effort to ensure that full and accurate information is obtained from each domain name holder. The foregoing is necessary to ensure that the sTLD WHOIS database is a reliable source of information for given authorized access. The importance of accurate and reliable WHOIS information is particularly critical in respect of the less well defined proposed sponsored TLDs since the potential great diversity of participants could mean less scrutiny as to whether a domain name holder has met the requirements established by the particular group.
We suggest it would be appropriate to include contractual terms to deal with the requisite flexibility attributable to differing privacy legislation in various jurisdictions. It has been suggested that perhaps different "classes" of persons should have different levels of access to WHOIS information with advertisers at the "low" end, or perhaps even restricted entirely. This should serve to help stem the tide of spam which is having an increasing impact on business in terms of resources required to deal with unwanted and unrequested commercial e-mail. We ask the Board to remain mindful of the fact that Intellectual Property Agents have a legitimate need to access accurate WHOIS information to defend IP rights. Perhaps a method of establishing "legitimate interest" that is simple and reasonably foolproof should be derived so that IP practitioners are able to get the info they need quickly. We believe that it is possible to achieve an appropriate balance in respecting privacy while at the same time ensuring that the authorized agents of those whose intellectual property interests are being harmed have access to adequate information to enable contact of the entity responsible for the harm.
We suggest that the time has come for ICANN to commence consideration and study of the advisability of fixing, by contract, the jurisdictions in which a domain name or UDRP dispute can be appealed. For example, the country of the DN holder, the country of the Objector/Plaintiff or the country in which the alleged abuse is taking place, including the country where the Registry is problematic as it could lead to ''advanced" or "reverse" forum shopping. FICPI would of course willingly participate in any such study.
It is clearly a concern of all that a Sponsored TLD be representative of, and responsive to, the needs of a pertinent and definable group or industry segment. Sponsored TLDs should not be an exclusive club which is effectively a monopoly to be wielded to the detriment of an entity or person who may arguably fall within a group or for that matter wielded against the general Public. We believe that there is an onus upon ICANN to periodically monitor any sTLD with a view to ensuring that best practices are established. These best practices which meet requirements imposed by ICANN upon grant of the sTLD must continue after the domain has been established in order to ensure a system which is fair to all. Additionally, some sort of appeal, perhaps to an Ombudsman, should be available if an entity appears to meet established requirements but is refused a Domain in the sTLD.
Finally, it is essential that there be renewed efforts to design rules or contractual obligations of sTLDs to limit if not prevent abusive registrations. This issue must in our view be dealt with prior to the grant of a sponsored top level domain.
FICPI wishes to thank the ICANN Board for this opportunity to share its thoughts on the granting of new sTLDs. FICPI would be pleased to respond to any comments or questions the Board may have and to offer assistance in respect of further consideration of any of the topics mentioned above.
Dr. Gert Schmitt-Nilson
Assistant Secretary General of FICPI