General
Counsel's Analysis of RegistryPro's Request for Amendment to .pro Registry
Agreement
To the Board:
On 15 November 2002, I received the attached
request from RegistryPro, Inc., which plans in the first quarter of
2003 to launch the registry for the .pro top-level domain under a registry
agreement it entered with ICANN on 3 May 2002. The request seeks the
revision of the appendices to the .pro Registry Agreement to provide for
it to offer three types of defensive registrations within the .pro top-level
domain (TLD). This memorandum summarizes my analysis of RegistryPro's
request and recommends its approval.
The RegistryPro
Defensive-Registration Proposal
RegistryPro proposes to offer Defensive Registrations according to procedures
that would be similar
to those used by Global Name Registry in the .name top-level domain.
The proposed Defensive Registrations would be offered only through ICANN-accredited
registrars. In summary, the Defensive Registration offering proposed by
RegistryPro would operate as follows:
1. Acting on behalf of customers, accredited registrars would accept
requests for Defensive Registration in the .pro top-level domain. Each
Defensive Registration would be for a four-year period. Defensive Registration
requests would be accepted through registrars on a first-come/first-served
basis, with the opportunity for renewal.
2. Three types of Defensive Registrations would be offered:
a. Premium Intellectual Property Defensive Registrations would be
available to owners of registered trademarks seeking to block a particular
string across all profession-specific sub-level domains (PS-SLDs)
in .pro. (The initial PS-SLDs in .pro are for the accountancy, legal,
and medical professions.) Only strings that are identical to the textual
or word elements, using ASCII characters only, of a trademark owner's
trademark or service mark registration having national effect and
having issued prior to 30 September 2002 would be blocked. Trademark
or service mark registrations from the supplemental or equivalent
registry of any country, or from individual states or provinces of
a nation, would not be accepted. RegistryPro proposes to charge registrars
a fee of up to US$1500 for each four-year Premium Intellectual Property
Defensive Registration.
b. Basic Intellectual Property Defensive Registrations would be available
to owners of registered trademarks (with the same qualifications as
for Premium Intellectual Property Defensive Registrations) seeking
to block a particular string in one specific PS-SLD in .pro (e.g.,
.med.pro, or .law.pro). RegistryPro proposes to charge registrars
a fee of up to US$1000 for each four-year Basic Intellectual Property
Defensive Registration.
c. Standard Defensive Registrations would be available to professionals
having the credentials required to qualify for domain-name registrations
in an established PS-SLD, even though they are credentialed in a jurisdiction
for which a method for verification of professional credentials has
not yet been established by RegistryPro.1
Registrants would be required to provide information that establishes
that they are qualified to register for a .pro name (e.g., the person
or entity is appropriately licensed or accredited in a profession
that is served by one of the .pro PS-SLDs). For example, a credentialed
Japanese lawyer could register a .law.pro domain name defensively
through the Standard Defensive Registration service even in the event
that a verification method has not yet been established for legal
professionals in Japan. The registrant would provide information relevant
to his or her identity and profession (e.g., including licensing information)
in the event there is a challenge to the individual's right to register
defensively. RegistryPro proposes to charge registrars a fee of up
to US$1000 for each four-year Standard Defensive Registration.
3. The registrar's fee to its customer would be established by the
registrar according to market conditions.
4. Defensive Registrations would not resolve in the DNS.
5. Defensive Registrations would have the effect of blocking conflicting
domain-name registrations and other Defensive Registrations. Defensive
Registrations could not be registered where conflicting domain-name
registrations had already been made.
6. RegistryPro proposes to offer the two types of Intellectual Property
Defensive Registrations concurrently with its sunrise registration period,
and the Standard Defensive Registration concurrently with live registration.
7. The qualifications of all defensive registrants (i.e. the holding
of appropriate professional qualifications or a registered trademark)
will be subject to challenge under the .pro Qualification Challenge
Policy.
To implement the proposal contractually, amendments to several appendices
will be required. The most significant amendments required are to Appendices
L and
G; satisfactory
versions of these have already been prepared. Supporting changes will
also be required to at least Appendices C, F, M, and O.
RegistryPro has consulted with its Advisory Board, which as contemplated
by the .pro Registry Agreement is composed of representatives of professional
associations that are representative of the legal, medical, and accountancy
professions (the subjects of the First-Phase PS-SLDs to be offered by
RegistryPro). The Advisory
Board has provided a statement of support for the RegistryPro proposal:
[T]he primary purpose of the Defensive Registration Proposal is to
provide trademark registration holders the ability to ensure that strings
that are identical to the word portions of their trademark registrations
are not available for registration within the .pro top-level domain.
The Defensive Registration Proposal is also intended to provide potentially
qualified registrants (in countries other than those for which a local
verification toolkit will be available at launch) with the ability to
reserve (but not activate) registrations. In this latter situation,
we understand that no Defensive Name Registration will become a live
registration unless and until local verification standards (about which
we will provide advice) are in place and are satisfied by the applicant.
We have reviewed the Defensive Registration Proposal and believe that
it will be helpful in avoiding unnecessary trademark-related and other
conflicts as the .pro top-level domain begins operation.
We support RegistryPro's proposal.
As noted above, the intellectual property parts RegistryPro's proposed
Defensive Registration offering is similar to that provided in the .name
top-level domain. (A similar offering also was offered in .coop, under
the authority delegated to the sponsor of that TLD.) That offering has
presented relatively few controversies.
Considerations
in Evaluating Proposed Amendments
Determining the appropriate process to follow when a registry operator
seeks an amendment to its registry agreement presents countervailing considerations.
These were discussed in my
17 April 2002 analysis of VeriSign's request to modify the .com and .net
registry agreements. In that case VeriSign proposed to offer a new
service (the Wait-Listing Service) which would bear a fee and alter the
rules by which names being deleted are allocated to new registrants. The
underlying considerations in that case are instructive in evaluating RegistryPro's
proposal to offer a defensive-registration service:
On one hand, the registry operator is in a sole-source position in
providing registry services; this position carries with it the potential
for various types of harm to the legitimate interests of others.
On the other hand, requiring a consensus-development process for every
new registry service could stifle innovation. Registry operators should
be encouraged to introduce new services to the marketplace where no
legitimate interests of others are being materially harmed.
To accommodate these countervailing considerations, in considering
requests to amend a registry agreement to authorize charging for additional
registry services, my judgment is that a preliminary "quick-look"
evaluation should be made to determine whether it is plausible that
the legitimate interests of others could be harmed by the proposed amendment.
If no legitimate interest appears in danger of being harmed, then a
streamlined procedure for approval should be followed. If, however,
there are specific reasons to conclude that the legitimate interests
of others are likely to be harmed, then ICANN's existing obligation
to seek consensus whenever possible before acting suggests that it should
invoke the formal consensus development mechanisms that currently exist
prior to any decision by the ICANN Board.
RegistryPro's proposal to offer defensive registrations does not appear
likely to harm anyone's legitimate interests. The purchase of defensive
registrations is optional to the defensive registrants and will be accomplished
only through registrars, thereby promoting registrar-level competition.
Because third-party registrations in .pro have not yet commenced, there
are no existing registrants with legitimate interests that might be put
in jeopardy. Even after registration commences, defensive registrations
will not be permitted that conflict with an existing registration.
In fact, the offering of defensive registrations appears likely to minimize
some of the start-up issues that can arise in a TLD's introduction. Giving
those with registered trademark rights a simple vehicle to block conflicting
registrations should minimize the potential for one type of lawsuit that
can complicate a TLD's introduction. In addition, the proposed offering
of Standard Defensive Regostrations assures fairness to professionals
in jurisdictions not included in .pro's initial launch by allowing them
to reserve appropriate names until means of verifying professional credentials
become available for their jurisdictions.
The conclusion that the amendment is appropriate and unlikely to harm
legitimate interests of third parties, is reinforced by the supporting
statement of the .pro Advisory Board, which was specifically intended
to provide advice from the perspective of credentialed professionals.
Because the Defensive Registration offering is similar in kind to offerings
already in place in other TLDs, and because the offering is unlikely to
harm legitimate interests of third parties, streamlined approval of the
amendment, without resort to the formal consensus-development process,
is appropriate.
Supporting Documentation
Recommendation
In view of the above analysis, I recommend that the Board approve the
amendment to the Registry Agreement as requested by RegistryPro.
Respectfully submitted,
Louis Touton
General Counsel
Note:
1. Credentialed processionals in jurisdictions for
which verification methods have been established would also qualify for
Standard Defensive Registrations.
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Page Updated
02-Dec-2002
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