[council] FW: [tld] M rodenbaugh: proposed BC public comments on new TLDs

["Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>]

The Business and Commercial Users' Constituency is deeply concerned
about abusive registrations in existing TLDs and in new TLDs.  The GNSO
Task Force's Final Report re New TLDs does very little to alleviate
these concerns that well-known, large scale cybersquatting practices
will expand unabated into new TLDs.  Part of the reason for this
omission is that solutions to abusive registration practices need to
address both existing and new TLDs, and this Task Force was not scoped
to address issues in existing TLDs.

 

However, as the BC suggested in its Constituency Impact statement to the
Task Force (Part B, Part 7 of the Final Report), we remain highly
concerned that the proposed new TLD policy seems to ignore the problem
of abusive registrations almost entirely.  As we said in our
Constituency Impact Statement, without substantial policy development
designed to curb abusive registrations, we foresee, upon introduction of
more new TLDs, a world of increased opportunity for abusive competitive
practices and fraud -- including typo-squatting, phishing, malware
distribution and other forms of bad faith activity.  We then outlined a
number of recommendations that could help to control these abusive
practices:

*       graduated sanctions for contract non-compliance by Registries
and Registrars 
*       avoiding confusingly similar domain names 
*       avoiding infringement of third party prior rights especially
trade mark rights 
*       clear, quick and low-cost procedures for dispute resolution and
the removal of bad faith registrations 
*       measures to prevent abuse of personal data or other
commercially-valuable data. 

 

The Task Force has recommended that new TLDs not be confusingly similar
to existing TLDs, but otherwise has largely avoided these
recommendations and the issue of cybersquatting generally.  It remains
to be seen how this confusing similarity standard for TLDs could be
adjudicated in practice, given the existing similarity of many existing
TLDs (e.g. .com, .co, .cm,  .cn, .ch ).  The Task Force did not consider
any other policy recommendations to attempt to curb abusive
registrations.  Rather, the Task Force has agreed to state potential
Rights Protection Mechanisms ("RPMs") as Implementation Guidelines which
could be employed by new TLD operators at their option.  A small ad hoc
group is working to draft those RPMs, but it is unclear whether new
registry operators will choose to employ them since they will have no
obligation to do so.

 

Consequently, unless ICANN tackles the abusive registration problem
directly and implements new policies prior to public availability of
domains in any new TLDs, we expect that new TLDs may have a
substantially negative impact on business users from:

*       user confusion about site ownership and subsequent reputational
damage to well-known businesses 
*       costs from diminished user confidence in e-commerce 
*       wasted costs of defensive registrations and online brand
monitoring and enforcement 
*       wasted costs in legal and other actions to prevent avoidable
criminal and cyber-squatting activity 
*       wasted costs and fraudulent losses to businesses and their
customers from phishing and malware sites. 

 

We hope that the new TLDs will only comprise a relatively small part of
the overall cybersquatting problem.  The problem appears likely to
remain much more substantial in existing TLDs, particularly .com.
Strong action is needed to begin to curb that existing problem for
online businesses, and ensure it is not replicated in new TLDs.  

 

We urge ICANN to continue its work to address domain tasting, as it most
certainly increases the volume of abusive registrations by allowing free
use of domains.  We further urge ICANN to consider mandatory Rights
Protection Mechanisms and, in particular, a review of UDRP  procedures
and practices designed  with the goal to make the UDRP  rules more cost
effective and timely  to enforce, in hopes that  they could  someday act
as a deterrent to cybersquatting.  If ICANN continues to rely on the
existing UDRP process as the sole, mandatory policy designed to curb
abusive registrations, then many online businesses will continue to
suffer significantly as many registrars, registries and ICANN continue
to increase revenue from this illegal activity.  We further expect the
problem only will continue to grow in volume and intensity, as indicated
by the rapid rise of phishing and malware sites that are generally not
subject to rational resolution via the UDRP.

 

In addition to clear, quick and low-cost procedures for dispute
resolution and the removal of bad faith registrations, the BC would also
like to see ICANN impose graduated sanctions on registrars and
registries who are not in compliance with their contracts, including any
consensus policies yet to be developed in an effort to curb
cybersquatting.  The BC is interested in all other ideas as to how
abusive registrations can be abated, and remains eager to participate in
any and all ICANN efforts to minimize them.

 

Mike Rodenbaugh

Officer, Business and Commercial Users Constituency

 

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