INTA Whois Subcommittee's Comments on TF 1

[Michael Heltzer <mheltzer@xxxxxxxx>]

The Whois Subcommittee of the International Trademark Association's Internet
Committee welcomes the opportunity to comment on the Whois TF 1 preliminary
report, which was posted on ICANN's website on May 28, 2004. The
subcommittee would like to take this opportunity to thank the task forces
for their hard work in putting together the proposals. 

The mission of INTA's Internet Committee is to evaluate treaties, laws,
regulations and procedures relating to domain name assignment, use of
trademarks on the Internet, and unfair competition on the Internet. The
Whois Subcommittee, which is charged specifically with evaluating proposals
concerning domain name contact information, consists of representatives from
nine countries.

Notice to Registrants

The Whois Subcommittee believes strongly that providing notices to a domain
name registrant each time a Whois inquiry is made would be problematic for
several reasons.  

First, providing such notice would be an unprecedented feature not available
in other public registries of registrant information.  If one looks up the
owner of a trademark on a publicly available database, the trademark owner
is not informed of the query nor given the choice of whether to make the
data available.  If one looks up a telephone number, the owner is not
notified of the query.  Registrants have thus no unfulfilled need or
expectation to have such information made available.

Second, where a domain name is held by a cybersquatter, alerting the
registrant that an investigation is underway could result in a quick
transfer of the domain name to a third party before a UDRP complaint could
be filed.

Third, Whois data is often used to research the assets owned by a possible
target of acquisition.  Alerting such a target that others are interested in
the domain name would affect negotiations in unpredictable ways.
 
Fourth, notification could also be easily circumvented.  Surely enterprising
businesses would create "proxy" Whois inquiry services that would conduct
the investigation on behalf of their undisclosed principals.  This would
simply add a layer of expense to the investigation without benefiting the
registrant or the trademark owner, but only the third party proxy
investigative service.

Tiered Access

It is unclear how the "White List" approach would work in practice.  The
Whois Subcommittee has serious concerns regarding authorizing higher-level
access for only some users, including  potential discrimination, possible
antitrust issues, etc.  Given the risks entailed with such an approach, it
is not likely to prove workable in the long run.  

An "Individual List" approach seems more workable, even if ICANN finds it
necessary to compile a list of "approved purposes" as noted in the
preliminary report.  The Whois Subcommittee strongly believes that trademark
investigations should be an approved purpose and that requestors should be
able to self-certify that this is purpose of their request, as contemplated
in Section 8 of the Task Force's "Policy Recommendations." 

Any option (whether it is the White List or the Individual List approach)
should be as objectively run, reasonable and non-discriminatory as possible.
As an example of unreasonable access, the Whois Subcommittee understands
that some registrars have sought to impose liquidated damages clauses of up
to one million dollars for violating their bulk access agreement as a way of
discouraging anyone from utilizing bulk access.  Such terms are clearly
contrary to the spirit of the Registrar Accreditation Agreement and ICANN
should take this opportunity to provide further protections for whatever
type of access is provided.

Michael E. Heltzer
External Relations Manager
International Trademark Association