INTA Whois Subcommittee's Comments on TF 2

[Michael Heltzer <mheltzer@xxxxxxxx>]

The Whois Subcommittee of the International Trademark Association's Internet
Committee welcomes the opportunity to comment on the Whois TF 2 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.

Recommendation 3.2 - Proxy services: The Whois Subcommittee agrees that
proxy services require further study. Numerous registrars already provide
such proxy or "private registration" services, and thus it is imperative
that any changes recommended by ICANN be well considered.
 
One aspect in particular that should be considered is how and under what
circumstances the "licensee's" information is revealed. When problems arise,
a complainant should be able to obtain that "licensee" information with the
same effect as if the contact information was publicly available. In other
words, while the use of proxy registrations may be acceptable in principle
to avoid spamming and other direct marketing, stalking, etc., they should
not be used to benefit cybersquatters or other trademark infringers.
 
Recommendation 3.3 - Local law: The Whois Subcommittee strongly recommends
further study before allowing exceptions to the uniform Whois requirements
due to claims of incompatibility with local law requirements. Such
exceptions might easily lead to registrars in certain jurisdictions catering
to fraudulent domain name registrants. Rather, ICANN should strive for
uniform Whois requirements that respect all major data protection
legislation, by utilizing the various safe harbors available. 
   
Recommendation 3.5 - Tiered Access: The Whois Subcommittee queries whether
accuracy of Whois data would really improve if access is limited.  People
who are predisposed to give inaccurate Whois information may well be likely
to continue to do so.  It may be worth exploring alternative means to ensure
accurate data, e.g. imposing penalties for providing false information or
rewards for providing verifiably accurate information. 

For example, registrars might be authorized (or even required) by ICANN to
automatically charge registrants a "false Whois penalty" when they submit
contact data that is inaccurate.  Such a penalty could perhaps be based on a
multiple of the pro-rated annual registration fee and be payable when the
registrant fails to respond to a verification inquiry by the registrar.
Registrars would not be required to distinguish between deliberately false
and negligently false data. Provided the penalty is sufficient, this system
would encourage registrars to act on their own in order to verify the data.
Registrants who correct the data would then receive back a portion of the
penalty (to be set by ICANN) to encourage them to act in a responsible
manner. Such a system would provide real financial incentives to both the
registrars to take action to verify the data submitted to them, and to
registrants to correct inaccurate data. While surely not perfect, it might
begin to move the Internet community towards a fairer allocation of the
expenses and burdens of maintaining accurate Whois data. 

The Whois Subcommittee would also like to comment on a few other issues, as
discussed below.

Universal Registrant ID 

Some of the most persuasive evidence of registrant bad faith is the number
and character of other domain names owned by a registrant. Registrant IDs or
"handles" have been widely used in domain name registration for many years,
extensively in new registries such as .biz and .info. The Whois Subcommittee
recommends that ICANN look into the possibility of implementing a "Universal
Registrant ID" system to be used across all registries. 
 
Registrant's telephone number

The Whois Subcommittee recommends keeping the registrant's telephone number
as part of the publicly available Whois data.  Having the registrant's
telephone number makes it easier to resolve conflicts, often on a more
informal basis.
 
Notification to the registrant of the Whois inquiry

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.

Michael E. Heltzer
External Relations Manager
International Trademark Association