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**Via Electronic Mail**

DNSTransition@ntia.doc.gov

July 5, 2006

Ms. Fiona Alexander

Office of International Affairs

National Telecommunications and Information Administration

1401 Constitution Avenue, N.W.

Room 4701

Washington, DC 20230

Dear Ms. Alexander:

The International Trademark Association (INTA) is pleased to respond to
the May 25, 2006, request for comment on the "continuation of the
transition of the technical coordination and management of the Internet
domain name and addressing system (Internet DNS) to the private
sector."[^1] INTA ([http://www.inta.org](http://www.inta.org/)) is a
not-for-profit membership association of more than 4,900 trademark
owners and professionals, from more than 190 countries, dedicated to the
support and advancement of trademarks and related intellectual property
as elements of fair and effective national and international commerce.
For more than 10 years, INTA has been the leading voice for trademark
owners on the future of the Internet DNS, and we are a founding member
of the Intellectual Property Constituency (IPC) of the Internet
Corporation for Assigned Names and Numbers (ICANN).

**[Question 1]{.underline}:** The DNS White Paper articulated principles
(*i.e.,* stability; competition; private, bottom-up coordination; and
representation) necessary for guiding the transition to private sector
management of the Internet DNS.[^2] Are these principles still relevant?
Should additional principles be considered in light of: The advance in
Internet technology; the expanded global reach of the Internet; the
experience gained over the eight years since the Department of Commerce
issued the DNS White Paper, and the international dialogue, including
the discussions related to Internet governance at the United Nations
World Summit on the Information Society (WSIS)?

**[Response]{.underline}**: The principles articulated in the DNS White
Paper (including stability; competition; private, bottom-up
coordination; and representation) are still relevant principles that
should guide the transition of Internet DNS to the private sector.

However, we strongly recommend that in future policy statements and
agreements with ICANN, the U.S. Government (USG) reassert that stability
refers to more than mere technical assurance. Indeed, the White Paper's
frequent reference to matters other than Internet protocols and root
servers, including the protection of trademarks in the Internet DNS,[^3]
strongly suggests that stability is not limited to technical efficiency,
but includes the user's ability to reach his/her intended destination in
cyberspace. "From a purely technical perspective it may be the root
servers and protocols that make the Internet work, but it is brand
awareness \-- the familiarity of a 'name' by the average 'Netcitizen'
\-- that has made the Internet a part of so many lives and the
indispensable tool that it is today."[^4] Because of the undeniably
important role that the Internet plays today in culture, commerce, and
everyday communication, the decisions that ICANN makes cannot be looked
at in an engineering vacuum.

During its early years, ICANN adhered to this principle that stability
is not just about technology, but about stability in the broader sense.
The best evidence of this from a trademark owner's perspective is the
Uniform Dispute Resolution Policy (UDRP), which is often referred to by
ICANN as one of its great successes,[^5] as well as other resources,
such as the Registrar Accreditation Agreement (RAA),[^6] the contract
outlining the responsibilities of ICANN accredited registrars,
including, for example, adherence to the UDRP and public accessibility
to registrant contact data (*i.e.*, Whois).

Recently, however, ICANN appears to have stepped back from this
well-understood interpretation of what the White Paper meant by
"stability." Today, ICANN often stresses its self-perceived narrow
technical mission, preferring to inform the public that it is
responsible only for "coordinating the management of the **technical**
elements of the DNS."[^7] But making the decision to add a new global
top level domain (gTLD) to the root, accrediting a new registrar, and
determining protocols for internationalized domain names (IDNs), all of
which and more fall under the purview of ICANN, go beyond engineering
principles. These decisions have consequences that affect every Internet
user, from the online shopper to the academic to the computer
professional to the corporate entity to the young person who "surfs" the
Net to learn more about his or her favorite television show.

Moving forward, it must be articulated that ICANN's responsibility is
two-fold: (1) "coordinating technical elements of the DNS"[^8] and (2)
anticipating and accounting for the implications to Internet users of
the implementation of these technical decisions. ICANN must, for
example, demand more accountability from registrars by enforcing the
provisions of ICANN-registrar contracts. Certain provisions in these
contracts have long been neglected, including some that directly affect
the ability of trademark holders to enforce their rights, such as
ensuring compliance with Whois standards by registrants. ICANN should
prioritize the enforcement of its contract terms as a way to stabilize
the operation of the Internet and provide uniformity across the
registrar community.

In addition to reasserting what is meant by the principle of stability,
we invite the USG to consider working with ICANN to clarify what is
meant by the principle of representation. For example, does
representation mean equal representation? We believe that it should.
Today, real balance of representation within ICANN has been undermined
by the weighted voting rights accorded to registrars and registries by
ICANN in the council of the Generic Names Supporting Organization
(GNSO), a policy development body that provides input directly to the
ICANN Board of Directors. Pursuant to the ICANN bylaws, registrars and
registries are afforded more votes on the GNSO Council, because "they
are under contract with ICANN obligating them to implement ICANN-adopted
policies."[^9] This conclusion, however, disenfranchises users of the
DNS who wish to participate and have a voice that will be heard and
respected in the ICANN process. The dismantling of the weighted voting
structure within the GNSO will ensure that the voices of all
stakeholders, and specifically those whose domain name registration fees
go to support ICANN, including trademark holders and business users, are
guaranteed a fair process that provides for equality in representation
in the adoption of ICANN policies, guidelines, and rules.

**[Question 2]{.underline}:** The DNS White Paper articulated a number
of actions that should be taken in order for the U.S. Government to
transition its Internet DNS technical coordination and management
responsibilities to the private sector. These actions appear in the MOU
as a series of core tasks and milestones. Has ICANN achieved sufficient
progress in its tasks, as agreed in the MOU, for the transition to take
place by September 30, 2006?

**Response:** No. While INTA recognizes that ICANN has made progress in
developing its DNS technical coordination and management
responsibilities, measured against the actions identified in the DNS
White Paper and ICANN's core tasks set forth in section V(C) of the
Memorandum of Understanding (MOU),[^10] ICANN has not achieved
sufficient progress in its tasks for the transition to take place by
September 30, 2006. For purposes of this response, we highlight three
critical issues:

\(1\) ICANN was to "\[d\]efine and implement a predictable strategy for
selecting new TLDs using straightforward, transparent, and objective
procedures that preserve the stability of the Internet."[^11] Yet the
introduction of each new gTLD registry tends to be fraught with
uncertainty and characterized by unpredictable new criteria. And, while
ICANN appears to be focused on adding new sponsored gTLDs to the root,
which we believe is a preferred course over the addition of unsponsored
suffixes, it must clarify what is meant by the term "sponsored gTLD." In
our opinion, a sponsored gTLD "must represent communities that can be
defined in absolute terms, and must be specifically tailored to a
discrete and identifiable group of Internet users, *e.g.,* .travel for
the travel industry. In addition, any sponsored gTLD must have
mechanisms for ensuring that all registrants comply with the particular
eligibility requirements at issue, and for addressing violations
thereof."[^12] In contrast, a number of the recent additions to the
root, *e.g.*, .mobi, for owners of mobile devices, are designed to
appeal to potentially infinite numbers of end users and have broad and
ill-defined charter definitions outlined in the proposal.[^13]

\(2\) The MOU also states broadly that ICANN will "implement measures to
secure improved accuracy of WHOIS data."[^14] Yet the accuracy of Whois
has not improved. Few Internet users are aware that there is a Whois
Data Problem Report System procedure for reporting inaccurate data, let
alone what the procedure is.[^15] (The system is not even located on the
ICANN site.) Even if reported, enforcement and follow-up appear to be
lacking. According to United States Government Accountability Office,
73% of the 45 error reports that it submitted to ICANN as part of its
study remained unresolved after 30 days.[^16] INTA recognizes and is
grateful for ICANN's efforts in this area, including the Whois Data
Reminder Policy, but we note that our members continue to advise us of
false or missing Whois data that is not being corrected by registration
authorities.

Whois not only facilitates the investigation of legal violations on the
Internet, but serves a basic function in making the rule of law apply to
the Internet by providing information necessary to serve notice and
institute legal action against violators. The USG has consistently
recognized this by stressing the importance of accurate Whois
information in the MOU and setting milestones for ICANN to follow.
Despite this emphasis, in early 2006, the GNSO Council voted to
recommend limiting access to Whois data to the name and details of the
technical contact and eliminating access to ownership contact data. This
definition tacitly excludes the critical ability to contact registrants
to resolve legal issues. In short, rather than provide satisfactory
progress on the accuracy of Whois data, ICANN seems to be on the verge
of determining that much of this crucial data will no longer be
available.

\(3\) The MOU provides that ICANN will "\[c\]ontinue its efforts to
achieve stable agreements with ccTLD operators," including allocating
global and local policy responsibility and maintaining relationships
with and among ccTLD operators. ICANN has made some progress in this
area, for example, announcing the formalization of its relationships
with the .de registry operator on May 31, 2006, and the .lv, .cx and .nf
registry opertors on June 19, 2006. We applaud ICANN's success in
reaching agreement with the operator of the largest ccTLD. In addition,
in 2002, ICANN established the Country Code Name Supporting Organization
(ccNSO) to try to obtain cooperation among ccTLD operators and ICANN.
However, as of today, ICANN still does not have formal agreements with
most of the ccTLD operators. Each ccTLD (now over 200) has its own
policies for registration, operation and, in some cases, conflicting
trademarks and dispute resolution. The growth of registrations in ccTLDs
was over 35% in 2005 and is expected to remain strong over the years
ahead.[^17] These facts highlight particular need for agreements to be
signed between operators of ccTLDs and ICANN so that the operators feel
that they are getting value for the money associated with signing an
agreement. We also note that formalized agreements between ICANN and
ccTLD operators are likely to increase a much-needed revenue stream for
ICANN.

**[Question 3]{.underline}:** Are these core tasks and milestones still
relevant to facilitate this transition and meet the goals outlined in
the DNS White Paper and the U.S. Principles on the Internet's Domain
Name and Addressing System? Should new or revised tasks/methods be
considered in order for the transition to occur? And on what time frame
and by what method should a transition occur?

**Response:** Yes, the core tasks and milestones in the MOU are still
relevant to the transition to private sector administration of the DNS.
In addition to these tasks, we recommend that future MOUs place renewed
emphasis on areas such as monitoring of registrars and registries and
contract enforcement. ICANN cannot be an effective mechanism for
Internet governance unless it monitors and enforces the contracts on
which its business is based. Of principal concern to trademark owners is
registrar and registry compliance with policies regarding Whois access
and accuracy and the UDRP.

A more recent development is the alleged registration of hundreds of
domain names by certain registrars that correspond to common
misspellings of trademarks. These domain names are then reportedly
parked on websites and used to attract Internet users to paid
advertising. It has also been suggested that there have been offers by
registrars to sell these domain names to the very trademark owners whose
names are likely to be confused with the misspellings with which these
names are associated.[^18] ICANN must expressly prohibit such practices
by registrars and conduct routine monitoring and enforcement.

As part of a renewed contract enforcement plan, we recommend that ICANN
develop a graduated system of sanctions for noncompliance by registrars
and registries. At present, for example, canceling a registrar's
accreditation is the only sanction that ICANN can use when a registrar
violates a provision of the RAA. But, cancellation can be a draconian
measure, particularly where a first or relatively minor violation is
involved. As a result, ICANN has been reluctant to use the only tool in
its enforcement arsenal. A range of possible sanctions should be
available to ICANN, and the GNSO should be tasked with developing and
ICANN with implementing, in its RAA, an enforceable penalty system. For
example, one workable system might be to allow ICANN to levy fines for
violation of provisions of the agreement, which could escalate for
subsequent violations. In the cases of repeated disregard of contractual
obligations, the system should culminate, after a certain, definite
number of violations, in well-deserved termination of the accreditation.
Not only would such a mechanism incentivize registrars to comply, it
would also provide a revenue incentive for ICANN to enforce its rules,
rather than the disincentive ICANN now faces to discipline its paying
registrars.

From the perspective of trademark owners, the timeframe for transition
will depend on ICANN's ability to address the points raised in this
comment and others in our response. If they are included as necessary
elements in an extension of the MOU and then completed by ICANN, the
time will be ripe for a transition. ICANN has an important role to play
in private-sector governance of the Internet. However, to be ready to
complete the transition, ICANN must be ready to govern. Two critical
components of that governance--- representation that enfranchises
Internet users and not merely the registrars and registrars ICANN
governs and enforcement of its rules and policies---must be addressed
before the transition can be completed.

**[Question 4]{.underline}:** The *DNS White Paper* listed several key
stakeholder groups whose meaningful participation is necessary for
effective technical coordination and management of the Internet DNS. 
Are all of these groups involved effectively in the ICANN process?  If
not, how could their involvement be improved?  Are there key stakeholder
groups not listed in the *DNS White Paper*, such as those with expertise
in the area of Internet security or infrastructure technologies, that
could provide valuable input into the technical coordination and
management of the Internet DNS?  If so, how could their involvement be
facilitated? 

**[Response]{.underline}:** INTA is pleased to participate in the ICANN
process through the IPC. The IPC was recognized as an ICANN constituency
shortly after ICANN's founding in 1998, in part as a result the White
Paper's numerous references to the protection of intellectual property
and the pressing concerns expressed by intellectual property owners over
the meteoric growth of trademark violations taking place in the Internet
DNS (*e.g.,* cybersquatting). Immediately upon its recognition, the IPC
worked with other constituencies and ICANN staff to develop the UDRP.
The IPC also conducted extensive reviews of the new gTLD applications
and met with and provided consultation to the applicants themselves. In
the proceeding years, the IPC contributed extensively as a member of
ICANN working groups, including those dealing with the GNSO policy
development process and most recently the Whois Task Force.

INTA looks forward to continuing to participate in ICANN through the IPC
and believes the IPC to be a vital conduit between the intellectual
property community and the rest of the ICANN community. Through the IPC,
we look forward to working with ICANN on the issues identified in the
MOU that remain outstanding, including the establishment of criteria for
selecting new gTLDs, contract enforcement, and the accessibility and
accuracy of the Whois database.

In the context of Whois, we would add that the Whois database is used
frequently to identify online counterfeiters**.** The interests of law
enforcement and consumer protection groups from around the world
intersect with anticounterfeiting efforts and similar initiaitves, and
they should also be represented in the ICANN process.

As proposed in the request for comment, we agree that groups with
expertise in the area of Internet security or infrastructure
technologies should also be involved in the process.

**[Question 5]{.underline}:** The DNS White Paper listed principles and
mechanisms for technical coordination and management of the Internet DNS
to encourage meaningful participation and representation of key
stakeholders.  ICANN, in conjunction with many of these key
stakeholders, has created various supporting organizations and
committees to facilitate stakeholder participation in ICANN processes. 
Is participation in these organizations meeting the needs of key
stakeholders and the Internet community?  Are there ways to improve or
expand participation in these organizations and committees? 

**[Response]{.underline}:** The DNS White Paper indicates that the
operations of ICANN's processes should be fair and protect against
capture by a narrow group of stakeholders. The weighted voting accorded
to the Registrar and Registry Constituencies within the GNSO is directly
contrary to this mandate, as well as the bottom-up policy development
process dictated by ICANN.[^19] As a result, policy developed by the
GNSO has on occasion failed to accurately reflect the views of the
entire Internet community. In addition, ICANN's core value of achieving
broad representation of the global Internet community[^20] cannot be met
without the full and active participation of the ccTLD community.
ICANN's inability to bring ccTLDs fully into the ICANN fold has resulted
in renegade ccTLD operators whose registries have become a haven for
cybersquatters.

Participation can be improved first and foremost by creating a structure
that is truly bottom-up where all relevant stakeholders are at the
table, and all stakeholders have an equal voice. Weighted voting removes
the incentive for stakeholders to spend their time, talents and energy
participating in the ICANN process, knowing the Registrar and Registry
Constituencies have the power to veto anything they don't like and to
push through policies that benefit their interests to the detriment to
others. This imbalance of power has unmistakably increased the influence
of registrars and registries to the detriment of all other stakeholders
and has shifted debate away from issues that are critical for users of
the Internet DNS.

ICANN also needs to continue to reach out to the ccTLD community to try
to bring them within the ICANN structure. The ccNSO Accountability
Framework Working Group and the recent relationship formalized between
ICANN and ccTLD operators such as .de are positive steps in the right
direction. In addition, the GNSO must reach out to experts outside the
ICANN structure when tackling complex policy development issues in which
the GNSO lacks the necessary expertise.

Finally, we encourage greater funding and ICANN staff support for
activities of the GNSO and its working groups. This will greatly enhance
the ability of the GNSO to address issues, such as the need for
mechanisms to ensure contract compliance by registries and registrars. 

**[Question 6]{.underline}:** What methods and/or processes should be
considered to encourage greater efficiency and responsiveness of
government and ccTLD managers in processing root management requests to
address public policy and sovereignty concerns? Please keep in mind the
need to preserve the security and stability of the Internet DNS and the
goal of decision-making at the local level. Are there new technology
tools available that could improve this process, such as automation of
request processing?

**[Response]{.underline}:** Irrespective of the technological method or
process adopted to increase the efficiency of root management requests,
the Internet DNS must continue to require gTLD and ccTLD managers to
commit to transparency, accountability, accessibility and legality in
their decision-making.

A transparent DNS is key to addressing public policy and sovereignty
concerns. Without transparency, there cannot be accountability, and
without accountability, it is impossible to ensure equal access to the
Internet DNS or legality in the decisions made. The transparency of the
DNS requires the transparent management by gTLD and ccTLD managers, the
transparent operation by registries and registrars, and the transparent
identification of registrants, particularly those carrying on activities
that are harmful to the public.

Accountability could be advanced in the following ways: (1) mandatory
adoption and compliance with DNS protocols and policies by all TLD and
ccTLD managers, (2) mandatory availability of dispute resolution
mechanisms that are unique to the Internet covering all TLDs and ccTLDS
(namely the UDRP or a similar model dispute policy for ccTLDs that
recognizes variations under the particular country's laws), and (3)
mandatory availability of recourse through national legal systems for
legal disputes arising in connection with any gTLD or ccTLD (subject
only to the national forum\'s willingness to assume jurisdiction).

The Internet DNS has been, and should continue to be, administered with
a respect for both international and national legal systems.
Intellectual property is protected nationally, jurisdiction by
jurisdiction. Accordingly, respect for national sovereignty requires
respect for property ownership within each national jurisdiction, which
clearly includes ownership of trademarks and rights in domain names.

**[Question 7]{.underline}:** Many public and private organizations have
various roles and responsibilities related to the Internet DNS, and more
broadly, to Internet governance. How can information exchange,
collaboration and enhanced cooperation among these organizations be
achieved as called for by WSIS?

**[Response]{.underline}:** INTA supports the idea of greater outreach
to facilitate information exchange and consulting roles for
organizations who may lend expertise to overall administration and
management of the Internet. As an organization with members in more than
190 countries and in light of the ever-growing prominence around the
globe of the Internet in branding practices, we are especially
supportive of international cooperation.

As a first step, we recommend that the roles and responsibilities of
Internet governance be identified. Having identified and agreed upon
these areas, the next step is to identify a single forum that can bring
those who work in these areas together on a regular basis to inform,
share ideas, and consult; but, we stress, not to make any decisions or
issue declarations. That would lead to a debate about who "controls" the
Internet. This forum should act solely as a venue, a time and place to
exchange resources and expertise, discuss, and identify areas of
interdependence.

INTA invites the USG to look to a forum already established within the
private sector, *e.g.,* a trade show or annual meeting of some sort, to
possibly serve as the focal point for the cooperation. We believe that
governments from around the world should be an integral part of the
discussions in the forum and have much to contribute, particularly in
the areas of law enforcement and consumer protection. We are especially
grateful for the USG's leadership on matters relating to ICANN and look
forward to continuing to work with officials at the Department of
Commerce to ensure ICANN accomplishes the tasks that we have identified
in our comments prior to any transition taking place.

Thank you for the opportunity to submit comments on the transition of
the Internet DNS to private sector management. We also look forward to
presenting testimony at the public meeting on July 26. In the interim if
the USG has any questions concerning INTA's response, please contact
Michael Heltzer at <mheltzer@inta.org>.

Sincerely,

![](media/image2.jpeg){width="2.0694444444444446in"
height="0.6770833333333334in"}

Paul W. Reidl

President

[^1]: 71 Fed. Reg. 30,388 (May 26, 2006).

[^2]: Management of Internet Names and Addresses, 63 Fed. Reg. 31741
    (June 10, 1998).

[^3]: *Supra* note 1 at p. 31,746-7.

[^4]: Testimony of Anne Chasser, President of the International
    Trademark Association, Before the U.S. House of Representatives
    Subcommittee on Courts & Intellectual Property, at
    <http://www.inta.org/index.php?option=com_content&task=view&id=620&Itemid=152&getcontent=3>,
    July 28, 1999.

[^5]: *See, e.g.*, Testimony of M. Stuart Lynn Before U.S. Senate
    Committee on Commerce, Science, and Transportation, Subcommittee on
    Science, Technology, and Space, June 12, 2002, at
    [http://www.icann.org/correspondence/lynn-testimony-12jun02.htm](blocked::http://www.icann.org/correspondence/lynn-testimony-12jun02.htm)
    ("The UDRP ... stands as a truly major accomplishment for which
    ICANN deserves great credit."); and Testimony of Vint Cerf Before
    U.S. House Committee on Energy and Commerce, Subcommittee on
    Telecommunications and the Internet, February 8, 2001, at
    [http://www.icann.org/correspondence/cerf-testimony-08feb01.htm](blocked::http://www.icann.org/correspondence/cerf-testimony-08feb01.htm)
    ("The UDRP is, I would submit, another very positive accomplishment
    of ICANN during its short existence to date."). 

[^6]: <http://www.icann.org/registrars/ra-agreement-17may01.htm>.

[^7]: ICANN website, at <http://www.icann.org/general>. (emphasis added)

[^8]: *Id.*

[^9]: ICANN Bylaws, Article X, Section 5(2), at
    <http://www.icann.org/general/archive-bylaws/bylaws-28feb06.htm#X-5.2>.

[^10]: Memorandum of Understanding Between the U.S. Department of
    Commerce and the Internet Corporation for Assigned Names and
    Numbers, Amendment 6, available at
    <http://www.ntia.doc.gov/ntiahome/domainname/agreements/amendment6_09162003.htm>.

[^11]: *Id.* V(C)(8).

[^12]: Comments of the Intellectual Property Constituency Responding to
    the ICANN PDP on "Terms of Reference for New gTLDs," at
    <http://forum.icann.org/lists/new-gtlds-pdp-comments/msg00029.html>,
    January 31, 2006.

[^13]: There are "four mobile phones purchased for every one personal
    computer," .mobi website, at
    <http://pc.mtld.mobi/mobilenet/index.html>.

[^14]: *Supra* note 10 at V(C)(10).

[^15]: *See* Whois Data Problem Report System,
    [http://www.internic.net](http://www.internic.net/).

[^16]: United States Government Accountability Office, Internet
    Management: Prevalence of False Contact Information for Registered
    Domain Names (Nov. 2005), available at
    <http://www.gao.gov/new.items/d06165.pdf>.

[^17]: Working Party on Telecomm. and Info. Serv. Policies, Org. for
    Econ. Co-operation & Dev., Evolution in the Management of
    Country-Code Top-Level Domain Names (ccTLDs),
    (DSTI/ICCP/TISP(2006)6), page 3, May 29-30, 2006.

[^18]: *See, e.g.,* Dotster named in massive cybersquatting suit, CNET
    News, at
    <http://news.com.com/Dotster+named+in+massive+cybersquatting+suit/2100-1032_3-6079567.html>,
    June 2, 2006.

[^19]: ICANN Bylaws, *supra* note 9.

[^20]: *Id.*, Article I, Section 2.