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In Support of ICANN's New Trademark Protection Rules (Mostly)

Antony Van Couvering

Yesterday, I sent ICANN my comments about the draft recommendations from ICANN's Implementation Recommendation Team (IRT), which has been tasked with coming up with a trademark protection scheme for new top-level domains. For the most part, I think they did an excellent job.

From the perspective of an Internet user (which we all are), having a clean namespace — no parked pages, no domains used for phishing, spam, malware, etc. etc. — is pretty important for having a good experience with your email and web browsing. Right now, .com and .net are cesspools, filled with garbage, and we all have to live in the filth, because more than half of all domain names are in the .com and .net zones. From the perspective of a business owner (which I am), having a clean namespace means that my domain names and associated businesses are more valuable. For everyone who is not a polluter, the less garbage, the better.

Cleaning up trademark abuse is part of cleaning up the neighborhood. I'm not supporting an erosion of fair use, or condoning the cynical reverse hijacking that some trademark owners engage in, or trying to expand trademark rights beyond what the law provides for. But everyone working in the domain name field has seen plenty of clear instances of someone registering someone else's trademark as a domain name, then profiting from it, to the detriment of both the trademark owner and the Internet user who was fooled. There's no reason these cases shouldn't be treated separately from edge cases where the facts aren't so clear. In fact, there's a good reason to do so — it makes the neighborhood a nicer place to live.

I'm hopeful that new TLD registries will regulate themselves better than the current crop of gTLDs has done, and some of the trademark protection rules proposed by the IRT provide some tools to make that easier.

It's not all good news: the IRT produced some ill-considered attempts to usurp some of ICANN's authority, and I don't agree with everything they've done. Nonetheless, I think they went a long way to removing what has been the Number One obstacle to the introduction of new TLDs.

My comments to ICANN are more specific.

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if only it were so Elliot Noss  –  Apr 28, 2009 12:46 PM PDT

there are two significant misstatements here.

first, lumping parked pages in with phishing spam and malware is like lumping marijuana in with coke, heroin and crystal meth. I guess you may prefer a 404, but I am not sure that most agree and, more importantly, they are simply not in the same category.

second, describing situations where the facts around a disputed name are not clear as "edge cases" could not be further from the truth. maybe for the first year of the UDRP this was true, but the clear cases are now much fewer and further between. that is why the clear majority of three-panelist cases are decided in favor of the respondent. today's truth is that the edge case is the one that is clean and easy on its face.

I face this as someone with an often-abused trademark AND domains with parked pages. we all want a clean namespace. trademark holders have huge protections already built in to the namespace, far beyond what existing legal systems provide. most importantly, they are fearing bogeymen with new tlds and I believe this document to really be about allowing them to say "see. you didn't give us what we want. how can you now proceed?".

what they really want is to kill the process. this is just an attempt to neuter it.

Antony - I am pretty sure that Lord Brar  –  Apr 29, 2009 7:38 AM PDT

Antony - I am pretty sure that calling a Parked Page a "polluter" and clubbing it in same category as phishing, spam and malware would fit your agenda to push for new gTLDs. However, the reality is that Parking Pages do indeed provide a value to the visitor. Let's say that someone visits a hypothetical domain "domain.com" — and if he or she is there to register a domain and sees a list of links to domain registrars, then I'd say that is far more value than a blank page.

As a domain investor, my concern is to maximize the revenue from my domain names by getting more and more visitors to click on my ads — and it will only happen if I provide content (or links) which are of interest to them rather than random ads.

So yeah, the whole definition of "good use" is VERY SUBJECTIVE and the issue still needs more debate.

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