In the Matter of ) ) REGISTRATION AND ADMINISTRATION OF ) Docket No. 970613137-7137-01 INTERNET DOMAIN NAMES )
gTLD-MoU Interim Policy Oversight Committee
David W. Maher, Chair
c/o Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago IL 60606
In the Matter of ) ) REGISTRATION AND ADMINISTRATION OF ) Docket No. 970613137-7137-01 INTERNET DOMAIN NAMES )
2. The interim Policy Oversight Committee ("iPOC") was created under the aegis of the Generic Top Level Domain Memorandum of Understanding ("gTLD-MoU") signed in Geneva, Switzerland on May 1, 1997 by the Internet Assigned Numbers Authority ("IANA"), the Internet Society ("ISOC"), and approximately 80 other signatory organizations. As of August 18, 1997, this has increased to approximately 160 signatory organizations.
3. iPOC is the successor to the International Ad Hoc Committee ("IAHC") which was formed in September, 1996 at the initiative of ISOC and at the request of IANA. IAHC issued a Final Report on February 4, 1997, which led to the creation and signing of the gTLD-MoU.
4. The charter of IAHC specified that it would "operate in the style of an Internet standards 'design team', formulating criteria and procedures but seeking review, modification and consensus from the rest of the Internet community" and stated further that "Internet standards are developed according to the principal of 'rough consensus' which means a strongly dominant sense of preference within the community that is seeking to achieve forward progress, in spite of differing opinions."
5. Between September, 1996, and May 1, 1997, IAHC operated open mailing lists, solicited and received hundreds of formal contributions, and participated in a number of existing mailing lists, thereby receiving thousands of comments from interested parties which were reviewed and considered in the preparation of the gTLD-MoU. Members of the IAHC and iPOC have provided continuing participation in those public mailing lists.
6. The gTLD-MoU proposes the creation, initially, of seven new top level domains and provides for an unlimited number of new registrars, all of which will share responsibility for registering domain names in all generic top level domains. The process of submission of applications to become registrars began on July 16, 1997. The registrars will sign a Memorandum of Understanding (the "CORE-MoU") and will form a Council of Registrars ("CORE") which will be a not-for-profit association under the laws of Switzerland.
7. Further information on the work of IAHC and iPOC, as well as the full text of the documents referred to above are available at the gTLD-MoU website <http://www.gtld-mou.org>.
b. The private sector, with input from governments, should develop stable, consensus-based self-governing mechanisms for domain name registration and management that adequately defines responsibilities and maintains accountability.
c. These self-governance mechanisms should recognize the inherently global nature of the Internet and be able to evolve as necessary over time.
d. The overall framework for accommodating competition should be open, robust, efficient, and fair.
e. The overall policy framework as well as name allocation and management mechanisms should promote prompt, fair, and efficient resolution of conflicts, including conflicts over proprietary rights.
f. A framework should be adopted as quickly as prudent consideration of these issues permits.
iPOC believes that the foregoing principles are appropriate and that
they are substantially complete. They have been the subject of public debate
for more than three and one half years and are in response to urgent Internet
operations requirements. iPOC further believes that the program set forth
in the gTLD-MoU executed on May 1, 1997 is the only concrete plan now in
existence that embodies these principles. In order to foster these principles,
iPOC urges the Government to support the gTLD-MoU program.
Although the current system has the advantage that it has worked well enough to enable the Internet to grow at an exponential rate, the disadvantages have now become painfully apparent to nearly all users. The trademark conflicts, and especially the proliferation of "cyber-squatters", pirates who hold domain names for ransom, are becoming increasingly serious. There are two major disadvantages of the current generic domain name system. First, there are only three generic top level domains available to the general user, and second, the policies for resolving conflicts within the system have not worked well. The current ISO country code domain system has worked well, for the most part, and should be treated separately from the generic TLD system.
2. How might current domain name systems be improved?
iPOC believes that the program set forth in the gTLD-MoU offers the best hope for improvement of the generic TLD system. It increases the range of names that would be available, provides for registrar competition based on price and service (and not based on registrar monopoly control over specific TLDs), user domain name "portability", and takes a significant step towards resolving conflicts among those contending for domain names.
3. By what entity, entities, or types of entities should current domain name systems be administered? What should the makeup of such an entity be?
iPOC believes that the governance structure described in the gTLD-MoU, which is designed for expanded participation by industry and public groups, will be best able to administer the domain name system. iPOC further believes that this structure is fully consistent with the principles set forth in the Framework for Global Electronic Commerce released on July 1, 1997, and in particular, principle 1, that "governments should encourage industry self-regulation wherever appropriate and support the efforts of private sector organizations to develop mechanisms to facilitate the successful operation of the Internet."
4. Are there decision-making processes that can serve as models for deciding on domain name registration systems (e.g., network numbering plan, standard-setting processes, spectrum allocation)? Are there private/public sector administered models or regimes that can be used for domain name registration (e.g., network numbering plan, standard setting processes, or spectrum allocation processes)? What is the proper role of national or international governmental/non-governmental organizations, if any, in national and international domain name registration systems?
The Internet standards process of the Internet Engineering Task Force ("IETF") serves as a model for the design of the domain name registration system and the program of the gTLD-MoU. The model will be different because of the operational and commercial nature of the gTLD-MoU structure and because the system must be designed de novo, rather than being based on a system with many years of existing operation. The specific principles which have been taken from the IETF standards process are open operations, layers of review and oversight, and community rough consensus. The design and responsibilities of the Council of Registrars ("CORE") is intended as a coordination activity between Registrars and provides for the gTLD-MoU policy oversight activities a single legal point of contact. The design of the Policy Oversight Committee ("POC") and the Policy Advisory Board ("PAB") reflect the higher level review mechanisms needed to provide necessary public policy oversight functions. The POC is somewhat akin to the IETF's Internet Engineering Steering Group, and the PAB is a formal embodiment of the general Internet community representing the large number of stakeholders in the Internet DNS.
iPOC believes that the limited roles proposed for the International Telecommunications Union ("ITU") and the World Intellectual Property Organization ("WIPO") in the overall structure contemplated by the gTLD-MoU will provide additional benefits of public sector input on the system without the disadvantages of putting the system entirely under the control of international governmental entities.
5. Should generic top level domains (gTLDs), (e.g., .com), be retired from circulation? Should geographic or country codes (e.g., .US) be required? If so, what should happen to the .com registry? Are gTLD management issues separable from questions about International Standards Organization (ISO) country code domains?
iPOC believes that it is neither desirable nor (at this late date) possible to retire the existing gTLDs. Existing gTLDs represent a substantial base of users. They have made significant organizational and marketing investment in these names and it would cause serious operational and monetary difficulties for those users to give them up. There is no compelling technical or operational requirement which justifies taking this extreme action.
The continued existence of the ISO country code domains offers flexibility in the system that has no real disadvantages, assuming that there is coordination in management issues, especially in the area of domain name and trademark conflicts.
6. Are there any technological solutions to current domain name registration issues? Are there any issues concerning the relationship of registrars and gTLDs with root servers?
iPOC believes that the technological basis of the program set forth in the gTLD-MoU is sound, and that the concept of shared data bases of multiple generic TLDs is practical and can be established in a short time, without disturbing the current root server system. The technical aspects of shared registration are well understood, and therefore the enhancement of the DNS registration model to include shared registration is entirely appropriate. National registries such as those in Great Britain have successfully implemented shared registries with a technology analogous to that which CORE is planning to use.
7. How can we ensure the scalability of the domain name system name and address spaces as well as ensure that root servers continue to interoperate and coordinate?
The proposal set forth in the gTLD-Mou is designed to be scaleable. In particular, the gTLD-MoU sets forth a process which is designed to evolve as needs require and understanding permits.
8. How should the transition to any new systems be accomplished?
There must be an appropriate period of technical testing of any new system, but the administrative structure proposed by the gTLD-MoU is designed with enough flexibility to allow a smooth transition to a broader base of control. The DNS tolerates addition of new top-level domains with no impact on existing TLDs, as evidenced by the fact that approximately seven new two-letter ISO country code TLDs have been added every year for a number of years.
When a stable operational base for the new shared gTLDs is demonstrated,
it will be appropriate to begin incorporation of the three existing gTLDs
(.com, .net and .org).
10. Are there technical, practical, and/or policy considerations that constrain the total number of different gTLDs that can be created?
iPOC has taken into consideration, in its deliberations, assisted by public comments, the technical difficulties of scaling the existing system. iPOC believes that, from a technical and practical standpoint, the existing system could support 100-300 additional gTLDs, and that technological progress may enable the addition of significantly larger numbers in the future. There is a difference of opinion, among technical experts, as to the maximum number of additional TLDs that can be tolerated by the DNS root, without degrading system performance or reliability. Operational prudence therefore dictates a careful, incremental approach to the addition of TLDs. This caution is reflected in the approach specified by iPOC.
Also, there have been many comments, largely from entities concerned with the conflict of domain names and trademarks, urging that no new gTLDs or only a few be created. The seven new gTLDs proposed under the aegis of the gTLD-MoU is a compromise between these interests and the strong public demand for additional gTLDs.
11. Should additional gTLDs be created?
iPOC proposes the creation of seven new gTLDs as a first step. This permits development of an experiential base, with a minimum of risk.
12. Are there technical, business, and/or policy issues about guaranteeing the scalability of the name space associated with increasing the number of gTLDs?
See answer to question 10. However, it should also be mentioned that gTLDs, as currently used, represent a naming scheme much flatter than real-world identifiers. Therefore, in the longer term, it will probably be necessary to require addition of hundreds of gTLDs to provide a sufficiently rich name space as Internet exponential growth continues.
13. Are gTLD management issues separable from questions about ISO country code domains?
Yes, they are separable. iPOC believes that, in the long run, the stability
of the Internet requires a unified management structure that will oversee
the address space as well as the gTLD and ISO country code domains. This
does not mean, however, that the ISO country code domains should be part
of the registrar system established for gTLDs or that such domains should
be organized in the same way as the gTLD domains. Each country should be
free to develop its own policies in this area. iPOC is sympathetic to the
position that intellectual property issues require consistent and uniformly
applicable rules for both gTLD and ISO domains because of the global nature
of the Internet.
iPOC proposes, in the gTLD-MoU, that all registrars share control over all seven new gTLDs and believes that, as a general principle, all registries should be shared. However, iPOC also believes that there may be room for some gTLDs (for example, a gTLD to be used exclusively by a governmental or non-governmental organization) which should be controlled exclusively by a single registrar under rules set by the body controlling the domains.
There are no technical limitations on its proposal for sharing and the computer technology required to achieve sharing is extremely stable and well understood
16. Should there be threshold requirements for domain name registrars, and what responsibilities should such registrars have? Who will determine these and how?
In the interests of fostering competition and encouraging lesser developed nations to have registrars, iPOC has set what it considers to be minimum financial and technical requirements for new registrars that are consistent with maintaining the stability of the Internet. The gTLD-MoU establishes a system of governance - a Policy Oversight Committee, a Policy Advisory Board and a Council of Registrars - that will share responsibility for the functioning of the system.
17. Are there technical limitations on the possible number of domain name registrars?
iPOC does not foresee any technical limitations to the number of registrars having access to shared data bases, and has not, therefore, set any limit on the number of registrars that may apply under the gTLD-MoU. Nevertheless, a specific effort is contemplated in the design of the shared databases to assure that no such technical limitations may appear.
18. Are there technical, business and/or policy issues about the name space raised by increasing the number of domain name registrars?
iPOC believes that increased competition among registrars will guarantee better service and lower prices for registrants. In particular, iPOC believes that the consumer is served best by having registrars compete solely on the basis of service and price, rather than on artificial control over a specific portion of the name space. In addition to better service and price, shared registration permits a single point of contact for registration activities, since a single registrar can handle requests for any gTLD. With exclusive control, it is necessary to go to different registrars for different gTLDs. As stated in answer to question 17, iPOC sees no technical issues at this time.
19. Should there be a limit on the number of different gTLDs a given registrar can administer? Does this depend on whether the registrar has exclusive or non-exclusive rights to the gTLD?
See answer to question 15 above.
21. What trademark rights (e.g., registered trademarks, common law trademarks, geographic indications, etc.), if any, should be protected on the Internet vis-à-vis domain names?
iPOC concluded at an early stage in its deliberations that it should do everything possible to insulate the domain name registration system from trademark conflicts, and that registrars should not have to make decisions on what trademark rights should or should not be protected. iPOC further concluded that it would be impossible to construct a domain name system that is free of trademark conflicts, unless a system were adopted that makes all domain names meaningless strings of letters and numbers. There appears to be no significant support for having meaningless strings aside from a few proponents who do not take account of the practical and historical support for a mnemonic based system. The gTLD-MoU program leaves questions of trademark rights to be resolved either by the courts or by alternative dispute resolution procedures (as described below in answer to question 24). The policy, as set forth in the gTLD-MoU, is as follows:
"a policy shall be implemented that a second-level domain name in any of the CORE-gTLDs which is identical or closely similar to an alphanumeric string that, for the purposes of this policy, is deemed to be internationally known, and for which demonstrable intellectual property rights exist, may be held or used only by, or with the authorization of, the owner of such demonstrable intellectual property rights. Appropriate consideration shall be given to possible use of such a second-level domain name by a third party that, for the purposes of this policy, is deemed to have sufficient rights."
22. Should some process of preliminary review of an application for registration of a domain name be required, before allocation, to determine if it conflicts with a trademark, a trade name, a geographic indication, etc.? If so, what standards should be used? Who should conduct the preliminary review? If a conflict is found, what should be done, e.g., domain name applicant and/or trademark owner notified of the conflict? Automatic referral to dispute settlement?
iPOC believes that a requirement of preliminary review of applications for domain name registrations would put an impossible burden on the registrars and would ultimately cause the system to break down. The possible benefit from preliminary review would only be to protect a name applicant from investing in a name that will be challenged, but there is currently no assurance that any such benefit would accrue to the applicant. A mandatory review period would inconvenience all applicants, most of whom would derive no benefit. A voluntary review period affords to those who might benefit from the process the opportunity to balance the inconvenience against the uncertain chance of benefit.
23. Aside from a preliminary review process, how should trademark rights be protected on the Internet vis-à-vis domain names? What entity(ies), if any, should resolve disputes? Are national courts the only appropriate forum for such disputes? Specifically, is there a role for national/international governmental/nongovernmental organizations?
The gTLD-MoU proposes a novel plan to insulate registrars from trademark disputes by providing an expeditious and cost-effective alternative procedure for resolving trademark disputes. iPOC recognizes that it cannot and should not attempt to supplant the authority of national courts. Using the established alternative dispute resolution procedures of WIPO, the gTLD-MoU also proposes the establishment of Administrative Challenge Panels which will be able to resolve many disputes without recourse to litigation. These procedures are fully described in the Substantive Guidelines concerning Administrative Domain Name Challenge Panels published on the gTLD-MoU web site <http://www.gtld-mou.org>.
24. How can conflicts over trademarks best be prevented? What information resources (e.g. databases of registered domain names, registered trademarks, trade names) could help reduce potential conflicts? If there should be a database(s), who should create the database(s)? How should such a database(s) be used?
iPOC strongly supports full public access to the domain name registration databases for the purpose of limiting and reducing potential trademark conflicts. The proposed Memorandum of Understanding for the Council of Registrars (also available at the gTLD-MoU website) specifies that all registration databases must at all times make available all significant information needed for trademark searching.
25. Should domain name applicants be required to demonstrate that they have a basis for requesting a particular domain name? If so, what information should be supplied? Who should evaluate the information? On the basis of what criteria?
iPOC has proposed that each applicant for second level domain names be required to furnish certain information about the applicant's purpose and reasons for requesting the name. iPOC believes that this information will be useful in combating trademark piracy and "cyber-squatting". The information will not be evaluated by the registrars but will be available if there is a dispute regarding the assignment of the name.
26. How would the number of different gTLDs and the number of registrars affect the number and cost of resolving trademark disputes?
iPOC does not believe that increasing the number of gLTDs and the number of registrars will, in the long run, have any effect on the number or cost of resolving trademark disputes. However, with a sufficiently large number of gTLDs, there is the possibility that trademark disputes could be reduced through the availability of enough categorization that conflicts over SLDs could be minimized.
27. Where there are valid, but conflicting trademark rights for a single domain name, are there any technological solutions?
Various proposals have been made, including one in the Final Report of the International Ad Hoc Committee ("IAHC"), the predecessor of iPOC, for separate domain name registries for trademarks which would allow various owners of e.g. "ACME" to register in specific classes or with numerical designations to differentiate the owners. None of these proposals has received wide support, but the proposals of iPOC provide sufficient flexibility to accommodate such a solution if the demand arises.
Respectfully submitted,
gTLD-MoU interim Policy Oversight Committee
by David W. Maher, Chair