Comments of the Domain Name Rights Coalition 
To the ICANN Draft Guidelines for Accreditation of Internet Domain Name Registrars
February 26, 1999

The Domain Name Rights Coalition (DNRC) appreciates the opportunity to comment on theGuidelines for Accreditation of Internet Domain Name Registrars (Proposed Guidelines)proposed by ICANN on February 8, 1999. 

DNRC is a public interest group representing the interests of individuals, small businesses andentrepreneurs.  DNRC directors and officers include attorneys who are involved in the day to daypractice of Internet law and particularly domain name conflicts.  The organization was founded tooppose the 1995 Domain Name Dispute Policy of Network Solutions, Inc., and has continued tobe involved in domain name policy discussions including the U.S. Department of State WorkingGroup on Domain Names 1996; WIPO’s Second Consultative Meeting on Domain Names andTrademarks 1997; and testimony before the U.S. House of Representatives, TelecommunicationsSubcommittee hearing on the Future of the Domain Name System 1998. 

These comments will first address the Goals and Principles of Registrar Accreditation set out inSection I, Introduction, of the Proposed Guidelines, and then discuss its deep concerns withSection II, Item K. Intellectual Property Issues.

I.  Goals and Principles of Registrar Accreditation.

	DNRC supports four of the five principles set out in the Goals and Principles.  Wecertainly support Principle 1 that the registration system should be convenient and easy to usefrom the perspective of individuals or organization wishing to use domains names.  It is our clearhope that all individuals, commercial and non-commercial organizations, and businesses of allsizes in both developing and developed countries will have access to low-cost domain nameswith high quality service.  
	
	We support Principle 2 that the registration process should embrace standard principles ofgood business practice, and note that the registrars obligations in this principle are appropriatelylimited to those parties with whom he/she has entered into a contractual relationship: namely, thedomain name owner and the registry.   We think it particularly important for the registrar tomaintain some way to continue meeting the needs of its “customers” in the event it goes out ofbusiness.  To correct any possible confusion that might arise from this phrase, we recommendediting the expanding the phrase “its customers” to “its customers, the domain name owners and[if appropriate] IP address owners” to make clear who the parties are in this matter. 
	
	We support Principle 4 aimed to limit the collection of information to only that“reasonably needed for the assignment and use of the name” and to limit its dissemination.Privacy protection is a critical aspect of a database that could one day grow to encompass everyman, woman and child on the planet, and every small business and community organization.  Wewholeheartedly endorse the principle that “Domain name applicants should have an opportunityto register names on behalf of third parties who wish to remain anonymous.” This protection iscritical for many who will be opposing the political leaders of their countries and for those whofear that their home addresses and unlisted numbers might be misused exposing them to dangerand privacy invasions. 

	We support Principle 5 that “the registration system should promote worldwide access todomain name registration services and encourage the development of alternative business modelsfor successful registration services.”  We believe this principle is comprehensive and well-stated.

	Where the DNRC breaks in its agreement with the ICANN proposals is on Principle 3.Principle 3 specifically mentions only the rights of intellectual property.  DNRC is surprised andshocked at this language. 

	A)   Should ICANN Be the Champion of Any Rights At All?

	The act of protecting certain rights, even rights considered noble or fundamental, isfraught with danger for both ICANN and the Internet.  As ICANN itself acknowledged in theletter accompanying its third submissions of bylaws to the U.S. Department of Commerce,ICANN is not intended as the governor of the Internet.  ICANN performs a narrow technical andcoordination function, and must not leverage the management of critical resources into a meansof imposing its vision of the future on the Internet.  By imposing a requirement that the registrarmust police rights, -- any rights--, intellectual property, free expression, what-have-you, ICANNhas forced its own judgment and values on the registrar and, by extension, upon anyone whoregisters a domain name.

	Even if the ICANN Board believes that certain rights are utterly necessary to promote thefurther development of electronic commerce or appease certain stakeholders, ICANN mustconsider the precedent it sets today.  The one fundamental fact that all may know is that theboard members sitting here today will not be here in the future.  What priorities will a new boardset?  What pressures will other stakeholders bring to bear to exclude new entrants or promotespecial interests?  Already we see signs that large corporations and political figures wish toexclude names that are critical.  Having established the power to enforce such restrictions, canthe ICANN Board know for sure that it will not happen?  That it will not happen *today* doesnot stop it from happening in the future.  Is this the world ICANN would wish upon the Internet?

	Rather, DNRC urges that ICANN recall the wisdom of the framers of the AmericanConstitution.  How many Articles and amendments act to *limit* power, rather than expand it?How many begin with the phrase "Congress shall make no law?"  The framers knew the dangerof empowering an entity, even one with noble intentions and democratic institutions, with thepower to do as it wills.  By contrast, consider the Constitution of the former Soviet Union andother Eastern European states.  Although they promised the protections of openness anddemocracy to their citizens, these promises were never realized.  The powers vested in theinstitutions of the state defeated the pretty words upon the page.  In the first action taken byICANN – and therefore the first test of it as an institution – ICANN must decide which model itwill follow.  Will it voluntarily limit its own powers, letting registrars and domain name holdersmake their own mistakes?  Or will it empower itself to do as it thinks best, and thereby riskmaking its commitment to openness and responsiveness mere empty promises?

	B) If ICANN Chooses to Champion Rights, Should it Protect Intellectual Property AboveAll Else?

	In Principle 3, ICANN states that “the registration agreement should protect legal rights(including intellectual property rights ) of the parties.”  That the only right that ICANN haschosen to expressly protect is intellectual property is clearly contrary to public policy.

	As the White Paper noted, domain names invoke rights far beyond intellectual property,and it promised that: “Existing human rights and free speech protections will not be disturbed.”It is domain names that are used by U.S. citizens and increasingly peoples around the world tolabel and share their personal, political, religious, community and commercial speech.  IfICANN believes it must endorse a right within its Principles, then DNRC argues stronglythat the right must be open communication and free speech.

	The following is an excerpt from the comments to the Green Paper submitted by  DNRC,NetAction (a grassroots community-based organization) and Professor Milton Mueller ofSyracuse University, and signed by 212 individuals and organizations.  We said:

“Open communication is not a U.S. value, but a world value. It is a right found in the UnitedNations' Universal Declaration of Human Rights, the European Human Rights Convention andthe United States' Bill of Rights. 
Written in 1948 and celebrating its fiftieth year, the Universal Declaration of Human Rightsadopts a right of communication so broad and encompassing that its words might have beenwritten yesterday: "Everyone has the right to freedom of opinion and expression; this rightincludes freedom to hold opinions without interference and to seek, receive and impartinformation and ideas through any media and regardless of frontiers." Article 19. 
These words, drafted at the United Nations under the chairmanship of Eleanor Roosevelt, are notan abstract ideal, but an international standard "against which the human rights practices of allgovernments can be measured." President Ronald Reagan, Proclamation of Bill of Rights Day,December 9, 1983.
Similarly, the European Human Rights Convention, written in 1950 and signed by over 21European countries, establishes a set of "Fundamental Freedoms which are the foundation ofjustice and peace in the world." Chief among these Freedoms is the right to impart informationand ideas. Section I, Article 10 of the European Human Rights Convention states: 
"1. Everyone has the right to freedom of expression. This right shall include freedom to holdopinions and to receive and impart information and ideas without interference by public authorityand regardless of frontiers. This Article shall not prevent States from requiring the licensing ofbroadcasting, television or cinema enterprises." 
Therefore, the United States Constitution, and its protection of free speech, is not a departurefrom freedoms around the world, but an expression of these freedoms for U.S. citizens. Thewords of the First Amendment are clearly among the most treasured of all paragraphs in U.S.law:
"Congress shall make no law respecting an establishment of religion, or prohibiting the freeexercise thereof; or abridging the freedom of speech, or of the press; or the right of the peoplepeaceably to assemble, and to petition the Government for a redress of grievances."
While each country is under an obligation to protect the speech of its citizens under its owndomestic laws, the United Nations documents and other treaties provide us with a mandate toprotect information and communication at the highest levels of international Internet governance.This protection directs us to adopt a principle of open communication and free expression, whichwill include the right to register and use domain names for that speech. The OpenCommunication Principle we propose will place these protections among the fundamentalprinciples of Internet Governance.”

	Further, when the White Paper adopted its four principles, they were content neutral:stability, competition, private bottom‑up coordination, and representation.  Now that ICANNseeks to add intellectual property protection, the arguments above for free speech and opencommunication become even more compelling.

	C) Should ICANN Provide Unprecedented Rights to a Third Party Challenger Within theRegistration Agreement?

	That the registration agreement of a domain name would expressly protect the rights ofthird parties is astounding.  As the White Paper pointed out there are many  third party claimsthat might be made about a domain name under many theories, including “international law,competition law, tax law and principles of international taxation, intellectual property law, etc.”But these rights are for enforcement, not for registration.  They may or may not apply in anygiven situation, and no one will not know until the facts of the case are brought and reviewed.

	Further, by granting third party rights within the domain name registrant agreement,ICANN is granting rights to intellectual property challengers which they have lost in court.  Thecourts have found that registration of a domain name, without more, is not a trademarkinfringement.  The case law is now quite clear: 
  
Lockheed Martin Corporation v. Network Solutions, Order Granting Defendant’s Motionfor Summary Judgement, November 17, 1997, by U.S. District Court for the Central District ofCalifornia – “When a domain name is used only to indicate an address on the Internet, thedomain name is not functioning as a trademark.” “Domain names like trade names, do not act astrademarks when they are used merely to identify a business entity; in order to infringe they mustbe used to identify the source of goods or services. … This is not to say that a domain name cannever be used to infringe a trademark.  However, something more than the registration of thename is required before the use of a domain name is infringing.”  985 F.Supp. 949 (S.D. Cal.1997).

Panavision v. Toeppen, 945 F.Supp. 1296 (C.D. Cal. 1997) – The registration of adomain name, without more, does not amount to infringement of a mark similar to the name.Panavision at 1303. 

Academy of Motion Picture Arts and Sciences v. Network Solution Inc., Order DenyingPlaintiff’s Motion for a Preliminary Injunction decided December 11, 1997, by U.S. DistrictCourt for the Central District of California.  –  “None of the cases supports the Academy’scontention that the mere registering of a domain name constitutes a use ‘in commerce.’ … Themere registration of a domain name does not constitute a commercial use.”  45 U.S.P.Q. 2d 1463(C.D. Cal. 1997).

	Even the greatest advocate for trademark owners, the U.S. Patent and Trademark Office,has found that a domain name in and of itself, without more, is not a trademark or service mark.In its January 1998 policy on domain name registration, the US Trademark Office stated that:

	“In order to register an Internet domain name, an applicant must show that it offersservices via the Internet.  Further, specimens submitted in support of the application toshow use of the mark must show use of the Internet domain name as a source identifier.The use of an  Internet domain name as a mere directional reference, similar to use f atelephone number of business address on stationery, business cards or advertisements, isnot use of the name as a source identifier.”  Trademark Examination of Domain Names,USPTO Website, January 16, 1998. 
	
	Thus, despite the heavy pressure from large companies, DNRC believes that ICANNmust leave third party enforcement rights where every sovereign law puts them – as a showing tobe made by a challenger seeking to remove something from someone and meeting therequirements under sovereign law.   

	D) An Alternative to the Language of Principle Three

	As an alternative to the current Principle 3, DNRC puts forward two strong consensuspoints arrived at by the IFWP meetings in Geneva and Reston.  As ICANN knows, thesemeetings were the first to bring together stakeholders from all aspects of the Internet communityface-to-face.  The sessions with trademark lawyers and free speech/common law intellectualproperty rights advocates were intense and thoughtful discussions.  They produced twoconclusions which nominate for entry into a revised Principle 3: 

	1) That ICANN should expressly  support “various alternative dispute resolution forums.”The consensus of the IFWP meetings was that no single forum of arbitration should control theguidelines or processes of the arbitration of domain name/trademark conflicts.  It was felt that theInternational Chamber of Commerce and the American Association of Arbitration offeredexcellent alternatives to WIPO (which was and is seen as a party dedicated to the expansion ofintellectual property rights of large corporations).  It was also felt that competition would foster aresponsiveness to the market and a sensitivity to the changing needs of the Internet community. 
	
	2) That ICANN should expressly recognize “that individuals and organizations haveconcurrent and legitimate rights in names that are not based in trademark.” These rights include asurname, a brand name (registered or common law), a descriptive term, noncommercial rights,parody rights, or even the right of a newcomer to use a basic ordinary word in the name of a newcompany or the title of a new service.  

	DNRC believes that the ICANN will accomplish its goals in this Principle by expresslyadopting the two IFWP consensus points set out above into Principle 3.  

II.  Section II, K. Intellectual Property Issues

	In light of the Critique of RFC-3 written by Professor Michael Froomkin, a member ofthe WIPO Panel of Experts, it is very clear that proposals of WIPO set out in RFC-3 are verycontroversial and still the matter of deep discussion, debate and concern.  

	DNRC notes that although WIPO “as a United Nations organization” need not recognizethe limits of its authority set out in the White Paper, the ICANN must.  The White Paper askedWIPO only to look at cyberpiracy and famous marks, and then to develop “recommendations.”In expressing our concerns to NTIA prior to its publication of the White Paper, we were assuredthat the WIPO recommendations would be limited to these areas, and would be just that“recommendations.”  Specific language was added to the White Paper making it clear that “stringconflicts” were not to be part of WIPO’s evaluation.  Because of its tremendous bias in favor offamous marks (and those who allege they have famous marks), the White Paper chose not toentrust WIPO with balancing the various noncommercial and commercial concurrent andlegitimate rights to a mark.   These marks include apple, ty, wendy, pony, intercom, pokey, andveronica.

	That WIPO would chose on its own authority to undertake a process of resolving alldomain name/trademarks conflicts and thereby set aside the carefully crafted goals and limits ofthe White Paper is own responsibility.  DNRC protested this activity, and these comments toWIPO RFC-1 are included in Appendix A.   ICANN should be looking to WIPO only for itsrecommendations and these recommendations should then be passed onto the Domain NameSupporting Organization for its discussion and debate of these materials combined with otherinput and studies.  This process follows the White Paper. 

	In adopting specific provisions from the WIPO report, ICANN states that these rules areadopted for these functional and non-trademark purposes.  DNRC strongly believes that, withtwo exceptions, this view is mistaken.  Of the eight proposed “intellectual property” terms ofaccreditation agreements, seven could have a strong and unfair impact on future domainname/trademark disputes.  Because the WIPO process is still-ongoing, and because ProfessorFroomkin’s critique should give us all such a strong sense of discomfort with the existing WIPORFC-3 draft, it is untimely and premature to adopt any of the WIPO resolutions at this time. 

The arguments we set out below are not designed to be comprehensive.  DNRC and otherparties are focusing on the WIPO forum as the place to debate these intellectual propertyprotections in person and in comments.   Our goal here is to provide only a sense of thecontroversy that these rules are raising and our strong request that each of these proposedterms of accreditation agreement (save 9.d) be tabled until a later date.  

Proposed Term of Accreditation Agreement.  

Section 9.d.  WIPO Recommendation 67.  Prepayment of registration fee.  
This is the only proposal of this section which truly has no impact on the free speech and opencommunication rights of all domain name owners. 

Section 9.3.  WIPO Recommendation 69.  Registration for fixed periods.
DNRC believes that, while fixed period registration will make sense for many registrars andregistries, it may not be appropriate for all.  Future noncommercial registrars or other registrarsmay charge an up-front fee, but choose not to charge in the future.  Requiring reregistration aftera fixed period of time, in these circumstances, will only impose additional costs and discourageregistrars from offering a future valuable service to noncommercial or small enterprises.
 
Section 9.f.  WIPO recommendation 218.  Excluded SLD names.  
DNRC believes it is inappropriate and untimely for ICANN to include this WIPOrecommendation in its initial Accreditation Agreement.  WIPO recommendation 218 is one ofthe most controversial of all WIPO recommendations in its third draft RFC-3.  In thisrecommendation, WIPO expands the rules of famous marks far beyond the language of even thebroad U.S. Anti-Dilution Act of 1996.   These are sweeping and broad exclusions that protect fairuse and free speech.  WIPO’s recommendation creates no such fair use and free speechexceptions, and instead gives to the McDonald’s Corporation exclusive rights to a commonsurname, even if new gTLDs are created for personal and family websites.   

DNRC believes that Michael Froomkin, professor at the University of Miami and member of theWIPO Panel of Experts, clearly sets out his concerns in paragraphs 168-182 of his Critique ofRFC-3, and summarized in his first line of the section “The entire project described in ChapterFour [Famous and Well-known Marks] is premature.”  DNRC joins Professor Froomkin inrecommending much greater evaluation and thought on all aspects of famous mark protection.Certainly Section 218 should not be adopted at this time into the ICANN accreditationAgreement. 

Section 9.g.  WIPO Recommendation 46. Written registration agreement required. 

We note that the WIPO recommendations actually offers different alternatives for registrationagreements: “the contractual relationship between a domain name registrant and a registrationauthority in open TLDs [should be] be fully reflected in an electronic or paper registrationagreement.”   While understanding and endorsing the need for clear and explicit agreements,DNRC is concerned that lengthy agreements and specifically written agreements might be usedas an excuse to delay the registration of a domain name.    Further, the terms that would beincluded in this agreement are the subject of great discussion and controversy.   Pending adecision on its terms (or alternatively, a better decision that the real party to make the decisionregarding these terms is the registrar), DNRC believes it is untimely and premature to require thisagreement.

Section 9.g.i.  WIPO Recommendations 50, 57, 101.  Contact Information.
The concerns raised by  Professor Froomkin are among the many concerns raised by this section.DNRC believes that certainly while the WIPO process and debate are ongoing, these issues areuntimely and premature for consideration by ICANN and inclusion into an agreement. 
Certainly the comments of Professor Froomkin show some of the key concerns.  
“71.				 should be amended to allow forpseudonymous registration via an identified agent.

72.	abRFC 3 paragraphs 52-53 propose that registrants be required to represent that “to the bestof the applicant’s knowledge and belief, the registration of the domain name does notinterfere with or infringe the intellectual property rights of another party”.   One mightargue that this requirement is pointless since it is not at all clear whether a mereregistration of a domain name can, without use, infringe the intellectual property ofanother.  Indeed, in the US, a person cannot violate the Lanham Act or the Dilution Actwithout commercial use of another’s mark.  The requirement may seem even moreinnocuous when one considers that many lawyers I have spoken to take the view that inall but the most obvious cases of unfair competition the only way to know whether aproposed trademark, much less a domain name registration, is an infringement is to seewhat a competent court says.  Whatever one may think of this type of legal realism, itdemonstrates that many lawyers will have no fear advising people to register whateverthey want and let the courts sort it out later; the rule will therefore stop only the highlyscrupulous (and those without legal advice) without in any way daunting the ethicallydubious.
73.	abI am concerned, nonetheless, that the phrase “interfere with or infringe” requires toobroad a representation by the registrant.  If Alice and Bob both have registered the sametrademark in different sectors and/or jurisdictions, and Alice is aware of Bob’sregistration, how can Alice give a representation in good faith that her registration, whichprevents Bob from registering his mark in that gTLD, “the registration of the domainname does not interfere with or infringe the intellectual property rights of another party”?If the one accepts that mere registration without use interferes with a trademark, whichappears to be WIPO’s view at times, then by registering the trademark in a gTLD Aliceinterferes with Bob’s rights.   There will be some names, like “united,” that in theory noone with a trademark containing the word could register because everyone understandsthat one person’s registration “interferes” with the holder of a trademark in a differentsector’s ability to register that term.  (Note also WIPO defines “abusive registration” inpart as a registration that “frustrates the complainant’s desire to reflect its rights in adomain name,” RFC 3, para 244.  See infra paragraphs - for a discussion of thisproposed definition.)
74.	abFurthermore If Bob is ignorant of Alice’s registration (the proposal creates no duty toinvestigate), he can make the representation, but there seems no sound reason to rewardBob’s ignorance at the expense of an Alice too honest to make the representation.  
75.	abAdditionally, for the reasons noted in paragraphs  and , the reference to“intellectual property rights” generally is much too broad.   Bringing in non-trademarkissues will unnecessarily complicate issues, destroy any hope of consensus, and to theextent that RFC 3 were adopted without major revision, would compound the resultingunfairness.”

DNRC adds that Post Office boxes should be just as acceptable as a street address.

In response to WIPO Draft Recommendation 57, “It is recommended that the registrationagreement contain an agreed term that inaccurate or unreliable information in the registrationagreement constitute a material breach of the contract and be a basis for the cancellation of thedomain name by the registration authority,” DNRC argues that some measure of reasonablenessbe added.  When individuals move or small businesses relocate, their first order of business maybe turning on lights and heat, not contacting their registrar’s office with their new address(particularly if their email remains unchanged and they are still reachable online).  Further, it ispossible that errors may be inserted by the registrar and others with access to the database.  Itseems to us that the appropriate standard should be whether the domain name owner is reachable,not whether each and every item is up-to-date all the time (e.g., mail forwarding to a new addressshould be perfectly acceptable).  Since this recommendation remains one that needs to bediscussed further, we recommend that it not be adopted at this time into the accreditationguidelines

The same concerns set out for Recommendation 57 apply to Recommendation 101.  We shouldbe concerned with the ability to reach the domain name owner, not the absolute accuracy of allinformation regardless of recent moves.

DNRC notes that throughout its Proposed Guidelines, the ICANN has also fallen into the patternof using the broad term “intellectual property rights,” when it is discussing trademark rights.Since no one to our knowledge has raised the question of the impact of copyright and patentrights on domain names, and because these rights are quite different from trademark rights intheir nature and scope, all references in ICANN documents should be made to trademark rightsspecifically. 

Section 9.g.vii.  WIPO Recommendation 53.  Representation by domain name holder that usewill not infringe third party’s legal rights. 

	This proposed term is the most controversial of all.  Not only should the registrationagreement not provide for special rights for third parties (see arguments above), but domainname owners should not be asked to sign statements that no one knows the answer to.  Thequestion of what is a domain name and when others have a right to a domain name is a matter ofcutting-edge Internet law.   When the court says that “Bally Sucks” is appropriate commentary ona webpage and would be appropriate also in a domain name, we have a court finding thatprobably surprised many trademark holders (certainly Bally).   

	Thus, given the changing nature of trademarks and domain names,  it is essentiallyimpossible to answer make the representation honestly.   There is absolutely no consensus nowabout the scope of trademark protection vis a vis domain names.  If you read three papers on thesubject, you will come out with five views.  McDonald’s Corporation says that it owns all uses ofthe word McDonald’s in all domain names and in cyberspace generally.  Pony International, amaker of athletic shoes and sporting equipment, drove off a small provider of math and scienceeducational software who had registered the name PONY.COM,   U.S. Trademark law says thatit is perfectly legal to use a trademarked word, and even a famous mark, in noncommercial ways 
and for news reporting and comparative advertising; WIPO’s proposed rules say you may not.  
How is an individual, community organization, or small business supposed to steer these cloudywaters?  By whose rules are they to determine what are a third party’s legal rights?  No consumerhas ever been asked to make such a cloudy legal judgement, and DNRC asks that ICANN notrequest such a judgement now.

Section 9.g.viii.  Recommendation 119.  Domain name holder’s consent to jurisdiction.

DNRC strongly objects to this incorporation into the Accreditation Agreement.  The proposal ofWIPO that jurisdiction for a domain name owner defendant exist wherever registration authorityis located is a) unclear and b) immensely controversial.   Which registration authority is invoked:the registrar, the registry or either?  Second, why should an individual, small business orentrepreneur be called upon to relinquish and waive (by a contract of adhesion) he/her rights tobe tried in his/her local court, in his/her local language, and with the protections of his/hersovereign law.  These are the rights of a defendant – the party being attacked.   
 DNRC believes that Professor Froomkin clearly and persuasively raises key concerns aboutjurisdiction in his critique which, in and of themselves, should be a sufficient reason for ICANNnot to adopt this WIPO draft recommendation in any form at this time:  

105.	ab“Submission to Jurisdiction.  WIPO suggests that registration authorities should requireregistrants to enter into a third party beneficiary agreement in favor of any party in theworld who feels that their intellectual property rights have been infringed by theregistration.  In this agreement the registrant would agree to be sued by any third party (1)in the country of the registrant’s domicile, and (2) the country where the registrationauthority is located.  RFC 3, para. 119.   The second prong is disturbing.  To understandwhy requires a definitional detour.  
106.	abWIPO uses the term "registration authority" to encompass both Registrars (who takeorders from registrants) and Registries (who maintain the underlying database of domainnames).  RFC 3, Chapter 2, note. 24 states that, “The term registration authority as used inthis Report may encompass in certain contexts the “registry” and the “registrar,” as thoseterms are used in the White Paper.  WIPO takes no position on the appropriate division ofadministrative and management responsibilities among the chain of authorities in theDNS, as this is a subject properly for ICANN’s consideration.”
107.	abGiven this definition, the suggestion that a registrant agree to jurisdiction where the“registration authority” is located creates problems as it encompasses both registries andregistrars.  Today, when the sole gTLD registry and the most important gTLD registrantare located in the USA, this means that any registrant in a gTLD agrees to be sued in theUSA.  I suspect that citizens of other countries may dislike this subsidy to the UStrademark bar.  
108.	abIf, as seems likely, we swiftly move to a world where there are many gTLD registrarsdistributed around the world, then it will be increasingly less problematic to askregistrants to agree to jurisdiction in the country where the registrar they deal with islocated--although I wonder whether the consumer laws of some countries will allow thisin a consumer sales contract if it means agreeing to foreign jurisdiction.  Until that point,however, even to require an agreement to be sued where the registrar is located is torequire contractual agreement to a trial in foreign forum that may be far away, in a foreignlanguage, with foreign procedures.
109.	abOn the other hand, the more we move to a world where there are many gTLD registrarsdistributed around the world, the more it is problematic to expect the registrant to agree tojurisdiction in a third country where the registry may happen to be located, a highlymobile entity with which the registrant has in any case had no direct contact. Even if thereare registrars in many countries in competition, there will be few registries and theregistrant may not have any way to select among them.  I have doubts about theenforceability of such an agreement as a matter of consumer law.  More to the point, I donot see it as fair.
110.	abMore fundamentally, it is unfair to impose jurisdictional concessions on registrantswithout imposing correlative and equal obligations on those who seek to use the WIPO-ADR proceeding to take away their registration.  As further explained below, theimposition of correlative and equal obligations becomes particularly important if theregistrant loses the WIPO-ADR proceeding and seeks to exercise her right to challengethe outcome in court.”

Section 9.g.ix.   WIPO recommendation 146, 158.	Suspension, cancellation or transfer of SLDassigned by mistake or whether there is adispute.

DNRC will address recommendation 146 first.  WIPO has proposed to create a system of rules tosolve all domain name/intellectual property disputes: “146. The Choice Between RestrictedCompetence or Competence for All Intellectual Property Disputes. Since the purpose of theprocedure is to enable the efficient resolution of disputes arising out of the intersection of thedomain name system and the intellectual property system, it seems clear that the procedureshould be limited to disputes in which it is claimed that a domain name violates an intellectualproperty right.”

In doing so, WIPO has expressly rejected the White Paper: the foundation document of this entireprocess.  The White Paper specifically withheld from WIPO its permission to look at the conflictof similar strings where there were competing rights.  It is not appropriate for ICANN to bestowon WIPO this right at this time. WIPO’s recommendations and those of all other forums that maychose to participate on this issue should be forwarded to the DNSO for debate, review andrecommendation to WIPO.  

Recommendation 158 is similarly controversial because it adopts procedures that a) are notconsistent with the White Paper and b) have not been vetted through the DNSO process.  Further,DNRC refers ICANN to the concerns of Professor Froomkin regarding the allocation of theresponsibility for payment of the costs of the proceedings.

It is untimely and inappropriate to adopt such a controversial WIPO proposal at this time.

III. Conclusion:

	DNRC requests that its comments be given special consideration in this proceeding. Webelieve that ICANN has a special responsibility to consider the views not just of those with theresources, attorneys and lobbyists to participate in every ICANN meeting, but also to theindividuals, small businesses and entrepreneurs who are developing Internet speech and e-commerce by aggressively and creatively using the Domain Name System.  This latter group isnot organized in a way to continually speak to the ICANN, if at all, but their voices and speechand services come through clearly and effectively on the Internet.   To rush into a set ofintellectual property proposals and third party protections that might in any way chill theiractivity would be a disservice to the Internet and a sad precedent going forward.  

The DNRC is convinced that ICANN is working to set up a domain name system available andaccessible to everyone.  In deference to the laws and protections of sovereign nations, a domainname owner in cyberspace should be presumed innocent until proven guilty. 

Respectfully submitted,
THE DOMAIN NAME RIGHTS COALITION