It is the purpose of the policies described in this document to create a TLD which ensures those who register SLDs under this designation will use them to run a “real business” on the Internet. By limiting the availability of the New TLD in this way, we will very significantly reduce the problem of “cyber-hoarders” for genuine Internet entrepreneurs.
We define cyber-hoarders as those that buy up Internet names with no intention of using them for any real business purpose. Rather, they hold the names hostage until a genuine entrepreneur that wants the name for a legitimate business is prepared to pay the ransom – which in most cases is many thousands of dollars. Most “.com” names, which are a single word, a recognizable phrase in common use, or a three or four letter acronym, have been purchased. Less than 30% point to an active web site. In other words, the large majority have been abducted by cyber-hoarders.
This is a big problem for new Internet entrepreneurs. On the Internet, name is everything. In many cases, the entrepreneur has no choice but to settle for a second-best name, or to pay off a cyber-hoarder. The New TLD designation will give the entrepreneur an alternative.
Each application for an SLD under the New TLD will be assessed according to various accounting and business criteria (described in sections E16.6.1 and E16.6.2 below), and only approved if, according to these criteria, the applicant is an Eligible Business. The entrepreneur will pay $2,000 for an approved SLD under the New TLD. The entrepreneur can therefore get the domain name that they want (as long as its not owned by another Eligible Business) for a less than the price of paying off a cyber-hoarder.
We will also check all applications to ensure that they do not attempt to infringe on a Major Mark or an existing trademark. The procedures used for these checks are explained in section E5.0.6.
These initial proposed minimum consumer protection policies are a subset of the OECD guidelines on consumer protection (http://www.oecd.org/dsti/sti/it/consumer/CPGuidelines_final.pdf) and the Trans-Atlantic Consumer Dialogue's recommendations on minimum disclosure standards for electronic commerce (http://www.tacd.org/ecommercef.html#minimum):
For the businesses to consumer (b2c) selling of goods and services online, the domain holder will agree to make at least the following disclosures on their site:
a. Name of the company,
b. Geographic address of the company,
c. Phone, fax and e-mail of the company,
d. Geographic targeting, length and validity of the offer,
e. Price and currency of the purchase including all relevant costs,
f. Terms of delivery,
g. Guarantees, warranties or other provisions relating to after-sales service,
h. Information on procedures for complaints,
i. Conditions related to return, exchange, cancellation, refund policy,
k. Information on the applicable law and jurisdiction.
The domain holder will also agree to give the consumer an opportunity to confirm the order, and to cancel the transaction prior to the confirmation.
Initially, we will offer names only registered at the second level, as in “registered-name.biz”. In the longer term we would, however, hope to put together country sub-domains using the existing two letter country code TLD strings as the sub-domain designators, such as: registered-name.uk.biz (United Kingdom), registered-name.ci.biz (Ivory Coast), registered-name.cy.biz (Cyprus), etc. There are two reasons for this: firstly, it will increase the number of SLDs available under the New TLD. Secondly, as is explained in section III, the New TLD is restricted in such a way as to aim to only allow registration of names by “real businesses” as opposed to by cyber-hoarders and name hoarders. Whereas, we believe the parameters that we intend to use to make this determination are reasonable throughout the major industrialized countries; it will probably be appropriate to create slightly lower hurdle levels for smaller countries or for developing countries. Determining exactly what these hurdles should be will involve a considerable amount of research and consultation for each country. We therefore intend to phase these country code sub-domains in gradually over time as we develop appropriate parameters.
As the .com TLD is unrestricted, registrars of .com SLDs are able to instantly confirm registration after they have determined the availability of the requested name. Under the New TLD, registrants will have to submit detailed application materials such as bank statements and proof of trademark ownership etc. These materials will then be examined by the TLD Management Group to determine whether the registration should be granted.
The processing of applications therefore involves the registrar and the Registry Operator. The main responsibility of the registrar is that of accepting applications. The Registry Operator has the responsibility of doing all the automatic checking that is necessary (see section E16.6.1), recording the registration and maintaining a centralized database, and the administrative functions of carrying out all of the manual analysis and processing of applications.
(a) Present standardized materials giving a full explanation of the conditions for Reservation and Registration (as explained in Section III);
(b) Perform a name check to determine whether the name is Available;
(c) Perform various automatic checks through interface with the Registry Operator system to determine whether the applicant is eligible to apply for Reservation or Registration of the requested SLDs (see sections E16.7.1 and E16.13 );
(d) Provide a facility whereby the Applicant can specify the permissible number of Substantially Similar Names (see section E16.5);
(e) If the Primary Name is Available and the Applicant is eligible to apply, accept the Application from the Applicant for Reservation or Registration of the Primary Name and the requested Substantially Similar Names, and accept payment for the Application;
(f) Submit a message to the Registry Operator, which will change the Name Status from Available to Application in Process, sub-category Pending Review for all requested names;
(g) If the Primary Name has either Name Status “Reserved” or “Application in Process”, the registrar will offer the Applicant the opportunity to join the Waiting List and accept payment for this service (see section E16.4);
(h) Accept a message from the Registry when the application process is complete, informing the registrar of the status of the Application;
(i) As explained below, the Whois database is maintained by the Registry and not by each individual Registrar. Each registrar is given an interface to this database and will supply such information to their users.
It is proposed to pay registrars a $100 fee for each Application that is accepted for Registration. If a name is Reserved, a $50 fee will be paid to the registrar. If the reservation is later converted to a Registration at that time, the registrar will be paid an additional $50 fee.
(a) Provide all of the necessary interfaces to registrars to allow them to perform the tasks listed above;
(b) Perform instant checks of name availability and applicant eligibility, and return the results to the registrar to allow the registrar to perform the actions listed in E4.1(b) and E4.1(c);
(c) Change the name Status from Available to Application in Process, sub-category Pending Review, when the application is received from the registrar;
(d) Accept messages from the TLD Management Group to update the Name Status as it is changed throughout the process of Application Review (see section E.5.0.2);
(e) Provide a centralized Whois service which is made available through an interface to all accredited registrars. As the application is not instantly granted by a registrar, but rather by the TLD Management Group after an extensive review of submitted materials, it makes sense that the Whois database should be centralized and therefore held by the Registry Operator as opposed to distributed among registrars.
The administrative roles of registry operator will be carried out by the TLD Management Group. These roles are:
(a) To initiate the processing of application materials submitted by the Applicant;
(b) To interact with the Client by e-mail, by mail, and over the telephone, to obtain such information as is necessary to process the Application and to inform the Applicant of the progress of that Application;
(c) To inform the Registry Operator of the status of the Application as the process proceeds so that the Name Status is appropriately updated;
(d) To receive payments from applicants for Registration and other services and to returns fees or portions of those fees where appropriate (see Section E9).
A fuller description of the process of Registration and Reservation of names, and the assignment of responsibilities between the different parties is given in Section 3 of this document.
For a period of four months, Registration Services will be provided by the Registry Operator and by one other registrar. We are currently in discussions with two of the largest registrars who have both expressed a very strong interest in providing registration services. We will restrict the number of registrars over this first three-month period, as this period covers the period of the Initial Name Lottery (see section E11.2), and the first two months of regular registration operations. It will be our objective to ensure over this period that our software and processes for receiving and processing applications work smoothly before bringing in further registrars.
After this initial start-up period, we will aim to add one registrar per month over the following six months. In this early stage, we will select registrars randomly from applicants subject to a minimum registration rate of at least 15,000 .com/.net/.org names per month over the preceding three months. After this period, we accept registrars on a more general basis. We will allow only ICANN accredited registrars to apply to become a registrar for the New TLD.
In the New TLD price is an essential element of strategy which has the function of deterring frivolous applications. In addition (see Registry Operator Proposal), much of the cost of application will be used in processing applications to determine whether or not the applicant is an “Eligible Business”. As a result, there will be no price competition under the New TLD.
E5.0.1 General Approach
E5.0.2 A Summary of the Procedure
for Name Approval After Start-Up Period
(a) The Applicant will specify an Area of Business and main Market Location. The location can be specified as a specific country or as “worldwide”;
(b) If the Applicant business has a registered trademark for the Area of Business and Market Location, or any portion of that location (say the Applicant has a primary market of the E.U. and has a trademark for Germany), it will be granted Name Approval;
(c) If the Applicant business has no registered trademark, a basic trademark search (see E5.0.3 below) will be conducted for the specified name in the specified area;
(d) If there is a clear trademark infringement Name Approval will not be granted;
(e) If there is not a clear Trademark infringement Name Approval will be granted;
(f) All Applicants will be informed that they should carry out their own thorough trademark checks and that the basic check carried out in processing the Application is a screening process only, and absolutely no guarantee that their SLD will not infringe on an existing trademark or famous name;
(g) All Applicants will be required to agree to a slightly modified version of the Uniform Dispute Resolution Policy (see section E6);
(h) At the time the Application is submitted, the requested name will be publicly posted on a “Listing of Names Applied For” (see section E5.0.4 below) available at the Registry website or at participating registrar websites. Those believing that their trademark rights will be infringed by the proposed name will be able to submit a protest to the Registration Administrator and the Applicant;
(i) Except in cases of very clear trademark infringement, such protests will not result in Name Approval being withheld;
(j) If a dispute over an SLD is taken to arbitration, the complainant will be able to obtain records of the parameters under which the application was submitted (business area and Market Location), and any protests that were submitted as possible evidence of bad faith on the part of the registrant.
During the Registration process, therefore, our approach will be relatively liberal except in the case of very blatant trademark infringement. We expect, however, that because of the openness of our overall procedure, and because of the costs involved in registering and in subsequent arbitration proceedings, and because of the likelihood of such proceedings being filed in the cases of trademark infringement, that we will deter many cases of intentional abuse of intellectual property rights.
It should be noted that if a Name Approval is not granted, but Business Approval is granted (see sections E16.7.1 and E16.6.1), the applicant would be allowed to specify an alternative name for an additional cost of $300. If both Name Approval and Business Approval are rejected, $1,500 or the $2,000 will be refunded to the applicant.
The following sections (E5.0.3 - E5.0.7) provide greater
detail on the process E5.0.2 (a)-(j) listed above.
As stated in 5.0.2 (b) above, when an application is submitted, the Applicant will also be required to state the primary country in which they expect to do business. The Applicant may also say that it is their intention to do business worldwide.
These two elements of information (field of business and primary market location) will be recorded and available to view in the Whois database.
If the Applicant is able to show trademark rights for the field of business and the primary market in which they wish to operate, Name Approval will be granted to that applicant.
If the applicant has no trademark rights and gives a primary Market Location for which a trademark database is available, a trademark search will be done for that country. We expect to be able to provide trademark searches for the major industrialized countries. If the Applicant specified a worldwide market, we will conduct a search for the United States and for the E.U. The trademark search will only be conducted for the exact name specified and not for variants of the name. If the requested name is not already trademarked for the business field and for the Market Location, Name Approval will be granted.
If the Applicant gives a primary Market Location for which no trademark database is available a basic search will be conducted for the United States and the E.U. If the Registration Administrator sees potential overlap with one of these major markets, he/she may ask for further evidence that the business actually exists and performs the activities claimed. For example, if an Applicant were to request Snapple.biz to sell auto-parts in Nepal (which, let us assume, is a country for which Snapple beverages has no trademark), the Registration Administrator could ask for further specific evidence such as invoices, catalogs etc and would only give Name Approval if the Applicant was able to demonstrate to his/her satisfaction the existence of such business activities.
We will only check the U.S. and the E.U. for applications giving a “worldwide” market specification and perform only a basic search because the costs of doing a broader search would become prohibitive (a worldwide search on all possible variants of a specified name could cost over $1,000).
In general, we will emphasize to Applicants that the achievement of Name Approval is no guarantee that the requested SLD does not infringe an existing trademark, and that we strongly recommend that Applicants perform their own trademark searches. The purpose of our trademark search is only to provide an initial screen and prevent some accidental infringements and some of the more blatant attempts at cyber-hoarding.
E5.0.4 Listing of Names Applied For
The Listing of Names Applied For will ultimately be searchable by sub-string. So that, for example, the Coca-Cola Company will be able to search for “coke” and find Applications for drinkacoke.biz, or ihatecoke.biz, and so on. This feature may not be implemented in the initial phases of the New TLD.
E5.0.5 Substantially Similar Names
Various ICANN working group reports have considered proposals that Applicants should be able to buy or block off common misspellings of their trademarked name: “trademark owner would be eligible to register a limited number of domain name variations that were similar or nearly identical to the registered mark” (ICANN Report of Working Group B 18 April 2000). We do not propose to allow Applicants to specify common misspellings for a number of reasons:
(a) There is less need to allow trademark owners to block-off variations of their name, as each name applied for will be checked against a trademark database and the application will be rejected if the name is an obvious violation of an existing trademark or famous name (see section 5.0.3). For example, an Applicant would not be allowed to register Macdonaldsburgers.biz, Fordtrucks.biz or Snapplejuice.biz, and would have their application rejected and lose a proportion of their application fee for trying to do so. Note that the system proposed under the New TLD has considerable benefits, as the process of manual checking allows us to reject names that would otherwise be very difficult to screen automatically.
(b) We feel that under many circumstances we will not be competent to determine whether a given misspelling is or is not taking unfair advantage of an existing famous name. We feel that such issues are much better handled by an approved arbitration panel, or if absolutely necessary, in the courts. For example, if a company wished to register “Coca-Loca” (Spanish for Crazy Cola), it is not instantly clear whether or not this infringes the rights or dilutes the trademark of “Coca-Cola”.
(c) All applicants will agree to a slightly modified version of the Uniform Domain Name Dispute Resolution Policy (see section E6), and therefore will be subject to arbitration hearings and the possible removal of their SLD if they lose arbitration.
(d) Applicants will be paying a $2,000 fee and going to considerable efforts to register their name, and are therefore are less likely to register a name which they may be likely to lose.
In summary, cost and effort involved in application, and the likelihood that the application will be rejected or lost through arbitration proceedings, make it less likely that Applicants will register common misspellings of famous names. If such names are registered, the injured party can relatively easily have the name taken away by going to arbitration.
We do not feel ourselves competent to determine what is or isn’t a “famous name”. We have therefore decided to use a set of objective criteria to define what we call “Major Marks”. Major Marks are given priority during the Initial Name Lottery (see section Ell.2), but at no time subsequent to this.
Currently, the criteria by which a Major Mark are identified are the following:
The business must be able to supply a qualified auditor’s letter attesting to at least one of the following:
(a) Annual Sales of at least $200 million;
(b) At least 1500 dedicated outlets (e.g. MacDonald’s, Gap Stores, Hilton Hotels, etc) and $100 million of revenues;
(c) At least 10,000 retail outlets that stock their product (e.g. Champion Spark Plugs, Stanley Tools, Snapple Beverages, etc) and $100 million of revenues.
These criteria may be adjusted prior to the commencement of the Initial Name Lottery.
Our reason for giving no subsequent priority to Major Marks after the Initial Name Lottery is because of the difficulty of implementing such a procedure. Although we are able to check submitted documents to determine whether an Applicant has a Major Mark, we do not have a complete listing of such marks. It would therefore be impossible to determine whether a given Application infringed on the trademark rights of a Major Mark. We also believe that such disputes are better handled by arbitration proceedings than during the Application process.
All Applicants will be required to agree to the NTDRP, which is a slightly modified version of Uniform Domain Name Dispute Resolution Policy (see section E6), which will require them to submit to arbitration proceedings in response to complaints of Intellectual Property Infringement, of improper site transfer or of having an inactive site.
The Application cost is $2,000. If the Application is rejected, $500 of this fee is retained. The application is scrutinized for blatant trademark infringement (section E5.0.3), and the requested SLD is publicly posted for possible objection. In addition, all registrants agree to submit to arbitration proceedings under a slightly modified version of the Uniform Domain Name Dispute Resolution Policy (see section E6). This makes it relatively likely that attempts to cynically register the trademarks of others will be rejected, or that the name will be lost through arbitration proceedings. We believe that the cost and effort involved in application, and the likelihood that the application will be rejected or lost through arbitration proceedings, make it less likely that Applicants will register existing trademarks or common misspellings of famous names.
Screening will be carried out by Registration Administrators through the processes described in Section 5.0.3, and by the general public through the Listing of Names Applied For (see Section 5.0.4).
E5.4 What measures do you propose
to comply with applicable trademark and anti-cyberhoarding legislation?
We will require that all Registrants agree to a slightly expanded version of the Uniform Dispute Resolution Policy. In this document this is called the New TLD Dispute Resolution Policy or NTDRP. All existing provisions of the Uniform Dispute Resolution Policy will remain in place. Our modifications will require registrants to submit to arbitration proceedings “a mandatory administrative proceeding” if a complainant asserts that the SLD is being used for an interest other than that of the Registrant, or that the SLD is being used for the benefit of a business that does not meet the Minimum Maintenance Criteria (section E16.9). The first of these additional provisions will be added so as to prevent the transfer of names without going through the Transfer Procedures described in section E16.11. The second provision will be added to allow the complainant to “free-up” names that are not being actively used for a business purpose.
If the complainant is successful in showing that the SLD is being used for an interest other than that of the registrant, the registrant will be given the opportunity to transfer the SLD under the procedures listed in Section E16.11 to the business whose interests are promoted by the site. If the requested transfer does not meet eligibility criteria (see Section E16.11.1), the SLD will be taken from the existing registrant and returned to the pool of available names. If the complainant is successful in showing that the business using the SLD does not meet the Minimum Maintenance Requirements, the SLD will also be returned to the pool of available names.
The exact legal language of these new provisions is as yet to be determined.
During the term of this Agreement, on a daily basis or on such other schedule as ICANN may from time to time specify, the Registry Operator shall submit to ICANN or to an independent escrow agent ICANN designates, an electronic copy, in a format specified by ICANN, of the database as designated by ICANN. The escrowed data shall be held by ICANN or the escrow agent under an escrow agreement that specifies that the escrowed data may be used only in the event that Registry accreditation agreement is terminated or expires without renewal.