Final Report of Working Group B (posted 12 June 2000)

The Working Group has reached consensus on the following three items:

(1) Some type of mechanism, yet to be determined, is necessary in connection with famous trademarks and the operation of the Domain Name System.

Comment: In October 1999, there was a vote among the participants of the Working Group at that time and a consensus was reached (30 out of 42 voters - 71%) that additional mechanisms were needed to protect famous trademark interests in connection with the domain name system. Notwithstanding a controversy over the tabulation of votes during this ballot (see Kathy Kleiman's report) at worst there was a rough consensus in support of is position.

(2) There does not appear to be the need for the creation of a universally famous marks list at this point in time.

Comments: The creation of a universally famous marks list was a political hot potato. Issues such as who should create the list, the criteria that should be used, limits on the size of the list, etc. were hotly debated with no clear compromise in sight. The current Sunrise proposal being advanced by the Intellectual Property Constituency (IPC) and a significant portion of the Registrar Constituency does not require the creation of such a list. This position appears to coincide with the Non-Commercial Constituency that has vehemently opposed the creation of such a list. However, if and when a universally famous marks list is created, it would be prudent for ICANN to consider whether the list is applicable to the then-existing gTLD registration process.

(3) The protection afforded to trademark owners should depend upon the type of top-level domains that are added to the root.

Comments: This consensus item is based upon the recognition in the Registrar and IPC proposals that this mechanism is probably not suitable for every new top-level domain, especial certain non-commercial domains. However, this consensus item is conditioned on many tangential issues, i.e. the scope of chartered gTLDs, the enforcement mechanism for charter, etc. Defining the procedures for classifying what constitutes a non-commercial top-level domain, is better left to another group. However, nothing in the consensus item should be construed as creating immunity from the UDRP or other legal proceeding should a domain name registrant in a charted top-level domain violate the charter or other legal enforceable rights.

Conclusion

I regret to inform the Names Counsel that there does not appear to be consensus among the Working Group B participants as to the type of mechanism that should be incorporated into the rollout of new top-level domains. However, I encourage the Names Counsel Representatives to review the proposals contained in my April 17, 2000 formal report. During the comment period, the most hotly debated proposal involved the Sunrise Proposal. The supporters and detractors of this proposal each made meritorious arguments in behalf of their position. I encourage the Names Counsel and/or Board to continue exploring other ideas and I stand ready to assist in whatever way possible.

Respectfully Submitted,

Michael D. Palage