Questions to and Answers from Applicant for .kids

ICANN is in the process of reviewing DotKids' TLD Application. As outlined in the October 23, 2000 TLD Application Review Update which appears at http://www.icann.org/tlds/tld-review-update-23oct00.htm, ICANN may "gather the additional information [it] require[s] by posing specific questions to applicants in e-mail and requesting a written response."

Keeping in mind the goal to evaluate applications to operate or sponsor new TLDs in as open and transparent a manner as possible, both the questions posed by ICANN and the Applicant's responses will be publicly disclosed on the ICANN website.

Accordingly, ICANN requests your reponses to the following questions:

1. State in detail your position as it relates to possible legal claims by certain applicants and/or non-applicant third parties based on alleged trademark, patent or other violations of purported rights in the TLD identified in your application.

2. If you receive a new TLD, state whether you will indemnify ICANN for claims arising from legal challenges regarding your right to operate the new TLD. If you will indemnify ICANN, identify and describe in detail the resources you propose to utilize for the indemnification.

DotKids Responses:

1. First and foremost, to the knowledge of DotKids, Inc., there has not been a legal claim concerning alleged trademark, patent or other violations of purported rights in the gTLD name ".kids."

Regarding trademarks, we understand that current PTO policy does not protect the gTLD portion of a domain name. See PTO Examination Guide No. 2-99. In view thereof, we adopt the view that ".kids" would also not be protected as a trademark if the rights to use those letters as a gTLD name were granted to us by ICANN. In fact, our purpose in administering the .kids TLD would be to promote its wide global use in connection with Internet use. As such it would be a generic TLD name that, like the "http://www" at the beginning of a URL, does nothing to signify origin of goods or services. The second level domain name is the one that has trademark significance for third party users.

For similar reasons, we take the view that third party trademark claims arising from approval by ICANN of the generic TLD name ".kids" would likely be invalid. It should be widely recognized by users globally that such a gTLD name does not signify the origin of goods or services, making reasonable confusion unlikely.

As to patents, we take the view that a business method that is protectable would not be a method that depends upon the letters in the generic TLD; that is it would not depend upon the Top Level Domain name. ICANN grants rights to use TLD names, not rights to use particular business methods. Accordingly, we believe that any use of the generic TLD .kids as a TLD name granted by ICANN would support a claim of infringement.

DotKids, Inc. takes seriously the dignity of intellectual property rights, and has legal counsel that is knowledgeable and skilled in all aspects of intellectual property, including claims associated with domain names and procedures to resolve disputes in that area such as the Uniform Dispute Resolution Procedures. If any claim were to come to DotKids, Inc.'s attention in connection with the use of the name.kids as a gTLD, we would address it seriously, carefully, and promptly.

2. We will indemnify ICANN for claims arising from trademark and patent challenges regarding our right to operate the new TLD under the name .kids under appropriate language that will be agreed upon during the process of negotiating the contract between ICANN and DotKids, Inc. for the operation of this Top Level Domain registry. The indemnification clause would include all normal provisions regarding indemnifying and holding harmless from and against claims of the new registry and third parties for claims, losses, damages and the like. It would be consistent with the trademark and patent protection matters we describe above.

Further, we will indemnify ICANN from other claims, losses and damages outside the intellectual property arena that arise from our actions in the operation of this gTLD registry. This kind of indemnification is a normal part of contract negotiations, and is naturally tailored to address the relative risks and burdens placed on each party in the contract. Our indemnification of ICANN would be quite broad, particularly in areas that relate to our operation of the gTLD. Insofar as ICANN faces legal challenges having to do with its charter, mission, or procedures, we will cooperate with ICANN in working through such legal issues, including certainly as they affect DotKids, Inc. as a Registry. If granted the gTLD, we would anticipate sharing that burden with other registries and registrars on a fair and proportionate basis, and would enter all such discussions about doing so in good faith and with the purpose of preserving the continuing positive, transparent, global, multicultural evolution of the Internet's structure and organization.

We have included in our budget amounts for legal representation in connection with such matters, and also will be purchasing insurance that will include coverage of such intellectual property claims. We have as counsel two law firms, each of whom are major firms with significant intellectual property practices. We are confident that we can support the indemnification.