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Management of Internet Names and Addresses This document, concerning the management of the Internet Domain Name System, is a statement of policy. Though it is not intended or expected, should any discrepancy occur between the document here and that published in the Federal Register, the Federal Register publication controls. The paper is being made available through the Internet solely as a means to facilitate the public's access to this document. ______________________________________________________________________________
UNITED STATES DEPARTMENT OF COMMERCE Management of Internet Names and Addresses Docket Number: 980212036-8146-02 AGENCY: National Telecommunications and Information Administration ACTION: Statement of Policy SUMMARY: On July 1, 1997, as part of the Clinton Administration's Framework for Global Electronic Commerce,(1) the President directed the Secretary of Commerce to privatize the domain name system (DNS) in a manner that increases competition and facilitates international participation in its management. Accordingly, on July 2, 1997, the Department of Commerce issued a Request
for Comments (RFC) on DNS administration. The RFC solicited public input
on issues relating to the overall framework of the DNS administration,
the creation of new top-level domains, policies for domain name registrars,
and trademark issues. During the comment period, more than 430 comments
were received, amounting to some 1500 pages.(2)
On January 30, 1998, the National Telecommunications and Information
Administration (NTIA), an agency of the Department of Commerce, issued
for comment, A Proposal to Improve the Technical Management of Internet
Names and Addresses. The proposed rulemaking, or "Green Paper," was
published in the Federal Register on February 20, 1998, providing opportunity
for public comment. NTIA received more than 650 comments, as of March 23,
1998, when the comment period closed.(3)
The Green Paper proposed certain actions designed to privatize the management
of Internet names and addresses in a manner that allows for the development
of robust competition and facilitates global participation in Internet
management. The Green Paper proposed for discussion a variety of issues
relating to DNS management including private sector creation of a new not-for-profit
corporation (the "new corporation") managed by a globally and functionally
representative Board of Directors.
EFFECTIVE DATE: This general statement of policy is not subject
to the delay in effective date required of substantive rules under 5 U.S.C.
§ 553(d). It does not contain mandatory provisions and does
not itself have the force and effect of law.(4)
Therefore, the effective date of this policy statement is [insert date
of publication in the Federal Register].
FOR FURTHER INFORMATION CONTACT: Karen Rose, Office of International
Affairs (OIA), Rm 4701, National Telecommunications and Information Administration
(NTIA), U.S. Department of Commerce, 14th and Constitution Ave.,
NW, Washington, D.C., 20230. Telephone: (202) 482-0365. E-mail: dnspolicy@ntia.doc.gov
AUTHORITY: 15 U.S.C. § 1512; 15 U.S.C. § 1525; 47 U.S.C.
§ 902(b)(2)(H); 47 U.S.C. § 902(b)(2)(I); 47 U.S.C. § 902(b)(2)(M);
47 U.S.C. § 904(c)(1).
SUPPLEMENTARY INFORMATION:
Background:
Domain names are the familiar and easy-to-remember names for Internet
computers (e.g., "www.ecommerce.gov"). They map to unique Internet Protocol
(IP) numbers (e.g., 98.37.241.30) that serve as routing addresses on the
Internet. The domain name system (DNS) translates Internet names into the
IP numbers needed for transmission of information across the network.
U.S. Role in DNS Development:
More than 25 years ago, the U.S. Government began funding research necessary
to develop packet-switching technology and communications networks, starting
with the "ARPANET" network established by the Department of Defense's Advanced
Research Projects Agency (DARPA) in the 1960s. ARPANET was later linked
to other networks established by other government agencies, universities
and research facilities. During the 1970s, DARPA also funded the development
of a "network of networks;" this became known as the Internet, and the
protocols that allowed the networks to intercommunicate became known as
Internet protocols (IP).
As part of the ARPANET development work contracted to the University
of California at Los Angeles (UCLA), Dr. Jon Postel, then a graduate student
at the university, undertook the maintenance of a list of host names and
addresses and also a list of documents prepared by ARPANET researchers,
called Requests for Comments (RFCs). The lists and the RFCs were made available
to the network community through the auspices of SRI International, under
contract to DARPA and later the Defense Communication Agency (DCA) (now
the Defense Information Systems Agency (DISA)) for performing the functions
of the Network Information Center (the NIC).
After Dr. Postel moved from UCLA to the Information Sciences Institute
(ISI) at the University of Southern California (USC), he continued to maintain
the list of assigned Internet numbers and names under contracts with DARPA.
SRI International continued to publish the lists. As the lists grew, DARPA
permitted Dr. Postel to delegate additional administrative aspects of the
list maintenance to SRI, under continuing technical oversight. Dr. Postel,
under the DARPA contracts, also published a list of technical parameters
that had been assigned for use by protocol developers. Eventually these
functions collectively became known as the Internet Assigned Numbers Authority
(IANA).
Until the early 1980s, the Internet was managed by DARPA, and used primarily
for research purposes. Nonetheless, the task of maintaining the name list
became onerous, and the Domain Name System (DNS) was developed to improve
the process. Dr. Postel and SRI participated in DARPA's development and
establishment of the technology and practices used by the DNS. By 1990,
ARPANET was completely phased out.
The National Science Foundation (NSF) has statutory authority for supporting
and strengthening basic scientific research, engineering, and educational
activities in the United States, including the maintenance of computer
networks to connect research and educational institutions. Beginning in
1987, IBM, MCI and Merit developed NSFNET, a national high-speed network
based on Internet protocols, under an award from NSF. NSFNET, the largest
of the governmental networks, provided a "backbone" to connect other networks
serving more than 4,000 research and educational institutions throughout
the country. The National Aeronautics and Space Administration (NASA) and
the U.S. Department of Energy also contributed backbone facilities.
In 1991-92, NSF assumed responsibility for coordinating and funding
the management of the non-military portion of the Internet infrastructure.
NSF solicited competitive proposals to provide a variety of infrastructure
services, including domain name registration services. On December 31,
1992, NSF entered into a cooperative agreement with Network Solutions,
Inc. (NSI) for some of these services, including the domain name registration
services. Since that time, NSI has managed key registration, coordination,
and maintenance functions of the Internet domain name system. NSI registers
domain names in the generic top level domains (gTLDs) on a first come,
first served basis and also maintains a directory linking domain names
with the IP numbers of domain name servers. NSI also currently maintains
the authoritative database of Internet registrations.
In 1992, the U.S. Congress gave NSF statutory authority to allow commercial
activity on the NSFNET.(5) This facilitated
connections between NSFNET and newly forming commercial network service
providers, paving the way for today's Internet. Thus, the U.S. Government
has played a pivotal role in creating the Internet as we know it today.
The U.S. Government consistently encouraged bottom-up development of networking
technologies, and throughout the course of its development, computer scientists
from around the world have enriched the Internet and facilitated exploitation
of its true potential. For example, scientists at CERN, in Switzerland,
developed software, protocols and conventions that formed the basis of
today's vibrant World Wide Web. This type of pioneering Internet research
and development continues in cooperative organizations and consortia throughout
the world.
DNS Management Today:
In recent years, commercial use of the Internet has expanded rapidly.
As a legacy, however, major components of the domain name system are still
performed by, or subject to, agreements with agencies of the U.S. Government.
The Need for Change:
From its origins as a U.S.-based research vehicle, the Internet is rapidly becoming an international medium for commerce, education and communication. The traditional means of organizing its technical functions need to evolve as well. The pressures for change are coming from many different quarters: In May of 1996, Dr. Postel proposed the creation of multiple, exclusive,
competing top-level domain name registries. This proposal called for the
introduction of up to 50 new competing domain name registries, each with
the exclusive right to register names in up to three new top-level domains,
for a total of 150 new TLDs. While some supported the proposal, the plan
drew much criticism from the Internet technical community.(8)
The paper was revised and reissued.(9) The Internet
Society's (ISOC) board of trustees endorsed, in principle, the slightly
revised but substantively similar version of the draft in June of 1996.
After considerable debate and redrafting failed to produce a consensus
on DNS change, IANA and the Internet Society (ISOC) organized the International
Ad Hoc Committee(10) (IAHC or the Ad Hoc Committee)
in September 1996, to resolve DNS management issues. The World Intellectual
Property Organization (WIPO) and the International Telecommunications Union
(ITU) participated in the IAHC. The Federal Networking Council (FNC) participated
in the early deliberations of the Ad Hoc Committee.
The IAHC issued a draft plan in December 1996 that introduced unique
and thoughtful concepts for the evolution of DNS administration.(11)
The final report proposed a memorandum of understanding (MoU) that would
have established, initially, seven new gTLDs to be operated on a nonexclusive
basis by a consortium of new private domain name registrars called the
Council of Registrars (CORE).(12) Policy oversight
would have been undertaken in a separate council called the Policy Oversight
Committee (POC) with seats allocated to specified stakeholder groups. Further,
the plan formally introduced mechanisms for resolving trademark/domain
name disputes. Under the MoU, registrants for second-level domains would
have been required to submit to mediation and arbitration, facilitated
by WIPO, in the event of conflict with trademark holders.
Although the IAHC proposal gained support in many quarters of the Internet
community, the IAHC process was criticized for its aggressive technology
development and implementation schedule, for being dominated by the Internet
engineering community, and for lacking participation by and input from
business interests and others in the Internet community.(13)
Others criticized the plan for failing to solve the competitive problems
that were such a source of dissatisfaction among Internet users and for
imposing unnecessary burdens on trademark holders. Although the POC responded
by revising the original plan, demonstrating a commendable degree of flexibility,
the proposal was not able to overcome initial criticism of both the plan
and the process by which the plan was developed.(14)
Important segments of the Internet community remained outside the IAHC
process, criticizing it as insufficiently representative.(15)
As a result of the pressure to change DNS management, and in order to
facilitate its withdrawal from DNS management, the U.S. Government, through
the Department of Commerce and NTIA, sought public comment on the direction
of U.S. policy with respect to DNS, issuing the Green Paper on January
30, 1998.(16) The approach outlined in the Green Paper
adopted elements of other proposals, such as the early Postel drafts and
the IAHC gTLD- MoU.
Comments and Response: The following are summaries of and responses to the major comments that were received in response to NTIA's issuance of A Proposal to Improve the Technical Management of Internet Names and Addresses. As used herein, quantitative terms such as "some," "many," and "the majority of," reflect, roughly speaking, the proportion of comments addressing a particular issue but are not intended to summarize all comments received or the complete substance of all such comments. 1. Principles for a New System. The Green Paper set out four
principles to guide the evolution of the domain name system: stability,
competition, private bottom-up coordination, and representation.
Comments: In general, commenters supported these principles,
in some cases highlighting the importance of one or more of the principles.
For example, a number of commenters emphasized the importance of establishing
a body that fully reflects the broad diversity of the Internet community.
Others stressed the need to preserve the bottom-up tradition of Internet
governance. A limited number of commenters proposed additional principles
for the new system, including principles related to the protection of human
rights, free speech, open communication, and the preservation of the Internet
as a public trust. Finally, some commenters who agreed that Internet stability
is an important principle, nonetheless objected to the U.S. Government's
assertion of any participatory role in ensuring such stability.
Response: The U.S. Government policy applies only to management
of Internet names and addresses and does not set out a system of Internet
"governance." Existing human rights and free speech protections will not
be disturbed and, therefore, need not be specifically included in the core
principles for DNS management. In addition, this policy is not intended
to displace other legal regimes (international law, competition law, tax
law and principles of international taxation, intellectual property law,
etc.) that may already apply. The continued applicability of these systems
as well as the principle of representation should ensure that DNS management
proceeds in the interest of the Internet community as a whole. Finally,
the U.S. Government believes that it would be irresponsible to withdraw
from its existing management role without taking steps to ensure the stability
of the Internet during its transition to private sector management. On
balance, the comments did not present any consensus for amending the principles
outlined in the Green Paper.
2. The Coordinated Functions. The Green Paper identified four
DNS functions to be performed on a coordinated, centralized basis in order
to ensure that the Internet runs smoothly:
Comments: Most commenters agreed that these functions should be coordinated centrally, although a few argued that a system of authoritative roots is not technically necessary to ensure DNS stability. A number of commenters, however, noted that the fourth function, as delineated in the Green Paper, overstated the functions currently performed by IANA, attributing to it central management over an expanded set of functions, some of which are now carried out by the IETF. Response: In order to preserve universal connectivity and the
smooth operation of the Internet, the U.S. Government continues to believe,
along with most commenters, that these four functions should be coordinated.
In the absence of an authoritative root system, the potential for name
collisions among competing sources for the same domain name could undermine
the smooth functioning and stability of the Internet.
The Green Paper was not, however, intended to expand the responsibilities
associated with Internet protocols beyond those currently performed by
IANA. Specifically, management of DNS by the new corporation does not encompass
the development of Internet technical parameters for other purposes by
other organizations such as IETF. The fourth function should be restated
accordingly:
3. Separation of Name and Number Authority.
Comments: A number of commenters suggested that management of
the domain name system should be separated from management of the IP number
system. These commenters expressed the view that the numbering system is
relatively technical and straightforward. They feared that tight linkage
of domain name and IP number policy development would embroil the IP numbering
system in the kind of controversy that has surrounded domain name issuance
in recent months. These commenters also expressed concern that the development
of alternative name and number systems could be inhibited by this controversy
or delayed by those with vested interests in the existing system.
Response: The concerns expressed by the commenters are legitimate,
but domain names and IP numbers must ultimately be coordinated to preserve
universal connectivity on the Internet. Also, there are significant costs
associated with establishing and operating two separate management entities.
However, there are organizational structures that could minimize the
risks identified by commenters. For example, separate name and number councils
could be formed within a single organization. Policy could be determined
within the appropriate council that would submit its recommendations to
the new corporation's Board of Directors for ratification.
4. Creation of the New Corporation and Management of the DNS.
The Green Paper called for the creation of a new private, not-for-profit
corporation(17) responsible for coordinating
specific DNS functions for the benefit of the Internet as a whole. Under
the Green Paper proposal, the U.S. Government(18)
would gradually transfer these functions to the new corporation beginning
as soon as possible, with the goal of having the new corporation carry
out operational responsibility by October 1998. Under the Green Paper proposal,
the U.S. Government would continue to participate in policy oversight until
such time as the new corporation was established and stable, phasing out
as soon as possible, but in no event later than September 30, 2000. The
Green Paper suggested that the new corporation be incorporated in the United
States in order to promote stability and facilitate the continued reliance
on technical expertise residing in the United States, including IANA staff
at USC/ISI.
Comments: Almost all commenters supported the creation of a new,
private not-for-profit corporation to manage DNS. Many suggested that IANA
should evolve into the new corporation. A small number of commenters asserted
that the U.S. Government should continue to manage Internet names and addresses.
Another small number of commenters suggested that DNS should be managed
by international governmental institutions such as the United Nations or
the International Telecommunications Union. Many commenters urged the U.S.
Government to commit to a more aggressive timeline for the new corporation's
assumption of management responsibility. Some commenters also suggested
that the proposal to headquarter the new corporation in the United States
represented an inappropriate attempt to impose U.S. law on the Internet
as a whole.
Response: The U.S. Government is committed to a transition that
will allow the private sector to take leadership for DNS management. Most
commenters shared this goal. While international organizations may provide
specific expertise or act as advisors to the new corporation, the U.S.
continues to believe, as do most commenters, that neither national governments
acting as sovereigns nor intergovernmental organizations acting as representatives
of governments should participate in management of Internet names and addresses.
Of course, national governments now have, and will continue to have, authority
to manage or establish policy for their own ccTLDs.
The U.S. Government would prefer that this transition be complete before
the year 2000. To the extent that the new corporation is established and
operationally stable, September 30, 2000 is intended to be, and remains,
an "outside" date.
IANA has functioned as a government contractor, albeit with considerable
latitude, for some time now. Moreover, IANA is not formally organized or
constituted. It describes a function more than an entity, and as such does
not currently provide a legal foundation for the new corporation. This
is not to say, however, that IANA could not be reconstituted by a broad-based,
representative group of Internet stakeholders or that individuals associated
with IANA should not themselves play important foundation roles in the
formation of the new corporation. We believe, and many commenters also
suggested, that the private sector organizers will want Dr. Postel and
other IANA staff to be involved in the creation of the new corporation.
Because of the significant U.S.-based DNS expertise and in order to
preserve stability, it makes sense to headquarter the new corporation in
the United States. Further, the mere fact that the new corporation would
be incorporated in the United States would not remove it from the jurisdiction
of other nations. Finally, we note that the new corporation must be headquartered
somewhere, and similar objections would inevitably arise if it were incorporated
in another location.
5. Structure of the New Corporation. The Green Paper proposed
a 15-member Board, consisting of three representatives of regional number
registries, two members designated by the Internet Architecture Board (IAB),
two members representing domain name registries and domain name registrars,
seven members representing Internet users, and the Chief Executive Officer
of the new corporation.
Comments: Commenters expressed a variety of positions on the composition of the Board of Directors for the new corporation. In general, however, most commenters supported the establishment of a Board of Directors that would be representative of the functional and geographic diversity of the Internet. For the most part, commenters agreed that the groups listed in the Green Paper included individuals and entities likely to be materially affected by changes in DNS. Most of those who criticized the proposed allocation of Board seats called for increased representation of their particular interest group on the Board of Directors. Specifically, a number of commenters suggested that the allocation set forth in the Green Paper did not adequately reflect the special interests of (1) trademark holders, (2) Internet service providers, or (3) the not-for-profit community. Others commented that the Green Paper did not adequately ensure that the Board would be globally representative. Response: The Green Paper attempted to describe a manageably
sized Board of Directors that reflected the diversity of the Internet.
It is probably impossible to allocate Board seats in a way that satisfies
all parties concerned. On balance, we believe the concerns raised about
the representation of specific groups are best addressed by a thoughtful
allocation of the "user" seats as determined by the organizers of the new
corporation and its Board of Directors, as discussed below.
The Green Paper identified several international membership associations and organizations to designate Board members such as APNIC, ARIN, RIPE, and the Internet Architecture Board. We continue to believe that as use of the Internet expands outside the United States, it is increasingly likely that a properly open and transparent DNS management entity will have board members from around the world. Although we do not set any mandatory minimums for global representation, this policy statement is designed to identify global representativeness as an important priority. 6. Registrars and Registries. The Green Paper proposed moving
the system for registering second level domains and the management of generic
top-level domains into a competitive environment by creating two market-driven
businesses, registration of second level domain names and the management
of gTLD registries.
a. Competitive Registrars. Comments: Commenters strongly supported
establishment of a competitive registrar system whereby registrars would
obtain domain names for customers in any gTLD. Few disagreed with this
position. The Green Paper proposed a set of requirements to be imposed
by the new corporation on all would-be registrars. Commenters for the most
part did not take exception to the proposed criteria, but a number of commenters
suggested that it was inappropriate for the United States government to
establish them.
Response: In response to the comments received, the U.S. Government
believes that the new corporation, rather than the U.S. Government, should
establish minimum criteria for registrars that are pro-competitive and
provide some measure of stability for Internet users without being so onerous
as to prevent entry by would-be domain name registrars from around the
world. Accordingly, the proposed criteria are not part of this policy statement.
b. Competitive Registries. Comments: Many commenters voiced strong
opposition to the idea of competitive and/or for-profit domain name registries,
citing one of several concerns. Some suggested that top level domain names
are not, by nature, ever truly generic. As such, they will tend to function
as "natural monopolies" and should be regulated as a public trust and operated
for the benefit of the Internet community as a whole. Others suggested
that even if competition initially exists among various domain name registries,
lack of portability in the naming systems would create lock-in and switching
costs, making competition unsustainable in the long run. Finally, other
commenters suggested that no new registry could compete meaningfully with
NSI unless all domain name registries were not-for-profit and/or noncompeting.
Some commenters asserted that an experiment involving the creation of
additional for-profit registries would be too risky, and irreversible once
undertaken. A related concern raised by commenters addressed the rights
that for-profit operators might assert with respect to the information
contained in registries they operate. These commenters argued that registries
would have inadequate incentives to abide by DNS policies and procedures
unless the new corporation could terminate a particular entity's license
to operate a registry. For-profit operators, under this line of reasoning,
would be more likely to disrupt the Internet by resisting license terminations.
Commenters who supported competitive registries conceded that, in the
absence of domain name portability, domain name registries could impose
switching costs on users who change domain name registries. They cautioned,
however, that it would be premature to conclude that switching costs provide
a sufficient basis for precluding the proposed move to competitive domain
name registries and cited a number of factors that could protect against
registry opportunism. These commenters concluded that the potential benefits
to customers from enhanced competition outweighed the risk of such opportunism.
The responses to the Green Paper also included public comments on the proposed
criteria for registries.
Response: Both sides of this argument have considerable merit.
It is possible that additional discussion and information will shed light
on this issue, and therefore, as discussed below, the U.S. Government has
concluded that the issue should be left for further consideration and final
action by the new corporation. The U.S. Government is of the view, however,
that competitive systems generally result in greater innovation, consumer
choice, and satisfaction in the long run. Moreover, the pressure of competition
is likely to be the most effective means of discouraging registries from
acting monopolistically. Further, in response to the comments received,
the U.S. government believes that new corporation should establish and
implement appropriate criteria for gTLD registries. Accordingly, the proposed
criteria are not part of this policy statement.
7. The Creation of New gTLDs. The Green Paper suggested that
during the period of transition to the new corporation, the U.S. Government,
in cooperation with IANA, would undertake a process to add up to five new
gTLDs to the authoritative root. Noting that formation of the new corporation
would involve some delay, the Green Paper contemplated new gTLDs in the
short term to enhance competition and provide information to the technical
community and to policy makers, while offering entities that wished to
enter into the registry business an opportunity to begin offering service
to customers. The Green Paper, however, noted that ideally the addition
of new TLDs would be left to the new corporation.
Comments: The comments evidenced very strong support for limiting
government involvement during the transition period on the matter of adding
new gTLDs. Specifically, most commenters -- both U.S. and non-U.S.-- suggested
that it would be more appropriate for the new, globally representative,
corporation to decide these issues once it is up and running. Few believed
that speed should outweigh process considerations in this matter. Others
warned, however, that relegating this contentious decision to a new and
untested entity early in its development could fracture the organization.
Others argued that the market for a large or unlimited number of new gTLDs
should be opened immediately. They asserted that there are no technical
impediments to the addition of a host of gTLDs, and the market will decide
which TLDs succeed and which do not. Further, they pointed out that there
are no artificial or arbitrary limits in other media on the number of places
in which trademark holders must defend against dilution.
Response: The challenge of deciding policy for the addition of new domains will be formidable. We agree with the many commenters who said that the new corporation would be the most appropriate body to make these decisions based on global input. Accordingly, as supported by the preponderance of comments, the U.S. Government will not implement new gTLDs at this time. At least in the short run, a prudent concern for the stability of the system suggests that expansion of gTLDs proceed at a deliberate and controlled pace to allow for evaluation of the impact of the new gTLDs and well-reasoned evolution of the domain space. New top level domains could be created to enhance competition and to enable the new corporation to evaluate the functioning, in the new environment, of the root server system and the software systems that enable shared registration. 8. The Trademark Dilemma. When a trademark is used as a domain
name without the trademark owner's consent, consumers may be misled about
the source of the product or service offered on the Internet, and trademark
owners may not be able to protect their rights without very expensive litigation.
For cyberspace to function as an effective commercial market, businesses
must have confidence that their trademarks can be protected. On the other
hand, management of the Internet must respond to the needs of the Internet
community as a whole, and not trademark owners exclusively. The Green Paper
proposed a number of steps to balance the needs of domain name holders
with the legitimate concerns of trademark owners in the interest of the
Internet community as a whole. The proposals were designed to provide trademark
holders with the same rights they have in the physical world, to ensure
transparency, and to guarantee a dispute resolution mechanism with resort
to a court system.
The Green Paper also noted that trademark holders have expressed concern
that domain name registrants in faraway places may be able to infringe
their rights with no convenient jurisdiction available in which the trademark
owner could enforce a judgment protecting those rights. The Green Paper
solicited comments on an arrangement whereby, at the time of registration,
registrants would agree to submit a contested domain name to the jurisdiction
of the courts where the registry is domiciled, where the registry database
is maintained, or where the "A" root server is maintained.
Comments: Commenters largely agreed that domain name registries
should maintain up-to-date, readily searchable domain name databases that
contain the information necessary to locate a domain name holder. In general
commenters did not take specific issue with the database specifications
proposed in Appendix 2 of the Green Paper, although some commenters proposed
additional requirements. A few commenters noted, however, that privacy
issues should be considered in this context.
A number of commenters objected to NSI's current business practice of
allowing registrants to use domain names before they have actually paid
any registration fees. These commenters pointed out that this practice
has encouraged cybersquatters and increased the number of conflicts between
domain name holders and trademark holders. They suggested that domain name
applicants should be required to pay before a desired domain name becomes
available for use.
Most commenters also favored creation of an on-line dispute resolution
mechanism to provide inexpensive and efficient alternatives to litigation
for resolving disputes between trademark owners and domain name registrants.
The Green Paper contemplated that each registry would establish specified
minimum dispute resolution procedures, but remain free to establish additional
trademark protection and dispute resolution mechanisms. Most commenters
did not agree with this approach, favoring instead a uniform approach to
resolving trademark/domain name disputes.
Some commenters noted that temporary suspension of a domain name in
the event of an objection by a trademark holder within a specified period
of time after registration would significantly extend trademark holders'
rights beyond what is accorded in the real world. They argued that such
a provision would create a de facto waiting period for name use, as holders
would need to suspend the use of their name until after the objection window
had passed to forestall an interruption in service. Further, they argue
that such a system could be used anti-competitively to stall a competitor's
entry into the marketplace.
The suggestion that domain name registrants be required to agree at
the time of registration to submit disputed domain names to the jurisdiction
of specified courts was supported by U.S. trademark holders but drew strong
protest from trademark holders and domain name registrants outside the
United States. A number of commenters characterized this as an inappropriate
attempt to establish U.S. trademark law as the law of the Internet. Others
suggested that existing jurisdictional arrangements are satisfactory. They
argue that establishing a mechanism whereby the judgment of a court can
be enforced absent personal jurisdiction over the infringer would upset
the balance between the interests of trademark holders and those of other
members of the Internet community.
Response: The U.S. Government will seek international support
to call upon the World Intellectual Property Organization (WIPO) to initiate
a balanced and transparent process, which includes the participation of
trademark holders and members of the Internet community who are not trademark
holders, to (1) develop recommendations for a uniform approach to resolving
trademark/domain name disputes involving cyberpiracy (as opposed to conflicts
between trademark holders with legitimate competing rights), (2) recommend
a process for protecting famous trademarks in the generic top level domains,
and (3) evaluate the effects, based on studies conducted by independent
organizations, such as the National Research Council of the National Academy
of Sciences, of adding new gTLDs and related dispute resolution procedures
on trademark and intellectual property holders. These findings and recommendations
could be submitted to the board of the new corporation for its consideration
in conjunction with its development of registry and registrar policy and
the creation and introduction of new gTLDs.
In trademark/domain name conflicts, there are issues of jurisdiction
over the domain name in controversy and jurisdiction over the legal persons
(the trademark holder and the domain name holder). This document does not
attempt to resolve questions of personal jurisdiction in trademark/domain
name conflicts. The legal issues are numerous, involving contract, conflict
of laws, trademark, and other questions. In addition, determining how these
various legal principles will be applied to the borderless Internet with
an unlimited possibility of factual scenarios will require a great deal
of thought and deliberation. Obtaining agreement by the parties that jurisdiction
over the domain name will be exercised by an alternative dispute resolution
body is likely to be at least somewhat less controversial than agreement
that the parties will subject themselves to the personal jurisdiction of
a particular national court. Thus, the references to jurisdiction in this
policy statement are limited to jurisdiction over the domain name in dispute,
and not to the domain name holder.
In order to strike a balance between those commenters who thought that
registrars and registries should not themselves be engaged in disputes
between trademark owners and domain name holders and those commenters who
thought that trademark owners should have access to a reliable and up-to-date
database, we believe that a database should be maintained that permits
trademark owners to obtain the contact information necessary to protect
their trademarks.
Further, it should be clear that whatever dispute resolution mechanism
is put in place by the new corporation, that mechanism should be directed
toward disputes about cybersquatting and cyberpiracy and not to settling
the disputes between two parties with legitimate competing interests in
a particular mark. Where legitimate competing rights are concerned, disputes
are rightly settled in an appropriate court.
Under the revised plan, we recommend that domain name holders agree
to submit infringing domain names to the jurisdiction of a court where
the "A" root server is maintained, where the registry is domiciled, where
the registry database is maintained, or where the registrar is domiciled.
We believe that allowing trademark infringement suits to be brought wherever
registrars and registries are located will help ensure that all trademark
holders - both U.S. and non-U.S. - have the opportunity to bring suits
in a convenient jurisdiction and enforce the judgments of those courts.
Under the revised plan, we also recommend that, whatever options are
chosen by the new corporation, each registrar should insist that payment
be made for the domain name before it becomes available to the applicant.
The failure to make a domain name applicant pay for its use of a domain
name has encouraged cyberpirates and is a practice that should end as soon
as possible.
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