William W. Burrington
Director, Law and Global Public Policy
Associate General Counsel

March 23,1998

The Honorable Clarence L. Irving
Assistant Secretary of Commerce
Director, National Telecommunications
and Information Administration
Room 4898
U.S. Department of Commerce
14th and Constitution Avenue, NW
Washington, DC 20230

Re: Improvement of Technical Management of Internet Names and Addresses,
Proposed Rule, Docket No. 980212036-8036-01

Dear Mr. Irving:

Pursuant to the February 20,1998 notice of a Proposed Rule and request for comments concerning the Improvement of Technical Management of Internet Names and Addresses, America Online, Inc. (AOL) submits the following comments.

AOL accommodates more than 691 million user sessions per month, as many as 660,000 of which occur simultaneously at peak times, providing its members with Internet access in more than 100 countries around the globe. With over 11 million members, AOL's membership currently exceeds the combined circulation of The New York Times, The Wall Street Journal, The Washington Post, The Los Angeles Times, and of Time and Newsweek. Importantly, more than 1 million of AOL's members reside outside of the United States. AOL's international membership and presence is rapidly expanding as governments and private citizens begin to realize the vast potential of the Internet for communications, entertainment and commercial purposes. Indeed, at the present time, nearly one-third of the .com registrants are based outside of the U.S.

As the world's largest Internet service provider, AOL is vitally concerned about the ongoing domestic and international debates concerning the future administration of the domain name system (DNS) and management of the Internet's critical technical functions. AOL's primary objective, on its own behalf and on behalf of its 11 million members, is to support the transition of the Internet from the U.S. Government to a non-governmental entity in a manner that will maintain consumer and commercial confidence in the operation and future potential of the Internet. One of the key issues to maintaining consumer and commercial confidence is ensuring that trademark rights are respected and protected online, which requires the development of better mechanisms to prevent as many potential conflicts between trademarks and domain names as possible and implementation of new means to more expeditiously resolve those conflicts that do arise.

AOL has participated actively in the ongoing debate concerning the future administration and management of the DNS and the Internet's technical functions and intends to continue to do so until these matters are resolved satisfactorily. AOL believes it is imperative that those involved in this process fully recognize and take into account the unique international aspects of this new communications technology as they work to find solutions to the many critical challenges that result from the Internet's operation as a global medium. AOL sincerely appreciates the efforts of the U.S. Government to advance the debate through the release of the U.S. Green Paper and welcomes the opportunity to provide comments on the proposed U.S. approach to these important issues.

AOL agrees with the U.S. Government that certain functions such as coordination of the root server network, assignment of technical protocol parameters to maintain connectivity, decision-making concerning the possible introduction of new TLDs, and allocation of number blocks to registries must be coordinated through one, impartial non-governmental entity. AOL also strongly agrees that such an entity must be representative of Internet users.

In AOL's view, it is of the utmost importance that whatever system is adopted reflect not only the intense and vested interests of the United States in the Internet, but also the important and vested interests of foreign governments, businesses, consumers, users, and others in the growth and stability of this global medium. Indeed, as the U.S. Green Paper acknowledges, one of the reasons why the management of the DNS and Internet's technical functions must be altered is that the Internet has evolved from a U.S.-based research vehicle and is "rapidly becoming an international medium for commerce, education and communication." As the Green Paper accurately states, "an increasing percentage of Internet users reside outside of the U.S., and those stakeholders want a larger voice in Internet coordination."

AOL does not believe that the U.S. proposal adequately reflects the legitimate need and desire for the larger international community, including stakeholders in Europe, Asia, Africa and Latin America, to be directly involved in decisions regarding the future administration of the DNS and management of the coordinated functions of the Internet. In this regard, AOL notes with interest that the U. S. Green Paper does not mention or appear to borrow from other proposals for managing the DNS including the much-debated generic Top Level Domain - Memorandum of Understanding (gTLD-MoU). The failure to even acknowledge the existence of such proposals, around which a great deal of consensus has been built in the international community, sends an inappropriate signal that the U.S. intends to essentially exclude non-U.S. stakeholders from developing and implementing an acceptable plan for the upcoming transition. We would strongly urge that the ultimate direction of the U.S. Government's proposal be altered to reflect the international reality of the Internet.

In comments submitted to the State Department's Office of International Communications and Information Policy on October 8,1997 (in response to a request for comments from the ITU), AOL stated that while it had serious concerns regarding certain aspects of the gTLD-MoU, including, in particular, aspects of the proposal relating to trademark issues, AOL supported building on the progress that had been made in the international community in connection with the development of the gTLD-MoU. AOL continues to believe that, given the important interests of the international Internet community and the brief period of time available to design and implement a new system, it would be prudent to take advantage of the emerging consensus on elements of the gTLD-MoU to the greatest extent possible.

The Long Term Solution

The U.S. Green Paper acknowledges the serious disagreement among stakeholders concerning whether new gTLDs should be introduced, when and how they might be added, and the possible impact on consumers and trademark owners. The Green Paper concludes, however, that the addition of up to five new gTLDs during the period in which management of the DNS is transferred to the non-governmental entity would be consistent with the goals of increasing domain space without destablizing the Internet. The Government notes, in this regard, that directory services will likely be available in the future to permit users to find the sites they seek regardless of the number of top level domain names that are established.

AOL believes that the solution to the myriad problems posed by the current domain name system both in terms of registration congestion and trademark conflict is to proceed in a timely manner toward the introduction of a directory based system of domain names with the ultimate goal of eliminating TLDs entirely. In such a system, multiple registrations could exist for the same name. Consumers would be able to distinguish among identical names by searching a directory tied to a central database that would provide additional information about each registered entry. The maintenance of the registry database would have to be centrally controlled, however, the database would be easily accessible to users through a slight modification to browsers. The system would be designed so that a search for a non-unique name would instantly pull up the relevant portion of the domain name registry, permitting the user to select the desired entity. It should be noted that there is already a new service being offered to assign "simple" names with automatic mapping to a universal resource location.

A directory based system would offer numerous advantages over the present TLD system. First, as the U.S. proposal acknowledges, a central searchable database for all registrations would permit trademark holders to effectively monitor use of their marks. The problem of cybersquatting would be virtually eliminated as names would no longer be exclusive. Competition also would be more easily introduced in the registration process since without a limited number of TLDs there would be no reason to restrict the number of registries. This could serve to eliminate or temper antitrust concerns that may exist. In AOL's view, such a system is the only answer to accommodate the projected growth of the Internet. Work to design and implement a total directory based system should be undertaken immediately by relevant organizations and institutions regardless of what other decisions are made with respect to domain name management and administration.

Creation of the New Non-Governmental Entity and Representation Issues

AOL is concerned, as are others, that the new non-governmental entity to which certain administrative and management functions will be transferred must be representative of the entire Internet community. Specifically, AOL believes representation must include, among others: (a) ISP/OSP organizations, commercial users and trademark owners from the U.S., Europe, Asia, Africa and Latin America through the International Trademark Association and other similar organizations; (b) public interests through educational foundations or institutions and consumer groups; and (c) international organizations with proven capabilities, expertise and impartiality in areas of relevance to the management of the DNS and central technical functions including WIPO and the ITU. AOL also believes the idea of designating a temporary seat on the "board" of this non-governmental entity for the U.S. Government should be explored as a means for ensuring a smooth transition. The structure and representation of the non-governmental entity should be revisited at designated intervals in the future to ensure that the organization continues to adequately reflect the changing composition of the Internet community. Means for maintaining flexibility in this regard should be built into the charter of the non-governmental entity.

Introduction of New Generic Top Level Domain Names

AOL does not believe that any concrete need exists that would justify an increase in the number of gTLDs in the near term while a directory based system is under development. AOL would note, in this regard, that the U.S. Government's proposal to immediately establish up to five unspecified domain names without any identified need is somewhat inconsistent with its call for the introduction of new domains in a rational and orderly manner by a new non-governmental entity. Moreover, AOL fears that the establishment of additional gTLDs at this sensitive juncture -- when a permanent solution to reduce or resolve trademark conflicts has not been identified and the new non-governmental entity is not yet in place -- would create a rush for new registrations that could overwhelm the system, creating the very instability all stakeholders seek to avoid and further exacerbating conflicts between trademarks and domain names.

AOL supports the Government's proposal for a study on the effects of adding new TLDs and would suggest that decisions concerning this issue be delayed until the study is completed. AOL believes that the best approach would be to maintain the status quo with respect to the existing gTLDs until the new non-governmental entity can be agreed upon and established. This would permit the international Internet community to create a thoughtful and workable system by building consensus among stakeholders through representatives from all Internet sectors.

In the event it is determined that new TLDs will be necessary before a directory based system can be implemented, AOL has previously commented and still strongly believes that new names should correspond with the 42 internationally recognized trademark classifications. Borrowing from this classification system to create the new names would permit commercial entities to register under names that are more closely aligned with their products or services which would, in turn, decrease the potential for consumer confusion.

Trademark Conflicts and Disputes

As a global Internet service provider that must not only protect its own trademark rights around the world but be sensitive to a variety of trademark-related issues of importance to its membership, AOL respectfully disagrees with the statement in the U.S. proposal that trademark disputes in the realm of domain names "arise very rarely." AOL estimates that as much as three-fourths of the substantial resources it devotes to enforcing trademark rights are in the context of infringement and/or dilution of its name through use of similar but not identical domain names (e.g.,,,, etc.). Cybersquatting and use of false contact information in registering for domain names by cyberfrauds also continue to present substantial problems. As a result of these activities, consumers are experiencing a great deal of confusion and frustration in trying to connect with owners of well-known trademarks online and the trademark owners themselves are forced to expend a tremendous amount of resources to monitor for trademark violations and infringements and to enforce their rights through litigation or negotiations. Accordingly, AOL strongly believes that a viable dispute resolution process must be made available at the international level to provide a cost-effective alternative to litigation to resolve the numerous potential conflicts between trademark owners and users of identical or similar domain names.

While AOL has a number of concerns about some of the particulars of the gTLD-MoU proposal on ADR and WlPO's proposed guidelines for its operation, AOL supports the use of an internationally respected institution such as WIPO to assist with conflict resolution among trademark owners and online users. AOL suggests that the U.S. Government explore the possibility of fashioning a "virtual" alternative dispute resolution (ADR) process involving decision-making panels selected and managed by WlPO's dispute resolution center. This would be one area where the U.S. Government could build upon work that has already been done by supporters of the gTLD-MoU.

The virtual ADR process should be used exclusively for the purpose of making a prima facie determination of infringement for purposes of deciding whether use of a proposed domain name by a registrant should be permitted. Furthermore, use of ADR should in no way preclude the right to bring an infringement action or other appropriate legal challenge in existing national tribunals.

Registration Process Issues

AOL agrees that registries and registrars must be distinct entities. It also supports the Government's view that competition should be introduced into the registration system but believes that a standard registration process with basic rights, obligations, and rules concerning access to dispute resolution mechanisms must be created. Mandatory requirements for registration should include the following:

Applicants should be required to update contact information to maintain its accuracy.

Applicants should agree, as a condition of registration, to use domain names for lawful purposes only and in keeping with the character of the particular TLD (e.g., educational purposes for registries in the .edu domain).

Applicants should agree to submit to legal jurisdiction where the registrar and registry with which they seek to register are domiciled and where the A-root server is located.

Applicants should be required to certify that their contact information is correct and true and that the applicant is not aware of any individual or entity with superior rights to use the domain name proposed for registration. Penalties for violation of these requirements could be provided through national law.

Registry rules should provide for de-registration and removal of names from the registry if a registrant is found to have: (a) used a name illegally or in violation of third party rights; (b) to have submitted false information in violation of the law applicable to the subject transaction; or (c) for breaches of the conditions of registration. This could help to reduce spam.

To ensure stability, all registries and registrars should be bonded to show adequate financial means to implement and enforce all mandatory requirements and to support registration services on a sustainable basis. The U.S. proposal seems to suggest at page 14 that if a registrar falls below certain standards, names registered through that entity could be removed from the registries. AOL believes that if indeed a particular registry can no longer fulfill its obligations, its services should be terminated and the registered names should be transferred automatically to a different registry.

With respect to clearance of potential trademark conflicts by registrars, AOL believes that registrars' responsibilities should be limited to: (a) an obligation to publish applicants' proposed domain names at a site to be determined and to hold the them for thirty days to permit trademark owners to challenge the applicant's right to use the proposed name through ADR or other legal means; and (b) the obligation to review a database of famous marks. Famous marks could be defined to include a trademark that has been duly registered in 10 or more countries or some other objective standard. The central database of famous trade names could be maintained by the new nongovernment entity and funded initially by the Infrastructure Fund and, thereafter, through fees generated from new registrations. The pre-clearing process by registrants would be limited to responsibility for searching the central database for exact matches in which case the proposed registration would be rejected unless the applicant could establish a legitimate right to use the name.

Functions of the New Non-governmental Entity

In view of the foregoing comments, it is AOL's view that the new nongovernmental entity must be charged, among other things, with responsibility for the following objectives as a matter of priority:

Creating a standardized registration process for all TLDs including gTLDs, and country code TLDs;

Coordinating work to develop and implement a directory based system of domain names based on a specific workplan and schedule for its introduction; and

Determining the necessity of introducing new gTLDs in the interim period and preparing for their identification and introduction.

AOL is committed to continue to work proactively to support the adoption of workable and sustainable solutions that ensure the smoothest possible transition of administration and management functions for the benefit of all stakeholders, including the international community. We look forward to the opportunity to continue working on these issues with the U.S. Government and other stakeholders in the weeks to come.

Respectfully submitted,

William W. Burrington
Director, Law and Global Public Policy
Associate General Counsel

James Bramson, Counsel

America Online, Inc.
1101 Connecticut Avenue, NW, Suite 400
Washington, DC 20036-4303

202/530-7879 Fax
BillBurr@aol .com

Daniel L. Spiegel
Laura M. Reifschneider
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, NW, Suite 400
Washington, DC 20036

Counsel to America Online, Inc.