NBA Properties, Inc.

Direct Dial: (212) 407-8379
Direct Fax: (212) 223-5159

March 11, 1998

Ms. Karen Rose
Office of Internal Affairs
National Telecommunications and Information Administration
(NTIA)
Room 4701
U.S. Department of Commerce
14th and Constitution Avenue, N.W.
Washington, D.C. 20230

Re: Improvement of Technical management of
Internet Names and Addresses "Green Paper"

Dear Ms. Rose:

I am writing on behalf of NBA Properties, Inc. ("NBAP") to express the concern of NBAP regarding the above-referenced "Green Paper." NBAP is concerned about this proposal for the following three reasons:

l. the Green Paper lacks concrete minimum standards for obtaining and maintaining a domain name;

2. the Green Paper lacks a reasonable and uniform dispute resolution policy which renders administrative - not legal - decisions; and

3. the Green Paper does not provide for adequate representation of trademark owners and businesses on the governing body of the corporation it proposes.

We are concerned that the Green Paper does not sufficiently realize the concerns of trademark owners and disagree with its conclusion that "trademark domain names disputes arise very rarely on the Internet today."

NBAP, which is the exclusive licensee agent of the National Basketball Association and its 29 member teams, i.e., The Chicago Bulls, The Charlotte Hornets, The Washington Wizards, etc., has had literally hundreds of disputes over the domain names which incorporate the trademarks of the NBA and its member teams. Further, we know that we are not alone in this experience. Other trademark owners have shared with us their frustrations with respect to the same types of domain name disputes.

We believe that there should be minimum trademark provisions set forth in a registration policy. We believe there should be an application process which provides that the applicant include:

a. detailed identifying information, including applicant's state of incorporation or partnership (if applicable); address; telephone/facsimile numbers; and e-mail address;

b. designation of an agent for service of process complete with the same information set forth in a. above;

c. statement of bona fide intent to use the domain name within a certain time;

d. statement of bona fide reason for using the domain name selected (such as the domain name is the applicant's name or trademark or a variation thereof);

e. statement of the intended use of the domain name -- whether it will provide an email, website, BBS, or other use, and additional goods and services in connection with which the domain name will be used;

f. statement that the applicant to the best of its knowledge believes that the domain name is available and that it will not infringe the trademark or other rights of any other party; and

g. agreement to submit to personal jurisdiction in the countries where the applicant/registrant service is located and where the registrar is located.

With respect to renewals, we believe that a renewal should be required annually and that renewal applications should confirm and update the information required in the original application.

All applications and renewal fees should be submitted before the application or the renewal is examined for completeness and any application or renewal not accompanied by the fee should be rejected. Further, the Registrar should immediately examine each application or renewal for completeness and reject any that are incomplete.

The policy should also include a publication mechanism whereby applications with all the pertinent information are posted on a publicly-available, searchable website. This website should be updated as often as possible, preferably at least every 30 days, by each Registrar. The Registries should also be monitored for "deadwood", that is, domain names that are not in use.

As to a dispute policy, neither the Registrars nor the Registries should be responsible for developing dispute resolution policies.

Alternative dispute mechanisms such as mediation and arbitration should be made available, preferably on-line and with expedition available. There should be an administrative dispute policy ("Registry Dispute Policy") (see below) limited cybersquatting, false application/renewal statements and other clear instances of abuse.

A domain name should be suspended if a challenger makes the challenge within 30 days of publication pending resolution under a Registry Dispute Policy. Such a policy should be developed together with the trademark community.

With respect to the composition of the governing board, we believe it is very important that the trademark community have adequate representation. The Internet increasingly is serving the needs of international commerce, including the interests of businesses (such as NBAP) in maintaining brand equity and investment and consumers' interests in relying on such brand equity to identify the product, service or company of the consumer's cholce. That fact must be reflected in determining appropriate Internet domain name pollcy.

As the board is currently proposed, it is weighted heavily toward the Internet technical community which may not be in a position to fully understand or appreciate the relevance of trademark concerns to business or consumers. Because trademarks are vital to international commerce and of significance to the functioning of the world-wide web, the business and trademark community should have equal representation with the technical community on any governing board.

Finally, we believe that there should be no rush to add new gTLDs. A "go slow" approach is preferable since the addition of any additional gTLDs would pose a significant policing problem with trademark owners. In this regard, the NBA has faced numerous disputes and incurred enormous expense in connection with domain names in each of the existing gTLDs.

Sincerely,

Kathryn L. Barrett
Senior Intellectual Property Counsel