Date: Thu, 01 Oct 1998 20:46:20 -0400
From: Michael Sondow <email@example.com>
Subject: Comment to (63 Fed. Reg. 41547 (1998))
This is a second comment in response to the NTIA's Request For Comments on the Enhancement of the .us Domain Space (63 Fed. Reg. 41547 (1998)). It is divided into two parts: 1)Comment on administration of .us domain names by the United States Postal Service, and 2)Comment on the delegation of .us domain space.
1) The administration of domain names, whether within the .us domain space or any other domain space, by a postal service is antithetic to the spirit and the historical trajectory of Internet development, which have created a new non-geographic and extra-territorial location, commonly referred to as "cyberspace", in which communications flow between individuals and entities without regard to their geographical location. The Postal Service, being a service for geographical distribution of communications, cannot, by its nature, it history, and its function, provide a useful extension of communication in the new cyberspace, and should not be allowed to associate domain names and/or Internet addresses with geographic addresses, which would be a grave restriction upon the freedom of communication on the Internet.
2) Delegation of address space within the .us domain has not been done with due regard to the principles defined by the IANA (ISI/USC) for use of the .us space. Nowhere is this more clearly demonstrated than in the delegation of the third-level generic domains .CC, .COG, .GEN, .K12, .LIB, .MUS, .STATE, .TEC, and others, with the NY state second-level domain, to a commercial, big business-oriented network named PSI Net:
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
COMMISSION FILE NUMBER 0-25812
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
510 HUNTMAR PARK DRIVE, HERNDON, VA 20170
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NY CC.NY.US. firstname.lastname@example.org
NY COG.NY.US. email@example.com
NY GEN.NY.US. firstname.lastname@example.org
NY K12.NY.US. email@example.com
NY LIB.NY.US. firstname.lastname@example.org
NY MUS.NY.US. email@example.com
NY STATE.NY.US. firstname.lastname@example.org
NY TEC.NY.US. email@example.com
Because PSI Net cannot profit from the distribution of these name spaces, whose commercialization is prohibited by their charter, it has done nothing to publicize and distribute them. This phenomenon of disinterest on the part of commercial networks to whom components of the .us name space have been delegated, quite as much as any general lack of interest on the part of public and non-profit organizations in the use of those domain names because of their length or other criteria, has resulted in the present conjuncture and should not be repeated in a future redistribution of the .us name space.
These comments are submitted in a spirit of constructive support for an enhancement of the .us domain space for public use.
International Congress of Independent Internet Users (ICIIU)
Date: 10/1/98 11:15am
Subject: INTA Response
Dear Ms. Rose:
The International Trademark Association (INTA) is pleased to provide you with
its response to NTIA's request for public comment concerning the "Enhancement of
the .us Domain Space" (Docket No. 980212036-8172-03). INTA has elected to
answer questions 1,4,5,6,7,10, and 11. The attached document containing our
responses is in Word Perfect.
Special-purpose second level domain names should not be created under .us. While it may appear that such special-purpose domain names can be helpful in locating a particular entity (much like the yellow pages is divided up by category to help one find a particular entity), in practice, multi-level domain names are more problematic. First, there is the problem of deciding which category a particular entity falls under. A single company might fall into several different categories, requiring it to register its name for all those different categories, or it might not fall into any one of the enumerated categories at all. Trademark owners in particular have problems with parties registering their trademarks as domain names under the currently existing gTLDs. Adding a secondary level would only exacerbate this problem. In the end, the public is hurt by the confusion caused by so many different entities operating under the same second-level domain name. The trademark owner is hurt by the damage to its valuable trademark rights.
Second, the requirement that a "consumer" of the Internet type in multiple values as part of a Web address is likely to cause problems. There is a greater propensity for consumer error, preventing them from reaching their desired site (e.g. WHITEHOUSE.COM vs. WHITEHOUSE.GOV). Simplicity here is better for both the consumer and the site owner.
There is some risk that, since the .us domain historically has been allocated for use primarily by governmental and related entities in the U.S., the unrestricted use of .us as a top level domain (like .com) may create confusion as to the affiliation of the domain name holder with U.S., state, local, and other governmental entities. An unrestricted .us domain could potentially be used to intentionally create the aura of government sponsorship or affiliation where none exists.
The use of special-purpose second-level domains (e.g., .co, .com, etc., including some that are now in use with the .us domain) may help to alleviate the risk of such confusion.
To avoid such confusion and possible abuse of the .us domain, its use should be restricted to domain name registrants with a U.S. connection. Such a connection could be determined by any number of factors, including citizenship, residency, place of incorporation, principle place of business, or factors used in U.S. law for deciding issues of jurisdiction and venue. Such requirements would likely alleviate abuse of the .us domain, as has occurred with other country domains. However, as discussed below in answer to Question 10, in balance, INTA believes that restrictions as to one's residency should be avoided, if possible.
The administration of the .us domain should be consistent with whatever system is newly established for other top level and country domains. A U.S.-based registrar and registry would appear appropriate. Administration by the U.S. government or other government entity is not essential.
The U.S. Government needs to appoint a single entity, much like InterNic, to manage and oversee .us. However, a better mechanism for resolving disputes must be implemented which recognizes the rights of trademark owners and provides them swift and reliable relief from trademark infringement.
It has been INTA's long-standing position that it is preferable to have procedures for resolving disputes that may arise over the registration of domain names, and that such disputes should be resolved by courts or trademark tribunals, applying standard principles of trademark law. Instead of trying to develop specifics rules applicable for the .us domain space, certain procedural safeguards should be employed to provide interested parties with sufficient information to permit the trademark owner to take action, as appropriate, against the domain name registrant. The information that should be available to concerned parties would include:
(a) a registration procedure which would require a sufficient amount of information about a domain name applicant to allow potential challengers sufficiently to identify and locate that applicant for contact and if required, service of process;
(b) a statement by the applicant as to the basis for its claim to the applied-for domain name;
(c) a "publication" period which would allow all potential challengers of a domain name to act as required prior to the registration of the domain name; and
(d) a renewal process for clearing deadwood, combined with a procedure by which a party could take action against the domain name registrant if the name was not being used.
There should be no prohibition to the registration of commercial names or trademarks. It has become a common and desirable practice to permit trademark owners to also register their trademarks as domain names, and more significantly, consumers have come to recognize domain names as serving a trademark function. This should be no different for the .us domain space, even as the space is expanded to permit greater use.
Both the rules governing the substantive registration requirements and the registration procedures under the ccTLDs vary widely from country to country. At the one end of the spectrum are ccTLDs which have virtually no rules, much akin to the .com situation, while at the other end of the spectrum are the majority of the developed countries, which typically have requirements as to 1) who can apply, 2) what alphanumeric strings can be applied for as domains, 3) how many domain names can be registered by one entity, and/or 4) the relationship between the domain name and the applicant's name. The advantages and disadvantages of these four categories, as well as some less common rules, such as special trademark sub-domains and a representation requirement, are discussed below.
1) Restrictions as to the Applicant. Many ccTLDs require that the applicant is a
commercial entity, registered to do business within the country. Typically,
a certificate from the local Chamber of Commerce or customs/tax (V.A.T.)
authorities must be filed as part of the application process. Thus non-resident
companies (which do not have a local subsidiary or branch) and resident as
well as non-resident individuals are not able to apply for the registration of
Comments: The local residence requirement is often a problem, because there could be significant marketing activity in the country with no direct subsidiary. Given the global nature of the Internet, such residency requirements can stifle legitimate commercial interests in tailoring a Web site to meet local needs, in spite of the lack of residence. For example, imagine a successful American search
engine or software company, Hip-co. Hip-co, which has no foreign subsidiaries, desires to make a Web site in French for the French market and a Web site in German for the German market. France and Germany have such a residency requirement which prevents Hip-co from registering and using the French domain hip-co.fr and the German domain name hip-co.de. Similarly, it could be
envisaged that non-U.S companies would have a legitimate interest in establishing a local presence via a Web site, in spite of the lack of a U.S. subsidiary or local branch. No similar residency requirement applies for foreigners owning local trademarks; there is typically, though, a requirement of local representation,
i.e. for service of process, and such a requirement as regards domain names
under .us would be advisable in order to ensure accountability for domain name
As regards the situation, common in many countries, whereby only commercial
entities are entitled to register domain names, this is of course stifling for
non-commercial interests, but does have the effect, particularly when combined
with a requirement of prior authority to use the domain name (e.g. it is
identical to an existing trademark or corporate name), of keeping
"cybersquatting" at bay. It may be worth emulating to ensure that applicants for
any commercial and organizational sub-domains under the .us truly are
businesses and organizations, respectively.
2) Restrictions as to Domain Names That Can Be Registered. Many countries have requirements for domain names that are very similar to the inherent registrabilty requirements common for the registration of trademarks, i.e. prohibition against descriptive and geographical names, surnames, and names which are against public policy. Germany and The Netherlands even have prohibition against simple groups of numbers. One problem with such requirements is that a word can be both a trademark as well as descriptive, a surname, and a geographical indication. APPLE and TULIP are well-known computer manufacturers, but descriptive as well. "Gram" is a (descriptive) unit of measure, the name of a Danish town, a not uncommon Danish surname, as well as a well-known trademark for refrigerators in Denmark.
Comments: The above examples illustrate one of the inherent conflicts that arise
when applying traditional trademark rules to domain names. It probably would
have been best if .com had had such prohibitions, but now that "the cat is out of the bag" and .com is filled with descriptive domains which are utilized descriptively, it is difficult to see why .us should emulate such prohibitions.
3) Number of Domain Names Per Applicant. Many ccTLDs limit applicants to one domain name. Registrars openly admit that the idea is to restrict the number of domains, encouraging enterprises to utilize third level domains for trademarks. For example, assuming Apple Computer has a single Spanish subsidiary, Apple S.A., this subsidiary could get a single Spanish domain, apple.es; a subsequent domain name application for macintosh.es in the name of the Apple S.A. would be refused, because the company already has one domain name (and, further, because the domain name "macintosh.es" does not relate to the applicant's name "Apple S.A.", see 4, below). Apple S.A. would have to use macintosh.apple.es as its domain for MACINTOSH computers (unless it set up a new Spanish subsidiary Macintosh S.A).
The Dutch ccTLD, .nl, had adopted a novel approach to the situation, allowing unlimited domains per applicant, but with a fee structure whereby each subsequent domain name registered in the name of the same owner is progressively more expensive (see 5 below.)
Comments: Limiting the number of domain names per applicant can stifle legitimate commercial interests for enterprises trading under more than one name, and enterprises with several trademarks, and thus ought not to be emulated under .us.
4) The Relationship Between the Applicant's Name and the Domain Name. Many ccTLDs, particularly in Europe, have a requirement that the domain name must bear a resemblance to the applicant's name. Such ccTLDs typically also have restrict domain names to commercial enterprises, resident in the country and impose a one-domain name limit per applicant (see 1 and 3, above), such that in practice, only one domain name, typically the corporate name, is available per enterprise.
Comments: Requiring a resemblance between the applicant's name and the domain name hinders legitimate marketing activities for enterprises that trade under two or more trademarks, and ought not to be emulated under .us.
5) Less Common ccTLD Rules. Besides the above mentioned situations, which all are common to numerous ccTLDs, individual ccTLD registries have adopted
special rules, which deserve attention. These include a) the special French second level domain devoted to trademarks, b) the Swedish agent requirement, c) the possibilities of both a commercial domain and a national domain available in, among others, Austria and Poland, and d) the previous Dutch progressive fee structure for multiple domains in the name of the same applicant.
a) The French Trademark Domains. The French ccTLD, .fr, is limited to
enterprises residing in France (see 1), above). Non-resident companies, which are owners of French trademarks (i.e. registered with the French Trademark Register INPI, can though register such trademarks under a special second level domain, .tm.fr. Only about 2,300 names are at present registered under the .tm.fr, and most of thses are apparently defensive, i.e. passive registrations.
Comments: The relative lack of interest in the special trademark domain is
empirical evidence that the problems associated with trademarks are not
solved simply by adding a separate domain, and this should thus not be
emulated under .us.
b) The Dutch and Swedish agent requirement The Dutch and the Swedish registrars require that all domain name applications for registration under the .nl and .se ccTLDs, respectively, must be filed by a local agent, who is an authorized representative.
Comments: Requiring that the domain name applicant has a local representative for service of process is something that ought to be emulated in order to ensure that the domain name registrant can be found and held accountable, e.g. in piracy cases.
c) Commercial and National Domains. ccTLDs such as The U.K. and Japan require all commercial domains to be third level domains under generic commercial second level domains, e.g. XXXXX.co.uk and YYYYY.co.jp, and thus allow no commercial second level domain names. Other ccTLDs, including the Austrian registry and the Polish registry, allow both a commercial third level, and a commercial second level domain, i.e. XXXXX.at and XXXXX.co.at, and YYYYY.pl and YYYYY.com.pl.
Comments: Where both a commercial second level and a commercial third level are available, trademark owners are inclined to try to get both domain names registered, out of fear that confusion would occur if they only had the one. The situation of having numerous generic commercial possibilities under .us should be thus avoided.
d) The Old Dutch Progressive Fee Structure. In a novel attempt at limiting
the number of domains per applicant, the Dutch registrar until recently had a progressive fee structure, whereby the application fees increased, depending on how many domain names the registrant already had registered.
Comments: This is a good way to stifle piracy and domain name hoarding, and should be emulated.
Assuming adequate safeguards to protect the public's rights in the .us domain space, INTA takes no position on the nature of the entity that will administer the domain space. However, it may be preferable to use a model similar to the not-for-profit corporation envisioned by the White Paper.