Registration and Administration of Internet Domain Names -- Summary of Comments [Docket No. 97061337-7137-01]
SUMMARY OF COMMENTS
Registration and Administration of Internet Domain Names
[Docket No. 97061337-7137-01]
The rapid growth and use of the Internet has led to increasing public concern about the current system for registering and managing domain names, the familiar and easy-to-remember names for Internet computers. In response, various private sector groups have proposed systems for allocating and managing generic top level domains (gTLDs).
The Government has in the past supported the privatization and commercialization of the Internet and believes that this transition to private sector control should continue. The Government is studying various private sector proposals to establish systems to allocate and manage gTLDs on the Internet. In addition to the various proposals, the government is studying the underlying issues to determine what role, if any, it should play in management of Internet domain name systems (DNS).
On July 2, 1997, the Department of Commerce issued a Request for Comments on the Registration and Administration of Internet Domain Names in order to ascertain the views of the public regarding various DNS management proposals as well as the underlying policy issues.
The comment period closed on August 18, 1997, and we received over 430 comments. Comments have been reviewed and posted to the National Telecommunications and Information Administration (NTIA) site on the World Wide Web. In addition, the comments have been available for review in the public reading room at the Department of Commerce.
This paper briefly summarizes comments submitted. The text from the Request for Comments (RFC) issued July 2, 1997 appear in bold type. Responses are summarized below the RFC text. This summary reflects the tone and thrust of comments received generally, but is not intended to summarize all comments received in their entirety.
A. Appropriate Principles
The Department of Commerce sought comment on the principles by which it should evaluate proposals for the registration and administration of Internet domain names. In general, respondents supported the proposed principles. A number of commenters proposed revisions to the principles presented, and some suggested additional principles. A small number of respondents opposed or disagreed with one or all of the principles entirely.
a. Competition in and expansion of the domain name registration system should be encouraged. Conflicting domains, systems, and registries should not be permitted to jeopardize the interoperation of the Internet, however. The addressing scheme should not prevent any user from connecting to any other site.
The overwhelming majority of respondents agreed with this principle, stressing that even as competition is introduced, DNS mechanisms should remain stable, and that domain names must be universal and, ultimately, portable. One organization suggested that while competition is long overdue, change should be gradual and controlled. Others cautioned that the legal rights of trademark holders should not be sacrificed for the sake of competition, and that we should examine non-competitive systems where they have been shown to work. Several respondents commented that competition at the "root" level was not feasible.
b. The private sector, with input from governments, should develop stable, consensus-based self-governing mechanisms for domain name registration and management that adequately defines responsibilities and maintains accountability.
Most respondents agreed with this principle, although many noted that the government had a role fostering private sector leadership. Some cautioned, however, that the phrase "input from governments" was vague and should be clarified or limited (e.g. to antitrust enforcement). The "private sector" should be understood inclusively, to mean, in one respondent's words, "the diversity of Internet communications providers and Internet speakers." One commentator suggested that self-governance should be approached through a system of multi-tiered contracts.
c. These self-governance mechanisms should recognize the inherently global nature of the Internet and be able to evolve as necessary over time.
The principle of globalism received strong support. Many observed that the Internet has grown from its U.S. roots into a global medium. The argued that this transformation should be reflected in the internationalization of the Internet's administrative bodies. Many commenters also believed that the continued treatment of the Internet as a "U.S. asset" could provoke a negative reaction from foreign governments and businesses. One commentator noted, however, that the inherently global nature of the Internet should not be used to justify an inadequate, closed, or rushed decision making process.
d. The overall framework for accommodating competition should be open, robust, efficient, and fair.
Most respondents supported this principle. One suggested that further definition of "open, robust, efficient, and fair" was needed, and others suggested that this principle was too broad to be particularly helpful.
e. The overall policy framework as well as name allocation and management mechanisms should promote prompt, fair, and efficient resolution of conflicts, including conflicts over proprietary rights.
Most commentators supported this proposal, although several noted that some trademark disputes would be best resolved by courts applying traditional trademark principles.
f. A framework should be adopted as quickly as prudent consideration of these issues permits.
Respondents expressed more concern about getting the "right" answers than about moving quickly. Several stated that consensus achieved through a democratic and open process is more important than speed. Nonetheless, some respondents cautioned that prompt action may be needed to avoid fragmentation of the Internet.
g. Additional principles.
Several respondents suggested additional principles:
-- Policymakers should consult widely with the representatives of affected stakeholder groups and ensure that processes are inclusive and that creditable views receive appropriate consideration. (CIX, Domain Names Rights Coalition, EFF)
-- Modifications to the registration and administration of gTLDs . . . should be responsive to market forces. (CIX)
-- The name-space is a public resource. (EFF)
-- The namespace is a private resource subject to reasonable limits developed and agreed to by the Internet community. (CIX, NSI)
-- International interoperability of DNS should be ensured. (CommerceNet)
-- The Internet must remain accessible as a communications medium and to make information available to entities of all types and sizes. (CommerceNet, Domain Names Rights Coalition, EFF)
-- The Administration of the name-space should provide for name portability. (EFF)
-- Lack of consensus about intellectual property should not impede progress in other areas. (EFF)
-- No government should reserve the right to pass laws or make policies applicable to persons or resources not within its physical territory. (D.R. Johnson)
B. General/Organizational Framework Issues
The government sought comment on general and organizational issues related to the domain name system. Respondents frequently mentioned the global nature of the Internet and the need to move from a US dominated position. Proposed solutions often inferred a US government role in "fixing it and keeping it fixed," however, supporting the notion that the government has an important role to play in transitioning DNS from government to private sector control.
1. What are the advantages and disadvantages of current domain name registration systems?
Numerous respondents mentioned that the advantage of the current system is that "it works" and, so far, government has not been intrusive. One commenter asserted that support for the current system exists in some measure simply because it is the only system that the commercial users have ever known.
Respondents cited the lack of competition as the primary disadvantage of the current system. This was most often identified as a problem by commenters, who in some cases also questioned whether the current contractor, NSI, adequately followed or enforced rules established by IANA in RFC 1591, Domain Name System Structure and Delegation.
Respondents questioned the ability of the existing systems to meet expanding use of the Internet, noting that while "the systems may have worked well initially, they must be replaced with systems designed for the size and complexity of today's and tomorrow's networks."
Respondents also cited the potential for trademark dispute as a significant disadvantage of the current system. This group asserted that the current system uses ineffective prescreening and dispute resolution mechanisms that have resulting in widespread abuse of the system by domain name speculators and trademark infringers who have easy, inexpensive access to the system and can register virtually any domain name.
With respect to trademark issues, commenters also noted that it has become increasingly difficult to select a domain name that is not already in use by another business. Respondents noted that the current system consists, more or less, of a single gTLD (i.e., .com), and suggested that the perceived scarcity of "good names" might decrease if additional meaningful gTLDs were available. Many of these respondents cautioned, however, that this proposal should be carefully studied, as the risks associated with the establishment of additional gTLDs may outweigh this particular disadvantage.
2. How might current domain name systems be improved?
Most respondents enthusiastically endorsed the introduction of competition -- multiple registrars that share a common database -- to improve the current DNS. Others suggested that additional non-discriminatory directory services would reduce the importance of mnemonics and reduce, if not eliminate, trademark issues. One respondent proposed the creation of a bottom-up web of contracts to ensure stability and enforcement. Others cited the need to improve security to minimize infiltrations of the systems and attacks on root servers and other vulnerable network points.
Many respondents supported the creation of an alternative dispute resolution process to mediate conflicts of all sorts. In this global environment, such a solution was considered more appropriate than resolution by individual courts of the relevant jurisdictions.
Commenters disagreed about the appropriate structure of DNS going forward. Some stressed that top-level domains are a global public resource and must be maintained as such. Others argued that generic TLDs are a private resource for individual businesses to develop exclusively. Nonetheless, commenters agreed that no single company should be allowed to monopolize domain name registrations. Commenters that mentioned the IAHC proposal, more often than not, supported it (but often for differing reasons).
A number of commenters stressed the importance of domain name portability. The technical implications of this issue were not fully discussed and certainly not resolved.
With respect to the future of existing gTLDs, administered under a cooperative agreement between the National Science Foundation (NSF) and Network Solutions Inc. (NSI), those who addressed the issue argued that the public should retain ownership of the contents of the ''.com'' database and the software that NSI wrote under the cooperative agreement. Some argued that the U.S. government should extend its agreement with NSI, however, if a stable system is not in place by April 1, 1998, when the cooperative agreement expires.
3. By what entity, entities, or types of entities should current domain name systems be administered? What should the makeup of such an entity be?
The IAHC plan to revise the gTLD system received more support than not, including, however, support from parties that were involved in drafting the plan. The principles behind the plan received support from some individuals and organizations such as the Coalition for Advertising Supported Information and Entertainment (CASIE) and the Electronic Frontier Foundation (EFF). Jon Postel said: ''I firmly believe that moving forward with the IAHC plan (in the general sense) is in the best interest of the Internet community, including the users, business, and the technical operation of the system.'' Respondents expressed some reservations about the details of the proposal, but generally did not object to its fundamental principles.
Those who did object to the IAHC plan argued that it is an attempt to improperly assert control over the Internet. The plan is an ''example of bypassing traditional governance structures and the protections they provide to smaller voices seeking to participate in policy debates,'' said one commenter.
Respondents identified the root domain database and the root domain servers as the core of the domain name system. Because they are essential to all Internet users worldwide, commenters urged that these elements of the system be kept free of governmental and commercial pressures. The system should be governed by a large cross-section of the industry itself, with input from government. Commenters felt that the size and makeup of the iPOC and any associated organizations must be designed to ensure that any policies promulgated represent a true Internet community consensus. And, the core database for use in assigning and prescreening all gTLDs should be constructed and maintained by a central entity and shared on a real-time basis.
4. Are there decision-making processes that can serve as models for deciding on domain name registration systems (e.g., network numbering plan, standard setting processes, spectrum allocation)? Are there private/public sector administered models or regimes that can be used for domain name registration (e.g., network numbering plan, standard setting processes, spectrum allocation)?
Some said that the "Internet defies a conventional regulatory approach and there are no existing models that are appropriate as a basis for a new domain name registration system since the Internet is a unique medium."
Others said that existing technical standards setting processes offer a potential model for the decision-making process because they are made up of, or consider the input of, all parties with interest in setting a particular standard.
Others encouraged international governmental cooperation to harmonize the legal context within which the domain name registration process operates.
What is the proper role of national or international governmental/non-governmental organizations, if any, in national and international domain name registration systems?
Respondents overwhelmingly favored private sector governance of the domain name system, and urged government to take a back seat in the registration and administration of Internet domain names. Most respondents recommended adoption of a self-regulatory, market driven approach to Internet governance. This approach should be open and flexible, and representative of the Internet community. All stakeholders must be consulted in any decision-making process. Jon Postel also said: "[t]he role of government should be to foster a fair system of self-governance for the Internet that embraces open competition where possible on an international scale." David R. Johnson, chairman of Counsel Connect and co-director of the Cyberspace Law Institute, called on government to allow the marketplace to govern the Internet through a bottom-up web of contracts. The U.S. government should make it clear that attempts to set up this contractual regime themselves are not violations of antitrust law, but "the proper role of governments is to enforce such agreements unless they violate antitrust laws or other public policies."
Commenters had more varied and even contradictory attitudes toward the role of international, inter-governmental organizations (IGOs), especially the ITU. Some commenters expressed deep misgivings about IGOs taking a leading role in Internet governance. Many commenters viewed organizations like the ITU as unaccountable, unelected, and unlikely to consult with the Internet community. Others criticized it as moving too slowly to address rapidly developing Internet issues. The majority of non-profit groups and corporations voiced either vague distrust of IGOs or highly qualified support. It is clear that many commenters were concerned that IGOs might misuse any power they might be granted.
Still, a sizeable minority of commenters, many of them individuals or professionals familiar with IGOs, saw the United Nations and subsidiary bodies such as the ITU as the appropriate organizations to assume control over Internet governance. They tended to argue that international organizations provide ready-made fora for reconciling competing national and commercial interests. International organizations were also seen as exerting a useful check on domination of Internet governance by the United States.
Should generic top level domains (gTLDs), (e.g., ".com"), be retired from circulation? Should geographic or country codes (e.g., ".us") be required? If so, what should happen to the .com registry? Are gTLD management issues separable from questions about international standards organization (ISO) country code domains?
Several commenters advocated expanded use of the ".us" domain. Iperdome, Inc., suggested moving all existing gTLDs to a second level of the .us domain. Others said that the use of country codes alone as top level domains causes problems. First, an entity might not want to be associated with a particular country. Also, root server operators would be expected to decide what was a country. Finally, trademark owners would be forced to monitor and protect their marks under each country code as well as under each gTLD.
Most respondents advised against retiring existing gTLDs. Retiring gTLDs was thought likely to cause confusion and increase costs to registrants associated with changing their domain names and suffering the loss of valuable goodwill. "Little is to be gained, and much would be lost, by the elimination of such domains," said one commenter.
Are there any technological solutions to current domain name registration issues? Are there any issues concerning the relationship of registrars and gTLDs with root servers?
Most respondents indicated that while there are no technical obstacles to solving DNS problems, it is not really feasible to separate technological and administrative solutions. Technology is needed, however, to implement a competitive name registration system involving multiple registrars in shared gTLDs. There was some disagreement about whether or not this technology already exists.
There does not appear to be any need for substantial interaction between the registrars and the root servers. Root server operators must, however, work closely with the central policy organization that defines gTLDs to ensure consistency. On the other hand, registrars must interact with gTLD domain servers because they will have to rely on these servers to pick up registration changes quickly and consistently. Most commenters felt that the technology that currently handles core gTLD databases has this capability.
How can we ensure that scalability of the domain name system name and address space as well as ensure that root servers continue to interoperate and coordinate?
Respondents generally felt that the present system allowed for enough unique names to satisfy the physical needs associated with Internet growth. The problem, however, is that the unlimited availability of unique monikers does not satisfy vanity/marketing requirements that underlie growing trademark disputes. Scaling problems in gTLDs arise from the perceived need for every business to have its own second level domain name.
Some respondents suggested that registration of firms, rather than products, at the second level would slow the growth in second level domains (e.g. "Bayer.com" rather than "Aspirin.com.), but no commenter identified an appropriate mechanism by which governments could influence that strategy for gTLDs.
Others suggested that scaling problems could be reduced if domain names were viewed and treated more like access numbers (e.g. a telephone number) rather than source indicators in the nature of trademarks and trade names. These respondents favored the development of robust directory services.
Respondents identified three essential elements of a coherent root server system: a trusted single source for root domain data, trusted set of root server operators, and effective, secure distribution of data to system administrators.
How should the transition to any new systems be accomplished?
Respondents agreed that new systems, based on forward-looking policies and incorporating new frameworks and gTLDs, should be designed and implemented. Once these systems are operational, existing domains should be moved to the new systems as appropriate.
Are there any other issues that should be addressed in this area?
Respondents to this question voiced three themes: (1) NSI's proprietary claims on the .com database should be challenged and ownership of the registration database must be clarified on a going forward basis, (2) the business processes must be documented more formally and openly than has been the case in the past, and (3) unanswered questions regarding system finance must be addressed.
C. Creation of New gTLDs
10. & 11. Are there technical, practical, and/or policy considerations that constrain the total number of different gTLDs that can be created? Should additional gTLDs be created?
The comments evidenced extensive support from the technical community for the addition of new gTLDs. The Internet Society and iPOC cited strong public demand, and support for the iPOC proposal as an appropriate "first step" in what should be a careful, incremental approach. EuroISPA felt that the addition of new gTLDs will relieve pressure on the .com space. Jon Postel proposed that new gTLDs should be added incrementally until the total reaches about 200, to provide diversity and access to simple domain names by holders of not-so-strong trademarks. The ISP's Consortium urged an unlimited number of new TLDs, including, e.g., .ibm , so that most of today's second level domains could become top level domains. Other commenters similarly favored a large increase in the number of gTLDs.
Some prominent members of the business community expressly supported the creation of new gTLDs in order to increase domain name capacity and support the growth of the Internet and electronic commerce. Other business leaders cited the increasing scarcity of new "natural identifiers" in the .com space.
Several public interest groups also favored expansion of the top-level namespace. Computer Professionals for Social Responsibility concluded that new special-purpose gTLDs should be created to allow the use of identical names in different gTLDs for different purposes. The Electronic Freedom Foundation asserted that the additional of several new gTLDs would avoid many trademark disputes. Both the Domain Name Rights Coalition and NetAction supported a large increase in the number of gTLDs.
On the other hand, trademark owners for the most part weighed in against the creation of new gTLDs. The International Trademark Association (INTA), for example, argued that increasing the number of gTLDs would increase policing burdens and would give bad actors more opportunities to infringe. The U.S. Council for International Business (USCIB) urged that new gTLDs should be allowed only after a cost/benefit analysis justifying their creation. Prince plc. asserted that the creation of new general purpose gTLDs would exacerbate trademark disputes.
Several prominent communications companies took the same position. BellSouth argued that a proliferation of new gTLDs would confuse users, increase opportunities for the selection of infringing domain names, and make it harder for trademark owners to police their marks. British Telecom asserted that the "unconstrained and unstructured" expansion of the number of gTLDs would diminish the basic utility of the DNS and increase the risk of cyber-piracy. Viacom opposed the creation of new gTLDs until "an efficient means of protecting trademarks is developed." NSI stated that an increase in the number of gTLDs could generate consumer confusion, increase the number and cost of trademark disputes, and lead to speculative activity.
12. Are there technical, business, and/or policy issues about guaranteeing the scalability of the name space associated with increasing the number of gTLDs?
13. Are gTLD management issues separable from questions about ISO country code domains?
14. Are there any other issues that should be addressed in this area?
A substantial number of commenters addressed the type of new gTLDs that might be created. CommerceNet suggested that the gTLDs should be sufficiently distinct that there is only "ONE logical space for a given company to inhabit as its trademarked domain name." Similarly, AOL wrote "[w]hat is the difference between the intended use of .com and .biz? Any new gTLDs that are created should be distinct enough in their intended purpose to minimize the chance of confusion as well as the need by name holders to register their domain in both TLDs. British Telecom urged that any new gTLDs be limited to specific classes of businesses, and strictly policed (e.g., .air for airlines), with qualifications to be determined by IATA. EuroISPA urged that new gTLDs correspond to specific industries or business areas.
CPSR found the concept of creating special-purpose gTLDs attractive "from the perspective of both Internet users and commercial business," but expressed concern that the specific gTLDs developed by IAHC "raise questions about global transparency and potential duplication and user confusion." Some respondents suggested specific new gTLDs including .pol (for political speech), .lib (for libraries), .sch (for elementary and secondary schools), .pers (for personal speech), and .sba (for small business).
Several commenters urged that gTLDs should correspond to the categories in an industrial classification system. AOL also suggested that any new gTLDs should include trademark top level domains" (tTLDs) such as .aol, .ibm, or .mci, "reserved for those global brand entities who wish to enhance and protect their global brands in cyberspace."
CIX, while not opposing the creation of new gTLDs, suggests that we can address the need for complementary business gTLDs by encouraging the use of ".com.us" and perhaps by "cloning" .com (that is, by allowing the use of ".com1", ".com2", etc.) to mitigate the demands for the same namespace by companies with similar names.
D. Policies for Registrars
15. Should a gTLD registrar have exclusive control over a particular gTLD? Are there any technical limitations on using shared registries for some or all gTLDs? Can exclusive and non-exclusive gTLDs coexist?
Virtually no respondents favored a system in which domain name registrars generally exercised exclusive control over gTLDs.
Most respondents indicated that, in general, registrars should not have exclusive control over a particular gTLD. These commentators believe that shared registries will protect consumers by promoting competition and enhancing choice. Some respondents noted that allowing exclusive gTLDs would create problems of "lock in" and high switching costs. Even in this group, however, commentators noted that there may be circumstances under which exclusive gTLDs are desirable. Several cited ".gov" as an example of an appropriate exclusive gTLD. (See, responses to Question 14, above.)
Another sizeable group of commentators favor a mixed shared/exclusive system, noting that these distinctions can serve as a useful dimension of competitive offerings, creating more choice for consumers. This group favored allowing the market to determine the optimum mix of exclusive and non-exclusive gTLDs.
In general, respondents did not believe that technology would ultimately limit creation of shared or mixed shared/exclusive registry systems. The Commercial Internet Exchange Association (CIX), however, noted that as the technology for shared registries doesn't yet exist, any transition plan should assess technical obstacles realistically, and plan accordingly.
16. Should there be threshold requirements for domain name registrars, and what responsibilities should such registrars have? Who will determine these and how?
A majority of the respondents favored establishing threshold requirements for registrars, citing the need for stability and consumer protection. Suggested qualifications involved: technical skills; operations skills and experience; and financial resources. AT&T suggested that registrars be required to submit to the jurisdiction of a single, predetermined court, and to post bond to satisfy judgments. Some suggested that registrars should be required to escrow or somehow make their full databases available to protect consumers in the event of insolvency or incompetence. A number of respondents cited the IAHC requirements approvingly, although the Asia & Pacific Internet Association (APAI) described them as "too U.S.-centric." The iPOC itself cautioned that threshold qualifications should be kept to a minimum in order to promote diversity and participation in the DNS by developing countries.
A sizeable minority of respondents asserted that the marketplace should determine whether and what requirements and responsibilities a domain name registrar should have. Registrants, in this group's view, should be free, after full disclosure, to deal with any registrar they choose. These commenters appeared to assume a system in which the failure of one registrar would not effect domain name registrants outside of the failed system.
Very few respondents commented on who should determine what qualifications are necessary to become a registrar and how these qualifications should be determined. Those who did respond generally referred to IANA or its successor.
17. Are there technical limitations on the possible number of domain name registrars?
Very few respondents thought that technology would limit the number of registrars who could compete in the DNS system. Several noted, however, that the existence of too many registrars could make the system more difficult to manage.
18. Are there technical, business and/or policy issues about the name space raised by increasing the number of domain name registrars?
Respondents cited interconnectivity, interoperability, and operational issues as three areas where issues might arise in connection with increasing the number of domain name registrars. Other commentators stressed the need to pay close attention to trademark dispute resolution. Finally, a few respondents referenced consumer protection and pricing concerns. In general, however, respondents felt that these issues could be resolved and did not justify limiting the number of domain name registrars.
19. Should there be a limit on the number of different gTLDs a given registrar can administer? Does this depend on whether the registrar has exclusive or non-exclusive rights to the gTLD?
Most respondents felt that there is no need to limit the number of gTLDs that a given registrar can administer at this time. Several cautioned, however, that this issue should be revisited and the decision revised if necessary as we gain experience. CIX proposed that policy development should be deferred until we have more experience with permanent DNS structure and the market for registration services. A few respondents suggested that competition would be enhanced by limiting the number of gTLDs that a given registrar can administer.
20. Are there any other issues that should be addressed in this area?
Respondents who answered question 20 were, for the most part, concerned about intellectual property rights. A significant number of respondents called for clarification on the extent to which a registrar has an intellectual property right in the databases generated in the course of registration activities. Most implied that claims to such intellectual property rights should be rejected.
E. Trademark Issues
What trademark rights (e.g., registered trademarks, common law trademarks, geographic indicators, etc.)vis-a-vis domain names?
The comments indicate general agreement that trademark rights (registered and common law trademarks, trade names, business names, etc.) should be protected. Commenters focused, however, on how domain names should be protected, i.e., by national courts or some other types of dispute resolution mechanism.
All commenters agreed that the national courts should remain an option for trademark protection, and indeed the technical community expressed a preference that this should be the only forum for trademarks disputes. A substantial portion of the technical community also believed that domain names are merely addresses and do not have trademark implications. However, trademark owners and attorneys indicated that they would prefer an additional Alternative Dispute Resolution (ADR) mechanism, such as the Administrative Challenge Panel (ACP) process identified in the IAHC gTLD MOU or something similar, for some kind of first level clearance to deal quickly with cyber-pirates.
22. Should some process of preliminary review of an application for registration of an IDN be required (to determine conflicts with trademarks, etc.)?
If so, what standard should be used? Who should conduct the preliminary review? If conflict is found, what should happen next? Automatic referral to dispute settlement?
There was general consensus among the commenters that there should be no preliminary review process. First, such a review would add unwanted delay to the registration process; second, most commenters did not want the registrars to review applications on any substantive grounds; and finally because the standards of review would be too difficult to establish and enforce.
Only a few respondents supported the institution of a waiting period after the filing of an application but prior to registration so that disputes could be resolved. However, because there are currently a fairly low number of actual disputes, it appears that establishing a short period after registration, during which a domain name could be suspended in the event of a conflict, would be a less intrusive procedure. There has been no trademark conflict with respect to the majority of domain names.
Please see the responses to Question 21 (above) with respect to the issues of domain name/trademark conflict and the proper forum such conflicts.
Aside from a preliminary review, how should trademark rights be protected on the Internet? What entities, if any, should resolve disputes? Are national courts the only appropriate forum for such disputes? Is there a role for national/international governments/nongovernmental organizations?
As stated above, there was consensus that national courts are one appropriate forum for domain name/trademark disputes (the same mechanism that exists currently). However, trademark owners and attorneys are concerned about the serious jurisdictional issues of an Internet with international registrars, as well as about cyber-pirates, and hence have supported ADR.
There was no consensus among the comments regarding the role of governments or international governmental organizations. However, there did appear to be consensus that if the Internet unravels, the U.S. government should step in.
How can trademark conflicts be prevented? What informational resources could reduce potential conflicts (database of information)? How should the database be used?
There is general agreement that domain name/trademark conflicts cannot be prevented in an international arena - but they can be minimized with certain technological solutions. The commenters agreed that a searchable domain name database with up-to-date contact information would certainly be helpful for clearance purposes. There were also a few comments suggesting that a worldwide trademark registration database would be helpful to deter conflict, however it is generally agreed that such a database would be too difficult to maintain.
There was no consensus on who should maintain a domain name database.
25. Should applicants be required to show a basis for a certain domain name? If so, what information should be supplied? Who should evaluate the information? On the basis of what criteria.
While there was general agreement among the commenters that reliable contact information was necessary, there was little support for requiring that an applicant demonstrate a basis for requesting a particular domain name (e.g., the name was applicant's business or family name). Further, there was no agreement regarding what basis information/evidence (family name, corporate name, registered trademark certificate, certificate of incorporation, etc.) should be submitted. However, many commenters pointed out that requiring the registrar to assess such information was likely to slow down the process and draw the registrar into needless litigation.
How would the number of gTLDs and the number of registrars affect the number and cost of resolving domain name/trademark disputes?
Commenters generally agree that increasing the number of gTLDs would also increase the number and cost of resolving domain name/trademark disputes. There is a sizable contingent in the technical community who felt that adding as many domain names as humanly possible would eliminate any trademark problems.
There was no consensus concerning the effect of increasing the number of registrars.
This question provoked responses concerning whether gTLDs should be added, and there was a general consensus that registries should be shared, especially the ".com" registry. In addition, there was considerable support for cautiously and judiciously adding gTLDs in the beginning of any new governance mechanism. There is concern for the stability of a system employing new technology as well as a wariness of the new governance mechanisms and the potential for a significant increase in domain name/trademark disputes.
27. Where are valid conflicting rights to a domain name, are there any technical solutions?
There was no consensus regarding a technological solution to such a situation, although several interesting ideas were submitted; using geographical indicators; using directories or a pull-down menu; adding the goods or services of each registrant into the domain name; using some international classification system, etc.
Are there any other issues that need to be addressed?
With respect to trademark issues, some commenters expressed a desire that the Internet domain name issue be kept within the U.S. until the many major issues have been satisfactorily settled (major issues such as governance, technology, dispute resolution, adding gTLDs, etc.
There is much that is not settled under the proposed plans for governance, and the public is justifiably concerned about the stability and reliability of the Internet environment in the wake of any new system of governance and new technologies for registries.