eBay filed several comments this afternoon with ICANN in support of Frank Schilling’s Uniregistry applications for new gTLD’s.
While praising Uniregistry eBay bashes Top Level Domain Holdings (TLDH) policy.
In its comments praised Uniregistry’s trademark rights protection mechanisms contained in their application.
“”eBay Inc. supports Uniregistry’s proposed trademark rights protection mechanisms, including a 60-day Sunrise period during which a trademark owner can obtain an Active Registration or Blocking Registration; the extension of a single Sunrise application in one Uniregistry TLD to all Uniregistry TLDs; offering of the Trademark Claims service for as long as the Trademark Clearinghouse is accessible; and its stated intention to contract with a URS provider to reach the $300-$500 price point if ICANN is unable to do so. eBay appreciates Uniregistry’s represented intent to exceed the minimum trademark rights protection mechanisms required by ICANN.”
However eBay reserved it criticism for Top Level Domain Holding by saying:
“Top Level Domain Holdings Limited (“TLDH”) should not receive any points for its Rights Protection Mechanisms response because its “transfer fees to mitigate abuse” will allow it to benefit financially from cybersquatting in the .STORE TLD. ”
“Any benefit for TLDH from cybersquatting is completely inconsistent with and undermines ICANN’s requirement that all registry operators provide rights protection mechanisms.”
“TLDH’s Executive Chairman Peter Dengate Thrush advised the Intellectual Property Constituency during a June 25 meeting that TLDH’s stated policy for the .STORE TLD to “charge registrants with a processing fee for transferring domains to another registrar or registrant” applies to all domains – even those recovered by the transferring party pursuant to a proceeding under the Uniform Dispute Resolution Policy or through legal action. TLDH’s policy requires trademark owners to pay to transfer domain names that have been ordered transferred by a UDRP Panel or court and for which the trademark owner has already paid thousands of dollars in legal and proceeding fees to recover. Contrary to TLDH’s characterization, such a policy does not “mitigate abuse” and does not “create a deterrent to abuse.” It is abuse – abuse by the Registry Operator itself. Further, charging trademark owners a transfer fee is unprecedented and is contrary to common industry practice.”
“Unless and until TLDH publicly amends its .STORE TLD application to make clear that it will not charge trademark owners a fee to transfer domains recovered pursuant to a proceeding under the UDRP or through legal action, TLDH should score no points on its response to Question 29.”
Although eBay liked Uniregistry TM protections they did not like their proposed Whois system saying:
“”Applicant Uniregistry, Corp. (“Applicant”) should not receive two points for its Q26 response because its intended implementation of searchable Whois that is described in its .SHOPPING application will frustrate users’ ability to combat fraud and cybersquatting and is contrary to the spirit in which ICANN offered an “incentive” to applicants for offering searchable Whois.
It is essential to read Applicant’s Q23 and Q26 responses together. Applicant will require potential users of its searchable Whois (referred to as Tiered Access Searchable Whois or, hereinafter, “TASW”) to register and be authenticated to use TASW. While eBay is pleased that Applicant has not created any special eligibility requirements for TASW registration, Applicant’s intended implementation of TASW raises significant concerns. If a registrant in its .SHOPPING gTLD has also registered for Applicant’s TASW, that registrant will have access to “general and detailed information on who has been searching for them” in TASW, including the TASW user’s registration information.
The practical negative implications of this implementation are to frustrate TASW users’ ability to combat fraud and cybersquatting. The following example highlights these negative implications: Suppose that eBay learns that a third party has registered and is using an <ebayy.SHOPPING> domain name for a website selling counterfeit items. Based on experience, the registrant of <ebayy.SHOPPING> has probably registered other .auction domain names that violate our rights and is also using those domain names to engage in fraudulent or abusive practices. TASW is the most efficient – and as we discuss below, intended – mechanism to identify those other .SHOPPING domain names. However, Applicant’s scheme would allow that indisputably bad actor registrant of <ebayy.SHOPPING> to learn that we were investigating its abusive conduct. Such notice will, based on our experience, cause the registrant to take action that will make enforcement efforts more difficult – if not impossible. Applicant’s implementation scheme is akin to allowing restaurant owners to find out if the health inspector is on her way to their restaurants. This scheme will frustrate TASW users’ ability to combat fraud and cybersquatting.
Allowing disclosure of “general and detailed information on who has been searching” for a particular registrant in TASW is contrary to the spirit in which ICANN offered an “incentive” to applicants for offering searchable Whois. ICANN has repeatedly characterized searchable Whois as one of the “new protections” included in the new gTLD program that “are intended to provide a safe, stable Internet” and, accordingly, offered a “strong incentive” (in the form of an additional point on question 26) to provide searchable Whois “to make it easier to find infringing parties” and “to combat malicious conduct where it occurs.” Granting Applicant an additional point for providing searchable Whois in a way that undermines utility of searchable Whois as a “new protection” and may itself generate additional malicious conduct is wholly inconsistent with ICANN’s intention in offering this one-point incentive.””