The Chairmen and ranking minority members of the U.S. Senate and House Judiciary Committees have sent a letter to ICANN requesting “further details about the steps ICANN is taking to fulfill its commitment to ensure that the New gTLD process will provide “a secure, stable marketplace” with input from “the community as a whole.” The August 7th letter and an accompanying press release can be found at www.leahy.senate.gov/press/expansion-of-internet-domain-names-protects-consumers-and-trademark-holders.
The letter raises a series of questions about ICANN efforts to raise public awareness of the new gTLD program and the availability of the public comment period, as well as the possibility of extending that period [Note: that comment period is currently scheduled to close on August 12th, but during a webinar conducted this morning ICANN staff indicated that requests for a 30-day extension received from such groups as the Intellectual Property and Business constituencies will likely be granted]. It also inquiries about the specific role of the Independent Objector.
The letter also reiterates concerns “that inadequate protections may provide increased opportunities for cyber-squatters and other rogue actors to mislead consumers by registering fraudulent websites that incorporate familiar trademarks” and suggests that the Trademark Clearinghouse (TCM) be retained as a permanent protective feature rather than just be operational for the first 60 days of a new gTLD’s operation — and that consideration be given to having the TMC warning system go beyond exact matches by “allowing trademark holders to sign up for Clearinghouse notices of website registrations that contain their trademark in varied form (such as the trademark plus a generic term)”. It is not clear from the letter whether the signatories believe that registrants should automatically receive a warning of potential infringement when a domain combines a generic and trademarked term (which may often be a legitimate, non-infringing use), much less whether the reference to “varied form” also involves typographical variations and, if so, to what degree.
Other issues raised in the letter include the timing of ICANN post-launch review, registry pricing practices for “sunrise” registrations, to what extent ICANN will utilize some of the $350 million in new gTLD application fees for enhanced contractual compliance, and the status of negotiations to revise the Registrar Accreditation Agreement (RAA). The letter makes no mention the other required rights protection mechanism, Uniform Rapid Suspension (URS).
While not setting a deadline for response, we imagine that ICANN will reply to this inquiry in fairly expedited fashion. With the completion of new gTLD initial evaluations not expected until mid-2013, this inquiry might well be a precursor to additional oversight hearings being held in advance of the launch of the first new gTLDs, which ICANN currently projects taking place in the first quarter of 2014.