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Domain dispute policy pushed forward

The body in charge of the Net's core technical functions directs its newly formed delegations to consider a controversial proposal to handle trademark disputes over domain names.

The body in charge of the Net's core technical functions has directed its newly formed delegations to consider a controversial proposal to handle trademark disputes over domain names.

The move, which took place at the close of the Internet Corporation for Assigned Names and Numbers' (ICANN) meeting in Berlin this week, marks the organization's first step toward possibly adopting the hot-button proposal put forward by the World Intellectual Property Organization.

Based on a White House white paper, ICANN has an agreement with the Commerce Department to administer the Net and to trigger competition in the domain name registration space, which Network Solutions has dominated since 1993 under a government contract.

WIPO's plan aims to stifle so-called cybersquatters, who register many domain names and try to resell them, by giving "famous" trademark holders around the world special claims on domains and by requiring registrants to provide accurate contact information in case someone wants to challenge ownership of a name. Legal experts say the landmark proposal is unfairly balanced in favor of big corporations.

But the assessment and potential adoption of any rules by ICANN depends greatly on ICANN's domain name supporting organization (DNSO), which represents different constituents who are stakeholders in the Net addressing system.

Six self-organized constituencies representing a wide range of interests--from Net access providers to domain name registrars--were recognized this week by ICANN. The groups within the DNSO will make decisions such as whether to add new top-level domain names and who should serve on ICANN's board. The current board is temporary and will establish the permanent election system.

But those trying to form the most closely watched group--which will represent regular online users and noncommercial interests--were sent back to the drawing board by ICANN's interim board to come up with a better proposal for the formation of their constituency by June 21, sparking controversy among observers.

"I am very concerned about sending [the WIPO proposal] to the DNSO constituencies when the only one designed to represent the people with the most to lose from this proposal is not formed," said Michael Froomkin of the Miami University School of Law.

Some say the Clinton administration's white paper called for the DNSO to make proposals to ICANN, not the other way around.

"The spirit of the actions taken in Berlin were contrary to the sprit of the white paper--that decisions be consensus based and bottom up. This move on the WIPO paper was top down," said Brian O'Shaughnessy, spokesman for Network Solutions.

ICANN says the noncommercial constituency proposals weren't mature enough to accept. Apparently, the groups were wrangling over who would lead their effort to set up the constituency.

"We told them we weren't going to play [referee] among three bickering parties," said Mike Roberts, ICANN's interim chief executive. "We're not interested in recognizing people, but the structure of the constituency. We didn't feel we could receive any of the proposals on the table."

In the meantime, the other groups will get to work on debating parts of the WIPO plan, despite the missing representation of the noncommercial group. Although ICANN didn't adopt the WIPO proposal, it broke up the issues into four areas of consideration and stated the following action plan:

• Famous Names: WIPO proposes giving "famous" trademark holders special claims on domains. ICANN directed the DNSO to review the proposal. "We definitely referred that over to the DNSO for study, comment, and recommendation. We didn't set a deadline for response," Roberts said.

• New top-level domains: The WIPO paper suggests curbing trademark disputes by adding more domain names in addition to ".com," ".org," and ".net." ICANN referred this issue to the DNSO to develop recommendations.

• Dispute Settlement Mechanisms: WIPO laid out a detailed mechanism for settling arguments over domain name ownership, such as setting up a third-party arbitration option. The DNSO is expected to respond by ICANN's next meeting in Santiago, Chile. "ICANN's board endorsed the idea of a uniform dispute resolution policy, but it sent the specific WIPO recommendations to the DNSO to produce recommendations by August," said Andrew McLaughlin, ICANN's senior adviser.

• Best Practices: The WIPO paper recommended that domain name registrants be required to provide accurate contact information and pay for domains names up front; currently domain names can be held up to two months without payment. ICANN stated in Berlin that these so-called best practices already are incorporated into its accreditation agreements with at least 12 registrars set to compete with Network Solutions. "The board has already said this is a good policy in the past and told me and the lawyers to put these [provisions] into our agreements," Roberts said.

Still, Network Solutions itself hasn't signed the accreditation agreement, meaning any policies ICANN adopts don't apply to the dominant ".com" registrar--at least, not yet.

"They haven't signed an agreement and didn't say they were going to," Roberts said.

An NSI spokesman wasn't immediately available to comment on the accreditation agreement issue.