2014 was a big year for us and for our clients. The new gTLD program forced us to rethink, reprioritize and implement new and different strategies to protect our brands online. The uncertainty largely behind us, and with more information at our fingertips about just how well (or not) brands are faring in the new environment, it’s time to look forward to what we can do in 2015 to fix what’s broken, throw away what’s useless, fight for what’s important and generally continue to try and make navigating the new Internet landscape as smooth as possible for brand owners and consumers alike.
That being said, these can be tough issues to navigate and follow, and honestly, forget about being an ICANN expert unless it’s your full time gig. (That’s what we’re here for!) Keeping in mind that we are all plagued with limited time and limited resources to engage, here are my opinions about the three areas where it will be most important for brand owners to focus in the new year, and some tips on how best to engage.
1. Rights Protection Mechanism Review
Love the Trademark Clearinghouse or hate it? Think the URS is an awesome cheap compliment to the UDRP or not so much? Do you have defensive registrations? Were your brands cybersquatted? Now is the chance to voice opinions and provide anecdotal data to ensure that whatever your opinion on the new gTLDs, it’s voiced and taken into account while changes are being contemplated.
In addition to examining those new RPMs that were developed specifically for the new gTLD program (such as the URS, the Trademark Clearinghouse, and a number of other DRPs), this RPM Review will also raise the question of whether we should change the UDRP. Reserving judgment (in this article) about whether or not opening up the UDRP is a good idea, one thing is for certain, it is a vitally important issue for brand owners. The UDRP remains (and likely will always remain) one of the most robust defenses brand owners have against cybersquatters. Developing an opinion about what we want for the UDRP and being ready to express it and support it is crucial.
The RPM Review is set to kick off with an ICANN-staff-produced Rights Protection Review Paper this month. This paper should begin to identify salient issues surrounding RPMs for community discussion and review. There will be a public comment period, and the paper should be delivered in time for review and discussion in February at ICANN’s 52nd public meeting in Singapore. ICANN is set to kick off official policy discussions and reviews with a Policy Development Process Initial Report in October of 2015 (delayed from March 2015).
2. Registrar Accreditation Agreement Evaluation
The 2013 Registrar Accreditation Agreement ushered in several new obligations for registrars to, among other things, ensure access to accurate, verified Whois information and to facilitate communication about alleged abuses including intellectual property complaints through obligations like a dedicated abuse point of contact. Along with the new requirements came heavier penalties for Registrars and Registrants alike, which have caused some mixed reaction in the ICANN community.
MarkMonitor and our clients have acknowledged the changes as a good thing and do not consider them unduly burdensome, especially considering the benefits. However, some in the Registrar community have voiced objections to several of the provisions, citing website takedowns and conflict with national privacy laws as reasons to reexamine and scale back on the requirements.
I anticipate that this will become a fight worth engaging in. Whois is our first (and potentially our best) line of defense against abuse online, allowing us to engage quickly and fairly with Registrants to resolve issues and offenses. Brand owners should insist on continued robust validation and verification requirements at the Registrar level to ensure contactability and harsh penalties for Registrants and Registrars who don’t comply. Any attempts to whittle back the requirements or question their efficacy should be opposed in the coming year.
3. Privacy/Proxy Services Accreditation
Speaking of contactability, the prolific use of Privacy and Proxy Services has long been a barrier in this regard. Restricting use to valid and legitimate reasons for privacy (as opposed to hiding criminal behavior and sources of counterfeit goods) is another important issue for consumers and brand owners, and is ripe for input as the ICANN Policy Development Process Working Group on Privacy and Proxy Services Accreditation Issues (PPSAI) is due to publish its initial report this month.
Many IP and consumer advocates support the use of Privacy and Proxy Services in scenarios where entities (commercial and non-commercial alike) are not making commercial use of the website at the time they are availing themselves of the service. We believe that Privacy and Proxy services play an imperative role in protecting political dissidence and free speech online and we acknowledge that brand owners that seek to protect trade secret information such as launches or pending trademark applications find these services essential; we do not seek to restrict use in these situations. However, we also believe that consumers on the Internet, as well as those donating money or engaging in other commercial transactions have a right to easily access website ownership information for their own protection. As demonstrated by ICANN’s study in 2013, a huge number of cyberquatters and counterfeiters online continue to dupe consumers by successfully hiding behind Privacy shields.
In addition to seeking limitations on who can use privacy and proxy services, we also seek to implement standardized processes to relay communication to the Registrant through the service provider, and to define the extraordinary circumstances under which Registrant contact information would be revealed to a requestor. Hopefully with these improvements on the current situation, privacy and proxy services will cease to be such a burden to brand owners in the very near future.
How To Get Involved
In addition to working with us, engaging with ICANN’s Intellectual Property Constituency and Business Constituency as well as with leading industry groups such as the International Trademark Association (INTA) and the International Anti-Counterfeiting Coalition (IACC) are good ways to examine opportunities for input. These organizations will be sure to submit comments and provide succinct education materials on these and other issues through committees and monthly meetings.
ICANN will hold its 52nd public meeting in Singapore from February 8-12, 2015. We look forward to providing you with more information and answering any questions you have on these and other issues to come.