Snowe Bill Threatens Domain Name Registrants and Internet Commerce

According to a press release by the Internet Commerce Association (ICA), the bill has been referred to the Senate Committee on Commerce, Science and Transportation. No hearings have yet been scheduled on this proposal.

ICA strongly supports efforts to thwart trademark infringement, criminal phishing schemes, and the furnishing of inaccurate WHOIS database information.

S. 2661, however, contains provisions that are largely unrelated to these objectives and that radically and unnecessarily expand the rights of trademark owners to essentially provide them with monopoly rights on registered trademarks to the detriment of millions of individuals and businesses engaged in lawful and legitimate Internet commerce.

Moreover, the proposal goes far beyond protecting trademarks to covering brand names and business names that might otherwise not be entitled to trademark protection. Such an expansion flies in the face of established trademark law, poses significant risks to Internet commerce, and would be burdensome on our justice system.

ICA believes that the legislation can be perfected to eliminate these risks without hindering its ability to achieve the goal of preventing phishing and other fraudulent schemes that plague Internet commerce.

ICA is firmly opposed to the criminal activity of financial data phishing and will carefully review the portions of this legislation relevant to eradicating that activity with a view toward supporting those provisions that fill essential gaps in existing law.

However, ICA is also firmly opposed to the establishment of a parallel domain name infringement enforcement scheme that is more expansive and more onerous than the existing, highly effective remedies available to trademark owners through ICANN UDRP process and US trademark law.

Trademark owners already prevail in 85% of all UDRP complaints and nearly 100% of all ACPA cases. Yet some apparently now wish to establish a new regime for contesting allegedly infringing domains that is tilted even more in their favor by denying basic due process and substantive protections to domain name registrants %u2013 and that provides the possibility that they can use their power and influence to sway public officials to expend taxpayer dollars in defense of private Intellectual Property Rights (IPRs).

The overbroad and unnecessary trademark-like provisions of this bill are a recipe for massive reverse domain name hijacking by large corporations and are therefore a direct threat to the more than $10 billion in asset value created by the entrepreneurial ranks of professional domain name investors and developers, and to the beneficial goods, services, and information provided to consumers through their websites.

ICA will work with the bills sponsors and other members of the Senate Commerce Committee with an eye toward eliminating or narrowing these unnecessary and duplicative provisions and assuring that any final legislation is focused solely on the criminal financial fraud of true phishing schemes.

Relevant provisions of ICA member Code of Conduct include:

-Protection of IPRs: A registrant shall follow accepted trademark law and respect the brands and trademarks of others. Members will not intentionally and in bad faith register and use a domain name that is identical or confusingly similar to a trademark or service mark.

-Strict Adherence to Internet Fraud Laws: Members of ICA are committed to adhering to all applicable laws that seek to curb and control Internet fraud and abuse.

-Access to Accurate WHOIS Data: A registrant will provide accurate domain name ownership and contact information to the WHOIS database in a timely manner so that domain name ownership is transparent.

While ICA is clearly committed to best practices and lawful conduct by domain name registrants, we are very concerned that this proposal would establish a separate and parallel system of trademark-related enforcement vis-à-vis domain names that is less balanced, broader and more punitive than existing ICANN arbitration procedures and relevant provisions of US trademark law.

Further, the proposal unfairly targets domain name registrants for a widespread Internet practice  if its aim is to halt the advertising monetization of brand names and typographical variations thereof when consumers engage in direct Internet navigation or in web searches it utterly fails in that endeavor, as this activity is also engaged in systematically by search engines, web browsers and ISPs.

According to a press release by the Internet Commerce Association (ICA), the bill has been referred to the Senate Committee on Commerce, Science and Transportation. No hearings have yet been scheduled on this proposal.

ICA strongly supports efforts to thwart trademark infringement, criminal phishing schemes, and the furnishing of inaccurate WHOIS database information.

S. 2661, however, contains provisions that are largely unrelated to these objectives and that radically and unnecessarily expand the rights of trademark owners to essentially provide them with monopoly rights on registered trademarks to the detriment of millions of individuals and businesses engaged in lawful and legitimate Internet commerce.

Moreover, the proposal goes far beyond protecting trademarks to covering brand names and business names that might otherwise not be entitled to trademark protection. Such an expansion flies in the face of established trademark law, poses significant risks to Internet commerce, and would be burdensome on our justice system.

ICA believes that the legislation can be perfected to eliminate these risks without hindering its ability to achieve the goal of preventing phishing and other fraudulent schemes that plague Internet commerce.

ICA is firmly opposed to the criminal activity of financial data phishing and will carefully review the portions of this legislation relevant to eradicating that activity with a view toward supporting those provisions that fill essential gaps in existing law.

However, ICA is also firmly opposed to the establishment of a parallel domain name infringement enforcement scheme that is more expansive and more onerous than the existing, highly effective remedies available to trademark owners through ICANN UDRP process and US trademark law.

Trademark owners already prevail in 85% of all UDRP complaints and nearly 100% of all ACPA cases. Yet some apparently now wish to establish a new regime for contesting allegedly infringing domains that is tilted even more in their favor by denying basic due process and substantive protections to domain name registrants %u2013 and that provides the possibility that they can use their power and influence to sway public officials to expend taxpayer dollars in defense of private Intellectual Property Rights (IPRs).

The overbroad and unnecessary trademark-like provisions of this bill are a recipe for massive reverse domain name hijacking by large corporations and are therefore a direct threat to the more than $10 billion in asset value created by the entrepreneurial ranks of professional domain name investors and developers, and to the beneficial goods, services, and information provided to consumers through their websites.

ICA will work with the bills sponsors and other members of the Senate Commerce Committee with an eye toward eliminating or narrowing these unnecessary and duplicative provisions and assuring that any final legislation is focused solely on the criminal financial fraud of true phishing schemes.

Relevant provisions of ICA member Code of Conduct include:

-Protection of IPRs: A registrant shall follow accepted trademark law and respect the brands and trademarks of others. Members will not intentionally and in bad faith register and use a domain name that is identical or confusingly similar to a trademark or service mark.

-Strict Adherence to Internet Fraud Laws: Members of ICA are committed to adhering to all applicable laws that seek to curb and control Internet fraud and abuse.

-Access to Accurate WHOIS Data: A registrant will provide accurate domain name ownership and contact information to the WHOIS database in a timely manner so that domain name ownership is transparent.

While ICA is clearly committed to best practices and lawful conduct by domain name registrants, we are very concerned that this proposal would establish a separate and parallel system of trademark-related enforcement vis-à-vis domain names that is less balanced, broader and more punitive than existing ICANN arbitration procedures and relevant provisions of US trademark law.

Further, the proposal unfairly targets domain name registrants for a widespread Internet practice  if its aim is to halt the advertising monetization of brand names and typographical variations thereof when consumers engage in direct Internet navigation or in web searches it utterly fails in that endeavor, as this activity is also engaged in systematically by search engines, web browsers and ISPs.