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INTA Blog
October 01
A Broken Whois System Under Review

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INTA’s Internet Committee is taking the lead on representing the voice of trademark owners by producing timely and relevant written responses to the numerous calls for comments we received over the summer. These comments cover two key issues:

1. The future of ICANN’s governance structure; and

2. Access to data for the purposes of enforcement.  

In the October 1 INTA Bulletin, I discuss INTA’s positions on the IANA Transition and Accountability proposals currently under review at the Internet Corporation for Assigned Names and Numbers (ICANN). Here I discuss INTA’s comments on two aspects of access to data—the next generation registrant directory services (RDS) and privacy and proxy services accreditation issues (PPSAI). Both issues have direct impact on trademark owners’ ability to access information for the purposes of enforcement and other business matters.

Regarding RDS, the current directory system known as “Whois” is considered broken. Whois is the first stop when looking for information on who owns and administers a domain name including names, physical addresses, and email addresses. In many instances, the data available in the Whois database is inaccurate and out of date. Many registrants supply false names and contact information in order to protect their privacy or to thwart enforcement efforts. While registrars have a commitment to maintain open and accurate directories, they do not continually maintain and verify the information. 

ICANN’s enforcement of the requirement has been insufficient. Recognizing this, ICANN convened an expert working group to address the issue. Internet Committee Chair Fab Vayra was part of the team representing the Intellectual Property Constituency (IPC). INTA strongly supports RLD reforms. While there are legitimate needs to mask contact data including businesses who may want to shield their identity before a product is launched or organizations engaged in controversial or political topics who fear government repercussions, there is a legitimate need for access to data.

Primary concerns for trademark owners are the use of a given domain name and access to its related data. INTA supports gated access, which would allow certain verified users access to comprehensive contact information when the need for data is clear and legitimate. The challenge is how to identify those with legitimate needs from others who intend to use the information for illegitimatepurposes. Furthermore, INTA supports the position that the cost of building the next generation RLD should be shared by the entire domain name community as the end result protects consumers from fraud, poor quality products, and other harms to domestic and global economies. 

Privacy concerns remains central to the Whois debate. Today, domain registrants have the option of protecting their identities through privacy and proxy service providers (P/P). The accreditation requirements for these services is under review by ICANN including a disclosure framework specifically for trademark owners. (Copyright owners would be subject to a different procedure.) INTA’s position is that accreditation standards should limit the availability of P/P Services to those circumstances when a compelling interest in preserving a registrant’s anonymity justifies the increased risk to consumers that preserving anonymity creates. Furthermore, in these instances, mechanisms should be place to mitigate such risks by ensuring that trademark owners can still effectively and efficiently police consumer confusion. INTA’s comments focus on the trademark framework and the requirements that would satisfy a trademark owners “need to know” versus the privacy concerns of the domain registrant. 

INTA supports the proposition that any fees required to relay and reveal appropriate registrant information should be borne by the registrant and the P/P as they have been contracted for the benefit of the privacy and proxy service. INTA also supports the proposition that registrants of domain names used for financial transactions or commercial purposes should be ineligible for P/P services even if they are using the services now. At the same time, INTA is mindful of free speech rights and wants to ensure that whatever systems are created to protect privacy also allow trademark owners the means to protect their brands, and ultimately, consumers from confusion, fraud and abuse. However, in ithe case of Whois and privacy proxy services, all information should be accurate and contactable in order for trademark owners to exercise the responsibility of protecting their brands and the consumers that they serve.

INTA’s comments may be found on the Internet topic portal and in the ICANN public comments forum. For more information, feel free to contact me at lschulman@inta.org and follow me on Twitter @LoriKnowsNet.


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