November 12, 2008
Sponsoring Committee: Whois Subcommittee of the Internet Committee, with the support of the Internet Committee
WHEREAS, trademark owners strive to maintain the public’s confidence in the quality of the goods and services that members of the public receive and protect consumers from confusion, and take appropriate measures to protect their trademarks in accordance with national laws;
WHEREAS, open access to ownership information contained in the Whois database by trademark owners is necessary to locate and contact the true owners of problematic domain name registrations and web sites and swiftly institute legal action to prevent the abuse of intellectual property, Internet fraud and other schemes that confuse and deceive Internet consumers;
WHEREAS, it is a disturbingly common practice among domain name registrars to ignore omissions and misstatements in registrant information and, more recently, to promote the use of third-party proxy services that cloak registrant data;
WHEREAS, the elimination or reduction of open access to ownership information contained in the Whois database will result in increased abuses of intellectual property and online fraud and other schemes resulting in decreased consumer confidence in the Internet marketplace.
BE IT RESOLVED, that INTA supports open access to accurate ownership information for every domain name in every Top-Level domain registry via a publicly accessible Whois database for addressing legal and other issues relating to the registration and use of the domain name. Available information should include the identity of and accurate, reliable contact details for the true owner of the domain name.
INTA has served as the leading voice of trademark owners in the development of cyberspace and is a founding member of ICANN’s Intellectual Property Constituency. INTA has special interest in policy relating to open access to Whois information. Ownership information contained in the Whois database is pertinent to legal and other issues relating to the registration and use of a domain name and is necessary for trademark owners to police abuses of intellectual property and to protect the public by preventing consumer confusion and consumer fraud in the Internet marketplace.
As a general principle, INTA’s position is that “[v]ictims of infringement should have an absolute right to obtain information regarding the identities of possible infringers.” INTA Model Law Guidelines, ¶ 14.3 (Nov. 2007). In the Internet context, from the perspective of intellectual property owners, the Whois database serves this critical purpose of providing open access to the identity of possible infringers. However, the practical realities of the Internet, such as the speed with which infringers can assemble, promote, and dispose of sites, and the lack of physical clues about the infringer’s location, make critical not only the ability to obtain an infringer’s identity, but also expedited or real-time access to effective contact information for the true owners of domain name registrations. Such access helps avoid or resolve legal and other disputes and, where amicable resolution is not possible, facilitates bringing the registrant to court under applicable laws. Open access to the Whois database also means that access should extend beyond those who identify themselves as intellectual property owners, because consumer access to ownership information helps avoid confusion by helping consumers verify the legitimacy of sites they visit and do business with reputable brand owners.
INTA has consistently directed its Whois advocacy at ensuring, as a practical matter, the availability of accurate, reliable, and publicly accessible Whois data. As new trends and practices have developed, the availability of accurate Whois data has de facto eroded due to the proliferation of false data and proxy registration services that rarely respond to notices of actionable harm. As some constituencies have raised new concerns and advocated for sweeping restrictions regarding Whois, INTA has remained consistent with the goal of preserving and improving access to vital Whois data for trademark owners.
Reversing the erosion in the availability of accurate domain ownership information may ultimately require a compromise balancing the interests of all stakeholders, and that balance can be achieved. After all, INTA has not supported the use of Whois information for marketing purposes, and supports registrars’ ability to prohibit use of Whois information for marketing purposes such as uses that enable the transmission of mass, unsolicited, commercial advertising or solicitations. Other developments may also include the technical modernization of the decades-old Whois protocol to implement appropriate security measures to prevent high volume, automated, electronic processes for harvesting Whois information for marketing purposes (such as are employed by some major registrars’ web interfaces).
However, INTA believes that ICANN and national ccTLD registry operators, as appropriate, should and can address any legitimate concerns regarding the privacy of domain ownership information in a narrowly tailored, effective, and fair way, rather than placing blanket restrictions on access to the ownership information contained in the Whois database. It is also critical that these actions be coupled with measures to reduce the incidence of inaccurate Whois information and enforce the responsibilities of proxy services to reveal the identities of possible infringers when presented with reasonable evidence of actionable harm.
The Board Resolution will aid INTA’s efforts in policy development and will provide INTA a clear mandate to advocate proactively for open access to more reliably accurate Whois information for every domain name. For the aforementioned reasons, the Internet Committee requests that the Board of Directors adopt the preceding Resolution.