[Comments-o-com-single-char-10may18] Public Comment

[Joseph "Joe" Weissman]

Verisign's RSEP proposal for offering "O.Com" contains no Rights Protection Mechanisms ("RPMs").  Such protections should be inherent in any new offering of domain names.  By way of example, registry operators subject to the Trademark Clearinghouse are required to offer a Sunrise period of at least thirty (30) days.  See https://www.icann.org/resources/pages/sdrp-2013-10-31-en.  To this end, Verisign offered a Sunrise period for various IDNs of ".com".  Verisign should not be permitted to offer any SCDN in .com or .net without similar RPMs.
It is unclear why Verisign's subject RSEP does away with RPMs, especially in light of a November 28, 2006 communication between Overstock.com and the ICANN Board that is available publically at https://www.icann.org/en/system/files/files/warren-to-board-28nov06-en.pdf.  Therein, Overstock.com expresses interest in the release through auction of SCDNs to "parties with established trademark or use rights in the 'name.'" Overstock.com suggests in its 2006 communication that auction proceeds go to ICANN except for "a one time per name contribution [in the form of] a percentage of the payment from the auctioned name [going] to any special/restricted funds which the Board and the community have agreed ... ."
Overstock's communication is significant for at least three reasons.  First, it seems to outline the process for the auction of "O.com" currently under consideration in the form of Verisign's RSEP.  Second, Verisign's RSEP nevertheless omits a key aspect of Overstock.com's 2006 proposal, i.e., mechanisms to protect trademark or use rights in "names" to be auctioned.  Third, the communication raises the specter of impropriety in Verisign's RSEP for auctioning off "O.com" in the form of a potential quid pro quo in which ICANN permits the registration of "O.com" in exchange for funding from Overstock.com for ICANN programs and/or ICANN-supported projects over a number of years.
Recognizing that ICANN and Versign derive their contracts from the United States government, both entities are responsible for upholding their obligations.  These obligations include transparency and equitable treatment to avoid confusion and protect brand owners.  Instead of providing RPMs, the RSEP states that "if any disputes arise from the allocation of this SCDN, it is recommended that the Uniform Dispute Resolution Policy be used."  Yet, the Uniform Dispute Resolution Policy applies only to bad-faith registrations and thus would fail to protect a brand owner from a registrant savvy enough to avoid providing indicators of bad faith.
Importantly, public comments have already supported a sunrise period for the release of SCDNs.   ICANN proposed releasing SCDNs through auction back in 2007.  The public comment period brought submissions supporting a sunrise period or some other procedure for protecting intellectual property rights in the release of SCDNs. (See https://forum.icann.org/lists/allocationmethods/pdf6q6lG1u1pw.pdf).

[cid:image001.png at 01CF7061.3AE55380]
Joseph J. Weissman, Esq.
Board Certified in Intellectual Property Law
SunTrust Bank Building
401 East Jackson Street, Suite 3100
Tampa, FL 33602
Phone: 813.225.2500, ext. 2095
Fax: 813.223.7118

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