Vulcan Golf, LLC v. Google Inc. et al

Filing 152

MOTION by Plaintiff Vulcan Golf, LLC for leave to file Motion for Preliminary Injunctive Relief and Supplement and to Conduct Expedited Limited Discovery (Attachments: # 1 Exhibit A-D)(Foote, Robert)

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Vulcan Golf, LLC v. Google Inc. et al Doc. 152 Att. 1 EXHIBIT A Dockets.Justia.com Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 1 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 2 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 3 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 4 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 5 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 6 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 7 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 8 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 9 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 10 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 11 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 12 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 13 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 14 of 18 Case 1:07-cv-03371 Document 122 Filed 01/03/2008 Page 15 of 18 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01/03/2008 Page 59 of 59 EXHIBIT B Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 1 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 2 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 3 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 4 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 5 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 6 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 7 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 8 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 9 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 10 of 11 Case 1:07-cv-03371 Document 127 Filed 01/25/2008 Page 11 of 11 Case 1:07-cv-03371 Document 127-2 Filed 01/25/2008 Page 1 of 6 Case 1:07-cv-03371 Document 127-2 Filed 01/25/2008 Page 2 of 6 Case 1:07-cv-03371 Document 127-2 Filed 01/25/2008 Page 3 of 6 Case 1:07-cv-03371 Document 127-2 Filed 01/25/2008 Page 4 of 6 Case 1:07-cv-03371 Document 127-2 Filed 01/25/2008 Page 5 of 6 Case 1:07-cv-03371 Document 127-2 Filed 01/25/2008 Page 6 of 6 EXHIBIT C Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 GNSO Issues Report on Domain Tasting STATUS OF THIS DOCUMENT This is the revised and final version of the Issues Report on Domain Tasting produced by ICANN staff and originally submitted to the GNSO Council on 29 May, 2007. Details of factual corrections made to the 29 May version are in Annex 3 of this document. This revised and final report was submitted to the GNSO Council on 14 June, 2007. SUMMARY This report is submitted to the GNSO Council in response to a request received from the At-Large Advisory Committee for an Issues Report on Domain Tasting. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 1 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 TABLE OF CONTENTS 1 EXECUTIVE SUMMARY 2 OBJECTIVE 3 BACKGROUND 4 DISCUSSION OF POSSIBLE DIRECTIONS 5 STAFF RECOMMENDATION ANNEX 1 - GLOSSARY OF TERMS 3 7 14 26 28 31 ANNEX 2 ­ ALAC REQUEST FOR ISSUES REPORT ON DOMAIN TASTING 33 ANNEX 3 ­ CORRECTIONS TO ISSUES REPORT 38 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 2 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 1 1.1 Executive summary Definitions Add Grace Period (AGP) A Grace Period refers to a specified number of calendar days following a Registry operation in which a domain action may be reversed and a credit may be issued to a registrar. AGP is typically the five day period following the initial registration of a domain name. AGP appears as a contractual term in some, but not all gTLD registry agreements.1 AGP allows for the correction of typos and other errors by registrants. Once a domain name is deleted by the registry at this stage, it is immediately available for registration by any registrant through any registrar. When a domain name is registered through an ICANN accredited registrar, that registrar may cancel the domain name at any time during the first five calendar days of the registration and receive a full credit for the registration fee from the registry. Domain Tasting ­ Domain tasting is a monetisation practice employed by registrants to use the add-grace period to register domain names in order to test their profitability. During this period, registrants conduct a cost-benefit analysis to determine if the tested domain names return enough traffic to offset the registration fee paid to the registry over the course of the registration period (e.g., currently $6 US for a .NAME domain name). Reference to an add grace period appears in the following gTLD registry agreements: .BIZ (http://www.icann.org/tlds/agreements/biz/appendix-07-08dec06.htm) .COM (http://www.icann.org/tlds/agreements/verisign/appendix-07-01mar06.htm), .INFO (http://www.icann.org/tlds/agreements/info/appendix-07-08dec06.htm), .NAME (http://www.icann.org/tlds/agreements/name/registry-agmt-appc-5-02jul01.htm), .NET (http://www.icann.org/tlds/agreements/net/appendix7.html), .ORG (http://www.icann.org/tlds/agreements/org/appendix-07-08dec06.htm), and .PRO (http://www.icann.org/tlds/agreements/pro/registry-agmt-appc-30sep04.htm#C.10). Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 3 of 39 1 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 1.2 Background The AGP did not arise from an ICANN policy process. AGP was instituted by registries with the agreement of registrars and introduced into the registry contracts for .BIZ, .COM, .INFO, .NAME, .NET, .ORG and .PRO. The original intent of the AGP was to allow registrars to recover fees to registries if domain names were mistyped during registration. In response to customer (i.e. registrar and registrant) concerns, and in cooperation with ICANN staff, Network Solutions (now VeriSign) implemented the AGP for .com, .net and .org within the first year of the original ICANN agreement for those gTLDs in 1999, but the agreement was never amended to include this requirement. When the .com,2 .net3 and .org4 registry agreements were re-executed in 2001, the AGP requirement was included along with other grace period5 provisions. When the first, new gTLDs were approved in November, 2000, the AGP requirement was included in the associated registry agreements.6 Data in the public domain shows that most domain tasting is done via a small proportion of registrars and that a majority of AGP names are immediately dropped. The .ORG monthly report for January, 20077 shows that five registrars deleted 1,773,910 (99.4%) of domain names within the AGP, retaining only 10,862 domain names following the AGP. The combined .COM and .NET monthly report for January, 20078 shows that the top ten registrars engaged in domain tasting accounted for 95% of all deleted .COM and .NET domain names. These registrars deleted 45,450,897 Archived 2001 .COM agreement: http://www.icann.org/tlds/agreements/verisign/com-index25may01.htm 3 Archived 2001 .NET agreement: http://www.icann.org/tlds/agreements/verisign/net-index.htm 4 Archived 2001 .ORG agreement http://www.icann.org/tlds/agreements/verisign/org-index.htm 5 Sample Grace Period provisions in 2001 .ORG agreement: http://www.icann.org/tlds/agreements/verisign/registry-agmt-appc-16apr01.htm#3 6 The new gTLDs created in the 2000 round were .AERO, .BIZ, .COOP, .INFO, .MUSEUM, .NAME, and .PRO. 7 http://www.icann.org/tlds/monthly-reports/org/pir-200701.pdf 8 http://www.icann.org/tlds/monthly-reports/com-net/verisign-200701.pdf Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 4 of 39 2 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 domain names out of 47,824,131 total deletes. The top four registrars engaged in domain tasting deleted 35,357,564 domain names, or 74% of all deletes. 1.3 Possible directions for ICANN community A GNSO policy development process is one of several mechanisms the ICANN community could use to consider domain tasting. Other mechanisms include: o o o the ICANN budget process, registry contractual changes or negotiations, or the process for consideration of new registry services. In order to inform the ICANN community of possible directions that may be taken, Section 4.2 of this report describes these mechanisms in more detail.,. 1.4 Staff recommendation The issues surrounding domain tasting have generated significant discussion among several constituencies and stakeholders and would benefit from review as part of a structured discussion. However the GNSO may choose to proceed, staff notes that the completion of concrete fact-finding and research will be critical in informing the community's deliberations. In determining whether the issue is within the scope of the ICANN policy process and the scope of the GNSO, staff and the General Counsel's office have considered the following factors: 1. Whether the issue is within the scope of ICANN's mission statement, 2. Whether the issue is broadly applicable to multiple situations or organisations, 3. Whether the issue is likely to have lasting value or applicability, albeit with the need for occasional updates, 4. Whether the issue will establish a guide or framework for future decision-making, Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 5 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 5. Whether the issue implicates or affects an existing ICANN policy. Based on the above, the General Counsel finds that the proposed issue is within scope of the ICANN policy process and within the scope of the GNSO. Staff recommends that the Council begin a policy development process, including further fact-finding and research and the consideration of other mechanisms to address the issue. Staff resources would be made available to support these research activities and objectives. To assist the community with its decision-making process, ICANN staff would welcome guidance on specific directions for further research. 1.5 Next steps The GNSO Council will meet on 7 June, 2007 and is expected to acknowledge receipt of this report and decide on the next action to take. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 6 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 2 1. Objective This report is submitted in response to the At-Large Advisory Committee's request for an `Issues Report on Domain Tasting' which was sent to the GNSO Council on 9 May, 2007 (http://gnso.icann.org/mailing-lists/archives/council/msg03474.html). 2. In this context, and in compliance with ICANN Bylaw requirements: a. The proposed issue raised for consideration; domain tasting b. The identity of the party submitting the issue: The party submitting the issue is the At-Large Advisory Committee (ALAC)9, whose role (as defined in the ICANN Bylaws) is to consider and provide advice on the activities of ICANN, insofar as they relate to the interests of individual Internet users. The ALAC indicated in its request that it had the support of the Commercial and Business Users10 and Intellectual Property11 constituencies, as well as qualified support from the gTLD Registries constituency12. Since GNSO constituencies cannot on their own request an Issues Report, the ALAC is the party submitting the issue for purposes of this report. c. How that party is affected by the issue; the ALAC represents the interests of individual Internet users. ALAC raised five consequences of the existing policy that affect Internet users: destabilisation of the domain name system, creation of consumer confusion, increased costs and burdens to legitimate registrants, and, facilitation of trademark abuse and facilitation of criminal 9 http://alac.icann.org/ http://gnso.icann.org/commercial-and-business/ 11 http://gnso.icann.org/intellectual-property/ 12 http://gnso.icann.org/gtld-registries/ 10 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 7 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 activity. (The full text of the ALAC request for an issues report is in Annex 2 of this report.) These areas are discussed below: Stability of the DNS The ALAC communication notes that the operational load on the registry systems caused by domain tasting may cause instability in the gTLD namespace or the entire DNS. ICANN's first Core Value is "preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet," and an examination of the actual impact of domain tasting on DNS stability should inform the policy discussion. On 28 March 2006, PIR, the registry operator for the .ORG top-level domain, published an article titled "Impact on Automated Domain Registrations (`Domain Tasting') on .ORG Registrants"13. According to the PIR article, "PIR is concerned about the potential impact of Domain Tasting on the stability and security of the Internet and is working on some initiatives to better manage issues that arise as a result of such activities." (PIR later made a request through the RSEP process to address certain aspects of AGP. The PIR request was approved by the ICANN Board of Directors in November 200614.) The Security and Stability Advisory Committee (SSAC)15 issued an Advisory in June 2006 entitled "Renewal Considerations for Domain Name Registrants"16 which sought to make registrants aware of marketplace 13 14 15 http://www.circleid.com/posts/impact_of_automated_domain_registration_tasting/ http://www.icann.org/minutes/resolutions-22nov06.htm. http://www.icann.org/committees/security/ 16 http://www.icann.org/committees/security/renewal-advisory-29jun06.pdf Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 8 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 activities (including domain tasting) that might affect them in the renewal phase. Inputs to an investigation of stability issues might include data offered by registry operators and others and further study by the SSAC. Registry operators to date have not taken a uniform position on the technical impact of domain tasting activity. Steve Crocker of the SSAC has reported that VeriSign responded to a communication that tasting activities do not affect nor threaten the stability of their operations; however, VeriSign has made no official statement on this. In a 2006 letter to the SSAC, PIR stated that: "PIR is concerned about the potential impact of Domain Tasting on the stability and security of the Internet and is working on some initiatives to better manage issues that arise as a result of such activities."17 Consumer experience The ALAC communication notes that consumers may be confused as a result of domain tasting. Consumers trying to register names whose availability changes quickly due to domain tasting activity may be confused because the names seem to appear and disappear. Existing registrants may also find that their expired names are registered by others much faster than occurred in the past, making registrants significantly more likely to lose a name whose registration they have failed to maintain. A 2006 report by ICANN's Security and Stability Advisory Committee18 noted that domain name tasting is one of the risks and threats involved for registrants who allow names to expire; reputational harm, commercial considerations, domain name brokering in the after-market, domain traffic monetisation and domain name tasting.19 17 18 http://www.icann.org/correspondence/viltz-to-crocker-26mar06.pdf http://www.icann.org/committees/security/ 19 SSAC Advisory SAC0010: Renewal Considerations for Domain Name Registrants, June 2006, http://www.icann.org/committees/security/renewal-advisory-29jun06.pdf. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 9 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Some Internet users may report a lower quality of experience when encountering a high volume of parked pages or advertising-related links in response to search queries. However, some Internet users prefer to encounter parked pages with possibly relevant content or links than a "page not found" response. Some large Internet service providers and popular browsers already redirect unregistered names20, so that the elimination of domain tasting practices by registrants would result in the substantially same experience as users now encounter with parked names. The ALAC suggests that if users encounter continual negative experiences in trying to register domain names or use the domain name system (DNS), the result is a general undermining of confidence in the DNS. Some users have raised concerns that the practice of domain tasting reduces the number of available names to, for example, potential business owners who would use a name to describe their business rather than extract advertising revenue from Internet traffic. Costs The ALAC communication lists a possible consequence of domain tasting as "increased costs and burdens to legitimate registrants." The request does not define who is considered to be a "legitimate" registrant. However, an examination of the respective costs associated with domain tasting might be useful. The parties involved in domain tasting have invested the amount of the registration fees, which is then refunded on names deleted within the add grace period, depending on the practice of their registrar. While there is presently no data on financial impact, registrars may find that confusion associated with tasting activities results in higher support costs for them. E.g. recent versions of Internet Explorer direct users to a page on the Microsoft website rather than serve up a `file not found' when a user types in an incorrect URL. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 10 of 39 20 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 The ALAC request notes that "tasted" names may be in conflict with other registered names, resulting in businesses or non-commercial entities assuming monitoring costs and the need to purchase additional defensive registrations. The ALAC also points out that registry costs may be increased due to the operational load from the volume of add and delete transactions. Domain tasting may also be a source of revenue for registries and registrars, which may offset or exceed the costs involved in maintaining the registry operations or registrar support systems. It is also possible that having more names registered and renewed may be financially beneficial to registries and/or registrars. Trademarks The ALAC communication notes that automated programs are able to find and register "typographical permutations" of a trademark. Policies such as the UDRP21 exist to provide recourse for those who believe their trademarks are being infringed. However, existing dispute resolution mechanisms may not be sufficiently timely or cost-effective for trademark holders to use in dealing with all infringement or typo-squatting activity that may occur as a result of domain tasting. The short timeframes involved in addition, deletion, and re-registration of domain names may mean that some registrants are profiting from short-term use of trademark variations, making it difficult for trademark holders to effectively use the UDRP. A recent statement from the World Intellectual Property Organisation (WIPO)22 drew attention to domain tasting as one of several factors that have given rise to the mass registration of domain names, with registrations "often anonymously undertaken on a serial basis without particular attention to third- 21 22 http://www.icann.org/dndr/udrp/policy.htm. http://www.wipo.int/portal/en/news/2007/article_0010.html. Page 11 of 39 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 party intellectual property rights." (Further discussion of the WIPO concerns is in Section 3.7.) Criminal Activity The ALAC communication notes that names being added and deleted also makes it more difficult for law enforcement to access records and pursue cases of criminal activity, and that the capability to do domain tasting also enables activities such as phishing or pharming. Phishing is defined as the practice of creating a replica of an existing webpage to fool a user into submitting personal, financial or password data. Pharming is the practice of redirecting a website's traffic from the legitimate website to a bogus website for the purpose of stealing personal, financial or other data. However, ICANN's role and responsibilities do not extend to Internet content. The use of registered domain names is not within scope of ICANN policy and how domain tasting facilitates such behaviour will require further research. Other effects Domain tasting is an existing business model used by certain registrants. Further research may need to look at competition aspects and determine whether the downstream adjustments to any changes to current AGP practices will have other negative consequences. To the extent that the GNSO determines that any of the above consequences exist and are harmful, the GNSO could consider the consequences that may result in the domain marketplace. ICANN's Core Values also include "Respecting the creativity, innovation, and flow of information made possible by the Internet by limiting ICANN's activities to those matters within ICANN's mission requiring or significantly Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 12 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 benefiting from global coordination," and "Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment." In consideration of consumer-related aspects of domain tasting, the GNSO should bear in mind ICANN's limited role. d. Support for the issue to initiate the PDP; The ALAC request for an issues report and subsequent policy development process indicated that it was supported explicitly by the Commercial and Business Users and the Intellectual Property constituencies of the GNSO. The request also included a statement from the gTLD Registries constituency with qualified support for a "properly framed issues report on the above, including the soliciting of feedback on the utilisation of the five day AGP itself, recommended changes, the effects of such a change, and how any changes would be handled under the provisions in the existing gTLD registry contracts relating to consensus policies and to the contractual obligations of support for the five day grace period within many registry agreements." The gTLD Registries constituency noted that "it is also important to recognize in the Issues Report that the Registrar Accreditation Agreement with ICANN have provisions relating to consensus policies that also need to be examined. That would have an impact on the RAAs (Registrar Accreditation Agreement)." Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 13 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 3 3.1 Background Process background On 13 January, 2005, the GNSO Council resolved "to request the ICANN staff manager to write an issues report (as specified in annex A to the ICANN by-laws) on the "Problems caused by contention for domain names made available by a gTLD registry ", so that Council can subsequently decide if a policy development process would be appropriate". Staff resources were insufficient at that time to respond to this request. When staff resources were increased, from February / March 2005 onwards, the GNSO Council agreed in successive GNSO Operating Plans to deprioritise this issue. Public workshops on the domain name marketplace and domain name monetisation were conducted at ICANN meetings in Marrakech, Morocco (27 June 2006)23, Sao Paulo, Brazil (6 December 2006)24 and Lisbon, Portugal (25 March 2007)2526. On 9 May, 2007, Alan Greenberg, the At-Large Advisory Committee (ALAC) Liaison to the GNSO Council, notified the GNSO Council that the ALAC had formally requested the ICANN staff to prepare an Issues Report on Domain Tasting27. For the purposes of this Issues Report, ICANN staff has assumed, based on the ALAC's communication, that ALAC wishes the GNSO to consider whether policies should be developed that would limit or proscribe domain tasting behaviour. 3.2 Issue Background 23 24 http://www.icann.org/meetings/marrakech/captioning-dn-27jun06.htm http://www.icann.org/meetings/saopaulo/captioning-dnmarket-06dec06.htm 25 http://www.icann.org/meetings/lisbon/transcript-tutorial-secondary-25mar07.htm 26 http://www.icann.org/meetings/lisbon/transcript-tutorial-expiring-25mar07.htm 27 http://gnso.icann.org/mailing-lists/archives/council/msg03474.html Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 14 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Domain tasting is defined in the ALAC's request as "the systematic exploitation of the five day AGP to gain access to domain names without cost." Domain Tasting can also be characterised as a practice used by registrants that uses the add-grace period to register domain names in order to test their profitability. During the five day period, registrants conduct a cost-benefit analysis (using traffic monitoring, pay-per-click or other advertising models) to determine if the tested domain names may return enough revenue to offset the registration fee paid to the registry over the course of the registration period (e.g., currently $6 US for a .NAME domain name). A Grace Period refers to a specified number of calendar days following a Registry operation in which a domain action may be reversed and a credit may be issued to a registrar. AGP is typically the five-day period following the initial registration of a domain name. If, for any reason, a domain name is deleted during this period, the registrar will be fully credited for the amount of the new registration fee by the applicable registry. Once a domain name is deleted by the registry at this stage, it is immediately available for subsequent registration by any registrant through any registrar.28 The language describing the AGP in the ICANN contract with the .BIZ registry is as follows: "The Add Grace Period is a specified number of calendar days following the initial registration of a domain. The current value of the Add Grace Period for all registrars is five calendar days. If a Delete, Renew, or Transfer operation occurs within the five calendar days, the following rules apply: Reference to an add grace period appears in the following gTLD registry agreements: .BIZ (http://www.icann.org/tlds/agreements/biz/appendix-07-08dec06.htm) .COM (http://www.icann.org/tlds/agreements/verisign/appendix-07-01mar06.htm), .INFO (http://www.icann.org/tlds/agreements/info/appendix-07-08dec06.htm), .NAME (http://www.icann.org/tlds/agreements/name/registry-agmt-appc-5-02jul01.htm), .NET (http://www.icann.org/tlds/agreements/net/appendix7.html), .ORG (http://www.icann.org/tlds/agreements/org/appendix-07-08dec06.htm), and .PRO (http://www.icann.org/tlds/agreements/pro/registry-agmt-appc-30sep04.htm#C.10). Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 15 of 39 28 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Renew: If a domain is extended within the Add Grace Period, the account of the sponsoring Registrar at the time of the extension will be charged for the initial add plus the number of years the registration is extended. The expiration date of the domain is extended by the number of years, up to a total of ten years, as specified by the registrar's requested Renew operation. Transfer (other than ICANN-approved bulk transfer): Transfers under the Registry-Registrar Agreement may not occur during the Add Grace Period or at any other time within the first 60 days after the initial registration. Enforcement is the responsibility of the Registrar sponsoring the domain name registration and is currently enforced by the SRS. Bulk Transfer (with ICANN approval): Bulk transfers with ICANN approval may be made during the Add Grace Period. The expiration dates of transferred registrations are not affected. The losing Registrar's account is charged for the initial add. Delete: If a domain is deleted within the Add Grace Period, the sponsoring Registrar at the time of the deletion is credited for the amount of the registration; provided, however, that Registry Operator shall have the right to charge Registrars a fee as set forth in its Registry-Registrar Agreement for disproportionate deletes during the Add Grace Period. The domain is deleted from the Registry database and is immediately available for registration by any Registrar. See Section 3.2 for a description of overlapping grace period exceptions." 29 29 See http://www.icann.org/tlds/agreements/biz/appendix-07-08dec06.htm. This contract language is typical of gTLDs with AGP. Page 16 of 39 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 AGP is described in the various registry agreements as a documented component of registry specifications; it is not the subject of an ICANN consensus policy. AGP is described in the Functional Specifications included in all current un-sponsored Registry Agreements (.BIZ, .COM, .INFO, .NAME, .NET, .ORG, .PRO).30 Regarding the historic background of the AGP, Chuck Gomes of VeriSign stated during ICANN's June 2006 meeting that AGP was instituted at the agreement of registrars and the registry31: "What we discovered several months later in responses from our customers, which at that time were mostly test bed registrars...is that registrants would sometimes make a typo and there was no recovery for the registry fee under that scenario. So we actually proposed to registrars at that time and to ICANN that we be able to introduce that grace period. It was not part of the first contract for com, net and org. In the renegotiation that occurred in 2001, it was incorporated as part of the contract. So there really was no policy development process. The initial intent was for typos and to allow [a] mechanism to deal with that." 32 Domain tasting appear to be primarily an issue for .COM registrations, although domain tasting also occurs in other gTLDs such as.NET and .ORG, and is also emerging in some ccTLDs. Published data regarding .COM, .NET and .ORG show that most tasting of names in these domains is done via a small proportion of registrars, and also that a majority of tasted names are dropped. References to an add grace period appears in the following gTLD registry agreements: .BIZ (http://www.icann.org/tlds/agreements/biz/appendix-07-08dec06.htm) .COM (http://www.icann.org/tlds/agreements/verisign/appendix-07-01mar06.htm), .INFO (http://www.icann.org/tlds/agreements/info/appendix-07-08dec06.htm), .NAME (http://www.icann.org/tlds/agreements/name/registry-agmt-appc-5-02jul01.htm), .NET (http://www.icann.org/tlds/agreements/net/appendix7.html), .ORG (http://www.icann.org/tlds/agreements/org/appendix-07-08dec06.htm), and .PRO (http://www.icann.org/tlds/agreements/pro/registry-agmt-appc-30sep04.htm#C.10). 31 At the time AGP was introduced, there was only one gTLD registry; Network Solutions. 32 http://www.icann.org/meetings/marrakech/captioning-dn-27jun06.htm. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 17 of 39 30 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 · The January 2007 monthly report33 of PIR, the registry for .ORG, shows that five registrars deleted 1,773,910 domain names within AGP, and retained only 10,862 domain names, i.e. they deleted 99.4% of all registrations within the AGP. · The January 2007 monthly report34 of VeriSign, the registry for .COM and .NET, showed that the top ten registrars engaged in domain tasting accounted for 95% of all deleted .COM and .NET domain names during January 2007. These registrars deleted 45,450,897 domain names out of 47,824,131 total deletes. The top four registrars engaged in tasting deleted 35,357,564 domain names, or 74% of all deletes. · In September 2006 PIR submitted a proposal for a five-cent excess-deletion fee to be applied on a per registrar basis to registrars performing deletions above a threshold of 90% during the AGP.35 This request was made through the Registry Service Evaluation Policy (RSEP)36, a consensus policy developed by the GNSO. The PIR request was approved by the ICANN Board of Directors in November 200637. · PIR noted in its proposal that "the abuse of the add-grace period is restricted to a few registrars who are engaged in domain tasting on a larger scale than the vast majority of registrars. While the back-end provider for PIR (Afilias) is confident that it currently has the technical capacity to handle any burdens caused by the high percentage of add-grace period transactions being experienced, this situation could change if a large number of additional registrars were engaged in the same practices. Imposing a fee at this time should help limit the risk that could accompany a large surge of add-grace period transactions."38 33 34 35 36 http://www.icann.org/tlds/monthly-reports/org/pir-200701.pdf http://www.icann.org/tlds/monthly-reports/com-net/verisign-200701.pdf http://www.icann.org/registries/rsep/PIR_request.pdf. http://www.icann.org/registries/rsep/rsep.html 37 http://www.icann.org/minutes/resolutions-22nov06.htm. 38 http://www.icann.org/registries/rsep/PIR_request.pdf, page 12. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 18 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 · In a 21 November 2006 letter from former PIR CEO, Ed Viltz, to Vint Cerf, Chairman of the ICANN Board, regarding the PIR excess deletion fee proposal, Mr. Viltz stated: "The PIR Proposal makes it abundantly clear that it is not intended to address the phenomenon known as "domain tasting", nor is it intended to resolve all the problems that have arisen in connection with the 5-day add-grace period. PIR has not taken a position pro or con on domain tasting. Furthermore, it may well be that there are reasons to amend, improve or even abolish the 5day add-grace period, but the PIR Proposal does not address these. The PIR proposal is a straightforward attempt to deal with a problem that has arisen from certain abuses of the 5-day add-grace period in the experience of PIR. It is not offered to the Internet community as an endorsement of domain tasting or as a model for other registries (although PIR would have no objection to its adoption by other registries)."39 · PIR is implementing the excess deletion fee on 26 May, 2007. This means the July, 2007 invoice to registrars will assess the excess deletion fee on activity during the month of June 2007). As this practice has not yet begun, there is no data currently available on the effect of a fee on domain tasting in the .ORG TLD. This data will be useful in the future for determining the impact of registry efforts to address the level of domain tasting within individual TLDs. 39 http://www.icann.org/correspondence/viltz-to-cerf-21nov06.htm. Page 19 of 39 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 3.3 name: Life cycle of a domain name The diagram below depicts the AGP phase as part of the registration cycle of a domain Some registrar activity post-expiration may not be reflected in the life cycle chart above. 3.4 Uses of the Add Grace Period o Typos, mis-registrations, consumer fraud AGP allows for the correction of typos and other errors by registrants, which may be of benefit to them. Registrars have a variety of practices regarding refunds to registrants in these circumstances. o AGP can also be used by registrars to correct system errors. For example, if names are erroneously added at the registry, the fees can be refunded to the registrar if the names are deleted during the AGP. AGP may help registrars recover some losses from failed payment transactions or fraud cases, although many of these types of scenarios extend beyond the first five days of registration. 3.5 Domain Tasting Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 20 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 o AGP can also be used by registrants to facilitate large-scale addition and deletion of domain names in order to test market value of names. As noted above, this practice is referred to as "domain tasting." o A variety of tools can be used by domain holders during the "tasting" period to assess the market value of a domain name and to generate revenue. During this period, the name may resolve to a `parking page' that contains advertising and/or links determined to be relevant to the name or to certain associated search terms, for which the registrant has made pay-per-click arrangements with advertisers.40 o o Some general sources on how domain name monetization works and a short history of the practice are available in the footnotes.41 Domain parking is a practice used by registrars, individual registrants and Internet advertising publishers to monetize type-in traffic. Type-in traffic refers to Internet users who visit a web-page by typing its URL directly into their browser rather than by clicking on a link from another page such as a search engine result page. Proponents of domain parking say it uses domain names to deliver relevant advertising and enhanced search options instead of serving Internet users with an error page often referred to as a `404 file not found'.42 . Further information about the Pay Per Click (PPC) advertising model is available here; http://en.wikipedia.org/wiki/Pay_per_click. 41 A selection of articles on the domain name monetisation business: CircleID, "How Domain Traffic Testing/Tasting Works"; http://www.circleid.com/posts/how_domain_name_tasting_works/. CircleID, "The Parked Domain Monetization Business", http://www.circleid.com/posts/the_parked_domain_monetization_business/, Wall Street Journal; "Thanks to Web Ads, Some FindNew Money in Domain Names", http://online.wsj.com/public/article/SB113200310765396752FYV6dsilRS0N1fsiVu_bLf_5nI8_20061116.html?mod=rss_free . A CircleID article on this history of domain name tasting, The Closing Window: A Historical Analysis of Domain Tasting", is here; http://www.circleid.com/posts/historical_analysis_domain_tasting/, CircleID,"How Domain Traffic Testing/Tasting Works," http://www.circleid.com/posts/how_domain_name_tasting_works/, "Getting the Drop on Domain Name Abuse," BusinessWeek, 5 June 2006, http://www.businessweek.com/technology/content/jun2006/tc20060605_633379.htm, and `In Bad Taste', http://www.circleid.com/posts/print/domain_in_bad_taste/.. 42 For more information on what a `404 File not Found' is, visit http://en.wikipedia.org/wiki/HTTP_404 . Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 21 of 39 40 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 o Pay-per-click (PPC) is a technique in which advertisers bid on "keywords" that they believe their target market would type in the search bar when they are looking for a particular type of product or service. o ICANN's previous workshops on the domain marketplace and secondary market have included discussion of domain monetisation, the role of search engines and AGP deletions (see http://www.icann.org/meetings/marrakech/dn-workshop-27jun06.htm), domain tasting and AGP (http://www.icann.org/meetings/saopaulo/domainnames-marketplace-06dec06.htm), and the domain name secondary market (http://www.icann.org/meetings/lisbon/agenda-tutorial-secondary25mar07.htm). o The secondary market in domain names (the market for previously registered domain names) was discussed in detail during the Lisbon workshop (see http://www.icann.org/meetings/lisbon/presentation-secondary-schumacher25mar07.pdf, http://www.icann.org/meetings/lisbon/presentation-secondarysnap-25mar07.pdf, and http://www.icann.org/meetings/lisbon/presentationsecondary-frakes-25mar07.pdf). Secondary market domain names may be domain names offered for sale by the current registrant or a subsequent registrant. o It should be noted that domain tasting is only one mechanism which registrants might use for the purpose of gauging traffic on domain names. A variety of other tools and services are also available in the market to perform similar functions. A number of businesses in the domain name industry offer these services. o While statistics should be obtained independently to inform the discussion, it appears that domain tasting practices in the .COM registry result in approximately 95% of all registered names being deleted within the AGP. It also appears that registrants who register names strictly for tasting delete over 99% of registrations during the AGP. 3.6 Domain Kiting Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 22 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Registrants may also use the AGP for continual registration, deletion, and reregistration of the same names in order to avoid paying the registration fees. This practice is sometimes referred to as "domain kiting." This term has been mistakenly used as being synonymous with domain tasting, but it refers to multiple and often consecutive tasting of the same domain name. ICANN staff has received anecdotal reports that this type of activity is occurring, but does not currently have data to demonstrate definitively that domain kiting occurs or to what extent. The anecdotal reports received by the ICANN staff would indicate that: 1. Very few registrants engage in kiting; 2. Those registrars who facilitate kiting are discovered and warned by the registry to cease the behaviour; 3. Kiting practices cannot enable a registrant to "keep" a single domain name. Any name is available to be taken in the drop pool by another registrant. The activity is only practicable if attempting to maintain a number of names ­ some would be lost at each drop. 3.7 o Previous discussions on this issue Discussions of domain tasting behaviour in the ICANN community to date have revealed a range of views. In addition to various informal public discussions, ICANN has held a series of workshops on domain marketplace issues at its international public meetings. A session in Sao Paulo, Brazil, in December 2006 focused primarily on marketplace activities during the five-day add grace period.43 o A workshop in Marrakech, Morocco in June 2006 featured an educational session on domain monetisation activities, their impacts, and policy 43 http://www.icann.org/meetings/saopaulo/captioning-dnmarket-06dec06.htm. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 23 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 implications.44 Most recently, tutorials were held in Lisbon, Portugal in March of this year on the expiring names and secondary markets.45 o In a public comment forum regarding the proposed excess-delete fee in the .ORG registry46, Caroline Chicoine of the Intellectual Property constituency expressed personal concern [and referenced INTA47 concerns] about domain tasting. Ms. Chicoine said domain tasting was an abusive registration practice that has become a serious problem as it has rapidly expanded since 2004, and called for ICANN to take a pro-active approach to solving this problem. o A recent statement from the World Intellectual Property Organisation (WIPO)48 reported a 25% increase in cyber-squatting49 disputes in 2006 over the previous year. The statement linked this increase to various developments in the registration market, including domain tasting: ...the evolution of the domain name registration system is causing growing concern for trademark owners, in particular some of the effects of the use of computer software to automatically register expired domain names and their `parking' on pay-per-click portal sites, the option to register names free-of-charge for a five-day `tasting' period, the proliferation of new registrars, and the establishment of new generic Top Level Domains (gTLDs). The combined result of these developments is to create greater opportunities for the mass, often anonymous, registration of domain names without specific consideration of third-party intellectual property rights. o In the same public comment forum50, Phil Corwin of the Internet Commerce Association expressed support for the .ORG registry's proposed approach of charging a fee for excess-deletes rather than banning the practice outright. http://www.icann.org/meetings/marrakech/captioning-dn-27jun06.htm. http://www.icann.org/meetings/lisbon/transcript-tutorial-secondary-25mar07.htm; http://www.icann.org/meetings/lisbon/transcript-tutorial-expiring-25mar07.htm. 46 http://forum.icann.org/lists/registryservice/msg00001.html. 47 INTA stands for the International Trademark Association, http://inta.org/ 48 http://www.wipo.int/portal/en/news/2007/article_0010.html. 49 See glossary of terms for a definition of cyber-squatting. 50 http://forum.icann.org/lists/registryservice/msg00000.html. 45 44 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 24 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Mr. Corwin opposed "expansion of the rights of trademark holders to the detriment of the equally legitimate rights of domain name owners who have risked considerable capital and labor to develop their DNs [domain names] as valuable properties monetised through the provision of content and associated advertising." o Nominet, the ccTLD for .UK, has taken action to curb domain tasting. On 7 August 2006, Nominet announced a limit on the number of registrations in .UK that can be deleted by registrars.51 o An 18 May 2007 article in eWeek52 by Larry Seltzer states that "stopping domain tasting in particular would show some serious good faith [by ICANN]." He also mentions that VeriSign could impose a re-stocking fee on domain tasters. (Note, this is not currently permitted in the .COM registry agreement. To provide this service, VeriSign would have to submit a request to ICANN through the Registry Services Evaluation Policy53). o A 22 May 2007 article in Business2.0 provides further detail on a domain name investor who has used domain tasting as a business model to develop one of the largest privately-held domain name portfolios.54 3.8 Community Consultation For some time, ICANN staff has been engaged in consultations with registry operators, registrars, and other constituencies about ways that domain tasting might be addressed. Recently, staff has been involved in focused discussions with VeriSign on possible options, including potential contract amendments to address domain tasting and its effects. VeriSign has stated that it will come back to staff on this issue following internal analysis, and has made a commitment to continue discussions on the issue. Staff expects these discussions to continue, independently of a policy development process within the GNSO. Staff would expect to discuss any viable options arising out of this process with the community through the Registry Services Evaluation Process. 51 52 http://www.nominet.org.uk/digitalAssets/8783_DomainTasting.pdf http://www.eweek.com/article2/0,1895,2133111,00.asp 53 http://www.icann.org/registries/rsep/rsep.html. 54 http://money.cnn.com/magazines/business2/business2_archive/2007/06/01/100050989/index.htm? postversion=2007052214 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 25 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 4 Discussion of possible directions It should be noted that the GNSO policy development process is one of several ways that domain tasting might be addressed within the ICANN community. This section describes the various mechanisms for addressing this issue in order to inform the ICANN community of possible directions that may be taken. 4.1 GNSO Policy Development Process As stated in the staff recommendations (see Section 5 and Executive Summary in Section 1), ICANN staff support the initiation of a policy development process on this topic as one possible mechanism for considering this topic. A policy recommendation on this issue could impose new requirements, or institute new prohibitions applicable to contracted parties, which ICANN staff would then implement and enforce through its contracts with registries and/or registrars. 4.2 ICANN Budget Process As part of ICANN budgets beginning with FY2004-05, registrars were levied a transactional fee for each "Add" transaction performed at the registry. The budget was implemented so that that domains deleted within the add or auto-renew grace periods would not be charged a transaction fee to match the registry agreement(s) requirement that registries not charge registrars for those registrations. Registrars are therefore not billed the transactional fee for names that are deleted within AGP; they pay the transactional fee only for names that are kept. If the transaction fee were charged to registrars on all "Add" transactions, rather than only those which passed through grace period, this would presumably curtail some domain tasting activity. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 26 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 ICANN's budget for Fiscal Year 2007-0855 contains the following restrictions regarding registrar eligibility for partial forgiveness of the standard per-registrar variable fee based on activity during the Add Grace Period: Depending on registrar size and activity, some registrars will continue to be eligible for "forgiveness" of two-thirds of the standard per-registrar variable fee. The criteria for eligibility for partial forgiveness will be as follows: the registrar must have fewer than 350,000 gTLD names under its management, the registrar must not have more than 200 attempted adds per successful net add in any registry, and it must not have more than five percent (5%) of added names deleted during the add-grace period from any registry that offers an add-grace period. Within the public comment and approval process for the ICANN budget, new provisions which address domain tasting could be instituted. Specific comments submitted during consideration of the ICANN budget related to domain tasting could be incorporated by the Finance Committee and ICANN Board before the final budget is approved. Consultations will occur during the ICANN meeting in San Juan, and following those consultations the budget will be presented to the ICANN Board for consideration on 29 June 2007. 4.3 Contract Negotiations or New Registry Services Additionally, many of the gTLD registries have contractual provisions which enable them to address the issue of domain tasting on an individual basis. In September 2006 PIR submitted a proposal for a five-cent excess-deletion fee to registrars performing deletions above a certain threshold during AGP.56 This request was made through the Registry Service Evaluation Policy (RSEP), a consensus policy developed by the GNSO. The PIR request was approved by the ICANN Board of Directors in November 200657. ICANN staff then proceeded to work with PIR to make the necessary contractual changes to PIR's registry agreement with ICANN. (The discussion in section 3 above of 55 56 http://www.icann.org/financials/proposed-budget-fy07-08-17may07.pdf. http://www.icann.org/registries/rsep/PIR_request.pdf. 57 http://www.icann.org/minutes/resolutions-22nov06.htm. Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 27 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Caroline Chicoine of the Intellectual Property Constituency and Phil Corwin of the Internet Commerce Association was in response to public comments regarding the PIR request.) Registries may also submit proposed contract changes to ICANN to address activity within their own particular TLDs. To date, no other registries have initiated a proposal for a new registry service through the RSEP process58. 5 Staff recommendation The issues surrounding domain tasting have generated significant discussion among several constituencies and stakeholders and would benefit from review as part of a structured discussion. However the GNSO may choose to proceed, staff notes that the completion of concrete fact-finding and research will be critical in informing the community's deliberations. In determining whether the issue is within the scope of the ICANN policy process and the scope of the GNSO, staff and the General Counsel's office have considered the following factors: Whether the issue is within the scope of ICANN's mission statement The ICANN Bylaws state that: "The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems. In particular, ICANN: 1. Coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, which are a. Domain names (forming a system referred to as "DNS"); b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and, c. Protocol port and parameter numbers. 58 http://www.icann.org/registries/rsep/rsep.html Page 28 of 39 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 2. Coordinates the operation and evolution of the DNS root name server system. 3. Coordinates policy development reasonably and appropriately related to these technical functions."59 Domain tasting activities involve the allocation and assignment of domain names. ICANN is also responsible for policy development reasonably and appropriately related to these technical functions. Under items 1a and 3 above, the issue is within the scope of ICANN's mission statement. As domain tasting activities concern gTLDs, the issue is within the scope of the GNSO to address. Whether the issue is broadly applicable to multiple situations or organisations A consideration of the issues surrounding domain tasting would be broadly applicable to multiple situations or organisations, including each existing gTLD under contract with ICANN, each of 800+ accredited registrars, and a diversity of existing and potential registrants. Note however that a consensus policy resulting from the policy development process would only be applicable to contracted parties (registries and registrars). Whether the issue is likely to have lasting value or applicability, albeit with the need for occasional updates Completion of policy development work on issues surrounding domain tasting would affect future gTLDs, future registrars, and potential business or non-commercial entities which have not as yet entered the market. Whether the issue will establish a guide or framework for future decision-making The outcome of a policy development process will have lasting value as precedent, although the particular circumstances of the market will continue to evolve, and will thus establish a framework for future decision-making on related issues. Whether the issue implicates or affects an existing ICANN policy 59 ICANN Bylaws, Article 1, Section 1: http://icann.org/general/bylaws.htm#I Page 29 of 39 Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 The issue does not implicate or affect an existing ICANN policy. A list of consensus policies is available at http://www.icann.org/general/consensus-policies.htm. Based on the above, the General Counsel finds that the proposed issue is within scope of the ICANN policy process and within the scope of the GNSO. Staff recommends that the Council move forward on a policy development process, including further fact-finding and research to provide data to assist policy development and illuminate potential policy options. Staff resources can be made available to support these research activities and objectives. Questions that might productively be addressed as part of fact-finding include: · · · · · · · · Who benefits from domain tasting, and who is harmed? Who would benefit from cessation of the practice and who would be harmed? How are registry operators being affected by domain tasting? How are registrars being affected by domain tasting? How are registrants being affected by domain tasting? Are there different categories of registrants affected differently? What enforceable rules could be applied toward domain tasting activity? What would be the impact (positive or negative) of establishing limitations, guidelines or restrictions on registrars' use of the AGP? What would be the impact (positive or negative) on registries, registrars, and registrants of eliminating the AGP? Issues Report on Domain Tasting Authors: Maria Farrell, maria.farrell@icann.org, Karen Lentz, Karen.lentz@icann.org, Patrick Jones, Patrick.jones@icann.org Page 30 of 39 Issues Report on Domain Tasting Doc. No.: 2007/01/01 Date: 14 June, 2007 Annex 1 - Glossary of terms Add grace period (AGP) A Grace Period refers to a specified number of calendar days following a Registry operation in which a domain action may be reversed and, as appro

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