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Working With ICANN’s IRT and Not Against is in Order

ICANN realized during the Mexico City public meeting that its draft proposals for new generic Top-Level Domains (gTLDs) did not take sufficient account of the trademark problems that might arise if the new top level domains become havens for cybersquatters. ICANN sensibly asked the trademark and brand owners to propose rules and procedures that might address these problems, and the Implementation Response Team (IRT) was formed to come up with some new ideas and recommendations for consideration by the ICANN Board of Directors.

The mission of the IRT is to provide expert advice to the ICANN Board on the new gTLDs and the new trademark issues they will bring to the Domain Name System (DNS). As is often the case with ICANN, there has been some criticism of the IRT on various grounds, including lack of transparency, lack of community participation, and so forth. We think these criticisms are misplaced. ICANN has been forced to deal with trademark infringement issues from its inception. The U.S. government “White Paper” in 1998 directed ICANN to deal with trademark cyberpiracy. The government realized that this was a subject that required expert advice and called on the World Intellectual Property Organization (WIPO) to develop a policy. WIPO made recommendations, and the UDRP was adopted as a result. Conflicts between trademark owners and domain name registrants are now routinely resolved under the UDRP.

I believe that starting with expert advice on this complex subject should be welcomed as a practical approach to finding solutions. The community will have ample opportunity to comment on its recommendations during the time periods that the Board has specified, and to develop a consensus.

By David Maher, Attorney

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