Neustar as mini-ICANN|
You may remember that Neustar had declined to join the CDT-driven effort to put .US policy in the hands of a new ".us Policy Development Corporation," whose decisions would be binding on the registry. Rather, Neustar's documents now explain, Neustar will create a "usTLD Policy Council," whose recommendations it will accept if it feels like it. The relationship between Neustar as "usTLD Administrator" and the policy council is explicitly modeled on the relationship, as set out in the ICANN bylaws, between the ICANN Board and the DNSO. Neustar explains that this is a Good Thing, given "the significant progress that has been made within the ICANN in developing open and transparent consensus policy procedures" and the comfort that this familiar mechanism should give to DOC. Ya gotta wonder, though . . . It's become plain by now that the DNSO is essentially irrelevant to the ICANN policy process. Neustar appears to be telling us, before the .US policy council is even created, that its own council will suffer the same fate.
(Neustar, by the way, will be appointing the first set of council members, "to facilitate its early start of operations," and explains that the council's first obligation will be to get elected members on board. Sound familiar?)
Trademark lawyers want more
Neustar is adopting both the UDRP and a sunrise provision, with a few changes -- because, it explains, the existing versions of these institutions aren't favorable enough to trademark holders. In connection with sunrise, Neustar's change is to make preferential rights available to people who don't have trademarks, but who have merely applied for one. That's right -- you don't need actually to have a trademark. You don't need to have any trademark rights. You just need to have filed a document with a government office asserting, rightly or wrongly, that you should get trademark rights in some string. Then, so long as the government hasn't gotten around to turning you down yet, you have a preference over the common herd in securing the associated SLD. Great.
On the UDRP front, Neustar is trashing two hard-fought and extensively argued wording choices in ICANN's original UDRP on the ground that they're not favorable enough to trademark owners, and their drafters can't really have meant what they said. One was the statement that registering an SLD "to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name" is evidence of bad faith only if the domain-name holder has made a habit of that sort of thing. The reason for this language was that a trademark holder can allege that respondent registered a name to "prevent it from reflecting [its] mark" without any conduct by respondent other than registering the name -- not using it, not offering to sell it, not anything. Even WIPO and the UDRP drafters were unwilling to make respondents into such wide-open targets unless they were actual cybersquatters, who had registered a whole bunch of such names. Neustar has no such compunctions.
The second was the requirement that for UDRP relief to be available, the name must have been both registered and used in bad faith. This choice was made in the original UDRP by Louis Touton, after extensive arguments on the point between trademark and public-interest representatives. For Neustar, either registration or use in bad faith is enough. That way, even if a domain name has never been used at all (and has never been offered for sale, which is commonly understood to qualify as "use"), a panelist can still read the registrant's mind and divine that it was "registered in bad faith," and should properly be transferred. Arbitrations were be handled by the American Arbitration Association, which, Neustar promises, will bring a fresh perspective to the process.
Neustar is implementing a "US Nexus" requirement, under which a registrant must be a US citizen or resident, or a company incorporated in the US, or have a bona fide presence in the US. How will Neustar know? Simple, it answers -- it'll check the contact information that the registrant provides, to see if the addresses listed are in this country. That's it. Once a domain name is awarded, though, a third party can challenge the registrant's American bona fides; if the challenge succeeds, cancellation of the name (so that it can be registered by somebody else) is the only remedy available.
Neustar's Ken Hansen has been quoted in at least one news article as saying that it will charge no fee for .US names. That's got to be mistaken (at least with respect to names in the non-locality name space); but what will the price be? I couldn't find it in any of Neustar's documents (although I did note that the "Funding for the usTLD" section now reads, in its entirety, "This page has been redacted"). Any eagle-eyed ICANNWatch readers who saw what I've missed? [Anonymous, below, points it out: The Registry-Registrar contract provides that Neustar will charge registrars a $5.50/year "wholesale" price for ordinary registrations. Thanks. -- jon]