29 Rights Protection Mechanisms

Prototypical answer:

The Applicant has decided to engage AFNIC (the French Network Information Centre) as its registry back-end service provider for .LANCASTER. AFNIC is the non-for profit organisation that runs and is responsible for the following ccTLDs: .fr (France), .re (Reunion Island), .pm (St. Pierre and Miquelon), .tf (French Southern Territories), .wf (Wallis and Futuna) and .yt (Mayotte).
AFNIC has a long proven track-record in the domain name industry and has acquired and developed significant reputation as a registry operator. AFNIC has created, developed and implemented policies, procedures, mechanisms and safeguards to build a stable, secure, resilient and innovative Internet domain name space for the various ccTLDs it is responsible for.

As the Applicantʹs registry back-end service provider, AFNIC is committed to ensure that it fully complies and meets or exceeds the requirements of ICANN in terms of security, stability and resiliency, malicious abuse issues, and rights protection in relation to the expansion of the generic Top Level Domain name space by devising and implementing mechanisms in line with ICANN’s Consensus Policies and Temporary Policies. The Applicant and AFNIC will provide for an environment for .LANCASTER where opportunities for abuse and malevolent conduct will be significantly reduced. To this end, the Applicantʹs registry back-end service provider will, inter alia, implement and adhere to all rights protection mechanisms that may be mandated from time to time by ICANN, pursuant to Specification 7 of the Draft New gTLD Agreement.

AFNIC, the Applicantʹs registry back-end service provider, has extensive knowledge, awareness and understanding of existing rights protection mechanisms designed by ICANN and it is a core objective of the Applicant and AFNIC to guarantee effective and timely implementation of said mechanisms. The Applicant and its registry back-end service provider will implement mechanisms designed to (1) prevent abusive registrations, and (2) identify and address the abusive use of registered domain names on an on-going basis.

AFNIC has closely followed ICANNʹs policy development in relation to the adequate and effective protection of the legal rights of trade mark owners in the new gTLD environment including the work of the Implementation Recommendation Team (ʺIRTʺ) formed by ICANNʹs Intellectual Property Constituency in accordance with the 6 March 2009 ICANN Board resolution at the request of the community seeking solutions for potential risks to trade mark holders in the implementation of new gTLDs.

AFNIC is at the forefront of innovation in the domain name industry and has appointed for that purpose a committee of industry experts and academics (the Scientific Council) to help AFNIC to carry out its mission of innovation, security and high levels of service. AFNIC has contributed to the creation and the implementation of dedicated rights protection mechanisms for the ccTLDs AFNIC is responsible for and has a dedicated legal department with pertinent skills and experience in the field of rights protection mechanisms to prevent abusive registrations and identify and address the abusive use of registered names on an on-going basis.

AFNIC, as the Applicantʹs back-end registry service provider will seek to deploy this experience in the .LANCASTER with a view to ensuring effective, timely and sufficient protection of the rights of others.

The Applicant intends to create and operate the .LANCASTER as a single registrant⁄single user registry and will reserve domain names under .LANCASTER for exclusive registration by the Applicant.

In addition, the Applicant does not intend to sell, distribute or transfer control or use of any second level domain name registrations under .LANCASTER to any party that is not an Affiliate of the Applicant as defined in the Draft New gTLD Registry Agreement in section 2.9 (c) version 2012-01-11.

As a result of the adoption of this operating model, the .LANCASTER will create an environment with extremely limited opportunities for any abusive or malicious conducts.

Support and interaction with the Trademark Clearinghouse

As the Applicantʹs registry back-end service provider, AFNIC will ensure that it fully supports and interacts with the Trademark Clearinghouse, a central repository for information to be authenticated, stored, and disseminated, pertaining to the rights of trade mark holders.

The Applicant will use the Trademark Clearinghouse to support its pre-launch or initial launch period rights protection mechanisms which will consist of, at a minimum, a Sunrise process and a Trademark Claims service.

Sunrise process

The Applicant will implement a Sunrise process for registration under .LANCASTER for a minimum of 30 days during the pre-launch period and subject to the .LANCASTER eligibility requirements.

Given that the Applicant intends to create and operate the .LANCASTER as a single registrant⁄single user registry and will reserve domain names under .LANCASTER for exclusive registration by the Applicant, this will significantly limit registrations during the Sunrise process.

This pre-launch phase will provide trade mark holders with the opportunity to register domain names under .LANCASTER before registration is generally available to the public, enabling them to register names that are either identical or similar to their trade marks with a view to avoiding malicious practices from third parties.

Prior to the commencement of the Sunrise process, the Applicant will define sunrise eligibility requirements (SERs) for registration under .LANCASTER. These requirements will need to be met and verified by Trademark Clearinghouse data. The Sunrise Registration Process will incorporate a Sunrise Dispute Resolution Policy (SDRP). The SERs will include: (i) ownership of a mark that meets certain requirements as defined by ICANN, (ii) optional .LANCASTER registry elected requirements in relation to international class of goods or services covered by registration, (iii) a representation that all provided information is true and correct and (iv) provision of data sufficient to document rights in the trade mark.

Trademark Claims

AFNIC has experience of similar mechanisms through its use of the Clearing House for Intellectual Property (CHIP) which it appointed to manage the Claims Mechanisms for several of its ccTLDs (.pm, .re, .tf, .wf and .yt). When a domain name is registered in one of said ccTLDs that corresponds to a trade mark in the CHIP database, an automatic notification is sent to the trade mark owner registered in the CHIP and, provided that the email address of the domain name registrant or administrative contact is available, an additional notification will be sent to these email addresses as well.

This experience will prove very pertinent in the implementation of the Trademark Claims service for .LANCASTER.

The Trademark Claims service will be offered for at least the first 60 days that registration is open for general registration. The purpose of this service is to provide clear notice to a prospective registrant of the scope of a particular trade mark ownerʹs rights in order to minimize the chilling effect on registrants (Trademark Claims Notice).

The Applicant, through its registry back-end service provider AFNIC, will comply with all requirements set out by ICANN in relation to the Trademark Claims service and described in clause 6.1 of the Schedule relating to the Trademark Clearinghouse of the New gTLD Applicant Guidebook in its version of 11 January 2012 or in any subsequent version published by ICANN.

Uniform Domain Name Dispute Resolution Policy (UDRP)

Whilst the role of registry operators is rather limited under the UDRP as responsibility for implementation is primarily placed on registrars, the Applicant and its registry back-end registry service provider are committed to fully cooperate so as to ensure the implementation of all UDRP decisions.

The UDRP was adopted in 1999 by ICANN as a means of providing trade mark owners with a relatively fast and cheap alternative dispute resolution mechanism to tackle cases of abusive use of their trade marks in a domain name. AFNIC will monitor and maintain a record of all UDRP decisions involving a domain name registered under the .LANCASTER.

AFNIC has implemented alternative dispute resolution procedures similar to the UDRP, including the so-called SYRELI procedure, introduced on 21 October 2011 which applies to disputes involving domain names registered within the ccTLDs under the responsibility of AFNIC. This procedure is administered by AFNIC itself and illustrates how the Applicantʹs registry back-end service provider is at the forefront of the protection of rights of third parties in the domain name space.

Trademark Post-Delegation Dispute Resolution Procedure (PDDRP)

The Applicant is committed to prevent the occurrence of the type of circumstances the PDDRP is designed to address. The Applicant completely understands the PDDRP mechanism and its rationale. The Applicant and its registry back-end service provider are fully committed to comply with the PDDRP and to implement decisions rendered under the PDDRP on an on-going basis and to fully cooperate in this respect.

Uniform Rapid Suspension System (URS)

In light of the anticipated expansion of the Domain Name System with the future delegation of new Top Level Domains, The IRT proposed in its Final Report of 29 May 2009 a new mechanism to tackle those ʺcases in which there is no genuine contestable issue as to the infringement and abuse that is taking placeʺ. This new rights protection mechanism was retained by ICANN and AFNIC is fully aware of all requirements of the URS and will implement decisions under the URS on an on-going basis and in a timely fashion.

Within 24 hours of receipt of the Notice of Complaint from the URS Provider by email, AFNIC, as the Applicantʹs registry back-end service provider, will lock the disputed domain name thereby restricting all changes to the registration data, including transfer and deletion of the disputed domain name. In such instance, the disputed domain name will continue to resolve. Upon locking the disputed domain name, AFNIC will immediately send a Notice of Lock to the URS Provider.

The obligations placed on registry operators by the URS also include an obligation for the registry operator, namely AFNIC in the context of .LANCASTER, to suspend a disputed domain name immediately upon receipt of a determination in favour of a complainant, so that the disputed domain name remains suspended for the reminder of the registration period and does not resolve to the original website.

Interestingly, the Applicantʹs registry back-end service provider used to administer an alternative dispute resolution procedure similar to the URS, the PREDEC procedure which is a further illustration of AFNICʹs advance in the field of rights protection mechanisms.

Implementation of a Thick WHOIS Model for .LANCASTER

This was also part of the recommendations of the IRT, aiming at facilitating the identification and location of infringing parties thus making it easier for trade mark owners whose rights have been infringed to take action against potential infringements.

Subject to applicable privacy and data protection legislations, AFNIC, the Applicantʹs registry back-end service provider will implement a thick WHOIS model in relation to domain names registered under .LANCASTER.

Domain Name System Security Extensions (DNSSEC)

The Applicantʹs registry back-end service provider completed the development of DNSSEC. This system was put in place to ensure the security of domain names by activating an authentication chain. In this way, all registrars will be able to use their automated EPP to communicate signature elements concerning domain names to AFNIC. As a result, the authentication chain will be secured. More specifically, this system, will prevent attacks aimed at capturing and diverting queries without users realising it, thus avoiding the risk that users may disclose personal data in the belief that they are on the legitimate site of the attack victim. AFNIC will deploy its experience of DNSSEC within .LANCASTER.

Abusive Use Policy and Takedown procedures

As highlighted in answer to question 28, AFNIC, as the Applicantʹs registry back-end service provider, will design and implement an Abusive Use Policy in order to reduce opportunities for malicious conducts such as phishing or pharming. Such Abusive Use Policy includes a takedown procedure, as explained in response to question 28.

Registrant Pre-Verification and Eligibility Requirements

The Applicant will implement a Naming Policy for .LANCASTER which will define, inter alia, eligibility requirements and conditions as well as undertakings aimed at preventing abusive registrations within .LANCASTER. .LANCASTER Naming Policy will need to be accepted by each registrant of .LANCASTER in order to be able to register a domain name under .LANCASTER and each registrant will need to make a representation that it meets the eligibility requirements and provide any evidence of the same, as may be required from the Applicant. The Applicant and AFNIC reserve the right to reject a request for domain name registration if the eligibility requirements are not met by a particular prospective registrant. By accepting the terms of the Naming Policy, each registrant under .LANCASTER will undertake not to use any domain names under .LANCASTER in an abusive, infringing or detrimental manner so as to prevent detriment to trade mark owners, the public interest and other third party rights owners.

Resources

The Applicant and its registry back-end service provider AFNIC, have an adequate level of resources on hand and committed to carry out the implementation of all rights protection mechanisms set out in this response to answer 29.

AFNIC has a substantial knowledge, awareness and experience of targeted and pragmatic rights protection mechanisms and will deploy this experience to (1) prevent abusive registrations, and (2) identify and address the abusive use of registered domain names on an on-going basis.

AFNIC considers training to be a major focus of its human resources management policy. It therefore applies an ambitious training policy in line with its strategy, with developments in domain name services and with technology. AFNIC is committed to the development of the skills of its employees and the promotion of their efficiency and adaptability by providing training to its employees in order to ensure the most efficient implementation of all right protection mechanisms.

The Applicant and AFNIC will ensure that suitable resources and staffing are available and committed as described further in answer to question 31.

More specifically, AFNIC has a dedicated legal department responsible for monitoring and addressing issues of abuse and infringement such as those highlighted above.
Thanks to the experience and prior investment by its Registry Service Provider (AFNIC), the .LANCASTER Registry already supports the above mentioned functions and their support systems.

One aspect to be considered for resource planning is the registry systemʹs connection to the Trademark Clearinghouse; since the involved API isnʹt fully defined at the time of writing, some software development will have to be done in order to integrate the Clearinghouse into the sunrise workflow, as well as to incorporate it into the designated Trademark Claims Service. It is estimated that a Software Developer will be allocated to work 10 man.day on the development of this feature.

Staff that are already on hand will be assigned this work as soon as ICANN releases the relevant technical specifications.

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