29 Rights Protection Mechanisms
|gTLD||Full Legal Name||E-mail suffix||Detail|
|.nba||NBA REGISTRY, LLC||nba.com||View|
29.1. Rights Protection Mechanisms
NBA Registry, LLC (ʺNBA Registryʺ) is firmly committed to protecting intellectual property rights and to implementing the mandatory Rights Protection Mechanisms (ʺRPMsʺ) contained in the Applicant Guidebook and detailed in Specification 7 of the Registry Agreement. Indeed, as a ʺ.brandʺ registry, intellectual property rights protection is a core objective of the .nba registry. Neustar, which NBA Registry has selected as the .nba registry services provider, has meaningful experience in successfully launching a number of TLDs with diverse RPMs, including many of those required for new gTLDs.
As an initial matter, it is important to understand the context in which NBA Registry will implement its RPMs. NBA Registry plans to limit registration and use of .nba domains to itself, its Affiliates, and the contracted partners of both. NBA Registry believes that these significant restrictions will also serve as a de facto RPM.
NBA Registry will implement the following RPMs in accordance with the Applicant Guidebook as further described below:
* Pre-Authorization and Authentication
* Trademark Clearinghouse: centralized database to document, authenticate, and disseminate information about claimed trademark rights that is intended to make participation in new gTLD RPMs faster, easier, and less expensive.
* Sunrise and Trademark Claims processes for the TLD.
* Uniform Dispute Resolution Policy (ʺUDRPʺ) to act against domain names that have been registered and used in bad faith in the TLD.
* Uniform Rapid Suspension System (ʺURSʺ): a faster, more efficient, and less expensive alternative to the UDRP to address clear cut cases of cybersquatting.
* Implementation of a thick WHOIS to make it easier for rights holders to identify and locate infringing parties
* Trademark Post Delegation Dispute Resolution Procedure
A. Pre-Authorization and Authentication
As stated in its response to Question 18, it is anticipated that only NBA Registry, its Affiliates, and the contracted partners of both (the ʺEligible .nba Registrantsʺ) will be permitted to register and use .nba domain names. Before any .nba domain name is registered, NBA Registry will confirm through certain procedures that all registrants are Eligible .nba Registrants and that only Eligible .nba Registrants are permitted to register .nba domain names.
NBA Registry will coordinate with its Affiliates and contracted partners to compile a list of the entities that are Eligible .nba Registrants and the persons authorized to register .nba domain names on their behalf. NBA Registry will require all registrars that wish to enter into a Registry-Registrar Agreement to agree to abide by strict domain name registration guidelines. Each qualified registrar must validate certain contact information to determine if a potential registrant is an Eligible .nba Registrant before proceeding with a .nba registration.
Registrars may use a number of procedures for eligibility verification such as:
1. An automated authentication process to authenticate that the prospective registrant is an Eligible .nba Registrant;
2. Registrar-conducted authentication of whether a prospective registrantʹs e-mail address is included in a pre-approved registrant list;
3. Contacting NBA Registry if the registrar is unable to verify that a prospective registrant is an Eligible .nba Registrant; and
4. Requiring each prospective registrant to represent and warrant that it is an Eligible .nba Registrant, that it will comply will all .nba policies, and that neither the registration of the domain name nor its use infringes or will infringe the legal rights of third parties.
In addition, NBA Registry will conduct checks necessary to verify that all .nba domain names comply with its registration policy. More specifically, .nba domain names shall be used solely for purposes that are, in its judgment and discretion, consistent with its business interests. No .nba domain name shall be used in a way that knowingly infringes any third-party intellectual property rights. Finally, no .nba domain name may be transferred, assigned, or licensed to any third party that is not an Eligible .nba Registrant.
B. Trademark Clearinghouse Including Sunrise and Trademark Claims
NBA Registry, in conjunction with its registry service provider, will interact with the Trademark Clearinghouse to support implementation of RPMs in .nba. The Trademark Clearinghouse is intended to serve as a central repository for information pertaining to the rights of trademark holders to be authenticated, stored and disseminated. The data maintained in the Trademark Clearinghouse will support and facilitate other RPMs, including the mandatory Sunrise Period and Trademark Claims service.
NBA Registryʹs counsel participated in and monitored the Implementation Assistance Group (ʺIAGʺ) , which ICANN convened to assist ICANN staff in implementing the specified processes to be supported by the Trademark Clearinghouse. Personnel from Neustar, the .nba registry services provider, also participated in the IAG. Notwithstanding numerous active IAG participants, ICANN has disclosed virtually no details of how registry operators such as NBA Registry and registry service providers such as Neustar will interact with the Trademark Clearinghouse. Accordingly, NBA Registry is unable to provide the level of specificity in this response that it would have preferred to do.
Using the Trademark Clearinghouse, NBA Registry will offer Sunrise and Trademark Claims services in the .nba registry. The Sunrise registration service, which will be offered for at least 30 days during the pre-launch phase, will (i) allow eligible owners of qualified trademarks the opportunity to register second-level .nba domains that are identical matches to their qualified trademarks; and (ii) provide notice to all trademark owners in the Trademark Clearinghouse if someone is seeking a Sunrise registration.
The Trademark Claims service, which will be offered for at least the first 60 days after the .nba registry launches to eligible registrants, will provide (i) ʺclear noticeʺ to a potential registrant of the existence of an identical trademark in the Trademark Clearinghouse and the rights of a trademark owner whose qualifying trademark rights have been documented with and authenticated by the Trademark Clearinghouse; and (ii) if that potential registrant proceeds to registration, provide ʺclear noticeʺ to the owners of the trademarks about which the registrant received notice prior to registration.
NBA Registryʹs registry service provider for .nba, Neustar, has already implemented Sunrise and⁄or Trademark Claims programs for numerous TLDs, including .biz, .us, .travel, .tel and .co and will implement both of these services for the .nba registry. NBA Registry expects to benefit from Neustarʹs prior experience.
NBA Registry plans to limit registration and use of .nba domains to itself, its Affiliates, and the contracted partners of both. These eligibility restrictions carry over to the Sunrise and Trademark Claims processes. In other words, only NBA Registry, its Affiliates, and their contracted business partners will be permitted to participate in the Sunrise process for the .nba registry and they will be the only Claimants under the .nba Trademark Claims process that are entitled to register domain names in the .nba registry. Nonetheless, NBA Registry intends to operate its Sunrise and Trademark Claims processes in full compliance with ICANNʹs policies.
NBA Registryʹs proposed Sunrise and Trademark Claims service is currently anticipated to be introduced according to the following timetable:
Day One: Announcement of registry launch and publication of registry website with details of the Sunrise and Trademark Claim Service
Day 30: Sunrise process opens for 30 days on a first-come, first-served basis. Once registrations are approved, they will be entered into the SRS and published in the .nba thick Whois database.
Day 60-75: .nba registry opens, domains applied for during Sunrise are registered, and the Trademark Claims process starts and runs for at least 60 days
Day 120-135: Trademark Claims process ends and normal operations continue.
Neustarʹs Experience in Implementing Sunrise and Trademark Claims Processes
In early 2002, Neustar became the first registry operator to launch a successful authenticated Sunrise process. This process permitted qualified trademark owners to pre-register their trademarks as domain names in the .us TLD space before the .us space opened to the general public. Unlike any other ʺSunriseʺ plans implemented (or proposed before that time), Neustar validated the authenticity of Trademark applications and registrations with the United States Patent and Trademark Office (USPTO).
Subsequently, as the back-end registry operator for the .tel gTLD and the .co ccTLD, Neustar launched validated Sunrise processes. Those processes are very similar to the Sunrise process required in new gTLDs.
Neustarʹs implementation of Sunrise in .co and its implementation of Trademark Claims in .biz demonstrates Neustarʹs experience and ability in implementing Sunrise and Trademark Claims processes very similar to those required in new gTLDs. Neustarʹs experience in each of these rights protection mechanisms will enable it to seamlessly provide these services on behalf of .nba as required by ICANN.
a) Sunrise and .co
The Sunrise process for .co was divided into two sub-phases:
* Local Sunrise that gave owners of eligible trademarks registered with the Colombian Trademark Office the opportunity to apply for the .CO domain names corresponding to their marks.
* Global Sunrise program giving owners of eligible registered trademarks of national effect the opportunity to apply for the .CO domain names corresponding with their marks for a period of time before registration opened to the general public.
Like the Sunrise process for new gTLDs set forth in the Applicant Guidebook, trademark owners were required to have their rights validated by a Clearinghouse provider before the Registry accepted their Sunrise registration. The Clearinghouse used a defined process for checking the eligibility of the legal rights claimed as the basis of each Sunrise application by using official national trademark databases and submitted documentary evidence.
Applicants and⁄or their designated agents could pursue an optional ʺpre-validation processʺ and interact directly with the Clearinghouse to ensure their Sunrise applications were accurate and complete before submitting them to the Registry. All Sunrise applicants were required to submit their Sunrise applications through an accredited registrar. Pre-validated applicants were each given an approval number for submission to the Registry. Sunrise applicants that were not pre-validated were required to submit the trademark right documentation to the Registry via their registrar.
At the registry level, Neustar, subsequently either delivered the:
* Approval number and domain name registration information to the Clearinghouse; or
* If there was no approval number, trademark information and the domain name registration information was provided to the Clearinghouse through EPP (as is currently required under the Applicant Guidebook).
The .co Clearinghouse used the information either to further validate pre-validated applications, or to validate those applications that were not pre-validated. If the applicant was validated and its trademark matched the applied-for domain name, the Clearinghouse communicated that fact to the Registry via EPP.
If there was only one validated Sunrise application, that Sunrise application registered when the .co TLD launched. Multiple validated applications were included in the .co Sunrise auction process. Neustar tracked all information it received and each Sunrise applicationʹs status. Neustar posted that status on a secure website so each trademark owner could view the status of its Sunrise application.
The Sunrise process for new gTLDs and the interaction among the trademark owner, registry, registrar, and Trademark Clearinghouse are not fully delineated in the Applicant Guidebook. Moreover, the process and interaction depend on the current RFI issued by ICANN in its selection of a Trademark Clearinghouse provider. Nonetheless, Neustarʹs expertise in launching multiple Sunrise processes and its established software should result in a smooth and compliant Sunrise process for the new gTLDs.
b) Trademark Claims Service Experience
Neustarʹs .biz TLD became the first TLD with a Trademark Claims service when it launched in 2001. Neustarʹs .biz Trademark Claims Service allowed trademark owners to assert claims against .biz domain names that matched their trademarks before .biz launched to the general public.
During the .biz Trademark Claim process, Neustar received over 80,000 Trademark Claims from entities around the world. Because Neustar recognized that multiple intellectual property owners can have trademark rights in the same mark, Neustar accepted multiple Trademark Claims for the same .biz domain name. All Trademark Claims were logged into a Trademark Claims database managed by Neustar.
Every Trademark Claimant provided information about their trademark rights, including the:
* Trademark or service mark on which the Trademark Claim was based;
* Trademark application filing date and trademark registration issue date, if applicable;
* Country in which trademark registration, if any, issued;
* Class or classes of goods and services for which the trademark or service mark was registered
* Name of a contact person with whom to discuss the claimed trademark rights.
After Neustar collected all Trademark Claims and domain name applications, Neustar compared its database of all Trademark Claims against its database of all .biz domain name applications. If a domain name application matched a Trademark Claim, the domain name applicant received an e-mail message that notified it of the existing Trademark Claim. The e-mail also stressed that, if the applicant continued the process and became the registrant, the applicant would be subject to Neustarʹs dispute proceedings if challenged by the Trademark Claimant for that particular domain name.
The domain name applicant could proceed with the application or cancel it. Proceeding meant that the applicant wanted to pursue the registration even though it had been notified of an existing Trademark Claim. By choosing to ʺcancel,ʺ the applicant made a decision in light of an existing Trademark Claim notification to not proceed.
The application was not processed, making the applicant ineligible to register the domain name, if the applicant did not respond to Neustarʹs e-mail notification or cancelled the application. If the applicant continued the application process after being notified of the claimantʹs (or claimantsʹ) alleged trademark rights in the applied-for domain name, Neustar processed the application.
Neustarʹs Trademark Claims process for .biz is very similar to the Trademark Claims process incorporated in the latest version of the Applicant Guidebook, which makes Neustar uniquely qualified to implement the new gTLD Trademark Claims process.
C. Uniform Dispute Resolution Policy (UDRP) and Uniform Rapid Suspension (URS)
The UDRP is ICANNʹs first ʺConsensus Policyʺ and all gTLD registries are required to implement it. A domain name registry generally does not have an active role in UDRP implementation. However, Neustar monitors UDRP decisions that involve the TLDs for which it supports and ensures that the decisions are properly and timely implemented by registrars supporting its TLDs. When a trademark owner alerts Neustar to a registrarʹs failure to implement a UDRP decision, Neustar either proactively implements the decision itself or reminds the offending registrar of its obligations to implement the decision.
NBA Registry is committed to protecting intellectual property rights in .nba and values the UDRP. Indeed, at least one of its Affiliates has been a successful UDRP Complainant. Nevertheless, NBA Registry believes it is unlikely that .nba domains will be the subject of UDRP proceedings because Eligible .nba Registrants are unlikely to engage in bad faith registration and use. In the unlikely event that a UDRP proceeding is brought against a .nba domain name and the even more unlikely event that a trademark owner prevails in that proceeding, cancellation of the disputed .nba domain name is the only remedy because only NBA Registry, its Affiliates, and their contracted partners can register and use .nba domains.
All new gTLD registries must take part in the Uniform Rapid Suspension System (ʺURSʺ). The URS is intended to provide a mechanism, more cost effective and timely than the UDRP, for brand owners to protect their trademarks and to promote consumer protection on the Internet. The URS is not meant to address questionable cases of alleged cybersquatting (e.g., use of terms in a generic sense) or for anti-competitive purposes or denial of free speech, but rather for those cases in which there is no genuine contestable issue as to the cybersquatting and abuse that is taking place.
Unlike the UDRP, the URS envisages a much more active role for the registry. For example, the registry - not the registrar - must lock the disputed domain within 24 hours of receiving the complaint from the URS Provider in order to restrict all changes to the registration data, including transfer and deletion of the disputed domain names. If the URS Complainant prevails, the registry must suspend the domain name registration and keep it suspended until the domain name registration expires. During the suspension, the domain nameʹs nameservers are redirected to an informational web page provided by the URS Provider about the URS. A successful URS Complainant may extend the registration period (and the suspension) for an additional year at commercial rates. Additionally, the Whois for the domain name(s) must reflect that the domain name cannot be transferred, deleted, or modified for the life of the registration.
Neustar, NBA Registryʹs registry service provider, is committed to supporting the URS for the .nba registry. NBA Registry is fully aware of each of these requirements and will have the capability to implement these requirements for new gTLDs. NBA Registry appreciates the importance of the URS process. However, NBA Registry believes it is extremely unlikely that any .nba domain will be the subject of a URS proceeding because only NBA Registry, its Affiliates, and their contracted partners can register and use .nba domain names, and it is extremely unlikely that .nba registrants would engage in the conduct targeted by the URS.
D. Implementation of Thick WHOIS
The .nba registry will include a searchable, thick WHOIS database as required in Specification 4 of the Registry Agreement. Thick WHOIS provides numerous advantages, including a centralized location of registrant information, the ability to more easily manage and control the accuracy of data, and a consistent user experience.
E. Trademark Post Delegation Dispute Resolution Procedure (ʺTrademark PDDRPʺ)
The Trademark PDDRP is a mandatory administrative proceeding that is intended to address complaints by trademark owners that one or more of their marks has been infringed, and the trademark owner has been harmed, by the Registry Operatorʹs manner of operation or use of the TLD at issue. The Applicant Guidebook sets out the grounds for a Trademark PDDRP complaint at the top and second levels.
At the top level, a Trademark PDDRP Complainant must prove, by clear and convincing evidence, that ʺthe registry operatorʹs affirmative conduct in its operation or use of its gTLD string that is identical or confusingly similar to the complainantʹs mark, causes or materially contributes to the gTLD doing one of the following: (a) taking unfair advantage of the distinctive character or the reputation of the complainantʹs mark; or (b) impairing the distinctive character or the reputation of the complainantʹs mark; or (c) creating a likelihood of confusion with the complainantʹs mark.ʺ
At the second level, a Trademark PDDRP Complainant must prove, also by clear and convincing evidence, that ʺthrough the registry operatorʹs affirmative conduct (a) there is a substantial pattern of practice of specific bad faith intent by the registry operator to profit from the sale of trademark infringing domain names; and (b) the registry operatorʹs bad faith intent to profit from the systematic registration of domain names within the gTLD that are identical or confusingly similar to the complainantʹs mark, which (i) takes unfair advantage of the distinctive character or the reputation of the complainantʹs mark; or (ii) impairs the distinctive character or the reputation of the complainantʹs mark; or (iii) creates a likelihood of confusion with the complainantʹs mark.ʺ
NBA Registry will participate in any Trademark PDDRP complaints brought against it. However, NBA Registry believes that the likelihood of any such complaints is low and the prospects for success of such complaints are even lower. This is true at the top level because the .nba registry is a .brand registry, and the NBA trademark portfolio contains over 1,000 trademark registrations worldwide for the famous NBA marks. These extensive legitimate rights render a successful Trademark PDDRP top-level complaint against NBA Registry virtually impossible. A second-level Trademark PDDRP complaint against NBA Registry is equally likely to fail. NBA Registry has no current intention of selling .nba domains (which makes profiting from the sale of .nba domains and associated bad faith intent to do so impossible). Moreover, as discussed above, NBA Registryʹs registration policy prohibits the use of a .nba domain name in a way that knowingly infringes any third-party intellectual property rights.
F. Policies Handling Complaints Regarding Abuse
In addition to the RPMs described above, NBA Registry will implement a number of measures that are described in its response to Q28 to handle complaints regarding the abusive registration of .nba domain names. NBA Registry does not anticipate abusive registration or malicious conduct in the .nba registry because NBA Registry plans that only itself, its Affiliates, and the contracted partners of both can register and use .nba domains.
Registry Acceptable Use Policy
NBA Registryʹs Acceptable Use Policy for .nba, set forth in the response to Question 28, will include prohibitions on phishing, pharming, dissemination of malware, fast flux hosting, hacking, and child pornography. NBA Registry retains the right under its .nba Acceptable Use Policy to take action necessary to deny, cancel, suspend, lock, or transfer any registration in violation of the policy.
Monitoring for Malicious Activity
NBA Registry is committed to ensuring that those domain names associated with abuse or malicious conduct in violation of the Acceptable Use Policy are dealt with in a timely and decisive manner, which includes taking action against those domain names that are being used to threaten the stability and security of the .nba registry, or is part of a real-time investigation by law enforcement.
Once a complaint is received from a trusted source, third-party, or detected by the .nba registry, the registry will use best efforts to verify the information in the complaint. After that information is verified to the best of the .nba registryʹs ability, the sponsoring registrar will have 12 hours to investigate the activity and either take down the domain name by placing the domain name on hold or by deleting the domain name in its entirety or providing a compelling argument to NBA Registry to keep the name in the zone. If the registrar has not acted within the 12-hour period (i.e., is unresponsive to the request or refuses to take action), NBA Registry will place the domain on ʺServerHoldʺ. Although this action would remove the domain name from the .nba zone, the domain name record will still appear in the .nba Whois database so that the name and entities can be investigated by law enforcement if circumstances warrant.
29.2 Resourcing Plans
The RPMs described in the response above involve a wide range of tasks, procedures, and systems. The responsibility for each mechanism varies based on the specific requirements. The Engineering Team is primarily responsible for developing applications such as Sunrise and Trademark Claims, with guidance from the Product Management team. Customer Support and Legal play a critical role in enforcing certain policies such as the rapid suspension process. These teams have years of experience implementing these or similar processes.
The necessary resources will be pulled from the pool of available resources described in detail in the response to Question 31. The following resources are available from those teams:
Development⁄Engineering - 19 employees
Product Management- 4 employees
Customer Support - 12 employees
The resources are more than adequate to support the RPMs of the .nba registry.
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