The Internet Commerce Association – Promoting and Protecting the Interests of Domain Name Entrepreneurs: An Overview for Members

The Internet Commerce Association (ICA) was established in September 2006 following the .com settlement between the Internet Corporation for Assigned Names and Numbers (ICANN) and VeriSign. After reviewing that back room-negotiated no-bid perpetual contract, domain name (DN) monetization industry leaders concluded that permanent representation within ICANN, in Washington, and in other critical decision-making arenas was needed to protect its collective interests.

 The ICA operates as a tax-exempt business league under Section 501c6 of the U.S. Internal Revenue Code (IRC). Like any other industry trade association its primary mission is to promote and protect the commercial interests of its members. The ICA pursues this mission through participation within ICANN, lobbying and educating the U.S. Congress and Executive Branch agencies, public relations liaison with the technology and general media, participation in precedent-setting lawsuits, and other relevant activities. The ICA strives to communicate and work with its growing and diverse membership and to seek members’ input and feedback as it sets priorities and policies. Since its establishment the ICA has taken a wide variety of actions on behalf of its growing membership of professional DN registrants, including — 

Ethical Leadership – In September 2007 the ICA promulgated a Member Code of Conduct that establishes a strong ethical framework for the domain name monetization industry. Through the adoption that this Code (reproduced in full at the end of this Overview) the ICA seeks to demonstrate that industry self-regulation is the primary means of assuring best practices and avoiding onerous new law and regulation.  

 

ICANN – The ICA participates actively in the three yearly ICANN meeting by monitoring and speaking out in constituency meetings, making on-the-record statements at public meetings of the Generic Names Supporting Organization (GNSO) and the ICANN Board, and participating in special workshop panels addressing such topics as domain name tasting.

 

In January 2008 the ICA submitted an application for membership in the Commercial and Business Users Constituency (CBUC) of the GNSO to formalize its relationship to ICANN. The ICA is also engaged in active discussions with leadership of the GNSO regarding the potential creation of a Commercial Registrants Constituency, and is monitoring ongoing implementation of changes to the GNSO’s structure and operations to determine what form of formal participation in the ICANN structure will best serve the members of the ICA in the long term. 

 The ICA encouraged its members to attend and engage at the Los Angeles ICANN meeting held in October 2007 – the first meeting held within the continental U.S. since 2001 — and provided detailed background materials to help make their participation meaningful and effective. The four priority issues addressed by the ICA at that meeting were:

  1. No More RegisterFlys – ICA wants timely action to strengthen, adopt uniformly, and strongly enforce a revised Registrar Accreditation Agreement (RAA) to prevent any repetition of the RegisterFly fiasco, in which hundreds of thousands of domain names were lost. Just subsequent to its LA meeting ICANN announced the implementation of a new Registrar Data Escrow (RDE) program. The ICA will be carefully monitoring and providing input to ICANN as it continues the process of developing amendments to the RAA.
  2. End Abusive Domain Tasting – ICA called upon ICANN and the gTLD registries to undertake market-based initiatives to eradicate abuses of the add/delete grace period. At the LA meeting ICA supported the call of the GNSO for ICANN to impose a small, non-refundable fee on all DN registrations; and went beyond that by publicly calling on all gTLD registries, particularly VeriSign, to impose restocking or other similar fees to eradicate abusive DN tasting and all DN kiting. ICANN and VeriSign have yet to take such action, and the ICA will continue to speak out on this issue.
  3. Oppose The New DRP – ICA opposed adoption of a proposed new Dispute Resolution Process (DRP) for the multitude of new gTLDs that ICANN contemplates authorizing from 2008 forward. The proposed DRP would deprive DN registrants of procedural and substantive due process rights they enjoy under the current Uniform Dispute Resolution Process (UDRP). In particular, the DRP contemplated letting national governments assert control, at no cost and upon demand, over all DNs having “national or geographic significance”; would have replaced the three-part collective dispute test of the UDRP with a single factor test that could abet mass reverse DN hijacking; and would have eliminated a meaningful right of appeal to a national court in many DN disputes. In addition, it was contemplated that these anti-registrant changes would eventually be applied retroactively to existing gTLDs, including .com! At the LA meeting the GNSO rejected adoption of the new DRP; however, its Intellectual Property Constituency (IPC) may seek to revive it in some form. Further, ICANN continues to develop the details for rollout of new gTLDs. The ICA will continue to carefully monitor and comment upon this process to assure that the introduction of new gTLDs is not accompanied by a diminution of registrant rights.
  4. Sunshine For the GAC – ICA once again publicly called upon the ICANN Board to eliminate the closed door meetings of its Government Advisory Committee (GAC), noting that in LA all 11 meetings of the GAC and its working groups were closed to the public and press. The GAC is one of the two primary bodies providing policy input to the ICANN Board (the GNSO being the other) and appears to be exercising a growing influence over ICANN policies and decisions, sometimes supporting positions that are adverse to the interests of DN registrants. ICANN has committed to achieving greater transparency and accountability in its current Memorandum of Understanding (MOU) with the U.S. Department of Commerce (DOC), and the GAC’s secret sessions are at complete odds with that commitment. Further, given the possibility that the U.S. may terminate or reduce the scope of the MOU when the current agreement expires in September 2009, and ICANN’s own active exploration of converting from a California-based non-profit corporation to a Private International Organization (PIO), the GAC may wield even grater influence over ICANN in coming years – making the need for public scrutiny and accountability even greater. While the ICANN Board did not commit to GAC transparency in LA the ICA will continue to press toward this goal.

 The ICA has also submitted numerous detailed comment letters to the ICANN Board on a wide variety of issues of importance to DN owners, including:

  • Objections to the presumptive renewal and non-justified price increase provisions of the .biz, .info, and .org registry agreements; while the agreements were ultimately approved by the ICANN Board, ICA’s strong opposition did result in the elimination of differential pricing that would have levied higher annual fees on more valuable DNs.
  • Suggestions as to how ICANN can reform its managerial operations to achieve greater transparency and accountability.
  • Objections to the proposed .xxx adult content TLD contract proposal because of the many undesirable precedents it would have established, including the establishment of a “tax” on registrants for purposes unrelated to registry operations as well as an expansion of ICANN authority into consumer protection, content regulation, and other matters far beyond its proper role of technical manager of the DNS. The .xxx contract was subsequently rejected by the ICANN Board.
  • Calling on ICANN in January 2007 to immediately address the RegisterFly collapse and provide timely information and meaningful assistance to adversely affected DN registrants; ICANN made its first public statements on this matter shortly thereafter, and has subsequently assisted affected DN registrants while starting a process to strengthen the RAA.
  • Supporting the proposal of Public Interest registry (PIR) to impose a restocking fee on excess DN deletions to curb abusive DN tasting at .org. PIR subsequently implemented this fee and has reported the virtual eradication of tasting at .org.
  • Opposing a DRP for new gTLDs that would curtail existing rights for DN registrants provided by the existing UDRP; the DRP has been at least temporarily sidetracked.
  • Supporting the adoption of a new Operational Point Of Contact (OPOC) policy to protect the privacy rights of DN registrants while requiring WHOIS proxy services to respond quickly and meaningfully to legally valid requests for registrant contact information. Unfortunately, IP interests defeated adoption of OPOC in LA through a massive lobbying campaign, but issues related to WHOIS, particularly as it intersects with national privacy laws, remain a major consideration for ICANN.

   

U.S. Government The U.S. Government plays a key role for DN registrants. ICANN was created by the U.S. in 1998 and the U.S. continues to enjoy a unique oversight relationship with ICANN through operation of the MOU. The U.S. also wields considerable influence within the GAC as well as the World Intellectual Property Organization (WIPO) and other multilateral bodies that affect Internet commerce and the protection of IP rights. Finally, the U.S. often sets important precedents through its adoption and enforcement of new laws and regulations that establish the legal and policy framework for Internet commerce and IP enforcement. Therefore, the ICA maintains a permanent office in Washington and actively seeks to inform Congress, the Executive Branch, and other key participants in U.S. policy development (e.g. think tanks and public interest groups) of the business models and public policy positions of the professional DN development community.

 

Since its creation the ICA has provided formal input to Congress and the Executive Branch on a number of key issues. These activities include:

  • Providing a record statement for the Senate Commerce Committee’s September 2006 oversight hearing on “Internet Governance: The Future of ICANN”. This statement raised concerns over ICANN’s lack of adequate transparency and accountability; objected to the unjustified price increases and perpetual renewal clauses of the then-pending registry agreements for .Biz, .Info, and .Org; cited inadequate attention to Internet security; and urged near-term reform of ICANN practices through continuation and strengthening of the MOU
  • Transmitting a letter to the Senate Commerce Committee in November 2006 applauding its bipartisan expression of concern over the .Com settlement and urging intervention against similar pending registry operation agreements.
  • Issuing a public statement in April 2007 decrying VeriSign’s announcement of an unjustified seven percent price increase for .com and .net DN registrations and calling for Congressional and DOC oversight. In particular, ICA noted that the .com increase was inconsistent with the “serve the public interest” standard established by the DOC when it approved the new .com registry agreement in November 2006. 
  • Canvassing its membership for input to the DOC regarding ICANN’s performance under the September 2006 Joint Project Agreement defining ICANN’s current obligations under the MOU. The ICA will be submitting detailed comments prior to the close of the comment period on February 15, 2008, and will seek to testify at any subsequent public hearing on this matter.

 The ICA engages in constructive dialogue with members and staff of key Congressional committees exercising oversight over the Department of Commerce and dealing with trademark law and other IP matters. The ICA has also discussed matters of concern to its members with senior staff of the Department of Commerce and the Patent and Trademark Office. Finally, the ICA has joined and is a fully participating member of the Congressional Internet Caucus Advisory Committee (www.netcaucus.org/advisory/ ) – this organization is made up of a broad cross-section of the public interest community and Internet industry, and supports and encourages the Congressional Internet Caucus in its mission to educate policymakers about important Internet related policy issues.MiscellaneousIn October 2007 the ICA’s Counsel participated in a far-ranging discussion of how to best balance the rights of trademark owners and DN registrants at the annual Leadership Meeting of the International Trademark Association. The ICA will continue to engage in constructive dialogue and debate with the IP community and similar legal and business groups with an interest in and influence over Internet commerce and IP policies.The ICA’s Executive Director and Counsel also participate on a regular basis as speakers and panelists at various DN industry conferences and meetings in order to better inform professional DN registrants of the ICA’s priorities and activities and to seek their input. Our new website offers members a place to discuss policy issues and to provide their input to ICA on the issues that affect their businesses.Looking Toward The FutureWhile the ICA has accomplished much on behalf of professional DN registrants during its brief existence, new challenges await and much more remains to be done—·         Trademark interests may well launch 2008 efforts in Washington and internationally to change trademark law to the detriment of DN registrants fighting attempts to reverse hijack their valuable names.·         DN registrants are increasingly requesting that the ICA provide financial and legal support for UDRP and Anti-Cybersquatting Protection Act cases and appeals that set critical precedents for the entire industry.·         There remains a continuing need for the ICA to engage the full time assistance of public relations specialists to explain its members’ business activities and its own policy positions to the media, and to highlight innovative and beneficial DN activities. This need is particularly acute for critical “inside-the-beltway” publications that influence public policy decision makers in Washington.·         As the Internet is a global telecommunications and data transmissions system the ICA must be able to monitor and participate in relevant discussions and decisions taking place in Brussels (European Union – EU), Geneva (WIPO), and all other locations where the future of Internet commerce and DN registrant rights are being decided.The ICA needs continued strong support and feedback from its current members, as well as broader support and participation from the entire professional DN registrant community, if it is to continue and expand its vital work. We thank you for your support and interest and look forward to continuing to be your vigorous advocate within ICANN, in Washington, and in all other key decision centers affecting DN registrants.For further information about ICA membership and activities, please contact:

 The ICA operates as a Business League under Section 501(c) (6) of the Internal Revenue Code. United States residents cannot deduct membership dues or contributions (such as donated domain names, or the proceeds of the auction of such names) as a charitable contribution for Federal income tax purposes. However, for U.S. tax law purposes, dues and donations to a business league (including non-cash donations) are generally deductible as a business expense, except for that portion that is devoted to lobbying and political campaign expenditures. The ICA does not anticipate incurring any political campaign expenditures in 2008 and estimates that the portion of dues and donations devoted to nondeductible lobbying expenses as defined in U.S. tax law will be in the range of 10-20%. ICA is required to provide its members with an estimate as to the percentage of members’ dues which will be devoted to lobbying expenditures during 2008.  ICA will provide this estimate of the lobbying percentage for the year 2008 as soon as feasible. The above general information may not be relied upon as tax advice,  and any affected ICA member or donor should consult with the member’s own tax adviser regarding the proper treatment of their ICA support under the tax laws of the U.S. or any other nation.  In particular, affected ICA members should consult with their tax advisers as to whether the excess of the auction sale price for a donated domain name, over the member’s cost for the domain name, should be reported as income or gain to the member for U.S. Federal income tax purposes.   To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that, unless we expressly state otherwise in this communication (including any attachments), any tax information contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or other matter addressed herein. 

Internet Commerce Association – Member Code of Conduct The Internet Commerce Association’s (ICA) Member Code of Conduct expresses the ICA’s recognition of the responsibilities of its members to the intellectual property, domain name, and at large Internet communities and will guide members in conducting their domain name investment and development activities with professionalism, respect and integrity. All members of ICA are committed to addressing the issues facing the evolving domain name industry, which include:


Protection of Intellectual Property Rights:  A registrant shall follow accepted trademark law and respect the brands and trademarks of others. Members will not intentionally and in bad faith register and use a domain name that is identical or confusingly similar to a trademark or service mark.  Registrants shall respond promptly to legitimate disputes relating to alleged infringement of intellectual property rights. 

 

Domain Name Tasting: Members should be supportive of changes in ICANN policy or self-driven registry initiatives that end abusive domain name tasting, including such market-based approaches as a restocking fee.  All activity related to domain name registration should respect all other areas of the Code of Conduct, most notably including protection of intellectual property rights.

 

Domain Name Kiting: A registrant has the responsibility to pay the registration cost of a domain name when used beyond the applicable Add/Grace period.  A registrant should not abuse the applicable Add/Grace period by serially deleting and re-registering a domain name with the intent of avoiding payment for such registration and use, a process commonly referred to as “domain kiting.”

 Strict Adherence to Internet Fraud Laws: Members of the ICA are committed to adhering to all applicable laws that seek to curb and control Internet fraud and abuse.  Cybersquatting, the practice of registering and reserving an Internet domain name for the purpose of reselling it to the rightful owner at an inflated price, is condemned; as are practices such as phishing, which is the process of attempting to obtain the personal information of unsuspecting Internet users for illicit purposes. Access to Accurate WHOIS Data: A registrant will provide accurate domain name ownership and contact information to the WHOIS database in a timely manner so that domain name ownership is transparent.  While a registrant may use a proxy service or other accepted means of privacy protection, a registrant should provide a timely response to any inquiry passed on via such proxy or related service or received directly when such service has complied with a lawful request for contact information. 

Lawful Content: A registrant’s usage of domain names shall follow applicable laws and regulations and a registrant shall not use domain names for unlawful purposes.  A registrant shall avoid registering a domain name which suggests the availability of content or the provision of goods or services are unlawful.

 

Respect for Human Suffering and Victims of Tragedy: A registrant should be respectful of persons and communities involved in tragedy. A registrant should not intentionally register a domain name related to a current or historical event involving human suffering or tragedy where the primary purpose of such registration is commercial profit.

 Protection of Names of Persons: A registrant should acknowledge that persons are known by their name. A registrant should not intentionally register a domain name that incorporates the name of another person for the purpose of intentional defamation or slander. Domain names that incorporate the name of a famous person should not be used in a manner that suggests a non-existing endorsement. 

———————————————————————————————————-

 ICA members found to be in intentional violation of any provisions of this Code of Conduct shall be liable to having their membership suspended or terminated. 

Each member of the ICA is, through their application for and continued membership in the ICA, self-certifying that they subscribe to this Code of Conduct and that they shall conduct their domain name activities in full compliance with it. Upon receipt of credible and substantiated information that an ICA member is not in compliance with this Code of Conduct the Board, or an internal task force to which it has delegated appropriate authority, shall conduct an investigation of such allegation. Upon a finding that a member has intentionally violated one or more provisions of this Code the Board shall, in its sole discretion, take such warning, suspension, or expulsion action as it deems appropriate. Notwithstanding the preceding, any ICA member that is indicted for or otherwise charged with a criminal offense involving a domain name or underlying website shall immediately have its membership suspended, and shall be expelled from the ICA in the event that it is convicted of such criminal offense.

 

In applying this Code of Conduct for the purpose of determining whether activities are unlawful or in violation of applicable laws or regulations, the ICA shall apply generally accepted rules of jurisdiction regarding activities taking place in cyberspace.

 Last Updated – January 2008

Comments are closed.