ICA Requests that NAFTA Renegotiation Address Protectionist .CA “Presence Requirements”

On September 11, 2017 the ICA sent a letter to U.S. Trade Representative Robert Lighthizer requesting that the ongoing renegotiation of the North America Free Trade Agreement (NAFTA) address protectionist restrictions so that U.S. entities and organizations wishing to register a .CA domain face no greater requirements than their Canadian counterparts face in registering a .US domain.

As noted in the letter:

To-date, Canada has substantially hindered and prevented Americans from obtaining .CA (Canadian) Internet domain names which are integral to fair and successful entry into the Canadian e-commerce market. ICA’s position is that U.S. businesses should have the same opportunity to register Canadian .CA country code top level domain (ccTLD) names, as Canadian businesses have to register United States .US ccTLD domain names, and we urge the USTR to advance that position in ongoing negotiations…any U.S. entity or organization that wants to register a .CA domain name simply can’t, unless they either incorporate in Canada or wait months or years to obtain a Canadian trademark registration. Incorporating in Canada is a substantial expense and also necessarily involves filing of annual Canadian corporate tax returns and annual corporate maintenance, which adds an additional costly layer of expense and red tape for U.S. business that their Canadian counterparts are not subject to. Obtaining a Canadian trademark is also not a viable solution for a U.S. business wanting to immediately enter the Canadian online market, as it forces U.S. businesses to wait months or even years for approval by the Canadian Intellectual Property Office before a trademark registration is granted which would permit the U.S. business to register a .CA domain name. This puts U.S. competitors at a severe disadvantage to Canadians, who can open up their online business with a .CA domain name right away, with no waiting period whatsoever…Countless U.S. businesses that want to reflect their brand in a .CA domain name and do business in Canada have been turned away by CIRA due to these unfair and prejudicial Canadian Presence Requirements. Other U.S. businesses that have been forced to comply with the Canadian Presence Requirements face thousands of dollars of punitive government and professional fees, just for being able to enter the Canadian Internet commerce marketplace in a fully competitive manner…

Pursuant to Article 1204 of NAFTA:
No Party may require a service provider of another Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border provision of a service.
Furthermore, there are no reservations made by Canada pursuant to Annex 1 of NAFTA which appear to purport to reserve any existing or future measures applicable to domain names.
Accordingly, it appears that CIRA’s Canadian Presence Requirements are a direct violation of Canada’s commitments under NAFTA, and should be the subject of compliance procedures and/or renegotiation.
Accordingly, we respectfully request that you take the foregoing into account in your NAFTA renegotiations, with a view to creating a level playing field for U.S. businesses when it comes to doing online business with Canada. We ask that U.S. business be given the same and equal opportunity to register .CA domain names as Canadians have to register .US domain names.

The full text of the letter can be viewed at ICA-Letter to Office of the United States Trade Representative Final Draft VERSION 2 Final

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