SBA Critical of ICANN Proposals

The U.S. Small Business Administration’s Office of Advocacy is highly critical of the World Intellectual Property Organization’s (WIPO) Final Report on the domain naming registrar system called for by the Internet Corporation for Assigned Names and Numbers.

The report was issued in advance of ICANN’s board meeting, set for May 27 in Berlin.

The SBA was highly critical of ICANN, as outlined in the commentary.

According to SBA figure, as of this fall, 41
percent of small and mid-sized businesses have a Web site, 22 percent of
small and mid-sized businesses use the Internet to sell goods and
services, and 18 percent use the Internet to buy goods and
services for their companies and to share information with suppliers and

In light of those figures the SBA maintains that policies, such as ICANN’s, can harm the ability of
small businesses to use the Internet, and in turn, negatively impact the country’s economy and limit the effectiveness of the Internet as a tool.
of business and commerce.

The SBA said small businesses didn’t receive reasonable notice of ICANN proceedings and that made it difficult for them to submit comments. The SBA further alleges the failure of advance notification violates ICANN’s bylaws and the United States’ Administrative Procedure Act.

“The notice posted by ICANN on its Web page was vague and insufficient to
give sufficient notice required by ICANN’s bylaws and the APA. ICANN
announced the WIPO Recommendation and, without any further comment, opened
a comment period and stated that it is considering appropriate action on
the WIPO Final Report,” the SBA wrote.

To correct the situation the SBA has advised ICANN to revise the comment period revise the
comment period to allow 60 to 90 days for commenters to respond and
postpone a final decision until more comments can be filed and considered.

“ICANN should have listed which sections of
WIPO’s recommendation it is considering adopting and why, which sections it is considering sending to the Domain Name Support Organization (DNSO)
and why, and which sections ICANN considers inappropriate for adoption and why,” said the SBA report.

Eric E. Menge, the assistant chief counsel of the SBA’s telecommunications
office of advocacy, wrote that the WIPO’s dispute resolution procedure would achieve a balance between the interest of small business and those of what it terms the large intellectual property owners.

“Advocacy believes that the dispute resolution process recommended by WIPO
in its final report obtains a fair balance between the interests of
intellectual property owners holders and small businesses,” the report said. “Advocacy
applauds WIPO’s decision to limit the arbitration process to instances of
abusive registrations in its recommendation. By doing so, WIPO greatly
reduced the danger of harm to small businesses and lessened the threat of
reverse domain name hijacking.”

In addition, the SBA is recommending that ICANN refer
famous and well-known trademark exceptions to the DNSO for further comments.

“Advocacy is deeply concerned that the proposed WIPO’s
recommendations on famous and well-known marks could be used to
illegitimately expand the rights of trademark holders. WIPO recognized
that the typical limitations on the protection famous and well-known marks,
such as geographic limitations and same goods and services limitations, are
absent on the Internet.”

“Advocacy did not have the opportunity to fully study the impact that of
WIPO’s recommendations on small businesses. Similarly, advocacy believes
that ICANN does not have a public record developed enough to issue a
decision. Therefore, advocacy strongly recommends that ICANN refer this
issue to the DNSO forfurther development of the record.”

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