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Downtime emerges as key barrier to Trademark Clearinghouse changes

Kevin Murphy, October 10, 2012, 13:44:18 (UTC), Domain Services

The risk of embarrassing technical glitches is now the major stumbling block in discussions about the best way to deploy the forthcoming Trademark Clearinghouse for new gTLDs.
ICANN is worried about the “reputational implications” of the TMCH going offline if, as proposed by domain name registries, it is in the “critical path” of the live registration process.
The concerns emerged in a letter earlier this week, and were discussed during an ICANN conference call yesterday.
The TMCH is expected to be a big database of trademarks, used to support the Trademark Claims and Sunrise periods that new gTLD registries will have to offer.
The policy behind both rights protection mechanisms is settled (essentially), but the actual technical implementation is still open to question.
While ICANN and its two contractors — IBM and Deloitte — have been quietly working on their favored model for some months, the registries that will support most new gTLDs have their own model.
Neustar, ARI Registry Services, Verisign and Demand Media have proposed a TMCH design that they say would be less costly to registries (and therefore brand owners) as well as having certain security benefits.
The problem with the registry’s plan is that it calls for real-time interactions between registrars, registries and the TMCH during the Trademark Claims phase of new gTLD launches.
This would require the Clearinghouse to operate with 100% up-time, which makes ICANN very nervous. It said in its letter this week:

Though requirements for resiliency to guard against such failures will be in place, the risk and impact of a failure incident in a centralized live query system are significant and have an impact on the reputation and, therefore, the effectiveness of the rights protection mechanisms supported by the Trademark Clearinghouse. Such an event could have reputational implications for the Clearinghouse and the New gTLD Program.

If the Clearinghouse went down, the argument goes, it would prevent domain names being registered in new gTLDs.
This would look very bad for ICANN, which has already experienced a few embarrassing technical problems with the program. How its policies and processes perform with live gTLDs will be scrutinized intensely.
But the registries say they’ve mitigated the problem as much as they can in their centralized model.
“It only puts the Trademark Clearinghouse in the critical path for registration for a limited number of registrations,” Neustar vice president Jeff Neuman said on yesterday’s call.
“In our model if a domain name does not match a trademark in the Clearinghouse then the Clearinghouse never sees it, it doesn’t matter if the Clearinghouse is up or down,” he said.
The negative impact of downtime in this scenario is that registrars would not be able to show would-be registrants Trademark Claims notices. But it would not necessarily enable cybersquatting.
Neuman further argued that the TMCH should be covered by the same kinds of service level agreements and data escrow requirements as contracted gTLD registries, minimizing the risk of downtime.
The second major hurdle to the implementation talks is the relative lack to date of input from brand owners.
The intellectual property community has previously expressed reservations about any TMCH model that would enable data mining by bad actors or opportunistic registrars and registries.
Yes, it’s a data privacy issue. Brand owners are worried that the contents of the Clearinghouse could be used by competitors to find holes in their trademark protection strategies, or by scammers.
While yesterday’s call had more input from the trademark community, the real work will come next Wednesday during a session at ICANN 45 in Toronto.

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Comments (3)

  1. Jean Guillon says:

    …can someone pay me to tell some truth about all this and what should really been said about the TMCH?

  2. Rubens Kuhl says:

    When the policy expressed by various documents which ended up in the AGB allowed trademark holders to request data protection for the Claims service, the existence of a central live-query system was made inevitable.
    Sunrise can be protected by a number of data security models, two of them the ICANN-proposed model and the better registries-proposed model, because a secret factor can be created and verified.
    Claims is a public service where any potential registrant has to be warned about rights claims, and although it’s of mutual interest (registrant benefits from assessing the risk of later losing such domain to URS/UDRP procedures, TM holder benefits from less battles to fight), it cannot depend on a secret factor.
    ICANN proposed cryptography for the claims database is weak because it can only depend on the domain, which is an easily predictable string. Simply download zone files from current gTLDs, add some dictionaries and some million-most-accessed domain lists (like Alexa) and anyone with the encrypted database will get 99.9% of it.
    There is nothing that can be done with cryptography to change that, and I think ICANN proposed this model not because they don’t know its flaws, but because the impact of using a centralized query system.
    If the Intelectual Property community can accept not having data protection for the Claims service, it will indeed be good for the reliability of new gTLDs. What we cannot do is say that we fulfilled the requirements by using a weak encryption.

  3. There is clearly a tradeoff between a centralised and a decentralised approach. Key downsides of decentralised (status quo) is data mining, stale data and inconsistency. Key downside of centralised is downtime. But on balance this IP commmentator is currently persuaded by the proposed switch to a centralised model.

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