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Intellectual property lawyers guarding corporate trademarks on the Internet may soon have a harder time tracking down the people behind Web sites infringing on their clients’ brands. An organization that polices the domain-name system is likely to decide this year-after several years of debate-to adopt a new policy that would let Web site owners keep most of their contact information confidential when they register for a name. Instead, they would be allowed to list a separate go-between point of contact. The new policy would replace a current system that displays owners’ names and contact information in the so-called “Whois” database, an online directory of domain name owners. A council of the Internet Corporation for Assigned Names and Numbers, or ICANN, will consider a report on the issue at a March meeting. ICANN’s board is likely to act on it as early as June, according to attorneys involved in the process. Lawyers for companies with well-known names such as The Walt Disney Co., eBay Inc. and Bank of America Corp., who use the contact information to stop illicit use of trademarks in the domain names of noncompany Web sites would like to maintain as much disclosure as possible. On the other side of the debate are privacy advocates, including universities, public interest groups and churches, who say Web site owners should be able to keep their contact information under wraps and that stricter privacy laws outside the United States weigh in favor of greater confidentiality. Millions at stake Millions of dollars are at stake for the corporate camp, while basic rights are at issue for the privacy advocates. “It’s become really contentious,” said Rita Rodin, an attorney with Skadden, Arps, Slate, Meagher & Flom of New York who sits on the 21-member ICANN board, explaining that each side is now so passionate about its view that it can’t grasp the other’s perspective. “There will need to be action on this, this year.” For attorneys like Steven Weinberg at Greenberg Traurig, less contact information for Web site owners will likely mean more time and money spent on efforts to protect client trademarks and deal with so-called cybersquatters looking to illegitimately profit from those trademarks. “There are so many transactions and legal issues involved with domain names that it becomes important for people in business to know who owns them,” said Weinberg, who works in Greenberg Traurig’s Santa Monica, Calif., office. Robin Gross, an attorney with the international civil liberties organization IP Justice in San Francisco, argues that traditional rights of privacy shouldn’t be suspended on the Internet. “This affects an enormous amount of people,” Gross said. “If the status quo is maintained, it really sort of cements that consumers have lost any sort of privacy.” Ultimately, both sides are mainly concerned with avoiding or stopping fraudulent or harmful behavior that occur on the Internet, whether it be the sale of counterfeit goods, misuse of personal information by scammers and spammers, or the steering of Internet traffic to pornographic sites through misuse of brand names. Law enforcement authorities investigated 97,100 U.S. complaints of Internet fraud in 2005 that cost victims $183 million, a monetary toll that has risen more than tenfold since 2000, the FBI said in its most recent report. The ICANN council is considering three options: continue to let domain name owners’ personal, technical and administrative contact information be viewed by all Internet users; display only the name and country of an owner and allow that person or entity to designate additional information for a point of contact; or keep the current system and allow owners to cloak contact information only if there’s a risk to a registrant’s personal safety. To access the “Whois” contact information, an Internet user can go to the Web site of one of the some 250 registrars where owners register their domain names and click on Whois options to enter a Web site name. For instance, one of the registrar sites is www.-networksolutions.com. The council is considering comments on the proposals that have come in from various companies, groups and individuals over the past several months as it prepares for the March meeting in Lisbon, Portugal. The ICANN council may have a final policy recommendation for the ICANN board by the time of the board’s June meeting in Puerto Rico, said Gross, a council member. Any new policy would likely take months to phase in, according to Ross Rader, another council member and the director of retail services at registrar Domain Direct, a division of Tucows Inc. Seeking to talk As the system works now, Weinberg often uses the “Whois” information to make a direct plea to a Web site owner to stop using a certain domain name, he said in an interview. Sometimes, the Web site owner is simply a fan of a product or celebrity and doesn’t have nefarious intentions, Weinberg said. For instance, when client Anheuser-Busch Cos. found in the mid-1990s that someone had registered a site with the name “Budweiser,” Weinberg called up the owner, an avid Bud drinker, met with him and persuaded him to give up the domain name in exchange for free beer, Budweiser mousepads and a refrigerator in the shape of a Budweiser can. In a case in which someone was using the Web site www.hulkhogan.com, Weinberg, who represents the former professional wrestler, simply paid the domain name owner to buy the site. While Weinberg’s clients could sue over such matters under the Anti-Cybersquatting Consumer Protection Act, he prefers to settle the matters through a conversation, if possible. “There’s a lot of misunderstanding by people about what rights one has and doesn’t have to use domain names,” he said. eBay, the online auction company, uses the “Whois” information 100 times a day to contact and stop Web sites from using its name without permission, said Steve Metalitz, an intellectual property lawyer who sits on the council as a representative of corporate interests. A fake site is either trying to scam people or else the owner of the site just isn’t aware that it’s an infringement on eBay’s trademark, said Metalitz, an attorney with Mitchell Silberberg & Knupp in Washington. By contacting the site owner, eBay can keep people from building a site into a bigger problem, he said in an interview. “There’s so much wrong going on the Internet that we need to have that information,” Michael Graham, an intellectual property attorney at Marshall, Gerstein & Borun in Chicago, said in an interview. When lawyers find illicit use of trademarks, they may contact the Web site owners to ask about correcting the problem, petition one of the international arbitration bodies to strip the name from the site or seek to sue the owner. Arbitration panels that provide guidance in these matters include the World Intellectual Property Organization, an agency of the United Nations that is based in Geneva, and the National Arbitration Forum in Minneapolis. “The more obstacles you put in the way of that direct communication, the more costly it gets to resolve legitimate disputes,” said Mark Partridge, a partner at Pattishall, McAuliffe, Newbury, Hilliard & Geraldson in Chicago. In some cases, there is more at stake than money and a brand. Partridge, who is a panelist with the Geneva arbitration organization and who sometimes decides domain-name disputes, said that last year he granted a request to have a site stripped of its domain name when a major pharmaceutical company complained that the Web site was marketing a fake diet pill with a name that resembled the company’s products. Speed is vital Speed in resolving such matters is key, intellectual property attorneys say. Clients can lose money and consumers can be subject to harm as long as an infringing site is available, they say. “The longer the site is up, the more damage it’s going to do,” Metalitz said. Delay in contacting a Web site owner is the main reason that intellectual property attorneys oppose moving to a go-between system, referred to as an operational point of contact model, Metalitz said. The lawyers have already experienced the delays that such go-betweens can create because some Web site owners use proxies as their point of contact, though owners are still required to post their own names and contact information, too. Still, some scammers get around that too by providing false information, also causing delays. Delays make legal work more expensive and could reduce policing on the Internet as a result, Partridge said in an interview. Delay should not become an argument against a system that preserves privacy rights, Gross said. There are judicial routes in the United States for seeking permission from a judge in order to get access to registrant information and that route is supposed to take time and be difficult, she said in an interview. The European Union nations have much stricter laws than the United States when it comes to privacy rights on this matter Gross said. ICANN’s authority in the matter could be eroded if people concerned with privacy start taking the issue into the courts of European countries or other nations that have stricter privacy laws than the United States does, Gross said. Or ICANN could be sued itself over the matter, she said. “If the status quo is maintained, it really calls into question ICANN’s legitimacy,” Gross said. The only way to protect domain-name owners, even from software programs that seek them out for various purposes, is to allow them to keep the information private, said Milton Mueller, a professor at Syracuse University’s School of Information Studies. It’s no different from a person deciding to have a nonpublished phone number, Mueller said in an interview. Mueller told the council in his comments that publishing the Whois database has subjected millions of domain registrants to “spamming and the risk of stalking, identity theft, and unjustified harassment and surveillance by intellectual property lawyers” and that the problem has “festered for too long.” Further debate now benefits those who favor the current full-disclosure system and frustrates those with privacy concerns, Mueller said. The noncommercial interests in the debate have compromised by supporting disclosure even of an owner’s name and country, he said. Mueller is confident there are enough votes on the council for passage of the compromise while Metalitz concedes his side is fighting an uphill battle. “It’s really the last chance to reach consensus,” Mueller said.

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