Testimony of

Jeffrey J. Neuman

NeuLevel, Inc.

Washington, D.C.

Before the Subcommittee on Courts, The Internet and Intellectual Property

Of the House Judiciary Committee

March 22, 2001

Good Morning:

My name is Jeff Neuman, and I am the Director of Law and Policy for NeuStar, Inc. ("NeuStar"), a neutral third party provider of clearinghouse and database administrative services. NeuStar serves as the Numbering Plan administrator and the Local Number Portability administrator for North America. I am also a policy advisor for NeuLevel, a joint venture between NeuStar and MelbourneIT, Ltd. ("MIT"), a Melbourne, Australia provider of domain name services. NeuLevel was recently selected by the Internet Corporation for Assigned Names and Numbers ("ICANN") to operate the Registry for the top level domain name ".biz".

I want to first congratulate Chairman Howard Coble on his reappointment as Chairman of the Subcommittee on Courts, the Internet and Intellectual Property. I appreciate the opportunity to appear before the Subcommittee to discuss the array of intellectual property protections .biz affords all trademark owners, including those with: (i) federally registered trademarks in the United States Patent and Trademark Office ("USPTO"); (ii) state trademark registrations; (iii) applications pending either with the USPTO or individual state trademark offices; and (iv) common law rights in their trademarks. As you will hear in this testimony, of all of the new TLDs being introduced during ICANN's "Proof of Concept" phase, .biz is the only new Top Level Domain name to consider all of these intellectual property holders, because NeuLevel believes that each have valid trademark rights that must be taken into consideration in the introduction of new TLDs. We believe that NeuLevel's unique approach to intellectual property rights was one of the primary reasons that NeuLevel was selected out of the 47 applicants by ICANN during the "Proof of Concept" stage, and we hope that it will serve as a model for the introduction of new TLDs by ICANN in the future.

NeuLevel's application to operate the .biz TLD, which contained each of the intellectual property services described below, was approved by ICANN in November of 2000. Since then, NeuLevel has been working closely with the intellectual property and business constituencies of ICANN, the World Intellectual Property Organization, and the Internet community to further define, clarify and expand these intellectual property services. These services include: (i) a Start-up Intellectual Property Notification services ("SIPN"); (ii) a Start-up Dispute Resolution Process ("SUDRP"); (iii) compliance with the Uniform Dispute Resolution Policy ("UDRP"); (iv) a policy against domain name speculators and; (v) a fully centralized WHOIS service. I will briefly describe the SIPN process and ask that a more complete explanation be placed in the record at this point.

A. Start-up Intellectual Property Notification Service (SPIN)

The Start-Up Intellectual Property Notification service is designed to assist individuals and entities with intellectual property rights in registered and common law trademarks and service marks ("Trademarks") in protecting their rights. Each domain name application in the .biz TLD submitted through an ICANN-accredited registrar will be compared to a database of Trademark claim forms operated by NeuLevel. For each match between the domain name contained on a domain name application and a Trademark identified on a Trademark Claim Form (as defined below) notifications will be provided to the prospective registrants that individuals or entities have claimed intellectual property rights over that domain name.

B. Start-Up Dispute Resolution Process (SUDRP)

All disputes between a third party and a domain name registrant regarding the registration of an Internet domain name that is subject to the SIPN service shall be decided under the Start-Up Dispute Resolution Policy ("SUDRP"), a unique dispute resolution solution that incorporates many elements of the Uniform Dispute Resolution Policy, (UDRP).

Because many of the disputes under the SUDRP will be brought by complainants prior to actual use of the domain name by the domain name registrant, the SUDRP, unlike the UDRP, will only require the complainant prove that domain name has been registered in bad faith or is being used in bad faith. Under the UDRP as adopted by ICANN, a complainant must prove that the domain name was registered in bad faithand used in bad faith. This not only will make it easier for valid trademark owners to enforce their intellectual property rights, but will also significantly limit cybersquatters.

NeuLevel has begun the process of contacting potential dispute providers for the SUDRP and is finalizing the SUDRP's exact policy and procedures. NeuLevel will coordinate with ICANN to publish the SUDRP's policy and procedures prior to the beginning of the .biz start-up procedures described above.

1. Compliance with the Uniform Dispute Resolution Policy (UDRP)

The UDRP has been praised by both the Intellectual Property community as well as the Internet community as a whole. Therefore, NeuLevel will also strictly follow the UDRP for abusive domain name registrations in which the domain name registrant is alleged to have violated the intellectual property rights of a third party by registering and using a domain name in bad faith. In fact, as set forth in section D below, a violation of the UDRP would also be a violation of the .biz Restrictions Document.

D. Anti-Speculation Clause in Restrictions Document

The .biz domain name may only be used or intended to be used primarily for bona fide business or commercial purposes. In addition, all domain name registrants must agree to comply with the UDRP/Start-Up Dispute Process.

As a result of extensive consultations with the intellectual property constituency, NeuLevel has amended its .biz restrictions document to include a provision, which we believe does more to assist intellectual property owners than any of the protections that exist either in .com, .net, or .org, or any of the newly selected TLDs. The .biz Restrictions Document provides a unique anti-speculation clause which states that:

Registering a domain name solely for the purposes of (1) selling, trading or leasing the domain name for compensation, or (2) the unsolicited offering to sell, trade or lease the domain name for compensation, shall not constitute a "bona fide business or commercial use" of that domain name.

Violations of the .biz restrictions shall be enforced by third parties through a restrictions dispute resolution policy like that of the UDRP.

E. WHOIS

According to the Intellectual Property Constituency, in a statement issued to the ICANN Board prior to ICANN's selection of the new TLDs, in order to offer workable protection for intellectual property rights, certain information about the domain name registrant must be available on a publicly accessible database. In this regard, NeuLevel is completely in agreement with the Intellectual Property Constituency. Thus, .biz WHOIS shall include:

• second-level domain name and the TLD in which the second-level domain name is registered;

• status of the second-level domain name, e.g., "on hold" or "deleted";

• registrant's name and postal address;

• administrative/technical contacts' name, postal address, e-mail address, telephone number and (if any) facsimile number;

• original registration date, expiration date and date on which the database was last updated;

• Internet Protocol addresses and corresponding names of primary and secondary nameservers for the SLD;

• the domain name Registrant's self-certified description of the commercial/business use of the registered domain name; and

• registrar's name and web site address or hyperlink thereto.

In addition, the WHOIS database will be initially searchable by domain name and the registrant's name. NeuLevel is also working on developing a fee-based system whereby intellectual property owners will be able to search by many of the other fields contained in the WHOIS database, through key word and Boolean searches.

IPC'S RECOMMENDED SUNRISE POLICY

The Intellectual Property Constituency ("IPC") advocates a "Sunrise Proposal" which has been incorporated into the rollout of some of the selected new TLDs. During this "Sunrise Period" owners of nationally registered trademarks and service marks are able to register their marks as domain names on a first-come-first-served basis in a new TLD before that new domain is made available to the general public. Under the IPC proposal, however, only owners of national trademark registrations are eligible to seek registration of a domain name during the Sunrise Period, provided that the national registration for that mark was issued at least one (1) year prior to the date on which the mark owner applies to register the mark.

Because NeuLevel, according to its own code of conduct, is a neutral third party service provider, it is concerned about favoring the rights of one class of registrants over any other class of registrants, and thus has never advocated the adoption of the Sunrise. In addition, I have participated in several of the working groups of ICANN's Domain Name Support Organization that were tasked at evaluating proposals on intellectual property protections in the new TLDs, including the Sunrise. The Sunrise has never received consensus support in the Internet Community, or even among intellectual property owners. In fact, the United States Small Business Administration ("SBA") issued a statement on April 14, 2000, which stated that Sunrise contained "foundational flaws" that prevent (ed) the office from endorsing it's adoption. I ask that this letter be made part of the record.

The Sunrise's lack of support from all intellectual property owners and the Internet community, coupled with the SBA's statement and NeuLevel's concern about favoring the rights of one class of registrants over any other class of registrants lead NeuLevel to adopt the SIPN service, which many in the intellectual property community have called a workable alternative to the Sunrise. I ask that a more detailed explanation of NeuLevel's position on Sunrise be made a part of the record.

I thank the subcommittee for giving me the opportunity to testify, and to summarize the numerous intellectual property protections incorporated in the .biz TLD.

ATTACHMENT I

Start-up Intellectual Property Notification (SIPN) Services Process

For a period of approximately thirty (30) to forty-five (45) days prior to the receipt of domain name application forms ("Claim Period"), Trademark owners ("Claimants") will be afforded the opportunity to fill out and submit "Trademark Claim Forms" which will set out the following information:

The .BIZ domain name in which the Trademark owner is claiming intellectual property rights. This domain name must be identical to the alphanumeric string contained in the mark;

Exact alphanumeric string contained in the trademark in which rights are claimed;

Trademark holder entity contact information;

Trademark holder representative's contact information and relationship to trademark holder entity (i.e., General Counsel, President, CEO, etc.);

Description of goods and services for which the exact Trademark is being used;

Date of first use of the Trademark in commerce; and

If the mark is registered with any national Trademark office, registration number, and country where registration was obtained.

There shall be no restriction on the number of intellectual property owners that may file Trademark Claim Forms for a given domain name. Trademark owners may not submit a Trademark Claim Form after the Claim Period.

As a neutral third party providing these services, NeuLevel will not, however:

• Verify whether a claim corresponds with an actual Trademark.Provide legal oversight or adjudication.Guarantee or represent that a Trademark owner who enrolls in the SIPN will receive the actual domain name.

Claimants will submit a Trademark Claim Form for each separate Trademark for which they are claiming intellectual property rights. Submission of a Trademark Claim Form does not create any special rights with respect to registering a particular domain name. Any Claimant wishing to register a domain name must also submit a separate domain name application. The submission of a Trademark Claim Form does not guarantee that the Claimant will receive the actual domain name.

For each match between a domain name application ("Application") and a Trademark Claim Form, NeuLevel will notify the applicant and the ICANN-Accredited Registrar through which the applicant filed an Application, that a third party, or parties, has submitted a claim for the exact string requested. The notification to the applicant will include, among other things, the information provided by Claimant in the Trademark Claim Form, instructions on how to proceed with the registration process, notification that the domain name will automatically placed "On Hold" (as described below) if the name is registered. This notification is provided to all Applicants that apply for the same string in the Application and does not guarantee ultimate registration by that applicant of the domain name.

The e-mail notification to the applicant will provide a link to a secure site where the applicant will go to confirm whether it wishes to proceed with the domain name application. The applicant will have the option to proceed with the application or cancel. If the applicant does not respond to the e-mail notification from NeuLevel, or elects to cancel the Application, the Application will not be processed, thus, making the Applicant ineligible to register the actual domain name. If the Applicant affirmatively elects to continue the application process after being notified of the Claimant(s) alleged trademark rights in the desired domain name, NeuLevel will provide confirmation to the Applicant confirming the decision to pursue the domain name.

All of these domain names along with all of the domain names for which there was no match in the Trademark Claim Form database will be compiled by NeuLevel into one database batch. Names for registration will be randomly selected from this batch to be processed for registration. The registration in the live registry of a domain name that is the subject of a complete Trademark Claims Form will not be immediate, but rather the subject domain name registration will automatically enter a thirty (30) day Hold Period during which all Claimants will be advised by e-mail of the identity of the person or entity that has registered the exact Trademark claimed. The notification e-mail will include the full WHOIS information of the registrant. In addition, the e-mail will provide a hyperlink to a unique Start-Up Uniform Dispute Resolution Process ("SUDRP") described below.

During this Hold Period, the domain name will not be activated in the DNS. Should a notified party file a contest to the registration in the formal SUDRP process, the domain name would be "locked" until the dispute is decided. During such "locked" period, in accordance with the current Uniform Dispute Resolution Policy, modification by the registrant of the domain name information (i.e. owner, contact information, etc.) will not be permitted, however, the domain name will resolve to the DNS after the Hold Period set forth above.

ATTACHMENT II

The Sunrise Proposal

As further explanation, NeuLevel believes that the adoption of the Sunrise Proposal would unduly favor registered trademark owners who have obtained trademark registrations at least one year prior to the commencement of the Sunrise Period over: (1) trademark owners who have had a registered trademark for less than a year, (2) trademark owners who were in the trademark application process, and (3) common law trademark owners. In addition, in other countries, a trademark owner could register trademarks that would be considered generic in the United States and therefore, unregistrable. For example, the mark "Computer" is registrable in one of the Asian-Pacific nations and would not be registrable with the United States. Thus, a Sunrise Proposal would allow these foreign trademark owners to register such generic English marks as domain name during the Sunrise Period, thereby preventing other legitimate businesses from registering the same marks as domain names.

NeuLevel understands the Intellectual Property Constituency's position on the Sunrise Proposal and also that the Sunrise has been adopted by several of the other new TLDs. However, NeuLevel does not believe that the Sunrise Proposal is the best method or the only mechanism that will enable intellectual property owners to protect their rights. To illustrate NeuLevel's concerns about the Sunrise, NeuLevel need only point out that it will be ineligible to participate in any Sunrise Procedures adopted by any of the new TLDs. Although it has applied for trademark protection in the United States for the mark "NeuLevel," the mark is in currently in the application process, and has been since October 2000. It is not anticipated that the PTO will issue a registration for the NeuLevel mark until 2002 at the earliest. Therefore, although, NeuLevel does have valid common law intellectual property rights in the "NeuLevel" trademark, because it does not have a valid "national registration" yet, it will be unable to participate in the Sunrise. Thus, it is possible that another entity having a trademark registration anywhere in the world for the NeuLevel mark, even for wholly unrelated goods and services, could obtain a domain name containing the "NeuLevel" mark without us even having an equal chance to get the domain name.

NeuLevel does not advocate, nor has it ever advocated, that it should automatically be given all domain names containing the mark "NeuLevel," but rather that it should have an equal chance with all of the other trademark owners, registered or common law, to obtain domain names containing the NeuLevel mark. The current Sunrise Proposal, as adopted by several of the new TLDs, would not allow NeuLevel or any other trademark owner that is the application process or that has common law rights to participate.

In contrast, NeuLevel's SIPN service would allow all trademark owners to participate. In fact, we believe that this was one of the reasons that NeuLevel was selected to operate the .biz TLD. Through the SIPN service, coupled with its anti-speculation clause and extensive WHOIS service, NeuLevel provides an alternative approach to the Sunrise Proposal, while at the same time also provides significant intellectual property protections to all intellectual property owners, whether they have a nationally registered trademark or common law rights.