ICANN/GNSO GNSO Email List Archives


<<< Chronological Index >>>    <<< Thread Index >>>

[council] Discussion kick-off on BC/IPC strawman proposal as blogged by Fadi

  • To: "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>
  • Subject: [council] Discussion kick-off on BC/IPC strawman proposal as blogged by Fadi
  • From: Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>
  • Date: Wed, 28 Nov 2012 19:24:21 +0100
  • Dkim-signature: v=1; a=rsa-sha256; c=relaxed/simple; d=key-systems.net; h=content-transfer-encoding:content-type:content-type:subject :subject:to:mime-version:user-agent:from:from:date:date :message-id; s=dkim; t=1354126982; x=1354990982; bh=R/7issXxHLX3 lwXOr0kgfxkfpDgl399xew3FRPEa+Uw=; b=sNbP79IhvD9sTElpYhgIQOCNBGIS X95TwhnzECEoa7zxBNk6TagWv+GtU+VxP0UJBF3oRki4lagMI0bFfWx9mzJJnaD6 PIRM1Rx0g1DeK5ivAEmdYIWGshuWPXsBwBeldbrJ8BmFXBo1/mhSdfXBc3F7AI5u u/jmMW3b5p+hm58=
  • List-id: council@xxxxxxxxxxxxxx
  • Sender: owner-council@xxxxxxxxxxxxxx
  • User-agent: Mozilla/5.0 (Windows NT 5.1; rv:17.0) Gecko/17.0 Thunderbird/17.0

Dear fellow councillors,

frankly, I do not like most of what I am seeing regarding the latest BC/IPC demands. The new proposals re-open and significantly expand upon carefully developed and agreed upon compromise positions beyond their original scope and intent at the last minute and more significantly, outside the established policy making mechanisms. Such a precedent will only serve to open the floodgates for any community or stakeholder group to reopen any nominally closed and agreed process to push their agenda just a little beyond what the community had already agreed upon.

We should consider the ramifications of the CEO getting involved in what easily could be viewed as policy making decisions and that to me should be the focus of the council now as we look to provide feedback to Fadi about his strawman and what implications it would have on future policy development.

While I welcome the more hands-on and practical approach of our new CEO, it would be helpful to have more detailed information on how ICANN staff and Fadi arrived at the conclusion that most of these positions are implementation issues rather than policy. However, even if it were implementation rather than policy, this does not mean these suggestions should be implemented without proper process and especially if the majority of the community is in disagreement. Just because you can does not mean you should.

These proposals need to be vetted by the community, namely the GNSO Council. To quote Steve Crocker from the Toronto public forum:

"Three more items. The rights protection in new gTLDs. The Intellectual Property Constituency and business constituency reached consensus on further mechanisms for new gTLD rights protection and agreed to socialize these to the rest of the GNSO AND THE BOARD LOOKS FORWARD TO receiving input on these suggestions FROM the GNSO. So that is our plan, so to speak, WHICH IS WE WILL CONTINUE TO LISTEN AND WAIT FOR THIS TO COME UP"

From what I have seen, the strawman proposal was developed by the IPC and the BC together with ICANN staff. Others made themselves available to discuss them, but it does not seem accuracte to say they actually developed the proposals. It is now our job as the GNSO council to weigh in and make our opinions on these proposals clear. To kick this process off, I will make the first move:

-Blocking (aka "LPR"): While not directly included in the straw man, I understand this is still on the table. The paper on this proposal is well written and does an excellent job of totally blocking out the actual harms the implementation of this proposal would do. Its arguments only take into account other trademark holders that may apply in the sunrise period whose rights would naturally not be affected. No mention however is made of other legitimate potential registrants whose rights to a non-infringing registration after the sunrise phase would be completely eliminated. These include people with the same name as the mark, trademark holders not participating in the sunrise for whatever reason (newer trademark than permitted, lack of prior knowledge, etc) or companies without eligible trademarks. Frankly, only TM-holders that would otherwise participate in the Sunrise would think this is a good idea. There will likely be a lot of money to be made by implementing this demand but this is not good policy.

-Claims 2: The extension of Trademark Claims is a service except for a very small part of the community for which there is no need and that will only serve to scare away otherwise legally eligible registrants, slow the registration process and drive up costs of registrations. As many of the new TLDs will initially have a very small market such restrictions will decrease the customer base even further. Furthermore, the description of the proposal as "voluntary" seems to fundamentally misrepresent the nature of the proposal, since it will be anything but voluntary for registrants, registries and registrars. The only parties for whom the optional nature of this proposal applies are its sole beneficiaries. This proposal also does not take into account in any way how the technical systems of each individual registrar need to be adapted to set this system up. Having to implement a 60 day temporary system that will have light use (Regular claims) is simpler than a system that will have many more commands running through it and many more TLDs (as it will last for 1 year). Finally, the idea that registrars and registries will have to build these systems at their own cost and risk with no guarantee of compensation for their use as Rights Holders could opt out is not appropriate as it creates a definite financial burden for registries and registrars to alleviate a potential burden resulting from the presumed need for protection against infringing registrations.

-Scope: This proposal is effectively a multiplier of the above issues, i.e. every problem resulting from the above proposals will be multiplied by up to 50 strings per TMCH entry. I also have come to understand that UDRP decisions are not always flawless or beyond reproach as many have been successfully overturned in court, so basing a blocking mechanisms on UDRP decisions seems like an overreach (again).

-Notice: Of all the new demands put on the table by the IPC and the BC, the only one that I can support without issues is the Sunrise Notice Requirement. This is pure implementation, and makes sense both from a marketing as well as a RPM standpoint. The rest are mostly overreach to benefit a single interest group to the detriment of all others.

Of course I understand the desire of users of the TMCH to protect their rights against infringements but the proposed measures must end exactly at the point where they begin to infringe upon the legitimate rights rights of others. Of course, there is nothing to prevent any registry from implementing any of these demands voluntarily, but as policy, I heartily disagree with both the process and format in which these proposals have been suggested and discussed as well - to a large degree - their content.

Like I indicated above, this is a topic that needs to be discussed on our level and given the limited time on our schedules during the monthly council calls and the urgency of the matter, I would like to kick off the discussion with this paper.

Best regards,

Volker Greimann

<<< Chronological Index >>>    <<< Thread Index >>>