Re: [council] Current draft of Fadi's requested communication from council
If that were so, there would be less of a problem, but it is not so, in my opinion: -Does a trademark allow its owner to prevent the use of the mark by third parties in other classes, or if the mark is their name, etc, etc? I think not. There are reasons why trademarks are limited to classes and regions and why legitimate use of the same trademarked term cannot be prohibited. Yet LPR would do just that. If any legitimate potential registrant missed the sunrise period or decided to wait for a cheaper registration period, LPR would block even legitimate registrations. -Does a trademark require otherwise unrelated third parties to implement and build and maintain a system at their own costs that is solely used to inform others of a potential legal conflict, confuse customers with information potentially irrelevant to their planned use and that generally interferes with the customary flow of business by scaring away or confusing potential legitimate customers and delaying orders or inquiries? I think not. Yet Claims II does just that to registrants, registrars and registries. I am not aware of any other industry that at their own cost had to create a warning system to inform third parties of potential trademark abuse. These are just the easiest examples of why the Strawman and the attached LPR proposal will, in my opinion create new protections. The claims process in itself is a new right for trademark holders not previously granted by trademark law, so any extension of the time period carefully considered and agreed upon by the community expands the reach of this new right for trademark holders. These proposals have been on the table before in some form or other and have been rejected by the community. Fadi Chehade’s has stated himself in his letter to the U.S. Congress that the 60 days period should not be extended unilaterally by ICANN, yet this is what is proposed now. The extension of claims to non-exact matches was previously rejected by the Special Trademark Issues Review Team, i.e. a GNSO created team. If Trademark law provided the level of protection to automatically include non-exact matches in the manner proposed in the strawman, lawmakers would have implemented such a list. Yet none did. While the trademark protection can be extended to additional near match strings, it is the duty of the courts to decide this. And just because a certain string has been used in an infringing manner, that does not mean that there are not also non-infringing manners in which the same string may legitimately be used. These proposals create a new fence to protect trademark holders from legitimate and illegitimate registrations of their marks alike. Solely the 30 day notice period does not create any new rights specific to trademark holders. The rest is a matter for a PDP, not for a closed door, no outside communication allowed session. ICANN should not deviate from the multi-stakeholder principle. If any outcome of our policy development and consensus building processes is subject to unilateral revision once a small part of the community is no longer sufficiently happy with the consensus results, the multi-stakeholder model is dead. Volker I will not argue with your metaphor -- I am quite fond of apples. But I do quibble with you saying the strawman is "an expansion of the rights of a trademark holder in the domain world." Trademark rights exist (not always consistently) in all earthly realms. The strawman is not seeking to create new ones, merely to create a method by which those that already exist can be enforced.
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