[bc-gnso] FW: [gnso-sti] Common Grounds Paper

[Fares, David]

Thanks Mike.  Would your edited version still impose an affirmative obligation on registries to cross-reference the clearinghouse?

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Mike Rodenbaugh
Sent: Thursday, November 05, 2009 4:56 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

Thanks Chris, how about this?

Registry operations for adding new names [DEL should be] ARE OFTEN a highly-automated function [DELETE, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws [DEL should not] MAY NOT ALWAYS  in itself constitute bad faith or systemic infringement.]  However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report.

Mike Rodenbaugh
RODENBAUGH LAW
548 Market Street
San Francisco, CA  94104
(415) 738-8087<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer=http://rodenbaugh.com/contact>
http://rodenbaugh.com<http://rodenbaugh.com/>
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Christopher Martin
Sent: Thursday, November 05, 2009 1:35 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

I don't disagree with either Sarah's or Mike's comments on Steve's proposal.  But in terms of getting something through that will work for all parties down the road, do we want to consider perhaps softening the language a bit?  Perhaps change

Registry operations for adding new names [DEL should be] ARE OFTEN a highly-automated function, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws [DEL should not] MAY NOT ALWAYS  in itself constitute bad faith or systemic infringement.  However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report.

Understand that may still not be close enough to other positions on the committee, so just throwing out ideas.  USCIB does not have an official position on this.

Chris

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Mike Rodenbaugh
Sent: Thursday, November 05, 2009 2:57 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

Hi Steve,

BC members might disagree with most of your first sentence.  Specifically, the BC appears to have reached consensus that registry operators and/or registrars should do lookups against the Clearinghouse database, and provide appropriate notices to all domain registration applicants.  ALAC and other constituencies are of the same view, though some registrars and registries appear to resist.  Those registries and/or registrars that choose to ignore this lookup and notice capability (for whatever reason) ought not be relieved from liability for that choice, and might be considered a bad faith contributor to systemic infringement, if not a direct infringer.

I support your second sentence though!

Thanks,
Mike

Mike Rodenbaugh
RODENBAUGH LAW
548 Market Street
San Francisco, CA  94104
(415) 738-8087<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer=http://rodenbaugh.com/contact>
http://rodenbaugh.com<http://rodenbaugh.com/>
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Thursday, November 05, 2009 11:25 AM
To: Zahid Jamil; 'bc - GNSO list'
Subject: Re: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

Thank-you, Zahid, for your exhaustive efforts on the rights protection mechanisms.

As you requested, here's one comment on the draft BC position on Post Delegation Dispute Mechanism (PDDM):

Twice in your draft you express concern about Registry Operators turning a "blind eye" to infringements.  I'm a fan of clever phrases such as "turn a blind eye", but in this case I think the rhetoric may go too far.

One of my registry members reminded me in Seoul that registry operations are highly automated processes.  There is no human "eye" looking at registration Add records as they come in from registrars.  Accordingly, I suggest replacing the two "blind eye" concerns in the BC comments with this statement:
Registry operations for adding new names should be a highly-automated function, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws should not in itself constitute bad faith or systemic infringement.  However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report.


Again, thanks for working this on our behalf.

--
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org
+1.202.420.7482


On 11/4/09 12:37 PM, "Zahid Jamil" <zahid at dndrc.com> wrote:

Would like to ask members that if there are any comments on the draft BC position on RPMs that was sent out earlier?  If I don't hear anything on whether there will be comments and that I should hold sending this out to the GNSO, I will send it out by tomorrow to both the GNSO and the STI.




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