[bc-gnso] DRAFT BC Public Comments on DAGv4

Sun Jul 18 17:41:13 UTC 2010

I'm not opposed to polling members on this issue.  I can understand that
many of Phil's members who are in the domain name business may see
business opportunities from the introduction of new gTLDs.  They and
others who expressed concern do not own a well known brand or have
widespread trademark infringement problems.  Those who object have
different business interests and protecting corporate brands and
consumers in the new gTLD spaces is not on their list of priorities.  I
respect that.

However, ICANN designated trademark protection as one of the overarching
issues surrounding the rollout and pledged that these issues would be
adequately addressed in the DAG.  I'm not aware of any major brand
owners, including the IPC members participating on the IRT, who are
happy with the diluted trademark protections currently contained in DAG
4.  I would hope even members without trademark concerns, should respect
the interests of BC members who have such concerns and allow them to
express those.  Our BC GNSO councilors have consistently advocated for
these protections on our behalf.  The BC already submitted consistent
comments in the past, including on DAG 3. Ron tried to keep much of the
DAG 4 comments identical to the language to the DAG 3 draft.  I'm sure
Ron is open to receiving additional constructive edits on tone and
substance (e.g., Mike R's helpful suggestion to delete reference to the
GPML since that appears to be dead in the water).

I'm hopeful that we can find a consructive way to move forward given the
importance of this issue to so many BC members.  We've heard from those
raising concerns, but we've also heard from AT&T, News Corp, Mike
Rodenbaugh, NetChoice, Verizon and RNA Partners weighing in supporting
the comments.  I would urge others to weigh in on this as well.

Sarah

Sarah B. Deutsch 
Vice President & Associate General Counsel 
Verizon Communications 
Phone: 703-351-3044 
Fax: 703-351-3670 

________________________________

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf
Of Phil Corwin
Sent: Saturday, July 17, 2010 9:48 PM
To: 'michaelc at traveler.com'; 'mike at haven2.com'
Cc: 'jb7454 at att.com'; 'randruff at rnapartners.com';
'ffelman at markmonitor.com'; 'bc-GNSO at icann.org'
Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Given the diversity of opinion within the BC, as well as the fact that
other members appear to have broader concerns than those I raised, I
would again suggest that a poll should be taken of BC members to take
the Constituency's temperature and determine if there is any consensus
for the proposed position statement. 
Philip S. Corwin 
Partner, Butera & Andrews 
1301 Pennsylvania Ave., NW 
Suite 500 
Washington, DC 20004 
2026635347/Office 
2022556172/Cell 

"Luck is the residue of design." -- Branch Rickey 

From: Michael Castello [mailto:michaelc at traveler.com] 
Sent: Saturday, July 17, 2010 07:04 PM
To: Mike O'Connor <mike at haven2.com> 
Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454 at att.com>; Ron Andruff
<randruff at rnapartners.com>; frederick felman <ffelman at markmonitor.com>;
bc-GNSO at icann.org <bc-GNSO at icann.org> 
Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 

I agree with both Phil and Mikey. There was certainly a lot of freedom
early on with the internet and closing ranks on the concerns of
trademark holders and new entities were, over time, clearly needed. The
name space was allowed to flourish because it was so available to
everyone. We need to make sure that these regulations, while needed, do
not become too cumbersome to new participants. Everyone needs to be
invited to the party.  

Michael Castello

CEO/President

Castello Cities Internet Network, Inc.

http://www.ccin.com

michael at ccin.com

--

Saturday, July 17, 2010, 5:39:34 AM, you wrote:

	i am in Phil's camp on this.  several years ago i started
referring to myself as "a member of the business wing of the Business
Constituency" just to make it clear that i'm not keen on our strident
views with regard to rights protections and cyber-security.  

of course cyber-crime is important, but folks like Bruce Schneier make
an extremely compelling case that there needs to be a culture of
security in which all participants are active and aware rather than
creating a culture of passive consumers being "protected" by
ever-increasingly intrusive "authorities" like governments and ICANN.  

of course trademark violations are unacceptable -- but to make this our
signature issue, to take our position beyond even those of the IPC, and
leaving *small* business owners defenseless in the face of large
corporate brand-owners, leaves me continuing to feel disenfranchised
(much the way i feel disenfranchised by the extreme politics in my
country -- where the heck do moderates hang out??). 

i would love to see the BC develop a positive message (based on positive
positions) that truly reflect the needs of businesses large and small
rather than recycling these views from our reactionary past.  

i would also love to get out of the continuing role of being an
apologist for our somewhat quirky positions.  haarrrumph!  :-)

so, just to be on record, i do not support these comments on DAGv4.

sorry about the rant.  thanks for taking the time to craft these notes
Phil,

mikey

On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:

Ron (and other BC members who contacted me to ask that I provide
alternative URS language):

I appreciate the request, as I appreciate the hard work put in by Ron
and Sarah on the draft.

That said, a few word changes will not suffice to alter ICA's dissent,
as we have an entirely different perspective. We represent individuals
and companies with substantial investments in domain portfolios. They
view domains in the same way that most of you (and we) view trademarks
-- as an intangible asset with substantial value. When a trademark
rights protection is proposed it might be useful to ask whether you
would be willing to have one of your trademarks suspended, or forfeited,
on the basis of what is on the table. If not, then don't expect
registrants to embrace it. In no way do we condone trademark
infringement, but proposed responses to it need to assure basic due
process.

If a majority wills it then the BC is within its rights to proffer a
reworking of the same positions it has articulated on prior occasions,
and it should expect essentially the same results -- especially after BC
members participated in an STI process that reworked the
IRTrecommendations, and the STI's work was embraced by the GNSO and
approved by the Board. If ICANN staff have significantly altered the
STI's consensus recommendations then that certainly should be raised,
but otherwise the rights protections for new gTLDs have been pretty much
baked into the DAG. Does anyone really think they will be reopened in
any significant way?

As regards the specifics of the URS provision, we cannot agree that the
URS should have the same substantive standard as the UDRP. The URS was
proposed by the IRT as reserved for "obvious", "no brainer" rights
disputes, and was originally proposed with a higher evidentiary standard
to distinguish URS cases from UDRPs. We don't think the BC's credibility
on trademark matters is enhanced when it consistently articulates a
harder line than that of the IPC, which conceived of and oversaw the
IRT. As for urging that the URS lead to a domain transfer and not just a
suspension -- again, this goes beyond the IRT recommendation and would
likewise blur the distinction between the URS and UDRP.

Finally, we find the discussion of the "impact" test for a finding of
RDNH in the URS to be confusing -- but we do believe that if a
complainant advances deliberate falsehoods with the intent of having a
favorable impact on its complaint then it is clearly guilty of
attempting to abuse the available system.

Beyond the URS, our only other comment on the rights protection language
is to note our strong questioning of a TM Clearinghouse regime in which
an "identical match" is defined as "typographical variations". Identical
means identical, not variations. Variations to what degree? Having a
trademark in one word doesn't provide a right to fire warning shots at
tens of thousands of possible variants of that word, multiple degrees of
separation away from it. If you're going to propose that variations be
encompassed then it really is incumbent to articulate some defining
limits on that notion - "we know it when we see it" is really not
adequate assurance for registrants. And, of course, these issues become
even more problematic for dictionary words that are trademarked for
various purposes. Please let's remember that in most instances
infringement can't just be determined by the name of a domain but
requires a look at how it is being used.

Finally, to note an area of agreement -- we share the concern that ICANN
devotes inadequate resources to compliance, and indeed in Brussels we
suggested publicly that it earmark a meaningful portion of revenues from
new gTLD applications to that end.

Summing up, we would have to oppose the URS regime that the majority of
the BC seems to favor as providing inadequate assurance of due process
to registrants, and we think the overall position on rights protection
is backwards looking given that the STI train has left the station.
Again, this does not mean we are unsympathetic to the concerns of rights
holders. Throughout the past 18 months we have advocated comprehensive
UDRP reform that would address the concerns of all parties across the
entire gTLD space, and we continue to believe that a good faith
collaboration could produce positive changes that could be put in place
in tandem with the opening of new gTLDs.

Regards to all,

Philip

Philip S. Corwin 

Partner 

Butera & Andrews 

1301 Pennsylvania Ave., NW 

Suite 500 

Washington, DC 20004

202-347-6875 (office) 

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

________________________________

From: owner-bc-gnso at icann.org [owner-bc-gnso at icann.org] on behalf of
BRUEGGEMAN, JEFF (ATTSI) [jb7454 at att.com]

Sent: Friday, July 16, 2010 3:36 PM

To: Ron Andruff; frederick felman; bc-GNSO at icann.org

Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks Ron and Sarah.  AT&T supports filing comments and I like how
you've updated them.  While I was not involved in the original BC
comments, I would note that you could add a reference to the
recommendation in the Economic Study that it may be wise for ICANC to
continue its practice of introducing new gTLDs in discrete, limited
rounds. 

Jeff Brueggeman

AT&T Public Policy

(202) 457-2064

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf
Of Ron Andruff

Sent: Friday, July 16, 2010 12:34 PM

To: 'frederick felman'; bc-GNSO at icann.org

Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks to Mark Monitor and AIM for your notes of support for the
circulated draft.

I encourage other members to give the doc a quick read.  While it is
several pages long, please note that it is the same document we
submitted for DAGv3 so what we are asking is for you to review the
redlines and give your comments/amendments.   To that end, Phil Corwin,
can you send your suggested URS text asap?

Thanks again everyone for taking a moment to review the DAGv4 draft
comments.

RA

Ronald N. Andruff

President

RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11

________________________________

From: frederick felman [mailto:ffelman at markmonitor.com] 

Sent: Friday, July 16, 2010 12:21 PM

To: Ron Andruff; bc-GNSO at icann.org

Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4

Importance: High

MarkMonitor support the BC comments to DAGv4.

On 7/15/10 7:20 AM, "Ron Andruff" <randruff at rnapartners.com
<https://exchange.sierracorporation.com/owa/UrlBlockedError.aspx> >
wrote:

Dear Members,

Further to my reminder earlier this week regarding the need for a BC
public comment on DAGv4, Sarah Deutsch and I have developed a draft for
member review and comment.  Effectively, we have taken the BC's DAGv3
comments and added/amended based on (1) staff having largely ignored our
comments in DAGv2 and v3; and (2) utilized subsequent information that
has come available in the interim (e.g., the latest economic study).
FYI, Sarah drafted the RPM material and I took responsibility for the
other elements.

We ask that members review and comment on the document at your earliest
convenience, so that we can meet the submission deadline of Wednesday,
July 21st.  Sorry for the late posting, but unfortunately with summer
holidays and all, a few things are slipping between the cracks...

Thanks in advance for your soonest input.  

Kind regards,

RA

Ronald N. Andruff

President

RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11

- - - - - - - - -

phone  651-647-6109  

fax    866-280-2356  

web  http://www.haven2.com

handle OConnorStP (ID for public places like Twitter, Facebook, Google,
etc.)

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