[bc-gnso] DRAFT BC Public Comments on DAGv4

Zahid Jamil zahid at dndrc.com
Mon Jul 19 00:22:41 UTC 2010

Agree absolutely with Sarah's comments. 





Zahid Jamil


Jamil & Jamil


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From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Deutsch, Sarah B
Sent: 18 July 2010 13:41
To: Phil Corwin; 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


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 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 

"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


Castello Cities Internet Network, Inc.


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,






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


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 S. Corwin 


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


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




Ronald N. Andruff


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> 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,




Ronald N. Andruff



RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11





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