[bc-gnso] DRAFT BC Public Comments on DAGv4
Jon Nevett
jon at nevett.net
Mon Jul 19 01:39:38 UTC 2010
Folks:
Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed.
Here are some of the highlights:
*I deleted the GPML section.
*I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC?
*Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise.
*Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter.
*I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters.
*I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position.
*I didn't do much on the Market Differentiation section either other than soften some of the language.
I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance.
Thanks.
Jon
On Jul 18, 2010, at 8:22 PM, Zahid Jamil wrote:
> Agree absolutely with Sarah’s comments.
>
> Sincerely,
>
>
> Zahid Jamil
> Barrister-at-law
> Jamil & Jamil
> Barristers-at-law
> 219-221 Central Hotel Annexe
> Merewether Road, Karachi. Pakistan
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>
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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
>
>
>
> 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> 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
>
>
>
>
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