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If that were so, there would be less of a problem, but it is not so,
in my opinion:<br>
<br>
-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?<br>
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. <br>
<br>
-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?<br>
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.<br>
<br>
These are just the easiest examples of why the Strawman and the
attached LPR proposal will, in my opinion create new protections.<br>
<br>
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. <br>
<br>
The extension of claims to non-exact matches was previously rejected
by the Special Trademark Issues Review Team, i.e. a GNSO created
team.<br>
<br>
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. <br>
<br>
These proposals create a new fence to protect trademark holders from
legitimate and illegitimate registrations of their marks alike. <br>
<br>
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.<br>
<br>
Volker<br>
<br>
<br>
<blockquote
cite="mid:20130213145308.a9a203d782c20324abd21efa41e2a5a6.fedbe99323.mailapi@email14.secureserver.net"
type="cite">
<div><br>
</div>
<div>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.</div>
<div><br>
</div>
<div>Cheers,</div>
<div><br>
</div>
<div>Berard<br>
</div>
<div><br>
</div>
<blockquote class="threadBlockQuote" style="border-left: 2px solid
#C2C2C2;padding-left:3px;margin-left: 4px;"
data-mce-style="border-left: 2px solid #C2C2C2; padding-left:
3px; margin-left: 4px;">--------- Original Message ---------
<div>Subject: Re: [council] Current draft of Fadi's requested
communication from council<br>
From: Volker Greimann - Key-Systems GmbHz
<a class="moz-txt-link-rfc2396E" href="mailto:vgreimann@key-Systems.net"><vgreimann@key-Systems.net></a><br>
Date: 2/12/13 4:25 pm<br>
To: <a class="moz-txt-link-rfc2396E" href="mailto:john@crediblecontext.com">"john@crediblecontext.com"</a>
<a class="moz-txt-link-rfc2396E" href="mailto:john@crediblecontext.com"><john@crediblecontext.com></a><br>
Cc: "Mason Cole" <a class="moz-txt-link-rfc2396E" href="mailto:mcole@5x5com.com"><mcole@5x5com.com></a>,
<a class="moz-txt-link-rfc2396E" href="mailto:council@gnso.icann.orgList">"council@gnso.icann.org List"</a> <a class="moz-txt-link-rfc2396E" href="mailto:council@gnso.icann.org"><council@gnso.icann.org></a><br>
<br>
<div>I think Fadi has made it very clear during the meeting in
Amsterdam that he has now understood the BC and IPC requests
that led to the strawman as a second bite of the apple, as
he called it. The proposed contents of the strawman would
certainly constitute an expansion of the rights of a
trademark holder in the domain world. I therefore support
sending the draft letter as is.<br>
<br>
Sent from my iPad</div>
<div><br>
On 13.02.2013, at 01:11, <a moz-do-not-send="true"
href="mailto:john@crediblecontext.com"
data-mce-href="mailto:john@crediblecontext.com">john@crediblecontext.com</a>
wrote:<br>
<br>
</div>
<blockquote>
<div>
<div>Mason,</div>
<div><br>
</div>
<div>Did I not suggest the "expansion of rights" language
is a bit over the top?</div>
<div><br>
</div>
<div>Berard<br>
</div>
<div><br>
</div>
<blockquote class="threadBlockQuote" style="border-left:
2px solid #C2C2C2;padding-left:3px;margin-left: 4px;"
data-mce-style="border-left: 2px solid #C2C2C2;
padding-left: 3px; margin-left: 4px;">--------- Original
Message ---------
<div>Subject: [council] Current draft of Fadi's
requested communication from council<br>
From: Mason Cole <<a moz-do-not-send="true"
href="mailto:mcole@5x5com.com"
data-mce-href="mailto:mcole@5x5com.com">mcole@5x5com.com</a>><br>
Date: 2/12/13 3:00 pm<br>
To: "<a moz-do-not-send="true"
href="mailto:council@gnso.icann.org"
data-mce-href="mailto:council@gnso.icann.org">council@gnso.icann.org</a>
List" <<a moz-do-not-send="true"
href="mailto:council@gnso.icann.org"
data-mce-href="mailto:council@gnso.icann.org">council@gnso.icann.org</a>><br>
<br>
Council colleagues --<br>
<br>
As you know, Fadi requested of the council its input
regarding the strawman proposal resulting from the
BC's and IPC's request for additional RPMs in new
gTLDs. On December 27, I circulated an early draft of
a council reply.<br>
<br>
The communication is due very shortly, and has been
taken up by a small group within the council to ensure
that all points of view are represented. Because this
is an agenda item for our meeting this week, at Maria
Farrell's helpful suggestion, I'm sending the current
draft to council so we can be prepared to discuss it
then. This draft does not reflect additional input of
the BC and IPC -- if this is provided prior to the
meeting, I'll be happy to forward it to the council.<br>
<br>
Thanks --<br>
<br>
Mason<br>
<br>
<br>
<br>
</div>
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