[gnso-rpm-wg] "free speech"

J. Scott Evans jsevans at adobe.com
Wed Sep 28 18:19:37 UTC 2016


Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute "truth" on any subject. Second, many countries have almost an exact replica of the US Constitution, but don't recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of "fair use." My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent.  As for the UN's Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories.

J. Scott

J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing |


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From: <gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>> on behalf of Rebecca Tushnet <rlt26 at law.georgetown.edu<mailto:rlt26 at law.georgetown.edu>>
Date: Wednesday, September 28, 2016 at 10:34 AM
Cc: "gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>" <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
Subject: [gnso-rpm-wg] "free speech"

Just to correct a misstatement on the call earlier:  Most nations don't have a US-style First Amendment.  Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies.  As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring.  In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all.

Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech.  It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so.  This is especially so if we've given trademark owners the ability to jump the line in many circumstances.  Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance.  That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe).

Rebecca Tushnet
Georgetown Law
703 593 6759


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