[gnso-rpm-wg] "free speech"

Paul McGrady policy at paulmcgrady.com
Fri Sep 30 12:19:31 UTC 2016


+1  

 

From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org]
On Behalf Of Jeff Neuman
Sent: Friday, September 30, 2016 5:35 AM
To: Reg Levy <reg at mmx.co>; Paul Keating <Paul at law.es>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] "free speech"

 

I must admit that I am also confused about our discussions on this list
about free speech.  I still believe the general rule should be that our job
is to address actual problems that have arisen for which there is evidence
of such a problem.  So, if there is evidence that free speech has been
stifled by the new RPMs, lets have that evidence pushed forward.  But if
there are just philosophical or hypothetical arguments, I am confused as to
why we are having them.

My fear is that some may be taking this opportunity to re-argue the entire
trademark protection mechanisms that we all negotiated in 2009-2012 (and
beyond).  I don't believe that is in our remit.

 

Thanks.

 

Jeffrey J. Neuman

Senior Vice President |Valideus USA | Com Laude USA

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E:  <mailto:jeff.neuman at valideus.com> jeff.neuman at valideus.com or
<mailto:jeff.neuman at comlaude.com> jeff.neuman at comlaude.com 

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

 

 

From: gnso-rpm-wg-bounces at icann.org <mailto:gnso-rpm-wg-bounces at icann.org>
[mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Reg Levy
Sent: Thursday, September 29, 2016 5:43 PM
To: Paul Keating <Paul at law.es <mailto:Paul at law.es> >
Cc: gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> 
Subject: Re: [gnso-rpm-wg] "free speech"

 

J. Scott said,

 

Trademark owners should not overreach, true. However, the terms you cite
deserve no greater scrutiny than any other dictionary term. The TMCH has
been around for approximately 18 months and I have seen no reporting that
the marks registered in the TMCH have severely hobbled free expression.

 

And I agree. The challenge is coming up with a solution that neither allows
trademark owners to be taken advantage of nor encourages overreach. "Apple"
in all TLDs needn't be reserved or treated specially, but the TMCH does
allow a trademark owner to buy it first. There are some instances where
(police.london was a much-touted one) a trademark in conjunction with the
TLD means something different enough that it would make no sense to allow
the trademark owner first rights. Those are a case-by-case issue.

 

Are we:

1.	looking to modify and/or validate the TMCH?
2.	looking to supplement the TMCH with additional protection for
trademark rights?
3.	expand the TMCH to include non-trademark rights?

 

We are having a very interesting and far-ranging conversation about free
speech and the like, but I'm not clear on the focus that we should be
maintaining.

 

Thanks,

Reg

 

 

Reg Levy
VP Compliance + Policy | Minds + Machines Group Limited
C: +1-310-963-7135
S: RegLevy2

Current UTC offset: -7

 

On 29 Sep 2016, at 08:46, Paul Keating <Paul at law.es <mailto:Paul at law.es> >
wrote:

 

The term "free speech" itself is a false deity.  It is all about the
protections afforded to speech.  While some jurisdictions may go further
than others I think taking J. Scott's comment to mean "speech is not
protected" would be a misrepresentation of the situation.

 

Aside from "free speech" there is the closely related concept of fair use.

 

And, finally, of course, trademark protection is limited in scope.  It does
not act to preclude use of the identical indicator for unrelated
goods/services or for purposes which are generic (meaning the thing or its
essence) or descriptive (use in describing the thing).

 

I think it would serve us best to keep in mind the distinctions.

 

Paul Keating

 

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: Thursday, September 29, 2016 at 5:31 PM
To: Paul McGrady <policy at paulmcgrady.com <mailto:policy at paulmcgrady.com> >
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: Re: [gnso-rpm-wg] "free speech"

 

That was the misstatement.  "Most nations don't have a US-style First
Amendment" would have been true.

 

Rebecca Tushnet

Georgetown Law

703 593 6759

 

From: Paul McGrady [mailto:policy at paulmcgrady.com] 
Sent: Thursday, September 29, 2016 11:29 AM
To: Rebecca Tushnet
Cc: gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> 
Subject: RE: [gnso-rpm-wg] "free speech"

 

Hi Rebecca,

 

What was the misstatement you are trying to correct?  The most related
statement that I could find in the Transcript was J. Scott who said "very
few jurisdictions in the world have free speech."  I didn't see anyone who
said "Most nations don't have a US-style First Amendment."  In fact, I
didn't see a single reference to the First Amendment in the transcript.

 

Regards,

Paul

 

 

Paul D. McGrady, Jr.

policy at paulmcgrady.com <mailto:policy at paulmcgrady.com> 

 

 

 

From:gnso-rpm-wg-bounces at icann.org <mailto:gnso-rpm-wg-bounces at icann.org>
[mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Rebecca Tushnet
Sent: Wednesday, September 28, 2016 12:35 PM
Cc: 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>
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/>
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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