[gnso-rpm-wg] "free speech"

Paul Keating Paul at law.es
Fri Sep 30 12:45:02 UTC 2016


Paul M,

I am not suggesting that we have reached any conclusions at all regarding
the post-notice-non-registration.  For all I know they may all have been
appropriateŠ..or not.  That is our work.  And, It is not intended as
criticism of the notice itself.  I would like to see what kinds of domains
were at issue to see if (a) this is a problem at all, and (b) if it is, is
it one we can realistically correct.

I also understand about the pricing matter as a separate issue.  However, I
remain firmly of the belief previously stated.  That said I remain happy to
discuss it provided we can obtain evidence supporting the contentions.

From:  Paul McGrady <policy at paulmcgrady.com>
Date:  Friday, September 30, 2016 at 2:26 PM
To:  Paul Keating <paul at law.es>, 'Jeff Neuman' <jeff.neuman at comlaude.com>
Cc:  <gnso-rpm-wg at icann.org>
Subject:  RE: [gnso-rpm-wg] "free speech"

> Hi Paul K.,
>  
> Assuming we are able to develop a data set (and it¹s a big assumption)
> indicating the a significant fraction of would-be registrants decided not to
> proceed with a registration even though they would not have run afoul of
> trademark rights (not sure how we could ever reach this conclusion since there
> was no survey on good faith/bad faith mindset at the time they decided not
> proceed), there still remains to prior restraint on speech.  Each of those
> hypothetical good faith non-registrants could have proceeded.
>  
> As I said on the call, as a co-author of the Claims Notice I am very happy if
> it can be improved in any way to make the balance that Kathy and I were
> seeking to be more easily understood by the end user.  However, I don¹t think
> we need to  read more into unavailable data sets than we should to reach the
> conclusion that we want to fiddle with the language nor do we need to reargue
> the delicate balance between freedom of expression on one side and the
> protection of consumers on the other.  To the extent that WG participants
> believe that the balance reached is fatally flawed, may I humbly suggest that
> there is an outlet for that over in WS2 on Human Rights.
>  
> Best,
> Paul M.
>  
>  
>  
> 
> From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On
> Behalf Of Paul Keating
> Sent: Friday, September 30, 2016 5:54 AM
> To: Jeff Neuman <jeff.neuman at comlaude.com>
> Cc: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] "free speech"
>  
> 
> Jeffrey
> 
>  
> 
> I agree.  But I thought the free speech rights were raised in the context of
> the evidence showing the huge number of post-notification-non-registrations.
> That number raised the question to determine if the notification process
> and/or the notice was improperly discouraging registrations.
> 
>  
> 
> As I see it the remit is to investigate and correct all potential errors
> adversely impacting all interested parties and not simply those which may
> adversely impact trademark holders.
> 
>  
> 
> Am I mistaken?
> 
> Sincerely,
> 
> Paul Keating, Esq.
> 
> 
> On Sep 30, 2016, at 12:35 PM, Jeff Neuman <jeff.neuman at comlaude.com> wrote:
>> 
>> 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 don¹t 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: jeff.neuman at valideus.com <mailto:jeff.neuman at valideus.com>  or
>> jeff.neuman at comlaude.com <mailto: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] On
>> Behalf Of Reg Levy
>> Sent: Thursday, September 29, 2016 5:43 PM
>> To: Paul Keating <Paul at law.es>
>> Cc: 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. ³Apple²
>> in all TLDs needn¹t 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 I¹m 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> wrote:
>>>  
>>> 
>>> The term ³free speech² 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. Scott¹s comment to mean ³speech is not
>>> protected² would be a misrepresentation of the situation.
>>> 
>>>  
>>> 
>>> Aside from ³free speech² 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> on behalf of Rebecca Tushnet
>>> <rlt26 at law.georgetown.edu>
>>> Date: Thursday, September 29, 2016 at 5:31 PM
>>> To: Paul McGrady <policy at paulmcgrady.com>
>>> Cc: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
>>> Subject: Re: [gnso-rpm-wg] "free speech"
>>> 
>>>  
>>>> 
>>>> That was the misstatement.  ³Most nations don¹t have a US-style First
>>>> Amendment² 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
>>>> 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 ³very
>>>> few jurisdictions in the world have free speech.²  I didn¹t see anyone who
>>>> said ³Most nations don¹t have a US-style First Amendment.²  In fact, I
>>>> didn¹t see a single reference to the First Amendment in the transcript.
>>>> 
>>>>  
>>>> 
>>>> Regards,
>>>> 
>>>> Paul
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>> Paul D. McGrady, Jr.
>>>> 
>>>> policy at paulmcgrady.com
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>> From: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
>>>> Subject: [gnso-rpm-wg] "free speech"
>>>> 
>>>>  
>>>> 
>>>> Just to correct a misstatement on the call earlier:  Most nations don¹t
>>>> 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 doesn¹t 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 don¹t 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 don¹t recognize any freedom
>>>> of speech at all.
>>>> 
>>>>  
>>>> 
>>>> Also, you can¹t 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 can¹t 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 we¹ve 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
>>>> wouldn¹t infringe).
>>>> 
>>>>  
>>>> 
>>>> Rebecca Tushnet
>>>> 
>>>> Georgetown Law
>>>> 
>>>> 703 593 6759
>>>>> 
>>>>>  
>>>> _______________________________________________ gnso-rpm-wg mailing list
>>>> gnso-rpm-wg at icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>  


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-rpm-wg/attachments/20160930/c07070a0/attachment-0001.html>


More information about the gnso-rpm-wg mailing list