[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Greg Shatan gregshatanipc at gmail.com
Fri Apr 7 15:42:34 UTC 2017


Good points from Georges and I think they tie in with my earlier email as
well.  Another important point is that trademarks are a form of speech as
well.  So, the idea that there is a divide between trademarks and speech,
and that trademarks are on one side of the line and speech is on the other
is a false dichotomy.

Greg


*Greg Shatan *C: 917-816-6428
S: gsshatan
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On Fri, Apr 7, 2017 at 7:55 AM, Nahitchevansky, Georges <
ghn at kilpatricktownsend.com> wrote:

> Michael:
>
> U.S. Law does not protect domain names in and of themselves as free
> speech. Rather, the notion of free speech as applied to domain names
> concerns ‎ the communicative aspect of the domain name at issue and the use
> of the domain name. A domain name such as BRANDsucks.com has a
> communicative aspect that could enjoy protection under the first amendment,
> but if the domain name is being used by a competitor to promote and sell
> its own products, then that would probably take it out of the scope of free
> speech under the  first amendment Similarly, if one registers
> BRANDLovesJesus.com and uses it for a website concerning abortion rights
> (the 8th Circuit Purdy case) , that would not be protected free speech if
> the brand had never commented on abortion rights (e.g., you cannot use a
> domain name to ascribe speech to someone who never made speech in that
> regard). The bottom line, is that first amendment protection under US law‎
> for domain name registrations is contextual and not just based on the name
> itself.
>
>   Original Message
>> From: Michael Karanicolas‎
> Sent: Thursday, April 6, 2017 11:00 PM
> To: Michael Graham (ELCA)
> Cc: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working
> Group call held earlier today
>
>
> It's an interesting question. Different national courts have handled
> the issue in different ways. In the US, for example, the Fifth Circuit
> Court of Appeals found in Gibson v. Texas that domain names are
> protected as speech under the 1st amendment. But freedom of expression
> in the US context tends to be understood differently than elsewhere,
> since the way it's protected under the US constitution is a bit
> different from how most constitutions frame their equivalent
> protections.
>
> That said - when you're asking about Article 19, the discussion comes
> at the international level where, as far as I know, there's no single
> authoritative treatment to point to. Generally, discussions of Article
> 19 by standard setting bodies tend to focus on the sharper and more
> controversial issues: hate speech, defamation, national security
> restrictions, etc.
>
> However - there's a clear and well developed test for restrictions on
> freedom of expression that's built right into the ICCPR, and which
> applies equally to all restrictions, namely that they should be: (1)
> provided by Law (which includes a requirement for clarity and
> transparency), (2) fulfill a legitimate purpose, and (3) be necessary
> and proportionate to the achievement of that goal. If we establish
> that domain names qualify as speech under Article 19 (which, according
> to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v.
> Canada, is a fairly sure interpretation), then understanding the
> applicability of Article 19 just means understanding that three part
> test.
>
> If you want more info, I'd recommend this briefing note as a useful
> (and concise!) introduction to restrictions on freedom of expression
> under Article 19:
> http://www.law-democracy.org/live/wp-content/uploads/2015/
> 02/foe-briefingnotes-2.pdf
>
> Or if you want to go into a little more depth, you can check out this
> one: http://www.law-democracy.org/live/wp-content/uploads/2012/
> 08/Paper-on-Restrictions.10.03.22.rev_.pdf
>
> Unfortunately - neither is specifically about domain names, but the
> discussion is basically analogous to how we understand other kinds of
> restrictions and protections.
>
> On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA)
> <migraham at expedia.com> wrote:
> > Michael:
> >
> > Where can I find a discussion how Article 19 and similar "Freedom of
> Expression" requirements relate to or impact the registration of domain
> names?
> >
> >
> > Michael R.
> >
> > Article 19.
> >  Everyone has the right to freedom of opinion and expression; this right
> includes freedom to hold opinions without interference and to seek, receive
> and impart information and ideas through any media and regardless of
> frontiers.
> >
> > -----Original Message-----
> > From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces@
> icann.org] On Behalf Of Michael Karanicolas
> > Sent: Thursday, April 06, 2017 5:53 AM
> > To: J. Scott Evans <jsevans at adobe.com>
> > Cc: gnso-rpm-wg at icann.org
> > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the
> Working Group call held earlier today
> >
> > Once again - I have to jump in. Freedom of expression is very much a
> universal concept:
> >
> > http://www.un.org/en/universal-declaration-human-rights/
> > http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
> >
> > That's why we call them "human" rights. Not "American" rights.
> >
> >
> > On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg <
> gnso-rpm-wg at icann.org> wrote:
> >> The law is clear: an exact match isn't free speech. It is trademark
> infringement. A domain that coveys a message (e.g., hotels suck.com) is
> free speech and protected accordingly. Also, "free speech" is a US
> constitutional concept adopted by some countries, but it is not a universal
> legal concept. Perhaps universal free speech is aspirational, but it is not
> reality.
> >>
> >> Sent from my iPhone
> >>
> >>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann at leap.com> wrote:
> >>>
> >>> I'm not sure where J. Scott is getting his "facts", but my company
> >>> doesn't "arbitrage" nor has it registered *any* new gTLD domain names
> >>> (and I have no desire for any), nor is it a "bad actor." If you have
> >>> proof that my company is a "bad actor", put it forward, rather than
> >>> sling unsupported innuendo.
> >>>
> >>> The whole point is that the "barriers" are put forth as *required* to
> >>> deal with so-called "bad actors", but are instead used to advantage
> >>> certain groups, far beyond the "damage" that is claimed to be caused
> >>> by the "bad actors."
> >>>
> >>> I don't want to delve into politics, but some might see parallels to
> >>> certain government measures in some countries, where a "problem" is
> >>> claimed, but a Draconian solution is applied to deal with it.
> >>>
> >>> When it comes to the sunrise periods for new gTLDs, the "problem" is
> >>> claimed to be cybersquatting, but instead of relying on curative
> >>> rights, the Sunrise policy went too far and gave too many advantages
> >>> to TM holders, essentially creating an unlevel playing field between
> >>> *good actors* and TM holders.
> >>>
> >>> Free speech means *no prior restraints* (with very rare exceptions),
> >>> but harsh penalties for unlawful speech (curative rights).
> >>>
> >>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.
> >>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C811dc6e8437
> >>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C63
> >>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g%2FOWfC
> >>> H7s%3D&reserved=0
> >>>
> >>> Sincerely,
> >>>
> >>> George Kirikos
> >>> 416-588-0269
> >>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.l
> >>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d30%7Cfa7b1
> >>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sdata=6BJPNx
> >>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0
> >>>
> >>>
> >>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans <jsevans at adobe.com>
> wrote:
> >>>> The same logic applies to you and other domaines, cybersquatters,
> speculators and small businesses. The fact that you want to arbitrage in
> terms that are also trademarks is your choice and you have to deal with the
> barriers put in place to deal with the bad actors.
> >>>>
> >>>> Sent from my iPhone
> >>>>
> >>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann at leap.com> wrote:
> >>>>>
> >>>>> Hi folks,
> >>>>>
> >>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian <
> brian.beckham at wipo.int> wrote:
> >>>>>> Finally, since the chart references the EFF letter, it is worth
> >>>>>> mentioning here that the fact that a trademark owner may pay
> >>>>>> (sometimes extremely high
> >>>>>> amounts) to defensively register a domain name exactly matching
> >>>>>> its trademark in a Sunrise process (and thereby taking it “off the
> >>>>>> market”) does not prevent free expression, which may be undertaken
> >>>>>> in countless other ways.  The number of terms that may be appended
> >>>>>> to a trademark (not to mention typos) to engage in all manner of
> >>>>>> speech – fair or otherwise – is, practically-speaking, all but
> limitless.
> >>>>>
> >>>>> By that "logic", the number of terms that may be appended to a
> >>>>> common dictionary word (not to mention typos) to create a
> >>>>> trademarkable brand is, practically-speaking, all but limitless.
> >>>>> :-)
> >>>>>
> >>>>> In other words, those creating a new brand/trademark certainly had
> >>>>> the opportunity to create a longer (and thus inferior) alternative
> >>>>> to a commonly used dictionary word or other common term. The fact
> >>>>> that they decided instead to choose a common term that is widely
> >>>>> used by the public shouldn't give them any priority access in a
> >>>>> launch of a new gTLD.
> >>>>>
> >>>>> "I created a problem for myself, and I want ICANN to fix it" is the
> >>>>> essence of the sunrise argument for commonly used terms, like
> >>>>> dictionary words and short acronyms.
> >>>>>
> >>>>> Sincerely,
> >>>>>
> >>>>> George Kirikos
> >>>>> 416-588-0269
> >>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww
> >>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46e63%7Cf
> >>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418&sdata=
> >>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0
> >>>>> _______________________________________________
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