[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Kiran Malancharuvil
Kiran.Malancharuvil at markmonitor.com
Sun Apr 9 17:42:12 UTC 2017
What do you mean by "blocked"?
Kiran Malancharuvil
Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
> On Apr 9, 2017, at 10:08 AM, Rebecca Tushnet <Rebecca.Tushnet at law.georgetown.edu> wrote:
>
> Following up on my post from yesterday, let's make this more specific:
> I see clear free speech issues that can arise from an attempt to
> register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X,
> nyc.x and the like. Those along with forex, hotel, one, london, and
> abc, are the top ten downloads from the TMCH. Of course, as Michael
> K. indicates, we'd know more about how many dictionary terms are being
> blocked if there were more transparency, but what we do know right now
> should be concerning.
> Rebecca Tushnet
> Georgetown Law
> 703 593 6759
>
>
>> On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>> My responses are in-line.
>>
>> G
>> reg
>>
>>
>> On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas at gmail.com>
>> wrote:
>>>
>>> Hi,
>>>
>>> I think that Michael Graham brings up a salient point in terms of falling
>>> too far down the rabbit hole on background matters, but I should address a
>>> few issues in response to questions that were directly asked of me.
>>>
>>> First off, while Greg is correct to point out that the UDHR is not
>>> formally legally binding as a UNGA resolution, it is (quite literally) the
>>> textbook example of customary international law. I realize that can be a
>>> fuzzy concept to rely on, but luckily I don't have to rely on it because the
>>> freedom of expression protections in the UDHR are substantially identical to
>>> those found in the ICCPR, which IS a formally binding treaty.
>>
>>
>> Binding on states. Of course, ICANN is not a state. Luckily, we have the
>> new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which
>> states that one of ICANN's eight Core Values (which must be subject to a
>> balancing analysis involving all Core Values). is "within the scope of its
>> Mission and other Core Values, respecting internationally recognized human
>> rights as required by applicable law." The Bylaw specifically notes that
>> "This Core Value does not create, and shall not be interpreted to create,
>> any obligation on ICANN outside its Mission, or beyond obligations found in
>> applicable law." As such, ICANN's obligations do not go beyond what would
>> otherwise be required by applicable law. There's been a great deal of
>> discussion of this in CCWG-Accountability WS1 and in the Human Rights
>> Subgroup of WS2, so I won't go further into the concepts here, which would
>> be a rabbit hole down a rabbit hole from the viewpoint of this group.
>>>
>>>
>>> Also, while I appreciate Greg's caution against "cherrypicking" by viewing
>>> Article 19 in isolation, in this context that argument is just a
>>> smokescreen.
>>
>>
>> Concerns about cherrypicking are in no way a "smokescreen" -- unless the
>> reference is to the saying "where there's smoke, there's fire." John
>> Levine's blog nicely expressed a number of concerns about such
>> cherrypicking, especially for what he calls the "fashionable human rights,"
>> so I won't repeat them here. It is important to keep in mind, as Michael
>> notes, that "human rights are fundamentally about balance," so perhaps we
>> are not so far apart, as "balance" and "cherrypicking" are mutually
>> exclusive concepts.
>>
>> Of course the UDHR and ICCPR need to be viewed holistically - that
>> understanding in no way supports an argument that domains are not speech.
>>
>> I'm puzzled by the second part of this sentence. I think this point is
>> unrelated to the issue of whether or not domain names are speech, so it
>> neither supports nor negates any argument on that topic.
>>
>> There's no conflict between believing in personal privacy as protected by
>> the ICCPR (as I do), and believing in the need to combat hate speech as
>> spelled out in the ICCPR (as I do), and believing in freedom of expression.
>> Human rights are fundamentally about balance (more on that in a second).
>>
>> There are certainly conflicts (e.g., between combating hate speech and
>> supporting free speech); the issue is how to balance these countervailing
>> issues to resolve these conflicts.
>>>
>>>
>>> With regard to Ballantyne, Davidson & McIntyre, I probably should have
>>> been more specific in my original post. Of course, as Greg notes, the case
>>> is not specifically about domain names - which would be a pretty niche area
>>> for the Human Rights Committee to dig into. But the decision contains the
>>> clearest statement of the extent of what constitutes "speech" under the
>>> ICCPR, namely that Article 19: "must be interpreted as encompassing every
>>> form of subjective ideas and opinions capable of transmission to others".
>>> It's an incredibly broad formulation - to cover virtually anything that
>>> conveys meaning. I, personally, can't see an interpretation of that that
>>> doesn't include domain names.
>>
>>
>> This is not really that broad a formulation -- it dovetails nicely with the
>> concept of "expressive speech" under US law (as in the excerpt from Gibson).
>> Furthermore, there is a considerable difference between the speech
>> constituting "subjective ideas and opinions" protected in Ballantyne and the
>> "incredibly broad formulation" that would elevate "virtually anything that
>> conveys meaning." "Subjective ideas and opinions" in no way embraces domain
>> names per se; whether and to what extent it embraces domain names is
>> certainly not a question answered in Ballantyne.
>>>
>>>
>>> With regard to Gibson v. Texas - I don't want to dig too deeply into this
>>> because, honestly, US law is not my specialisation. But I think that part of
>>> the disconnect between our positions is due to a particular aspect of the
>>> American understanding of free speech, that's sort of different to how it's
>>> understood virtually everywhere else. Under most systems, including the
>>> international example I just cited, virtually everything is classed as
>>> "speech", and then there's a balancing as to whether particular restrictions
>>> are justified. But because of the absolutist way the US Constitution is
>>> phrased ("Congress shall make no law"), the Courts have had to go through
>>> some unusual legal gymnastics to find that speech that they feel justified
>>> restricting isn't actually speech.
>>
>>
>> Simply reading the excerpt from Gibson v. Texas in my prior email shows that
>> this "speech/not speech" analysis is incorrect. Gibson, and the cases cited
>> in it, distinguish between protected speech and speech that that is "not to
>> be protected." Specifically, Gibson mentions that "courts have held that
>> domain names that use trademarks to misidentify the source of a product are
>> outside the reach of the First Amendment" and also cites a line of cases
>> where "the domain name was actually held not to be protected speech because
>> it was not expressive, not because it was misleading." More broadly, the
>> idea that the US approach to free speech is anomalous is incorrect. Of
>> course, free speech regimes vary broadly throughout the world -- so there's
>> no such thing as a single "understanding of free speech... virtually
>> everywhere else" aside from the US. Unfortunately, there are many places in
>> the world where there is no understanding of free speech at all.) If the US
>> approach to free speech tends to be different, it is in a greater tolerance
>> for controversial and offensive speech (what John Levine calls "the
>> absolutist U.S. first amendment approach"). This is why US law doesn't find
>> it so easy to restrict alleged "hate speech" as "virtually everywhere else",
>> and also why I can't be so comfortable in finding "no conflict" between free
>> speech and restricting hate speech. (And I say this as a member of a group
>> that is finding itself increasingly on the wrong end of both offensive
>> speech and hate speech.)
>>>
>>>
>>> So, without trying to belabour these issues, my point in the above is not
>>> to try and invalidate the trademark protection system - indeed, Greg's quite
>>> right to point out that trademarks are also speech. My point here is simply
>>> to try and demonstrate that there are free speech issues at play.
>>
>>
>> It's clear that this is false as a general statement, unless this is meant
>> as a statement that could possibly true in a large enough sample, like
>> "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one
>> sees clear distinctions being drawn being "subjective ideas and opinions"
>> and speech that is "not expressive" or "inherently misleading." This is
>> probably a good time to note that the UDHR and the ICCPR both refer to
>> "freedom of expression" and not to "free speech." So, it would be more
>> proper to discuss whether "expressive speech" is at issue, not whether the
>> over-broad "virtually anything that conveys meaning" is at issue, before we
>> even get to the question of whether free speech issues are at play, to what
>> extent, and how that might affect any discussion that is relevant to this
>> Working Group.
>>
>>>
>>> To me, that's not a controversial point - and if we can agree on that,
>>
>>
>> I don't think we can agree on that, and certainly not as an assumed
>> agreement from which one can proceed blithely on. Rather, I think that is
>> an elemental aspect of the discussion, and as noted above, at best
>> "controversial" and possibly sometimes true, and at worst false (at least as
>> a general statement).
>>
>> As an aside, it's worth noting what Article 19 of the ICCPR actually
>> protects: "the right to hold opinions without interference" and "the right
>> to freedom of expression; this right shall include freedom to seek, receive
>> and impart information and ideas of all kinds, regardless of frontiers,
>> either orally, in writing or in print, in the form of art, or through any
>> other media of his choice." I admit to struggling to find instances where
>> the right to hold opinions or to express oneself freely is truly being
>> violated in this context -- especially in a world where holding or
>> expressing an opinion can come under threat of oppression, suppression,
>> violence, imprisonment or worse. As someone who strongly supports First
>> Amendment rights and who has worked on litigation defending First Amendment
>> freedoms, I wonder whether this discussion trivializes free speech concerns
>> rather than promoting them. That is not to dismiss the possibility of free
>> speech concerns here, but just to say that, to the extent there is a viable
>> point here, it pales in comparison to the significant freedom of expression
>> concerns elsewhere (including elsewhere on the Internet, where access to
>> websites with undesirable opinions or expression, or even to the Internet as
>> a whole, is under escalating attack).
>>
>>
>>>
>>> then that is relevant to the transparency question, since in my mind it
>>> bolsters arguments for why openness in the system is important.
>>
>>
>> I don't get the logical leaps here, from the possibility of a free speech
>> issue, to the claimed relevance to the transparency question, to the even
>> more attenuated idea that this bolsters arguments regarding changing access
>> rules for the TMCH. In other words, I don't really think that any of this
>> changes the discussion on TMCH database access, nor do I really think it is
>> relevant to any of the work we are undertaking right now. That is not to
>> say that this is an uninteresting discussion (or else I would not have
>> engaged in it), just that it is a rabbit hole in relation to our work.
>>>
>>>
>>> Best,
>>>
>>> Michael
>>>
>>> On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc at gmail.com>
>>> wrote:
>>>>
>>>> It's important to keep in mind that the rights set forth in the UDHR are
>>>> interrelated and interdependent, so understanding the applicability of any
>>>> one Article also requires understanding the applicability of the other
>>>> rights in the UDHR, including some which may be countervailing to others.
>>>> Looking at Article 19 in isolation is "cherrypicking." A recent CircleID
>>>> article by John Levine is quite enlightening on this very point:
>>>>
>>>> http://www.circleid.com/posts/20170401_human_rights_and_regular_internet_users/
>>>>
>>>> The article is short, but for those who don't get there, this quote goes
>>>> to the heart of the matter: "it devalues the whole topic of human rights to
>>>> pay attention only to a few fashionable rights, while ignoring ones that are
>>>> at least as important in people's daily lives."
>>>>
>>>> (It should also be noted that the UDHR, while adopted by the United
>>>> Nations and widely used, does not constitute some form of "universal law"
>>>> nor is it universally accepted.)
>>>>
>>>> The case mentioned, Gibson v. Texas, has portions that are directly
>>>> applicable to the discussion at hand. However, the Gibson decision actually
>>>> distinguishes cases involving trademarks from the situation in that case.
>>>> As a matter of fact, the Gibson case tells us that there are at least two
>>>> types of domain names that do not constitute speech protected by the First
>>>> Amendment: domain names that infringe trademarks, and domain names that do
>>>> not constitute "expressive speech."
>>>>
>>>> (In other words, there can be no "freedom of expression" issue when the
>>>> speech is not expressive.)
>>>>
>>>> Before getting to an excerpt from the case, it's important to note that
>>>> the court did not find that domain names are speech, much less find that
>>>> domain names are speech protected by the First Amendment. The court made no
>>>> findings about all domain names. Rather, the court assumed, for the purpose
>>>> of considering a motion to dismiss, that the domain name in question
>>>> (texasworkerscomplaw.com) constituted commercial speech. It's also
>>>> important to note that the case involved the Constitutionality of a law that
>>>> broadly prohibited the use of the terms "Texas" and "workers comp," and not
>>>> a trademark infringement matter.
>>>>
>>>> The excerpt is quite instructive:
>>>>
>>>>
>>>> In order for speech to fall outside of the First Amendment’s protection,
>>>> the speech must either be “inherently likely to deceive,” or “the record
>>>> [must] indicate[] that a particular form or method of advertising has in
>>>> fact been deceptive.” R.M.J., 455 U.S. at 202.
>>>>
>>>>
>>>> Appellees primarily argue that the Texas statute is constitutional
>>>> because Gibson’s domain name amounts to inherently misleading speech. In
>>>> support of this proposition, they cite to a series of cases in which courts
>>>> have held that domain names that use trademarks to misidentify the source of
>>>> a product are outside the reach of the First Amendment. The case law cited
>>>> by Appellees, however, is unique to the field of trademark infringement,
>>>> see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does
>>>> not necessarily extend to a case such as this one, where Texas is
>>>> prohibiting Gibson from using words that are otherwise in the public
>>>> domain.[1] Cases involving trademark infringement involve inherently
>>>> deceptive speech because they contain a significant risk that an infringing
>>>> party will freeload on the goodwill that has been created by the original
>>>> trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here.
>>>> Texas has made no showing that its own talents and energy contributed to the
>>>> creation of any goodwill in the name “texasworkerscomplaw.com.” See San
>>>> Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34
>>>> (1987). Instead the regulation at issue is forward-thinking; intended to
>>>> prohibit confusion for individuals seeking information from the government
>>>> agency. It is not retrospective in the same way as most trademark
>>>> litigation, which is generally intended to preserve the reputation that has
>>>> been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly,
>>>> the case law cited by Appellees is inapposite.
>>>>
>>>>
>>>> ________________________________
>>>>
>>>> [1] In most of the cases cited by Appellees the domain name was actually
>>>> held not to be protected speech because it was not expressive, not because
>>>> it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No.
>>>> 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison &
>>>> Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for
>>>> Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast,
>>>> Gibson’s domain name is expressive because it does more than simply mimic
>>>> the state agency’s website or identify a source of Texas Workers’
>>>> Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain
>>>> name is intended to direct visitors to a forum for discussing workers’
>>>> compensation laws and their potential reform, as well as to convey to
>>>> visitors the message of Gibson’s website as a whole. Accordingly, in the
>>>> context of this case, the domain name is “‘sufficiently imbued with the
>>>> elements of communication’” to place it in the realm of expressive speech.
>>>> Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir.
>>>> 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)).
>>>>
>>>> Greg Shatan
>>>>
>>>>
>>>> Greg Shatan
>>>> C: 917-816-6428
>>>> S: gsshatan
>>>> Phone-to-Skype: 646-845-9428
>>>> gregshatanipc at gmail.com
>>>>
>>>>
>>>> On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas
>>>> <mkaranicolas at gmail.com> wrote:
>>>>>
>>>>> 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 at 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
>>>>>>>>>> _______________________________________________
>>>>>>>>>> gnso-rpm-wg mailing list
>>>>>>>>>> gnso-rpm-wg at icann.org
>>>>>>>>>>
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>>>>>>>>>>
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>>>>>>>>>>
>>>>>>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178decee1%7C
>>>>>>>>>>
>>>>>>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B2kWcBkF
>>>>>>>>>> D%2Fj6BAXDjiI%3D&reserved=0
>>>>>>>> _______________________________________________
>>>>>>>> gnso-rpm-wg mailing list
>>>>>>>> gnso-rpm-wg at icann.org
>>>>>>>>
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>>>>>>>>
>>>>>>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C811dc6e
>>>>>>>>
>>>>>>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%
>>>>>>>>
>>>>>>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhIpZQh1s99f
>>>>>>>> s%3D&reserved=0
>>>>>>> _______________________________________________
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