[GNSO-RPM-WG] Q#8

[claudio di gangi]

Rebecca,

We agree then, because I am not suggesting they be mandatory. My fault for
not specifying that (I thought it was implied from the nature of our recent
discussions).

I am just trying to put forward policy guidance so it’s clear to everyone
what is available and how the system functions. Why have a system if no
knows how to use it, or it’s too difficult to implement administratively.

Best regards,
Claudio

On Wednesday, September 25, 2019, Tushnet, Rebecca <rtushnet at law.harvard.edu>
wrote:

> If they’re not mandatory, the market will ultimately decide whether to
> implement them. I don’t think we have evidence supporting a new mandatory
> procedure.
>
> Rebecca Tushnet
> Frank Stanton Professor of First Amendment Law, Harvard Law School
>
> Sent from my phone. Apologies for terseness/typos.
>
> On Sep 25, 2019, at 10:56 AM, claudio di gangi <ipcdigangi at gmail.com>
> wrote:
>
> Rebecca,
>
> If you have suggestions on tweaking #1 that’s great. I think the biggest
> help would be if you can provide your suggested text for this provision
> and/or by making edits to the text I provided.
>
> The difficulty has been capturing the spirit of the provision in textual
> form. For example, I am fine with removing the extra terminology that your
> reference (“words” “phrases” etc.) if that accomplishes the goal.
>
> On the other portions of your reply:
>
> it appears that we agree on the need to have more
> information/clarification/confirmation from staff on how the ancillary
> database system functions (instead of each us forming our own independent
> opinions), so we can craft policy guidance, as appropriate.
>
> We have a system build that no one (or almost no one) seems to have a firm
> grasp w/r/t functionality, hence my desire to add policy guidance on this
> aspect.
>
> I may be misreading your feedback, but my impression is you are objecting
> in kind to positions that I am expressing that are designed to simply
> clarify the status quo for everyone. Perhaps because the status quo isn’t
> clear, you have the impression that I am seeking to do more than my actual
> intent.
>
> On the Limited Registration System, this already allowed GIs to be
> registered before General Availability. The Claims Notice is one notch down
> from there, from the level that it would leave more domain names available
> for registration in some cases, so I’m somewhat surprised that you don’t
> support providing registries with having that option available.
>
> Finally, on your concept of free-market mechanisms as a solution, it seems
> like your position is that is a reason or justification to bypass the
> existing system that has been built for this very purpose. Forcing
> registries to go outside the system, when we have one already established
> for all new gTLDs, is not the ideal approach in my humble opinion, when we
> can simply clarify or tweak what is already in place.
>
> This approach will increase transparency and accountability for the
> community and ICANN. For this reason, I have my been trying to fit my
> recommendations on the topics we have within our charter and that fall
> under our remit, and not relying on the free-market approach.
>
> Hope this helps move the ball forward and thanks for your quIck reply.
>
> Best regards,
> Claudio
>
>
>
> On Tuesday, September 24, 2019, Tushnet, Rebecca <rtushnet at law.harvard.edu>
> wrote:
>
>> First, the good news: It seems like there is an emerging consensus on
>> many of the individual propositions.  My comments go to where there are
>> still apparently some dispute.
>>
>>    1. The TMCH is for trademarks: …
>>
>> Claudio’s suggestion is to use the language “protected under a statute or
>> treaty as a sign that functions as a trademark/source identifier.” I
>> understand the spirit of this suggestion but it won’t perform any limiting
>> function, because the statutes that don’t use the word “trademark” also
>> don’t use the words “source identifier.” Given that countries may also
>> protect, for example, the names of their monarchs by statute, the suggested
>> language isn’t particularly useful compared to allowing an applicant to
>> show that the statute treats their term as a trademark.  For example,
>> national authorities might deem it to be a trademark even if the statute
>> doesn’t use that word—this is often how US lawyers talk about the US
>> protections for Smokey Bear, for example—or the standard for liability
>> might be confusion as to source, sponsorship, etc. (a trademark standard).
>>   (The Red Cross, by the way, possesses a number of live trademark
>> registrations, so needs no help from us in this regard.)
>>
>>
>> Separately, there’s no need and some risk to add in a bunch of extra
>> terms—“signs, words, or phrases” are either duplicative or expansionist,
>> neither of which seems desirable here.
>>
>>
>> 3. GIs, like other things that are not trademarks, can be the subject of
>> ancillary services.  … Different providers should be able to compete to
>> provide them if desired.
>>
>>
>> Claudio, I don’t understand your claim that no one can currently compete
>> to provide ancillary database services. There may not be a market demand
>> for it, but that is not something that we can fix with policy or should try
>> to fix.  We certainly should not hand a new monopoly to Deloitte.
>>
>>
>> You say you’re basing your proposals on Mary’s statement that “the
>> ancillary database service is registry-specific, meaning on a per new gTLD
>> basis.”  But that claim is purely descriptive and does not establish the
>> existence of any barrier: each registry gets to decide whether it wants to
>> use an ancillary database.  That will always be the case as long as
>> ancillary services are ancillary and not mandatory.  Since there are no
>> such services operational that we’ve been informed of, it cannot be that
>> “the current system doesn’t allow multiple new gTLD registries to connect
>> with the same ancillary database.”  If Mary believes otherwise, it is
>> past time for her to share the facts behind that belief.  I believe we
>> also have some registry operators in the WG who might be able to shed light
>> on whether they have been prevented from using the same ancillary service
>> as another registry, if this is a real problem.
>>
>>
>> I don’t believe we should give “further guidance on the interplay between
>> contracted parties, ICANN, the operator of the TMCH, and users of the
>> system.”  We have not collected data on this.  We have no basis for
>> making any findings about this.  We especially shouldn’t create
>> GI/Appellation of Origin protections on the cheap, as you do when you
>> propose to create a new Claims procedure for GIs/AOs. If there is registry
>> demand for this, then we might have heard about it when we surveyed
>> registry operators; I don’t think we did.
>>
>>
>> Separately, your proposal appears to put new obligations on the TMCH
>> provider (“shall establish or create an ancillary database service, under
>> appropriate terms of use”).  Perhaps staff can shed some light on what
>> contractual renegotiations would be required for that.  But even if
>> negotiations would be workable, there is still no evidence that the market
>> can't handle voluntary ancillary databases. We have enough trouble with the
>> mandatory RPMs.  Let's stick to them.
>>
>>
>>
>>
>> Rebecca Tushnet
>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>> 703 593 6759
>>
>> ------------------------------
>> *From:* claudio di gangi <ipcdigangi at gmail.com>
>> *Sent:* Tuesday, September 24, 2019 2:50 PM
>> *To:* BECKHAM, Brian <brian.beckham at wipo.int>
>> *Cc:* Tushnet, Rebecca <rtushnet at law.harvard.edu>; Ariel Liang <
>> ariel.liang at icann.org>; gnso-rpm-wg at icann.org <gnso-rpm-wg at icann.org>
>> *Subject:* Re: [GNSO-RPM-WG] FW: [Gnso-rpm-trademark] Q#8
>>
>> Rebecca, all,
>>
>> Thanks again for your nicely constructed list and for working towards
>> building consensus on the issues.
>>
>> Overall, it looks like we are on the same page in bringing the team
>> together on desired outcomes that are able to reach consensus. To continue
>> to move things forward, I believe we need some further confirmation or
>> clarification from staff on a small handful of issues, in order to ensure
>> that the WG is operating under a shared or common understanding of the
>> Clearinghouse functionality, and the associated rules which govern its
>> operations. This of course, has ramifications on how we advance the
>> current round of policy recommendations in the Initial Report.
>>
>> For ease of reference, I have provided my comments below, as per your
>> numbered feedback, listed sequentially starting with item #1:
>>
>> 1. The (main) TMCH is for trademarks: those that are registered as
>> trademarks, confirmed by court decision as trademarks, or protected by
>> statute or treaty that specifies the trademarks covered (as opposed to, for
>> example, Lanham Act §43(a), which grants statutory protection to
>> unregistered marks but doesn’t specify the marks covered).  What counts as
>> a trademark should be determined by national law, not by the TMCH.
>>
>> CD comments: I fully understand your desired intent here, but w/r/t to
>> the wording that will form the basis of the policy recommendation, I think
>> we have to be especially careful because this is what led to the issue
>> arising in the first instance.
>>
>> I understand you were not seeking to focus on finding the exact
>> terminology in your last note, and that it was drafted from a higher level.
>> However, for the sake of moving things forward, I wanted to clarify the
>> text which appears in your #1: "....those that are registered as
>> trademarks....or protected by statute or treaty *that specifies the
>> trademarks covered*" (*emphasis added). *In short, I believe this
>> wording reflects the struggle we were all having during last week's
>> meeting, because often the laws in question do not identify specify
>> the source identifiers (that we know are trademarks) as "trademarks" per se.
>>
>> Mary circulated some helpful language on this topic last week, when she
>> expressed/asked whether WG members agree: "for the category of “marks
>> protected by statute or treaty”, its scope ought to be limited to marks
>> (not otherwise eligible under 3.2.1) that are nevertheless protected under
>> a statute or treaty as a sign that functions as a *trademark/*source
>> identifier" (*emphasis added)*. I think Mary's language gets to the
>> heart of the issue, so I recommend working off her suggested text.
>>
>> The issue is that the marks/signs (within these statute/treaties) which
>> function as source identifiers for particular goods/services are
>> sometimes are referred to as "insignia", "words", "phrases", or
>> "signs"; these source identifiers are *sui generis*, and have enhanced
>> qualities under the law that establish them as "strong" marks, e.g. may
>> possess special remedies that address infringement.
>>
>> For example, see 18 U.S. Code, Section 706. Red Cross. (available at:
>> https://www.law.cornell.edu/uscode/text/18/706
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.cornell.edu_uscode_text_18_706&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=vq5pBV3LyYL-VndOVC6QjVMW3aUEKSgGM7bUp5OoHnE&s=Ym_QM-NWjPKswY1enHdA-A36XE-H8WDRbn8bASA3V-E&e=>
>> )
>>
>> “...Whoever, whether a corporation, association, or person, other than
>> the American Red Cross and it’s duly authorized employees and agents and
>> the sanitary and hospital authorities of the armed forces of the United
>> States, uses the emblem of the Greek Red Cross on a white ground, or any
>> sign or insignia made or colored in imitation thereof or the words “Red
>> Cross” or “Geneva Cross” or any combination of these words -
>> Shall be fined under this title or imprisoned not more than six months,
>> or both....”
>>
>> Since these marks are protected under special legislation or
>> treaty, a national Trademark Offices (for example the USPTO in the
>> U.S.) may not maintain the marks on their principle register of trademarks
>> (the list of registered marks issued and maintained by the office);
>> however, the USPTO maintains these marks on record to enable trademark
>> examiners to refuse the registration of other marks which are identical or
>> confusingly similar in form. And courts will issue rulings under the
>> same effect, so the legislation/treaties situates the marks within
>> the trademark system, at both the governmental agency and at the judicial
>> level of jurisprudence.
>>
>> So on the basis that the consensus of the WG is that GIs/Appellations of
>> Origin shall not be included in the main TMCH database, then I suggest we
>> rely on Mary's proposed text, with an added disclaimer for specificity
>> purposes.
>>
>> Section 3.2.3 - "Shall include marks, signs, words, or phrases, that are
>> specifically protected under Statute or Treaty, and which function as
>> source identifiers/marks for goods or services, but shall not include
>> marks, signs, words, or phrases that constitute Geographical Indications or
>> Appellations of Origin."
>>
>> This will provide the TMCH operator with guidance on what the consensus
>> of WG members believe is the (original) intent of this provision.
>>
>> 3. GIs, like other things that are not trademarks, can be the subject of
>> ancillary services.  These ancillary services are voluntary, not
>> mandatory, in new gTLDs. Different providers should be able to compete to
>> provide them if desired. There is no existing barrier to multiple
>> registries using the same ancillary service, nor should we impose any
>> barriers to that possibility.
>>
>> CD comments: For ease of reference, I have split this statement
>> into two sub-parts below:
>>
>> "Different providers should be able to compete to provide them if
>> desired."
>>
>> CD comments: As I understand the current functioning of the Clearinghouse
>> system, no option exists for other providers to come in and compete to
>> provide ancillary database services, i.e. the system operates under a
>> sole-source contract managed by the current operator of the TMCH, and the
>> current operator of the TMCH is the only entity afforded the ability to
>> create the ancillary database service(s) system, and this
>> is incorporated in the New gTLD Registry Agreement.
>>
>> "There is no existing barrier to multiple registries using the same
>> ancillary service, nor should we impose any barriers to that possibility."
>>
>> CD comments: I agree we that there is no reason to impose barriers on
>> the back-end of the system. However, under the current rules, I believe
>> there are some existing barriers or limitations that prevent multiple
>> registries to use the same ancillary service, so I have recommended text
>> below to remove these barriers.
>>
>> I am basing this on the input we received from Mary, when she informed us
>> that the ancillary database service is registry-specific, meaning on a per
>> new gTLD basis. So if one organization operates multiple new gTLDs in the
>> same jurisdiction, each new gTLD is considered an individual
>> registry, and the current system doesn't allow multiple new gTLD registries
>> to connect with the same ancillary database.
>>
>> In #6. "As long as the public-facing aspects of the RPMs operate
>> properly, we should be indifferent to the “back end”—whether ancillary
>> databases are in the “same database” or a “different database,” should
>> Deloitte choose to operate an ancillary database."
>>
>> CD comments: I agree that we should be indifferent to the "back
>> end" aspect of this - and also agree with your point that it doesn't
>> matter whether the ancillary database is the "same database" or a
>> "different database". This approach fits in neatly with the point above,
>> e.g. that there has been no identified justification to impose barriers or
>> other limitations on the functioning of the back-end ancillary service
>> database system.
>>
>> Unfortunately, as noted supra, I believe there are some existing barriers
>> and limitations, which prevent multiple registries from connecting to the
>> "same database" and thereby preventing GIs/Appellations of Origin to be
>> recorded in the same database to be used across multiple registries.
>>
>> To address this issue, I have drafted text below for inclusion as a
>> policy recommendation, with the objective of reducing unnecessary
>> red-tape/administrative burdens when a registry operator is simply seeking
>> to operationalize the rules of the new gTLD program.
>>
>> Moreover, I believe the current system lacks clarity on how registries
>> are to establish the ancillary database service(s) for their new gTLD, so I
>> have included some further guidance on the interplay between contracted
>> parties, ICANN, the operator of the TMCH, and users of the system. This was
>> referenced in my earlier proposal, but I did not include the actual text
>> that sets forth the parameters. Hopefully, this will make the system
>> work better for contracted parties and users alike.
>>
>> Here is the proposed text/policy guidance that is designed
>> to integrate your #3 to achieve what I believe is its intended effect:
>>
>> "The operator of the TMCH, upon request of any new gTLD registry
>> operator, shall establish or create an ancillary database service, under
>> appropriate terms of use, which may be used for the recordation of Geographical
>> Indications and Appellations of Origin that are protected under local,
>> national, or international laws.
>>
>> Upon establishment by the operator of the TMCH, the ancillary database
>> service shall have no limitations (express or otherwise) on the number
>> and/or type of new gTLD registries that shall be permitted to connect to,
>> or interface with, the ancillary database, unless the requesting Registry
>> Operator sets forth any desired limitations, upon creation of its ancillary
>> database service.
>>
>> Registry Operator shall not be required to obtain independent
>> authorization or approval from ICANN to create or establish the ancillary
>> database service, but shall possess express authorization to direct
>> performance by the operator of the TMCH to establish or create the
>> ancillary database service, under the express terms of the registry
>> operator's New gTLD Registry Agreement with ICANN."
>>
>> Finally, the last element of my proposal (which fits under the second
>> sub-part of #3 on your list), is to provide the ability or option for a new
>> gTLD registry to utilize the ancillary database to operate a Claims Notice
>> for the GIs/Appellations of Origin that are recorded in the ancillary
>> database.
>>
>> "Under the sole discretion of the registry operator, or registry
>> operator(s), that interface with, or are connected to an ancillary database
>> service, such registry operator may elect to implement an additional
>> Claims period for Geographical Indications and Appellations of Origin
>> that are recorded in the ancillary database service; such Claims period shall
>> occur for either 60 or 90 days (or another period of time as set forth by
>> the registry operator) following the conclusion of the TM Claims service
>> notification period."
>>
>> The benefit of this approach is to provide new gTLD registries
>> with options for utilizing the ancillary database service, instead of only
>> being able to use the Limited Registration Period, when domain names are
>> registered. Some registries may instead select the additional Claims
>> Notification period for GIs/Appellations of Origin (either instead of,
>> or in addition to, the Limited Registration Period), perhaps depending on
>> their local laws or jurisdiction.
>>
>> I hope this helps build upon on the progress being made on question #8.
>> Please do not hesitate to let me know of any questions or comments.
>>
>> Best regards,
>> Claudio
>>
>> On Mon, Sep 23, 2019 at 3:31 PM claudio di gangi <ipcdigangi at gmail.com>
>> wrote:
>>
>> Rebecca, all,
>>
>> I join Brian in thanking you for expressing your views so clearly here.
>>
>> With the benefit of having a little more time, I will reply to your note
>> - and to the helpful feedback that Mary recently contributed on the list,
>> prior to our upcoming call on Wednesday.
>>
>> Thank you.
>>
>> Cheers,
>> Claudio
>>
>> On Mon, Sep 23, 2019 at 11:31 AM BECKHAM, Brian <brian.beckham at wipo.int>
>> wrote:
>>
>> Thanks Rebecca for the clarification (especially on 1 and 4)!
>>
>>
>>
>> Claudio, others – any reaction?
>>
>>
>>
>> Brian
>>
>>
>>
>> *From:* Tushnet, Rebecca <rtushnet at law.harvard.edu>
>> *Sent:* Monday, September 23, 2019 3:53 PM
>> *To:* BECKHAM, Brian <brian.beckham at wipo.int>; Ariel Liang <
>> ariel.liang at icann.org>; gnso-rpm-wg at icann.org
>> *Subject:* Re: [GNSO-RPM-WG] FW: [Gnso-rpm-trademark] Q#8
>>
>>
>>
>> Thanks. Yes, I did intend to incorporate the broad definition of
>> trademarks (where the term is shorthand for trademarks, service marks,
>> collective marks, and certification marks).
>>
>>
>>
>> For #4, I attempted to be clear that it is not about mandating *or *foreclosing
>> other programs that might voluntarily be adopted for specific registries,
>> but only about what should happen under the existing RPMs.
>>
>>
>>
>> In terms of labeling, I deliberately did not characterize Deloitte's
>> practices. I believe #5 is purely descriptive of Deloitte's practices.
>> However, aside from GIs, my understanding of our discussion is that there
>> is consensus that "other IP" was supposed to refer only to ancillary
>> services and thus that Deloitte's current advertising of it as equal to
>> registrations, etc. in terms of eligibility for Claims/Notice is not
>> consistent with the AGB.
>>
>>
>>
>> Rebecca Tushnet
>>
>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>> 703 593 6759
>> ------------------------------
>>
>> *From:* BECKHAM, Brian <brian.beckham at wipo.int>
>> *Sent:* Monday, September 23, 2019 5:14 AM
>> *To:* Tushnet, Rebecca <rtushnet at law.harvard.edu>; Ariel Liang <
>> ariel.liang at icann.org>; gnso-rpm-wg at icann.org <gnso-rpm-wg at icann.org>
>> *Subject:* RE: [GNSO-RPM-WG] FW: [Gnso-rpm-trademark] Q#8
>>
>>
>>
>> Thanks Rebecca for the attempt at bringing this together.
>>
>>
>>
>> I would encourage Claudio and other proponents of related proposals to
>> weigh in.
>>
>>
>>
>> Rebecca, can you clarify whether No. 4 below is intended to specifically
>> foreclose use of any entry in an ancillary database for registry-adopted
>> programs such as a founder’s program (i.e., not an “existing RPM”) which
>> may have a similar early-allocation effect as a sunrise.
>>
>>
>>
>> Also, for No. 1, can you clarify if this is intended to also capture
>> Kathy’s email of last Tuesday noting a proposed definition for trademarks:
>> “By "trademarks," the WG means "trademarks, service marks, certification
>> marks and collective marks.”?
>>
>>
>>
>> As we constructively attempt to produce a consensus recommendation on
>> this topic, noting the preamble below, I do want to remind the WG however
>> of an email from April 2017 expressing concerns about labeling Deloitte’s
>> actions (especially given the possibility of differing reasonable
>> interpretations about the “other marks” clause):
>> https://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001722.html
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_pipermail_gnso-2Drpm-2Dwg_2017-2DApril_001722.html&d=DwMGaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=et_H2dFB0D2ttCTefu6tqaN59DJqm5SX6UhatgAapdg&s=Yiut4ybvRqo3pqM55_6q-RnltcK2NrmzcrvQ38LJc1Q&e=>
>> .
>>
>>
>>
>> Brian
>>
>>
>>
>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *Tushnet,
>> Rebecca
>> *Sent:* Monday, September 23, 2019 3:28 AM
>> *To:* Ariel Liang <ariel.liang at icann.org>; gnso-rpm-wg at icann.org
>> *Subject:* Re: [GNSO-RPM-WG] FW: [Gnso-rpm-trademark] Q#8
>>
>>
>>
>> I understand that we’re trying to get some results out the door for
>> public comment, and I would suggest that don't need exact wording right
>> now, but we do need to clarify that Deloitte is doing the wrong thing.  I
>> think we may be able to reach consensus about several different things:
>>
>>    1. The TMCH is for trademarks: those that are registered as
>>    trademarks, confirmed by court decision as trademarks, or protected by
>>    statute or treaty that specifies the trademarks covered (as opposed to, for
>>    example, Lanham Act §43(a), which grants statutory protection to
>>    unregistered marks but doesn’t specify the marks covered).  What counts as
>>    a trademark should be determined by national law, not by the TMCH.
>>    2. Specifically, GIs (that do not also fall under (1)) are not
>>    trademarks.
>>    3. GIs, like other things that are not trademarks, can be the subject
>>    of ancillary services.  These ancillary services are voluntary, not
>>    mandatory, in new gTLDs. Different providers should be able to compete to
>>    provide them if desired. There is no existing barrier to multiple
>>    registries using the same ancillary service, nor should we impose any
>>    barriers to that possibility.
>>    4. GIs and other subject matter of ancillary services should not be
>>    subject to Sunrise or Notice under the existing RPMs.
>>    5. Deloitte is (a) registering GIs under the theory that they are
>>    covered by "statute/treaty," and (b) indicating to TMCH potential
>>    registrants that "other IP" is eligible for Claims and Notice in the TMCH
>>    by grouping “other IP” with registrations, court-confirmed marks, and marks
>>    protected by statute or treaty in its public-facing materials.  Both of
>>    these practices should stop.
>>    6. As long as the public-facing aspects of the RPMs operate properly,
>>    we should be indifferent to the “back end”—whether ancillary databases are
>>    in the “same database” or a “different database,” should Deloitte choose to
>>    operate an ancillary database.
>>
>> My hope is that, although there may not be universal agreement to each
>> one of these statements, we can approach consensus on each individually.
>>
>>
>>
>>
>>
>>
>>
>> Rebecca Tushnet
>>
>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>> 703 593 6759
>> ------------------------------
>>
>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> on behalf of Ariel
>> Liang <ariel.liang at icann.org>
>> *Sent:* Wednesday, September 18, 2019 1:47 PM
>> *To:* gnso-rpm-wg at icann.org <gnso-rpm-wg at icann.org>
>> *Subject:* [GNSO-RPM-WG] FW: [Gnso-rpm-trademark] Q#8
>>
>>
>>
>> Forwarding Claudio’s proposal, which was originally sent to the TM Claims
>> Sub Team mailing list.
>>
>>
>>
>> Best,
>>
>> Ariel
>>
>>
>>
>> *From: *Gnso-rpm-trademark <gnso-rpm-trademark-bounces at icann.org> on
>> behalf of claudio di gangi <ipcdigangi at gmail.com>
>> *Date: *Wednesday, September 18, 2019 at 1:43 PM
>> *To: *"gnso-rpm-trademark at icann.org" <gnso-rpm-trademark at icann.org>
>> *Subject: *Re: [Gnso-rpm-trademark] [GNSO-RPM-WG] Q#8
>>
>>
>>
>> Here is my compromise proposal consolidated/clarified in one location:
>>
>>
>>
>> *1) Going forward, GI may be accepted in the Clearinghouse (and recorded
>> separately as such within the database to distinguish them from TM
>> records) under "3.2.4 - other marks that constitute intellectual
>> property" OR shall be permitted to be recorded in one ancillary GI
>> database, e.g. "the unitary, ancillary GI Database", that all
>> registries/registrars may voluntarily connect with;*
>>
>>
>>
>> *2) GIs shall NOT be protected during the Sunrise or TM Claims period,
>> unless they are also registered as trademarks and otherwise meet the
>> qualifying criteria for such trademarks;*
>>
>>
>>
>> *3) the protection of GIs (those that are not also registered as
>> trademarks) shall NOT be considered a mandatory RPM*
>>
>> * for any new gTLD registry;*
>>
>>
>>
>> *4) for new gTLD registries that desire or choose to protect GIs (as
>> permitted by the current rules) based on local laws and/or for other
>> consumer protection reasons, GIs may be protected and registered as domain
>> names during the Limited Registration Period, and/or by the issuance of a
>> GI Claims Notice, and which shall be supported by the unitary, ancillary GI
>> database.*
>>
>>
>>
>>
>>
>> On Wed, Sep 18, 2019 at 12:34 PM Kathy Kleiman <kathy at kathykleiman.com>
>> wrote:
>>
>> Claudio and All,
>>
>> For those who may not be able to follow all of the messages, could you
>> send a full set of what you are thinking of for new language/Q#8?  At least
>> two Pauls have commented, so I am not sure what you are referencing. Having
>> it all in one place would be useful.
>>
>> Tx, Kathy
>>
>>
>>
>> <<Rebecca, all,
>>
>>
>>
>> I support John's proposal below as the simplest approach, with Paul's
>> language about 3.2.4 being the qualifying text for the inclusion of
>> GIs, along with a provision this IP database will be centralized for all
>> new gTLD registries.
>>
>>
>>
>> Rebecca - you asked about the supporting rationale in a recent note, so I
>> would like to address your question.
>>
>>
>>
>> The purpose is to avoid creating a scenario of having 300 (or pick some
>> number) of ancillary databases, each requiring separate submissions and
>> validations. Again, I say this because Mary confirmed that currently the
>> ancillary database concept is registry-specific. The main TMCH is not
>> registry-specific, all new gTLD registries connect to the database in a
>> unified manner.
>>
>>
>>
>> For the sake of providing examples, <.tea> launches as a new gTLD in the
>> next round; that registry will need to expend time and resources to
>> collaborate with Deloitte to establish a new ancillary database, and the
>> regional authority/producers of DARJEELING TEA, (under the current model)
>> would be required to submit the GI registration to the ancillary database
>> of <.tea> and have it validated at that time.
>>
>>
>>
>> In the same round, <.चाय> launches ("tea" in the Hindi script - a
>> language spoken in India, as an IDN), the current model requires
>> this same (or different) registry operator to create another new ancillary
>> database, with new submissions of registrations, additional validations,
>> etc.
>>
>>
>>
>> <.drinks>, <.beverages>, <.web>, <.internet>, etc.. the list goes on and
>> on, for every new gTLD there has to be separate ancillary databases. Each
>> registry and registrar will then have to allocate resources to promote the
>> registry-specific database to IP owners around the world, and connect to
>> the database from a technical level. I can only imagine the confusion and
>> unnecessary costs that this approach would impose on contracted parties and
>> the public.
>>
>>
>>
>> It would also defeat the purpose and benefit of a having a centralized,
>> unified system that simplifies recordation and validation from both an
>> administrative and technical basis for all parties.
>>
>>
>>
>> The Limited Registration Period is an existing RPM that functions similar
>> to Sunrise, but takes place after the Sunrise Period, during which
>> time these 3.2.4. marks can be protected. Since it is already permitted, I
>> propose that we specify there is a voluntary option for a IP Claims notice
>> for these 3.2.4 marks (identical to the TM Claims notice, i.e. using the
>> same language).
>>
>>
>>
>> These are completely voluntary RPMs for contracted parties - especially,
>> for those that operate in jurisdictions where GIs are protected under local
>> laws, and/or for those which decide to take proactive measures to prevent
>> abusive registrations in their TLD(s) to have a safe namespace for
>> their users. Since registries are already allowed to create voluntary RPMs,
>> the proposal is based on improving things from a technical and
>> administrative basis, in a manner that is fully consistent with the law,
>> and with the overall goal of protecting consumers and promoting trust in
>> new gTLDs.
>>
>>
>>
>> Finally, as Brian noted there is an existing database of GIs, managed by
>> OriGin, which Deloitte/IBM can interface with to help simplify the process,
>> which is an idea we can include for public comment in association with the
>> main recommendation.
>>
>>
>>
>> All we need to do is agree that this approach makes sense from a policy
>> perspective, and the IRT that follows this PDP can develop the appropriate
>> implementation procedures to put everything into place.
>>
>>
>>
>> Please let me know of any questions.
>>
>>
>>
>> Best regards,
>>
>> Claudio
>>
>>
>>
>>
>>
>>
>>
>> On Tue, Sep 17, 2019 at 5:23 PM John McElwaine <
>> john.mcelwaine at nelsonmullins.com> wrote:
>>
>> I would propose simplifying this a bit.  The issue that we have is that
>> Deloitte should not be placing “other marks that constitute intellectual
>> property” in the “Clearinghouse”.  The Trademark Clearinghouse is more than
>> just to service Sunrise and Claims services.  See AGB TMCH Section 1.2
>> (“The Clearinghouse will be required to separate its two primary functions:
>> (i) authentication and validation of the trademarks in the Clearinghouse;
>> and (ii) serving as a database to provide information to the new gTLD
>> registries to support pre-launch Sunrise or Trademark Claims Services.
>> Whether the same provider could serve both functions or whether two
>> providers will be determined in the tender process.”)    Unfortunately,
>> Section 3.2 muddies the waters and lists “other marks” as being capable of
>> inclusion “in the Clearinghouse”.
>>
>>
>>
>> However, the purpose behind Section 3.2.2 is provided a bit more light in
>> Section 3.6:  “Data supporting entry into the Clearinghouse of marks that
>> constitute intellectual property of types other than those set forth in
>> sections 3.2.1-3.2.3 above shall be determined by the registry operator and
>> the Clearinghouse based on the services any given registry operator chooses
>> to provide.”  With respect to such other IP, the “Trademark Clearinghouse
>> Service Provider may provide ancillary services, as long as those services
>> and *any data used for those services are kept separate from the
>> Clearinghouse database*.”
>>
>>
>>
>> Thus, as I mentioned on the call, a simple solution is that we recommend
>> “other marks that constitute intellectual property (under 3.2.2 and 3.6)”
>> currently in the Trademark Clearinghouse must be placed into a separate
>> ancillary database by the operator and not in the Trademark Clearinghouse.
>>
>>
>>
>> John
>>
>>
>>
>>
>>
>>
>>
>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *Tushnet,
>> Rebecca
>> *Sent:* Tuesday, September 17, 2019 4:24 PM
>> *To:* claudio di gangi <ipcdigangi at gmail.com>; Corwin, Philip <
>> pcorwin at verisign.com>
>> *Cc:* gnso-rpm-wg at icann.org
>> *Subject:* Re: [GNSO-RPM-WG] Q#8
>>
>>
>>
>> *◄External Email►* - From: gnso-rpm-wg-bounces at icann.org
>>
>>
>>
>> I'm still quite factually confused by this proposal.  "Accepted in the
>> Clearinghouse" until now has meant "gets Claims and is eligible for Sunrise
>> upon proof of use." It appears to me that this is proposing a nontrivial
>> technical change (at the very least the implementation of a new coding
>> category, which will have to be retrofitted to existing entries), without
>> evidence either of its need or its feasibility.
>>
>>
>>
>> Relatedly: If GIs are to be treated so differently, why put them in the
>> Clearinghouse,  given that there is consensus that they shouldn't be used
>> for Claims or Sunrise?  Kathy's clarifying language allows for registries
>> etc. to adopt various business models and for Deloitte and other operators
>> to run systems that facilitate those business models, including the ones
>> Claudio hypothesizes.  (And I'm not sure we should hand Deloitte an extra
>> business that would make competition in the market for providing additional
>> services less likely.)
>>
>>
>>
>>
>>
>> Rebecca Tushnet
>>
>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>> 703 593 6759
>> ------------------------------
>>
>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> on behalf of claudio
>> di gangi <ipcdigangi at gmail.com>
>> *Sent:* Tuesday, September 17, 2019 3:38 PM
>> *To:* Corwin, Philip <pcorwin at verisign.com>
>> *Cc:* gnso-rpm-wg at icann.org <gnso-rpm-wg at icann.org>
>> *Subject:* Re: [GNSO-RPM-WG] Q#8
>>
>>
>>
>> thanks, Phil. Very helpful as always.
>>
>>
>>
>> I see your point that proposal #1 and #2 overlap, in the sense that they
>> both deal with whether GIs should be recorded in the TMCH. My proposal (#3)
>> integrates the other two proposals.
>>
>>
>>
>> My concern during the call was that I felt a premature signal being
>> expressed that agreement was being quickly being reached
>> after several members spoke (and I was one of them), while several other
>> members asked clarifying questions. I may be mistaken, but don't recall
>> Jason or Rebecca objecting to the thoughts I expressed during discussion on
>> proposal #1.
>>
>>
>>
>> If I am mistaken, and there was a meaningfully larger list of proponents
>> for proposal #1 expressed on the call, I am happy to be corrected - please
>> let me know.
>>
>>
>>
>> From my perspective, the majority of members did not express a position
>> while the discussion was taking place, so I was left confused under what
>> basis that statement that consensus was reached was based upon.
>>
>>
>>
>> This is also why I recently expressed not having the benefit of the
>> informal poll that you conducted two weeks ago. Can we please do this
>> tomorrow to get a better sense of where folks stand?
>>
>>
>>
>> On this same line of reasoning, I was concerned that we did not have full
>> participation on the last week's call (where any registries and registrars
>> on the call?). Moreover, I indicated last week that I had off-line
>> discussions with WG members who expressed support for my suggested
>> approach, but were not able to join the call, so I was hoping to hear from
>> them on the list prior to Wednesday.
>>
>>
>>
>> The transcript and recording were posted by Julie on Friday, 13 Sept. so
>> members did not really have much time (Friday and Monday) to reply with
>> input before things (I personally feel) got somewhat short-cut this morning
>> with the posting that expressed here is the consensus view of the WG, along
>> with the associated implementation text.
>>
>>
>>
>> My concern when this occurs is it changes the dynamic about how members
>> feel about weighing-in and 'going against the thread' so to speak, and also
>> may create confusion about the accurate state of play.
>>
>>
>>
>> In terms of substance and to clarify, my proposal is based on finding
>> common ground and compromise that integrates the two proposals, as per the
>> following:
>>
>>
>>
>> 1) Going forward, GI are accepted in the Clearinghouse or ONE main
>> ancillary database that all registries/registrars can connect to (which
>> potentially can be integrated with the main external GI database that
>> exists, with Deloitte performing validations);
>>
>>
>>
>> 2) GIs are NOT protected during the Sunrise or Claims period, which
>> remain for trademarks; which was something that we established during the
>> review of Sunrise and Claims.
>>
>>
>>
>> 3) the protection of GIs are NOT mandatory for any new gTLD registry
>>
>>
>>
>> 4) for new gTLD registries that choose and desire to protect GIs (as the
>> current rules permit) because of local laws and/or other reasons, they are
>> protected during the Limited Registration Period, to help prevent abusive
>> registrations before General Availability.
>>
>>
>>
>> The rationale for this approach is that GIs are one of the three major
>> forms of IP (patents, trademarks, and GIs) and function as source
>> identifiers for goods and services in a manner that is similar
>> to trademarks (and can be registered as domains in the same manner). For
>> example, GIs are protected in the United States (under the TRIPS agreement)
>> as collective or certification marks, think FLORIDA ORANGES or IDAHO
>> POTATOES.
>>
>>
>>
>> But in other countries, outside of the United States, they are protected
>> under local laws that place them on a separate registry, apart from the
>> trademark register.
>>
>>
>>
>> Hope this helps clarify status, and thanks for everyone's ongoing
>> contributions.
>>
>>
>>
>> Best regards,
>>
>> Claudio
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On Tue, Sep 17, 2019 at 1:34 PM Corwin, Philip <pcorwin at verisign.com>
>> wrote:
>>
>> Claudio—
>>
>>
>>
>> This message reflects the views of the co-chairs.
>>
>>
>>
>> Q8 and all of its related proposals were extensively discussed on the
>> September 4th call. The meeting on 11 September was a continued
>> discussion on Q8 and Q7 in case there were further proposals, and the major
>> focus was on Q7 as we had run out of time on the prior call and a new
>> modified proposal had been submitted for discussion.
>>
>>
>>
>> As regards Q 8, all of the first three proposals converge in that they
>> would limit the registration of GIs in the TMCH to “marks” of some sort,
>> whether trademarks or collective marks or certification marks; there also
>> seemed to be some recognition and agreement that GIs that did not
>> constitute “marks” could be recorded in an ancillary database for the
>> purpose of assisting certain new gTLDs that recognized and provided some
>> additional consideration to them. It appeared to the co-chairs that
>> restricting TMCH  recordation of GIs to those that constituted “marks” had
>> fairly broad support among WG members participating on the calls.
>>
>>
>>
>> In regard to your fourth proposal -- “(1) Add the consideration of GIs to
>> the policy review of the Sunrise and Claims services; and (2) withhold
>> final consideration of the current TMCH proposals relating to GIs, until we
>> conclude the policy review of the new gTLD RPMs (as described in the
>> Charter).” – the Sunrise and Claims reviews have been concluded, and we are
>> now wrapping up (concluding) our review of the new gTLD RPMs. So this
>> proposal no longer seems timely or relevant; but if you wish to amend it
>> and make a specific proposal for the treatment of GIs in the TMCH, tomorrow
>> is the time to make it.
>>
>>
>>
>> Finally, as regards your proposal that we withhold a decision until
>> Deloitte participated in a call on this subject, we see no reason to do so
>> as there is no indication that Deloitte has changed its practice in regard
>> to GI recordation since it wrote to the WG two years ago.
>>
>>
>>
>> In conclusion, we intend to finish the WG’s consideration of Q8 tomorrow
>> but will facilitate discussion of an amended proposal from you if you wish
>> to offer one.
>>
>>
>>
>> Regards,
>>
>> Brian
>>
>> Philip
>>
>> Kathy
>>
>>
>>
>>
>>
>> Philip S. Corwin
>>
>> Policy Counsel
>>
>> VeriSign, Inc.
>>
>> 12061 Bluemont Way
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_maps_search_12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-3Fentry-3Dgmail-26source-3Dg&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=sZvVLfMvAcqYxiQ-rhRJM6e0aFoW9sg6-3f-UM4l0Wg&s=yFpYxl1PDVkUqjcTEZmFSaOVjCxrtuMz2Qb8sHbigZI&e=>
>> Reston, VA 20190
>>
>> 703-948-4648/Direct
>>
>> 571-342-7489/Cell
>>
>>
>>
>> *"Luck is the residue of design" -- Branch Rickey*
>>
>>
>>
>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *claudio
>> di gangi
>> *Sent:* Tuesday, September 17, 2019 11:22 AM
>> *To:* Kathy Kleiman <kathy at kathykleiman.com>
>> *Cc:* gnso-rpm-wg at icann.org
>> *Subject:* [EXTERNAL] Re: [GNSO-RPM-WG] Q#8
>>
>>
>>
>> Kathy, all,
>>
>>
>>
>> Last week, we spent the first full hour of the call discussing the first
>> Question 8 proposal, and zero minutes on the second proposal on Question #8
>> (In comparison we spent much time discussing both proposals for question
>> #7).
>>
>>
>>
>> I am aware that some members spoke in support of the first proposal (I
>> was on audio only), but do not know how many, while some others did not
>> speak in support, and that we agreed to spend this full week to solicit WG
>> members views on the list before moving forward. This week has not yet
>> concluded (we have through today), yet new language is being posted below
>> now for consideration.
>>
>>
>>
>> A few additional points, the week prior Phil conducted an informal poll
>> using the Zoom room functionality, which helped provide transparency on WG
>> members views for consensus building, which was not done last week on
>> Question #8.
>>
>>
>>
>> Nor has there been an effort to bring the various proponents together to
>> reach a compromise position, which we recently did in the sprint of the
>> consensus-building process on Question #7, the design mark topic. So I’m
>> not sure why question #8 is being treated so differently in all these
>> various ways (as described above) compared to Question #7.
>>
>>
>>
>> Can someone kindly shed some light on this disparity in treatment between
>> the way we are approaching question 7 and question 8?
>>
>>
>>
>> Thanks!
>>
>>
>>
>> Best regards,
>>
>> Claudio
>>
>>
>>
>>
>>
>> On Tuesday, September 17, 2019, Kathy Kleiman <kathy at kathykleiman.com>
>> wrote:
>>
>> All,
>>
>> Last week we found considerable overlap and common ground on Q#8.  I
>> promised to circulate language sharing that agreement and slightly refining
>> existing proposals.
>>
>> Q#8:
>>
>> 3.2 The standards for inclusion in the Clearinghouse are:
>>
>> 3.2.1 Nationally or regionally registered word marks from all
>> jurisdictions.
>>
>> 3.2.2 Any word mark that has been validated through a court of law or
>> other judicial proceeding.
>>
>> 3.2.3 Any word marks specified in and protected by a statute or treaty *as
>> trademarks *[1] in effect at the time the mark is submitted to the
>> Clearinghouse for inclusion.
>>
>> 3.2.4 Other marks that constitute intellectual property.  [see below]
>>
>> 3.2.5 Protections afforded to trademark registrations do not extend to
>> applications for registrations, marks.
>>
>> [1]  *By "trademarks," the WG means "trademarks, service marks,
>> certification marks and collective marks."*
>>
>> For purposes of clarity, separate or ancillary databases of the Trademark
>> Clearinghouse Provider (or another provider) may include other marks, but
>> those databases should not be used for Sunrise or Trademark Claims Notices
>> under the RPMs. Registries may use those separate or ancillary databases to
>> provide additional services but are not required to do so under the RPMs.
>>
>> (Appropriate corresponding changes will be percolated across the *Trademark
>> Clearinghouse* Applicant Guidebook)
>>
>> -----------------
>>
>> Best, Kathy
>>
>>
>>
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