[IDN-WG] Draft Statement on TMCH and Variants

[Hong Xue]

Dear All,

Please find below my draft statement. I'd appreciate for your quick review
and feedback.

I was the drafter of the New gTLD WG Statement on TMCH. Shall we also
forward the draft to that WG to make it a joint submission to ALAC?

Best,

Hong

_________________________________________________

At-Large Statement on Trademark Clearinghouse and IDN Variants



At-large community is very disappointed at the implementation model
outlined by “Trademark Clearinghouse: Rights Protection Mechanism
Requirements” (hereafter “Requirements’) published on April 6, 2013.
Particularly, the model completely overlooks the critical issues of IDN
variants with respect to trademark clearinghouse (TMCH) and as a result
would seriously impact the public interest in the pertinent user
communities.



According to the Requirements, *matching domain name labels will be
generated for each Trademark Record in accordance with the Trademark
Clearinghouse’s domain name matching rules*.



The matching rules at the TMCH obviously, however, fail to take into
account the trademarks in IDN scripts involving variants, although the
variant issues had been raised by the language community experts at the
Implementation Assistant Group (IAG).



Variant matching is actually critical for certain language communities.
Take Chinese for example, where a trademark holder merely registers a
simplified word-mark but not its traditional equivalence, there will only
be one trademark record generated in the TMCH. Since the new gTLD
registries are obliged to offer sunrise services and trademark claims for
the trademarks recorded in the TMCH, only that simplified word-mark will be
eligible for sunrise registration and trademark claim services and leaves
the traditional equivalence open for cybersquatting. Since both writings of
the word-mark are deemed identical in the Chinese community and few
trademarks are registered in both writings, ruling out the un-registered
writing would make TMCH completely useless to Chinese trademarks.



What is even more striking is that the Requirements specifically prohibits
any registry from implementing *variant or bundling rules* and allocating
domain names *under such variant or bundling rules prior to the
conclusionof the Sunrise Period.
* Such restriction actually excludes any solution for IDN trademarks
involving variants to be accommodated in the sunrise period at the TLD
level, even though a registry is willing fix the variants through its
registration management and at its own costs.



Trademarks have very important function of safeguarding public interests by
identifying the source of goods or services. The malfunctioned TMCH design
would cause serious public confusion and market chaos. Although at-large
community never supports over-extensive trademark measures, ICANN should
treat all the trademarks equally, irrespective of the characters of the
trademarks, and protect the users in all language communities from
confusion equally.



At-Large community has made the statement on the Trademark Clearinghouse
(TMCH) in September 2012, in which at-large community concerns that the
design of TMCH model that uniformly applies to all the gTLD registries,
irrespective of their difference, may not provide the tailored services
that are really needed by the new gTLD registries. At-large community
suggested that “more open and flexible model deserves further exploration.”



The Chinese Internet user community, dating back to October 2011, suggested
that IDN-script trademarks involving variants should be taken into account
in the TMCH services and ICANN consider adopting community-based solution
to address this issue. Many other language communities shared the views of
Chinese community.



Unfortunately, ICANN has been deaf to the user community’s feedback and
inputs and moves steadily toward the centralized, inflexible and
variants-unfriendly TMCH. At-large community, therefore, strongly suggests
that ICANN support community-based TLD-bottom-up solution for TMCH
implementation and address the IDN variant issue before TMCH provides the
services to the new gTLD registries.





-- 
Professor Dr. Hong Xue
Director of Institute for the Internet Policy & Law (IIPL)
Beijing Normal University
http://www.iipl.org.cn/
19 Xin Jie Kou Wai Street
Beijing 100875 China