[council] Current draft of Fadi's requested communication from council
Volker Greimann
vgreimann at key-Systems.net
Wed Feb 13 23:36:38 UTC 2013
If that were so, there would be less of a problem, but it is not so, in
my opinion:
-Does a trademark allow its owner to prevent the use of the mark by
third parties in other classes, or if the mark is their name, etc, etc?
I think not. There are reasons why trademarks are limited to classes and
regions and why legitimate use of the same trademarked term cannot be
prohibited. Yet LPR would do just that. If any legitimate potential
registrant missed the sunrise period or decided to wait for a cheaper
registration period, LPR would block even legitimate registrations.
-Does a trademark require otherwise unrelated third parties to implement
and build and maintain a system at their own costs that is solely used
to inform others of a potential legal conflict, confuse customers with
information potentially irrelevant to their planned use and that
generally interferes with the customary flow of business by scaring away
or confusing potential legitimate customers and delaying orders or
inquiries?
I think not. Yet Claims II does just that to registrants, registrars and
registries. I am not aware of any other industry that at their own cost
had to create a warning system to inform third parties of potential
trademark abuse.
These are just the easiest examples of why the Strawman and the attached
LPR proposal will, in my opinion create new protections.
The claims process in itself is a new right for trademark holders not
previously granted by trademark law, so any extension of the time period
carefully considered and agreed upon by the community expands the reach
of this new right for trademark holders. These proposals have been on
the table before in some form or other and have been rejected by the
community. Fadi Chehade’s has stated himself in his letter to the U.S.
Congress that the 60 days period should not be extended unilaterally by
ICANN, yet this is what is proposed now.
The extension of claims to non-exact matches was previously rejected by
the Special Trademark Issues Review Team, i.e. a GNSO created team.
If Trademark law provided the level of protection to automatically
include non-exact matches in the manner proposed in the strawman,
lawmakers would have implemented such a list. Yet none did. While the
trademark protection can be extended to additional near match strings,
it is the duty of the courts to decide this. And just because a certain
string has been used in an infringing manner, that does not mean that
there are not also non-infringing manners in which the same string may
legitimately be used.
These proposals create a new fence to protect trademark holders from
legitimate and illegitimate registrations of their marks alike.
Solely the 30 day notice period does not create any new rights specific
to trademark holders. The rest is a matter for a PDP, not for a closed
door, no outside communication allowed session. ICANN should not deviate
from the multi-stakeholder principle. If any outcome of our policy
development and consensus building processes is subject to unilateral
revision once a small part of the community is no longer sufficiently
happy with the consensus results, the multi-stakeholder model is dead.
Volker
>
> I will not argue with your metaphor -- I am quite fond of apples. But
> I do quibble with you saying the strawman is "an expansion of the
> rights of a trademark holder in the domain world." Trademark rights
> exist (not always consistently) in all earthly realms. The strawman
> is not seeking to create new ones, merely to create a method by which
> those that already exist can be enforced.
>
> Cheers,
>
> Berard
>
> --------- Original Message ---------
> Subject: Re: [council] Current draft of Fadi's requested
> communication from council
> From: Volker Greimann - Key-Systems GmbHz <vgreimann at key-Systems.net>
> Date: 2/12/13 4:25 pm
> To: "john at crediblecontext.com" <john at crediblecontext.com>
> Cc: "Mason Cole" <mcole at 5x5com.com>, "council at gnso.icann.org List"
> <council at gnso.icann.org>
>
> I think Fadi has made it very clear during the meeting in
> Amsterdam that he has now understood the BC and IPC requests that
> led to the strawman as a second bite of the apple, as he called
> it. The proposed contents of the strawman would certainly
> constitute an expansion of the rights of a trademark holder in the
> domain world. I therefore support sending the draft letter as is.
>
> Sent from my iPad
>
> On 13.02.2013, at 01:11, john at crediblecontext.com
> <mailto:john at crediblecontext.com> wrote:
>
> Mason,
>
> Did I not suggest the "expansion of rights" language is a bit
> over the top?
>
> Berard
>
> --------- Original Message ---------
> Subject: [council] Current draft of Fadi's requested
> communication from council
> From: Mason Cole <mcole at 5x5com.com <mailto:mcole at 5x5com.com>>
> Date: 2/12/13 3:00 pm
> To: "council at gnso.icann.org
> <mailto:council at gnso.icann.org> List"
> <council at gnso.icann.org <mailto:council at gnso.icann.org>>
>
> Council colleagues --
>
> As you know, Fadi requested of the council its input
> regarding the strawman proposal resulting from the BC's
> and IPC's request for additional RPMs in new gTLDs. On
> December 27, I circulated an early draft of a council reply.
>
> The communication is due very shortly, and has been taken
> up by a small group within the council to ensure that all
> points of view are represented. Because this is an agenda
> item for our meeting this week, at Maria Farrell's helpful
> suggestion, I'm sending the current draft to council so we
> can be prepared to discuss it then. This draft does not
> reflect additional input of the BC and IPC -- if this is
> provided prior to the meeting, I'll be happy to forward it
> to the council.
>
> Thanks --
>
> Mason
>
>
>
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