[GNSO-RPM-WG] Proposal re Q8.

Thu Oct 10 15:13:14 UTC 2019

The problem with the earlier suggested wording is some marks are not
trademarks but function as trademarks. Once they have been notified to a
trademark office even the original applicant cannot register a
corresponding trademark.

The addition of ‘established in’ should solve any jurisdictional issues by
limiting the scope of ‘protected by’

On Thu, Oct 10, 2019 at 3:52 PM claudio di gangi <ipcdigangi at gmail.com>
wrote:

> Paul T.,
>
> Thanks for this; have you been able to sort out the question about the
> overall uniformity of this approach?
>
> Unfortunately, 3.2.3 has to be a one-size-fits-all rule that covers every
> jurisdiction worldwide.
>
> Finally, if you see any shortcomings on the new text that Rebecca and I
> settled on earlier this week, please let us know. I think it accomplishes
> the goal without implicating the various practices of the TMOs, but of
> course I am interested in your views.
>
> Best regards,
> Claudio
>
> On Thursday, October 10, 2019, Paul Tattersfield <gpmgroup at gmail.com>
> wrote:
>
>> told officially
>>
>> On Thu, Oct 10, 2019 at 2:46 PM McGrady, Paul D. <PMcGrady at taftlaw.com>
>> wrote:
>>
>>> Thanks Paul T.
>>>
>>>
>>>
>>> What does “notified to” mean?
>>>
>>>
>>>
>>> Best,
>>>
>>> Paul
>>>
>>>
>>>
>>>
>>>
>>>
>>> This message may contain information that is attorney-client privileged,
>>> attorney work product or otherwise confidential. If you are not an intended
>>> recipient, use and disclosure of this message are prohibited. If you
>>> received this transmission in error, please notify the sender by reply
>>> e-mail and delete the message and any attachments.
>>>
>>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *Paul
>>> Tattersfield
>>> *Sent:* Thursday, October 10, 2019 8:36 AM
>>> *To:* claudio di gangi <ipcdigangi at gmail.com>
>>> *Cc:* gnso-rpm-wg <gnso-rpm-wg at icann.org>
>>> *Subject:* Re: [GNSO-RPM-WG] Proposal re Q8.
>>>
>>>
>>>
>>> Hi All. Sorry for the delayed response, would this solve the problem?
>>> Best regards, Paul.
>>>
>>> 3.2.3 Any word mark notified to a national trademark office established
>>> in and protected by statute or treaty in effect at the time the mark is
>>> submitted to the Clearinghouse for inclusion
>>>
>>>
>>>
>>> On Tue, Oct 8, 2019 at 5:54 PM claudio di gangi <ipcdigangi at gmail.com>
>>> wrote:
>>>
>>> Rebecca,
>>>
>>>
>>>
>>> That's great, I am happy that you support this
>>> revised language (personally, I am fine with removing 'service mark' as I
>>> do not see that causing a problem, as it has not been an issue to date).
>>> Since I feel this is the most precise text developed to date, let's stay
>>> with this going forward (see below).
>>>
>>>
>>>
>>> 3.2.3 Any word mark protected by a statute or treaty in effect at the
>>> time the mark is submitted to the Clearinghouse for inclusion; the word
>>> mark protected by statute or treaty must be a trademark.
>>>
>>>
>>>
>>> On your other feedback, I did not mean to imply your agreement on 3.2.3
>>> impacts the other elements in your proposal; but simply that we
>>> combine the areas where we agree, e.g. there should be no bar on ancillary
>>> services, etc., and then parse out the other areas for consideration.
>>>
>>>
>>>
>>> I believe that is exactly how the consensus-building process is intended
>>> to function.
>>>
>>>
>>>
>>> From my point of view, an exception to this general rule is the specific
>>> case of when the aspects of a particular proposal are so inter-related
>>> that they form a package of policy recommendations that can not be
>>> untethered, e.g. a "unitary proposal".
>>>
>>>
>>>
>>> Or if someone compromises on an issue they believe is critical, I don't
>>> think it's fair to then turn around and say "OK you compromised on this
>>> important area, so we'll count you in on the compromise but discard the
>>> rest of your ideas."
>>>
>>>
>>>
>>> I'm glad we were able to make further progress before our call on
>>> Thursday.
>>>
>>>
>>>
>>> Best regards,
>>>
>>> Claudio
>>>
>>>
>>>
>>>
>>>
>>> On Tue, Oct 8, 2019 at 11:21 AM Tushnet, Rebecca <
>>> rtushnet at law.harvard.edu> wrote:
>>>
>>> To be clear, my proposal, which is still my proposal, defines trademark
>>> to include service marks, collective marks, and certification marks. I
>>> believe it makes more sense to do so in a footnote that covers the entire
>>> section 3 than in this subsection. I am happy to use the language you
>>> proposed several days ago for 3.2.3, or this (I’d remove service mark given
>>> the overall definition) but I am not withdrawing the overall proposal.
>>>
>>> Rebecca Tushnet
>>>
>>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>>>
>>>
>>>
>>> Sent from my phone. Apologies for terseness/typos.
>>>
>>>
>>>
>>> On Oct 8, 2019, at 10:52 AM, claudio di gangi <ipcdigangi at gmail.com>
>>> wrote:
>>>
>>> 
>>>
>>> Rebecca,
>>>
>>>
>>>
>>> Thanks for the feedback; I have removed "referenced by" and "legally
>>> recognized as" because 1) by removing, it makes the provision more
>>> concise (which I tend to favor) and precise; and 2) I don't think it
>>> changes the meaning of what we are attempting to clarify here.
>>>
>>>
>>>
>>> Please see below, hope this is satisfactory. I added-in "service mark"
>>> because I recall Greg mentioning that on our call two weeks ago for extra
>>> clarity, but if we just want to say "trademark" I think its OK (as services
>>> aren't referenced in 3.1.1 or 3.1.2..
>>>
>>>
>>>
>>> 3.2.3 Any word mark protected by a statute or treaty in effect at the
>>> time the mark is submitted to the Clearinghouse for inclusion; the word
>>> mark protected by statute or treaty must be a trademark/service mark.
>>>
>>>
>>>
>>> On Mon, Oct 7, 2019 at 1:29 PM claudio di gangi <ipcdigangi at gmail.com>
>>> wrote:
>>>
>>> Rebecca, all,
>>>
>>>
>>>
>>> I am making a final attempt below on 3.2.3; I think this version is more
>>> specific, condense, and in alignment with the original spirit of 3.2.3.
>>>
>>>
>>>
>>> I hope you find this language acceptable.
>>>
>>>
>>>
>>> If the WG isn't able to each consensus on the exact language on 3.2.3
>>> for inclusion in the Initial Report, then I recommend we defer to staff
>>> and/or the IRT that will follow this PDP for developing more
>>> exact language.
>>>
>>>
>>>
>>> We have the option to simply put forward a general rule for public
>>> comment in the Initial Report, i.e. "GIs and Appellations of Origin do not
>>> qualify for TM Claims and Sunrise, unless those signs are
>>> independently registered as trademarks," in addition to the other set of
>>> provisions which we are generally aligned on w/r/t/ this subject matter,
>>> e.g. "there shall be no prohibition on using the same ancillary
>>> database for GIs across multiple new gTLDs, etc."
>>>
>>>
>>>
>>> ------
>>>
>>>
>>>
>>> 3.2.3 Any word mark protected by a statute or treaty in effect at the
>>> time the mark is submitted to the Clearinghouse for inclusion; the word
>>> mark protected by statute or treaty must function as, or be legally
>>> recognized as, a trademark or service mark.
>>>
>>>
>>>
>>> ------
>>>
>>>
>>>
>>> Of course, I remain open to your thoughts and any additional input WG
>>> members may have. Thanks!
>>>
>>>
>>>
>>> Best regards,
>>>
>>> Claudio
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Thu, Oct 3, 2019 at 3:26 PM claudio di gangi <ipcdigangi at gmail.com>
>>> wrote:
>>>
>>> Sorry, but this made me think about the Boy Scouts legislation under
>>> U.S. law, see: https://www.law.cornell.edu/uscode/text/36/30905
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.cornell.edu_uscode_text_36_30905&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=AB-OFCOWkNtMN0rGQpsDXsXljiOXE-4OgNXtMdPp9lA&s=N6x8UPsvMdhkmJxwLwIOP6wkHxGQiGzWyNVc7CYO6EI&e=>
>>>
>>>
>>>
>>> The corporation has the exclusive right to use emblems, badges,
>>> descriptive or designating marks, and words or phrases the corporation adopts.
>>> This section does not affect any vested rights.
>>>
>>>
>>>
>>> .....
>>>
>>>
>>>
>>> So I think we just need to change “identified” with “referenced” because
>>> identified is too specific. If the Boy Scout corporation adopts a new mark,
>>> it will be protected as a trademark under U.S law, but that trademark is
>>> not “identified” within the statue (depending on how strictly one
>>> interprets “identified”), but it is “referenced” in the statute.
>>>
>>>
>>>
>>> 3.2.3 Any word mark protected by a statute or treaty in effect at the
>>> time the mark is submitted to the Clearinghouse for inclusion, and which is
>>> referenced within the Statute or Treaty as a mark that functions as a
>>> trademark.
>>>
>>>
>>>
>>> Hope you are still OK with this Rebecca? Thanks!
>>>
>>> On Thursday, October 3, 2019, Tushnet, Rebecca <rtushnet at law.harvard.edu>
>>> wrote:
>>>
>>> Claudio's proposal would then read
>>>
>>> 3.2.3 Any word mark protected by a statute or treaty in effect at the
>>> time the mark is submitted to the Clearinghouse for inclusion, and which
>>> is identified within the Statute or Treaty as a mark that functions as a
>>> trademark
>>>
>>>
>>>
>>> I'm fine with that.  For comparison purposes, my proposed language (with
>>> bold indicating additions to current language) is:
>>>
>>>
>>>
>>> Any word marks *specified in and *protected by a statute or treaty *as
>>> trademarks* in effect at the time the mark is submitted to the
>>> Clearinghouse for inclusion.
>>>
>>>
>>>
>>> Relatedly, I got further information from Dev Gangjee (who studies GIs)
>>> and Robert Burrell (an expert on the Australian registration system), both
>>> of whom reported that GIs are listed with the TM offices with which they
>>> are familiar (in Australia wine GIs get special treatment), so unless
>>> Paul's proposal is also coupled with a "Notwithstanding the foregoing, no
>>> GIs," I don't think it would do the job that the consensus appears to want
>>> done.  For the reasons discussed on the call, I'm uncomfortable with a rule
>>> that appears to single out GIs for exclusion while allowing non-TM,
>>> non-GIs.
>>>
>>>
>>>
>>> Rebecca Tushnet
>>>
>>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>>> 703 593 6759
>>> ------------------------------
>>>
>>> *From:* claudio di gangi <ipcdigangi at gmail.com>
>>> *Sent:* Thursday, October 3, 2019 1:15 PM
>>> *To:* Michael Graham (ELCA) <migraham at expediagroup.com>
>>> *Cc:* Tushnet, Rebecca <rtushnet at law.harvard.edu>; Paul Tattersfield <
>>> gpmgroup at gmail.com>; gnso-rpm-wg <gnso-rpm-wg at icann.org>
>>> *Subject:* [GNSO-RPM-WG] Proposal re Q8.
>>>
>>>
>>>
>>> Michael,
>>>
>>>
>>>
>>> I agree with the points that Rebecca here, just noting that I believe
>>> the closest analogy is GIs function in a similar manner as certification or
>>> collective trademarks in the U.S.
>>>
>>>
>>>
>>> In fact, this is how I believe the USPTO sets forth that GIs are
>>> protected in the U.S as per the obligations the U.S has undertaken as a
>>> signatory of the international TRIPS agreement.
>>>
>>>
>>>
>>> Whereas, collective and certification marks are examined on absolute and
>>> relative grounds, GIs are protected through sui generis legislation (in
>>> believe in most cases, it’s possible they may be protected under common law
>>> in some jurisdictions but I’m not sure) - as certain trademarks like those
>>> protected by statue or treaty are sui generis in form.
>>>
>>>
>>>
>>> This is why I always felt that the TMCH Operator in good faith
>>> interpreted 3.2.3 to potentially allow GIs in the Clearinghouse, with all
>>> the qualifying language they added (such as “may be eligible” - I don’t
>>> think they ever stated “are eligible”), and we did not know if or any GIs
>>> are still recorded in the TMCH.
>>>
>>>
>>>
>>> In my personal view, (albeit, I am not an expert on GIs), I believe the
>>> number of countries that protect GIs has substantially increased since the
>>> First WIPO Process, providing more universality across the spectrum,
>>> compared to when this issue was initially considered by the international
>>> community under WIPO’s inclusive consultation on IP and DNS policy.
>>>
>>>
>>>
>>> In addition, I believe in most countries that protect GIs through sui
>>> generis legislation, a senior GI has priority over a later registered
>>> trademark for the same class of goods/services.
>>>
>>>
>>>
>>> But since trademarks are protected in every country worldwide through a
>>> combination of common law, statutory law, or constitutional law, I
>>> understand/support the perspective that Sunrise should take place first,
>>> based on that correspondence of global protection.
>>>
>>>
>>>
>>> The only incongruence that I can potentially see arising is if a junior
>>> trademark holder in a certain country uses Sunrise to register a domain
>>> during Sunrise when actually the GI rights holder in that country has
>>> senior or superior rights. For example, there is often litigation where a
>>> national (or district) court in a country will hold that the GI has
>>> priority over the junior mark in that country, even if the trademark was
>>> registered in good faith.
>>>
>>>
>>>
>>> Perhaps this can be addressed by having a provision in the SDRP policy
>>> for this very scenario (which registries may voluntarily choose to adopt),
>>> or we could consider adding it to the mandatory SDRP (but I defer to the
>>> Co-chairs and the WG).
>>>
>>>
>>>
>>> In other words, the objective is to match offline IP law with the DNS
>>> and the associated rules for allocating domain names, e.g. if the GI rights
>>> holder can provide a court decision to the TMCH Operator that demonstrates
>>> it has priority under the national law of its country against the junior
>>> mark holder in its country.
>>>
>>>
>>>
>>> Although, what may occur in practice is the court will require
>>> cancellation of the junior trademark, so I’m not sure it’s necessary. I
>>> defer to others who have substantive experience practicing law in this
>>> space, like Jonathan Agmon to help inform us with their perspective.
>>>
>>>
>>>
>>> Rebecca,
>>>
>>>
>>>
>>> We can remove source identifier from my definition if that makes you
>>> more comfortable; I don’t think it’s necessary to have it included in my
>>> 3.2.3. Is that satisfactory for you then to accept my definition?
>>>
>>>
>>>
>>> Best regards,
>>>
>>> Claudio
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Tuesday, October 1, 2019, Michael Graham (ELCA) <
>>> migraham at expediagroup.com> wrote:
>>>
>>> Wondering out loud whether GIs are necessarily “source identifiers”.  My
>>> understanding is that they are identifiers of particular geographic
>>> locations, whereas trademarks are source identifiers.  GIs may be source
>>> identifiers, but to the extent they are then they would be considered
>>> trademarks.  So . . . am I missing something in the terminology?
>>>
>>>
>>>
>>> Michael R.
>>>
>>>
>>>
>>> [image: cid:image001.png at 01D49D39.23E390C0]
>>>
>>>
>>>
>>>
>>>
>>> *Michael R. Graham*
>>>
>>> Senior Counsel and Global Director,
>>>
>>> Intellectual Property, *Expedia Group*
>>>
>>> T +1 425 679 4330 | M +1 425 241 1459
>>>
>>> 333 108th Ave. NE | Bellevue | WA 98004
>>>
>>> Email: *migraham at expediagroup.com <migraham at expediagroup.com>*
>>>
>>>
>>>
>>>
>>>
>>> [image: cid:image002.png at 01D49D39.23E390C0]
>>>
>>>
>>>
>>> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *Tushnet,
>>> Rebecca
>>> *Sent:* Tuesday, October 1, 2019 1:50 PM
>>> *To:* claudio di gangi <ipcdigangi at gmail.com>; Paul Tattersfield <
>>> gpmgroup at gmail.com>
>>> *Cc:* gnso-rpm-wg <gnso-rpm-wg at icann.org>
>>> *Subject:* Re: [GNSO-RPM-WG] Proposal re Q8.
>>>
>>>
>>>
>>> From my perspective, the key problem is that "source identifier"
>>> describes, among other things, GIs.  We can engage in special pleading
>>> against GIs and just carve them out, but I admit that leaves me a bit
>>> sour.  I also would note that the relevant statutes I've seen don't use the
>>> words "source identifier" either, so we are still shuffling off the
>>> interpretive weight to Deloitte.  (E.g., although the Red Cross also has TM
>>> registrations, the Red Cross US statute that has been mentioned in this
>>> discussion uses the word "use" to define one prohibited act, and "wears
>>> or displays ... for the fraudulent purpose of inducing the belief that he
>>> is a member of or an agent for the American National Red Cross" to define
>>> the other prohibited act.)
>>>
>>>
>>>
>>> For these reasons, I have come around to not wanting to add "source
>>> identifier" to the definition--I don't think it actually solves the problem
>>> and it might make things even less clear.  Other than that, I do think we
>>> have gotten a lot closer.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 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, October 1, 2019 4:11 PM
>>> *To:* Paul Tattersfield <gpmgroup at gmail.com>
>>> *Cc:* Tushnet, Rebecca <rtushnet at law.harvard.edu>; gnso-rpm-wg <
>>> gnso-rpm-wg at icann.org>
>>> *Subject:* Re: [GNSO-RPM-WG] Proposal re Q8.
>>>
>>>
>>>
>>> Paul,
>>>
>>>
>>>
>>> I agree with you; and you have spotted one of the areas of divergence
>>> between my proposal and Rebecca's.
>>>
>>>
>>>
>>> My proposal includes alternative language on this provision - that I
>>> believe addresses your point, but I am interested in your perspective.
>>>
>>> Best regards,
>>> Claudio
>>>
>>>
>>>
>>>
>>>
>>> On Tue, Oct 1, 2019 at 4:00 PM Paul Tattersfield <gpmgroup at gmail.com>
>>> wrote:
>>>
>>> Rebecca, I believe in 3.2.3 you should not add the words "as trademarks"
>>> as the marks concerned are not trademarks. For example once such 6ter marks
>>> are communicated to the USPTO and are accepted it is not possible for any
>>> organization to register a trademark containing the mark and importantly
>>> that includes the originating entity itself. Instead an 89 serial is
>>> created so the mark turns up in an examining attorney’s search etc.
>>>
>>> Best regards, Paul
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Tue, Oct 1, 2019 at 8:04 PM Tushnet, Rebecca <
>>> rtushnet at law.harvard.edu> wrote:
>>>
>>> This is the same text but with the subject line proper.
>>>
>>>
>>>
>>>
>>>
>>> Rebecca Tushnet
>>>
>>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>>> 703 593 6759
>>>
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