[GNSO-RPM-WG] 3.2.4 transcript with ICANN General Counsel confirming status
claudio di gangi
ipcdigangi at gmail.com
Wed Oct 16 20:06:19 UTC 2019
Paul,
It looks like we are including some of the open issues in the Initial
Report, seeking public comment, and then concluding work on them after we
review the public comments.
That’s the sense I’m getting - Julie or Co-Chairs, please correct me if I
am mistaken.
On Wednesday, October 16, 2019, Paul Tattersfield <gpmgroup at gmail.com>
wrote:
> Rebecca, last week you asked me for suggested wording to improve your
> proposal an I suggested an amendment with detailed reasoning, unfortunately
> I didn’t see a reply.
>
> It is not clear to me under which subsection a mark like UNHCR would enter
> the TMCH under your proposal please can you explain under which section it
> would be placed and the reasoning behind it,
>
> Many thanks, Paul
>
> On Wed, Oct 16, 2019 at 8:54 PM claudio di gangi <ipcdigangi at gmail.com>
> wrote:
>
>> I missed the first ten minutes of the call. It’s not clear to me what
>> final language was settled upon, can someone clarify this?
>>
>> Thanks
>>
>> Best regards,
>> Claudio
>>
>> On Wednesday, October 16, 2019, Julie Hedlund <julie.hedlund at icann.org>
>> wrote:
>>
>>> Correct Rebecca. Per the WG agreement on the call today, this item is
>>> closed.
>>>
>>> Best,
>>> Julie
>>>
>>> On 10/16/19, 3:41 PM, "GNSO-RPM-WG on behalf of Tushnet, Rebecca" <
>>> gnso-rpm-wg-bounces at icann.org on behalf of rtushnet at law.harvard.edu>
>>> wrote:
>>>
>>> My understanding was that this was closed per our discussion on the
>>> call. Can Chairs or staff provide guidance? Claudio’s message came in
>>> during the call for me.
>>>
>>> Rebecca Tushnet
>>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>>>
>>> Sent from my phone. Apologies for terseness/typos.
>>>
>>> > On Oct 16, 2019, at 1:43 PM, Paul Tattersfield <gpmgroup at gmail.com>
>>> wrote:
>>> >
>>> > Claudio, Thank you for the archive link. Under Rebecca’s and your
>>> > proposal, including these latest thoughts on section 3.2.4, which
>>> > section do you feel a mark like UNHCR would be entered in under the
>>> > proposal/recommendation?
>>> >
>>> >> On 10/16/19, claudio di gangi <ipcdigangi at gmail.com> wrote:
>>> >> All,
>>> >>
>>> >> I am very happy that ICANN is transparent and transcribes is
>>> meetings,
>>> >> which is particularly essential in this fluid and complex
>>> environment.
>>> >>
>>> >> Since I was involved in the ICANN committee that developed the
>>> proposal for
>>> >> the Trademark Clearinghouse, which was called the IP
>>> Clearinghouse, I have
>>> >> known from the start that the concept of allowing other forms of
>>> IP in the
>>> >> Clearinghouse was always part of the concept, because there was
>>> always
>>> >> broad agreement that the ICANN-imposed Mandatory RPMs, were the
>>> ceiling and
>>> >> not the floor.
>>> >>
>>> >> The new gTLD Registry controls the allocation of all domain names
>>> within
>>> >> its TLD, and can therefore establish voluntary mechanisms,
>>> consistent with
>>> >> local laws, to protect consumers from confusion and harm from
>>> malicious
>>> >> actors.
>>> >>
>>> >> Since the Clearinghouse database is just an administrative tool
>>> to support
>>> >> the implementation of these mechanisms, both mandatory and
>>> voluntary, there
>>> >> was never a reason to exclude certain forms of IP in the
>>> Clearinghouse for
>>> >> the sole purpose of supporting the voluntary RPMS that a specific
>>> Registry
>>> >> may adopt.
>>> >>
>>> >> We have reached consensus on this point, in particular through the
>>> >> ancillary database concept, but have gotten snagged on the
>>> wording of
>>> >> particular provisions, including 3.2.3 and 3.2.4
>>> >>
>>> >> Section 3.2.4 currently states: "Other marks that constitute
>>> intellectual
>>> >> property" - and this category: 3.2.4 - is NOT for the mandatory
>>> Sunrise or
>>> >> Claims period, but for voluntary registry-specific RPMs.
>>> >>
>>> >> I located the transcript from the ICANN meeting when the Applicant
>>> >> Guidebook was essentially completed; it had reach the near final
>>> stage.
>>> >>
>>> >> 3.2.4 was specifically discussing during this meeting; the
>>> confusion with
>>> >> the language was identified (and it was even predicted that it
>>> was going to
>>> >> cause confusion) and ICANN staff and General Counsel agreed that
>>> 3.2.4
>>> >> extended to other forms of IP beyond trademarks. In other words,
>>> we have
>>> >> been confused on this clause simply because of imprecise drafting
>>> of this
>>> >> provision.
>>> >>
>>> >> Please see the transcript here: https://urldefense.proofpoint.
>>> com/v2/url?u=https-3A__archive.icann.org_en_&d=DwIGaQ&c=
>>> FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_
>>> lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=dMQQGBWfWo48zFbvOyLacmM0-
>>> clVWIm-GBUZA-g1PQ0&s=JxrlTJQ81REjQU12K21t83qqhIWNXo70RXqH8jzRNtQ&e=
>>> >> meetings/singapore2011/bitcache/Trademark%20Clearinghouse%
>>> 20Implementation%20Plan-vid=26005&disposition=attachment&op=download.txt
>>> >>
>>> >> I am quoting the relevant section:
>>> >>
>>> >> "J. Scott Evans: Another comment to Amy. Amy, I think that the
>>> guidebook's
>>> >> use of "other marks" confusing, and that needs to be changed to
>>> "other
>>> >> indicia," because we're already talking about marks in
>>> trademarks, and if
>>> >> you just make that
>>> >> one change, because I think the idea is there are other indicia
>>> other than
>>> >> trademarks that might be protected by the local registry, and we
>>> just need
>>> >> to make that clear. Because I think there's some confusion,
>>> well, if
>>> >> trademarks are here, what are other marks.
>>> >>
>>> >>>> AMY STATHOS: Right. And with respect to the assignment issue,
>>> sometimes
>>> >> the database that has the assignment documents may be different
>>> than the
>>> >> actual database that has the actual registration, so looks like
>>> it's
>>> >> something that --
>>> >>
>>> >> -------
>>> >>
>>> >> So 3.2.4. was always intended to allow other forms of IP to be
>>> recorded in
>>> >> the main TMCH database for implementation of voluntary
>>> Registry-specific
>>> >> voluntary RPMs. I hope this closes the debate on 3.2.4. and here
>>> is my
>>> >> proposed modification to bring clarity to its meaning:
>>> >>
>>> >> "3.2.4 Other Signs or Indicia that constitute intellectual
>>> property"
>>> >>
>>> >> Best regards,
>>> >> Claudio
>>> >>
>>> > _______________________________________________
>>> > GNSO-RPM-WG mailing list
>>> > GNSO-RPM-WG at icann.org
>>> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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>>
>>
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