[Tmch-iag] Trademark Clearinghouse IAG - Comments on Draft Implementation Model

[Tom Barrett]

Dear IAG,
 
While the draft TMCH model appears to be comprehensive, it is lacking many
details and nuances that have been discussed within the IAG
It is not clear how further refinement of the TMCH policies and rules will
take place in a transparent manner.
 
There are three specific issues that I would like to comment on.
 
1. Potential Abuse from Data Mining
I find the proposed model of distributing encrypted data an elegant approach
that, if feasible, could possibly meet the needs of both trademark owners
and registry operators.
 
Since this first appeared only in the draft model, there hasn't been much
discussion on the feasibility of this approach.
If adopted, I still see the risk of  potential data mining by registries,
registrars and end-users.
 
I believe the best way to detect such data mining is to ensure that all
queries and/or displays of claims data is logged and made available to the
TMCH for possible reporting purposes, even if no end-user domain name
registration is consummated .  The trademark owner is in the best position
of determining if data mining has occured for their portfolio.   A Trademark
owner should be able to receive a periodic report showing how often a claims
notice was triggered for their trademarks, regardless if there were no
resulting registration. 
 
 
2. Creating New Rights
I believe there is consensus that offical  trademark data sources should be
used to verify submissions to the TMCH.  However, the issue of what to do if
the submission does not match the official record remains problematic.  In
order to rely on official data sources, trademark owners should be
encouraged to maintain accurate records at the official data sources.
 
A  blanket  policy of allowing applicants, including assignees and
licensees, to simply provide a letter declaring their rights to a string
should not be deemed sufficient to allow over-riding the offical owner of
record.  If  such Declarations are allowed, then the TMCH would result in a
repository of rights that  are  not reflected in the official data sources.
The community would be unable to verify the Rights of records in the TMCH if
such rights are not reflected in official data sources.  Such a practice
would be counter to the transparency objective of ICANN. 
 
 
3. Treatment of Special Characters
Limiting the transliteration of only two special characters "@" and "&"
appears arbitrary and a  possible misreading of the IRT Report.
All special characters should be allowed so as to avoid eliminating bona
fide trademarks  from protection in the TMCH .  The trademark owner should
specify at the time of submission to the TMCH, the transliteration of any
special characters in their trademarks , so that the registrable domain name
strings can be generated.   
 
The TMCH should make available to the public reports showing the
transliteration of special characters provided by trademark owners.  This
published report does not need to include the trademark containing these
special characters.  Transparency of this information is important to help
explain to the community how certain domain name strings are protected by
the TMCH absent the existence of the exact domain name string in the
official trademark data sources.
 
Sincerely,
 
Thomas Barrett
EnCirca, Inc
 

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