[PC-NCSG] final statement as submitted on proposals for additional rpms

[Robin Gross]

1 November 2012


Statement of ICANN?s Non-Commercial Stakeholders Group (NCSG)

on the IPC-BC?s Proposal for Additional RPMs*


Executive Summary



?      NCSG is concerned by proposals from the IPC and BC to change  
consensus policy and re-open previously settled policy matters on  
Rights Protection Mechanisms for new tlds.

?      The proposal under discussion does not reflect the hard-won  
balance found in the current consensus policy, nor the traditional  
limitations that exist in trademark law.

?      The proposal removes matters from the negotiated RAA and  
registry agreements into a vague 'backdoor process', and binds ICANN  
to unlimited compliance obligations.

Both the substance of the proposals and the manner of presenting it  
directly to ICANN without a proper policy process undermine our  
shared desire to create a truly multi-equal stakeholder process that  
honours ICANN's commitment to transparency and accountability.



The Non-Commercial Stakeholders Group (NCSG) writes in response to  
the latest set of proposals to re-open well-settled matters related  
to trademark Rights Protection Mechanisms (RPMs) for new top-level  
domain names, specifically the 8-point letter sent by the  
Intellectual Property Constituency (IPC) and the Business  
Constituency (BC) on 17 October 2012 to ICANN.[1]

NCSG is deeply troubled that ICANN is considering ignoring its own  
policy development process by re-opening community negotiated  
compromises at this late date.  We wish to underscore the need for  
equal participation from all impacted parties, including the NCSG, in  
any discussions to re-open policy or consider new proposals.

NCSG wishes to register concern with the process by which these  
proposals were presented directly to ICANN Board and senior staff in  
Toronto, bypassing the impacted communities and entirely  
circumventing the multi-stakeholder policy development process.  The  
NCSG Policy Committee, which considers and develops policy positions  
for the NCSG, has yet to be approached by any of the proponents of  
these proposals to discuss them or any of the concerns behind them.[2]

NCSG supports the positions taken by NTAG in its 24 October 2012  
letter to ICANN and notes its succinct observation that ?these last- 
minute policy recommendations amount to just another bite of the same  
apple that has already been bitten down to its core.?[3]

NCSG also supports the statement of the Registrars Stakeholder Group  
(RrSG) in response to the IPC-BC proposals for increased RPMs, and we  
agree with RrSG?s analysis that ?the additional RPMs circulated in  
Toronto represent a change to the policy and not the implementation  
of the TMCH.?[4]

Indeed many of the proposals in the 17 October IPC-BC letter are  
proposals the community has already heard and rejected a number of  
times in the years of previous discussions on this subject.

The IPC-BC?s letter raises from the dead rejected proposals such as  
the creation of a list of words that would be considered per se off  
limits for registration, thus creating a prior restraint on speech. 
[5]  This proposal is broadly over-reaching in what it prohibits and  
would prevent many lawful uses such as corporate whistle-blowing  
websites, criticism of trademarked goods, services and companies, and  
other lawful uses of words by those other than a trademark owner.

The IPC-BC proposals contain none of the balance nor limitations  
found in the current consensus policy, nor in trademark law such as:
geographical limitations to a trademark owner?s rights,
the restrictions of trademark rights to particular classes of goods  
and services, and
the regulation of commercial speech only, and
legal rulings that rightfully apply to only specific persons and  
specific facts.

Furthermore, just because there has been one instance of abuse with a  
trademark, does not mean that all subsequent uses of a trademarked  
word are abusive or prohibited by law.  But that is the policy that  
IPC-BC proposes ICANN adopt.

The IPC-BC letter proposes to expand the rights afforded trademark  
holders beyond the bounds of law and reason and beyond the consensus  
reached by the entire community in the STI[6] and related discussions.

The IPC-BC letter proposes to remove matters that are properly and  
currently under negotiation with registrars in the Registrar  
Accreditation Agreement (RAA).[7]  And it proposes to unilaterally,  
via this ?back-door process?, impose contractual terms and  
conditions on registrars and registries,[8] and to bind ICANN to  
vague unreasonable compliance commitments,[9] driving-up costs for  
end-users and stifling innovation in the market.  By changing a  
finite period for action to an indefinite one, the IPC-BC proposal  
would create a chilling effect by giving trademark holders the right  
to intimidate registrants in perpetuity despite the community  
consensus that the TMCH pertain to a limited time period.[10]

In short, in addition to the objection based on principle against re- 
opening community-approved consensus policy, the NCSG contends that  
the substance of the IPC-BC?s proposals would massively expand  
rights afforded to trademark holders under law, without any of the  
balancing or public interest limitations placed upon those rights.   
These last-minute proposals must be rejected as an inappropriate  
circumvention of the bottom-up multi-equal stakeholder policy  
development process that ICANN champions.  It is far too late to make  
such significant changes from what is stated in the final Applicant  
Guidebook.

NCSG appreciates the invitation to meet with ICANN?s CEO and senior  
staff in the equal manner afforded to the proponents of the IPC-BC  
proposals, although we regret that we must again debate long-settled  
policy issues.  We stand ready to further elaborate on the specific  
IPC-BC proposals in detail, including the history and context from  
which they derive, and their relationship to existing law and  
consensus policy as stated in the Guidebook.  Thank you.


* This NCSG statement was approved by the NCSG Policy Committee on 1  
November 2012.

[1] IPC-BC 8-point letter to ICANN dated 17 October 2012, posted  
online at: http://www.icann.org/en/news/correspondence/metalitz-to- 
pritz-17oct12-en

[2] The NCSG Policy Committee includes representatives from both  
constituencies in NCSG (NPOC and NCUC), all 6 NCSG GNSO Council  
Representatives and NCSG?s Chair.

[3]  NTAG letter to ICANN of 24 October 2012 posted online at: http:// 
www.icann.org/en/news/correspondence/ntag-to-icann-24oct12-en

[4]  Registrar Stakeholder Group Post-Toronto Communication to ICANN  
CEO posted online at: http://icannregistrars.org/calendar/ 
announcements.php?utm_source=&utm_medium=&utm_campaign

[5] Specifically Points 4 and 8 of IPC-BC letter to ICANN of 17  
October 2012.

[6] ICANN Special Trademark Issues (STI) Recommendations unanimously  
approved by the GNSO Council (including the IPC and BC) in December  
2009 as a consensus policy for RPMs for new TLDs in which all parties  
compromised, but not all parties were subsequently willing to honor  
their commitments. STI Recommendations available at: http:// 
gnso.icann.org/issues/sti/sti-wt-recommendations-11dec09-en.pdf

[7] Specifically Point 6 of IPC-BC letter to ICANN of 17 October 2012.

[8] Specifically Point 5 of IPC-BC letter to ICANN of 17 October 2012.

[9] Specifically Point 7 of IPC-BC letter to ICANN of 17 October 2012.

[10] Specifically Point 2 of IPC-BC letter to ICANN of 17 October 2012.


?




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.ipjustice.org/pipermail/pc-ncsg/attachments/20121101/1c67d4c1/attachment-0002.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: NCSG-Letter-to-ICANN-2012-11-1.pdf
Type: application/pdf
Size: 100689 bytes
Desc: not available
URL: <http://mailman.ipjustice.org/pipermail/pc-ncsg/attachments/20121101/1c67d4c1/attachment-0001.pdf>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.ipjustice.org/pipermail/pc-ncsg/attachments/20121101/1c67d4c1/attachment-0003.html>