[PC-NCSG] final statement as submitted on proposals for additional rpms
Robin Gross
robin
Fri Nov 2 02:57:20 EET 2012
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
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