[PC-NCSG] PC Endorsement Request

[Klaus Stoll]

Same here

Klaus

On 4/29/2015 8:03 PM, Sam Lanfranco wrote:
> Put me down as endorsing Kathy's comments.....and thanks Kathy!
>
> Sam L.
>>
>>> *From:* Kathy Kleiman <kathy at KATHYKLEIMAN.COM 
>>> <mailto:kathy at KATHYKLEIMAN.COM>>
>>> *Date:* April 29, 2015 at 8:37:43 PM GMT+1
>>> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU 
>>> <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
>>> *Subject:* *Comments on the Draft Rights Protection Mechanism Review 
>>> paper - now finishing ICANN Public Comment*
>>> *Reply-To:* Kathy Kleiman <kathy at KATHYKLEIMAN.COM 
>>> <mailto:kathy at KATHYKLEIMAN.COM>>
>>>
>>> Dear All,
>>>
>>> ICANN has published a draft of its ?Rights Protection Mechanisms 
>>> Review? to ask whether the ?rights protection mechanisms? of the New 
>>> gTLD Program work. These include the Trademark Clearinghouse (TMCH), 
>>> mandatory Sunrise Period in all gTLD to allow trademark owners to 
>>> register first, Uniform Rapid Suspension (URS) process, etc.
>>>
>>> The young NCSG played a special role in this process in 2009-2010. 
>>> We spent 7 weeks in tight negotiations with the other Stakeholder 
>>> Groups to try to balance the rights of intellectual property owners 
>>> with those of new/small businesses, noncommercial entities, users of 
>>> all stripes and the registry/registrar communities. The NCSG team on 
>>> the ?STI? (?Special Trademark Issues? Working Group was Robin Gross, 
>>> Konstantinos Komaitis, Wendy Seltzer and me with Mary Wong and 
>>> Leslie Guanyuan as our Alternates.
>>>
>>> Now as this all comes up for review again, I think ICANN Staff has 
>>> lost its way. This Draft Rights Protection Mechanism (RPM) report 
>>> does not mention anything about the fairness and balance we tried to 
>>> put in; it does not ask whether abuse about whether Registrants 
>>> receive good education about the new domain name dispute proceeding 
>>> for the URS and its defenses (the answer is No) or whether 
>>> legitimate ?fair use? of words in domain names are truly being 
>>> protected.
>>>
>>> Accordingly, I share a set of comments I have drafted.These are due 
>>> shortly (sorry, ICANN?s Proxy/Privacy Accreditation Working Group 
>>> kept us busy!) ? tomorrow (Thursday) ? *so I circulate them to all 
>>> who would like to sign on. *
>>>
>>> So far, no one has responded to this draft report with any interest 
>>> in freedom of expression, fair use or the rights of Registrants. I 
>>> guess that?s our job :-)!
>>>
>>> Link: https://www.icann.org/public-comments/rpm-review-2015-02-02-en
>>>
>>> Best,
>>>
>>> Kathy (Kleiman)
>>>
>>> --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
>>>
>>> Comments Submitted by Members of the Noncommercial Stakeholders Group
>>>
>>> Thank you for the publication of the DRAFT Rights Protection 
>>> Mechanisms Review paper. Clearly an enormous amount of work was done 
>>> to compile and analyze quantitative and qualitative data on the use 
>>> of specially-created mechanisms in the New gTLDs, such as the 
>>> Trademark Clearinghouse, Trademark Claims and Uniform Rapid Suspension.
>>>
>>> It is very important, however, that the questions being asked in the 
>>> report, and all future reports on this subject, be expanded to 
>>> reflect the whole of the GNSO and ICANN?s goals in passing these 
>>> rules:were existing rights protected, were existing fair use 
>>> protections maintained and did ICANN avoid the creation of new or 
>>> expanded intellectual property rights (which ICANN has no power or 
>>> authority to create)?
>>>
>>> With the details as set out below, we urge that the final report 
>>> expand its inquiry to see if the balance and fairness included in 
>>> these mechanisms worked for all parties: both rights holders and 
>>> registrants. Did these programs reflect the full range of goals and 
>>> commitments for all parties that ICANN set out in their adoption?
>>>
>>> /We respectfully request that we would like to see more of these 
>>> issues of balance and fairness raised in the final report. For 
>>> example, when the final report goes out to the Community with 
>>> questions of whether the URS (Uniform Rapid Suspension) worked for 
>>> trademark owners, we also should be asking whether the URS worked 
>>> for New gTLD Registrants and what obstacles they faced to education 
>>> and information in responding to URS claims./
>>>
>>> /So the comments below both respond to questions raised by ICANN 
>>> Staff ? and new ones that we would like ICANN Staff to raise in the 
>>> final version of this RPM Review to ensure that all sides and 
>>> concerns are heard in the feedback that ICANN seeks./
>>>
>>> _Specifically: _
>>>
>>> 1.In Section 3.2.2 *Trademark Clearinghouse Word Marks:*The section 
>>> raises some good points that should be addressed more directly. The 
>>> GNSO adopted rules for the protection of ?word marks? ? as in the 
>>> specific text of a mark and the letters, numbers and symbols it may 
>>> use, e.g., HASBRO.The GNSO rules specifically did not embrace the 
>>> registration of ?design marks,? a mark containing both wording and 
>>> design features in which the font, the colors and the artistic 
>>> elements are all part of the features protected by the trademark ? 
>>> and the individual letters and words are expressly NOT protected 
>>> outside of the design packaging in which they are presented.
>>>
>>> The GNSO?s STI Recommendation specifically */did not/* consider it 
>>> fair to provide the extensive protection of the Sunrise Period and 
>>> the Trademark Claims notices to lettering within a design mark ? 
>>> lettering offering ?disclaimed? and expressly not protected as text 
>>> alone and in isolation of its design ? and yet that is precisely 
>>> what the Trademark Clearinghouse (TMCH) has gone ahead and 
>>> accepted.Domain names and URLs don?t have design elements.
>>>
>>> We strongly request further inquiry into: how many design marks have 
>>> been accepted? How many of them expressly disclaim the very letters 
>>> and words that the TMCH is now protecting? How can we return to the 
>>> original intent of the GNSO/STI rules and the limits adopted by the 
>>> GNSO Council and ICANN Board?
>>>
>>> 2.*Section 3.3* *Proof of Use* is an important feature of the TMCH; 
>>> it is designed to prevent gaming of the system and unfair advantage 
>>> to certain new registrants over others. In addition to requesting 
>>> feedback from those who have used the Clearinghouse verification and 
>>> Sunrise registration processes, it is important to request input 
>>> from those who have observed these practices and wish to comment on 
>>> whether the balance and intent to prevent 
>>> individuals/organizations/companies from grabbing Sunrise spots 
>>> without any existing trademark use has been met. Should the use 
>>> requirements be expanded ? e.g., to trademarks of a certain age such 
>>> as one year?
>>>
>>> 3.*Section 3.4 Matching Rules*: This is an important section as the 
>>> rules of the GNSO?s STI were specially crafted to allow only exact 
>>> matches. What the section does not include, and should, is why that 
>>> decision was made. Going beyond ?exact matches? created a firestorm 
>>> of trouble for what is one person?s ?mark contained? is another 
>>> person word. Inclusion of examples in the next version of this paper 
>>> would be key to illustrating the point. Thus, an existing trademark 
>>> in ENOM (an ICANN-Accredited Registrar), but such rules, would 
>>> create a bar on the domain name registration of VENOM ? and entirely 
>>> different word (and one itself also trademarked now and it will be 
>>> again and again in the future).Similarly, the ___ registrations of 
>>> GOGGLE in the US Trademark Office did not prevent the registration 
>>> of the domain name GOOGLE.COM <http://GOOGLE.COM> or the 
>>> registration of GOOGLE as a trademark in the US Trademark Office.
>>>
>>> A few clear illustrations would convey the ambiguity and difficulty 
>>> of going beyond an ?exact match? and shed light on the rationale of 
>>> the existing rule ? a balanced approach as the next draft asks for 
>>> additional input and possible changes.
>>>
>>> 4.*Section 3.5 Trademark Clearinghouse Communications*:In the next 
>>> version and other related inquiries, we would like ICANN Staff to 
>>> reflect a much broader question.Should the goal have been only ?to 
>>> reach trademark holders worldwide to inform them of the services 
>>> related to the Clearinghouse via webinars and Q&F sessions? or 
>>> should it have been to inform the worldwide community of a massive 
>>> change in the rules of registration of domain names in the New gTLDs 
>>> and a new set of protections and notices that ALL registrants should 
>>> know about and understand.Did the TMCH devote even one second or one 
>>> dollar to outreach, webinars and Q&A session to explain the impact 
>>> of the Trademark [Claims] Notice to those receiving it, to answer 
>>> questions that may arise from ambiguities or the publication of this 
>>> new type of notice, or to ensure that those registrants who the 
>>> Trademark Notice was meant to protect were not artificially 
>>> ?chilled? from moving forward with the registration of a domain name 
>>> if they had the rights to do so.
>>>
>>> **
>>>
>>> While the TMCH has highly publicized that many potential registrants 
>>> fail to ?click through? a Trademark Claim, where is the additional 
>>> information about why ? so that the forms and notices can be tweaked 
>>> to be fairer and more balanced?
>>>
>>> Our concern is of course that no education and no information was 
>>> provided to the global community by ICANN or the TMCH.This has left 
>>> noncommercial registrants, small businesses, and individuals without 
>>> the guidance that these rules and policies are designed to protect 
>>> all legitimate overlapping uses of words, names, phrases, acronyms 
>>> for future domain names, just as they have been protected for 
>>> existing ones (see e.g., ACM as the Association for Computing 
>>> Machinery and the Academy of Country Music, and DELTA as Delta 
>>> Faucets, Delta Airlines, Delta Sigma Theta and Delta the symbol for 
>>> change in mathematics.
>>>
>>> Is the TMCH only helping one side, and shouldn?t it be educating and 
>>> communicating its rules, policies, protections and balances with all 
>>> and for all users of the new gTLD domain name system?
>>>
>>> 5.*Section 4* *Sunrise Period*:We request that the questions in the 
>>> next draft and related reports be expanded to see if the sunrise 
>>> period gives unfair advantage to trademark owners far outside their 
>>> categories of goods and services. In cases where a New gTLD caters 
>>> to .PIZZA should Delta Airlines really have a right of first 
>>> registration?For New gTLDs and future gTLDs catering to individuals, 
>>> noncommercial organizations, religious groups, etc., should the 
>>> Sunrise Period exist at all?
>>>
>>> **
>>>
>>> Inquiry**into whether an automatic and upfront registration benefit 
>>> for existing trademark owners unfairly benefits McDonalds Restaurant 
>>> in a .FAMILY or .CATHOLIC gTLD is a question that truly needs to be 
>>> added and asked.Further, how can Sunrise Periods in future rounds be 
>>> more narrowly tailored to the limited rights of existing trademark 
>>> owners?
>>>
>>> 6.*Section 4.2 Limited Registration Periods* is an important section 
>>> and one that fairly highlights the legitimate reasons why registries 
>>> may want to open registrations to those who are not trademark 
>>> owners, but otherwise fit into a category, such as football players 
>>> seeking to register their names in .FOOTBALL prior to the opening in 
>>> General Availability.
>>>
>>> 7.Section 4.5 *Reserved Names.* Reserved names policy is one that 
>>> raises a lot of questions and should be clarified in the future 
>>> rounds. The idea of reserved unlimited numbers of domain names in a 
>>> gTLD and releasing them to any ?person or entity at Registry 
>>> Operator?s discretion? may and has led to gaming and anticompetitive 
>>> activity. Can these Reserved Name policies be used to cherry-pick 
>>> all of the best names by one industry competitor and bypass ICANN?s 
>>> rules barring closed generics?This is an important inquiry for the 
>>> next round.
>>>
>>> 8.*Section 5 Trademark Claims Service*:The Trademark Claims 
>>> Services, as discussed above, has raised a number of questions and 
>>> concerns. Questions we request be asked in future drafts and related 
>>> reports include:
>>>
>>> a)Is the Trademark Notice being shown to all Registrants?
>>>
>>> b)Do all registrants understand the trademark claims notice?
>>>
>>> c)Why are so many potential registrants not registering domain names 
>>> after reading the Trademark Notice? Are they actually cybersquatters 
>>> or are potential legitimate customers being ?chilled? by language of 
>>> the notice or the inability to understand the notice (either the 
>>> phrasing or not reading it in a language they speak?
>>>
>>> d)**How can we make the Trademark Notices better, clearer, fairer 
>>> and more accessible so that those protected by the notices are 
>>> protected and yet the limits, balances and fair use protections 
>>> adopted by the GNSO Council and ICANN Board are achieved as well?
>>>
>>> 9.*Section 5.2,* *Inclusion of Previously Abused Labels*: there is a 
>>> lot of concern re: how this non-policy was created and implemented 
>>> by ICANN.In light of the complaints brought against it, and 
>>> apologies issues, shouldn?t the report and future versions be asking 
>>> if this ?50+? policy should be reasonably limited, or rolled back 
>>> completely?
>>>
>>> 10.*Section 5.3, Extensions of Trademark Claims Service, may be a 
>>> completely invalid offering. *The GNSO?s adopted rules and those of 
>>> the ICANN Board were clearly limited in how long a Trademark Claims 
>>> Service would last.Trademark Owners are responsible for the policing 
>>> of their own marks and there are many private services and public 
>>> tools they can use. Should the ICANN Community be subsidizing or 
>>> allowing such an expanded and _even unlimited extension of the 
>>> Trademark Claims Service and what are the intended and unintended 
>>> consequences to the most vulnerable of our potential future 
>>> registrants: including noncommercial organizations, individuals and 
>>> small businesses and entrepreneurs?What is the impact on those in 
>>> developing countries?What is the impact of those who don?t speak 
>>> English (e.g., those now registering in our Internationalized Domain 
>>> Names)?Is the TMCH unlimited extension fair, is it being invalidly 
>>> subsidized or even paid for by the ICANN Community without 
>>> authorization and should it be stopped? _
>>>
>>> We strongly request that the inquiry of the next and similar reports 
>>> be expanded to include the questions above and whether the TMCH is 
>>> allowed to write its own rules. **
>>>
>>> 11.*Section 6,* *Uniform Rapid Suspension:*we would like to see the 
>>> next and future reports reflect that the URS was a controversial 
>>> mechanism -- an ultra-fast, ultra-cheap takedown mechanism for New 
>>> gTLDs ? and many were worried about whether registrants would be 
>>> able to respond.
>>>
>>> Clearly, registrants ARE responding, and in far greater numbers than 
>>> we expected given that half the URS claims receive a response. Do 
>>> Registrants have the information they need to respond? Do they 
>>> understand the special defenses offered in the URS? Are they using them?
>>>
>>> Additional questions that need to be asked in the next draft of this 
>>> report and similar reports must reflect the education and rights of 
>>> both sides, the claimant and the respondent, and they must include:
>>>
>>> A.Who is educating New gTLD Registrants globally on the existence of 
>>> the URS?
>>>
>>> B.Who is educating registrants about the key differences of the UDRP 
>>> and URS, including the much more rapid time needed for response, the 
>>> different standards of proof, and the much more expanded 
>>> defenses?Where are the ICANN Webinars, ICANN LEARN Websites, FAQ 
>>> pages and Q & A sheets?
>>>
>>> C.Who is educating Registrants about the appellate mechanism of the 
>>> URS?
>>>
>>> D.Is anyone using the Appellate Mechanism of the URS?
>>>
>>> E.Are Panelists being rotated as required by the URS rules?
>>>
>>> F.Is the limitation of the URS to English proceedings ? even in the 
>>> Internationalized Domain Names (!!) ? operating a barrier to 
>>> responses by Registrants? What percentage of URS cases are coming 
>>> from the IDNs?
>>>
>>> G.How can ICANN and the URS Providers improve the education of 
>>> Registrants around the URS rules, URS process, and special URS 
>>> defenses and rights for registrants?
>>>
>>> H.How can we improve monitoring of the monitoring and reporting of 
>>> the URS results?
>>>
>>> Conclusion:
>>>
>>> Our thanks again to the ICANN Staff for such a comprehensive report. 
>>> A huge amount of work was done, but work still remains. As in every 
>>> type of intellectual property rights protection system (legislative, 
>>> regulatory, etc.), the questions are always asked: are the rights 
>>> holders protected, but also is the public protected, are all future 
>>> rights holders protected, are free speech, freedom of expression, 
>>> fair use and the rights of all to use dictionary words, generic 
>>> words, common acronyms and phrases as well as their first and last 
>>> names protected to the fullest extent of national laws, and 
>>> international treaties? Are these rights in balance, and carefully 
>>> drafted by the IRT, the STI and when adopted by the GNSO and ICANN 
>>> Board?
>>>
>>> The next version of this report ? and all future reports including 
>>> the upcoming UDRP Review ? must include this fair and 
>>> comprehensively balanced inquiry. We must remain fully cognizant 
>>> that we are adopting these rules and seeking to protect the balanced 
>>> rights of the whole of the Internet Community, which is now the 
>>> world. This is not just a world of commerce, it is a world of free 
>>> speech, democratic development, and freedom of association, rights 
>>> that are impacted by restrictions on the use of words.
>>>
>>> Sincerely,
>>>
>>> THE UNDERSIGNED MEMBERS OF THE NONCOMMERCIAL STAKEHOLDERS GROUP
>>>
>>> Kathy Kleiman, Co-Founder Noncommercial Stakeholders Group, NCSG 
>>> Representative to Special Trademarks Initiative Team
>>>
>>> Stephanie Perrin, NCSG Canada
>>>
>>> OTHERS ? NAMES, TITLES, AND/OR COUNTRIES WELCOME!!!
>>>
>>> Penn Engineering Overseers? Meeting
>>
>>
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> -- 
> ------------------------------------------------
> "It is a disgrace to be rich and honoured
> in an unjust state" -Confucius
> ------------------------------------------------
> Dr Sam Lanfranco (Prof Emeritus & Senior Scholar)
> Econ, York U., Toronto, Ontario, CANADA - M3J 1P3
> email:Lanfran at Yorku.ca    Skype: slanfranco
> blog:http://samlanfranco.blogspot.com
> Phone: +1 613-476-0429 cell: +1 416-816-2852
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.ipjustice.org/pipermail/pc-ncsg/attachments/20150430/685c3e35/attachment-0001.html>