[PC-NCSG] PC Endorsement Request

[Rafik Dammak]

Hi everyone,

the deadline passed few hours ago and I didn't see any objection either
here or in NCSG list.
I do think we call the statement endorse as NCSG comment. I will send it
later to the public forum.
Thanks everybody for your support.

Best,

Rafik


2015-04-30 17:17 GMT+09:00 Rafik Dammak <rafik.dammak at gmail.com>:

> Hi,
>
> the deadline to submit is 1st May 23:59UTC, I would give more time to let
> the rest of PC members to express their support till 30th April 20:00UTC (I
> used the timestamp for the email sent by Kathy). after that deadline, we
> can call the statement endorsed by NCSG PC.
>
> Best,
>
> Rafik
>
> 2015-04-30 5:22 GMT+09:00 Edward Morris <egmorris1 at toast.net>:
>
>> Hello NCSG PC colleagues,
>>
>> I'm sorry for my brevity but I'm currently in transit.
>>
>> Time is short and we'd need an immediate response from everyone but I
>> would propose that we endorse Kathy's well written public comment on the
>> Draft Rights Protection Mechanism Review (follows in this transmission). As
>> Kathy has written, these issues are a historical concern of the NCSG and
>> the positions Kathy has enunciated are a fundamental part of who we are.
>>
>> Amr, I'm still not sure of the formal procedure for getting a PC
>> endorsement of a public comment but if it is at all possible to reach an
>> affirmative consensus I would propose that we try to do so.
>>
>> Thanks,
>>
>> Ed Morris
>>
>> Sent from my iPhone
>>
>> Begin forwarded message:
>>
>> *From:* Kathy Kleiman <kathy at KATHYKLEIMAN.COM>
>> *Date:* April 29, 2015 at 8:37:43 PM GMT+1
>> *To:* 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>
>>
>> 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 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!!!
>>
>>
>>
>> _______________________________________________
>> 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/20150501/5a862650/attachment-0001.html>