December 2009 - ALAC - lists.icann.org

IDNs: Final Report on Three-Character Requirement and Variant Management Now Available for Public Comment
by James Seng Dec. 19, 2009

Dec. 19, 2009

http://www.icann.org/en/announcements/announcement-2-03dec09-en.htm The WG for 3 character and variants for IDN is now ready for public comment as above. I will prepare an ALAC statement (over this weekend) but I would like to get some discussion going so I know what would be our position. Please note the deadline for the comment is 8th Jan 2010, which sound like a lot of time but in reality, with christmas and new year holidays and a 5 days voting ratification, we don't really have a lot of time. I -James Seng

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A Christmas present to the ICANN Board
by Evan Leibovitch Dec. 18, 2009

Dec. 18, 2009

Today the vote closed regarding ALAC endorsement of the STI report on how to deal with cybersquatters and trademark abusers, in a manner acceptable to (nearly) all stakeholders. ALAC has endorsed the report unanimously and so has GNSO Council. It's nice to see the process work. Congratulations to Alan and Olivier for ensuring the the At-Large voice was heard within a group that, at the beginning, didn't seem to want us there. Now... the business community has said that some measures in the STI report don't go far enough and have indicated that they will be filing a minority report. At-Large has also endorsed a minority report on three issues, but those are comparatively minor. We certainly have come a long way from the disaster that was the original IRT group. While I agree that the IRT didn't get *everything* wrong, so much about it was the absolute antithesis of how ICANN policy is supposed to be made. It actually offers some hope that all the constituencies within GNSO -- along with ALAC -- were able to reach such an important consensus. So let's just gift-wrap the report when it shows up at the next ICANN Board meeting and call it the community's present. And to all of you, wherever you are, I wish you a happy holiday season and a great new year! - Evan

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Re: [ALAC] Discussion on At-Large Improvement Plan / 17.12.09 at 10:00 UTC
by Alan Greenberg Dec. 17, 2009

Dec. 17, 2009

I will not be on the call, but I thought I would offer a few thoughts here. First, I really like the new Google docs format with multiple tabs. I can see the entire width at once (in a font I can read!) and the larges one is just a bit over two screens long. There is one bug however - I don't know if it is a Google Spreadsheets feature or we did something wrong, but if a section number is 4-deep (such a 4.3.1.1) Google thinks that it is an IP address and tried to go there if you click on it. Probably not in conformance with some RFC. Substance 1.1 (Bylaws) The note says that the Bylaws should, among other things, clarify roles of Liaisons. I note that the trend in re-writing the GNSO Bylaws was to keep to a minimum what is in the Bylaws to allow things to evolve over time without the significant complexity of having to revise Bylaws. I would suggest that we do the same. 1.3 (ALAC involvement IIC/Post-JPA) The note talks about At-Large having an effective voice in various forums (fora?). I hypothesize that we will accomplish this not by simply getting slots allocated to us, but by identifying (and perhaps grooming) people who can speak eloquently and knowledgeably on behalf of Users. Without such people, we do ourselves more harm than good by getting seats on various bodies. 4.5.2 (Sanctions for non-performance) I hope to have a revised version ready for discussion shortly. Although we cannot change the words in the report, I would really like to see the focus of this section be remediation (fixing the problem) and not solely "sanctions". 5.1.1-5.2.2 (Strategic/Operational Planning) I will say what I have said before. It is important that we state our views on these plans, and try to influence them where appropriate. A PART of our work will be driven by the ICANN plans. But a part (perhaps the larger part) will always be driven by the issues of the day. Ultimately, I think that the ICANN plans must be modified to reflect this reality (it is true for all SOs and ACs) but until then, we must continue to address users issues even if the plans do not give them sufficient visibility. 6.1 (Budgets) We really need more granularity here or we will never get pass the impasse we seem to be at. 8 (Public Comments) I don't know if Carlton will be on the call, but I can report that we have started to talk about what the Rapporteur needs to do to get control of the process and start making it more effective. From the initial discussions it is clear that we need some tools (but really simple ones - nothing that will be difficult) and we need to coordinate what staff and volunteer staff are doing. 9 (Translation/Interpretation) The title lists both Translation and Interpretation but the subsequent items only discuss translation. I think that ALAC/At-Large has more experience about the effectiveness of interpretations with teleconferences. I think that we need to have this experience used in how ICANN proceeds in this areas. And to make MY position clear, I think that our experience had NOT been very good in ensuring that we can EFFECTIVELY involve people speaking multiple languages in a single teleconference. I think that our HONEST input is ESSENTIAL if ICANN is to make any head-way in this direction. 12.2 (Consumer Constituency in the GNSO) I note that at the mst recent Board meeting, the Board rejected three of the four petitions for new constituencies, but the Consumer Constituency petition is still pending. 13.2 (Inter AC/SO Policy development) I note that in the GNSO STI, At-Large was a significant player. A good model for going forward. Alan At 15/12/2009 07:07 AM, At-Large Staff wrote: >Dear All, > >This is to remind you of the conference call scheduled to Discuss the >At-Large Improvement Plan on Thursday 17 December at 10:00 UTC. > >The draft agenda, participation instructions and background information are >available under: >https://st.icann.org/working-groups/index.cgi?17_december_2009_at_large_impr >ovement_plan > >If you require a dial-out for this call, please email >staff(a)atlarge.icann.org > >We look forward to having many of you on the call next Thursday. > >Thank you. > >Regards, > >Heidi Ullrich, Matthias Langenegger, Gisella Gruber-White, Marilyn Vernon, >Kristina Nordström >ICANN At-Large Staff

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A new digital strategy for Europe on the agenda of the Telecoms Council, 18 December 2009
by Rudi Vansnick Dec. 17, 2009

Dec. 17, 2009

A new digital strategy for Europe on the agenda of the Telecoms Council, 18 December 2009 The Telecoms Ministers of the 27 EU Member States will meet at the Telecoms Council in Brussels on 18 December 2009 to agree on priorities for a new European digital strategy in 2020. This strategy should help EU countries to recover from the financial and economic crisis, while speeding up the move towards a smart and green economy. The EU 2020 strategy will build on the successes of the Lisbon strategy since its relaunch in 2005 and address some of its shortcomings. The European Digital Agenda is one of the key elements announced by the President of the European Commission, José Manuel Barroso, in his political guidelines for the new Commission ( IP/09/1272 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1272>) and in the EU's future EU2020 strategy ( IP/09/1807 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1807&format=H…> ; see also SPEECH/ 09/336 <http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/336&forma…> ). At this Telecoms Council, the European Commission will be represented by Viviane Reding, EU Commissioner for Information Society and Media. Main items on the agenda: * Post-i2010 strategy: adoption of Council conclusions following a policy debate * A collaborative European approach on network and information security: adoption of a Council Resolution * Digital dividend: adoption of Council conclusions European Digital Agenda (Post-i2010 strategy) Background On 4 August 2009, the Commission adopted the Digital Competitiveness Report, which summarised the achievements of the i2010 strategy between 2005 and 2009 and launched a public consultation on possible priorities for a future strategy ( IP/09/1221 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1221&format=H…>). At the conference "Visby Agenda: creating impact for an eUnion 2015" organised on 9-10 November 2009 by the Swedish Presidency, EU Member States and the European Commission sought a common understanding of possible priorities for the forthcoming ICT agenda of the EU ( SPEECH/09/519 <http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/519&forma…>). On 24 November 2009, President Barroso launched a consultation on the future "EU2020 strategy", in which the Digital Agenda was announced as one of the key initiatives to deliver on the EU's future strategic objectives ( IP/09/1807 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1807&format=H…>). At this Council EU Telecoms ministers will discuss the possible priorities for the EU's new Digital Agenda and will adopt Council conclusions. In particular, Ministers will be asked to express their views on the EU's new strategy to ensure sustainable growth and jobs' creation. They will also discuss the use of the internet in policy making processes to make these more open, efficient and user-friendly for European citizens. A collaborative European approach on network and information security Background As part of European efforts towards increased network and information security, the Council and the European Parliament adopted a Regulation on 24 September 2008 to extend the mandate of the European Network and Information Security Agency ( ENISA <http://www.enisa.europa.eu/>) for three years until 2012. This was followed by the Commission's adoption of a Communication on 30 March 2009 on the protection of critical information infrastructures in the EU ( IP/09/494 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/494&format=HT…>). For the European Commission, the disruption or destruction of communication services and networks poses challenges at EU level because they are vital for the functioning of society and therefore need a high level of security and resilience. All stakeholders, from Member States to the private sector, have a role to play and should cooperate to enhance Europe's capability to cope with future security threats and challenges. At this Council The adoption of a Council Resolution on a collaborative European approach on network and information security brings the institutional debate on future network and information security policy to a conclusion. This Resolution provides the Commission with political guidelines for the forthcoming major initiative to boost network and information security in Europe. Digital Dividend Background On 28 October 2009, the Commission adopted a Communication "Transforming the digital dividend into social benefits and economic growth in Europe", calling on Member States to complete the switch-off of analogue TV by 1 January 2012 and outlining a common approach to the digital dividend in Europe that will become available as a result of the transition to digital TV ( IP/09/1595 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1595&format=H…> ). At this Council Following an initiative of the Swedish Presidency of the European Union, the Council is expected to adopt conclusions on the Commission's proposal for the digital dividend, underlining the importance of a timely use of the digital dividend to contribute to economic recovery, strengthen competition, and stimulate innovation in both broadcasting and wireless services. Other items on the agenda: * Internet Governance: information from the Presidency on results achieved in the second half of 2009 (see also IP/09/1717 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1717&format=H…>) * Working programme of the incoming Presidency: the Spanish Presidency will present its priorities for the first half of 2010 http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/560&format=…

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European Commission welcomes ratification of the WIPO Copyright Treaties
by Rudi Vansnick Dec. 16, 2009

Dec. 16, 2009

14/12/2009 Today, the European Union and its Member States ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, the so-called "Internet" Treaties. These Treaties were concluded to make the world's copyright laws 'fit for the internet'. Internal Market Commissioner Charlie McCreevy commented on the WIPO ratifications : "Today is an important day for the European Union and its Member States and WIPO. We, as a group have shown our attachment to the international system of protection of copyright and related rights. These two treaties brought protection up to speed with modern technologies. As the technological evolution accelerates, protecting creators and creative industries is more urgent than ever." By ratifying these Treaties, the European Union and its Member States hope to breathe new vigour into the current treaty-making work of WIPO and encourage renewed commitment to moving forward on a high level of protection for creators and creative industries. The European Union and its Member States participated fully in the Diplomatic Conference of 1996 that aimed to upgrade the rights of authors, performers and phonogram producers to withstand the challenges of the digital age. The two WIPO copyright treaties contain rules on distribution, rental, the right of public communication and the "making available" of protected content online. In 2000, the European Union and its Member states took the formal decision ^1 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1916&format=H…> to ratify the WIPO Treaties together. Indeed, negotiations on these two Treaties marked the first time that the European Union was accorded full Contracting Party status in the field of copyright, as opposed to the observer status it enjoyed so far in WIPO on copyright issues. Immediately after the Diplomatic Conference in 1996, work started at the European level to adapt European copyright law to the WIPO "internet" Treaties. A European Copyright Directive ^2 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1916&format=H…> was adopted in 2001. All EU Member States have meanwhile transposed the provisions of the 2001 Copyright Directive into their national legislation. The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing an international intellectual property <http://www.wipo.int/about-ip/en/> (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention <http://www.wipo.int/treaties/en/convention/> in 1967 with a mandate from its Member States <http://www.wipo.int/members/en/> to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. ^1 : Council Decision of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, Official Journal L 89 of 11 April 2000,p. 6 ^2 : Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. Official Journal L 167 of 22 June 2001. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1916&format=H… Rudi Vansnick President Internet Society Belgium vzw Voorzitter TIK vzw Board member EURALO (ALAC - ICANN)

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STI documents
by Alan Greenberg Dec. 14, 2009

Dec. 14, 2009

The final GNSO STI report and the ALAC minority positions documents can be found at https://st.icann.org/gnso-liaison/index.cgi?gnso_liaison_documents. In the time since the report was distributed (an earlier version but with no substantive changes) along with the 4 proposed minority statements: - No negative comments were received about the report itself, other than a question of how to properly indicate a suspended domain name raised by Patrick. - Replies were received from Name-Issues WG members (Evan, Hong, Carlton, Patrick) which supported submitting minority positions 1, 2 and 3. All recommended not submitting minority position 4. - A reply was received from Wendy Seltzer, who is one of the GNSO STI members representing the NCSG, but also a member of the Name-Issues WG and an individual NA-RALO member. She did not support submitting any of the minority positions. No comments were received from any other member of the Name-Issues WG, the ALAC or At-Large. Accordingly a vote will be started shortly on a motion to support the GNSO STI report and the minority positions 1, 2, and 3. Alan

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Fwd: Re: [Name-Issues] At-Large minority positions to the GNSO STI report
by Alan Greenberg Dec. 12, 2009

Dec. 12, 2009

FYI >Date: Sat, 12 Dec 2009 18:40:34 -0500 >To: name-issues <name-issues(a)atlarge-lists.icann.org> >From: Alan Greenberg <alan.greenberg(a)mcgill.ca> >Subject: Re: [Name-Issues] At-Large minority positions to the GNSO STI report > >To date, we have had three people comment. The results are as >follows. Please correct me if I mis-read your comment. By "agree" I >mean that the person generally supported the concept and we should >state it as an At-Large position. > >Additional comments or corrections will be accepted until Sunday, 18:00 UTC > >Alan >---------------------------- > >1. Additional Marks in the Clearinghouse >Evan, Hong and Carlton agree, but do it with caution. > > >2. Transfer of a domain name after a successful URS >Evan, Hong and Carlton agree. > > >3. Post-Launch TM Claims >Evan (I think), Hong and Carlton agree. > > >4. Number of Trademark Clearinghouse (TC) providers > >4a - The two parts of the Trademark Clearinghouse must be separated. > >4b - No strong preference, so STI recommendation of leaving to staff >to decide on merits is ok. >Evan, Hong and Carlton agree. > > > >At 10/12/2009 12:55 PM, Alan Greenberg wrote: >>Olivier and I are suggesting that we issue minority issues on four >>issues. We both agree on the first three, and are divided on the >>last. We seek advice of the name-issues group (and particularly the >>At-Large members) on what to recommend to the ALAC. >> >>Forgive any typos, as there was a great rush to get this out. >> >>Alan and Olivier >> >>-------------------- >> >>1. Additional Marks in the Clearinghouse >> >>The proposal calls for the Clearinghouse at a minimum to included >>just nationally or multi-nationally registered trademarks as well as >>common-law trademarks that have been validated by a court decision. >>Other TM can be included by the TC at registry and/or TM holder >>expense) but their use by a registry is not mandatory. >> >>The Business Constituency has proposed that a limited class of other >>marks be included, and we are proposing that the following types of >>marks be included for the purposes of sunrise processes. The types of >>marks would include a registered TM used in conjunction with: >>- a dictionary word that is associated with the class of services >>trademarked (example: a chemical company XYZ could deposit in the TC >>the name "XYZ-Chemicals". This was allowed in the .asia sunrise. >>- a dictionary word that is regularly used in clear association with >>the TM (example: Yahoo-Finance - see http://finance.yahoo.com/) >>There would need to be careful language, objection processes and >>penalties for depositing names in the TC that do not meet the >>criteria (example: Yahoo-sucks, unless Yahoo starts to manufacture >>vacuum cleaners) >> >>Brand owners want to be able to have clear right-of-first-refusal to >>reduce opportunities for cyber-squatting and to reduce the need for >>URS and UDRP proceedings. We believe that At-Large benefits from such >>legitimate registrations to reduce the opportunity for user confusion >>which results from cyber-squatters obtaining such names. From the >>perspective of a non-sophisticated user, if they enter a name that >>CLEARLY maps to a known brand, it should not resolve to a >>pay-per-click page or someone offering a competing product or service. >> >>The formulation of this proposal eliminates some of the previous >>objections to this type of proposal (the trademark "enom" preventing >>someone from registering "venom"). It also excludes allowing entry >>into the TC of "confusingly similar" typo-squatting type names. >> >>-------------------- >> >>2. Transfer of a domain name after a successful URS >> >>This was included in the original At-Large input into the STI process. >> >>Under the STI proposal, the only remedies following a successful URS >>is that the domain be suspended (not usable) for the remainder of the >>registration period. It also allows the successful URS claimant to >>extend the registration for one year. It does not allow the claimant >>to take over the registration and therefore at the end of the >>registration period, it will be available again (possibly to be used >>for similar cyber-squatting). >> >>The rationale is: >> >>a) The URS was not originally envisioned by the IRT as a transfer >>mechanism - if the TM holder wants to take custody of the name, they >>should use the more expensive and slower UDRP either following a >>successful URS, or instead of the URS. >> >>b) We need to differentiate the URS from the UDRP >> >>c) It may be complex for the registry and/or registrar to implement >>if not carefully designed >> >>d) It may take a generic word domain name (which might have >>legitimate uses over and above those used by the current registrant >>(which resulted in a successful URS). >> >>We believe that the merits of allowing such a transfer are larger >>than the negatives. Specifically: >> >>a) should not be relevant. We have already changed MUCH in the >>original IRT proposal, and rightfully so. And it seems mean-spirited >>to force a TM holder to go through the UDRP just because of how the >>URS was originally envisioned. >>b) Why? There is a good probability that over the next few years, the >>two procedures will be reviewed and merged into a single procedure >>with multiple paths. >>c) This can be overcome with careful design. >>d) Chances are that either through successive URS proceedings or a >>UDRP, the name will go out of circulation anyway. >> >>We recommend that a transfer at end-of registration be allowed. Since >>the domain is explicitly flagged as being the subject of a successful >>URS, the process should not be onerous if requested at URS-time by >>the claimant. >> >>Barring that being accepted, we suggest that a transfer be allowed >>after a second successful URS. The main argument against that was >>that it would be difficult to implement with respect to record >>keeping. However, since claimant could indicate that this is a second >>URS when filing the URS (and give a case number), indicating that if >>successful, they want a transfer, there is virtually no record >>keeping needed, other than by the TM holder. >> >>-------------------- >> >>3. Post-Launch TM Claims >> >>The TC will allow (at the decision of the registry) pre-launch TM >>Claims. The process is that if a registrant tries to register a name >>that *might* conflict with an existing TM in the TC, they will be >>notified of the possible conflict and will need to declare that there >>is no infringement if they decide to go ahead with the registration. >>The rationale may by the jurisdiction where the TM is registered, the >>types of goods or services, or fair use and freedom-of-speech reasons. >> >>There is no such provision after launch, so that a domain that would >>require such a declaration pre-launch can be registered without any >>issue after launch. This allows for those inadvertently registering >>an infringing name to do so without being informed ahead of time that >>they may have a problem. In the case of cyber-squatting, a >>post-launch TM Claims service would require that declare that they >>will use the name for non-infringing purposes, and such a declaration >>could be used against them in a later URS or UDRP. On the negative >>side, post-launch TM Claims could have a significant "chilling >>effect" in that someone registering a name for completely legitimate >>uses might decide not to because of the notice. >> >>We suggest that At-Large recommend further investigation with respect >>to efficient and effecting implementation of post-launch IP claims >>and on the potential chilling effect on non-IP-professional registrants. >> >>-------------------- >> >>4. Number of Trademark Clearinghouse (TC) providers >> >>Olivier and I are divided on this issue. >> >>Olivier's position >> >>Whilst the original IRT report does not specify whether the >>Validation of the trademarks included in the TC and the database >>maintenance element of the TC should be separated or not, the staff >>proposals recommends two providers, in order to introduce additional >>safeguards in the process. >> >>Given that the two functions are separate and distinct functions, >>that they each call upon a different skillset, that a concentration >>of responsibility resulting from control of both functions by a >>single provider might ease the possibility of process capture and >>that the performing of these functions by one provider weakens the >>commitment by the STI Team to separate these functions, we also >>recommend that these functions shall be performed by entirely >>different providers. A validation service provider shall not be able >>to maintain the database. Similarly, the provider maintaining the >>database shall not be able to also offer a validation service. This >>separation of functions shall extend to affiliates of the >>respective providers. >> >>Alan's position >> >>It is unclear what the exact harms would be from integrating the two >>functions. Moreover, despite significant discussion, it is not quite >>clear if the input from the TM holders (which must be handled in a >>number of languages) is best handled by the validator or the >>data-base provider. The former will already have the ability to >>interface with registries, the URS providers, and registrants who >>need to obtain information related to URS proceedings. The validator >>must have expertise in validating TM in all jurisdictions of the >>world, but may not be an expert on the technical issues related to >>providing round-the-clock computer systems, help desks, multi-lingual >>support and other aspects that the database provider will have to >>posses. Given that, the STI-RT chose to leave it up to staff to >>balance the desire for separation against the ability to find >>competent provider(s) to implement the overall TM. >> >> >>_______________________________________________ >>Name-Issues mailing list >>Name-Issues(a)atlarge-lists.icann.org >>http://atlarge-lists.icann.org/mailman/listinfo/name-issues_atlarge-lists.i…

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Re: [ALAC] Adjustment of timing for vote on GNSO Trademark Issues report
by Alan Greenberg Dec. 11, 2009

Dec. 11, 2009

At 11/12/2009 12:10 AM, James Seng wrote: >My apologies for not able to attend the call. I tried to stay up for >it but was really tired out after my flight to Taiwan for TWNIC annual >meeting. > >I support the principle that "Brand owners want to be able to have >clear right-of-first-refusal to >reduce opportunities for cyber-squatting and to reduce the need for >URS and UDRP proceedings." and I agree that it is in the interest of >the at-large users. > >The devils is in the detail however. I am concern about over reaching >their rights, by extension into combination of their trademark with >generic words. Indeed, and that is why we have said that there must be tight restrictions on such use and penalties for abuse. But note that this is only with regard to pre-launch sunrise registrations which give the brand owner a right of first refusal. The moment after launch, they are free to acquire those names unless someone else gets there first. Also note that according to the base report, a registry will have the right to include such combinations if it wishes. What the minority opinion adds is that all registries should allow it, in theory, reducing the amount of cyber-squatting, user confusion and the need to file UDRPs and URSs. But your point is exactly the focus of the question. Will the benefits as noted above, be overshadowed by TM holders successfully gaming the system? >I can also understand multi-national trademarks, that I would assumed >would cover most famous mark. However, I am not sure how national TM >is going to apply. Do you mean as a TM owner in China, I have rights >of refusal for a TLD (say .sydney) that primary market is in >Australia? In this context, a "multinational" trademark is a registered trademark issued to cover more than one country. Examples are a Benelux TM which covers Belgium, the Netherlands, and Luxembourg, and Community Trade Mark (CTM) which is valid across the European Union. Regarding a .sydney TLD, the registry will have the right to restrict which trademarks that it allows in its sunrise and in this case might restrict based on geographic area - See item 5.2 (ii) Alan >-James Seng

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Adjustment of timing for vote on GNSO Trademark Issues report
by Alan Greenberg Dec. 11, 2009

Dec. 11, 2009

During today's teleconference on New gTLD Draft Applicant Guidebook V3, we discussed the timing regarding the vote on supporting the report (see http://atlarge-lists.icann.org/pipermail/name-issues_atlarge-lists.icann.or…) and At-Large minority position statements (see http://atlarge-lists.icann.org/pipermail/name-issues_atlarge-lists.icann.or…) With the agreement of all on the teleconference, Cheryl agreed to shorten the voting period from our normal "short" poll of 5 days to 3 days. This will allow additional time for discussion, and based on recent voting history, should not adversely impact the number of ALAC members voting. According, to allow the vote to complete in time for the GNSO meeting on Thursday morning, the vote will begin Monday morning, 14 Dec 2009 (the exact time to be determined). This will allow the discussion on the report and minority positions to be extended until approximately 18:00 UTC on Sunday. If you have any interest at all in the issues, please do look at the documents and send your questions or comments. Olivier and I will do our best to address them. And please do remember that the question asked by the Board was not whether to implement a Clearinghouse and URS, but rather how to best do it. Alan

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Fwd: At-Large minority positions to the GNSO STI report
by Alan Greenberg Dec. 10, 2009

Dec. 10, 2009

FYI - Discussion should be on this list. >To: name-issues(a)atlarge-lists.icann.org >From: Alan Greenberg <alan.greenberg(a)mcgill.ca> >Subject: At-Large minority positions to the GNSO STI report > >Olivier and I are suggesting that we issue minority issues on four >issues. We both agree on the first three, and are divided on the >last. We seek advice of the name-issues group (and particularly the >At-Large members) on what to recommend to the ALAC. > >Forgive any typos, as there was a great rush to get this out. > >Alan and Olivier > >-------------------- > >1. Additional Marks in the Clearinghouse > >The proposal calls for the Clearinghouse at a minimum to included >just nationally or multi-nationally registered trademarks as well as >common-law trademarks that have been validated by a court decision. >Other TM can be included by the TC at registry and/or TM holder >expense) but their use by a registry is not mandatory. > >The Business Constituency has proposed that a limited class of other >marks be included, and we are proposing that the following types of >marks be included for the purposes of sunrise processes. The types >of marks would include a registered TM used in conjunction with: >- a dictionary word that is associated with the class of services >trademarked (example: a chemical company XYZ could deposit in the TC >the name "XYZ-Chemicals". This was allowed in the .asia sunrise. >- a dictionary word that is regularly used in clear association with >the TM (example: Yahoo-Finance - see http://finance.yahoo.com/) >There would need to be careful language, objection processes and >penalties for depositing names in the TC that do not meet the >criteria (example: Yahoo-sucks, unless Yahoo starts to manufacture >vacuum cleaners) > >Brand owners want to be able to have clear right-of-first-refusal to >reduce opportunities for cyber-squatting and to reduce the need for >URS and UDRP proceedings. We believe that At-Large benefits from >such legitimate registrations to reduce the opportunity for user >confusion which results from cyber-squatters obtaining such names. > From the perspective of a non-sophisticated user, if they enter a >name that CLEARLY maps to a known brand, it should not resolve to a >pay-per-click page or someone offering a competing product or service. > >The formulation of this proposal eliminates some of the previous >objections to this type of proposal (the trademark "enom" preventing >someone from registering "venom"). It also excludes allowing entry >into the TC of "confusingly similar" typo-squatting type names. > >-------------------- > >2. Transfer of a domain name after a successful URS > >This was included in the original At-Large input into the STI process. > >Under the STI proposal, the only remedies following a successful >URS is that the domain be suspended (not usable) for the remainder >of the registration period. It also allows the successful URS >claimant to extend the registration for one year. It does not allow >the claimant to take over the registration and therefore at the end >of the registration period, it will be available again (possibly to >be used for similar cyber-squatting). > >The rationale is: > >a) The URS was not originally envisioned by the IRT as a transfer >mechanism - if the TM holder wants to take custody of the name, they >should use the more expensive and slower UDRP either following a >successful URS, or instead of the URS. > >b) We need to differentiate the URS from the UDRP > >c) It may be complex for the registry and/or registrar to implement >if not carefully designed > >d) It may take a generic word domain name (which might have >legitimate uses over and above those used by the current registrant >(which resulted in a successful URS). > >We believe that the merits of allowing such a transfer are larger >than the negatives. Specifically: > >a) should not be relevant. We have already changed MUCH in the >original IRT proposal, and rightfully so. And it seems mean-spirited >to force a TM holder to go through the UDRP just because of how the >URS was originally envisioned. >b) Why? There is a good probability that over the next few years, >the two procedures will be reviewed and merged into a single >procedure with multiple paths. >c) This can be overcome with careful design. >d) Chances are that either through successive URS proceedings or a >UDRP, the name will go out of circulation anyway. > >We recommend that a transfer at end-of registration be allowed. >Since the domain is explicitly flagged as being the subject of a >successful URS, the process should not be onerous if requested at >URS-time by the claimant. > >Barring that being accepted, we suggest that a transfer be allowed >after a second successful URS. The main argument against that was >that it would be difficult to implement with respect to record >keeping. However, since claimant could indicate that this is a >second URS when filing the URS (and give a case number), indicating >that if successful, they want a transfer, there is virtually no >record keeping needed, other than by the TM holder. > >-------------------- > >3. Post-Launch TM Claims > >The TC will allow (at the decision of the registry) pre-launch TM >Claims. The process is that if a registrant tries to register a name >that *might* conflict with an existing TM in the TC, they will be >notified of the possible conflict and will need to declare that >there is no infringement if they decide to go ahead with the >registration. The rationale may by the jurisdiction where the TM is >registered, the types of goods or services, or fair use and >freedom-of-speech reasons. > >There is no such provision after launch, so that a domain that would >require such a declaration pre-launch can be registered without any >issue after launch. This allows for those inadvertently registering >an infringing name to do so without being informed ahead of time >that they may have a problem. In the case of cyber-squatting, a >post-launch TM Claims service would require that declare that they >will use the name for non-infringing purposes, and such a >declaration could be used against them in a later URS or UDRP. On >the negative side, post-launch TM Claims could have a significant >"chilling effect" in that someone registering a name for completely >legitimate uses might decide not to because of the notice. > >We suggest that At-Large recommend further investigation with >respect to efficient and effecting implementation of post-launch IP >claims and on the potential chilling effect on non-IP-professional registrants. > >-------------------- > >4. Number of Trademark Clearinghouse (TC) providers > >Olivier and I are divided on this issue. > >Olivier's position > >Whilst the original IRT report does not specify whether the >Validation of the trademarks included in the TC and the database >maintenance element of the TC should be separated or not, the staff >proposals recommends two providers, in order to introduce additional >safeguards in the process. > >Given that the two functions are separate and distinct functions, >that they each call upon a different skillset, that a concentration >of responsibility resulting from control of both functions by a >single provider might ease the possibility of process capture and >that the performing of these functions by one provider weakens the >commitment by the STI Team to separate these functions, we also >recommend that these functions shall be performed by entirely >different providers. A validation service provider shall not be able >to maintain the database. Similarly, the provider maintaining the >database shall not be able to also offer a validation service. This >separation of functions shall extend to affiliates of the respective providers. > >Alan's position > >It is unclear what the exact harms would be from integrating the two >functions. Moreover, despite significant discussion, it is not quite >clear if the input from the TM holders (which must be handled in a >number of languages) is best handled by the validator or the >data-base provider. The former will already have the ability to >interface with registries, the URS providers, and registrants who >need to obtain information related to URS proceedings. The validator >must have expertise in validating TM in all jurisdictions of the >world, but may not be an expert on the technical issues related to >providing round-the-clock computer systems, help desks, >multi-lingual support and other aspects that the database provider >will have to posses. Given that, the STI-RT chose to leave it up to >staff to balance the desire for separation against the ability to >find competent provider(s) to implement the overall TM.

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