I am not mixing up the GAC Principles with the ICANN policies. What I mean is 50+ refers to UDRP, which is being applied by a score of ccTLDs. Without clarification, the trademarks "abused" at the ccTLDs but decided under the UDRP are eligible to be included the 50+, which was obviously not contemplated by the 50+ designer or implementer. Hong On Sun, May 26, 2013 at 12:18 PM, Alan Greenberg <alan.greenberg@mcgill.ca>wrote:

GAC Principles which recommend that for certain ccTLDs, the registry should provide, among other things, IP dispute resolution procedures, and those TLDs choosing to use the procedures ICANN developed for gTLDs is a far cry from anything being policed by ICANN.

Regardless I think that "If the GAC is opening up the door..." might be the wrong tense for a set of principles identified by the GAC at the dawn of ICANN history 13 years ago.

Alan

At 25/05/2013 11:10 PM, Hong Xue wrote:

GAC Principles are at < http://archive.icann.org/en/committees/gac/gac-cctldprinciples-23feb00.htm>, which says:

9.1.6 In so far as ccTLD registration policies allow or encourage registrations from entities or individuals resident outside the relevant territory, then the delegee concerned should implement dispute resolution policies that ensure that the interests of all registrants, and of third parties, including those outside their territory and in other jurisdictions, are taken into account. Dispute resolution policies should, to the greatest extent possible, follow common principles, including due regard for internationally recognised intellectual property, consumer protection and other relevant law, and be implemented by all delegees. The delegee should, so far as possible, implement alternative dispute resolution procedures conducted online, without precluding access to court litigation.

WIPO provides for DR services for a list of ccTLDs. Please see <http://www.wipo.int/amc/en/domains/cctld/>. More than 70% of these ccTLDs directly apply UDRP and the rest of them apply the DRP "modelled" on UDRP. Most of these ccTLDs "allow or encourage registrations from entities or individuals resident outside the relevant territory".

So, yes, at least the management and policy of those "open" ccTLDs are very similar to gTLDs.

Hong

On Thu, May 23, 2013 at 10:42 PM, Evan Leibovitch <evan@telly.org> wrote: I hadn't picked up on that one, Hong.

This could indeed be interesting. If the GAC is opening up the door to ccTLD policing by ICANN, this opens up an entirely new set of opportunities and headaches.

ccTLDs have long argued that they are immune to ICANN governance (outside of purely discretionary participation in the ccNSO) because of national sovereignty. If the governments of the world (at least as expressed in this early phase by the GAC) are OK with a body like ICANN regulating some of those "sovereign" activities, that's a major leap. Even creation of minimal standards, such as requiring use of the UDRP for TLDs that allow domain ownership outside the ccTLD's country, is a massive shift.

The immediate reply to the GAC, of course, is that to turn this direction into something enforceable, an effort such as a treaty is required. However, this may clearly be a case of "be careful what you wish for". Until now interest in such action was negligible. However, if the current governmental interest in the DNS is now growing to the point that it might be motivated to create a multilateral foundation for domain name governance, this could be (to put it mildly) a seismic shift in ICANN's roles and relevance. WCIT indicated a broader set of goals, but I could envision international agreement on minimum TLD standards to be quite attainable.

Or maybe I'm reading far too much into the GAC direction as Hong has interpreted it. In that case, never mind ;-).

On 23 May 2013 02:07, Hong Xue <hongxueipr@gmail.com> wrote: I'm not addicit to this, but UDRP is more complicated than those "implementers" imagine. Apart from gTLDs, a number of ccTLDs (equivalent to gTLDs), such as .tv, .cc or more recent .co, are required to apply UDRP per se (not similar ccTLD processes) under the GAC Principles. If the "implementation" does want to address the TMs abused in the UDRP cases, there is no way to exclude these ccTLD UDRP cases. Of course, this makes the whole things even more fascinating.

Hong

On Wed, May 22, 2013 at 10:37 PM, Alan Greenberg < alan.greenberg@mcgill.ca>wrote:

...

At 22/05/2013 02:33 AM, Hong Xue wrote:

Option a) 50+ records in TMCH are the domain name strings (for example yahoosuchs.com or prada-for-sale.com) that had been either transferred or deleted in UDRP proceeds. But, many well-known marks have already won more than 50 UDRP decisions. It is arbitrary to limit to 50. How to limit to 50?

50 was clearly an arbitrary number. But how to limit to 50 PER MARK is a problem, since I don't think that it will be clear from records presented to TMCH that (for example) OUTLOOK registered to Microsoft US is the same TM as OUTLOOK registered to Microsoft Canada, but different from the fictitious OUTLOOK registered to Hong Xue in China. The only way I see is to limit by rule and have the TM holder assert that the marks are different if they are (with penalties for not being honest). But that is far better than ignoring the issue.

Option b) an owner of a mark that has been "abused" in a UDRP proceeding (for example geogle.com) may choose to submit up to 50 "variations" of its marks (for example Gooogle, Gooooooogle, etc). It is definitely arbitrary if variations are subject to the mark holder's choice. Some years ago, CNN claims that CNNIC is confusingly similar to it-:)

BUT, UDRP has no finality and its decision may be overruled by the competent court. Shouldn't the final judicial decision count, rather than the UDRP award that has been set aside?

I would presume that an overturned UDRP decision no longer stands and a TM holder could not submit it.

AND, UDRP is also applied to a number of ccTLDs. Would 50+ be extended to the UDRP cases regarding ccTLD domain names?

Again, the devil is in the details, which we have not seen, but my presumption is that the term UDRP in this case referd to ICANN's UDRP and not a similar process for a ccTLD.

TMCH implementation is now completely messy and its two appointed providers are not even ready to handle the "exact mark" (without IDN variants), let alone this 50+. If 50+ is indeed implementation, there still need further guidance or clarifications to enable it.

How could I argue with that?

Alan

Hong

-- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac

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-- Evan Leibovitch Toronto Canada Em: evan at telly dot org Sk: evanleibovitch Tw: el56

-- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China

-- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China