Kathy Kleiman's comments <http://forum.icann.org/lists/irt-draft-report/msg00068.html> have received a couple of positive comments on the NCUC list. I can;t find the NCUC list archive, so a few email's from the thread copied below: Adam At 9:49 AM -0400 5/27/09, Kathy Kleiman wrote:
Hi Mary, I appreciate your welcoming of comments, and appreciate your serving on the IRT committee. I know this work takes huge amounts of time, and it is important for the NCUC to have representatives on the committee. I hope you can comment as I see Steve Metalitz and others commenting.
What I see see emerging from the IRT Committee is a "wish list" of all that the Intellectual Property Constituency has wanted since the beginning of ICANN. Then we were told that business as we know it would cease to exist if we did not create massive new rules and protections for the largest intellectual property owners in the worlds (and those best able to defend themselves). Yet, in 10 years, we have shown that the Internet, modern business and the sky have not fallen without these protections. We have not had to skew the traditional balance of trademark rights and their protection for free speech and fair use too badly (although I am not crazy about the UDRP). Why, of all times, would we give the intellectual property owners their Wish List now?
In 2000, the Famous Marks working group met for months to determine whether the opening of new gTLDs should be stalled pending protection of a globally famous marks. After a hue and cry about famous marks, it turned out that there were no international lists of famous marks -- and not even any international consensus on what they were (many countries didn't even have legislation protecting famous marks). Further, the courts were ruling against the direction the intellectual property community wanted ICANN to go. In a famous Spanish case, the US NIKE (of sneaker fame) sued a Spanish NIKE in local court. It turned out that the Spanish NIKE, far smaller, had been using the mark far longer than the US company and, as the senior user, was completely protected under trademark law. Both users could coexist. That's not the answer the US NIKE wanted, and under the IRT proposals, equities would flip.
Could you help me understand the Uniform Rapid Suspension System (URS)? The UDRP is already a system far expedited over a court process, and far, far cheaper than bringing a court action. It already stretches domain name registrants incredibly, and results in forfeitures because registrants don't get the message, or don't have time to act (with vacations, holidays, family illnesses, etc).
To set up a parallel proceeding will further expedite it will cause real harm. Every trademark owner I know thinks it has a famous mark. They will use this Rapid Suspension System (URS) to stomp out all other uses of what they view as "their words." But companies don't own words. Further these largest companies in the world have all the time in the world to prepare their URS filing, with the world's largest law firms, and then -- from out of nowhere -- individuals, noncommercial organizations, and political groups have to race against the clock (with virtually not time), against the equities of trademark law, and against a stacked deck of rules to defend themselves and their very existence online -- and pay for it too!
I would really appreciate your insight. Please help me to understand how the Uniform Rapid Suspension System serves the noncommercial interest -- and the interest of all future companies, organizations, and ideas which must use the same basic words already trademarked many times over? Best, Kathy
I'm glad to see more comments and contributions from NCUC'ers and like-minded friends on the IRT proposals!
While my take on the IRT report may differ to some extent from some of you (I'm on the IRT), I think it's important to make those public comments so that divergent views and alternative proposals can emerge.
The final IRT report will be released toward the end of this week, and I encourage everyone with an interest in the intersection of trademark law and domain name policy, as well as those who are concerned about how the new gTLDs will operate, to track it and comment.
I will be happy to discuss the final report once it's released; there will also be a public forum at the Sydney meeting that I encourage everyone who will be there to attend.
Best, Mary
Mary W S Wong Professor of Law Franklin Pierce Law Center Two White Street Concord, NH 03301 USA Email: <mailto:mwong@piercelaw.edu>mwong@piercelaw.edu Phone: 1-603-513-5143 Webpage: <http://www.piercelaw.edu/marywong/index.php>http://www.piercelaw.edu/marywong/index.php Selected writings available on the Social Science Research Network (SSRN) at: <http://ssrn.com/author=437584>http://ssrn.com/author=437584
Robin Gross <mailto:robin@IPJUSTICE.ORG><robin@IPJUSTICE.ORG> 5/25/2009 5:50 PM >>> Wonderful, Kathy! Excellent work!
Thank you, Robin
On May 25, 2009, at 2:01 PM, Milton L Mueller wrote:
Really excellent comments, please read <http://forum.icann.org/lists/irt-draft-report/msg00068.html>http://forum.icann.org/lists/irt-draft-report/msg00068.html
Shows how the IRT proposals are a power grab that go way beyond trademark law and ICANN's mission.
Milton Mueller Professor, Syracuse University School of Information Studies XS4All Professor, Delft University of Technology ------------------------------ Internet Governance Project: <http://internetgovernance.org>http://internetgovernance.org
At 12:34 PM +0200 6/3/09, Patrick Vande Walle wrote:
I order to bring some substance to the discussion, here are some of the comments I did in a blog post. It is at http://s.isoc.lu/dfwwma and is appended below for convenience. It focuses on the URS process. I intend to further comment on other aspects of the IRT WG report, especially on the whois.
Patrick
Reliance on e-mail
Among the issues is the fact that most of the URS process relies on e-mail for notifications to the registrant, to the registry operator, etc. Let¹s face it: e-mail has become unreliable for critical applications. With more than 90% of e-mail being catalogued as spam, identifying the one important e-mail that you are not expecting is like searching a needle in a haystack. Some techniques like DKIM, S/MIME signing, etc might help getting through the spam filters, if only the latter are well-configured. Most users do not have fine-grained control on the configuration of their spam filter, and none at all on the one used by their ISP.
Where this matters is that ³A Registrant has fourteen (14) calendar days from the date of the initial email notification to submit an Answer³. If the e-mail was caught by your spam filter, or if you are on vacation, travelling or more simply not reading your e-mail on a regular basis, you are out of luck. You might lose your domain name without you even noticing it before it is too late.
The language issue is also an important one. It may be that English is the lingua franca of the business community. However, it may not be a language understood by the domain name registrant and he may, in good faith, discard the notification message.
Collateral damage
The IRT working group is focusing on the web. To provide evidence, the complainant ³must include PDF copies of [...] the website showing the alleged violation(s)³. If the domain name is indeed found to infringe on someone else¹s IP rights by the third-party complaints examiner, ³The third-party provider will post a standard page on the domain name³. No mention is made of other services, athough, as one of my friends says ³there are 65534 other ports².
The URS proposal does not explain how other services, like e-mail, DNS, etc would be treated. E-mail is problematic in this context. There could be a privacy issue with the third party provider intercepting correspondence originally addressed to the domain name registrant. Or, if the registrant had indicated a contact e-mail address under the domain name being suspended, he might not receive any notifications on his case anymore.
DNS is another issue. If the suspended domain name was running a DNS server for other, unchallenged domain names, those other domain names may not be accessible anymore.
What the IRT group is proposing is technically close to the controversial Sitefinder ³service² , and this proves again that the IRT group wold have benefitted to have a broader base of participants, especially from the technical community, in this case. Legal uncertainty
The fact a registrant has sucessfully passed a URS examination does not mean he is certain to keep his domain name. He could still face a UDRP complaint and a legal action. There is not much that can be done to prevent a legal action. However, one could expect the complainant to have to choose between a URS complaint or a UDRP complaint, but not both.
On other factor is that the registrant should be guaranteed some peace of mind regarding the use of his domain name. A URS complaint can be filed at any time. If the registrant has been using a domain name for several months or years, he could still face a URS complaint. This creates a high level of uncertainty. Would you dare to launch an Internet-based business if your domain name can be taken down at any time ?
The extensive use of e-mail in the URS process creates a real issue regarding the production of legal evidence in law suits following URS cases. Like it or not, most judicial system use written evidence to examine civil cases, and do not consider e-mails or faxes as legal evidence.
Individual domain name registrants
The IRT proposal does not make any difference between domain names registrants which are businesses and individuals. Unlike businesses which are ³open all day², individuals cannot be expected to be glued to their computer screen waiting for a e-mail regarding a potential issue with a domain name they have registered. As mentioned above, the 14 day period for answering after the notification may be impossible to keep for an individual, especially if he is not well-versed into the intricaties of the IP framework regarding domain names.
The language issue mentioned above is even more problematic for individuals.
Potential suggestions for improvement
I am told I should suggest possible improvements rather than just whining. So:
* Use certified/registered paper mail for notification. This is expensive, yes, but will provide indisputable evidence to both parties. Further, because of the cost involved, it will help eliminate frivolous complaints only designed to hurt competitors. * Draft notifications in the registrant¹s native language. This is expensive, again, but will make sure that the registrant actually understands what is going on. And again, it will greatly help in possible later law suits. * Differentiate between individual private persons and legal entities. The process applying to the former would be more relaxed in terms of time schedules. * Make the suspended somain names unresolvable by the DNS. Web users, will get a 404 error. E-mail users will get a non-delivery receipt. This would be RFC-compliant and solve the privacy issues. * Put a time limit on the introduction of a URS complaint, for example 3 months. After that time, the domain name owner should be guaranteed he will not face a URS complaint anymore. * In line with the above, a complainant should be requested to elect for a URS or a UDRP. This will guarantee that the domain name registrant will not be harrassed.
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