Patrick Vande Walle wrote:

To be honest, I am not naive enough to expect anything else from this group. Still, I think it is ALAC's task to express its concerns. We have to make clear to the board that we do not stand behind this report, both on :

* how this has been hurried through and short-circuited most of the community * the proposals in the report.

Exactly. We really have only one channel open to us, and that is through the ability to address the board directly. We are able to make clear the total lack of real public involvement in this and ensure that the Board understands the report to be the POV of a single constituency rather than a community consensus. I am reminded at this point of the comments made in a message by Alan when the first concerns arose about the lack of consumer perspective in the IRTP:

I pointed out to Steve Metalitz, IPC President, that the Board motion creating the IRT call for "internationally diverse group of persons with knowledge, expertise, and experience in the fields of trademark, consumer protection, or competition law, and the interplay of trademarks and the domain name system" and that based on the membership list, it was not clear how the consumer protection aspect was addressed. His answer is below:

"I believe that several members of the IRT qualify as having knowledge, expertise and experience in consumer protection law. For instance, both Kristina Rosette and J. Scott Evans have experience handling consumer protection issues that come before the Federal Trade Commission. Mark Partridge also has experience with consumer protection cases under state law and has served as an arbitrator in such cases. Kiyoshi Tsuru has counseled clients and litigated cases on consumer protection matters, and has trained consumer protection officials on Internet issues. So I believe that area of expertise is represented on the IRT, although of course I would also encourage consumer protection organizations to comment and provide their perspectives on the work product of the IRT, beginning with the draft report that the Board has directed the IRT to release on April 24. I hope that this helps in responding to the question that has been posed to you."

There is no question to me that the public interest has been utterly deceived by this process. The fact that veterans within At-Large are aware of such ongoing deception (and come to expect it as standard practise) does not negate its harmful effect. - Evan

Although not shared by all, there is a strong desire amongst a large part of ICANN to make new gTLDs available (and particularly IDN TLDs). It is clear that to do this, the issues related to IP rights cannot be completely ignored.

That's right. But the issue here is where and how to draw the line. In gTLD WG statement, we mentioned that ICANN should not go beyond the existing international IP treaties. Can ICANN go beyond that? Yes, it can---it is not an international intergovernmental organization (neither a treaty organization nor a treaty party) and it can actually implement any IP protection policy within its "own" system. UDRP is apparently a treaty plus but has been implemented for 10 years. Now IRT is suggesting something like UDRP plus plus plus. Should ICANN do that? So advice on the IRT report should not just be a blast against the

process, but preferably a substantive critique of the proposals with alternatives if possible.

I fully agree. We should address substantive critique and provide more balanced and reasonable alternatives, if possible, from the prospective of users. Hong

At 31/05/2009 01:20 PM, Evan Leibovitch wrote:

...

Patrick Vande Walle wrote:

...

To be honest, I am not naive enough to expect anything else from this group. Still, I think it is ALAC's task to express its concerns. We have to make clear to the board that we do not stand behind this report, both on :

    * how this has been hurried through and short-circuited most of the       community     * the proposals in the report.

Exactly. We really have only one channel open to us, and that is through the ability to address the board directly.

We are able to make clear the total lack of real public involvement in this and ensure that the Board understands the report to be the POV of a single constituency rather than a community consensus.

I am reminded at this point of the comments made in a message by Alan when the first concerns arose about the lack of consumer perspective in the IRTP:

...

I pointed out to Steve Metalitz, IPC President, that the Board motion creating the IRT call for "internationally diverse group of persons with knowledge, expertise, and experience in the fields of trademark, consumer protection, or competition law, and the interplay of trademarks and the domain name system" and that based on the membership list, it was not clear how the consumer protection aspect was addressed. His answer is below:

"I believe that several members of the IRT qualify as having knowledge, expertise and experience in consumer protection law.  For instance, both Kristina Rosette and J. Scott Evans have experience handling consumer protection issues that come before the Federal Trade Commission.  Mark Partridge also has experience with consumer protection cases under state law and has served as an arbitrator in such cases.  Kiyoshi Tsuru has counseled clients and litigated cases on consumer protection matters, and has trained consumer protection officials on Internet issues.  So I believe that area of expertise is represented on the IRT, although of course I would also encourage consumer protection organizations to comment and provide their perspectives on the work product of the IRT, beginning with the draft report that the Board has directed the IRT to release on April 24.  I hope that this helps in responding to the question that has been posed to you."

There is no question to me that the public interest has been utterly deceived by this process. The fact that veterans within At-Large are aware of such ongoing deception (and come to expect it as standard practise) does not negate its harmful effect.

- Evan

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"Bret Fausett" <bfausett@internet.law.pro> wrote:

As I see it, at least on the IP Clearinghouse and the Globally Protected Marks List, nothing is stopping WIPO or the nations of the world from agreeing on standards and creating a trademark database. If they create it, ICANN can certainly use it. But it's far outside ICANN's mission, not to mention it's areas of expertise, for it to take this on.

Exactly! Your whole message echoed (in a rather eloquent way) the opinion I've heard from many people in the UK. In my previous message, I called the document's contents "naive" for this very reason. The IRT is attempting to launch ICANN into a *major* undertaking for which an international agency with a much larger budget than ICANN is much better suited. By proceeding forward with the IRT's recommendations, ICANN will be tackling problems which are way outside its mission and will be dangerouly diverting resources away from its core missions. The contents are naive because they follow a US-centric black/white vision of the world when we all know that this just isn't the case in 99% of the countries out there. The contents are naive because they do not make any kind of attempt at estimating the budget required for ICANN to undertake such a thing. It quotes numbers "for illustrative purposes only". The contents are naive because if it was so easy to wave a "magic wand" like the one described in this report, WIPO and the nations of this world would have already invented and waved it. An alternative to the proposals would be to propose that ICANN starts a working group which will actively work with WIPO in establishing a trademark database, in collaboration with the nations of this world. This database would be run (and financed) by WIPO. If every time an issue comes up, ICANN decides to re-create the wheel and to resolve an age-long problem by setting-up yet another cost-inducing half-baked process making it out to be a magic wand, I fear for ICANN's reputation, and its long term financial health. It risks completely discrediting itself by shooting itself in the foot. That said, I trust that the ICANN Board is a lot wiser than to fall in a trap like that - so IMHO, At-Large should make its views known in no uncertain language. Warm regards, -- Olivier MJ Crépin-Leblond, PhD http://www.gih.com/ocl.html

Bret,

P.S. Sometimes I think that I only stay involved in ICANN so I can be here when these history questions pop up. :-)

You might want to re-post your message about the "bodacioustata" WIPO case, a few year ago, it might be pretty appropriate here ;>) R.

Bret You are right. I was there and remember all the issues (I am former president of Brazilian Patent Office and can easily understand why WIPO couldn't at the time an can't now move) I believe that the best contribution we can do is to suggest to WIPO to call for a new legal framework for the current system ( with more than 100 years) to fit into this new world. May last more than 2 years but once we have a better frame work all we need to do is follow international treats - I don't believe we can find a good solution for this problem inside ICANN- is too far out of our mandate. Best Vanda Scartezini POLO Consultores Associados & IT Trend Alameda Santos 1470 cjs 1407/8 01418-903 Sao Paulo,SP. Fone + 55 11 3266.6253 Mob + 5511 8181.1464 -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of Bret Fausett Sent: Monday, June 01, 2009 8:52 PM To: gtld-wg@atlarge-lists.icann.org; At-Large Worldwide Subject: Re: [At-Large] [GTLD-WG] IRT working group report With regard to the IRT's GPML, those who have been around ICANN since the beginning will remember that this is the second time we have been down the "globally protected" path. Back in 2000, it was called "globally famous." Please see ICANN Board Resolution 00.17. It's quoted below. The Board then, as it should now, referred the issue to WIPO, which could not resolve it because it was too politically contentious. The only the thing that the ICANN IP interests -- who are not the same players as the worldwide IP interests -- have changed is that they are calling this "globally protected" and have devised a brightline test for what constitutes "globally protected." The fact that "globally protected" is easy to implement, however, does not make implementing it wise. The number of registrations selected is arbitrary, not agreed by the nations of the world as significant of anything at all, and still does not solve the political problems. In 2000, the political problems with "globally famous" were twofold. First, the trademark community itself couldn't decide whether it liked the idea because giving "super protection" to one class of marks necessarily meant that some marks were quite so super. Companies with strong national and transnational marks, but not necessarily globally famous marks, stated that they'd rather have no super protection than not be included in the supermark category. (You can already see comments complaining about the GPML from trademark owners on the IRT comment board.) A second issue, which we will see again with the so-called "GPML," is that giving special consideration to "globally protected" marks predominately benefits North American and Euro brands. It would largely exclude words like "UNITED" and "APPLE" and "MARS" from the TLD space, even making registering such words as an SLD the after effect of a UDRP-like process. People in parts of the world where United does not fly, where apples are the things that grow on trees, and where Mars is not a candy bar but a red dot in the evening sky will be limited in their use of language by Western labels. I appreciate that some folks will see nothing wrong with that, but it was politically contentious before, and I suspect it will be again. So those of you who weren't here in 2000, read the resolution below and ask yourself why, if ICANN asked WIPO to do this before, was it not done? The answer is that WIPO couldn't navigate the idea through the political swamp. And if WIPO, an intellectual property organization, couldn't do it, what makes anyone think ICANN can? -- Bret P.S. Sometimes I think that I only stay involved in ICANN so I can be here when these history questions pop up. :-) -- INFORMATION FROM WIPO The Board resumed discussion on Mr. Cohen's suggestion that WIPO be requested to prepare a list of globally famous trademarks. Several Board members expressed concern that ICANN should not affirmatively promote an agenda for the protection of famous trademarks; those matters are more appropriately dealt with by governments and intergovernmental organizations such as WIPO, rather than a technical coordination body such as ICANN. Although having a list prepared by WIPO might be helpful to ICANN in coordinating technical matters in a manner that does not unnecessarily clash with intellectual property rights, ICANN should not take the lead in formally requesting preparation of such a list. As a result, the Board agreed that it was more appropriate to simply note the utility of such a list, rather than making a formal request. Upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolution: Whereas, the World Intellectual Property Organization in its April 30, 1999 report to ICANN has offered to prepare a list of globally famous trademarks; RESOLVED [00.17] that the Board notes such a list would be helpful to its assessment of proper action on expansion of the TLD space. http://www.icann.org/en/minutes/minutes-10mar00.htm _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/at-large_atlarge-lists.icann .org At-Large Official Site: http://atlarge.icann.org

Verisign filed a most interesting petition with the court: http://weblog.johnlevine.com/ICANN/cfittrap.html Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Information Superhighwayman wanna-be, http://www.johnlevine.com, ex-Mayor "More Wiener schnitzel, please", said Tom, revealingly.

Thank you, Joly! Hello from the floor here at RIBA. They've implemented a WIFI network, and I can receive questions/comments (if you have any) and relay them to the panel. I'm sitting by John Levine (writer of "Internet for Dummies") & behind Konstantinos Komaitis (NCUC's representative here). I had breakfast with Dr. Komaitis & Richard Tindall (DemandMedia) earlier on, to look for satisfying solutions for everyone. Kind regards, O. ----- Original Message ----- From: "WWWhatsup" <joly@punkcast.com> To: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Sent: Wednesday, July 15, 2009 8:02 AM Subject: Re: [At-Large] [GTLD-WG] IRT working group report

At 05:06 AM 7/3/2009, Olivier MJ Crepin-Leblond wrote:

...

I've registered for the London event to take place on 15th July ( http://www.icann.org/en/announcements/announcement-12jun09-en.htm ) and will essentially be defending this line: it is outside ICANN's mandate. Anyone else planning to be in London?

Olivier

Good luck Olivier!

I note that remote participation is available via https://admin.na3.acrobat.com/_a819976787/outreach

Agenda: http://www.icann.org/en/topics/new-gtlds/london-agenda-speakers-15jul09-en.p...

===

The ALAC / NCUC

Joint Statement on the IRT Report

https://st.icann.org/gnso-liaison/index.cgi?joint_statement_on_the_irt_repor...

A bit of reaction from the NYC session:

NY Times articles: http://bits.blogs.nytimes.com/2009/07/14/the-best-internet-addresses-will-co...

http://bits.blogs.nytimes.com/2009/07/14/brokering-peace-between-brand-owner...

A long think piece from Rebecca Mckinnon supporting NCUC positions http://rconversation.blogs.com/rconversation/2009/07/icann-and-free-speech.h...

An essay, quoted in the above, that suggests the Global Protected Marks List involves prior restraint of free speech http://www.circleid.com/posts/20090621_mahmoud_ahmadinejad_globally_protecte...

and finally, ISOC's own Public Interest Registry's comments http://www.circleid.com/posts/comments_on_icanns_irt_final_report/

I quote from the latter:

...

We believe the Final Report puts too much emphasis on obliging registries to enforce trademark rights, in place of requiring ICANN to devote more resources to enforcing its contracts with registrars. We also believe that ICANN already has the legal tools to deal with the admittedly rare instances where a registry is in business to profit from trademark infringement. Adding a new legal process and giving rights to outsiders who are not parties to the ICANN-registry agreements is likely to increase litigation and its expense for all concerned. It is not likely to deal effectively with the real problems of cybersquatting.

Joly MacFie 212 608 1334 http://wwwhatsup.com http://punkcast.com http://pinstand.com

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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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