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FW: URS Implementation to Commence -- New ICA Webpost
by Phil Corwin Sept. 20, 2012

Sept. 20, 2012

FYI--- http://internetcommerce.org/URS_Implementation URS Implementation Finally to Commence Under GNSO Direction For more than a year ICA has been asking ICANN when it will commence with the task of implementing the Uniform Rapid Suspension (URS) policy for the new gTLD program as it currently stands in the Applicant Guidebook (AG). The URS is a required rights protection mechanism (RPM) that must be in place before any new gTLDs can open, and the current model balances trademark holder and registrant rights and is the result of a laborious two-year process resulting in recommendations that were unanimously adopted by the GNSO Council and subsequently by the ICANN Board. Each of our inquiries about the commencement of URS implementation have received the same general response of "soon", but no perceptible progress had been made since the new gTLD program launched in the spring of 2011. We have just learned that ICANN senior executive Kurt Pritz has sent a publicly available e-mail to GNSO Council Chairman Stephane Van Gelder advising him that URS implementation will finally begin in earnest within a few weeks. That exchange is below, and here are our key take-aways: * ICANN continues to assert that the present URS model does "not appear to meet cost requirements". Yet, so far as know, and our knowledge includes a targeted document disclosure request filed on this and related subjects (see http://internetcommerce.org/WIPO2ICANN_URS_Summits) ICANN has no documented cost analysis proving this assertion and is instead relying on the feedback of the two principal UDRP providers, WIPO and NAF, who have their own separate rationales for making such an assertion. At the conference held yesterday in Washington held to discuss Melbourne IT's HARM proposal (about which we shall post separately) there was a fairly broad consensus that ICANN should publish an RFP for the URS and solicit bids from a broad range of credible arbitration providers beyond the thin ranks of WIPO and NAF, based on the common sense belief that a URS focused on slam dunk infringement should not require a great deal of expert time or associated cost (if it takes more than 15 minutes to render a decision, it's not a black-and-white case and belongs in a UDRP proceeding). There was also considerable support for the notion that, if the price target of $300-$500 simply cannot be met, ICANN should consider at least short-term subsidization by using some of the $350 million it has collected in new gTLD application fees. ICA believes it is premature to "flesh out some of those [alternative] models for possible implementation", and thereby contemplate significant revisions of URS, until we have market testing of the true cost of implementing the present model. Before there is any consideration of "potential solutions", let's determine if there really is a cost problem that needs to be solved. * A meeting on URS implementation, possibly in the form of a webinar, will be scheduled for the first week of October. We are unsure who will be invited to speak at the webinar and whether it will include adequate representation of the registrant community, both commercial and non-commercial. Let's wait and see. * A second meeting will be scheduled during the upcoming ICANN meeting in Toronto. We believe it's is essential that this critical meeting result in a credible path to timely implementation. * ICANN has stated that "the meetings we are having are open to all". This is consistent with the open and transparent approach to URS implementation that ICA has consistently advocated, and we intend to be intimately involved. * ICANN understands the key role played by the GNSO Council in developing and approving the present model and "that the GNSO leadership might want to conduct the URS discussions in a certain way", and is willing to "work in whichever way the GNSO wishes to proceed". From our viewpoint, this position is an extremely positive development because it respects the key policymaking role that the Council plays for gTLDs, puts the ICANN community as represented by the Council rather than ICANN staff in the driver's seat on designing and managing the implementation process, and is a far better approach than the "Summit" concept contemplated earlier this year. It also undercuts potential efforts by some brand interests to try to circumvent the Council through direct lobbying of the Governmental Advisory Committee (GAC) and, through it, the ICANN Board. * ICANN aims to "seek to meet the cost and timeliness goals for which the URS was designed" and to balance that with a commitment to "seek to ensure that registrants enjoy the protections written into the current model". Assuring that registrants enjoy the essential due process rights written into the current policy, and that they are not diluted in pursuit of complainant cost reduction, will be ICA's foremost goal as this discussion ensues. All in all, these are overdue but overall positive developments. Again, it's our belief that any substantial alteration of the URS based on cost goals should not even be considered until we have some accurate, market-tested idea of the cost of implementing the current model -- and that does not yet exist. Even then, we are wary of reopening this carefully constructed RPM because some of the ideas floating around for reducing cost could substantially reduce registrant rights in new gTLDs and convert the URS from a narrow supplement to the UDRP into a cut-price, rights-gutting alternative to it. That's an unacceptable bait-and-switch. But ICANN's recognition of the central role to be played by the GNSO Council in considering any alteration is positive. It is critically important that whatever is done on URS implementation get off to a sound launch in Toronto, because there is an unusually long half-year gap between it and the next, April 2013 ICANN meeting in Beijing. A botched process could lead to further pushback in the launch date for new gTLDs, while one that results in evisceration of registrant rights could fatally undermine their prospects for success. The e-mail exchange follows: From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org]<mailto:[mailto:owner-council@gnso.icann.org]> On Behalf Of Stéphane Van Gelder Sent: Wednesday, September 19, 2012 5:08 AM To: Kurt Pritz Cc: GNSO Council List Subject: [council] Re: Uniform Rapid Suspension Discussion Thanks Kurt. I am copying the Council for their information. The Council will no doubt follow-up on this in the near future. Best, Stéphane Van Gelder Directeur Général / General manager INDOM NetNames France ---------------- Registry Relations and Strategy Director NetNames T: +33 (0)1 48 01 83 51 F: +33 (0)1 48 01 83 61 Le 18 sept. 2012 à 22:09, Kurt Pritz a écrit : Hi Stephane: I am writing to let you know that we are planning a set of discussions on Uniform Rapid Suspension (URS) implementation in the near future and seek the input of GNSO leadership. As you know, a meeting in Prague we indicated that URS, as currently designed, did not appear to meet cost requirements. In Prague, contributors in the meeting described briefly several potential solutions. In the next set of meetings, we want to flesh out some of those models for possible implementation. We want to have one meeting in about two weeks (probably a webinar type of format with a possibility for some face-to-face interaction), and then we have a meeting in Toronto is scheduled. The first meeting will be announced shortly. I am writing you because some of the proposed solutions, while feasible, do not match up with the specific conclusions of the STI team when it did its work. We recognize the role of the GNSO in those discussions. While the meetings we are having are open to all, we understand that the GNSO leadership might want to conduct the URS discussions in a certain way. Having the twin goals of developing a solution in time for use by new gTLDs and ensuring that all those interested can participate in the discussion, we can work in whichever way the GNSO wishes to proceed. (Of course, we also seek to meet the cost and timeliness goals for which the URS was designed and also seek to ensure that registrants enjoy the protections written into the current model by the IRT and STI.)The output of the next meetings can inform GNSO discussion or we can carry on in a way acceptable to the GNSO. I am also copying Olivier as ALAC members participated in the STI. I hope you find this helpful. Contact me anytime with questions. Regards, Kurt Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2012.0.2221 / Virus Database: 2437/5263 - Release Date: 09/11/12 Internal Virus Database is out of date.

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Re: [bc-gnso] FW: [gnso-improvem-impl-sc] For review - proposed language to address suspending a PDP
by Marilyn Cade Sept. 19, 2012

Sept. 19, 2012

We need advice. What are implications? Suspending is "okay" if we can block suspension is we disagree. I can't read materially. But do read as much as I can. Can you and Angie make a two sentence case why I shld support this? I am suspicious - just a bit- abt why this. But recognize "suspend" is not "cancel". Shld suspension have a 3, 6, 9, 12 month "revisit? Sent via BlackBerry by AT&T -----Original Message----- From: Ron Andruff <randruff(a)rnapartners.com> Date: Wed, 19 Sep 2012 17:16:15 To: <bc-gnso(a)icann.org> Subject: [bc-gnso] FW: [gnso-improvem-impl-sc] For review - proposed language to address suspending a PDP Dear Fellow BC Members, On behalf of Angie Graves and myself (BC SCI reps), I am forwarding (see below) the Standing Committee on Implementation's recommendation on suspension of a PDP that will be sent to the GNSO Council for approval once the SCI signs off. If any BC members have opinions, comments or questions on this matter, please bring them to the list as soon as possible. Hearing no comments, Angie and I will give BC approval to this amendment in the PDP Manual. Thank you. RA Ronald N. Andruff RNA Partners, Inc. ---------------- From: owner-gnso-improvem-impl-sc(a)icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Marika Konings Sent: Wednesday, September 19, 2012 10:37 AM To: gnso-improvem-impl-sc(a)icann.org Subject: [gnso-improvem-impl-sc] For review - proposed language to address suspending a PDP Dear All, As discussed during the last meeting, please find below the proposed modifications (in bold) to the PDP Manual to address suspension of a PDP. As with any changes to the GNSO Operating Procedures of which the PDP Manual is part, once approved by the SCI, these would need to be put out for public comment for a minimum of 21 days followed by GNSO Council approval. If you have any further comments / edits, please share these with the mailing list. With best regards, Marika =============== Proposed Language to address suspending a PDP (modification in bold of section 15 of the PDP Manual) The GNSO Council may terminate or suspend* a PDP prior to the publication of a Final Report only for significant cause, upon a motion that passes with a Supermajority Vote in favour of termination or suspension. The following are illustrative examples of possible reasons for a premature termination or suspension of a PDP: 1. Deadlock. The PDP Team is hopelessly deadlocked and unable to identify recommendations or statements that have either the strong support or a consensus of its members despite significant time and resources being dedicated to the PDP; 2. Changing Circumstances. Events have occurred since the initiation of the PDP that have rendered the PDP moot, or no longer necessary, or warranting a suspension; or 3. Lack of Community Volunteers. Despite several calls for participation, the work of the PDP Team is significantly impaired and unable to effectively conclude its deliberations due to lack of volunteer participation. * Suspension is a time interval during which there is a temporary cessation of the PDP, i.e. all activities are halted upon a decision of the GNSO Council until further notice. A mere change in milestones or schedule of the PDP is not considered a suspension. [to be included as a footnote]

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FW: [gnso-improvem-impl-sc] For review - proposed language to address suspending a PDP
by Ron Andruff Sept. 19, 2012

Sept. 19, 2012

Dear Fellow BC Members, On behalf of Angie Graves and myself (BC SCI reps), I am forwarding (see below) the Standing Committee on Implementation's recommendation on suspension of a PDP that will be sent to the GNSO Council for approval once the SCI signs off. If any BC members have opinions, comments or questions on this matter, please bring them to the list as soon as possible. Hearing no comments, Angie and I will give BC approval to this amendment in the PDP Manual. Thank you. RA Ronald N. Andruff RNA Partners, Inc. _____ From: owner-gnso-improvem-impl-sc(a)icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Marika Konings Sent: Wednesday, September 19, 2012 10:37 AM To: gnso-improvem-impl-sc(a)icann.org Subject: [gnso-improvem-impl-sc] For review - proposed language to address suspending a PDP Dear All, As discussed during the last meeting, please find below the proposed modifications (in bold) to the PDP Manual to address suspension of a PDP. As with any changes to the GNSO Operating Procedures of which the PDP Manual is part, once approved by the SCI, these would need to be put out for public comment for a minimum of 21 days followed by GNSO Council approval. If you have any further comments / edits, please share these with the mailing list. With best regards, Marika =============== Proposed Language to address suspending a PDP (modification in bold of section 15 of the PDP Manual) The GNSO Council may terminate or suspend* a PDP prior to the publication of a Final Report only for significant cause, upon a motion that passes with a Supermajority Vote in favour of termination or suspension. The following are illustrative examples of possible reasons for a premature termination or suspension of a PDP: 1. Deadlock. The PDP Team is hopelessly deadlocked and unable to identify recommendations or statements that have either the strong support or a consensus of its members despite significant time and resources being dedicated to the PDP; 2. Changing Circumstances. Events have occurred since the initiation of the PDP that have rendered the PDP moot, or no longer necessary, or warranting a suspension; or 3. Lack of Community Volunteers. Despite several calls for participation, the work of the PDP Team is significantly impaired and unable to effectively conclude its deliberations due to lack of volunteer participation. * Suspension is a time interval during which there is a temporary cessation of the PDP, i.e. all activities are halted upon a decision of the GNSO Council until further notice. A mere change in milestones or schedule of the PDP is not considered a suspension. [to be included as a footnote]

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Technical issues with Adobe Connect
by Benedetta Rossi Sept. 18, 2012

Sept. 18, 2012

Dear BC Members, I just wanted to notify you that there seems to be a technical issue on Adobe Connect. Technicians have been contacted, but it doesn't prevent this impacting our meeting taking place right now. Please be aware that I am doing my best to ensure participants do not get disconnected, but if you do get disconnected please just log in again. Once again please accept my apologies for this technical issue. -- Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org

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For expedited review by 17-Sep-2012: proposed expansion/clarification of BC's position on TM Claims Notices
by Steve DelBianco Sept. 18, 2012

Sept. 18, 2012

To all BC members: Your executive committee is seeking member review and approval of an incremental change to the BC's present position on rights protection mechanism (RPMs) for new gTLDs. We have authorized an expedited review since this is a small change and it would be useful to know the BC position during new gTLD discussions in Washington DC on Tuesday 18-Sep. The proposed change would allow TM owners to specify variants on their TM that would generate TM Claims notices to registrants. This change was suggested at the Brand Summit participants in their letter to the US Govt (link<http://www.aipla.org/advocacy/intl/Documents/JointLetter-BrandOwners-Second…>). The proposed change is to: Require the TM Claims Service to issue warnings for any registration that consists of the mark and a generic term from the description of goods and services in the registration deposited with the Trademark Clearinghouse. For example, Paypal is a registered TM that includes "payments" in its description of goods and services, so TM Claims notices would be issued to anyone that registered paypalpayments.tld. Same would apply to verizon-phones.tld, yahoomail.tld, etc. You may ask, How does this proposal differ from the existing BC position? Here's how: In Jan-2012 the BC approved the attached ballot of RPMs, which was then summarized in our letter<http://www.bizconst.org/Positions-Statements/BC%20request%20for%20implement…> to ICANN leadership in Feb-2012. The BC voted to require that any domain name recovered in URS/UDRP be added to TM Clearinghouse, which would therefore automatically generate TM Claim Notices to subsequent registration attempts of those strings. See item 3.4 on page 2: (3.4) Successful URS complainants should have option to transfer or suspend the name, and such names should generate TM Claims Notice for subsequent registrations. The BC also went well beyond exact matches for allowing TM owners to acquire Domain Blocks. See item 8 on page 4: (8) Add a “do not register/registry block” service to the Trademark Clearinghouse, allowing any trademark holder to pay a one time fee to permanently prevent registration of names that are an identical match or include the identical match trademark name. So please reply to me (or reply all) to indicate whether you approve or oppose the change by 17-Sep-2012. If by that date 10% of BC members oppose the change, we will follow the process described in our charter: 7.3. Approval where there is initial significant disagreement. If there are at least 10% of members who oppose a position a mechanism to discuss the issue will be provided by the Vice Chair for policy coordination. This may be an e-mail discussion, a conference call or discussion at a physical meeting. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482

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RE: [Bc-private] [bc-gnso] For expedited review by 17-Sep-2012: proposed expansion/clarification of BC's position on TM Claims Notices
by icann＠rodenbaugh.com Sept. 17, 2012

Sept. 17, 2012

Thanks MJ, I had similar thoughts but hadn't got to draft them yet. I believe the BC has previously proposed (at least in the STI if not also elsewhere) that TM owners could self-select the brand/keyword combinations that they wish to register in the TMC, so long as the keyword is present in a national trademark registration somewhere. This approach seemed to work well with the dotAsia launch. If there is some slight incremental cost to registering each combination, that would provide some disincentive for TM owners to overreach. Perhaps the BC could coalesce around a proposal like this again now? Also, putting this back to the public BC list where it belongs. Best, Mike Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <http://rodenbaugh.com> http://rodenbaugh.com From: bc-private-bounces(a)icann.org [mailto:bc-private-bounces@icann.org] On Behalf Of Mari Jo Keukelaar Sent: Friday, September 14, 2012 11:25 AM To: 'bc-private icann.org' Subject: Re: [Bc-private] [bc-gnso] For expedited review by 17-Sep-2012: proposed expansion/clarification of BC's position on TM Claims Notices After reading and considering the proposal made here, we find it difficult to understand how this would work as a practical matter. First, particularly in the EU, goods and services descriptions can go on for hundreds of words; and second, how do you define the "a generic term from the description of goods and services?" Just taking the example provided, and applying reality, the G&S description for one of the PAYPAL registrations is: ----- "PAYPAL" Clearing and reconciling financial transactions via a global computer network; Providing a wide variety of banking services and providing financial services, namely, credit card services, processing and transmission of bills and payments thereof, and insurance for financial transactions conducted via global computer network ---- >From this we get such strings as: paypaland paypalvia paypalwide paypala paypalnamely paypalthereof paypalconducted paypalcomputer And other senseless things. Of course, "PAYPAL" is a fanciful mark and other marks come with a different set of problems. When you consider the fact that there are trademarks for things like "O", claimed by Oprah Winfrey, Oakley sunglasses, and Overstock.com, then every time someone registers a domain name beginning with the letter O, there will be hundreds of queries and notifications required. Now, you could, and most likely will, say "we only mean the words in the G&S which actually relate to the goods and services." In that instance, the answer presumes that someone is going to go through all of the G&S descriptions and flag those which duly relate. That cannot be done on an automated basis. Furthermore, which language are we looking at for the G&S for EU registrations? If the proposal intends all languages, then the problem of large EU G&S descriptions is again multiplied. Then there is an implementation issue: The TCH is thus far envisioned as a blackbox which matches "inputstring" to "mark". If someone is registering "paypaland" what is the input query to the TCH? If the query is "paypaland", it comes back "no match". The question is, in querying the TCH, how is the software at either end supposed to know which part of the input string is a mark? Finally, the TCH is envisioned to enable identification of trademark strings. I may own five different trademark registrations for "EXAMPLE" encompassing five different sets of goods and services. There are, of course, a number of "PAYPAL" trademark registrations. Whereas before I believed I would only have to submit one of my trademark registrations to the TCH in order to enter the mark into the TCH, under this scheme I am being told I should submit five different registrations of the same mark (since I now wish to protect all of my listed goods and services)? Name Administration agrees that the TCH should be a more flexible database capable of implementing a variety of operations. There is significant pushback on the possibility of it becoming a source of public trademark registration data in competition with commercial providers of such information. We believe that is the primary tension which prevents any number of innovative solutions to be implemented. Mari Jo Keukelaar, M.A./J.D. On behalf of Name Administration, Inc. From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, September 13, 2012 1:08 PM To: bc-gnso(a)icann.org Subject: [bc-gnso] For expedited review by 17-Sep-2012: proposed expansion/clarification of BC's position on TM Claims Notices To all BC members: Your executive committee is seeking member review and approval of an incremental change to the BC's present position on rights protection mechanism (RPMs) for new gTLDs. We have authorized an expedited review since this is a small change and it would be useful to know the BC position during new gTLD discussions in Washington DC on Tuesday 18-Sep. The proposed change would allow TM owners to specify variants on their TM that would generate TM Claims notices to registrants. This change was suggested at the Brand Summit participants in their letter to the US Govt (link <http://www.aipla.org/advocacy/intl/Documents/JointLetter-BrandOwners-Second LevelRights-gTLDProgram.pdf> ). The proposed change is to: Require the TM Claims Service to issue warnings for any registration that consists of the mark and a generic term from the description of goods and services in the registration deposited with the Trademark Clearinghouse. For example, Paypal is a registered TM that includes "payments" in its description of goods and services, so TM Claims notices would be issued to anyone that registered paypalpayments.tld. Same would apply to verizon-phones.tld, yahoomail.tld, etc. You may ask, How does this proposal differ from the existing BC position? Here's how: In Jan-2012 the BC approved the attached ballot of RPMs, which was then summarized in our letter <http://www.bizconst.org/Positions-Statements/BC%20request%20for%20implement ation%20improvements.pdf> to ICANN leadership in Feb-2012. The BC voted to require that any domain name recovered in URS/UDRP be added to TM Clearinghouse, which would therefore automatically generate TM Claim Notices to subsequent registration attempts of those strings. See item 3.4 on page 2: (3.4) Successful URS complainants should have option to transfer or suspend the name, and such names should generate TM Claims Notice for subsequent registrations. The BC also went well beyond exact matches for allowing TM owners to acquire Domain Blocks. See item 8 on page 4: (8) Add a "do not register/registry block" service to the Trademark Clearinghouse, allowing any trademark holder to pay a one time fee to permanently prevent registration of names that are an identical match or include the identical match trademark name. So please reply to me (or reply all) to indicate whether you approve or oppose the change by 17-Sep-2012. If by that date 10% of BC members oppose the change, we will follow the process described in our charter: 7.3. Approval where there is initial significant disagreement. If there are at least 10% of members who oppose a position a mechanism to discuss the issue will be provided by the Vice Chair for policy coordination. This may be an e-mail discussion, a conference call or discussion at a physical meeting. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482

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BC letter of objection to changes proposed by Staff regarding the objection filings
by Marilyn Cade Sept. 11, 2012

Sept. 11, 2012

Dear Chair The attached letter from the BC is detailed and substantive objection to what appears to be a staff proposal to change the timeline, provided in the April Guidebook. We ask for an acknowledgement, and a response which accepts our proposal to not change the dates, or at a minimum, post a 30 day public comment period which would allow those affected as users to raise their views about the staff statement for making a change. We have posted this on our public site. NOTE: we ask that our correspondence be posted on the Correspondence page of the Board correspondence, as soon as possible. Marilyn Cade, BC Chair

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Uniformity of Contracts to Address Registration Abuse
by Phil Corwin Sept. 10, 2012

Sept. 10, 2012

On today's BC call there was a brief discussion relating to the GNSO Council's upcoming consideration of further steps on Uniformity of Contracts to Address Registration Abuse. I thought BC members might be interested in reviewing the comment letter that ICA filed, and our further observations, on this subject --- http://internetcommerce.org/Registration_Abuse_Time_to-Fish_or_Cut_Bait The ICANN Policy and Decision Making Process is Seriously Flawed Submitted by Philip Corwin on Wed, 08/15/2012 - 22:03 ICANN's policy and decision making process is supposedly based upon a bottom up, community consensus model. While we are all for careful deliberation before major policies are adopted and implementing actions are taken, we cannot support endless process for its own sake - especially when no concrete action ever results. ICA has just filed a comment letter regarding the July 2012 Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse. We favor the concept of uniformity in related provisions of complementary contracts, and we certainly are against "registration abuse" (although we note that the most extensive study of this subject ever undertaken, by the Registration Abuse Policy Working Group, failed to identify a single registration abuse for which it recommended uniform contract language as a response). ICANN staff's response to an October 2011 GNSO request was to recommend the initiation of yet another Policy Development Process assisted by yet another Working Group. But the subject of registration abuse has already been under study for nearly four years and has resulted in the issuance of three separate reports totaling 212 pages! So our response to this recommendation is "Enough is enough" and that it's time to "fish or cut bait" - especially when the proposed PDP would be unlikely to result in any final action but just more bureaucratic paper shuffling "to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse". ICANN's expert and well-compensated legal staff already has more than enough information to propose draft uniform contract language for whatever registration abuses it believes are taking place, and if they think this is an important subject they should do so and put that specific language out for community comment. And if not, then discussion of this subject should be terminated. We don't fault ICANN staff for producing a report requested by the GNSO. But we do perceive them as weighing in for repetitive inquiry on subjects in which there is little evidence of "bottom up" community interest, and against action on subjects where there is, based upon internal organizational objectives as well as outside political pressure. We hope our suggestion will be adopted. As for the time and effort that won't be expended by ICANN staff and community members on yet another repetitious inquiry into a well-examined subject, we can think of one very important subject that is way overdue for review and action to which it could be devoted, and which large elements of the community have already expressed support for. And that subject is procedural UDRP reform, with the primary objective being development of a standard contract for all UDRP arbitration providers. The UDRP is the only major ICANN policy that has never been subjected to review and reform. We believe that ICANN's empowerment of select organizations to transfer or extinguish domains without enforceable standards and limitations is inherently subject to abuse, and that addressing it should be a high priority. That's a discussion of uniform contract language we'd be happy to enthusiastically engage in. ICA's comment letter follows --- VIRTUALAW LLC Philip S. Corwin, Founding Principal 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell psc(a)vlaw-dc.com August 15, 2012 By E-mail to: uoc-prelim-issue-report(a)icann.org<mailto:uoc-prelim-issue-report@icann.org> Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Re: Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse Dear ICANN: I am writing on behalf of the members of the Internet Commerce Association (ICA) in regard to ICANN's Comment Period on the Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse. This Comment Period opened on July 25th and closes today, August 15th. ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers. Executive Summary * ICA supports the creation of a minimum baseline of registration abuse provisions for all in scope ICANN agreements, so long as such provisions are devoted solely to registration abuses and do not stray into the area of use abuses that are the proper province of national governments, law enforcement, and similar entities. * However, ICA opposes the initiation of yet another PDP to further extend the consideration of a subject that has already been under study for almost four years - especially when the proposed PDP would not constitute the final step in this process. * Overall, ICA views this issue as symptomatic of serious flaws in the ICANN policy development process in which important matters are subjected to endless study and debate without any final determination or action, and community members are asked to devote innumerable hours to participation in working groups that create reports which in turn just lead to the initiation of additional reports and working groups. * Rather than initiate another PDP, we suggest that ICANN's legal staff prepare draft provisions for the relevant in scope ICANN agreements that are as uniform as possible and that address the limited number of registration abuses at issue, and that these draft provisions should be put out for comment by contracted parties as well as the ICANN community. Discussion This Issue has Already Been Subjected to Multiple Processes that Reexamined Identical Ground and Failed to Reach a Conclusion or Result in Concrete Action The consideration of whether ICANN should create a minimum baseline of registration abuse provisions for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse, has been under study for nearly four years. This has already resulted in the issuance of three separate reports totaling 212 pages in length: * On 25 September 2008, the GNSO Council requested an issues report from ICANN Staff that resulted in the issuance, on October 29, 2008, of the 49 page "GNSO Issues Report on Registration Abuse Policies" * More than one year later, in December 2009, the GNSO Council agreed to charter a Working Group to investigate the open issues identified in Registration Abuse Policies report, before deciding on whether or not to initiate a Policy Development Process (PDP); and a Registration Abuse Policies Working Group (RAPWG) was chartered in February 2009. The RAPWG issued its 129 page Final Report on May 29, 2010. (Note: I participated in the RAPWG on behalf of ICA and in affiliation with the Commercial and Business Users Constituency.) * More than one additional year subsequently passed until, on October 6, 2011, the GNSO requested yet another report "to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse". That request resulted in the issuance of the 34 page "Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse" on July 25, 2012. * ICANN staff is now suggesting that yet another working group be formed to address this topic, stating, Staff recommends that the Council initiate a Policy Development Process on this topic. Should the PDP proceed, Staff suggests that the working group conduct further research, as follows: * Understand if registration abuses are occurring that could be addressed more effectively if consistent registration abuse policies were established; * Determine if and how (registration) abuse is dealt with in those registries (and registrars) that do not have in place any specific provisions or policies to address abuse; and * Identify how registration abuse provisions, where they exist, are implemented in practice and whether they are effective in addressing registration abuse. If the results of this research reveals that there is value in having uniform provisions to address registration abuse, the PDP WG should also consider a set of initial benchmarks for developing an initial baseline or framework of provisions to battle registration abuse, and define potential reporting requirements to track progress toward those goals. * If the recommended PDP was initiated and a new WG formed, it appears that it would be largely tasked with reexamining issues that have already been addressed by the prior efforts. Further, it would likely lead to yet additional study, rather than the adoption of uniform contract provisions, given that the main task envisioned for the WG would be to "consider a set of initial benchmarks for developing an initial baseline or framework of provisions to battle registration abuse". With all due respect, enough is enough. To the extent that registration abuses create serious problems it is inexcusable to address the issue through a hyper-bureaucratic and seemingly never-ending process that after nearly four years only seems to promise yet multiple additional working groups and reports without any foreseeable conclusion. And it is frankly abusive to request that volunteers from the ICANN community devote hundreds of additional collective hours to participation in new WGs that reexamine already examined issues and are unlikely to lead to any near-term results. The ICANN Policy/Decision Model Compares Unfavorably to both Private and Public Sector Counterparts ICANN is a unique organization - a non-profit sector entity making decisions with public policy implications. Yet, whether measured against private or public sector models, the ICANN policy and decision making process is clearly deficient and in need of some serious reform. We are all for careful deliberation, but only up the point where it devolves into pointless repetition of effort and the absence of any final conclusion to act or not. If ICANN were a pure private sector entity that perceived that its various contracts with third parties required revisions to address specific issues in a uniform matter it would request that its in-house or outside counsel to prepare draft language -- and such changes would likely be approved and implemented within months. If ICANN were a U.S. government agency with a similar perspective it would issue a preliminary notice of proposed rulemaking and solicit public comment. It would subsequently issue a proposed final rule and again solicit public comment. While the entire process would take longer than for a private sector entity, it would likely be concluded in less than two years before the final rule was implemented. ICANN Legal Staff Should Prepare Uniform Draft Contract Provisions for Comment by Contracted Parties and the Community The most extensive study of registration abuses was undertaken by the RAPWG. We have reviewed the entirety of the RAPWG's May 2012 Final Report and note that it does not identify a single registration abuse for which it recommended alterations of ICANN contract language. We cannot imagine any successor WG unearthing new registration abuses or making alternate consensus recommendations. On the precise subject of Uniformity of Contracts, the RAPWG made the following recommendation (which had strong support but also significant opposition): The RAPWG recommends the creation of an Issues Report to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse. That Issues Report was undertaken and is the document that is the focus of this comment letter. As that Report notes: Earlier reports on this topic (see October 2008 Issues Report and the RAPWG Final Report), describe the lack of uniformity of abuse provisions among the currently delegated gTLD registry agreements, as well as the absence of specific abuse provisions in the Registrar Accreditation Agreement (RAA). Across the spectrum of existing registry agreements, there are elements of similarity but each contract (currently) is customized to the uniqueness of the respective registry's business model and operating conditions. Clearly, the work required to identify existing anti-abuse provisions in relevant contractual agreements, and the lack of uniformity thereof, has already been done and there is no need or justification for revisiting that subject. ICANN staff, in preparing the July 2012 Preliminary Issues report, already surveyed a variety of existing contracts to analyze the extent to which registration abuse was addressed and whether that was done in a uniform manner. ICANN is the contracting party for all four of the contract types implicated - Registry Agreement (RA), Registry-Registrar Agreement (RRA), Registrar Accreditation Agreement (RAA), and Registration Agreement (RtA). And ICANN has a highly qualified and well compensated legal staff, as well as access to prestigious outside counsel. We can see little potential gain from the initiation of a new PDP and the establishment of yet another WG on this subject, and do not believe the community should again be asked to expend countless hours on something that has already been exhaustively examined. ICANN has more than enough information to proceed if it believes that uniform contract provisions to address registration abuses should be developed. In our view, the proper next step, if there is to be one, is to have ICANN inside and/or outside counsel develop proposed such proposed draft language and thereby provide potentially affected contracted parties, as well as the overall community, with concrete draft provisions to focus their comments on. In the absence of such proposed contractual language, the entire subject should be dropped rather than embark on yet another chapter of a seemingly never-ending process that does not result in conclusive action. Conclusion ICA appreciates this opportunity to file this reply comment regarding Uniformity of Contracts to Address Registration Abuse. As stated above, while we support the concept of such uniform contract language we believe that after almost four years of inquiry into this subject it is time to "fish or cut bait". We therefore cannot support the initiation of yet another PDP and the creation of a related WG. ICANN legal staff has more than enough information to prepare proposed draft contractual provisions for public comment. They should either do so, or further consideration of this entire matter should be terminated. Thank you for considering our views in this matter. Sincerely, Philip S. Corwin Counsel, Internet Commerce Association Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

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FW: Reminder & Materials: BC Pre Council Members Call Today @ 11 am EDT
by Phil Corwin Sept. 10, 2012

Sept. 10, 2012

These are some additional thoughts about some of the issues raised at last week's NTIA-USPTO meeting. Even if there are disagreements on substance, I would hope that BC members could collectively raise process concerns that even now, almost three months after the URS session in Prague, there is no evidence that ICANN has taken even initial steps toward URS implementation. The continued delay on this required RPM is inexplicable. If this persists then strong questions should be raised in Toronto. From: psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com> To: marilynscade(a)hotmail.com<mailto:marilynscade@hotmail.com>; bc-secretariat(a)icann.org<mailto:bc-secretariat@icann.org> CC: sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>; excomm(a)bizconst.org<mailto:excomm@bizconst.org> Subject: RE: [Bc-private] Reminder & Materials: BC Pre Council Members Call Today @ 11 am EDT Date: Mon, 10 Sep 2012 14:47:50 +0000 Thanks Marilyn. The most important issue for ICA is that the URS remain a distinct and narrow supplement to UDRP for rapid addressing of slam dunk, incontrovertible cases of cybersquatting and not become a lower-priced substitute for UDRP. That was never the intent of those who proposed it and it was accepted by the community on the basis of having a narrow focus. The other point I made is that most potential registrants are unsophisticated and are unlikely to seek advice from a TM attorney, so that if the list of terms in the Trademark Clearinghouse that generate warning notices is too broad it will spook a lot of those registrants and they will refrain from using new gTLDs even though they have no intent to use their desired website in an infringing manner. Finally, in regard to process, I made the point that the participants in the URS session in Prague, while disagreeing on some aspects of substance, were pretty much of a uniform mind that ICANN really needed to start the process of URS implementation. It's been nearly three months since the Prague meeting and so far as I know nothing has been done to even initiate implementation, even though there are plenty of stakeholders who are willing to meet in good faith and just need the blessing of and some modest staff support to go forward (the same kind of approach that ICANN used for TMC implementation). The situation is inexplicable and should be unacceptable, and hopefully will be a major focus for Toronto. Best regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Marilyn Cade [mailto:marilynscade@hotmail.com]<mailto:[mailto:marilynscade@hotmail.com]> Sent: Monday, September 10, 2012 10:34 AM To: Phil Corwin; bc-secretariat @icann Cc: Steve Delbianco; excomm(a)bizconst.org<mailto:excomm@bizconst.org> Subject: RE: [Bc-private] Reminder & Materials: BC Pre Council Members Call Today @ 11 am EDT Phil, thanks so much, and also for coming to the NTIA/PTO event on short notice. I apologize about that but when I learned it was happening, insisted BC have opportunity to participate. Thanks for joining that meeting. When we do the debrief, Steve or I will note that you did raise some concerns, and note that you will post those to the bc list. M ________________________________ From: psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com> To: bc-secretariat(a)icann.org<mailto:bc-secretariat@icann.org> CC: marilynscade(a)hotmail.com<mailto:marilynscade@hotmail.com>; sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org> Subject: RE: [Bc-private] Reminder & Materials: BC Pre Council Members Call Today @ 11 am EDT Date: Mon, 10 Sep 2012 14:09:35 +0000 Bene: I have a conference call scheduled with a client that starts at the same time. If it breaks before the end of the BC call I will dial in and join late. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: bc-private-bounces(a)icann.org<mailto:bc-private-bounces@icann.org> [mailto:bc-private-bounces@icann.org]<mailto:[mailto:bc-private-bounces@icann.org]> On Behalf Of Benedetta Rossi Sent: Monday, September 10, 2012 9:53 AM To: bc-private(a)icann.org<mailto:bc-private@icann.org> Subject: [Bc-private] Reminder & Materials: BC Pre Council Members Call Today @ 11 am EDT Dear BC Members, Please find below a reminder of the dial in details for today's BC Members Pre Council call taking place at 11 am EDT. Materials for this call are attached, including the agenda. More materials will follow shortly to be used during the call. Thank you, Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org<http://www.bizconst.org> bc-secretariat(a)icann.org<mailto:bc-secretariat@icann.org> Passcodes/Pin codes: Participant passcode: BC For security reasons, the passcode will be required to join the call. Dial in numbers: Country Toll Numbers Freephone/ Toll Free Number ARGENTINA 0800-777-0519 AUSTRALIA ADELAIDE: 61-8-8121-4842 1-800-657-260 AUSTRALIA BRISBANE: 61-7-3102-0944 1-800-657-260 AUSTRALIA CANBERRA: 61-2-6100-1944 1-800-657-260 AUSTRALIA MELBOURNE: 61-3-9010-7713 1-800-657-260 AUSTRALIA PERTH: 61-8-9467-5223 1-800-657-260 AUSTRALIA SYDNEY: 61-2-8205-8129 1-800-657-260 AUSTRIA 43-1-92-81-113 0800-005-259 BELGIUM 32-2-400-9861 0800-3-8795 BRAZIL 0800-7610651 CHILE 1230-020-2863 CHINA CHINA A: 86-400-810-4789 10800-712-1670 CHINA CHINA B: 86-400-810-4789 10800-120-1670 COLOMBIA 01800-9-156474 CZECH REPUBLIC 420-2-25-98-56-64 800-700-177 DENMARK 45-7014-0284 8088-8324 ESTONIA 800-011-1093 FINLAND Land Line: 106-33-203 0-800-9-14610 FINLAND Mobile: 09-106-33-203 0-800-9-14610 FRANCE LYON: 33-4-26-69-12-85 080-511-1496 FRANCE MARSEILLE: 33-4-86-06-00-85 080-511-1496 FRANCE PARIS: 33-1-70-70-60-72 080-511-1496 GERMANY 49-69-2222-20362 0800-664-4247 GREECE 30-80-1-100-0687 00800-12-7312 HONG KONG 852-3001-3863 800-962-856 HUNGARY 06-800-12755 INDIA INDIA A: 000-800-852-1268 INDIA INDIA B: 000-800-001-6305 INDIA INDIA C: 1800-300-00491 INDONESIA 001-803-011-3982 IRELAND 353-1-246-7646 1800-992-368 ISRAEL 1-80-9216162 ITALY 39-02-3600-6007 800-986-383 JAPAN OSAKA: 81-6-7739-4799 0066-33-132439 JAPAN TOKYO: 81-3-5539-5191 0066-33-132439 LATVIA 8000-3185 LUXEMBOURG 352-27-000-1364 MALAYSIA 1-800-81-3065 MEXICO 001-866-376-9696 NETHERLANDS 31-20-718-8588 0800-023-4378 NEW ZEALAND 64-9-970-4771 0800-447-722 NORWAY 47-21-590-062 800-15157 PANAMA 011-001-800-5072065 PERU 0800-53713 PHILIPPINES 63-2-858-3716 POLAND 00-800-1212572 PORTUGAL 8008-14052 RUSSIA 8-10-8002-0144011 SAUDI ARABIA 800-8-110087 SINGAPORE 65-6883-9230 800-120-4663 SLOVAK REPUBLIC 421-2-322-422-25 SOUTH AFRICA 080-09-80414 SOUTH KOREA 82-2-6744-1083 00798-14800-7352 SPAIN 34-91-414-25-33 800-300-053 SWEDEN 46-8-566-19-348 0200-884-622 SWITZERLAND 41-44-580-6398 0800-120-032 TAIWAN 886-2-2795-7379 00801-137-797 THAILAND 001-800-1206-66056 UNITED KINGDOM BIRMINGHAM: 44-121-210-9025 0808-238-6029 UNITED KINGDOM GLASGOW: 44-141-202-3225 0808-238-6029 UNITED KINGDOM LEEDS: 44-113-301-2125 0808-238-6029 UNITED KINGDOM LONDON: 44-20-7108-6370 0808-238-6029 UNITED KINGDOM MANCHESTER: 44-161-601-1425 0808-238-6029 URUGUAY 000-413-598-3421 USA 1-517-345-9004 866-692-5726 VENEZUELA 0800-1-00-3702 Restrictions may exist when accessing freephone/toll free numbers using a mobile telephone. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2012.0.2197 / Virus Database: 2437/5260 - Release Date: 09/10/12 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2012.0.2197 / Virus Database: 2437/5260 - Release Date: 09/10/12 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2012.0.2197 / Virus Database: 2437/5260 - Release Date: 09/10/12

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Report from NTIA-USPTO meeting with Industry, September 5, 2012
by Steve DelBianco Sept. 10, 2012

Sept. 10, 2012

Here's my report from the 5-Sep meeting at US Commerce Department. The Commerce Dept hosted a meeting on 5-Sep to discuss recommendations from the June-2012 “Brand Summit” for improving the existing Rights Protection Mechanisms (RPMs). Attending were many brands, their trade associations, and law firms. Marilyn Cade, Steve DelBianco, and Phil Corwin attended from the BC, and Susan Kawaguchi was on the phone. Larry Strickling and David Kappos (Director, USPTO) ran the meeting, though David ran all the Q&A with RPMs. Laura Covington of Yahoo described the purpose of their "Brand Summit" -- to get a "unified voice" on TM concerns. Brian Winterfeldt ran thru the RPMs in the attached letter. Fabricio Vayra (TimeWarner) said that all these RPMs have been discussed before, even during the STI process a few years ago. Fab said the brands agreed to drop many of these RPMs in exchange for globally protected marks list (GPML). But ICANN killed the GPML so these RPMs are now needed. Kappos talked about implementation of RPMs, noting it would be easier to implement close-matches thru the TM Clearinghouse, as opposed to some new mechanism or algorithm. Kristina Rosette pushed the idea of TM + any generic term from the brand's description of goods and services (it's in the letter). Fabricio suggested algorithms of related terms, like many registrars do now to suggest domains "close" to the one you request. (brought some laughs) Kappos asked about implementaility of these RPMs. DelBianco noted that TM Claim notice services will be fully automated and carry very low incremental costs to keep them running after the 60 day required period. And that the BC recommends that names recovered in UDRP/URS should be added to the variants in TM Clearinghouse. Kappos asked why not expand the Watch Services you use now? Suzanne Kawaguchi (Facebook) said Watch Services work only for registrars that allow access and are just for exact matches. Facebook has 60,000 domains we are tracking now, and few of them are exact matches — which are easy to shut-down or recover. To protect users, we need more than exact matches. Marilyn Cade noted that watch services will become much more expensive if they're watching over a thousand TLDs. Marilyn added that the BC supports most of these RPMs but that we have our own suggestions too. Phil Corwin (ICA) said that TM Claims Notices could scare some potential registrants so they won't buy the name. If the warning extends to (TM+generic terms) it could suppress demand for names in new domains and "impair the success" of the TLD expansion. DelBianco noted that the expansion's success won't be reviewed just on the number of names. Cited the Affirmation review criteria of consumer trust, consumer choice, and competition, etc. Marilyn explained the BC recommendations from Jan-2012, including enforceability of changes/promises made by applicants to overcome Warnings or Objections; standardized Sunrise process; centralized URS managed by ICANN. Jonathan Zuck talked about WHOIS accuracy, and suggested registrars be forced to honor an amended RAA that includes WHOIS verification. Josh Bourne said of 700 "open" TLDs, half will offer "blocking" like ICM does in .xxx. Donuts will also offer a DPML. He thinks brands won't simply scale-up their TM monitoring work to cover the TLDs that don't offer blocking. Just too expensive. So consumers will be subject to more fraud in those TLDs. Larry Strickling: we're sensitive to critics saying US dominates the Internet. So please get non-US governments to weigh-in with these concerns. Larry: I need to know what's changed since my letter to ICANN in Jan-2012. How do I explain why USG wants these additional second-level RPMs when we didn't insist on them in January? The only answer anybody had for that was: in January we thought it was 200-300 TLDs. Now we know it's 1400+ -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482

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