Hi David, I think yes, based on the concepts and language previously sent around to the List on 10/28, copied below, as there has not been a lot of specific opposition: TM Clearinghouse: 1. Sunrise processes must be standardized and mandatory. 2. TM notices (misnamed "IP claims") must be mandatory: a. All applications for newTLD domain registrations will be checked against the TMC, regardless whether application is during sunrise period or thereafter b. If applied-for domain string anywhere contains text of trademark listed in TMC, then TM notice given to applicant per proposal listed in Staff recommendation, if domain is registered then TM owner is notified c. TM owners will have option also to trigger notices in the event that applied-for domain string includes the trademark string altered by typographical errors, as determined by an algorithmic tool. For example, yaho0.new would trigger a notice if Yahoo! elected to exercise this option. d. Domain applicant must affirmatively respond to the TM notice, either on screen or email, and registrar must maintain written records of such responses for every domain name. TM owner must get notice of every registration that occurs. URS: 1. Process as detailed by Staff must be mandatory in all newTLD registries a. Substantive standard of UDRP must be exactly replicated in URS 2. Successful complainant must have option to transfer the name or cancel, if no appeal filed within 90 days from date of URS decision. a. Successful complainant must also have option to have domain suspended until end of its current registration term, and then indefinitely flagged b. Flag shall be recorded in clearinghouse so that if anyone seeks to register such name(s) again, they would get a notice. 3. Complainant abuse shall be defined same as Reverse Domain Name Hijacking under UDRP. 4. Meaningful appeal process required, Staff hasn't made any proposal on that yet, so we cannot comment. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> (415) 738-8087 <http://rodenbaugh.com/> http://rodenbaugh.com From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Fares, David Sent: Friday, November 06, 2009 8:59 AM To: icann@rodenbaugh.com; 'bc - GNSO list' Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper Thanks Mike. Would your edited version still impose an affirmative obligation on registries to cross-reference the clearinghouse? From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Thursday, November 05, 2009 4:56 PM To: 'bc - GNSO list' Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper Thanks Chris, how about this? Registry operations for adding new names [DEL should be] ARE OFTEN a highly-automated function [DELETE, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws [DEL should not] MAY NOT ALWAYS in itself constitute bad faith or systemic infringement.] However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Christopher Martin Sent: Thursday, November 05, 2009 1:35 PM To: 'bc - GNSO list' Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper I don't disagree with either Sarah's or Mike's comments on Steve's proposal. But in terms of getting something through that will work for all parties down the road, do we want to consider perhaps softening the language a bit? Perhaps change Registry operations for adding new names [DEL should be] ARE OFTEN a highly-automated function, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws [DEL should not] MAY NOT ALWAYS in itself constitute bad faith or systemic infringement. However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report. Understand that may still not be close enough to other positions on the committee, so just throwing out ideas. USCIB does not have an official position on this. Chris From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Thursday, November 05, 2009 2:57 PM To: 'bc - GNSO list' Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper Hi Steve, BC members might disagree with most of your first sentence. Specifically, the BC appears to have reached consensus that registry operators and/or registrars should do lookups against the Clearinghouse database, and provide appropriate notices to all domain registration applicants. ALAC and other constituencies are of the same view, though some registrars and registries appear to resist. Those registries and/or registrars that choose to ignore this lookup and notice capability (for whatever reason) ought not be relieved from liability for that choice, and might be considered a bad faith contributor to systemic infringement, if not a direct infringer. I support your second sentence though! Thanks, Mike Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, November 05, 2009 11:25 AM To: Zahid Jamil; 'bc - GNSO list' Subject: Re: [bc-gnso] FW: [gnso-sti] Common Grounds Paper Thank-you, Zahid, for your exhaustive efforts on the rights protection mechanisms. As you requested, here's one comment on the draft BC position on Post Delegation Dispute Mechanism (PDDM): Twice in your draft you express concern about Registry Operators turning a "blind eye" to infringements. I'm a fan of clever phrases such as "turn a blind eye", but in this case I think the rhetoric may go too far. One of my registry members reminded me in Seoul that registry operations are highly automated processes. There is no human "eye" looking at registration Add records as they come in from registrars. Accordingly, I suggest replacing the two "blind eye" concerns in the BC comments with this statement: Registry operations for adding new names should be a highly-automated function, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws should not in itself constitute bad faith or systemic infringement. However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report. Again, thanks for working this on our behalf. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482 On 11/4/09 12:37 PM, "Zahid Jamil" <zahid@dndrc.com> wrote: Would like to ask members that if there are any comments on the draft BC position on RPMs that was sent out earlier? If I don't hear anything on whether there will be comments and that I should hold sending this out to the GNSO, I will send it out by tomorrow to both the GNSO and the STI. This message and its attachments may contain legally privileged or confidential information. It is intended solely for the named addressee. 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