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
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
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
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.
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