RE: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program
Why are our deliberations about policy positions so often pushed by a few members to the private list? I think that is contrary to the reason we have a public list, and to our stated commitment to develop policy openly and transparently. I am moving it back to the public list where it belongs. I attach a redline with suggestions for improvement and accuracy in Marilyn's redraft. It requires changes, or at least a formal policy process per our Charter if she is going to maintain some of her stated positions. The major issues I see with this, at this point: 1. The BC has never discussed or recommended any sort of "block list" policy, and this would be a major policy recommendation that must go through the policy development procedures in Section 7 of the BC Charter <http://www.bizconst.org/charter.htm> . The implementation of such a policy across all TLDs would be unfathomable. As you state it, United can go and prevent anyone from registering United in any TLD? (Um, "which United". one might ask.) Oh, and lucky for Siemens, they own 'MUSIC' as a registered trademark for hearing aids in the USA since 1997! ICANN has already given away new TLD operators' rights to use any country name, ICANN's trademarks, etc., for absolutely no logical reason. Now you want the BC to propose that all words that are registered trademarks anywhere in the world can be blocked by any holder of any such registration, across every new TLD in the world? At minimum, this will require more thoughtful, and formal, written policy development per our Charter. You can't just throw this skeletal and dubious proposal into a letter to the Board, merely because you and a few other members like the idea. Particularly while giving the membership just one holiday weekend to consider your idea?! There is no rush to get such a position developed, if that is what the membership wants to do, but I suspect the idea will die fairly quickly once people think for a moment about the implications. 2. Your statement about Community Priority should restate the position we have agreed upon in prior, formally developed policy positions on this issue. Specifically, we have recommended lessening the CPE passing score from 12 to 11 points. We have never discussed giving 'brands' any priority over other applicants, unless somehow they can qualify as a community-based applicant. Again the practical implementation of such a policy is unfathomable, given that almost every single word imaginable is registered somewhere as a trademark, or otherwise used as a 'brand' by someone, somewhere. 3. The BC has never proposed a centralized URS service, and I don't know what you mean by this. Instead we have expected it to operate similar to the UDRP, with several accredited providers, and we suggest ICANN have a contract with all providers. So that proposal needs to come out. 4. Agreed with URS transfer option, as we have long agreed in our written policy positions, but why are we now suggesting an additional fee to trademark owners? Again this seems like a new and unhelpful idea that has not been properly discussed, so that proposal should come out. 5. We should reiterate our call for the TMC to include "brand + keyword" and brand typosquats, as we have previously agreed in prior written policy documents. That would be the single biggest help to trademark owners and businesses, and could be easily achievable as there really is no downside consequence from additional notices going out to applicants for domain registration. I hope everyone has a happy new year, it is regretful that some in the BC leadership are so urgently pushing new proposals to us at this point in time. I frankly don't see the urgency, unless someone is hoping to delay the new TLD application window from opening, as scheduled for more than six months now. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com From: bc-private-bounces@icann.org [mailto:bc-private-bounces@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, December 29, 2011 8:53 AM To: bc-private icann.org Subject: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program Dear BC members -- although it is a holiday period, I must ask that you focus on the redraft of the improvements document which has been circulating on the bc-private list. I have edited the earlier version of the improvements, added in accurate WHOIS at the request of a member, and a reference to not sending 'brands' or NGO or charitable gTLD string applicants into auctions. This was called to my attention by an applicant for BC membership that has just began to learn about ICANN. The significant addition is the do not register/registry block service, which is modeled after the IFFOR .XXX service in many ways. It is challenging to consider defensive registrations costs and UDRP costs across potentially hundreds of new gTLDs, a single cross all gTLD block on a number of names associated with trademarks will at least lower the defensive registration burden somewhat. I proposed a three year period, followed by an assessment. In order to have impact, this really needs to be sent out Tuesday, January 3. The letter is silent on a delay, but does recognize that many global businesses are highly concerned, and that the BC has consistently tried to get improvements to the program. Some are expensive to ICANN, but all are achievable improvements. I incorporated the request to express support for multi stakeholder nature of ICANN raised by a couple of members.
Mike: I'm in general agreement with points 1-3 of your letter. On point 4, as previously stated, I'm against the URS including a transfer option, especially if there's no additional due diligence, and most especially as there is as of yet no indication that any credible URS arbitration provider can be secured at the $300 filing level. Assuming that a credible provider or providers can be secured, I would again propose that rather than having a transfer option, which turns URS into a bargain basement UDRP, that suspended domains be put on a permanent do not re-register list -- which avoids the conflict with UDRP and also obviates the need tor TM owners to pay defensive registration fees forever. On point 5, I generally support limiting TMC to exact matches, especially as that has always been its purpose. If any notice is to be given in regard to brand + keyword it must be a balanced notice that alerts registrants that their proposed domain name MAY OR MAY NOT be infringing, depending on use of the website, because, as pointed out in my earlier e-mail, the mere inclusion of a TM in a longer domain name is not determinative of infringement. And I'm absolutely opposed to inclusion of "Typos" in the TMC database as there is no possible way to limit that vast expansion of TM rights into the DNS space -- and, as you yourself already pointed out, every dictionary word is already a TM for something so even made-up words for Internet startups -- like Google -- would trigger warnings under such a regime. 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 "Luck is the residue of design" -- Branch Rickey ________________________________ From: bc-private-bounces@icann.org [bc-private-bounces@icann.org] on behalf of icann@rodenbaugh.com [icann@rodenbaugh.com] Sent: Thursday, December 29, 2011 2:31 PM To: 'Marilyn Cade'; 'bc-private icann.org'; 'Bc GNSO list ' Subject: Re: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program Why are our deliberations about policy positions so often pushed by a few members to the private list? I think that is contrary to the reason we have a public list, and to our stated commitment to develop policy openly and transparently. I am moving it back to the public list where it belongs. I attach a redline with suggestions for improvement and accuracy in Marilyn’s redraft. It requires changes, or at least a formal policy process per our Charter if she is going to maintain some of her stated positions. The major issues I see with this, at this point: 1. The BC has never discussed or recommended any sort of “block list” policy, and this would be a major policy recommendation that must go through the policy development procedures in Section 7 of the BC Charter<http://www.bizconst.org/charter.htm>. The implementation of such a policy across all TLDs would be unfathomable. As you state it, United can go and prevent anyone from registering United in any TLD? (Um, “which United”… one might ask.) Oh, and lucky for Siemens, they own ‘MUSIC’ as a registered trademark for hearing aids in the USA since 1997! ICANN has already given away new TLD operators’ rights to use any country name, ICANN’s trademarks, etc., for absolutely no logical reason. Now you want the BC to propose that all words that are registered trademarks anywhere in the world can be blocked by any holder of any such registration, across every new TLD in the world? At minimum, this will require more thoughtful, and formal, written policy development per our Charter. You can’t just throw this skeletal and dubious proposal into a letter to the Board, merely because you and a few other members like the idea. Particularly while giving the membership just one holiday weekend to consider your idea?! There is no rush to get such a position developed, if that is what the membership wants to do, but I suspect the idea will die fairly quickly once people think for a moment about the implications. 2. Your statement about Community Priority should restate the position we have agreed upon in prior, formally developed policy positions on this issue. Specifically, we have recommended lessening the CPE passing score from 12 to 11 points. We have never discussed giving ‘brands’ any priority over other applicants, unless somehow they can qualify as a community-based applicant. Again the practical implementation of such a policy is unfathomable, given that almost every single word imaginable is registered somewhere as a trademark, or otherwise used as a ‘brand’ by someone, somewhere. 3. The BC has never proposed a centralized URS service, and I don’t know what you mean by this. Instead we have expected it to operate similar to the UDRP, with several accredited providers, and we suggest ICANN have a contract with all providers. So that proposal needs to come out. 4. Agreed with URS transfer option, as we have long agreed in our written policy positions, but why are we now suggesting an additional fee to trademark owners? Again this seems like a new and unhelpful idea that has not been properly discussed, so that proposal should come out. 5. We should reiterate our call for the TMC to include “brand + keyword” and brand typosquats, as we have previously agreed in prior written policy documents. That would be the single biggest help to trademark owners and businesses, and could be easily achievable as there really is no downside consequence from additional notices going out to applicants for domain registration. I hope everyone has a happy new year, it is regretful that some in the BC leadership are so urgently pushing new proposals to us at this point in time. I frankly don’t see the urgency, unless someone is hoping to delay the new TLD application window from opening, as scheduled for more than six months now… Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com From: bc-private-bounces@icann.org [mailto:bc-private-bounces@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, December 29, 2011 8:53 AM To: bc-private icann.org Subject: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program Dear BC members -- although it is a holiday period, I must ask that you focus on the redraft of the improvements document which has been circulating on the bc-private list. I have edited the earlier version of the improvements, added in accurate WHOIS at the request of a member, and a reference to not sending 'brands' or NGO or charitable gTLD string applicants into auctions. This was called to my attention by an applicant for BC membership that has just began to learn about ICANN. The significant addition is the do not register/registry block service, which is modeled after the IFFOR .XXX service in many ways. It is challenging to consider defensive registrations costs and UDRP costs across potentially hundreds of new gTLDs, a single cross all gTLD block on a number of names associated with trademarks will at least lower the defensive registration burden somewhat. I proposed a three year period, followed by an assessment. In order to have impact, this really needs to be sent out Tuesday, January 3. The letter is silent on a delay, but does recognize that many global businesses are highly concerned, and that the BC has consistently tried to get improvements to the program. Some are expensive to ICANN, but all are achievable improvements. I incorporated the request to express support for multi stakeholder nature of ICANN raised by a couple of members.
Thanks Phil. On point 4, we will have to agree to disagree. The heightened burden of proof to 'clear and convincing' makes the URS much different than a UDRP. Without option to transfer, there is little utility to the proposed URS; particularly since ICANN is not likely to find an administrator for anywhere near $300 per case. On point 5, I agree the TMC notice should have some different language in the case of brand + keyword or typo matches, to make it clear. But I think the additional benefit of notice in such cases is useful both as an information service for the prospective registrant, and as a deterrent against misuse. The TM owner should self-select the keywords and typos that would trigger a match. They would bear the brunt of poor PR and/or complaints from third parties if they over-reach with typos or keywords, just like they do today with keyword advertising or domain monetization issues. Most would be responsible and only register commonly squatted strings like yahoomail, googl, etc., particularly if there were some additional cost for registering additional strings. In any event, only a notice would be triggered, and then the registrant is free to register in light of it. I really don't see a downside, even if there could be comical attempts at misuse from some over-reaching trademark owners. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <http://rodenbaugh.com> http://rodenbaugh.com From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Thursday, December 29, 2011 1:33 PM To: mike@rodenbaugh.com; 'Marilyn Cade'; 'bc-private icann.org'; 'Bc GNSO list ' Subject: [bc-gnso] RE: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program Mike: I'm in general agreement with points 1-3 of your letter. On point 4, as previously stated, I'm against the URS including a transfer option, especially if there's no additional due diligence, and most especially as there is as of yet no indication that any credible URS arbitration provider can be secured at the $300 filing level. Assuming that a credible provider or providers can be secured, I would again propose that rather than having a transfer option, which turns URS into a bargain basement UDRP, that suspended domains be put on a permanent do not re-register list -- which avoids the conflict with UDRP and also obviates the need tor TM owners to pay defensive registration fees forever. On point 5, I generally support limiting TMC to exact matches, especially as that has always been its purpose. If any notice is to be given in regard to brand + keyword it must be a balanced notice that alerts registrants that their proposed domain name MAY OR MAY NOT be infringing, depending on use of the website, because, as pointed out in my earlier e-mail, the mere inclusion of a TM in a longer domain name is not determinative of infringement. And I'm absolutely opposed to inclusion of "Typos" in the TMC database as there is no possible way to limit that vast expansion of TM rights into the DNS space -- and, as you yourself already pointed out, every dictionary word is already a TM for something so even made-up words for Internet startups -- like Google -- would trigger warnings under such a regime. 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 "Luck is the residue of design" -- Branch Rickey _____ From: bc-private-bounces@icann.org [bc-private-bounces@icann.org] on behalf of icann@rodenbaugh.com [icann@rodenbaugh.com] Sent: Thursday, December 29, 2011 2:31 PM To: 'Marilyn Cade'; 'bc-private icann.org'; 'Bc GNSO list ' Subject: Re: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program Why are our deliberations about policy positions so often pushed by a few members to the private list? I think that is contrary to the reason we have a public list, and to our stated commitment to develop policy openly and transparently. I am moving it back to the public list where it belongs. I attach a redline with suggestions for improvement and accuracy in Marilyn's redraft. It requires changes, or at least a formal policy process per our Charter if she is going to maintain some of her stated positions. The major issues I see with this, at this point: 1. The BC has never discussed or recommended any sort of "block list" policy, and this would be a major policy recommendation that must go through the policy development procedures in Section 7 of the BC Charter <http://www.bizconst.org/charter.htm> . The implementation of such a policy across all TLDs would be unfathomable. As you state it, United can go and prevent anyone from registering United in any TLD? (Um, "which United". one might ask.) Oh, and lucky for Siemens, they own 'MUSIC' as a registered trademark for hearing aids in the USA since 1997! ICANN has already given away new TLD operators' rights to use any country name, ICANN's trademarks, etc., for absolutely no logical reason. Now you want the BC to propose that all words that are registered trademarks anywhere in the world can be blocked by any holder of any such registration, across every new TLD in the world? At minimum, this will require more thoughtful, and formal, written policy development per our Charter. You can't just throw this skeletal and dubious proposal into a letter to the Board, merely because you and a few other members like the idea. Particularly while giving the membership just one holiday weekend to consider your idea?! There is no rush to get such a position developed, if that is what the membership wants to do, but I suspect the idea will die fairly quickly once people think for a moment about the implications. 2. Your statement about Community Priority should restate the position we have agreed upon in prior, formally developed policy positions on this issue. Specifically, we have recommended lessening the CPE passing score from 12 to 11 points. We have never discussed giving 'brands' any priority over other applicants, unless somehow they can qualify as a community-based applicant. Again the practical implementation of such a policy is unfathomable, given that almost every single word imaginable is registered somewhere as a trademark, or otherwise used as a 'brand' by someone, somewhere. 3. The BC has never proposed a centralized URS service, and I don't know what you mean by this. Instead we have expected it to operate similar to the UDRP, with several accredited providers, and we suggest ICANN have a contract with all providers. So that proposal needs to come out. 4. Agreed with URS transfer option, as we have long agreed in our written policy positions, but why are we now suggesting an additional fee to trademark owners? Again this seems like a new and unhelpful idea that has not been properly discussed, so that proposal should come out. 5. We should reiterate our call for the TMC to include "brand + keyword" and brand typosquats, as we have previously agreed in prior written policy documents. That would be the single biggest help to trademark owners and businesses, and could be easily achievable as there really is no downside consequence from additional notices going out to applicants for domain registration. I hope everyone has a happy new year, it is regretful that some in the BC leadership are so urgently pushing new proposals to us at this point in time. I frankly don't see the urgency, unless someone is hoping to delay the new TLD application window from opening, as scheduled for more than six months now. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com From: bc-private-bounces@icann.org [mailto:bc-private-bounces@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, December 29, 2011 8:53 AM To: bc-private icann.org Subject: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program Dear BC members -- although it is a holiday period, I must ask that you focus on the redraft of the improvements document which has been circulating on the bc-private list. I have edited the earlier version of the improvements, added in accurate WHOIS at the request of a member, and a reference to not sending 'brands' or NGO or charitable gTLD string applicants into auctions. This was called to my attention by an applicant for BC membership that has just began to learn about ICANN. The significant addition is the do not register/registry block service, which is modeled after the IFFOR .XXX service in many ways. It is challenging to consider defensive registrations costs and UDRP costs across potentially hundreds of new gTLDs, a single cross all gTLD block on a number of names associated with trademarks will at least lower the defensive registration burden somewhat. I proposed a three year period, followed by an assessment. In order to have impact, this really needs to be sent out Tuesday, January 3. The letter is silent on a delay, but does recognize that many global businesses are highly concerned, and that the BC has consistently tried to get improvements to the program. Some are expensive to ICANN, but all are achievable improvements. I incorporated the request to express support for multi stakeholder nature of ICANN raised by a couple of members.
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icann＠rodenbaugh.com -
Phil Corwin