Ron (and other BC members who contacted me to ask that I provide alternative URS language): I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft. That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process. If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRT recommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way? As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP. Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system. Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used. Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end. Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs. Regards to all, Philip Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com] Sent: Friday, July 16, 2010 3:36 PM To: Ron Andruff; frederick felman; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks Ron and Sarah. AT&T supports filing comments and I like how you’ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds. Jeff Brueggeman AT&T Public Policy (202) 457-2064 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Friday, July 16, 2010 12:34 PM To: 'frederick felman'; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks to Mark Monitor and AIM for your notes of support for the circulated draft. I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap? Thanks again everyone for taking a moment to review the DAGv4 draft comments. RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: frederick felman [mailto:ffelman@markmonitor.com] Sent: Friday, July 16, 2010 12:21 PM To: Ron Andruff; bc-GNSO@icann.org Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 Importance: High MarkMonitor support the BC comments to DAGv4. On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com<https://exchange.sierracorporation.com/owa/UrlBlockedError.aspx>> wrote: Dear Members, Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC’s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements. We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks... Thanks in advance for your soonest input. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

Mikey, There are four positions in the draft BC comments. To be clear, do you not support any of them? I understood that Phil takes issue with URS only. Kind regards, RA ________________________________________ Ron Andruff RNA Partners, Inc. randruff@rnapartners.com www.rnapartners.com -----Original Message----- From: "Mike O'Connor" <mike@haven2.com> Sender: owner-bc-gnso@icann.org Date: Sat, 17 Jul 2010 07:39:34 To: Phil Corwin<pcorwin@butera-andrews.com> Cc: BRUEGGEMAN, JEFF (ATTSI)<jb7454@att.com>; Ron Andruff<randruff@rnapartners.com>; frederick felman<ffelman@markmonitor.com>; bc-GNSO@icann.org<bc-GNSO@icann.org> Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 i am in Phil's camp on this. several years ago i started referring to myself as "a member of the business wing of the Business Constituency" just to make it clear that i'm not keen on our strident views with regard to rights protections and cyber-security. of course cyber-crime is important, but folks like Bruce Schneier make an extremely compelling case that there needs to be a culture of security in which all participants are active and aware rather than creating a culture of passive consumers being "protected" by ever-increasingly intrusive "authorities" like governments and ICANN. of course trademark violations are unacceptable -- but to make this our signature issue, to take our position beyond even those of the IPC, and leaving *small* business owners defenseless in the face of large corporate brand-owners, leaves me continuing to feel disenfranchised (much the way i feel disenfranchised by the extreme politics in my country -- where the heck do moderates hang out??). i would love to see the BC develop a positive message (based on positive positions) that truly reflect the needs of businesses large and small rather than recycling these views from our reactionary past. i would also love to get out of the continuing role of being an apologist for our somewhat quirky positions. haarrrumph! :-) so, just to be on record, i do not support these comments on DAGv4. sorry about the rant. thanks for taking the time to craft these notes Phil, mikey On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:

Ron (and other BC members who contacted me to ask that I provide alternative URS language):

I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft.

That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process.

If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRTrecommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way?

As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP.

Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system.

Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used.

Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end.

Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs.

Regards to all, Philip

Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com] Sent: Friday, July 16, 2010 3:36 PM To: Ron Andruff; frederick felman; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks Ron and Sarah. AT&T supports filing comments and I like how you’ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds.

Jeff Brueggeman AT&T Public Policy (202) 457-2064

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Friday, July 16, 2010 12:34 PM To: 'frederick felman'; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks to Mark Monitor and AIM for your notes of support for the circulated draft.

I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap?

Thanks again everyone for taking a moment to review the DAGv4 draft comments.

RA

Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

From: frederick felman [mailto:ffelman@markmonitor.com] Sent: Friday, July 16, 2010 12:21 PM To: Ron Andruff; bc-GNSO@icann.org Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 Importance: High

MarkMonitor support the BC comments to DAGv4.

On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com> wrote:

Dear Members,

Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC’s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements.

We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks...

Thanks in advance for your soonest input.

Kind regards,

RA

Ronald N. Andruff President

RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

I agree with Mikey as well. The tone of the comments seem to me to be unduly negative, so it's not just the substantive arguments that are of concern. I would prefer a piece that focuses on a discrete issue or two that are achievable vs. a rant that likely will be ignored. As for substance, I agree with most of the URS issues that Phil raised and with Mike on dropping the GPML comments. I also think we should drop the reference to ICANN personnel issues when we are only speculating as to what happened. Thanks. Jon On Jul 17, 2010, at 5:48 PM, Mike O'Connor wrote:

hi Ron,

i don't really support any of the positions in there. they strike me as pennies put on the tracks of an oncoming train. :-)

i think new gTLDs are a great idea, the sooner the better. so i'd much prefer to be part of a position that was out in front of that train, or better yet part of the engine, rather than belaboring positions that have already been presented, reviewed and ignored. it strikes me as somehow Quixotic to keep tilting at those windmills.

i don't mean to sound grumpy -- it's just that we give the appearance of trying to stop or slow down the introduction of new gTLDs all the time -- instead of leading the parade for all those businesses that need them. i had a beer with the COO of Thomson Reuters last week and didn't even think of bringing up the BC when he turned the conversation to new gTLDs. he's the ops guy -- the trademark stuff is handled by his trademark staff, but he's interested in what he can **do** with gTLDs. we ought to have an answer for him...

mikey

On Jul 17, 2010, at 4:03 PM, Ron Andruff wrote:

...

Mikey,

There are four positions in the draft BC comments. To be clear, do you not support any of them? I understood that Phil takes issue with URS only.

Kind regards,

RA ________________________________________ Ron Andruff RNA Partners, Inc. randruff@rnapartners.com www.rnapartners.com

From: "Mike O'Connor" <mike@haven2.com> Sender: owner-bc-gnso@icann.org Date: Sat, 17 Jul 2010 07:39:34 -0500 To: Phil Corwin<pcorwin@butera-andrews.com> Cc: BRUEGGEMAN, JEFF (ATTSI)<jb7454@att.com>; Ron Andruff<randruff@rnapartners.com>; frederick felman<ffelman@markmonitor.com>; bc-GNSO@icann.org<bc-GNSO@icann.org> Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4

i am in Phil's camp on this. several years ago i started referring to myself as "a member of the business wing of the Business Constituency" just to make it clear that i'm not keen on our strident views with regard to rights protections and cyber-security.

of course cyber-crime is important, but folks like Bruce Schneier make an extremely compelling case that there needs to be a culture of security in which all participants are active and aware rather than creating a culture of passive consumers being "protected" by ever-increasingly intrusive "authorities" like governments and ICANN.

of course trademark violations are unacceptable -- but to make this our signature issue, to take our position beyond even those of the IPC, and leaving *small* business owners defenseless in the face of large corporate brand-owners, leaves me continuing to feel disenfranchised (much the way i feel disenfranchised by the extreme politics in my country -- where the heck do moderates hang out??).

i would love to see the BC develop a positive message (based on positive positions) that truly reflect the needs of businesses large and small rather than recycling these views from our reactionary past.

i would also love to get out of the continuing role of being an apologist for our somewhat quirky positions. haarrrumph! :-)

so, just to be on record, i do not support these comments on DAGv4.

sorry about the rant. thanks for taking the time to craft these notes Phil,

mikey

On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:

...

Ron (and other BC members who contacted me to ask that I provide alternative URS language):

I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft.

That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process.

If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRTrecommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way?

As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP.

Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system.

Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used.

Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end.

Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs.

Regards to all, Philip

Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com] Sent: Friday, July 16, 2010 3:36 PM To: Ron Andruff; frederick felman; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks Ron and Sarah. AT&T supports filing comments and I like how you’ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds.

Jeff Brueggeman AT&T Public Policy (202) 457-2064

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Friday, July 16, 2010 12:34 PM To: 'frederick felman'; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks to Mark Monitor and AIM for your notes of support for the circulated draft.

I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap?

Thanks again everyone for taking a moment to review the DAGv4 draft comments.

RA

Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

From: frederick felman [mailto:ffelman@markmonitor.com] Sent: Friday, July 16, 2010 12:21 PM To: Ron Andruff; bc-GNSO@icann.org Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 Importance: High

MarkMonitor support the BC comments to DAGv4.

On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com> wrote:

Dear Members,

Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC’s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements.

We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks...

Thanks in advance for your soonest input.

Kind regards,

RA

Ronald N. Andruff President

RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

Given the diversity of opinion within the BC, as well as the fact that other members appear to have broader concerns than those I raised, I would again suggest that a poll should be taken of BC members to take the Constituency's temperature and determine if there is any consensus for the proposed position statement. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey From: Michael Castello [mailto:michaelc@traveler.com] Sent: Saturday, July 17, 2010 07:04 PM To: Mike O'Connor <mike@haven2.com> Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454@att.com>; Ron Andruff <randruff@rnapartners.com>; frederick felman <ffelman@markmonitor.com>; bc-GNSO@icann.org <bc-GNSO@icann.org> Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 I agree with both Phil and Mikey. There was certainly a lot of freedom early on with the internet and closing ranks on the concerns of trademark holders and new entities were, over time, clearly needed. The name space was allowed to flourish because it was so available to everyone. We need to make sure that these regulations, while needed, do not become too cumbersome to new participants. Everyone needs to be invited to the party. Michael Castello CEO/President Castello Cities Internet Network, Inc. http://www.ccin.com michael@ccin.com<mailto:michael@ccin.com> -- Saturday, July 17, 2010, 5:39:34 AM, you wrote: i am in Phil's camp on this. several years ago i started referring to myself as "a member of the business wing of the Business Constituency" just to make it clear that i'm not keen on our strident views with regard to rights protections and cyber-security. of course cyber-crime is important, but folks like Bruce Schneier make an extremely compelling case that there needs to be a culture of security in which all participants are active and aware rather than creating a culture of passive consumers being "protected" by ever-increasingly intrusive "authorities" like governments and ICANN. of course trademark violations are unacceptable -- but to make this our signature issue, to take our position beyond even those of the IPC, and leaving *small* business owners defenseless in the face of large corporate brand-owners, leaves me continuing to feel disenfranchised (much the way i feel disenfranchised by the extreme politics in my country -- where the heck do moderates hang out??). i would love to see the BC develop a positive message (based on positive positions) that truly reflect the needs of businesses large and small rather than recycling these views from our reactionary past. i would also love to get out of the continuing role of being an apologist for our somewhat quirky positions. haarrrumph! :-) so, just to be on record, i do not support these comments on DAGv4. sorry about the rant. thanks for taking the time to craft these notes Phil, mikey On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote: Ron (and other BC members who contacted me to ask that I provide alternative URS language): I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft. That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process. If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRTrecommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way? As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP. Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system. Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used. Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end. Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs. Regards to all, Philip Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com] Sent: Friday, July 16, 2010 3:36 PM To: Ron Andruff; frederick felman; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks Ron and Sarah. AT&T supports filing comments and I like how you’ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds. Jeff Brueggeman AT&T Public Policy (202) 457-2064 From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Friday, July 16, 2010 12:34 PM To: 'frederick felman'; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks to Mark Monitor and AIM for your notes of support for the circulated draft. I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap? Thanks again everyone for taking a moment to review the DAGv4 draft comments. RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: frederick felman [mailto:ffelman@markmonitor.com] Sent: Friday, July 16, 2010 12:21 PM To: Ron Andruff; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 Importance: High MarkMonitor support the BC comments to DAGv4. On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com<https://exchange.sierracorporation.com/owa/UrlBlockedError.aspx>> wrote: Dear Members, Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC’s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements. We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks... Thanks in advance for your soonest input. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 - - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

We agree wholeheartedly with Sarah's comments below. We were happy with the original draft and feel comfortable with the changes proposed by Mike R and not with Phil's. Sent from my mobile +1(415)606-3733 (please excuse any content I might blame on the size of the keyboard & screen including but not limited to typos) On Jul 18, 2010, at 10:44 AM, "Deutsch, Sarah B" <sarah.b.deutsch@verizon.com> wrote:

I'm not opposed to polling members on this issue. I can understand that many of Phil's members who are in the domain name business may see business opportunities from the introduction of new gTLDs. They and others who expressed concern do not own a well known brand or have widespread trademark infringement problems. Those who object have different business interests and protecting corporate brands and consumers in the new gTLD spaces is not on their list of priorities. I respect that.

However, ICANN designated trademark protection as one of the overarching issues surrounding the rollout and pledged that these issues would be adequately addressed in the DAG. I'm not aware of any major brand owners, including the IPC members participating on the IRT, who are happy with the diluted trademark protections currently contained in DAG 4. I would hope even members without trademark concerns, should respect the interests of BC members who have such concerns and allow them to express those. Our BC GNSO councilors have consistently advocated for these protections on our behalf. The BC already submitted consistent comments in the past, including on DAG 3. Ron tried to keep much of the DAG 4 comments identical to the language to the DAG 3 draft. I'm sure Ron is open to receiving additional constructive edits on tone and substance (e.g., Mike R's helpful suggestion to delete reference to the GPML since that appears to be dead in the water).

I'm hopeful that we can find a consructive way to move forward given the importance of this issue to so many BC members. We've heard from those raising concerns, but we've also heard from AT&T, News Corp, Mike Rodenbaugh, NetChoice, Verizon and RNA Partners weighing in supporting the comments. I would urge others to weigh in on this as well.

Sarah

Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Saturday, July 17, 2010 9:48 PM To: 'michaelc@traveler.com'; 'mike@haven2.com' Cc: 'jb7454@att.com'; 'randruff@rnapartners.com'; 'ffelman@markmonitor.com'; 'bc-GNSO@icann.org' Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Given the diversity of opinion within the BC, as well as the fact that other members appear to have broader concerns than those I raised, I would again suggest that a poll should be taken of BC members to take the Constituency's temperature and determine if there is any consensus for the proposed position statement. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell

"Luck is the residue of design." -- Branch Rickey

From: Michael Castello [mailto:michaelc@traveler.com] Sent: Saturday, July 17, 2010 07:04 PM To: Mike O'Connor <mike@haven2.com> Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454@att.com>; Ron Andruff <randruff@rnapartners.com>; frederick felman <ffelman@markmonitor.com>; bc-GNSO@icann.org <bc-GNSO@icann.org> Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

I agree with both Phil and Mikey. There was certainly a lot of freedom early on with the internet and closing ranks on the concerns of trademark holders and new entities were, over time, clearly needed. The name space was allowed to flourish because it was so available to everyone. We need to make sure that these regulations, while needed, do not become too cumbersome to new participants. Everyone needs to be invited to the party.

Michael Castello

CEO/President

Castello Cities Internet Network, Inc.

http://www.ccin.com

michael@ccin.com

--

Saturday, July 17, 2010, 5:39:34 AM, you wrote:

i am in Phil's camp on this. several years ago i started referring to myself as "a member of the business wing of the Business Constituency" just to make it clear that i'm not keen on our strident views with regard to rights protections and cyber-security.

of course cyber-crime is important, but folks like Bruce Schneier make an extremely compelling case that there needs to be a culture of security in which all participants are active and aware rather than creating a culture of passive consumers being "protected" by ever-increasingly intrusive "authorities" like governments and ICANN.

of course trademark violations are unacceptable -- but to make this our signature issue, to take our position beyond even those of the IPC, and leaving *small* business owners defenseless in the face of large corporate brand-owners, leaves me continuing to feel disenfranchised (much the way i feel disenfranchised by the extreme politics in my country -- where the heck do moderates hang out??).

i would love to see the BC develop a positive message (based on positive positions) that truly reflect the needs of businesses large and small rather than recycling these views from our reactionary past.

i would also love to get out of the continuing role of being an apologist for our somewhat quirky positions. haarrrumph! :-)

so, just to be on record, i do not support these comments on DAGv4.

sorry about the rant. thanks for taking the time to craft these notes Phil,

mikey

On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:

Ron (and other BC members who contacted me to ask that I provide alternative URS language):

I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft.

That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process.

If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRTrecommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way?

As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP.

Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system.

Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used.

Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end.

Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs.

Regards to all,

Philip

Philip S. Corwin

Partner

Butera & Andrews

1301 Pennsylvania Ave., NW

Suite 500

Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com]

Sent: Friday, July 16, 2010 3:36 PM

To: Ron Andruff; frederick felman; bc-GNSO@icann.org

Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks Ron and Sarah. AT&T supports filing comments and I like how you’ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds.

Jeff Brueggeman

AT&T Public Policy

(202) 457-2064

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff

Sent: Friday, July 16, 2010 12:34 PM

To: 'frederick felman'; bc-GNSO@icann.org

Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks to Mark Monitor and AIM for your notes of support for the circulated draft.

I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap?

Thanks again everyone for taking a moment to review the DAGv4 draft comments.

RA

Ronald N. Andruff

President

RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11

From: frederick felman [mailto:ffelman@markmonitor.com]

Sent: Friday, July 16, 2010 12:21 PM

To: Ron Andruff; bc-GNSO@icann.org

Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4

Importance: High

MarkMonitor support the BC comments to DAGv4.

On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com> wrote:

Dear Members,

Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC’s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements.

We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks...

Thanks in advance for your soonest input.

Kind regards,

RA

Ronald N. Andruff

President

RNA Partners, Inc.

220 Fifth Avenue

New York, New York 10001

+ 1 212 481 2820 ext. 11

- - - - - - - - -

phone 651-647-6109

fax 866-280-2356

web http://www.haven2.com

handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon On Jul 18, 2010, at 8:22 PM, Zahid Jamil wrote:

Agree absolutely with Sarah’s comments.

Sincerely,

Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com

Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited.

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 18 July 2010 13:41 To: Phil Corwin; michaelc@traveler.com; mike@haven2.com Cc: jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

I'm not opposed to polling members on this issue. I can understand that many of Phil's members who are in the domain name business may see business opportunities from the introduction of new gTLDs. They and others who expressed concern do not own a well known brand or have widespread trademark infringement problems. Those who object have different business interests and protecting corporate brands and consumers in the new gTLD spaces is not on their list of priorities. I respect that.

However, ICANN designated trademark protection as one of the overarching issues surrounding the rollout and pledged that these issues would be adequately addressed in the DAG. I'm not aware of any major brand owners, including the IPC members participating on the IRT, who are happy with the diluted trademark protections currently contained in DAG 4. I would hope even members without trademark concerns, should respect the interests of BC members who have such concerns and allow them to express those. Our BC GNSO councilors have consistently advocated for these protections on our behalf. The BC already submitted consistent comments in the past, including on DAG 3. Ron tried to keep much of the DAG 4 comments identical to the language to the DAG 3 draft. I'm sure Ron is open to receiving additional constructive edits on tone and substance (e.g., Mike R's helpful suggestion to delete reference to the GPML since that appears to be dead in the water).

I'm hopeful that we can find a consructive way to move forward given the importance of this issue to so many BC members. We've heard from those raising concerns, but we've also heard from AT&T, News Corp, Mike Rodenbaugh, NetChoice, Verizon and RNA Partners weighing in supporting the comments. I would urge others to weigh in on this as well.

Sarah

Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Saturday, July 17, 2010 9:48 PM To: 'michaelc@traveler.com'; 'mike@haven2.com' Cc: 'jb7454@att.com'; 'randruff@rnapartners.com'; 'ffelman@markmonitor.com'; 'bc-GNSO@icann.org' Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Given the diversity of opinion within the BC, as well as the fact that other members appear to have broader concerns than those I raised, I would again suggest that a poll should be taken of BC members to take the Constituency's temperature and determine if there is any consensus for the proposed position statement. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell

"Luck is the residue of design." -- Branch Rickey

From: Michael Castello [mailto:michaelc@traveler.com] Sent: Saturday, July 17, 2010 07:04 PM To: Mike O'Connor <mike@haven2.com> Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454@att.com>; Ron Andruff <randruff@rnapartners.com>; frederick felman <ffelman@markmonitor.com>; bc-GNSO@icann.org <bc-GNSO@icann.org> Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

I agree with both Phil and Mikey. There was certainly a lot of freedom early on with the internet and closing ranks on the concerns of trademark holders and new entities were, over time, clearly needed. The name space was allowed to flourish because it was so available to everyone. We need to make sure that these regulations, while needed, do not become too cumbersome to new participants. Everyone needs to be invited to the party.

Michael Castello CEO/President Castello Cities Internet Network, Inc. http://www.ccin.com michael@ccin.com

-- Saturday, July 17, 2010, 5:39:34 AM, you wrote:

i am in Phil's camp on this. several years ago i started referring to myself as "a member of the business wing of the Business Constituency" just to make it clear that i'm not keen on our strident views with regard to rights protections and cyber-security.

of course cyber-crime is important, but folks like Bruce Schneier make an extremely compelling case that there needs to be a culture of security in which all participants are active and aware rather than creating a culture of passive consumers being "protected" by ever-increasingly intrusive "authorities" like governments and ICANN.

of course trademark violations are unacceptable -- but to make this our signature issue, to take our position beyond even those of the IPC, and leaving *small* business owners defenseless in the face of large corporate brand-owners, leaves me continuing to feel disenfranchised (much the way i feel disenfranchised by the extreme politics in my country -- where the heck do moderates hang out??).

i would love to see the BC develop a positive message (based on positive positions) that truly reflect the needs of businesses large and small rather than recycling these views from our reactionary past.

i would also love to get out of the continuing role of being an apologist for our somewhat quirky positions. haarrrumph! :-)

so, just to be on record, i do not support these comments on DAGv4.

sorry about the rant. thanks for taking the time to craft these notes Phil,

mikey

On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:

Ron (and other BC members who contacted me to ask that I provide alternative URS language):

I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft.

That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process.

If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRTrecommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way?

As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP.

Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system.

Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used.

Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end.

Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs.

Regards to all, Philip

Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com] Sent: Friday, July 16, 2010 3:36 PM To: Ron Andruff; frederick felman; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks Ron and Sarah. AT&T supports filing comments and I like how you’ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds.

Jeff Brueggeman AT&T Public Policy (202) 457-2064

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Friday, July 16, 2010 12:34 PM To: 'frederick felman'; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks to Mark Monitor and AIM for your notes of support for the circulated draft.

I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap?

Thanks again everyone for taking a moment to review the DAGv4 draft comments.

RA

Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

From: frederick felman [mailto:ffelman@markmonitor.com] Sent: Friday, July 16, 2010 12:21 PM To: Ron Andruff; bc-GNSO@icann.org Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 Importance: High

MarkMonitor support the BC comments to DAGv4.

On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com> wrote: Dear Members,

Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC’s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements.

We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks...

Thanks in advance for your soonest input.

Kind regards,

RA

Ronald N. Andruff President

RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

Jon, Thank you for the redraft and to others that have prepared the comments. I echo Sarah's comments regarding the different perspectives of our members and I obviously sympathise with major brand-owners that deal day-in, day-out with brand abuse and fraud that targets consumers. I support the comments drafted by Ron and Sarah but would be prepared to endorse Jon's latest revision if there was strong consensus amongst the BC. Regards, Martin Martin C SUTTON Group Risk Manager, Group Fraud Risk and Intelligence | HSBC HOLDINGS PLC HGHQ Group Security & Fraud Risk 8 Canada Square,Canary Wharf,London,E14 5HQ,United Kingdom ________________________________________________________________ Phone. +44 (0)20 7991 8074 / 7991 8074 Mobile. +44 (0) 7774556680 Email. martinsutton@hsbc.com ________________________________________________________________ Jon Nevett <jon@nevett.net> Sent by: owner-bc-gnso@icann.org Jul 19 2010 08:29 Mail Size: 198251 To Zahid Jamil <zahid@dndrc.com> cc "'Deutsch, Sarah B'" <sarah.b.deutsch@verizon.com>, "'Phil Corwin'" <pcorwin@butera-andrews.com>, <michaelc@traveler.com>, <mike@haven2.com>, <jb7454@att.com>, <randruff@rnapartners.com>, <ffelman@markmonitor.com>, <bc-GNSO@icann.org> Subject Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Entity HSBC Holdings plc - GMO Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon [attachment "DRAFDT BC Pub Comm DAGv4 - (SD-RA jn).doc" deleted by Martin C SUTTON/GMO/HSBC] On Jul 18, 2010, at 8:22 PM, Zahid Jamil wrote: Agree absolutely with Sarah?s comments. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 18 July 2010 13:41 To: Phil Corwin; michaelc@traveler.com; mike@haven2.com Cc: jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 I'm not opposed to polling members on this issue. I can understand that many of Phil's members who are in the domain name business may see business opportunities from the introduction of new gTLDs. They and others who expressed concern do not own a well known brand or have widespread trademark infringement problems. Those who object have different business interests and protecting corporate brands and consumers in the new gTLD spaces is not on their list of priorities. I respect that. However, ICANN designated trademark protection as one of the overarching issues surrounding the rollout and pledged that these issues would be adequately addressed in the DAG. I'm not aware of any major brand owners, including the IPC members participating on the IRT, who are happy with the diluted trademark protections currently contained in DAG 4. I would hope even members without trademark concerns, should respect the interests of BC members who have such concerns and allow them to express those. Our BC GNSO councilors have consistently advocated for these protections on our behalf. The BC already submitted consistent comments in the past, including on DAG 3. Ron tried to keep much of the DAG 4 comments identical to the language to the DAG 3 draft. I'm sure Ron is open to receiving additional constructive edits on tone and substance (e.g., Mike R's helpful suggestion to delete reference to the GPML since that appears to be dead in the water). I'm hopeful that we can find a consructive way to move forward given the importance of this issue to so many BC members. We've heard from those raising concerns, but we've also heard from AT&T, News Corp, Mike Rodenbaugh, NetChoice, Verizon and RNA Partners weighing in supporting the comments. I would urge others to weigh in on this as well. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Saturday, July 17, 2010 9:48 PM To: 'michaelc@traveler.com'; 'mike@haven2.com' Cc: 'jb7454@att.com'; 'randruff@rnapartners.com'; 'ffelman@markmonitor.com '; 'bc-GNSO@icann.org' Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Given the diversity of opinion within the BC, as well as the fact that other members appear to have broader concerns than those I raised, I would again suggest that a poll should be taken of BC members to take the Constituency's temperature and determine if there is any consensus for the proposed position statement. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey From: Michael Castello [mailto:michaelc@traveler.com] Sent: Saturday, July 17, 2010 07:04 PM To: Mike O'Connor <mike@haven2.com> Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454@att.com>; Ron Andruff < randruff@rnapartners.com>; frederick felman <ffelman@markmonitor.com>; bc-GNSO@icann.org <bc-GNSO@icann.org> Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 I agree with both Phil and Mikey. There was certainly a lot of freedom early on with the internet and closing ranks on the concerns of trademark holders and new entities were, over time, clearly needed. The name space was allowed to flourish because it was so available to everyone. We need to make sure that these regulations, while needed, do not become too cumbersome to new participants. Everyone needs to be invited to the party. Michael Castello CEO/President Castello Cities Internet Network, Inc. http://www.ccin.com michael@ccin.com -- Saturday, July 17, 2010, 5:39:34 AM, you wrote: i am in Phil's camp on this. several years ago i started referring to myself as "a member of the business wing of the Business Constituency" just to make it clear that i'm not keen on our strident views with regard to rights protections and cyber-security. of course cyber-crime is important, but folks like Bruce Schneier make an extremely compelling case that there needs to be a culture of security in which all participants are active and aware rather than creating a culture of passive consumers being "protected" by ever-increasingly intrusive "authorities" like governments and ICANN. of course trademark violations are unacceptable -- but to make this our signature issue, to take our position beyond even those of the IPC, and leaving *small* business owners defenseless in the face of large corporate brand-owners, leaves me continuing to feel disenfranchised (much the way i feel disenfranchised by the extreme politics in my country -- where the heck do moderates hang out??). i would love to see the BC develop a positive message (based on positive positions) that truly reflect the needs of businesses large and small rather than recycling these views from our reactionary past. i would also love to get out of the continuing role of being an apologist for our somewhat quirky positions. haarrrumph! :-) so, just to be on record, i do not support these comments on DAGv4. sorry about the rant. thanks for taking the time to craft these notes Phil, mikey On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote: Ron (and other BC members who contacted me to ask that I provide alternative URS language): I appreciate the request, as I appreciate the hard work put in by Ron and Sarah on the draft. That said, a few word changes will not suffice to alter ICA's dissent, as we have an entirely different perspective. We represent individuals and companies with substantial investments in domain portfolios. They view domains in the same way that most of you (and we) view trademarks -- as an intangible asset with substantial value. When a trademark rights protection is proposed it might be useful to ask whether you would be willing to have one of your trademarks suspended, or forfeited, on the basis of what is on the table. If not, then don't expect registrants to embrace it. In no way do we condone trademark infringement, but proposed responses to it need to assure basic due process. If a majority wills it then the BC is within its rights to proffer a reworking of the same positions it has articulated on prior occasions, and it should expect essentially the same results -- especially after BC members participated in an STI process that reworked the IRTrecommendations, and the STI's work was embraced by the GNSO and approved by the Board. If ICANN staff have significantly altered the STI's consensus recommendations then that certainly should be raised, but otherwise the rights protections for new gTLDs have been pretty much baked into the DAG. Does anyone really think they will be reopened in any significant way? As regards the specifics of the URS provision, we cannot agree that the URS should have the same substantive standard as the UDRP. The URS was proposed by the IRT as reserved for "obvious", "no brainer" rights disputes, and was originally proposed with a higher evidentiary standard to distinguish URS cases from UDRPs. We don't think the BC's credibility on trademark matters is enhanced when it consistently articulates a harder line than that of the IPC, which conceived of and oversaw the IRT. As for urging that the URS lead to a domain transfer and not just a suspension -- again, this goes beyond the IRT recommendation and would likewise blur the distinction between the URS and UDRP. Finally, we find the discussion of the "impact" test for a finding of RDNH in the URS to be confusing -- but we do believe that if a complainant advances deliberate falsehoods with the intent of having a favorable impact on its complaint then it is clearly guilty of attempting to abuse the available system. Beyond the URS, our only other comment on the rights protection language is to note our strong questioning of a TM Clearinghouse regime in which an "identical match" is defined as "typographical variations". Identical means identical, not variations. Variations to what degree? Having a trademark in one word doesn't provide a right to fire warning shots at tens of thousands of possible variants of that word, multiple degrees of separation away from it. If you're going to propose that variations be encompassed then it really is incumbent to articulate some defining limits on that notion - "we know it when we see it" is really not adequate assurance for registrants. And, of course, these issues become even more problematic for dictionary words that are trademarked for various purposes. Please let's remember that in most instances infringement can't just be determined by the name of a domain but requires a look at how it is being used. Finally, to note an area of agreement -- we share the concern that ICANN devotes inadequate resources to compliance, and indeed in Brussels we suggested publicly that it earmark a meaningful portion of revenues from new gTLD applications to that end. Summing up, we would have to oppose the URS regime that the majority of the BC seems to favor as providing inadequate assurance of due process to registrants, and we think the overall position on rights protection is backwards looking given that the STI train has left the station. Again, this does not mean we are unsympathetic to the concerns of rights holders. Throughout the past 18 months we have advocated comprehensive UDRP reform that would address the concerns of all parties across the entire gTLD space, and we continue to believe that a good faith collaboration could produce positive changes that could be put in place in tandem with the opening of new gTLDs. Regards to all, Philip Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of BRUEGGEMAN, JEFF (ATTSI) [jb7454@att.com] Sent: Friday, July 16, 2010 3:36 PM To: Ron Andruff; frederick felman; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks Ron and Sarah. AT&T supports filing comments and I like how you?ve updated them. While I was not involved in the original BC comments, I would note that you could add a reference to the recommendation in the Economic Study that it may be wise for ICANC to continue its practice of introducing new gTLDs in discrete, limited rounds. Jeff Brueggeman AT&T Public Policy (202) 457-2064 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Friday, July 16, 2010 12:34 PM To: 'frederick felman'; bc-GNSO@icann.org Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks to Mark Monitor and AIM for your notes of support for the circulated draft. I encourage other members to give the doc a quick read. While it is several pages long, please note that it is the same document we submitted for DAGv3 so what we are asking is for you to review the redlines and give your comments/amendments. To that end, Phil Corwin, can you send your suggested URS text asap? Thanks again everyone for taking a moment to review the DAGv4 draft comments. RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 From: frederick felman [mailto:ffelman@markmonitor.com] Sent: Friday, July 16, 2010 12:21 PM To: Ron Andruff; bc-GNSO@icann.org Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4 Importance: High MarkMonitor support the BC comments to DAGv4. On 7/15/10 7:20 AM, "Ron Andruff" <randruff@rnapartners.com> wrote: Dear Members, Further to my reminder earlier this week regarding the need for a BC public comment on DAGv4, Sarah Deutsch and I have developed a draft for member review and comment. Effectively, we have taken the BC?s DAGv3 comments and added/amended based on (1) staff having largely ignored our comments in DAGv2 and v3; and (2) utilized subsequent information that has come available in the interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material and I took responsibility for the other elements. We ask that members review and comment on the document at your earliest convenience, so that we can meet the submission deadline of Wednesday, July 21st. Sorry for the late posting, but unfortunately with summer holidays and all, a few things are slipping between the cracks... Thanks in advance for your soonest input. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 - - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.) ************************************************************ HSBC Holdings plc Registered Office: 8 Canada Square, London E14 5HQ, United Kingdom Registered in England number 617987 ************************************************************ ----------------------------------------- SAVE PAPER - THINK BEFORE YOU PRINT! This E-mail is confidential. It may also be legally privileged. If you are not the addressee you may not copy, forward, disclose or use any part of it. If you have received this message in error, please delete it and all copies from your system and notify the sender immediately by return E-mail. Internet communications cannot be guaranteed to be timely secure, error or virus-free. The sender does not accept liability for any errors or omissions.

thanks all. Good work going on here in the discussions and exchanges of views. Steve and I will be discussing a process to get to a BC outcome. . Everyone's work and focus on this is much appreciated. I know this is busy times and our members have diverse views in some cases, but in others, I think we have common ground. I do want to make one comment. The BC has a position of supporting managed, responsible introduction of gTLDs [and IDNs] that expand the names space in a differentiated manner. We also have a position about ICANN acting responsibly. I have seen a few comments from BC members that seem to indicate a concern that the BC opposes the expansion of new gTLDs. Our position is much more responsible than that, but it does include addressing the challenges of expansion of the gTLD space. So, just to assure members who thought that there was a rewrite of the BC position on expansion, I don't see that in the comments. However, I appreciate the concern about tone and I think that is being addressed. Stay tuned for a suggested approach after I talk with Steve, as V.Chair, Policy Coordination. Marilyn CadeBC Chair From: cgmartin@uscib.org To: jon@nevett.net; zahid@dndrc.com CC: sarah.b.deutsch@verizon.com; pcorwin@butera-andrews.com; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Date: Mon, 19 Jul 2010 09:57:57 -0400 Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Hi all. USCIB is currently in the process of drafting our own DAG4 input, and so we cannot comment directly on substantive language at this time. However, on RPMs, USCIB generally supported the IRT’s recommendations. Many of the BC’s comments in the current draft(s) reflect the fact that the current DAG does not contain the thrust of those recommendations and thus we support language drawing attention to those failings and many of the suggested remedies, including much of what is said on mechanisms like URS and the Trademark Clearinghouse. We stand by the incorporation of these items and language supporting the general thrust of the IRT recommendations in the BC comments. On tone of the document, I agree that some language from the original draft could be shifted to more positively construe our input. I think Jon’s edits do a pretty good job in terms of changing the tone (again, no comment directly on the substantive language used except for above). Cheers, Chris From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Jon Nevett Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon

ICA believes that John's redraft is a significant improvement in many ways. However, we do continue to have some concerns about the URS section, specifically: * We can't support the transfer option, as suspension versus transfer was one of the major distinctions between URS and standard UDRP as originally proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut cases as well as instances where the complainant wished to permanently acquire the domain. We think it's important to preserve that distinction and that problems with the use of the UDRP for default cases should be addressed by comprehensive UDRP reform. * We don't agree that the language asserting that the "impact" test is too low for a finding of abuse of process. The exact language now in the DAG is -- "An Examiner may find that Complaint contained a deliberate material falsehood if it contained an assertion of fact, which at the time it was made, was made with the knowledge that it was false and which, if true, would have an impact on the outcome on the URS proceeding." What this says is that if a complainant deliberately lied about a material fact in order to influence the outcome of a URS in its favor it will suffer a penalty in order to protect the integrity of the overall process. The penalty for one such deliberate lie is being suspended from using the URS for one year; the penalty for two such lies is permanently barring it from use of the process. Now, as a practical matter, it will be the rare case where the examiner is able to conclude that the complainant deliberately misrepresented material facts, so this isn't going to happen very often, plus there are no monetary sanctions - including fines or a requirement that the complainant pay the registrant's costs of defending the domain - so it isn't as severe a pernalty as some called for it to be. If the BC is going to say that the impact test is too low (with which we don't agree) then I think it has some responsibility to propose an alternate tests that protects the integrity of the URS against the (hopefully rare) complainant who deliberately seeks to abuse it. As a typographical matter, the last portion of the last sentence of the first URS paragraph should read "less certainty for the complainant using this process", not "registrant". Finally, we appreciate the serious and civil debate that has been taking place within the BC on this matter -- this is precisely what should occur within a constituency to bridge differences in perspective. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: Jon Nevett [jon@nevett.net] Sent: Sunday, July 18, 2010 9:39 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon

ICA generally supports and has no objection to the proposed BC position statement urging orderly rollout of new gTLDs. As previously stated, in regard to the rights protection piece, we: * Object to going beyond the IRT recommendation for the URS by providing a domain transfer option, as this blurs any real distinction from the standard UDRP process. * Believe it is appropriate to sanction complainants who abuse the URS by deliberately asserting material misstatements of facts, and believe that the BC has a responsibility to better explain why such an impact test is too low as well as propose a substitute test that preserves the integrity of the URS. * Object to the inclusion of "typographical variations" for the TM Clearinghouse unless the BC can articulate objective and reasonably narrow standards for the limits of such variations. We are also disappointed that the BC statement does not include any language that builds on the RAPWG recommendation for initiation of a balanced and comprehensive UDRP PDP to achieve beneficial reforms for all parties across the entire gTLD space. We also urge that there be some polling of BC members in regard to the rights protection piece to determine whether there is significant consensus within the constituency for retaining these positions in a post-STI environment. Thank you for consideration of our views. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of Ron Andruff [randruff@rnapartners.com] Sent: Monday, July 19, 2010 11:13 AM To: bc-GNSO@icann.org Subject: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Dear colleagues, Pursuant to the comments that have been sent in, as rapporteur for this process, I have incorporated the amendments and prepared two final documents for your review and comment. Two documents, insomuch as I broke the original comments into two separate postings so that the BC membership can work through the issues accordingly. As Philip Sheppard noted, the BC must post its comments in line with past positions. Splitting the documents hopefully enables focused discussion on the RPM piece without impeding posting the other comments. The first document incorporates a slimmed down version of the original comments I posted last week on the issues of ‘market differentiation’, ‘translation of ASCII to other scripts’ and ‘revised community priority evaluation scoring’, with the BC’s DAGv3 comments attached for reference. It should be noted that I have made no material changes in these comments; rather I simply tightened up the arguments and cleaned up typos, etc. The second document is effectively Jon’s edits on RPMs. I have made no changes to his edition other than made the correction (‘complainant’ vs. ‘registrant’) that Phil Corwin noted in his recent posting to the list. Once again, I welcome comments/amendments to finalize these two documents for posting. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Monday, July 19, 2010 10:39 AM To: Jon Nevett; Zahid Jamil Cc: 'Deutsch, Sarah B'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 ICA believes that John's redraft is a significant improvement in many ways. However, we do continue to have some concerns about the URS section, specifically: * We can't support the transfer option, as suspension versus transfer was one of the major distinctions between URS and standard UDRP as originally proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut cases as well as instances where the complainant wished to permanently acquire the domain. We think it's important to preserve that distinction and that problems with the use of the UDRP for default cases should be addressed by comprehensive UDRP reform. * We don't agree that the language asserting that the "impact" test is too low for a finding of abuse of process. The exact language now in the DAG is -- "An Examiner may find that Complaint contained a deliberate material falsehood if it contained an assertion of fact, which at the time it was made, was made with the knowledge that it was false and which, if true, would have an impact on the outcome on the URS proceeding." What this says is that if a complainant deliberately lied about a material fact in order to influence the outcome of a URS in its favor it will suffer a penalty in order to protect the integrity of the overall process. The penalty for one such deliberate lie is being suspended from using the URS for one year; the penalty for two such lies is permanently barring it from use of the process. Now, as a practical matter, it will be the rare case where the examiner is able to conclude that the complainant deliberately misrepresented material facts, so this isn't going to happen very often, plus there are no monetary sanctions - including fines or a requirement that the complainant pay the registrant's costs of defending the domain - so it isn't as severe a pernalty as some called for it to be. If the BC is going to say that the impact test is too low (with which we don't agree) then I think it has some responsibility to propose an alternate tests that protects the integrity of the URS against the (hopefully rare) complainant who deliberately seeks to abuse it. As a typographical matter, the last portion of the last sentence of the first URS paragraph should read "less certainty for the complainant using this process", not "registrant". Finally, we appreciate the serious and civil debate that has been taking place within the BC on this matter -- this is precisely what should occur within a constituency to bridge differences in perspective. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: Jon Nevett [jon@nevett.net] Sent: Sunday, July 18, 2010 9:39 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon

Phil, I want to acknowledge that it is my intent to work with Steve DelBianco, as v.Chair of policy coordination to do that polling. He and I are trying to reach other. One thing that I don't think we can do is start over on existing positions. That is much harder and will take more time. Having said that, I am open to starting a new /separate discussion on topics outside of this particular BC submission. Steve and I will reach each other here shortly. I wanted to acknowledge the request to do a members poll. Marilyn CadeBC ChairFrom: pcorwin@butera-andrews.com To: randruff@rnapartners.com; bc-GNSO@icann.org Subject: RE: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Date: Mon, 19 Jul 2010 15:58:52 +0000 ICA generally supports and has no objection to the proposed BC position statement urging orderly rollout of new gTLDs. As previously stated, in regard to the rights protection piece, we: Object to going beyond the IRT recommendation for the URS by providing a domain transfer option, as this blurs any real distinction from the standard UDRP process. Believe it is appropriate to sanction complainants who abuse the URS by deliberately asserting material misstatements of facts, and believe that the BC has a responsibility to better explain why such an impact test is too low as well as propose a substitute test that preserves the integrity of the URS. Object to the inclusion of "typographical variations" for the TM Clearinghouse unless the BC can articulate objective and reasonably narrow standards for the limits of such variations. We are also disappointed that the BC statement does not include any language that builds on the RAPWG recommendation for initiation of a balanced and comprehensive UDRP PDP to achieve beneficial reforms for all parties across the entire gTLD space. We also urge that there be some polling of BC members in regard to the rights protection piece to determine whether there is significant consensus within the constituency for retaining these positions in a post-STI environment. Thank you for consideration of our views. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of Ron Andruff [randruff@rnapartners.com] Sent: Monday, July 19, 2010 11:13 AM To: bc-GNSO@icann.org Subject: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Dear colleagues, Pursuant to the comments that have been sent in, as rapporteur for this process, I have incorporated the amendments and prepared two final documents for your review and comment. Two documents, insomuch as I broke the original comments into two separate postings so that the BC membership can work through the issues accordingly. As Philip Sheppard noted, the BC must post its comments in line with past positions. Splitting the documents hopefully enables focused discussion on the RPM piece without impeding posting the other comments. The first document incorporates a slimmed down version of the original comments I posted last week on the issues of ‘market differentiation’, ‘translation of ASCII to other scripts’ and ‘revised community priority evaluation scoring’, with the BC’s DAGv3 comments attached for reference. It should be noted that I have made no material changes in these comments; rather I simply tightened up the arguments and cleaned up typos, etc. The second document is effectively Jon’s edits on RPMs. I have made no changes to his edition other than made the correction (‘complainant’ vs. ‘registrant’) that Phil Corwin noted in his recent posting to the list. Once again, I welcome comments/amendments to finalize these two documents for posting. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Monday, July 19, 2010 10:39 AM To: Jon Nevett; Zahid Jamil Cc: 'Deutsch, Sarah B'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 ICA believes that John's redraft is a significant improvement in many ways. However, we do continue to have some concerns about the URS section, specifically: We can't support the transfer option, as suspension versus transfer was one of the major distinctions between URS and standard UDRP as originally proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut cases as well as instances where the complainant wished to permanently acquire the domain. We think it's important to preserve that distinction and that problems with the use of the UDRP for default cases should be addressed by comprehensive UDRP reform. We don't agree that the language asserting that the "impact" test is too low for a finding of abuse of process. The exact language now in the DAG is -- "An Examiner may find that Complaint contained a deliberate material falsehood if it contained an assertion of fact, which at the time it was made, was made with the knowledge that it was false and which, if true, would have an impact on the outcome on the URS proceeding." What this says is that if a complainant deliberately lied about a material fact in order to influence the outcome of a URS in its favor it will suffer a penalty in order to protect the integrity of the overall process. The penalty for one such deliberate lie is being suspended from using the URS for one year; the penalty for two such lies is permanently barring it from use of the process. Now, as a practical matter, it will be the rare case where the examiner is able to conclude that the complainant deliberately misrepresented material facts, so this isn't going to happen very often, plus there are no monetary sanctions - including fines or a requirement that the complainant pay the registrant's costs of defending the domain - so it isn't as severe a pernalty as some called for it to be. If the BC is going to say that the impact test is too low (with which we don't agree) then I think it has some responsibility to propose an alternate tests that protects the integrity of the URS against the (hopefully rare) complainant who deliberately seeks to abuse it. As a typographical matter, the last portion of the last sentence of the first URS paragraph should read "less certainty for the complainant using this process", not "registrant". Finally, we appreciate the serious and civil debate that has been taking place within the BC on this matter -- this is precisely what should occur within a constituency to bridge differences in perspective. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey From: Jon Nevett [jon@nevett.net] Sent: Sunday, July 18, 2010 9:39 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon

Jon, That addition was submitted by Jeff Bruegeman (AT&T), but it was meant as a supporting statement to the Economic Framework, i.e., NOT based on categories. It is not meant to roll back the clock. Regarding the "in line with past positions" refers to the fact that the BC is consistent in its desire to see an orderly rollout versus being a constituency stuck in history. Can you and I take this offline and work through language that you feel is more definitive? RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 _____ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 12:09 PM To: Ron Andruff Cc: bc-GNSO@icann.org Subject: Re: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Importance: High Ron: I just took a quick look at the document and unless I am mistaken, It looks like there was at least one material change to at least the first document. For example, I do not recall seeing the following sentence in any of the prior versions. "Therefore the BC recommends that ICANN continue its practice of introducing new gTLDs and IDNs in discrete, limited rounds." I don't support this insertion. It is unclear. Does this mean the BC agrees or not with the implementation plan in DAGv4, which includes discrete rounds. Or does it mean that the BC supports some kind of rounds based on categories or applicants? Such a model would take us back to days of ICANN staff and board conducting beauty contests either by application or by category. We rejected this approach at the GNSO recommendation level and shouldn't go back to it. I haven't looked closely enough to see if there are other changes in this new document. Also, I don't support attaching the prior comments to these comments. Our comments should be able to evolve with the passage of time. If we just want to repeat ourselves, then it is appropriate to attach prior comments. In this case, however, we shouldn't just support a position simply because we did so last year. Indeed, why must the BC post comments "in line with past positions?" Can't the BC change its mind on an issue? We shouldn't just regurgitate old arguments simply because they were supported historically. My two cents. Thanks. Jon On Jul 19, 2010, at 11:13 AM, Ron Andruff wrote: Dear colleagues, Pursuant to the comments that have been sent in, as rapporteur for this process, I have incorporated the amendments and prepared two final documents for your review and comment. Two documents, insomuch as I broke the original comments into two separate postings so that the BC membership can work through the issues accordingly. As Philip Sheppard noted, the BC must post its comments in line with past positions. Splitting the documents hopefully enables focused discussion on the RPM piece without impeding posting the other comments. The first document incorporates a slimmed down version of the original comments I posted last week on the issues of 'market differentiation', 'translation of ASCII to other scripts' and 'revised community priority evaluation scoring', with the BC's DAGv3 comments attached for reference. It should be noted that I have made no material changes in these comments; rather I simply tightened up the arguments and cleaned up typos, etc. The second document is effectively Jon's edits on RPMs. I have made no changes to his edition other than made the correction ('complainant' vs. 'registrant') that Phil Corwin noted in his recent posting to the list. Once again, I welcome comments/amendments to finalize these two documents for posting. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 _____ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Monday, July 19, 2010 10:39 AM To: Jon Nevett; Zahid Jamil Cc: 'Deutsch, Sarah B'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 ICA believes that John's redraft is a significant improvement in many ways. However, we do continue to have some concerns about the URS section, specifically: * We can't support the transfer option, as suspension versus transfer was one of the major distinctions between URS and standard UDRP as originally proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut cases as well as instances where the complainant wished to permanently acquire the domain. We think it's important to preserve that distinction and that problems with the use of the UDRP for default cases should be addressed by comprehensive UDRP reform. * We don't agree that the language asserting that the "impact" test is too low for a finding of abuse of process. The exact language now in the DAG is -- "An Examiner may find that Complaint contained a deliberate material falsehood if it contained an assertion of fact, which at the time it was made, was made with the knowledge that it was false and which, if true, would have an impact on the outcome on the URS proceeding." What this says is that if a complainant deliberately lied about a material fact in order to influence the outcome of a URS in its favor it will suffer a penalty in order to protect the integrity of the overall process. The penalty for one such deliberate lie is being suspended from using the URS for one year; the penalty for two such lies is permanently barring it from use of the process. Now, as a practical matter, it will be the rare case where the examiner is able to conclude that the complainant deliberately misrepresented material facts, so this isn't going to happen very often, plus there are no monetary sanctions - including fines or a requirement that the complainant pay the registrant's costs of defending the domain - so it isn't as severe a pernalty as some called for it to be. If the BC is going to say that the impact test is too low (with which we don't agree) then I think it has some responsibility to propose an alternate tests that protects the integrity of the URS against the (hopefully rare) complainant who deliberately seeks to abuse it. As a typographical matter, the last portion of the last sentence of the first URS paragraph should read "less certainty for the complainant using this process", not "registrant". Finally, we appreciate the serious and civil debate that has been taking place within the BC on this matter -- this is precisely what should occur within a constituency to bridge differences in perspective. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey _____ From: Jon Nevett [jon@nevett.net] Sent: Sunday, July 18, 2010 9:39 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon <DRAFT BC Pub Comm 1-3 DAGv4 - (RA).doc><DRAFT BC Pub Comm 4 DAGv4 - (SD-JN).doc>

Ron, you have captured the intent of my comment. The economic framework paper is "new" information for the comment proceeding and it provides some perspectives that are relevant to the issues being discussed within the BC. The paper discusses the potential user benefits of new gTLDs (e.g., innovative business models and IDNs), while also acknowledging the potential costs and externalities. I read the two conclusions in the paper as being related - ICANN should introduce new gTLDs in discrete, limited rounds and adopt practices for gathering additional information about the costs and benefits of new gTLDs. By implementing both recommendations, ICANN can learn from experience and make informed decisions. Jeff From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Monday, July 19, 2010 12:26 PM To: 'Jon Nevett' Cc: bc-GNSO@icann.org Subject: RE: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Jon, That addition was submitted by Jeff Bruegeman (AT&T), but it was meant as a supporting statement to the Economic Framework, i.e., NOT based on categories. It is not meant to roll back the clock. Regarding the "in line with past positions" refers to the fact that the BC is consistent in its desire to see an orderly rollout versus being a constituency stuck in history. Can you and I take this offline and work through language that you feel is more definitive? RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 12:09 PM To: Ron Andruff Cc: bc-GNSO@icann.org Subject: Re: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Importance: High Ron: I just took a quick look at the document and unless I am mistaken, It looks like there was at least one material change to at least the first document. For example, I do not recall seeing the following sentence in any of the prior versions. "Therefore the BC recommends that ICANN continue its practice of introducing new gTLDs and IDNs in discrete, limited rounds." I don't support this insertion. It is unclear. Does this mean the BC agrees or not with the implementation plan in DAGv4, which includes discrete rounds. Or does it mean that the BC supports some kind of rounds based on categories or applicants? Such a model would take us back to days of ICANN staff and board conducting beauty contests either by application or by category. We rejected this approach at the GNSO recommendation level and shouldn't go back to it. I haven't looked closely enough to see if there are other changes in this new document. Also, I don't support attaching the prior comments to these comments. Our comments should be able to evolve with the passage of time. If we just want to repeat ourselves, then it is appropriate to attach prior comments. In this case, however, we shouldn't just support a position simply because we did so last year. Indeed, why must the BC post comments "in line with past positions?" Can't the BC change its mind on an issue? We shouldn't just regurgitate old arguments simply because they were supported historically. My two cents. Thanks. Jon On Jul 19, 2010, at 11:13 AM, Ron Andruff wrote: Dear colleagues, Pursuant to the comments that have been sent in, as rapporteur for this process, I have incorporated the amendments and prepared two final documents for your review and comment. Two documents, insomuch as I broke the original comments into two separate postings so that the BC membership can work through the issues accordingly. As Philip Sheppard noted, the BC must post its comments in line with past positions. Splitting the documents hopefully enables focused discussion on the RPM piece without impeding posting the other comments. The first document incorporates a slimmed down version of the original comments I posted last week on the issues of 'market differentiation', 'translation of ASCII to other scripts' and 'revised community priority evaluation scoring', with the BC's DAGv3 comments attached for reference. It should be noted that I have made no material changes in these comments; rather I simply tightened up the arguments and cleaned up typos, etc. The second document is effectively Jon's edits on RPMs. I have made no changes to his edition other than made the correction ('complainant' vs. 'registrant') that Phil Corwin noted in his recent posting to the list. Once again, I welcome comments/amendments to finalize these two documents for posting. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Monday, July 19, 2010 10:39 AM To: Jon Nevett; Zahid Jamil Cc: 'Deutsch, Sarah B'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 ICA believes that John's redraft is a significant improvement in many ways. However, we do continue to have some concerns about the URS section, specifically: * We can't support the transfer option, as suspension versus transfer was one of the major distinctions between URS and standard UDRP as originally proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut cases as well as instances where the complainant wished to permanently acquire the domain. We think it's important to preserve that distinction and that problems with the use of the UDRP for default cases should be addressed by comprehensive UDRP reform. * We don't agree that the language asserting that the "impact" test is too low for a finding of abuse of process. The exact language now in the DAG is -- "An Examiner may find that Complaint contained a deliberate material falsehood if it contained an assertion of fact, which at the time it was made, was made with the knowledge that it was false and which, if true, would have an impact on the outcome on the URS proceeding." What this says is that if a complainant deliberately lied about a material fact in order to influence the outcome of a URS in its favor it will suffer a penalty in order to protect the integrity of the overall process. The penalty for one such deliberate lie is being suspended from using the URS for one year; the penalty for two such lies is permanently barring it from use of the process. Now, as a practical matter, it will be the rare case where the examiner is able to conclude that the complainant deliberately misrepresented material facts, so this isn't going to happen very often, plus there are no monetary sanctions - including fines or a requirement that the complainant pay the registrant's costs of defending the domain - so it isn't as severe a pernalty as some called for it to be. If the BC is going to say that the impact test is too low (with which we don't agree) then I think it has some responsibility to propose an alternate tests that protects the integrity of the URS against the (hopefully rare) complainant who deliberately seeks to abuse it. As a typographical matter, the last portion of the last sentence of the first URS paragraph should read "less certainty for the complainant using this process", not "registrant". Finally, we appreciate the serious and civil debate that has been taking place within the BC on this matter -- this is precisely what should occur within a constituency to bridge differences in perspective. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: Jon Nevett [jon@nevett.net] Sent: Sunday, July 18, 2010 9:39 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon <DRAFT BC Pub Comm 1-3 DAGv4 - (RA).doc><DRAFT BC Pub Comm 4 DAGv4 - (SD-JN).doc>

Jon, admittedly I may be missing something in the DAG4 materials, but it isn't clear to me how the rounds are being structured to address the recommendations made in the economic paper. I don't have a specific suggestion for implementation, but rather want to be sure that the overall implementation plan addresses the issues that are identified in the economic paper. This should include a roll-out process that allows ICANN to learn from the initial round(s) and make adjustments as needed to address any issues or concerns. I don't see where that has been addressed in the DAG4. Jeff From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 2:32 PM To: BRUEGGEMAN, JEFF (ATTSI) Cc: Ron Andruff; bc-GNSO@icann.org Subject: Re: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Jeff: How would you suggest that ICANN implement New TLDs in discrete, limited rounds? Do you have an alternative proposal to what currently is in the DAGv4, or are you comfortable with what is in the current version? Just trying to understand what you are advocating for on this issue. We might be on the same page. Thanks. Jon On Jul 19, 2010, at 2:27 PM, BRUEGGEMAN, JEFF (ATTSI) wrote: Ron, you have captured the intent of my comment. The economic framework paper is "new" information for the comment proceeding and it provides some perspectives that are relevant to the issues being discussed within the BC. The paper discusses the potential user benefits of new gTLDs (e.g., innovative business models and IDNs), while also acknowledging the potential costs and externalities. I read the two conclusions in the paper as being related - ICANN should introduce new gTLDs in discrete, limited rounds and adopt practices for gathering additional information about the costs and benefits of new gTLDs. By implementing both recommendations, ICANN can learn from experience and make informed decisions. Jeff From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Monday, July 19, 2010 12:26 PM To: 'Jon Nevett' Cc: bc-GNSO@icann.org Subject: RE: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Jon, That addition was submitted by Jeff Bruegeman (AT&T), but it was meant as a supporting statement to the Economic Framework, i.e., NOT based on categories. It is not meant to roll back the clock. Regarding the "in line with past positions" refers to the fact that the BC is consistent in its desire to see an orderly rollout versus being a constituency stuck in history. Can you and I take this offline and work through language that you feel is more definitive? RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 12:09 PM To: Ron Andruff Cc: bc-GNSO@icann.org Subject: Re: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4 Importance: High Ron: I just took a quick look at the document and unless I am mistaken, It looks like there was at least one material change to at least the first document. For example, I do not recall seeing the following sentence in any of the prior versions. "Therefore the BC recommends that ICANN continue its practice of introducing new gTLDs and IDNs in discrete, limited rounds." I don't support this insertion. It is unclear. Does this mean the BC agrees or not with the implementation plan in DAGv4, which includes discrete rounds. Or does it mean that the BC supports some kind of rounds based on categories or applicants? Such a model would take us back to days of ICANN staff and board conducting beauty contests either by application or by category. We rejected this approach at the GNSO recommendation level and shouldn't go back to it. I haven't looked closely enough to see if there are other changes in this new document. Also, I don't support attaching the prior comments to these comments. Our comments should be able to evolve with the passage of time. If we just want to repeat ourselves, then it is appropriate to attach prior comments. In this case, however, we shouldn't just support a position simply because we did so last year. Indeed, why must the BC post comments "in line with past positions?" Can't the BC change its mind on an issue? We shouldn't just regurgitate old arguments simply because they were supported historically. My two cents. Thanks. Jon On Jul 19, 2010, at 11:13 AM, Ron Andruff wrote: Dear colleagues, Pursuant to the comments that have been sent in, as rapporteur for this process, I have incorporated the amendments and prepared two final documents for your review and comment. Two documents, insomuch as I broke the original comments into two separate postings so that the BC membership can work through the issues accordingly. As Philip Sheppard noted, the BC must post its comments in line with past positions. Splitting the documents hopefully enables focused discussion on the RPM piece without impeding posting the other comments. The first document incorporates a slimmed down version of the original comments I posted last week on the issues of 'market differentiation', 'translation of ASCII to other scripts' and 'revised community priority evaluation scoring', with the BC's DAGv3 comments attached for reference. It should be noted that I have made no material changes in these comments; rather I simply tightened up the arguments and cleaned up typos, etc. The second document is effectively Jon's edits on RPMs. I have made no changes to his edition other than made the correction ('complainant' vs. 'registrant') that Phil Corwin noted in his recent posting to the list. Once again, I welcome comments/amendments to finalize these two documents for posting. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 ________________________________ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Monday, July 19, 2010 10:39 AM To: Jon Nevett; Zahid Jamil Cc: 'Deutsch, Sarah B'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 ICA believes that John's redraft is a significant improvement in many ways. However, we do continue to have some concerns about the URS section, specifically: * We can't support the transfer option, as suspension versus transfer was one of the major distinctions between URS and standard UDRP as originally proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut cases as well as instances where the complainant wished to permanently acquire the domain. We think it's important to preserve that distinction and that problems with the use of the UDRP for default cases should be addressed by comprehensive UDRP reform. * We don't agree that the language asserting that the "impact" test is too low for a finding of abuse of process. The exact language now in the DAG is -- "An Examiner may find that Complaint contained a deliberate material falsehood if it contained an assertion of fact, which at the time it was made, was made with the knowledge that it was false and which, if true, would have an impact on the outcome on the URS proceeding." What this says is that if a complainant deliberately lied about a material fact in order to influence the outcome of a URS in its favor it will suffer a penalty in order to protect the integrity of the overall process. The penalty for one such deliberate lie is being suspended from using the URS for one year; the penalty for two such lies is permanently barring it from use of the process. Now, as a practical matter, it will be the rare case where the examiner is able to conclude that the complainant deliberately misrepresented material facts, so this isn't going to happen very often, plus there are no monetary sanctions - including fines or a requirement that the complainant pay the registrant's costs of defending the domain - so it isn't as severe a pernalty as some called for it to be. If the BC is going to say that the impact test is too low (with which we don't agree) then I think it has some responsibility to propose an alternate tests that protects the integrity of the URS against the (hopefully rare) complainant who deliberately seeks to abuse it. As a typographical matter, the last portion of the last sentence of the first URS paragraph should read "less certainty for the complainant using this process", not "registrant". Finally, we appreciate the serious and civil debate that has been taking place within the BC on this matter -- this is precisely what should occur within a constituency to bridge differences in perspective. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: Jon Nevett [jon@nevett.net] Sent: Sunday, July 18, 2010 9:39 PM To: Zahid Jamil Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon <DRAFT BC Pub Comm 1-3 DAGv4 - (RA).doc><DRAFT BC Pub Comm 4 DAGv4 - (SD-JN).doc>

Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote:

Jon,

Thank you for your many constructive changes. I want to respond to one suggested edit you made below:

*I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered.

1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below.

Section 1.3.1.1 – Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present.

Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true.

2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard."

3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck.

Sarah

Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670

From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Folks:

Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed.

Here are some of the highlights:

*I deleted the GPML section.

*I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC?

*Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise.

*Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter.

*I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters.

*I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position.

*I didn't do much on the Market Differentiation section either other than soften some of the language.

I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance.

Thanks.

Jon

Dear All, Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in. We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with. Jon's discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal. Any argument that amounts to -they didn't listen to us in the past so let's give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report - BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests. Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven't worked on how limited rounds would be implemented it doesn't mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms. Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff's views in this. Have pasted my Brussels email below: My edits in [...] Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs) P - 16 - 17 : Subsidies Adjust Fee vs. Favourable approval process 25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were "under construction," for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive. 59 - 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115 [Zahid Note - SURVEY requested by IRT hasn't been undertaken by Staff either] 61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time. 62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs. Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117 para 117 - end: 117. First, it may be wise to continue ICANN's practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs-consumer confusion and trademark protection-can be evaluated in the earlier rounds to make more accurate predictions about later rounds. 118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 <http://www.jamilandjamil.com/> www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Jon, Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process. As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks. There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue. This burden of evidence standard is just one more reason why brand owners will avoid using the URS. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 _____ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote: Jon, Thank you for your many constructive changes. I want to respond to one suggested edit you made below: *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. 1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below. Section 1.3.1.1 - Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present. Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true. 2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard." 3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 _____ From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon

This makes a lot of sense. I do not believe that the BC should somehow accept watered down variations of its existing positions. I would support a quick review of our prior positions, including the minority report, to ensure that the concerns we express in the DAG 4 comments are at least consistent. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Zahid Jamil [mailto:zahid@dndrc.com] Sent: Monday, July 19, 2010 5:18 PM To: Deutsch, Sarah B; 'Jon Nevett' Cc: 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 In short there may be a simple solution to the deadlock. The BC has existing positions (especially the BC minority report and I think also with the comments Ron is working with-need to check). In such a case the current positions hold. If members wish to water these positions down then it would be necessary for such positions to be reach consensus - ie. the burden to change the positions would be on those suggesting watering down. Hence, in my view if there is no consensus on any changes the default position or positions consistent thereto would be repeated as BC comments. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com <http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: Zahid Jamil [mailto:zahid@dndrc.com] Sent: 19 July 2010 17:00 To: 'Deutsch, Sarah B'; 'Jon Nevett' Cc: 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Dear All, Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in. We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with. Jon's discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal. Any argument that amounts to -they didn't listen to us in the past so let's give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report - BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests. Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven't worked on how limited rounds would be implemented it doesn't mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms. Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff's views in this. Have pasted my Brussels email below: My edits in [...] Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs) P - 16 - 17 : Subsidies Adjust Fee vs. Favourable approval process 25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were "under construction," for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive. 59 - 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115 [Zahid Note - SURVEY requested by IRT hasn't been undertaken by Staff either] 61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time. 62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs. Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117 para 117 - end: 117. First, it may be wise to continue ICANN's practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs-consumer confusion and trademark protection-can be evaluated in the earlier rounds to make more accurate predictions about later rounds. 118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com <http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Jon, Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process. As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks. There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue. This burden of evidence standard is just one more reason why brand owners will avoid using the URS. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote: Jon, Thank you for your many constructive changes. I want to respond to one suggested edit you made below: *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. 1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below. Section 1.3.1.1 - Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present. Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true. 2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard." 3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon

Zahid: The timely introduction of new TLDs is not a registrar issue or BC issue, it is a community issue. I am told that the registrars are not commenting on the DAGv4 because they do not agree on the issues sufficiently to have a uniform position. On the RPMs some probably think they go too far and others might think that they don't go far enough. I don't know. Some BC members think enough is enough and let's get on with it. The New TLDs will be much safer from a TM standpoint than .com and the other existing gTLDs, the vast majority of ccTLDs, and the newly approved IDN ccTLDs. I have corporate clients that have been waiting years to apply for their TLD. They are getting increasingly frustrated with the same arguments being made. Just because some arguments weren't accepted does not mean that they were ignored. Others obviously disagree with that position. The BC is a big tent and we will have a diversity of viewpoints, especially on this issue. Based on the comments I have seen thus far on this list and in private e-mails of support, it is clear that there is a division in the BC on the outstanding New TLD issues. Some want the application process to open forthwith others don't want to see it open at all or not for a long time. Big tent. Per your last note. if you don't think that it requires a consensus of the membership to reissue the DAGv3 comments in response to DAGv4, then go ahead. Ron, I and others could have saved a great deal of time working on redlines of the drafts. Thanks. Jon On Jul 19, 2010, at 5:00 PM, Zahid Jamil wrote:

Dear All,

Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in.

We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with.

Jon’s discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal.

Any argument that amounts to –they didn’t listen to us in the past so let’s give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report – BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests.

Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven’t worked on how limited rounds would be implemented it doesn’t mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms.

Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff’s views in this.

Have pasted my Brussels email below: My edits in [...]

Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs)

P – 16 – 17 : Subsidies Adjust Fee vs. Favourable approval process

25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were “under construction,” for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive.

59 – 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115

[Zahid Note - SURVEY requested by IRT hasn’t been undertaken by Staff either]

61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time.

62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs.

Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117

para 117 – end:

117. First, it may be wise to continue ICANN’s practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs—consumer confusion and trademark protection—can be evaluated in the earlier rounds to make more accurate predictions about later rounds.

118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes.

Sincerely,

Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com

Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited.

From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Jon,

Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process.

As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks.

There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue.

This burden of evidence standard is just one more reason why brand owners will avoid using the URS.

Sarah

Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670

From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Sarah:

Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance.

Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm

"The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added)

"If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added)

http://www.icann.org/en/announcements/announcement-4-29may09-en.htm

These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-).

As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all.

Thanks!

jon

On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote:

Jon,

Thank you for your many constructive changes. I want to respond to one suggested edit you made below:

*I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered.

1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below.

Section 1.3.1.1 – Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present.

Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true.

2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard."

3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck.

Sarah

Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670

From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Folks:

Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed.

Here are some of the highlights:

*I deleted the GPML section.

*I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC?

*Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise.

*Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter.

*I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters.

*I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position.

*I didn't do much on the Market Differentiation section either other than soften some of the language.

I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance.

Thanks.

Jon

<sti-wt-recommendations-11dec09-en-Final.pdf>

So we get a draft position less than a week before the filing deadline, multiple BC members raise concerns about it, and then we're told that for the sake of consistency it must be repeated because there is no time to formulate a new approach? Maybe the way we should operate is that without demonstration by member polling that consensus still exists for the prior unsuccessful arguments the Constituency should remain silent and we all go file our own statements? But then of course Jon did formulate revisions for which there appeared to be broader support, but I guess that's now rejected because only even stronger statements will be regarded as consistent with the prior position. Is that how this Constituency is now operating? Biased toward suppressing alternate views instead of seeking consensus? I would suggest that in regard to all future policy matters on which the BC leadership wishes to file a Constituency position that members be provided with a draft no less than two weeks before the deadline so that there is sufficinet time to formulate a new or revised position if there is significant internal disagreement -- and that all such BC positions require a formal vote to see if there is indeed consensus, regardless of past positions. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: Zahid Jamil [zahid@dndrc.com] Sent: Monday, July 19, 2010 6:05 PM To: Jon Nevett Cc: Sarah B Deutsch; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; BC Secretariat Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 I am sure there is some validity to much of your arguments. Be that as it may. There is little time to initiate a new approach and consensus within the BC for such a new approach. As such we need to stick to our current accepted positions and new comments consistent with these positions and comment before the deadline. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. Sent from my BlackBerry® wireless device ________________________________ From: Jon Nevett <jon@nevett.net> Date: Mon, 19 Jul 2010 18:01:04 -0400 To: Zahid Jamil<zahid@dndrc.com> Cc: 'Deutsch, Sarah B'<sarah.b.deutsch@verizon.com>; 'Phil Corwin'<pcorwin@butera-andrews.com>; <michaelc@traveler.com>; <mike@haven2.com>; <jb7454@att.com>; <randruff@rnapartners.com>; <ffelman@markmonitor.com>; <bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Zahid: The timely introduction of new TLDs is not a registrar issue or BC issue, it is a community issue. I am told that the registrars are not commenting on the DAGv4 because they do not agree on the issues sufficiently to have a uniform position. On the RPMs some probably think they go too far and others might think that they don't go far enough. I don't know. Some BC members think enough is enough and let's get on with it. The New TLDs will be much safer from a TM standpoint than .com and the other existing gTLDs, the vast majority of ccTLDs, and the newly approved IDN ccTLDs. I have corporate clients that have been waiting years to apply for their TLD. They are getting increasingly frustrated with the same arguments being made. Just because some arguments weren't accepted does not mean that they were ignored. Others obviously disagree with that position. The BC is a big tent and we will have a diversity of viewpoints, especially on this issue. Based on the comments I have seen thus far on this list and in private e-mails of support, it is clear that there is a division in the BC on the outstanding New TLD issues. Some want the application process to open forthwith others don't want to see it open at all or not for a long time. Big tent. Per your last note. if you don't think that it requires a consensus of the membership to reissue the DAGv3 comments in response to DAGv4, then go ahead. Ron, I and others could have saved a great deal of time working on redlines of the drafts. Thanks. Jon On Jul 19, 2010, at 5:00 PM, Zahid Jamil wrote: Dear All, Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in. We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with. Jon’s discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal. Any argument that amounts to –they didn’t listen to us in the past so let’s give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report – BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests. Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven’t worked on how limited rounds would be implemented it doesn’t mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms. Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff’s views in this. Have pasted my Brussels email below: My edits in [...] Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs) P – 16 – 17 : Subsidies Adjust Fee vs. Favourable approval process 25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were “under construction,” for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive. 59 – 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115 [Zahid Note - SURVEY requested by IRT hasn’t been undertaken by Staff either] 61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time. 62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs. Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117 para 117 – end: 117. First, it may be wise to continue ICANN’s practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs—consumer confusion and trademark protection—can be evaluated in the earlier rounds to make more accurate predictions about later rounds. 118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com<http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Jon, Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process. As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks. There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue. This burden of evidence standard is just one more reason why brand owners will avoid using the URS. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote: Jon, Thank you for your many constructive changes. I want to respond to one suggested edit you made below: *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. 1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below. Section 1.3.1.1 – Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present. Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true. 2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard." 3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon <sti-wt-recommendations-11dec09-en-Final.pdf>

Phil, Working on a revised draft now that we hope will bridge the divide. Bear with me until tomorrow. Thanks, RA ________________________________________ Ron Andruff RNA Partners, Inc. randruff@rnapartners.com www.rnapartners.com -----Original Message----- From: Phil Corwin <pcorwin@butera-andrews.com> Sender: owner-bc-gnso@icann.org Date: Mon, 19 Jul 2010 22:22:12 To: zahid@dndrc.com<zahid@dndrc.com>; Jon Nevett<jon@nevett.net> Cc: Sarah B Deutsch<sarah.b.deutsch@verizon.com>; michaelc@traveler.com<michaelc@traveler.com>; mike@haven2.com<mike@haven2.com>; jb7454@att.com<jb7454@att.com>; randruff@rnapartners.com<randruff@rnapartners.com>; ffelman@markmonitor.com<ffelman@markmonitor.com>; BC Secretariat<bc-gnso@icann.org> Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 So we get a draft position less than a week before the filing deadline, multiple BC members raise concerns about it, and then we're told that for the sake of consistency it must be repeated because there is no time to formulate a new approach? Maybe the way we should operate is that without demonstration by member polling that consensus still exists for the prior unsuccessful arguments the Constituency should remain silent and we all go file our own statements? But then of course Jon did formulate revisions for which there appeared to be broader support, but I guess that's now rejected because only even stronger statements will be regarded as consistent with the prior position. Is that how this Constituency is now operating? Biased toward suppressing alternate views instead of seeking consensus? I would suggest that in regard to all future policy matters on which the BC leadership wishes to file a Constituency position that members be provided with a draft no less than two weeks before the deadline so that there is sufficinet time to formulate a new or revised position if there is significant internal disagreement -- and that all such BC positions require a formal vote to see if there is indeed consensus, regardless of past positions. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________ From: Zahid Jamil [zahid@dndrc.com] Sent: Monday, July 19, 2010 6:05 PM To: Jon Nevett Cc: Sarah B Deutsch; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; BC Secretariat Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 I am sure there is some validity to much of your arguments. Be that as it may. There is little time to initiate a new approach and consensus within the BC for such a new approach. As such we need to stick to our current accepted positions and new comments consistent with these positions and comment before the deadline. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. Sent from my BlackBerry® wireless device ________________________________ From: Jon Nevett <jon@nevett.net> Date: Mon, 19 Jul 2010 18:01:04 -0400 To: Zahid Jamil<zahid@dndrc.com> Cc: 'Deutsch, Sarah B'<sarah.b.deutsch@verizon.com>; 'Phil Corwin'<pcorwin@butera-andrews.com>; <michaelc@traveler.com>; <mike@haven2.com>; <jb7454@att.com>; <randruff@rnapartners.com>; <ffelman@markmonitor.com>; <bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Zahid: The timely introduction of new TLDs is not a registrar issue or BC issue, it is a community issue. I am told that the registrars are not commenting on the DAGv4 because they do not agree on the issues sufficiently to have a uniform position. On the RPMs some probably think they go too far and others might think that they don't go far enough. I don't know. Some BC members think enough is enough and let's get on with it. The New TLDs will be much safer from a TM standpoint than .com and the other existing gTLDs, the vast majority of ccTLDs, and the newly approved IDN ccTLDs. I have corporate clients that have been waiting years to apply for their TLD. They are getting increasingly frustrated with the same arguments being made. Just because some arguments weren't accepted does not mean that they were ignored. Others obviously disagree with that position. The BC is a big tent and we will have a diversity of viewpoints, especially on this issue. Based on the comments I have seen thus far on this list and in private e-mails of support, it is clear that there is a division in the BC on the outstanding New TLD issues. Some want the application process to open forthwith others don't want to see it open at all or not for a long time. Big tent. Per your last note. if you don't think that it requires a consensus of the membership to reissue the DAGv3 comments in response to DAGv4, then go ahead. Ron, I and others could have saved a great deal of time working on redlines of the drafts. Thanks. Jon On Jul 19, 2010, at 5:00 PM, Zahid Jamil wrote: Dear All, Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in. We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with. Jon’s discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal. Any argument that amounts to –they didn’t listen to us in the past so let’s give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report – BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests. Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven’t worked on how limited rounds would be implemented it doesn’t mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms. Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff’s views in this. Have pasted my Brussels email below: My edits in [...] Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs) P – 16 – 17 : Subsidies Adjust Fee vs. Favourable approval process 25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were “under construction,” for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive. 59 – 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115 [Zahid Note - SURVEY requested by IRT hasn’t been undertaken by Staff either] 61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time. 62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs. Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117 para 117 – end: 117. First, it may be wise to continue ICANN’s practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs—consumer confusion and trademark protection—can be evaluated in the earlier rounds to make more accurate predictions about later rounds. 118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com<http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Jon, Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process. As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks. There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue. This burden of evidence standard is just one more reason why brand owners will avoid using the URS. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote: Jon, Thank you for your many constructive changes. I want to respond to one suggested edit you made below: *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. 1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below. Section 1.3.1.1 – Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present. Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true. 2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard." 3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon <sti-wt-recommendations-11dec09-en-Final.pdf>

Colleagues, News Corporation shares the views of the brand owners that have posted on the list. We believe strong trademark protection mechanisms are important in and of themselves, but they also facilitate fair competition and prevent consumer fraud, issues about which all businesses should care deeply. Also, as a company that is a member of many trade/business associations we recognize that existing policies can and should evolve. However, as in those other associations, a change from an existing position must follow the same procedures under which the position was originally adopted. Therefore, in the context of this current debate, past positions should prevail unless a majority of members agree to change/evolve them. Several members have mentioned that it is pointless to reiterate past positions that have not been adopted by ICANN. We would note that unfortunately, no explanation has been provided by ICANN as to why the BC's longstanding positions have been ignored. With this in mind, we think the burden lies with ICANN to articulate its rationale so that the community can assess the rationale's legitimacy and then consider how to proceed. This is particularly important in light of the economic analysis presented in Brussels. Janet and I look forward to working with everyone to find a solution to this within the BC. David From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Zahid Jamil Sent: Monday, July 19, 2010 5:00 PM To: 'Deutsch, Sarah B'; 'Jon Nevett' Cc: 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Dear All, Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in. We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with. Jon's discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal. Any argument that amounts to -they didn't listen to us in the past so let's give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report - BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests. Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven't worked on how limited rounds would be implemented it doesn't mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms. Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff's views in this. Have pasted my Brussels email below: My edits in [...] Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs) P - 16 - 17 : Subsidies Adjust Fee vs. Favourable approval process 25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were "under construction," for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive. 59 - 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115 [Zahid Note - SURVEY requested by IRT hasn't been undertaken by Staff either] 61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time. 62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs. Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117 para 117 - end: 117. First, it may be wise to continue ICANN's practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs-consumer confusion and trademark protection-can be evaluated in the earlier rounds to make more accurate predictions about later rounds. 118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com<http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Jon, Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process. As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks. There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue. This burden of evidence standard is just one more reason why brand owners will avoid using the URS. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote: Jon, Thank you for your many constructive changes. I want to respond to one suggested edit you made below: *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. 1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below. Section 1.3.1.1 - Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present. Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true. 2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard." 3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com<mailto:michaelc@traveler.com>; mike@haven2.com<mailto:mike@haven2.com>; jb7454@att.com<mailto:jb7454@att.com>; randruff@rnapartners.com<mailto:randruff@rnapartners.com>; ffelman@markmonitor.com<mailto:ffelman@markmonitor.com>; bc-GNSO@icann.org<mailto:bc-GNSO@icann.org> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon This message and its attachments may contain legally privileged or confidential information. It is intended solely for the named addressee. If you are not the addressee indicated in this message (or responsible for delivery of the message to the addressee), you may not copy or deliver this message or its attachments to anyone. Rather, you should permanently delete this message and its attachments and kindly notify the sender by reply e-mail. Any content of this message and its attachments that does not relate to the official business of News America Incorporated or its subsidiaries must be taken not to have been sent or endorsed by any of them. No representation is made that this email or its attachments are without defect.

Jon, would you be amenable to adding some language explaining why the BC is resubmitting its positions. In addition to David's point that ICANN hasn't provided an explanation for ignoring the BC's positions, I think both the malicious conduct study and the economic paper support David's point that the trademark protections should be considered in the context of consumer and economic issues. It we provided that rationale, then we could stick to the existing approved language but make the comments relevant to the proceeding as it stands now. Jeff From: Jon Nevett [mailto:jon@nevett.net] Sent: Tuesday, July 20, 2010 9:39 AM To: Fares, David Cc: Zahid Jamil; 'Deutsch, Sarah B'; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; BRUEGGEMAN, JEFF (ATTSI); randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Thanks David for that perspective and insight. After co-chairing a USCIB committee with you for a couple of years, I know that you always are a voice of reason and I think that you probably are correct in this case. If we can't agree on consensus comments specific to DAGv4, which I hope is not the case, we probably should reissue the BC DAGv3 comments without any word changes with the following header (or something like it): "The Business Constituency did not reach consensus on comments on DAGv4. As such, the BC's comments on DAGv3 still stand and are being resubmitted for ICANN's review." Is that an acceptable default position for folks should our efforts over the next 24 hours not reach fruition? Thanks. Best, Jon On Jul 20, 2010, at 9:21 AM, Fares, David wrote: Colleagues, News Corporation shares the views of the brand owners that have posted on the list. We believe strong trademark protection mechanisms are important in and of themselves, but they also facilitate fair competition and prevent consumer fraud, issues about which all businesses should care deeply. Also, as a company that is a member of many trade/business associations we recognize that existing policies can and should evolve. However, as in those other associations, a change from an existing position must follow the same procedures under which the position was originally adopted. Therefore, in the context of this current debate, past positions should prevail unless a majority of members agree to change/evolve them. Several members have mentioned that it is pointless to reiterate past positions that have not been adopted by ICANN. We would note that unfortunately, no explanation has been provided by ICANN as to why the BC's longstanding positions have been ignored. With this in mind, we think the burden lies with ICANN to articulate its rationale so that the community can assess the rationale's legitimacy and then consider how to proceed. This is particularly important in light of the economic analysis presented in Brussels. Janet and I look forward to working with everyone to find a solution to this within the BC. David From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Zahid Jamil Sent: Monday, July 19, 2010 5:00 PM To: 'Deutsch, Sarah B'; 'Jon Nevett' Cc: 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Dear All, Have been following in this discussion intermittently. Here are some of my quick thoughts. The IRT is not and has not been the yard stick by which BC comments or views have been formed in the past. BC did support the IRT but clearly stated that the IRT had not gone far enough. If we take the argument that the IRT position should be followed solely then please keep the GPML in. We currently have no solutions for the defensive registration problem. The URS is not Rapid. There is no transfer of the domain in a URS. The Trademark Clearinghouse is not a Rights Protection Mechanism (admittedly). So what are we really left with. Jon's discussions here in the BC are reminiscent of the arguments Jon made in the IRT and the STI where, at the time, Jon was representing Registrar interests. He has been a valuable member of both groups and I look forward to his arguing in favour of BC positions now with the same, if not greater, zeal. Any argument that amounts to -they didn't listen to us in the past so let's give up and settle for what we can does not address the problem. There is much to be said about consistency. I would encourage the BC to also take from the existing BC minority position in the STI report. That is a BC position and hence, it ought to be repeated where appropriate (have attached the STI report - BC minority position is at page 31). We should be lobbying for better protection, in my view, not less since ICANN staff proposals sideline and ignore business and trademark interests. Lets also remember that the BC position has been vindicated in the Economic Analysis which asks that limited rounds be undertaken and clearly underscores the economic cost of the defensive registration problem. Just because we haven't worked on how limited rounds would be implemented it doesn't mean that the concept is flawed. The Economic study makes cogent arguments in its favour. Its now up to ICANN staff and possibly community to come up with mechanisms. Also the Economic Analysis clearly finds that there need to be surveys and studies (details in the report) which should be conducted and then mechanisms developed based on actual statistics. Clearly showing that ICANN staff has run away with the new gTLD proposal without adequate study and analysis. Hence, mention of the Analysis is quite pertinent and I support Jeff's views in this. Have pasted my Brussels email below: My edits in [...] Economic Study: In light of the newly released economic study what steps are envisioned by ICANN staff: including: Survey (how) Study (how) Past introductions Methodlogies In particular re TM, user confusion (notwithstanding the current RPMs) P - 16 - 17 : Subsidies Adjust Fee vs. Favourable approval process 25 - Potential consumer confusion or fragmentation of the Internet 26 - Increased registration costs for companies that feel the need to be in multiple places on the Internet 28 - Defensive registrations 29 - Increased cost to companies to police new gTLD registrations that violate trademarks or copyrights [VIGILANCE] 44 - 74 percent of the registered domain names either were "under construction," for sale, returned an error, or did not return a website at all. Thus, at least in the early stages of .biz, the great majority of registered domain names were not being used to provide content to users, again indicating that the registrations may have been defensive. 59 - 105. A survey of registrants would likely be needed to disentangle the extent to which duplicate registrations are either purely defensive (and constitute external costs) or generate benefits to the registrants. A survey of trademark owners could provide information on the reasons for registration of domain names in multiple gTLDs, such as how registrants use the additional gTLDs (e.g., to provide new content or purely to redirect to another site) and whether the registrants expect to reach a new audience with the new gTLD.115 [Zahid Note - SURVEY requested by IRT hasn't been undertaken by Staff either] 61 - We recommend that ICANN consider the potential for consumer confusion in deciding how quickly to proceed with the introduction of gTLDs, possibly incorporating some methodology to measure consume confusion as new gTLDs are rolled out over time. 62 - This potential project would use case studies to examine the likely costs and benefits in broad categories of new gTLDs. Such studies would lead to recommendations on how ICANN could craft its application process and ongoing rules to lessen the likelihood of delegating gTLDs that will have negative net social benefits and to enhance the net social benefits from gTLDs that are designated.117 para 117 - end: 117. First, it may be wise to continue ICANN's practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs-consumer confusion and trademark protection-can be evaluated in the earlier rounds to make more accurate predictions about later rounds. 118. Second, in order to derive the greatest informational benefits from the next round of gTLD introductions, ICANN should adopt practices that will facilitate the assessment of the net benefits from the initial rollout of additional gTLDs. Specifically, ICANN should require registries, registrars, and domain names registrants to provide information sufficient to allow the estimation of the costs and benefits of new gTLDs. For example, there might be mandatory reporting of trademark disputes. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 35680760 / 35685276 / 35655025 Fax: +92 21 35655026 www.jamilandjamil.com <http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: 19 July 2010 15:26 To: Jon Nevett Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Jon, Thanks for clarifying. If this is the case, then it looks like ICANN kept the high burden of proof for trademark owners on the one hand and ditched other parts of the deal, including that it be in exchange for a rapid (hence the "R" in the name URS) process. As a practical matter, I don't see how any trademark owner will be able to prove anything more than they already prove in filing a UDRP case. For example, in most cases, you'll know the infringer took your domain name, which is identical or confusingly similar to your trademark. You may or may not have screen shots of ads on their infringing webpages. You may or may not have accurate WHOIS information about the infringer. You may or may not have evidence that the infringer stole other third party trademarks. There is no certainty for trademark owners about what is meant by "clear and convincing evidence" and how to meet that standard over the evidence we typically submit in the UDRP process. Obviously, there's no way to know the subjective intent of the infringer without full blown litigation and discovery. At a minimum, ICANN needs to give more guidance on this issue. This burden of evidence standard is just one more reason why brand owners will avoid using the URS. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Monday, July 19, 2010 3:10 PM To: Deutsch, Sarah B Cc: Zahid Jamil; Phil Corwin; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Sarah: Sorry if I was unclear. The intent of the IRT was to have the same legal standard for the UDRP and URS (the same elements -- registration with bad fait intent, etc.), but having a higher burden of proof (clear and convincing vs. preponderance. Here are the relevant quotes from the IRT report -- http://www.icann.org/en/announcements/announcement-4-29may09-en.htm "The Final Evaluation analysis involves consideration of three basic issues, similar to the standards for a UDRP decision, but requires a much higher burden of proof." (emphasis added) "If the Examiner finds that all of these elements are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then the Examiner shall issue a decision in favor of the Complainant." (emphasis added) http://www.icann.org/en/announcements/announcement-4-29may09-en.htm These positions had a unanimous consensus of the IRT. Not sure the relevance of my status on the IRT, but for the record I was told by the IPC that I wasn't representing registrars on the IRT. If you had heard the crap that I got from my former registrar colleagues, you would understand that I definitely wasn't representing them on the IRT :-). As I don't believe that the BC complained about this burden of proof in the past on the IRT, on the STI, or any public comments thereafter, I don't think that we should raise it here. If we think that the URS was changed in a way that is problematic, let's focus on those changes instead of trying to go back on issues that had complete consensus and haven't changed at all. Thanks! jon On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote: Jon, Thank you for your many constructive changes. I want to respond to one suggested edit you made below: *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. 1. I don't disagree that the URS, like the UDRP, should be used for slam dunk cases. I'm glad you confirmed that the legal standard was supposed to be exactly the same. It's my understanding that proof under the UDRP is in fact based on a preponderance of the evidence standard, not a clear and convincing evidence standard. See below. Section 1.3.1.1 - Burden of Proof (How much proof is necessary?) In the administrative proceeding, the Complainant must prove that each of the three elements contained in Section 4(a) of the Policy are present. Comment: In general, the Panels recognize a preponderance of the evidence standard. Preponderance of the evidence means that a fact is proved when it is more likely than not that the fact is true. 2. Rather than delete this sentence in its entirety, I would recommend inserting back in the following single sentence: "The BC recommends that while the URS is intended to deal with "slam dunk," cases, we ask ICANN to clarify that the legal standard remain the exactly the same as that found in the UDRP. ICANN should clarify that while proof of bad faith must be clear, the evidence generally can be established by a proponderance of evidence standard." 3. I know that you were a valuable member of the IRT and at that time you were representing registrars' views. Other IRT members point out to me one additional point. The "slam dunk" aspect of the URS was in exchange for a quick and cheap process. No one knows how cheap this will wind up being, but there is no question that the "quick" part of this trade off has disappeared. Many IRT participants confirm that the DAG4 doesn't represent anything akin to the deal they thought they had struck. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 ________________________________ From: Jon Nevett [mailto:jon@nevett.net] Sent: Sunday, July 18, 2010 9:40 PM To: Zahid Jamil Cc: Deutsch, Sarah B; 'Phil Corwin'; michaelc@traveler.com; mike@haven2.com; jb7454@att.com; randruff@rnapartners.com; ffelman@markmonitor.com; bc-GNSO@icann.org Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4 Folks: Attached is a suggested redraft to bridge the gap. I personally don't agree with some of the arguments I left in the attached, but I tried to keep the longstanding BC positions while toning down the anti-TLD language. I also deleted a couple of the arguments that were objected to in some of the notes I reviewed. Here are some of the highlights: *I deleted the GPML section. *I deleted the clear and convincing evidence issue with regard to the URS. As a member of the IRT, I can say that it clearly was our intent for the URS to have a higher burden of proof than the UDRP -- the legal standard is exactly the same. We wanted the URS to be for "slam dunk" cases. The URS was to be a less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs go unanswered. Has this issue even been raised before by the BC? *Based on Sarah's helpful e-mail, I left alone the complaint about transferring names after a successful URS as that has been an issue that Zahid, Mike and others in the BC have argued consistently. I do note, however, that transfer was not in the IRT recommendation and the STI agreed to add a year to the registration at the request of the complainant as a compromise. *Again based on Sarah's e-mail, I left the PDDRP section pretty much alone except for an argument about registries warehousing names, but not using them, as that argument didn't make much sense to me. That's exactly the function of a registry to warehouse names until they are sold by registrars. If a registry "reserves" a name and it is not in use at all, the mark holder should be thrilled that it can't be registered by a squatter. *I also deleted the paragraph about the Director of Compliance. I don't think it appropriate to comment on those kinds of personnel matters. *I didn't touch the arguments related to community and 13 points (though I personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be longstanding BC position. *I didn't do much on the Market Differentiation section either other than soften some of the language. I have no idea if my attempt will get consensus or not, but I thought it worthwhile to offer alternative language and I tried hard to find a balance. Thanks. Jon This message and its attachments may contain legally privileged or confidential information. It is intended solely for the named addressee. If you are not the addressee indicated in this message (or responsible for delivery of the message to the addressee), you may not copy or deliver this message or its attachments to anyone. Rather, you should permanently delete this message and its attachments and kindly notify the sender by reply e-mail. Any content of this message and its attachments that does not relate to the official business of News America Incorporated or its subsidiaries must be taken not to have been sent or endorsed by any of them. No representation is made that this email or its attachments are without defect.