Paul, It seems unlikely to me that bad faith could be proven in the absence of use. I think this is a much tougher standard than likelihood of confusion. I can’t see how you make a bad faith case more easily when there is no use yet. It does seem that much depends on the answers given to Question 18 and to specific descriptions of the new services to be offered. In Track 4, we are still discussing the requirement to list any new services to be offered in the application phase. There are some in Work Track 4 who favor getting rid of that requirement in favor of using post-launch RSEP instead. Some have even proposed deleting Question 18 entirely. Again, how can one make a case for either bad faith or infringement if there is no specific answer to the intended purpose and use question set forth in Question 18? I definitely do not favor switching the standard for the LRO to a need to prove bad faith. Anne Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D398E0.441C06A0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: icannlists [mailto:icannlists@winston.com] Sent: Sunday, January 28, 2018 6:53 PM To: Aikman-Scalese, Anne; icannlists; 'Terri Agnew'; 'Karen Day'; Paul McGrady Cc: gnso-newgtld-wg-wt3@icann.org Subject: RE: Legal Rights Objection - Strawman for WT3 Hi Anne, It might show likelihood of infringement, but without use, there can be no infringement. Additionally, it seems unlikely that someone would disclose an intent to infringe in an application. For example, it seems highly unlikely that a party would state affirmatively that they would use a .apple to sell computer parts. However, a failure to disclaim such an intent and to propose a process for the registry to monitor and stop such uses, could show an inference of bad faith. Bad faith is not a significant change from the policy. The GNSO Council policy does not require an infringement analysis nor does it exclude a bad faith based policy. Best, Paul From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, January 23, 2018 5:44 PM To: icannlists <icannlists@winston.com<mailto:icannlists@winston.com>>; 'Terri Agnew' <terri.agnew@icann.org<mailto:terri.agnew@icann.org>>; 'Karen Day' <Karen.Day@sas.com<mailto:Karen.Day@sas.com>>; Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Cc: gnso-newgtld-wg-wt3@icann.org<mailto:gnso-newgtld-wg-wt3@icann.org> Subject: RE: Legal Rights Objection - Strawman for WT3 My note on this would be that the description of the purpose and the proposed use of the TLD (Question 18) could certainly demonstrate infringement without a showing of bad faith per se. Bad faith is a hard standard to meet and a very big change in policy. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D398E0.0378A1D0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: icannlists [mailto:icannlists@winston.com] Sent: Tuesday, January 23, 2018 3:26 PM To: Aikman-Scalese, Anne; 'Terri Agnew'; 'Karen Day'; Paul McGrady Cc: gnso-newgtld-wg-wt3@icann.org<mailto:gnso-newgtld-wg-wt3@icann.org> Subject: RE: Legal Rights Objection - Strawman for WT3 Thanks Karen. I’m concerned that with current workload and the LA GNSO Council followed immediately by the NCPH Intercessional (also in LA) that I am not going to have time anytime soon to get into producing a line by line rationale which correspond to the detailed discussion this I already had with this group. If there are specific questions on the proposal, I will do my best to deal with them on the list. Please feel free to pass those on. As far as the overall reasoning, it is that the version in the AGB is an infringement-based policy and infringement requires use. I don’t know how you can “use” an application. The Policy isn’t fit for purpose. My proposal is that we move to a bad-faith based policy (the UDRP is an example of a bad-faith based policy, not an infringement based policy). Best, Paul From: Gnso-newgtld-wg-wt3 [mailto:gnso-newgtld-wg-wt3-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Thursday, January 18, 2018 5:45 PM To: 'Terri Agnew' <terri.agnew@icann.org<mailto:terri.agnew@icann.org>>; 'Karen Day' <Karen.Day@sas.com<mailto:Karen.Day@sas.com>>; Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Cc: gnso-newgtld-wg-wt3@icann.org<mailto:gnso-newgtld-wg-wt3@icann.org> Subject: Re: [Gnso-newgtld-wg-wt3] Legal Rights Objection - Strawman for WT3 Thank you Terri. I remember now that it was determined this would be too expensive. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D398E0.0378A1D0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Terri Agnew [mailto:terri.agnew@icann.org] Sent: Wednesday, January 17, 2018 2:23 PM To: Aikman-Scalese, Anne; 'Karen Day'; Paul McGrady Cc: gnso-newgtld-wg-wt3@icann.org<mailto:gnso-newgtld-wg-wt3@icann.org> Subject: RE: Legal Rights Objection - Strawman for WT3 Hi all, As a reminder, we do not record transcription for WT3 meetings, only Adobe Connect and MP3 recording are provided. Kind regards, Terri From: Gnso-newgtld-wg-wt3 [mailto:gnso-newgtld-wg-wt3-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Wednesday, January 17, 2018 2:29 PM To: 'Karen Day' <Karen.Day@sas.com<mailto:Karen.Day@sas.com>>; Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Cc: gnso-newgtld-wg-wt3@icann.org<mailto:gnso-newgtld-wg-wt3@icann.org> Subject: Re: [Gnso-newgtld-wg-wt3] Legal Rights Objection - Strawman for WT3 Hi Paul and Karen, Have not been able to locate the transcript of the call but the mp3 and Chat records are attached for Paul’s consideration. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D38F97.1E042C60] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__lrrc.com_&d=DwMGaQ&c=FmY...> From: Gnso-newgtld-wg-wt3 [mailto:gnso-newgtld-wg-wt3-bounces@icann.org] On Behalf Of Karen Day Sent: Wednesday, January 17, 2018 1:07 PM To: Paul McGrady Cc: gnso-newgtld-wg-wt3@icann.org<mailto:gnso-newgtld-wg-wt3@icann.org> Subject: [Gnso-newgtld-wg-wt3] Legal Rights Objection - Strawman for WT3 Dear Paul On our WT3 call this past week we again reviewed the strawman modifications to the Legal Rights Objection[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dis...> sections of the AGB which you had presented to the group for our consideration. Since you were not able to join us on the call, the members wanted to ask if you could please provide to the us, via the email list, a written explanation for the overall reasoning for making changes to the LRO, as well as rationale for each of your red lines. As you will see from the notes and chat transcript, in almost every instance members wanted to know if there had been specific occurrences in the 2012 round which prompted your request for that particular change. If so, they would like to know the details of what those incidents were. The members felt that having a good understanding of the foundation for your recommendations was essential to the group being able to continue to refine our thoughts and positions on the LRO. If I can be of any assistance or if you have any questions back while preparing your responses, please don’t hesitate to let me know. Thanks, Karen ____________________________ Karen L. 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