Kathy: I want to address a few comments made in your note below. See my comments in red inline below. J. Scott [ttps://inside.corp.adobe.com/content/dam/brandcenter/images/image002.gif] J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com From: <gnso-rpm-wg-bounces@icann.org> on behalf of Kathy Kleiman <kathy@kathykleiman.com> Date: Thursday, April 13, 2017 at 12:47 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? All, Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including: - that it was originally open (that's what the GNSO Council and ICANN Board passed) I vehemently disagree. I was on the IRT and I remember Kristina Rosette being extremely vocal on the point of confidentiality during the IRT process and afterwards. - that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving I disagree. The reasoning for making the Claims Notice so wordy and voluminous was to give the applicant the information they might need to conduct an investigation on their own. There was never, in my memory, the idea of the TMCH database being a tool for applicants and/or registrants. The basic reasoning behind creation of the TMCH was to create a singular point for validation so that TRADEMARK owners would not need to comply with hundreds of different validation methodologies for the Sunrise periods that have been available in all new gTLD rollouts. - that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries ahead of time to know what goods and services those trademarks protect is part of a due diligence, good faith search Responsible parties already have this ability. Its called conducting a trademark search. - that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. I have not seen a systems yet in the DNS that someone, somewhere has not found a way to game for their advantage. We have decided to table this question -- Question #15 -- until after the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list. Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input. Best, Kathy On 4/13/2017 10:41 AM, Marie Pattullo wrote: Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, . The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Actually it touches on the point here. If you are going to make various arguments of alleged abuse in support of claimed transparency, then it would it is relevant to know whether you are supporting a lack of transparency in the whois side of things where abuse has been rampant. While the TMCH and Whois are different animals a number of the arguments being made here to support transparency have actually been mirrored in the other context and rejected by those seeking opacity. And one major difference between the two situations is that there is widespread evidence of abuse of the whois system whereas here in the TMCH context you do not have evidence of a widespread abuse of the TMCH by brand owners. Nevertheless, you and others persist on wanting to conduct a fishing expedition under the guise of so called "transparency" to try and find some alleged widespread harm that simply does not exist. To many folks on the other side of the aisle, it appears that this is not about transparency but more about some effort to gut existing protections and to obtain the release of confidential information of brand owners as to what they did or did not register. Perhaps this may not be the intent, but we all know that once that information is out the gaming will really begin. Again, perhaps there are tweeks that could be made to improve the current system, but there is no real basis for undertaking the broad review that is being sought and certainly not for undoing the entire existing system. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720 | fax 212 775 8820 ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C%7C30e5ff8984c44d2d353108d482a60b25%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636277097040327053&sdata=0sjADnWg0DXYUKMkxlUag4Zv8k%2Fy%2FTFsch%2BgVnNAuE8%3D&reserved=0>
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
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