Re: [gnso-rpm-wg] "free speech"
Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute "truth" on any subject. Second, many countries have almost an exact replica of the US Constitution, but don't recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of "fair use." My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN's Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all. Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we've given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL>
J. Scott, I don't believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don't recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective:<https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don't use the terminology of "fair use," but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute "truth" on any subject. Second, many countries have almost an exact replica of the US Constitution, but don't recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of "fair use." My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN's Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all. Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we've given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL>
Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com From: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective:<https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all. Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL>
+1 J. Scott as to the need for balance From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Date: Wednesday, September 28, 2016 at 3:07 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com From: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective:<https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all. Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL>
Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know. ------------------------------------------------ Dear All, For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated! I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names? Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton? When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us. That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy On 9/28/2016 3:07 PM, J. Scott Evans wrote:
Rebecca:
With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests.
J. Scott
*J. Scott Evans* *| Associate General Counsel - Trademarks, Copyright, Domains & Marketing |*
*Adobe *
345 Park Avenue
San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com <mailto:jsevans@adobe.com>
www.adobe.com
From: Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com <mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] "free speech"
J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it.
Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: <https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006).
Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US.
Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in /any/ relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights.
Rebecca Tushnet
Georgetown Law
703 593 6759
*From:*J. Scott Evans [mailto:jsevans@adobe.com] *Sent:* Wednesday, September 28, 2016 2:20 PM *To:* Rebecca Tushnet *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] "free speech"
Rebecca:
Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories.
J. Scott
*J. Scott Evans**| Associate General Counsel - Trademarks, Copyright, Domains & Marketing****|*
*Adobe *
345 Park Avenue
San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com <mailto:jsevans@adobe.com>
www.adobe.com <http://www.adobe.com>
*From: *<gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu>> *Date: *Wednesday, September 28, 2016 at 10:34 AM *Cc: *"gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> *Subject: *[gnso-rpm-wg] "free speech"
Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all.
Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe).
Rebecca Tushnet
Georgetown Law
703 593 6759
------------------------------------------------------------------------
<ACL>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Kathy: Thanks for this post. I agree it is good to have many and varied perspectives. With regard to your recitation of terms that are registered in the TMCH. Yes, these terms do have a dictionary meaning that can be important to civil society and free expression to English speaking audiences. That said, they are also trademarks and their owners have the right to use those marks to protect their consumers. Trademark owners should not overreach, true. However, the terms you cite deserve no greater scrutiny than any other dictionary term. The TMCH has been around for approximately 18 months and I have seen no reporting that the marks registered in the TMCH have severely hobbled free expression. J. Scott Sent from my iPhone On Sep 29, 2016, at 7:23 AM, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote: Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know. ------------------------------------------------ Dear All, For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated! I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names? Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton? When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us. That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy On 9/28/2016 3:07 PM, J. Scott Evans wrote: Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.c<http://www.adobe.c>om From: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective:<https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all. Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I want to try to build a bridge here. I agree with J.Scott that trademark holders should not over reach. I would add and registrants should not do so either. The point I would like us all to consider is the following: 1. Those speaking for the trademark side often seem to ignore the issue of over-reaching by trademark holders but not domain registrants. 2. Those speaking for domain registrants often seem to ignore the issue of over-reaching by domain registrants but not trademark holders. I think the solution is to not only reflect on the above but also to remember that the best policies are often developed to target a problem at the 50,000 foot level and not lower. In other words, macro and not micro. Good policies acknowledge that (a) they are often written by those who may not fully understand all of the issues and (b) the situation they are trying to address may change over time and the policy should be flexible enough to adapt. Good policy is not degraded because harm occurs on the individual level. Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level. So, while I ascribe to the saying ³if it aint broke don¹t fix it² I also ascribe to the view that if it does need fixing then all potential solutions must be considered and not simply those considered important by one side to the conversation. PRK From: <gnso-rpm-wg-bounces@icann.org> on behalf of "J. Scott Evans" <jsevans@adobe.com> Date: Thursday, September 29, 2016 at 4:33 PM To: Kathy Kleiman <kathy@kathykleiman.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech"
Kathy:
Thanks for this post. I agree it is good to have many and varied perspectives. With regard to your recitation of terms that are registered in the TMCH. Yes, these terms do have a dictionary meaning that can be important to civil society and free expression to English speaking audiences. That said, they are also trademarks and their owners have the right to use those marks to protect their consumers. Trademark owners should not overreach, true. However, the terms you cite deserve no greater scrutiny than any other dictionary term. The TMCH has been around for approximately 18 months and I have seen no reporting that the marks registered in the TMCH have severely hobbled free expression.
J. Scott
Sent from my iPhone
On Sep 29, 2016, at 7:23 AM, Kathy Kleiman <kathy@kathykleiman.com> wrote:
Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know.
------------------------------------------------
Dear All,
For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated!
I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names?
Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton?
When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us.
That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy
On 9/28/2016 3:07 PM, J. Scott Evans wrote:
Rebecca:
With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking ³dictionary terms² that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch ³internationally² recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests.
J. Scott
J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing |
Adobe
345 Park Avenue
San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com
www.adobe.c <http://www.adobe.c> om
From: Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech"
J. Scott, I don¹t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don¹t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it.
Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231> and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: <https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/ FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi 0ad6040a00000157720fabec289f3264%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI 7cb6ccefefd311e498db8b09b4f043e0%26startIndex%3D1%26contextData%3D%2528sc.Se arch%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=3b3 6d775a69aec3c8b89adc711488adc&list=ANALYTICAL&rank=8&grading=na&sessionScope Id=974384ae4bca6a686949f50a8f8ca2525f0f068a2ff02f65c47cc9b4335d4752&originat ionContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Searc h%29#co_term_19621> A Comparative Legal Analysis of the Freedom of Speech (2006).
Also, many jurisdictions don¹t use the terminology of ³fair use,² but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US.
Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights.
Rebecca Tushnet Georgetown Law 703 593 6759
From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech"
Rebecca:
Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute ³truth² on any subject. Second, many countries have almost an exact replica of the US Constitution, but don¹t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of ³fair use.² My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN¹s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories.
J. Scott
J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing |
Adobe
345 Park Avenue
San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com <mailto:jsevans@adobe.com>
www.adobe.com <http://www.adobe.com>
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] "free speech"
Just to correct a misstatement on the call earlier: Most nations don¹t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country <https://en.wikipedia.org/wiki/Freedom_of_speech_by_country> , implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn¹t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don¹t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/ <http://www.un.org/en/universal-declaration-human-rights/> , but I doubt we want to make policy based on the countries that don¹t recognize any freedom of speech at all.
Also, you can¹t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can¹t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we¹ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speakerwhether a trademark owner or a non-owneris of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn¹t infringe).
Rebecca Tushnet Georgetown Law 703 593 6759
<ACL>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Thanks Paul K. I suppose a good first step then would be to determine where the relative harms are between the two forms of overreach. Fortunately, that is pretty easy to quantify in our context, since all we need do is add the up number of UDRP decisions where there is a decision against the respondent and compare that with the number of UDRP decisions where there is a decision of reverse domain name hijacking against the complainant, right? We can then determine what is broken in the system: is there too much registrant overreach or too much trademark owner overreach. We can then apply that knowledge to all the RPMs as we go through them to either strengthen the one or strengthen the other. Best, Paul From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Friday, September 30, 2016 7:56 AM To: J. Scott Evans <jsevans@adobe.com>; Kathy Kleiman <kathy@kathykleiman.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" I want to try to build a bridge here. I agree with J.Scott that trademark holders should not over reach. I would add and registrants should not do so either. The point I would like us all to consider is the following: 1. Those speaking for the trademark side often seem to ignore the issue of over-reaching by trademark holders but not domain registrants. 2. Those speaking for domain registrants often seem to ignore the issue of over-reaching by domain registrants but not trademark holders. I think the solution is to not only reflect on the above but also to remember that the best policies are often developed to target a problem at the 50,000 foot level and not lower. In other words, macro and not micro. Good policies acknowledge that (a) they are often written by those who may not fully understand all of the issues and (b) the situation they are trying to address may change over time and the policy should be flexible enough to adapt. Good policy is not degraded because harm occurs on the individual level. Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level. So, while I ascribe to the saying "if it aint broke don't fix it" I also ascribe to the view that if it does need fixing then all potential solutions must be considered and not simply those considered important by one side to the conversation. PRK From: <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>
on behalf of "J. Scott Evans" <jsevans@adobe.com <mailto:jsevans@adobe.com> > Date: Thursday, September 29, 2016 at 4:33 PM To: Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] "free speech"
Kathy: Thanks for this post. I agree it is good to have many and varied perspectives. With regard to your recitation of terms that are registered in the TMCH. Yes, these terms do have a dictionary meaning that can be important to civil society and free expression to English speaking audiences. That said, they are also trademarks and their owners have the right to use those marks to protect their consumers. Trademark owners should not overreach, true. However, the terms you cite deserve no greater scrutiny than any other dictionary term. The TMCH has been around for approximately 18 months and I have seen no reporting that the marks registered in the TMCH have severely hobbled free expression. J. Scott Sent from my iPhone On Sep 29, 2016, at 7:23 AM, Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > wrote: Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know. ------------------------------------------------ Dear All, For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated! I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names? Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton? When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us. That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy On 9/28/2016 3:07 PM, J. Scott Evans wrote: Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking "dictionary terms" that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch "internationally" recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) <mailto:jsevans@adobe.com> jsevans@adobe.com www.adobe.c <http://www.adobe.c> om From: Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu> > Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com <mailto:jsevans@adobe.com> > Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don't believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don't recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don't use the terminology of "fair use," but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute "truth" on any subject. Second, many countries have almost an exact replica of the US Constitution, but don't recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of "fair use." My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN's Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) <mailto:jsevans@adobe.com> jsevans@adobe.com www.adobe.com <http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>
on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu> > Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: [gnso-rpm-wg] "free speech"
Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, <https://en.wikipedia.org/wiki/Freedom_of_speech_by_country> https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, <http://www.un.org/en/universal-declaration-human-rights/> http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all. Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we've given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe). Rebecca Tushnet Georgetown Law 703 593 6759 _____ <ACL> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Paul there it goes again. Either you jest or you have no desire to build bridges. I prefer to believe the former. You well know that a measure of UDRPS is not appropriate as you do the measure of RDNH holdings. Panelists don't order them because they don't believe the result in anything. You don't have to take my word for it. You can ask any number of panelists. Sincerely, Paul Keating, Esq.
On Sep 30, 2016, at 7:59 PM, Paul McGrady <policy@paulmcgrady.com> wrote:
Thanks Paul K.
I suppose a good first step then would be to determine where the relative harms are between the two forms of overreach. Fortunately, that is pretty easy to quantify in our context, since all we need do is add the up number of UDRP decisions where there is a decision against the respondent and compare that with the number of UDRP decisions where there is a decision of reverse domain name hijacking against the complainant, right? We can then determine what is broken in the system: is there too much registrant overreach or too much trademark owner overreach. We can then apply that knowledge to all the RPMs as we go through them to either strengthen the one or strengthen the other.
Best, Paul
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Friday, September 30, 2016 7:56 AM To: J. Scott Evans <jsevans@adobe.com>; Kathy Kleiman <kathy@kathykleiman.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech"
I want to try to build a bridge here.
I agree with J.Scott that trademark holders should not over reach. I would add and registrants should not do so either. The point I would like us all to consider is the following:
1. Those speaking for the trademark side often seem to ignore the issue of over-reaching by trademark holders but not domain registrants.
2. Those speaking for domain registrants often seem to ignore the issue of over-reaching by domain registrants but not trademark holders.
I think the solution is to not only reflect on the above but also to remember that the best policies are often developed to target a problem at the 50,000 foot level and not lower. In other words, macro and not micro. Good policies acknowledge that (a) they are often written by those who may not fully understand all of the issues and (b) the situation they are trying to address may change over time and the policy should be flexible enough to adapt. Good policy is not degraded because harm occurs on the individual level. Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level.
So, while I ascribe to the saying “if it aint broke don’t fix it” I also ascribe to the view that if it does need fixing then all potential solutions must be considered and not simply those considered important by one side to the conversation.
PRK
From: <gnso-rpm-wg-bounces@icann.org> on behalf of "J. Scott Evans" <jsevans@adobe.com> Date: Thursday, September 29, 2016 at 4:33 PM To: Kathy Kleiman <kathy@kathykleiman.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech"
Kathy:
Thanks for this post. I agree it is good to have many and varied perspectives. With regard to your recitation of terms that are registered in the TMCH. Yes, these terms do have a dictionary meaning that can be important to civil society and free expression to English speaking audiences. That said, they are also trademarks and their owners have the right to use those marks to protect their consumers. Trademark owners should not overreach, true. However, the terms you cite deserve no greater scrutiny than any other dictionary term. The TMCH has been around for approximately 18 months and I have seen no reporting that the marks registered in the TMCH have severely hobbled free expression.
J. Scott
Sent from my iPhone
On Sep 29, 2016, at 7:23 AM, Kathy Kleiman <kathy@kathykleiman.com> wrote:
Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know.
------------------------------------------------
Dear All,
For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated!
I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names?
Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton?
When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us.
That was our goal for today - not answers, but questions. I think we found some good ones...
Best, Kathy
On 9/28/2016 3:07 PM, J. Scott Evans wrote: Rebecca:
With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests.
J. Scott
J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com www.adobe.com
From: Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech"
J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it.
Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (2006).
Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US.
Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights.
Rebecca Tushnet Georgetown Law 703 593 6759
From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech"
Rebecca:
Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories.
J. Scott
J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com www.adobe.com
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] "free speech"
Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all.
Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe).
Rebecca Tushnet Georgetown Law 703 593 6759
<ACL>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Thanks Paul K., While we all welcome new folks into this process, there is some comfort in knowing someone for years (the Lisbon meeting I think…): You are able to see my jest. The purpose of my jest was simply to point out how data-poor we are. Even something as empirically objective as the number of UDRP decisions are subject to anecdotal interpretation, e.g. there aren’t as many RDNH hijacking decisions because panelists believe they are meaningless (likewise from the trademark side, the old standby “there would be more decisions against respondents if only panelists would quit playing their lawyer in default situations). To be clear, what I am trying to get across is that we all keep in mind that we do not have the full data set we need to drive this process. 93% may sound interesting, but unhinged from other data points that we need to interpret what it means, it is just a number. While I don’t disagree with your statement that “Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level”, I just don’t think we have the data set to know empirically if the number of harmed individuals outweights the benefits. We just didn’t collect the data. So where do we go from here in a data-poor environment? A few suggestions: 1. That we do what we did when we set these up, namely, trust each other that the points of concern we are raising are valid. While the point of concern that you may raise may not be mine point of concern, I don’t need a Nielson survey to know that the concern is valid and that I should not dismiss them. I know this because I know you and you are not a flippant person. (PS: this is why I believe so strongly in early FTF meetings of WGs like this. There is no substitute for knowing someone) 2. Fix our data-poor environment for the next round of reviews. We were all in such hurry to get Round 1 out the door, that we didn’t bake in anything that would give us data to drive review discussion. For example, wouldn’t it be nice if we could get a few registrars on board – on a voluntary basis – to send a follow on email survey asking non-proceeding consumers why they didn’t proceed after reviewing the claims notice (I say voluntary as this would be an expensive operational tack-on and the only reason a registrar would like do it just for the love of the multi-stakeholder model)? What other data should we be collecting in order to get ready for the next review of RPMS (whenever that will be)? 3. Resist the urge to ask each other for non-existent data or insist on a dozen examples of the harm being complained about. This is, unfortunately, a common technique used the shutdown dialogue instead of encourage it. 4. Resist the urge to spend months and dollars waiting for compilation of what can only hope to be partial data sets that simply be attacked for being incomplete. I am completely open to any other suggestions that you are anyone else may have as to how to best deal with our data poverty in a way that still moves us forward to resolving the points of concern we are all bringing to the table. Best, Paul From: Paul Keating [mailto:paul@law.es] Sent: Friday, September 30, 2016 5:48 PM To: Paul McGrady <policy@paulmcgrady.com> Cc: J. Scott Evans <jsevans@adobe.com>; Kathy Kleiman <kathy@kathykleiman.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Paul there it goes again. Either you jest or you have no desire to build bridges. I prefer to believe the former. You well know that a measure of UDRPS is not appropriate as you do the measure of RDNH holdings. Panelists don't order them because they don't believe the result in anything. You don't have to take my word for it. You can ask any number of panelists. Sincerely, Paul Keating, Esq. On Sep 30, 2016, at 7:59 PM, Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> > wrote: Thanks Paul K. I suppose a good first step then would be to determine where the relative harms are between the two forms of overreach. Fortunately, that is pretty easy to quantify in our context, since all we need do is add the up number of UDRP decisions where there is a decision against the respondent and compare that with the number of UDRP decisions where there is a decision of reverse domain name hijacking against the complainant, right? We can then determine what is broken in the system: is there too much registrant overreach or too much trademark owner overreach. We can then apply that knowledge to all the RPMs as we go through them to either strengthen the one or strengthen the other. Best, Paul 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: Friday, September 30, 2016 7:56 AM To: J. Scott Evans <jsevans@adobe.com <mailto:jsevans@adobe.com> >; Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" I want to try to build a bridge here. I agree with J.Scott that trademark holders should not over reach. I would add and registrants should not do so either. The point I would like us all to consider is the following: 1. Those speaking for the trademark side often seem to ignore the issue of over-reaching by trademark holders but not domain registrants. 2. Those speaking for domain registrants often seem to ignore the issue of over-reaching by domain registrants but not trademark holders. I think the solution is to not only reflect on the above but also to remember that the best policies are often developed to target a problem at the 50,000 foot level and not lower. In other words, macro and not micro. Good policies acknowledge that (a) they are often written by those who may not fully understand all of the issues and (b) the situation they are trying to address may change over time and the policy should be flexible enough to adapt. Good policy is not degraded because harm occurs on the individual level. Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level. So, while I ascribe to the saying “if it aint broke don’t fix it” I also ascribe to the view that if it does need fixing then all potential solutions must be considered and not simply those considered important by one side to the conversation. PRK From: <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of "J. Scott Evans" <jsevans@adobe.com <mailto:jsevans@adobe.com> > Date: Thursday, September 29, 2016 at 4:33 PM To: Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] "free speech" Kathy: Thanks for this post. I agree it is good to have many and varied perspectives. With regard to your recitation of terms that are registered in the TMCH. Yes, these terms do have a dictionary meaning that can be important to civil society and free expression to English speaking audiences. That said, they are also trademarks and their owners have the right to use those marks to protect their consumers. Trademark owners should not overreach, true. However, the terms you cite deserve no greater scrutiny than any other dictionary term. The TMCH has been around for approximately 18 months and I have seen no reporting that the marks registered in the TMCH have severely hobbled free expression. J. Scott Sent from my iPhone On Sep 29, 2016, at 7:23 AM, Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > wrote: Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know. ------------------------------------------------ Dear All, For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated! I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names? Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton? When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us. That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy On 9/28/2016 3:07 PM, J. Scott Evans wrote: Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) <mailto:jsevans@adobe.com> jsevans@adobe.com www.adobe.c <http://www.adobe.c> om From: Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu> > Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com <mailto:jsevans@adobe.com> > Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) <mailto:jsevans@adobe.com> jsevans@adobe.com www.adobe.com <http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu> > Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, <https://en.wikipedia.org/wiki/Freedom_of_speech_by_country> https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, <http://www.un.org/en/universal-declaration-human-rights/> http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all. Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe). Rebecca Tushnet Georgetown Law 703 593 6759 _____ <ACL> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Thanks for these suggestions, which are great starting points. I think #2 is particularly good, and I would suggest taking it further: since we are considering policy changes, one possibility is to require, through contract, that registrars allow ICANN access to the records of registration attempts that produced a TMCH notice, with appropriate protections for confidentiality, solely for purposes of auditing the effects of the process. An additional suggestion (can I claim #5?): there are additional experts on two of the topics we’ve already seen we’re data-poor on. (1) How to write an effective TMCH notice when a match appears/how to define effectiveness of such a notice in terms of deterring true positives and not deterring true negatives. This is something that is of great interest to consumer protection researchers generally, and we could ask some of them for assistance in testing the current notice and developing alternatives. The related suggestion of approved translations into relevant languages also seems like an easy improvement. (2) What do ordinary internet users actually think when they see a new gTLD combined with a word subject to a valid trademark? When does the inherently distinctive/fanciful/generic-for-some-things-but-not-others category into which the trademark falls make a difference? The June 2016 Phase 2 survey conducted by Nielsen for ICANN has some interesting data, but from a consumer understanding perspective, its questions about gTLDs were too leading to replicate market conditions. David Franklyn and David Hyman have conducted excellent research about consumer understanding of search engine results, and I believe similar empirical research could be conducted on new gTLDs + trademarks. If we can reach consensus on the value of additional empirical research on one or both of these topics, I would be happy to work with others on a request to ICANN for the funding necessary to design and implement consumer testing on these topics. I do have concerns with the implications of #1 and #3. While we’re all active in trademark matters, I often think about a quote attributed to Mark Twain: “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” Sometimes things we strongly believe are based on our preexisting commitments rather than on external evidence. I don’t exclude myself from that. We should definitely trust each other to be telling the truth about having identified specific abuses, one way or another. However, we really can’t know what that means for the overall system—which is Paul McGrady’s key point. In addition, when we make broad claims about what “the law” is, or is somewhere, we should probably be prepared to identify which laws we mean. Rebecca Tushnet Georgetown Law 703 593 6759 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul McGrady Sent: Saturday, October 01, 2016 6:30 AM To: 'Paul Keating' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Thanks Paul K., While we all welcome new folks into this process, there is some comfort in knowing someone for years (the Lisbon meeting I think…): You are able to see my jest. The purpose of my jest was simply to point out how data-poor we are. Even something as empirically objective as the number of UDRP decisions are subject to anecdotal interpretation, e.g. there aren’t as many RDNH hijacking decisions because panelists believe they are meaningless (likewise from the trademark side, the old standby “there would be more decisions against respondents if only panelists would quit playing their lawyer in default situations). To be clear, what I am trying to get across is that we all keep in mind that we do not have the full data set we need to drive this process. 93% may sound interesting, but unhinged from other data points that we need to interpret what it means, it is just a number. While I don’t disagree with your statement that “Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level”, I just don’t think we have the data set to know empirically if the number of harmed individuals outweights the benefits. We just didn’t collect the data. So where do we go from here in a data-poor environment? A few suggestions: 1. That we do what we did when we set these up, namely, trust each other that the points of concern we are raising are valid. While the point of concern that you may raise may not be mine point of concern, I don’t need a Nielson survey to know that the concern is valid and that I should not dismiss them. I know this because I know you and you are not a flippant person. (PS: this is why I believe so strongly in early FTF meetings of WGs like this. There is no substitute for knowing someone) 2. Fix our data-poor environment for the next round of reviews. We were all in such hurry to get Round 1 out the door, that we didn’t bake in anything that would give us data to drive review discussion. For example, wouldn’t it be nice if we could get a few registrars on board – on a voluntary basis – to send a follow on email survey asking non-proceeding consumers why they didn’t proceed after reviewing the claims notice (I say voluntary as this would be an expensive operational tack-on and the only reason a registrar would like do it just for the love of the multi-stakeholder model)? What other data should we be collecting in order to get ready for the next review of RPMS (whenever that will be)? 3. Resist the urge to ask each other for non-existent data or insist on a dozen examples of the harm being complained about. This is, unfortunately, a common technique used the shutdown dialogue instead of encourage it. 4. Resist the urge to spend months and dollars waiting for compilation of what can only hope to be partial data sets that simply be attacked for being incomplete. I am completely open to any other suggestions that you are anyone else may have as to how to best deal with our data poverty in a way that still moves us forward to resolving the points of concern we are all bringing to the table. Best, Paul From: Paul Keating [mailto:paul@law.es] Sent: Friday, September 30, 2016 5:48 PM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Cc: J. Scott Evans <jsevans@adobe.com<mailto:jsevans@adobe.com>>; Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Paul there it goes again. Either you jest or you have no desire to build bridges. I prefer to believe the former. You well know that a measure of UDRPS is not appropriate as you do the measure of RDNH holdings. Panelists don't order them because they don't believe the result in anything. You don't have to take my word for it. You can ask any number of panelists. Sincerely, Paul Keating, Esq. On Sep 30, 2016, at 7:59 PM, Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> wrote: Thanks Paul K. I suppose a good first step then would be to determine where the relative harms are between the two forms of overreach. Fortunately, that is pretty easy to quantify in our context, since all we need do is add the up number of UDRP decisions where there is a decision against the respondent and compare that with the number of UDRP decisions where there is a decision of reverse domain name hijacking against the complainant, right? We can then determine what is broken in the system: is there too much registrant overreach or too much trademark owner overreach. We can then apply that knowledge to all the RPMs as we go through them to either strengthen the one or strengthen the other. Best, Paul 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: Friday, September 30, 2016 7:56 AM To: J. Scott Evans <jsevans@adobe.com<mailto:jsevans@adobe.com>>; Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" I want to try to build a bridge here. I agree with J.Scott that trademark holders should not over reach. I would add and registrants should not do so either. The point I would like us all to consider is the following: 1. Those speaking for the trademark side often seem to ignore the issue of over-reaching by trademark holders but not domain registrants. 2. Those speaking for domain registrants often seem to ignore the issue of over-reaching by domain registrants but not trademark holders. I think the solution is to not only reflect on the above but also to remember that the best policies are often developed to target a problem at the 50,000 foot level and not lower. In other words, macro and not micro. Good policies acknowledge that (a) they are often written by those who may not fully understand all of the issues and (b) the situation they are trying to address may change over time and the policy should be flexible enough to adapt. Good policy is not degraded because harm occurs on the individual level. Good policy is degraded when the number of individuals being harmed outweighs the benefits of the policy at a macro level. So, while I ascribe to the saying “if it aint broke don’t fix it” I also ascribe to the view that if it does need fixing then all potential solutions must be considered and not simply those considered important by one side to the conversation. PRK From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Date: Thursday, September 29, 2016 at 4:33 PM To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] "free speech" Kathy: Thanks for this post. I agree it is good to have many and varied perspectives. With regard to your recitation of terms that are registered in the TMCH. Yes, these terms do have a dictionary meaning that can be important to civil society and free expression to English speaking audiences. That said, they are also trademarks and their owners have the right to use those marks to protect their consumers. Trademark owners should not overreach, true. However, the terms you cite deserve no greater scrutiny than any other dictionary term. The TMCH has been around for approximately 18 months and I have seen no reporting that the marks registered in the TMCH have severely hobbled free expression. J. Scott Sent from my iPhone On Sep 29, 2016, at 7:23 AM, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote: Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know. ------------------------------------------------ Dear All, For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated! I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names? Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton? When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us. That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy On 9/28/2016 3:07 PM, J. Scott Evans wrote: Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking “dictionary terms” that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch “internationally” recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.c<http://www.adobe.c>om From: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don’t believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don’t recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective:<https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don’t use the terminology of “fair use,” but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute “truth” on any subject. Second, many countries have almost an exact replica of the US Constitution, but don’t recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of “fair use.” My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN’s Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don’t have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn’t mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don’t know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don’t recognize any freedom of speech at all. Also, you can’t have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can’t have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we’ve given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker—whether a trademark owner or a non-owner—is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn’t infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
+1 J. Scott; +1 Kathy. Thank you both for using your extensive participation and experience in the history and development of these protocols to provide objective focus and meaningful framing of the issues. Best regards, Scott [vlp_logo][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Thursday, September 29, 2016 10:23 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Hi All, I tried to post this message last night. If anyone else is having problems posting to our list, please let me, J. Scott or Phil know. ------------------------------------------------ Dear All, For those of us who go back to the beginning of time on these issues, I want to note how happy I am that our call for new participants has been answered. We have a number of new members on the Working Group, and they bring new questions, extensive backgrounds and expertise and new avenues of inquiry. We have the old guard who have worked on these issues for years. All are welcome and appreciated! I also appreciate our dynamic discussion in and after the Working Group meeting today. We are working on the issue of what is within scope for our discussion of the Trademark Clearinghouse generally, and today, the Trademark Claims Services in particular. One of the questions that has been solidly placed before us (in different forms and different ways) is whether the current Rights Protection Mechanisms and the TMCH Services are fair and balanced. Do both trademark owners and nontrademark owners have appropriate and legal access to domain names? Important questions were raised today about trademark rights and the limits of trademark rights. It is an inquiry that goes back to the Special Trademarks Initiative Group of the GNSO, if not before. It seems a very appropriate part of our inquiry to ask whether in a hypothetical .FORPRESIDENT New gTLD, we have a TMCH system that allows Clinton Watches, Clinton Fences and Clinton Printing Paper to register CLINTON.FORPRESIDENT before Secretary Hillary Clinton? When basic words of political discourse such as FREEDOM (USPTO IC 028 Mounts and mounting devices adapted for use with suspended physical fitness equipment. Reg No. 5042693), LIBERTY (USPTO IC 009 Hearing muffs, namely, sound amplifiers. Reg No. 4793635), and TRUST (USPTO IC 028. In-line skate liners. Reg No. 4301142) are used as trademarks, but also play an integral role in the fabric of political dialogue, we have a Free Expression issue and concern before us. That was our goal for today - not answers, but questions. I think we found some good ones... Best, Kathy On 9/28/2016 3:07 PM, J. Scott Evans wrote: Rebecca: With regard to your last point, I believe we have a problem with nomenclature that has plagued this debate for 17 years. To your last point, I believe you are speaking "dictionary terms" that, in certain instances, can also be generic terms. Apple for apples is a generic. Apple for apple juice is descriptive or perhaps suggestive. Apple for smartphones is arbitrary. I do not believe that trademark owners should have the right to thwart criticism or protest or to prevent third parties with equally legitimate rights from using a string that may well be identical to a trademark, so long as the use in the domain is, in fact, non-infringing. What I worry about is the emotional argument and posturing about free speech in this debate. There seems to be a constant implied argument that trademark owners as a whole wish to squelch "internationally" recognized concepts of free speech. Yes, there are over aggressive trademark owners that seek to abuse the RPMs and trademark laws. Equally true, there a scurilous players in the DNS that seek to infringe the rights of trademark owners to the detriment of consumers. Our job is to try and find a balanced way of protecting both interests. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.c<http://www.adobe.c>om From: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 11:39 AM To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] "free speech" J. Scott, I don't believe my statement holds up US First Amendment law as the standard; let me say again that freedom of speech, not the First Amendment, is an internationally recognized value, and that criticism of private businesses is generally part of freedom of speech. FWIW, I don't recognize Wikipedia as authoritative either, though the entry actually provides helpful external links if you peruse it. Further resources on comparative freedom of speech regimes include the very helpful overview at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231 and the many sources cited therein (if any nonlawyers lack access to the cited works, I may be able to help), as well as Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective:<https://1.next.westlaw.com/Document/I7cb6ccefefd311e498db8b09b4f043e0/View/F...> A Comparative Legal Analysis of the Freedom of Speech (2006). Also, many jurisdictions don't use the terminology of "fair use," but as far as I am aware very few consider all criticism, or all unauthorized use of a term, infringing; indeed, it would perhaps be helpful, especially for the nonlawyers in the group, to see the citations on which you are basing your legal statements about the scope of trademark or speech rights outside the US. Finally, the problem we are facing is that there is no neutral baseline here, and we have already adopted substantial protections for trademark rights claimants who have any recognized rights in any relevant jurisdiction; we should recognize the variety of freedom of speech interests the same as we recognize the variety of trademark rights. As Kathy noted on the call, a significant number of the relevant marks are generic for at least some things and not universally famous, which increases the breadth of rights protections far beyond actual rights. Rebecca Tushnet Georgetown Law 703 593 6759 From: J. Scott Evans [mailto:jsevans@adobe.com] Sent: Wednesday, September 28, 2016 2:20 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute "truth" on any subject. Second, many countries have almost an exact replica of the US Constitution, but don't recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of "fair use." My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN's Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all. Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we've given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. 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participants (7)
-
J. Scott Evans -
Kathy Kleiman -
Paul Keating -
Paul McGrady -
Rebecca Tushnet -
Scott Austin -
Steve Levy