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
Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
That was the misstatement. "Most nations don't have a US-style First Amendment" would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
The term ³free speech² itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott¹s comment to mean ³speech is not protected² would be a misrepresentation of the situation. Aside from ³free speech² there is the closely related concept of fair use. And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing). I think it would serve us best to keep in mind the distinctions. Paul Keating From: <gnso-rpm-wg-bounces@icann.org> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech"
That was the misstatement. ³Most nations don¹t have a US-style First Amendment² would have been true.
Rebecca Tushnet Georgetown Law 703 593 6759
From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech"
Hi Rebecca,
What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said ³very few jurisdictions in the world have free speech.² I didn¹t see anyone who said ³Most nations don¹t have a US-style First Amendment.² In fact, I didn¹t see a single reference to the First Amendment in the transcript.
Regards, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
J. Scott said,
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.
And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. “Apple” in all TLDs needn’t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue. Are we: looking to modify and/or validate the TMCH? looking to supplement the TMCH with additional protection for trademark rights? expand the TMCH to include non-trademark rights? We are having a very interesting and far-ranging conversation about free speech and the like, but I’m not clear on the focus that we should be maintaining. Thanks, Reg Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7
On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es> wrote:
The term “free speech” itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott’s comment to mean “speech is not protected” would be a misrepresentation of the situation.
Aside from “free speech” there is the closely related concept of fair use.
And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing).
I think it would serve us best to keep in mind the distinctions.
Paul Keating
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: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.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"
That was the misstatement. “Most nations don’t have a US-style First Amendment” would have been true. <>
Rebecca Tushnet Georgetown Law 703 593 6759
From: Paul McGrady [mailto:policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech"
Hi Rebecca,
What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said “very few jurisdictions in the world have free speech.” I didn’t see anyone who said “Most nations don’t have a US-style First Amendment.” In fact, I didn’t see a single reference to the First Amendment in the transcript.
Regards, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>
From:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
_______________________________________________ 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 <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
I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them. My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don't believe that is in our remit. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" J. Scott said, 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. And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. "Apple" in all TLDs needn't be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue. Are we: 1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights? We are having a very interesting and far-ranging conversation about free speech and the like, but I'm not clear on the focus that we should be maintaining. Thanks, Reg Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote: The term "free speech" itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott's comment to mean "speech is not protected" would be a misrepresentation of the situation. Aside from "free speech" there is the closely related concept of fair use. And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing). I think it would serve us best to keep in mind the distinctions. Paul Keating 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: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.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" That was the misstatement. "Most nations don't have a US-style First Amendment" would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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 _______________________________________________ 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
Jeffrey I agree. But I thought the free speech rights were raised in the context of the evidence showing the huge number of post-notification-non-registrations. That number raised the question to determine if the notification process and/or the notice was improperly discouraging registrations. As I see it the remit is to investigate and correct all potential errors adversely impacting all interested parties and not simply those which may adversely impact trademark holders. Am I mistaken? Sincerely, Paul Keating, Esq.
On Sep 30, 2016, at 12:35 PM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them.
My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don’t believe that is in our remit.
Thanks.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech"
J. Scott said,
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.
And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. “Apple” in all TLDs needn’t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue.
Are we: looking to modify and/or validate the TMCH? looking to supplement the TMCH with additional protection for trademark rights? expand the TMCH to include non-trademark rights?
We are having a very interesting and far-ranging conversation about free speech and the like, but I’m not clear on the focus that we should be maintaining.
Thanks, Reg
Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2
Current UTC offset: -7
On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es> wrote:
The term “free speech” itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott’s comment to mean “speech is not protected” would be a misrepresentation of the situation.
Aside from “free speech” there is the closely related concept of fair use.
And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing).
I think it would serve us best to keep in mind the distinctions.
Paul Keating
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech"
That was the misstatement. “Most nations don’t have a US-style First Amendment” would have been true.
Rebecca Tushnet Georgetown Law 703 593 6759
From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech"
Hi Rebecca,
What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said “very few jurisdictions in the world have free speech.” I didn’t see anyone who said “Most nations don’t have a US-style First Amendment.” In fact, I didn’t see a single reference to the First Amendment in the transcript.
Regards, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
_______________________________________________ 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
Hi Paul K., Assuming we are able to develop a data set (and it’s a big assumption) indicating the a significant fraction of would-be registrants decided not to proceed with a registration even though they would not have run afoul of trademark rights (not sure how we could ever reach this conclusion since there was no survey on good faith/bad faith mindset at the time they decided not proceed), there still remains to prior restraint on speech. Each of those hypothetical good faith non-registrants could have proceeded. As I said on the call, as a co-author of the Claims Notice I am very happy if it can be improved in any way to make the balance that Kathy and I were seeking to be more easily understood by the end user. However, I don’t think we need to read more into unavailable data sets than we should to reach the conclusion that we want to fiddle with the language nor do we need to reargue the delicate balance between freedom of expression on one side and the protection of consumers on the other. To the extent that WG participants believe that the balance reached is fatally flawed, may I humbly suggest that there is an outlet for that over in WS2 on Human Rights. Best, Paul M. From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Friday, September 30, 2016 5:54 AM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Jeffrey I agree. But I thought the free speech rights were raised in the context of the evidence showing the huge number of post-notification-non-registrations. That number raised the question to determine if the notification process and/or the notice was improperly discouraging registrations. As I see it the remit is to investigate and correct all potential errors adversely impacting all interested parties and not simply those which may adversely impact trademark holders. Am I mistaken? Sincerely, Paul Keating, Esq. On Sep 30, 2016, at 12:35 PM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > wrote: I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them. My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don’t believe that is in our remit. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es <mailto:Paul@law.es> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" J. Scott said, 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. And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. “Apple” in all TLDs needn’t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue. Are we: 1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights? We are having a very interesting and far-ranging conversation about free speech and the like, but I’m not clear on the focus that we should be maintaining. Thanks, Reg Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es <mailto:Paul@law.es> > wrote: The term “free speech” itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott’s comment to mean “speech is not protected” would be a misrepresentation of the situation. Aside from “free speech” there is the closely related concept of fair use. And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing). I think it would serve us best to keep in mind the distinctions. Paul Keating 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: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.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" That was the misstatement. “Most nations don’t have a US-style First Amendment” would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said “very few jurisdictions in the world have free speech.” I didn’t see anyone who said “Most nations don’t have a US-style First Amendment.” In fact, I didn’t see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> From:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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 _______________________________________________ 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 M, I am not suggesting that we have reached any conclusions at all regarding the post-notice-non-registration. For all I know they may all have been appropriate..or not. That is our work. And, It is not intended as criticism of the notice itself. I would like to see what kinds of domains were at issue to see if (a) this is a problem at all, and (b) if it is, is it one we can realistically correct. I also understand about the pricing matter as a separate issue. However, I remain firmly of the belief previously stated. That said I remain happy to discuss it provided we can obtain evidence supporting the contentions. From: Paul McGrady <policy@paulmcgrady.com> Date: Friday, September 30, 2016 at 2:26 PM To: Paul Keating <paul@law.es>, 'Jeff Neuman' <jeff.neuman@comlaude.com> Cc: <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech"
Hi Paul K.,
Assuming we are able to develop a data set (and it¹s a big assumption) indicating the a significant fraction of would-be registrants decided not to proceed with a registration even though they would not have run afoul of trademark rights (not sure how we could ever reach this conclusion since there was no survey on good faith/bad faith mindset at the time they decided not proceed), there still remains to prior restraint on speech. Each of those hypothetical good faith non-registrants could have proceeded.
As I said on the call, as a co-author of the Claims Notice I am very happy if it can be improved in any way to make the balance that Kathy and I were seeking to be more easily understood by the end user. However, I don¹t think we need to read more into unavailable data sets than we should to reach the conclusion that we want to fiddle with the language nor do we need to reargue the delicate balance between freedom of expression on one side and the protection of consumers on the other. To the extent that WG participants believe that the balance reached is fatally flawed, may I humbly suggest that there is an outlet for that over in WS2 on Human Rights.
Best, Paul M.
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Friday, September 30, 2016 5:54 AM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech"
Jeffrey
I agree. But I thought the free speech rights were raised in the context of the evidence showing the huge number of post-notification-non-registrations. That number raised the question to determine if the notification process and/or the notice was improperly discouraging registrations.
As I see it the remit is to investigate and correct all potential errors adversely impacting all interested parties and not simply those which may adversely impact trademark holders.
Am I mistaken?
Sincerely,
Paul Keating, Esq.
On Sep 30, 2016, at 12:35 PM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them.
My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don¹t believe that is in our remit.
Thanks.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech"
J. Scott said,
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.
And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. ³Apple² in all TLDs needn¹t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue.
Are we: 1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights?
We are having a very interesting and far-ranging conversation about free speech and the like, but I¹m not clear on the focus that we should be maintaining.
Thanks,
Reg
Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2
Current UTC offset: -7
On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es> wrote:
The term ³free speech² itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott¹s comment to mean ³speech is not protected² would be a misrepresentation of the situation.
Aside from ³free speech² there is the closely related concept of fair use.
And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing).
I think it would serve us best to keep in mind the distinctions.
Paul Keating
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Rebecca Tushnet <rlt26@law.georgetown.edu> Date: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech"
That was the misstatement. ³Most nations don¹t have a US-style First Amendment² would have been true.
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech"
Hi Rebecca,
What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said ³very few jurisdictions in the world have free speech.² I didn¹t see anyone who said ³Most nations don¹t have a US-style First Amendment.² In fact, I didn¹t see a single reference to the First Amendment in the transcript.
Regards,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
_______________________________________________ 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
Apologies for the typo. I meant “…there still remains no prior restraint on speech” From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul McGrady Sent: Friday, September 30, 2016 7:26 AM To: 'Paul Keating' <paul@law.es>; 'Jeff Neuman' <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Hi Paul K., Assuming we are able to develop a data set (and it’s a big assumption) indicating the a significant fraction of would-be registrants decided not to proceed with a registration even though they would not have run afoul of trademark rights (not sure how we could ever reach this conclusion since there was no survey on good faith/bad faith mindset at the time they decided not proceed), there still remains to prior restraint on speech. Each of those hypothetical good faith non-registrants could have proceeded. As I said on the call, as a co-author of the Claims Notice I am very happy if it can be improved in any way to make the balance that Kathy and I were seeking to be more easily understood by the end user. However, I don’t think we need to read more into unavailable data sets than we should to reach the conclusion that we want to fiddle with the language nor do we need to reargue the delicate balance between freedom of expression on one side and the protection of consumers on the other. To the extent that WG participants believe that the balance reached is fatally flawed, may I humbly suggest that there is an outlet for that over in WS2 on Human Rights. Best, Paul M. 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 5:54 AM To: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" Jeffrey I agree. But I thought the free speech rights were raised in the context of the evidence showing the huge number of post-notification-non-registrations. That number raised the question to determine if the notification process and/or the notice was improperly discouraging registrations. As I see it the remit is to investigate and correct all potential errors adversely impacting all interested parties and not simply those which may adversely impact trademark holders. Am I mistaken? Sincerely, Paul Keating, Esq. On Sep 30, 2016, at 12:35 PM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > wrote: I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them. My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don’t believe that is in our remit. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es <mailto:Paul@law.es> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" J. Scott said, 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. And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. “Apple” in all TLDs needn’t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue. Are we: 1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights? We are having a very interesting and far-ranging conversation about free speech and the like, but I’m not clear on the focus that we should be maintaining. Thanks, Reg Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es <mailto:Paul@law.es> > wrote: The term “free speech” itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott’s comment to mean “speech is not protected” would be a misrepresentation of the situation. Aside from “free speech” there is the closely related concept of fair use. And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing). I think it would serve us best to keep in mind the distinctions. Paul Keating 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: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.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" That was the misstatement. “Most nations don’t have a US-style First Amendment” would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said “very few jurisdictions in the world have free speech.” I didn’t see anyone who said “Most nations don’t have a US-style First Amendment.” In fact, I didn’t see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> From:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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 _______________________________________________ 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, Without commenting at this time on broader issues...
As I said on the call, as a co-author of the Claims Notice I am very happy if it can be improved in any way to make the balance that Kathy and I were seeking to be more easily understood
The Claims Notice reads as a document written by American lawyers for American lawyers who were trying to not sound like Anetican lawyers. There are folks out there who specialise in creating Plain English documents. I'd suggest we might want to turn to the professionals to see if they can design a notice whose verbiage is better understood by laypeople, so the balance you say you were trying to explain is more easily understood. The 93 per cent plus non-proceed rate is deeply disturbing, may indicate some chilling effect on speech - the fact we may not be able to get the specific data we need to definitively determine this one way or the other is also problematic. A revamp of the Notice along the lines indicated is something, albeit small and fairly easy to do, that we probably should do anyway as best practice and may have some impact on any chilling effect that may exist. Best, Ed Morris
+1 From: Edward Morris <egmorris1@toast.net> Date: Friday, September 30, 2016 at 3:12 PM To: Paul McGrady <policy@paulmcgrady.com> Cc: Paul Keating <paul@law.es>, Jeff Neuman <jeff.neuman@comlaude.com>, <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech"
Paul,
Without commenting at this time on broader issues...
As I said on the call, as a co-author of the Claims Notice I am very happy if it can be improved in any way to make the balance that Kathy and I were seeking to be more easily understood
The Claims Notice reads as a document written by American lawyers for American lawyers who were trying to not sound like Anetican lawyers.
There are folks out there who specialise in creating Plain English documents. I'd suggest we might want to turn to the professionals to see if they can design a notice whose verbiage is better understood by laypeople, so the balance you say you were trying to explain is more easily understood.
The 93 per cent plus non-proceed rate is deeply disturbing, may indicate some chilling effect on speech - the fact we may not be able to get the specific data we need to definitively determine this one way or the other is also problematic. A revamp of the Notice along the lines indicated is something, albeit small and fairly easy to do, that we probably should do anyway as best practice and may have some impact on any chilling effect that may exist.
Best,
Ed Morris
Thanks Ed. Again, no objection to any improvements to the readability that we can make to the claims notice so that the balance Kathy and I worked hard to reach has the best chance of being understood by everyone who encounters one (including going out to technical writers for help – my wife will be thrilled). Whether revamping the claims notice affects the non-proceed rate (either up or down), your guess is as good as mine. Since we are setting forth data-less theories, I think we could just as easily posit, and not be able to disprove, that the 7 percent of folks who did click through did so because they saw a bunch of American lawyer boilerplate and have been trained by other consumer activities to just click through it without taking the time to read it. Who knows? In any event, we have absolutely nothing to fear about the suggestion that the claims notice become more readable by the non-lawyer consumer. I look forward to working with you and others on this! Best, Paul From: Edward Morris [mailto:egmorris1@toast.net] Sent: Friday, September 30, 2016 8:13 AM To: Paul McGrady <policy@paulmcgrady.com> Cc: Paul Keating <paul@law.es>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" Paul, Without commenting at this time on broader issues... As I said on the call, as a co-author of the Claims Notice I am very happy if it can be improved in any way to make the balance that Kathy and I were seeking to be more easily understood The Claims Notice reads as a document written by American lawyers for American lawyers who were trying to not sound like Anetican lawyers. There are folks out there who specialise in creating Plain English documents. I'd suggest we might want to turn to the professionals to see if they can design a notice whose verbiage is better understood by laypeople, so the balance you say you were trying to explain is more easily understood. The 93 per cent plus non-proceed rate is deeply disturbing, may indicate some chilling effect on speech - the fact we may not be able to get the specific data we need to definitively determine this one way or the other is also problematic. A revamp of the Notice along the lines indicated is something, albeit small and fairly easy to do, that we probably should do anyway as best practice and may have some impact on any chilling effect that may exist. Best, Ed Morris
+1 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Friday, September 30, 2016 5:35 AM To: Reg Levy <reg@mmx.co>; Paul Keating <Paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] "free speech" I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them. My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don't believe that is in our remit. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es <mailto:Paul@law.es> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" J. Scott said, 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. And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. "Apple" in all TLDs needn't be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue. Are we: 1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights? We are having a very interesting and far-ranging conversation about free speech and the like, but I'm not clear on the focus that we should be maintaining. Thanks, Reg Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es <mailto:Paul@law.es> > wrote: The term "free speech" itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott's comment to mean "speech is not protected" would be a misrepresentation of the situation. Aside from "free speech" there is the closely related concept of fair use. And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing). I think it would serve us best to keep in mind the distinctions. Paul Keating 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: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.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"
That was the misstatement. "Most nations don't have a US-style First Amendment" would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> From:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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 _______________________________________________ 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 thought we learned recently that ICANN is not bound by the First Amendment ;-) Am 30.09.2016 um 14:19 schrieb Paul McGrady:
+1
*From:*gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Jeff Neuman *Sent:* Friday, September 30, 2016 5:35 AM *To:* Reg Levy <reg@mmx.co>; Paul Keating <Paul@law.es> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] "free speech"
I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them.
My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don’t believe that is in our remit.
Thanks.
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:*gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Reg Levy *Sent:* Thursday, September 29, 2016 5:43 PM *To:* Paul Keating <Paul@law.es <mailto:Paul@law.es>> *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] "free speech"
J. Scott said,
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.
And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. “Apple” in all TLDs needn’t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue.
Are we:
1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights?
We are having a very interesting and far-ranging conversation about free speech and the like, but I’m not clear on the focus that we should be maintaining.
Thanks,
Reg
Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2
Current UTC offset: -7
On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es <mailto:Paul@law.es>> wrote:
The term “free speech” itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott’s comment to mean “speech is not protected” would be a misrepresentation of the situation.
Aside from “free speech” there is the closely related concept of fair use.
And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing).
I think it would serve us best to keep in mind the distinctions.
Paul Keating
*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: *Thursday, September 29, 2016 at 5:31 PM *To: *Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.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"
That was the misstatement. “Most nations don’t have a US-style First Amendment” would have been true.
Rebecca Tushnet
Georgetown Law
703 593 6759
*From:*Paul McGrady [mailto:policy@paulmcgrady.com] *Sent:* Thursday, September 29, 2016 11:29 AM *To:* Rebecca Tushnet *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* RE: [gnso-rpm-wg] "free speech"
Hi Rebecca,
What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said “very few jurisdictions in the world have free speech.” I didn’t see anyone who said “Most nations don’t have a US-style First Amendment.” In fact, I didn’t see a single reference to the First Amendment in the transcript.
Regards,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>
*From:*gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Rebecca Tushnet *Sent:* Wednesday, September 28, 2016 12:35 PM *Cc:* 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
_______________________________________________ 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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Agree with Jeff. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 30, 2016, at 4:01 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: I must admit that I am also confused about our discussions on this list about free speech. I still believe the general rule should be that our job is to address actual problems that have arisen for which there is evidence of such a problem. So, if there is evidence that free speech has been stifled by the new RPMs, lets have that evidence pushed forward. But if there are just philosophical or hypothetical arguments, I am confused as to why we are having them. My fear is that some may be taking this opportunity to re-argue the entire trademark protection mechanisms that we all negotiated in 2009-2012 (and beyond). I don’t believe that is in our remit. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Thursday, September 29, 2016 5:43 PM To: Paul Keating <Paul@law.es<mailto:Paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] "free speech" J. Scott said, 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. And I agree. The challenge is coming up with a solution that neither allows trademark owners to be taken advantage of nor encourages overreach. “Apple” in all TLDs needn’t be reserved or treated specially, but the TMCH does allow a trademark owner to buy it first. There are some instances where (police.london was a much-touted one) a trademark in conjunction with the TLD means something different enough that it would make no sense to allow the trademark owner first rights. Those are a case-by-case issue. Are we: 1. looking to modify and/or validate the TMCH? 2. looking to supplement the TMCH with additional protection for trademark rights? 3. expand the TMCH to include non-trademark rights? We are having a very interesting and far-ranging conversation about free speech and the like, but I’m not clear on the focus that we should be maintaining. Thanks, Reg Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 29 Sep 2016, at 08:46, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote: The term “free speech” itself is a false deity. It is all about the protections afforded to speech. While some jurisdictions may go further than others I think taking J. Scott’s comment to mean “speech is not protected” would be a misrepresentation of the situation. Aside from “free speech” there is the closely related concept of fair use. And, finally, of course, trademark protection is limited in scope. It does not act to preclude use of the identical indicator for unrelated goods/services or for purposes which are generic (meaning the thing or its essence) or descriptive (use in describing the thing). I think it would serve us best to keep in mind the distinctions. Paul Keating 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: Thursday, September 29, 2016 at 5:31 PM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.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" That was the misstatement. “Most nations don’t have a US-style First Amendment” would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said “very few jurisdictions in the world have free speech.” I didn’t see anyone who said “Most nations don’t have a US-style First Amendment.” In fact, I didn’t see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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 _______________________________________________ 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 the clarification Rebecca. When stated like this (Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment.) it left me confused, since no one claimed they did. As to your conclusion "Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies" that is a statement that is not the reverse of what J. Scott said. In fact, the inclusion "with a rule of law" without defining what that means or identifying which countries have "a rule of law" significantly distinguishes your argument from J. Scotts. I know it seems I am getting into the weeds here, but if we are going to be characterizing each other's speech in the WG as "misstatement", I think that calls for a level of clarity in the criticism. Otherwise, if we have to be worried about being called out for misstatements we didn't actually make, our speech in our calls could be, ironically, chilled. Best, Paul From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Thursday, September 29, 2016 10:31 AM To: Paul McGrady <policy@paulmcgrady.com> Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech" That was the misstatement. "Most nations don't have a US-style First Amendment" would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
I doubt I have the power to chill J. Scott's speech, but ok. I disagree with your characterization, however, and I think the conversation with J. Scott speaks for itself. If you would like to take a look at the materials I have already cited and find countries that formally recognize freedom of speech that you don't think count because of reality on the ground, we can debate specifics, but then I reserve the right to argue that those countries don't really have trademark law either. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 12:30 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech" Thanks for the clarification Rebecca. When stated like this (Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment.) it left me confused, since no one claimed they did. As to your conclusion "Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies" that is a statement that is not the reverse of what J. Scott said. In fact, the inclusion "with a rule of law" without defining what that means or identifying which countries have "a rule of law" significantly distinguishes your argument from J. Scotts. I know it seems I am getting into the weeds here, but if we are going to be characterizing each other's speech in the WG as "misstatement", I think that calls for a level of clarity in the criticism. Otherwise, if we have to be worried about being called out for misstatements we didn't actually make, our speech in our calls could be, ironically, chilled. Best, Paul From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Thursday, September 29, 2016 10:31 AM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" That was the misstatement. "Most nations don't have a US-style First Amendment" would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
Thanks Rebecca. While I wish I had the time for a country by country survey on co-existence of trademarks and relative protections for speech, unfortunately practice precludes it. The good news is that I think we have the expertise in this fine group that we need to strike the balance that J Scott is calling for without resorting to Wikipedia. Best, Paul From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Thursday, September 29, 2016 11:55 AM To: Paul McGrady <policy@paulmcgrady.com> Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] "free speech" I doubt I have the power to chill J. Scott's speech, but ok. I disagree with your characterization, however, and I think the conversation with J. Scott speaks for itself. If you would like to take a look at the materials I have already cited and find countries that formally recognize freedom of speech that you don't think count because of reality on the ground, we can debate specifics, but then I reserve the right to argue that those countries don't really have trademark law either. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 12:30 PM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Thanks for the clarification Rebecca. When stated like this (Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment.) it left me confused, since no one claimed they did. As to your conclusion "Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies" that is a statement that is not the reverse of what J. Scott said. In fact, the inclusion "with a rule of law" without defining what that means or identifying which countries have "a rule of law" significantly distinguishes your argument from J. Scotts. I know it seems I am getting into the weeds here, but if we are going to be characterizing each other's speech in the WG as "misstatement", I think that calls for a level of clarity in the criticism. Otherwise, if we have to be worried about being called out for misstatements we didn't actually make, our speech in our calls could be, ironically, chilled. Best, Paul From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Thursday, September 29, 2016 10:31 AM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" That was the misstatement. "Most nations don't have a US-style First Amendment" would have been true. Rebecca Tushnet Georgetown Law 703 593 6759 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Thursday, September 29, 2016 11:29 AM To: Rebecca Tushnet Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] "free speech" Hi Rebecca, What was the misstatement you are trying to correct? The most related statement that I could find in the Transcript was J. Scott who said "very few jurisdictions in the world have free speech." I didn't see anyone who said "Most nations don't have a US-style First Amendment." In fact, I didn't see a single reference to the First Amendment in the transcript. Regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Wednesday, September 28, 2016 12:35 PM Cc: 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
participants (8)
-
Edward Morris -
Jeff Neuman -
Kiran Malancharuvil -
Paul Keating -
Paul McGrady -
Rebecca Tushnet -
Reg Levy -
Volker Greimann