Unfortunately I have only been able to get to reading the IRT report over the last couple of days. I have some personal comments to make, or they can be appended to the ALAC statement. I made my attribution flexible at the bottom (member of at-large or member of the proposed consumer constituency). May I ask whoever is heading up the ALAC comment to let me know if you want to include this? If not, I will send it myself to the public comment URL by end of business today. Thanks Beau Comment on Draft IRT Report Speaking as the organizer of the proposed consumer constituency to the GNSO under consideration for charter, I want to say I appreciate the IRT group’s inclusion of several issues of consumer concern in its draft report: * The need to minimize abusive and speculative registrations, seeking to temper the proliferation of cybersquatting, typosquatting, link farming and other Internet junk clutter. * Use of a global protective marks list to help limit consumer confusion in circumstances in which a consumer might be fooled into taking an action or making a purchase of fraudulent and possibly harmful goods and services. * Consideration of a uniform rapid suspension system. I also applaud the group’s understanding that certain behaviors of trademark violators go hand in hand with other bad behaviors. The most harmful of phishing frauds, for instance, hijack well-known trademarks as they seek to spoof and defraud consumers. However, I have some concerns as well. First, I think the IRT group was conceived inappropriately. One of its goals was to consumer protection. Several resources in the ICANN community exist to provide direct input from consumers and consumer groups. However, the IRT constructed itself in a closed manner, excluding participation from, at least, several individuals in the at-large. In this way, I think the IRT was constructed in a way that does not represent ICANN’s multi-stakeholder, consensus approach. Given how easy it would have been to include such consumer perspectives in the process, I think the IRT shot itself in the foot in terms of credibility. Unfortunately, the draft report reflects the group’s homogenous construction. Had consumer groups been invited to participate, we would have sought common ground and supported some of the IRT’s suggestions as having global application and reach toward consumer protection. Instead, the IRT report focuses primarily on creation of a discrete “clearinghouse” that seeks to address intellectual property community issues to the exclusion of others, while creating possibly yet another level of bureaucracy that may or may not obstruct the registration process. In addition, in respect to suggestion of uniform rapid suspension: Certainly there could be benefits to consumers, in light of limitations in the relatively antiquated UDRP process. But why should intellectual property interests be granted their own suspension mechanism? Why not a suspension system that takes into account other parts of the ICANN community? If the ICANN community is to consider an IP rights issues clearinghouse, and a new type of IP suspension system, then these should be implemented with the consideration and input of other members of the ICANN community. We as consumers, in fact, would not support creation and adoption of the clearinghouse, or the URS, unless they were opened to a broader group. Beau Brendler [Proposed] Consumer Constituency ALAC representative, At-Large ** This e-mail message is intended only for the designated recipient(s) named above. The information contained in this e-mail and any attachments may be confidential or legally privileged. If you are not the intended recipient, you may not review, retain, copy, redistribute or use this e-mail or any attachment for any purpose, or disclose all or any part of its contents. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and permanently delete this e-mail and any attachments from your computer system.
Brendler, Beau wrote:
Unfortunately I have only been able to get to reading the IRT report over the last couple of days. I have some personal comments to make, or they can be appended to the ALAC statement. I made my attribution flexible at the bottom (member of at-large or member of the proposed consumer constituency).
For what it's worth, the statement that exists for consideration by ALAC is on the web. The original was made by Patrick, I made some changes, and Patrick is OK with the changes. I'm interested to know your comments (on either version!) Patrick's original (Version 7): https://st.icann.org/gnso-liaison/index.cgi?action=revision_view;page_name=d... My edits (Version 8): https://st.icann.org/gnso-liaison/index.cgi?action=revision_view;page_name=d... Side-by-side comparison: https://st.icann.org/gnso-liaison/index.cgi?action=revision_compare&page_nam... - Evan
My comments, which I submitted to the IRT comment board yesterday, are below. My initial draft was more detailed, with lots of word-level reviews and small changes, but on reflection it seemed a bit like adding new wiper blades to a car that need to go to the scrap heap. So I submitted this instead, suggesting that virtually all of the IRT recommendations be rethought. -- Bret I have four principal concerns with the IRT Recommendations: 1. The Creation of an "IP Clearinghouse" is Beyond ICANN's Scope. While the "IP Clearinghouse" could be a valuable tool to ensure that information about trademark registrations and other claims of legal right are available to a wide audience, the real question is why ICANN, of all the organizations in the world, should be the organization that designs, accredits and oversees a database of the world's trademarks. If the clearinghouse idea has utility, either inside or outside the area of domain names, nothing stands in the way of other bodies creating one. If a worldwide trademark database were created, it could prove to be a useful tool for registries, registrars, registrants -- as well as by many others operating outside the area of domain names. ICANN, however, should not take on the tremendous task of preparing an RFP, evaluating responsive bids, selecting and accrediting a trademark database provider. ICANN can welcome the creation of a worldwide trademark database, either by WIPO or through a private, market-based solution, but it should neither make this task its own nor delay its own work while others build and populate an “IP Clearinghouse.” 2. Protection, Not Allocation. Trademark registrants should be entitled to trademark protection, but not a first-right of registration. Prospective domain name registrants should have at least as good an opportunity as anyone else in the world to register a domain name that they intend to use for any lawful, non-infringing purpose. For this reason, "Rights Protection Mechanisms" ("RPMs") should protect trademarks, not allocate domain names. Any RPM that acts as an allocation mechanism should be rejected. By that test, a significant effect of the IRT's "GPM" is to allocate domain names to a certain category of trademark registrant, usurping registration opportunities from registrants, even in countries where the so-called "GPM" has no registration or effect. The premise of the GPM is that certain words cannot be used in other than their trademark sense, anywhere those words are used in the DNS, anywhere in the world. This is an obviously false premise. 3. "Rapid Suspension" is a GNSO Issue, Not a Board Issue. As a lawyer who frequently handles domain name arbitrations and trademark litigation and who participated in the ICANN processes that created the UDRP, I am well aware of the time and effort that went into the creation of the UDRP, the successes and failures of the current UDRP, the different ways that individual UDRP arbitrators evaluate UDRP complaints, and the inconsistent results of those arbitrator's decisions over time. Creating a dispute mechanism that is predictable and reliable – even for what is intended to be egregious cases on the extreme margins of the registration spectrum – is complex and requires consideration of the issues from all involved. If "Rapid Suspension" has merit, it should be proposed by the IPC within the current GNSO structure, where it could be more thoroughly considered by the broadest segment of affected parties and considered in conjunction with a review and revision of the current UDRP, with which it overlaps. 4. "Post Delegation Dispute" is Inappropriate. The IRT section on a proposed “Post Delegation Dispute” mechanism is poorly described, but the intent seems to be to ask ICANN to expand its contractual compliance program to a registry’s treatment of trademarks. Many of the items described in this section, such as a registry creating an environment for trademark abuse, are hard to measure and inappropriate for either dispute resolution or contractual compliance. The best remedies for the sorts of problems described in this section are in courts of law, not in a new dispute mechanism. -- Bret Fausett
participants (3)
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Brendler, Beau -
Bret Fausett -
Evan Leibovitch