RE: [bc-gnso] gTLD global outreach programme

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

PS--Lest anyone think I was unfairly taking off after Yahoo! in my prior post, 
I just came across this item noting that Google was just sued by Rosetta Stone 
for selling its trademarks as keywords for ad placement purposes. 
(http://www.thedomains.com/2009/07/11/rosetta-stone-sues-google-for-trademark-infringement/<http://www.thedomains.com/2009/07/11/rosetta-stone-sues-google-for-trademark-infringement/>
 ). This is one of multiple similar suits filed against the Internet's 
800-pound gorilla of the moment.

So far as I know, Google actively sells trademarks as keywords to competitors 
of the trademark owner, while Yahoo! has a policy against such sales. Any 
online publisher, domain registrant or not, participating in Google's AdSense 
program would seem to be an "accomplice".

But, as I observed, in a time of global economic downturn trademark 
infringement suits seem, for better or worse, to be one of the few "green 
sprouts" of growth.


Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

________________________________
From: owner-bc-gnso@xxxxxxxxx [owner-bc-gnso@xxxxxxxxx] On Behalf Of Phil 
Corwin [pcorwin@xxxxxxxxxxxxxxxxxx]
Sent: Saturday, July 11, 2009 12:40 PM
To: BC Secretariat; BC gnso
Subject: RE: [bc-gnso] gTLD global outreach programme


I am very puzzled, and indeed disturbed,  by this Outreach Program as well as 
by why ICANN is undertaking the considerable expense of facilitating it.

The explanation of the events (at 
http://www.icann.org/en/topics/new-gtlds/consultation-outreach-en.htm) states:

With the expected introduction of New generic top-level domains (New gTLDs) 
into the market place in 2010, ICANN is hosting a series of live events and 
webinars starting June 2009. These events are designed in a wide range of 
formats to address different levels of knowledge.
The purpose of these events is to explain the Program, share the progress that 
ICANN has made to-date and to receive feedback from the community that will 
facilitate shaping the program.
These events are geared towards businesses small and large, trademark experts, 
professional associations, consumer and other civil society groups, members of 
the domain name industry, government officials, potential applicants and the 
ICANN community. All events are free of charge, but pre-registration is 
required.
During the upcoming consultation sessions in New York (13 July) and London (15 
July), attendees will have the chance to hear from ICANN staff and others who 
have contributed to the ongoing process, including members of the 
Implementation Recommendation Team (IRT) that submitted their report to the 
ICANN Board on measures to protect intellectual property. The proposed events 
in Hong Kong (24 July) and Abu-Dhabi (4 August) will mainly focus on the New 
gTLDs and Internationalized Domain Names (IDNs) programs details. The main 
language of the events is English. (emphasis added)



I will be attending the NYC event, and it and London are billed as "Live 
Consultations", described as follows:



Live consultations will engage the global Internet community to discuss 
workable solutions to outstanding issues on specific aspects of the program, 
particularly trademark protection and malicious behavior. These sessions are 
aimed at people that have been closely following the Program development and 
still have concerns.



The Hong Kong and Abu-Dhabi programs are more general "Live Outreach" events 
meant for a more general and less well informed audience; as no agenda has yet 
been posted for either event it is not possible to know what shape they will 
take.



A review of the Agenda for the NYC event ( 
http://www.icann.org/en/topics/new-gtlds/ny-agenda-speakers-13jul09-en.pdf) 
reveals that the vast majority of its focus is on trademark protection. The 
time breakdown is as follows:



General introduction -- 30 minutes

Trademark protection (IRT Report) -- 4 hours 45 minutes

Malicious behavior -- 1 hour 30 minutes

Economic Impact & Root Scaling Security and Stability -- 45 minutes



In other words, of the entire 7.5 hours of the program, more than 60% is 
devoted to trademark protection.



Given this heavy emphasis on trademark protection -- and given the clear 
failure of the IRT report to garner consensus support from the community, as 
was apparent to anyone who attended the Sydney meeting or has reviewed a sample 
of the comments posted at  
http://forum.icann.org/lists/irt-final-report/index.html -- one would have 
hoped that ICANN would seek to present a balanced presentation, acknowledging 
that those who have presented well thought out criticisms of aspects of the IRT 
Report "have contributed to the ongoing process" just as much as members of the 
IRT. But a review of the scheduled speakers shows that all but one is an IRT 
member or other person who will be strongly supporting its report; the only 
critic I can identify is Richard Tindal of Demand Media, and their principal 
concern is the proposed GPML. There is not a single speaker likely to criticize 
the very controversial URS, which critics (like myself, on behalf of ICA) have 
charged constitutes not only a major and unjustifiable diminution of registrant 
rights currently available under the UDRP but is also a major new Policy 
initiative, and not a mere technical implementation detail, and therefore 
cannot be adopted outside the normal PDP process overseen by the GNSO.



So my first question relates to why there is no adequate balance to this panel 
on trademark protection that recognizes the very real splits within the ICANN 
community on the IRT report? How are attendees adequately informed by such a 
one-sided presentation?



Another question is raised by the claim in the program description that these 
events will "receive feedback from the community that will facilitate shaping 
the program". What's going on here? The IRT was disbanded after delivering its 
Report, and that Report was thoroughly debated in Sydney. The comment period 
closed this past Monday. So, from a procedural standpoint, any "feedback" 
received at these events, in which critics of the report are relegated to the 
audience, should have no effect on "shaping the program". As the NYC 
Consultation is aimed at individuals who have been "closely following the 
program development" all these individuals were either already heard in Sydney 
or had an opportunity to comment officially.



The Chair of the GNSO Council filed a comment, in her personal capacity, 
stating that the IRT was an attempt by trademark interests to have a second 
bite at the apple, to put proposals back in the mix that had already been 
rejected in the GNSO consensus process, and that adoption of the URS as a mere 
implementation detail would destroy the legitimacy of ICANN's bottom-up 
consensus process:



...the work of the IRT, if it goes directly from the IRT to
implementation will not only constitute new top down policy but some
parts of it will be new policy that the GNSO specifically decided there
was no consensus for making. Going beyond the consensus making purview
of the GNSO to create policy as part of the implementation cycle of the
program not only directly contradicts the policy made by the GNSO but
also endangers the legitimacy of the entire consensus policy process.
Further one of the recommendations, the Uniform Rapid Suspension
System, constitutes an entirely new policy mechanism that affects
previous policy, the UDRP, without proper policy review. 
(http://forum.icann.org/lists/irt-final-report/pdfNhBqKA4CfN.pdf)



So do trademark interests not just get a second bite at the apple outside the 
GNSO consensus process, but also get extra time after the closing of the formal 
comment period to further "shape" the process? This is not only wrong but silly 
-- from a substantive viewpoint, depending on who turns out, the NYC and London 
events can only demonstrate one or both of the following propositions:

 *   trademark interests strongly support the recommendations in the IRT 
report, produced by a group which had its membership and agenda controlled by 
the IPC
 *   other members of the ICANN community have strong reservations about or 
outright opposition to virtually every aspect of the IRT Report, including 
whether various proposals contained within it are major new policy initiatives 
that require a formal PDP process

Well, we already knew all that. didn't we? I shall be very surprised if any 
feedback is received at the NYC event that has not already been fed to ICANN in 
Sydney or through the comment process.



A last question would be how much $ is ICANN spending to put on these events 
and to fly various staff around the world to them? And are any of the other 
speakers having their expenses covered by ICANN, just as members of the IRT 
received travel support at a time when ICANN tells other constituencies and 
supporting organizations that it lacks funds for their monetary support 
requests?



To put my comments here in context, I invite you to visit 
http://www.internetcommerce.org/node/198 which contains the text of ICA's 
comment letter as well as an introduction that documents the IRT Report dissent 
and criticism coming from key ICANN constituencies. ICA supported some aspects 
of the Report with proper tweaking; while we took strong exception to the URS 
we suggested an expedited PDP that could put in place balanced UDRP reforms 
prior to the launch of any new gTLD in the fourth quarter of 2010 -- this 
process could directly benefit trademark owners by addressing many .com 
problems, which is where the vast majority of their current infringement issues 
arise and are likely to keep doing so in the future. And, more important, it 
would respect and not run roughshod over ICANN's policymaking process.



In closing, let me note two other news items of the last week to put this whole 
IRT debate in broader context:

 *   On July 8th Mary Kay Cosmetics sued Yahoo! for trademark infringement 
(http://www.thedomains.com/2009/07/09/another-day-another-suit-yahoo-sued-trademark-infringement-in-e-mail-advertising/
 )  alleging that Yahoo! inserted links to unauthorized resellers in e-mails 
sent by Mary Kay salespeople send to their customers. I note this not to 
endorse the allegations but simply to observe that that trademark infringement 
suits are a growth industry and that even strong infringement critics and IRT 
report supporters like Yahoo! can find themselves in the cross-hairs.
 *   Comcast has just announced a "Domain Helper Service" 
(http://domainnamewire.com/2009/07/09/comcast-starts-typosquatting-domain-names/
 ) that serves up ads against nonexistent domain names, mostly typos of 
legitimate trademarked names, thereby following in the footsteps of other major 
ISPs. If these names were registered as individual domains they might well be 
subject to UDRP or URS actions, but ISPs contend that serving up ad pages 
(primarily supplied by Google and Yahoo!) and not 404 error messages is a 
customer services and not typosquatting. So I wonder if we can get ironclad 
pledges from members of the ISP constituency (many of whom are strong IRT 
report proponents) that they will not serve up ads against any domain that has 
been suspended in a URS action? And if they won't do that, then why are we 
taking the risk of tearing the ICANN community apart and destroying its 
policy-making process? After all, if an Internet user sees the same ads when 
they mistype micosofft.web what's the difference if a domain owner or an ISP is 
pocketing the PPC income that may be generated?

If you've read this far, thanks for your time on this weekend.







Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
202-347-6875 (office)
202-347-6876 (fax)
202-255-6172 (cell)
"Luck is the residue of design." -- Branch Rickey
________________________________________
From: owner-bc-gnso@xxxxxxxxx [owner-bc-gnso@xxxxxxxxx] On Behalf Of BC 
Secretariat [secretariat@xxxxxxxxxxxx]
Sent: Thursday, July 09, 2009 11:12 AM
To: BC gnso
Subject: [bc-gnso] gTLD global outreach programme

Dear Members

Please find below a link to information about the ICANN gTLD global outreach
and consultation programme

Best wishes
Gary

http://www.registration123.com/ICANN/GTLD