RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

["Michael D. Palage" <michael@xxxxxxxxxx>]

Mike,

 

Since this stakeholder groups is suppose to represent the interests of
"businesses" perhaps we might step back for a minute and ask if we have
acted like a business centric stakeholder group in proposing this solution.
Given that it will be businesses and trademark owners that will have to self
fund this service through their annual fees, would it not make sense for the
business centric stakeholder group to conduct even a rudimentary technical
and financial feasibility study in connection with your proposal. Your
actions appear to remind me more of an overzealous legislature imposing
complex regulatory obligations on small business operators without really
appreciating 1) its financial impact 2) it technical feasibility and 3) the
actual viability to solve the root problem.

 

Now aside from these common sense questions, this proposal kind of totally
ignore the additional facts: (1) this proposal goes above and beyond the
original IRT recommendations which there reached through a rough consensus
approach involving a diverse range of working group members (both
contracting and non-contracting) and (2) kind of violates the spirit of the
ICANN Board request, since this proposal does not appear aimed at a broad
consensus solution but attempting to reopen the process and move the goal
posts.

 

I would ask that this dissent be attached in connection with any Commercial
Stakeholder Group submission in connection with the STI submission, and I
would hope that other members would be able to join me.

 

Best regards,

 

Michael Palage

 

 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Mike Rodenbaugh
Sent: Friday, November 06, 2009 8:58 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

 

Hi David,

 

I think yes, based on the concepts and language previously sent around to
the List on 10/28, copied below, as there has not been a lot of specific
opposition:

 

TM Clearinghouse:

 

1.       Sunrise processes must be standardized and mandatory.

2.      

 TM notices (misnamed "IP claims") must be mandatory:

a.       All applications for newTLD domain registrations will be checked
against the TMC, regardless whether application is during sunrise period or
thereafter

b.      If applied-for domain string anywhere contains text of trademark
listed in TMC, then TM notice given to applicant per proposal listed in
Staff recommendation, if domain is registered then TM owner is notified

c.       TM owners will have option also to trigger notices in the event
that applied-for domain string includes the trademark string altered by
typographical errors, as determined by an algorithmic tool.  For example,
yaho0.new would trigger a notice if Yahoo! elected to exercise this option.

d.      Domain applicant must affirmatively respond to the TM notice, either
on screen or email, and registrar must maintain written records of such
responses for every domain name.  TM owner must get notice of every
registration that occurs.

 

URS:

1.       Process as detailed by Staff must be mandatory in all newTLD
registries

a.       Substantive standard of UDRP must be exactly replicated in URS 

2.       Successful complainant must have option to transfer the name or
cancel, if no appeal filed within 90 days from date of URS decision.  

a.       Successful complainant must also have option to have domain
suspended until end of its current registration term, and then indefinitely
flagged

b.      Flag shall be recorded in clearinghouse so that if anyone seeks to
register such name(s) again, they would get a notice.

3.       Complainant abuse shall be defined same as Reverse Domain Name
Hijacking under UDRP.

4.       Meaningful appeal process required, Staff hasn't made any proposal
on that yet, so we cannot comment. 

 

 

Mike Rodenbaugh

RODENBAUGH LAW

548 Market Street

San Francisco, CA  94104

(415)
<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer
=http://rodenbaugh.com/contact>  738-8087

http://rodenbaugh.com <http://rodenbaugh.com/> 

 

 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Fares, David
Sent: Friday, November 06, 2009 8:59 AM
To: icann@xxxxxxxxxxxxxx; 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

 

Thanks Mike.  Would your edited version still impose an affirmative
obligation on registries to cross-reference the clearinghouse?  

 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Mike Rodenbaugh
Sent: Thursday, November 05, 2009 4:56 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

 

Thanks Chris, how about this?

 

Registry operations for adding new names [DEL should be] ARE OFTEN a
highly-automated function [DELETE, and the failure of a registry to take
affirmative steps to assess whether a domain name violates trademark laws
[DEL should not] MAY NOT ALWAYS  in itself constitute bad faith or systemic
infringement.]  However, a registry operator who fails to perform the
specific rights protection mechanisms enumerated in its Registry Operator's
Agreement should be subject to PDDM claims, as set forth in the IRT Final
Report.

 

Mike Rodenbaugh

RODENBAUGH LAW

548 Market Street

San Francisco, CA  94104

(415)
<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer
=http://rodenbaugh.com/contact>  738-8087

http://rodenbaugh.com <http://rodenbaugh.com/> 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Christopher Martin
Sent: Thursday, November 05, 2009 1:35 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

 

I don't disagree with either Sarah's or Mike's comments on Steve's proposal.
But in terms of getting something through that will work for all parties
down the road, do we want to consider perhaps softening the language a bit?
Perhaps change 

 

Registry operations for adding new names [DEL should be] ARE OFTEN a
highly-automated function, and the failure of a registry to take affirmative
steps to assess whether a domain name violates trademark laws [DEL should
not] MAY NOT ALWAYS  in itself constitute bad faith or systemic
infringement.  However, a registry operator who fails to perform the
specific rights protection mechanisms enumerated in its Registry Operator's
Agreement should be subject to PDDM claims, as set forth in the IRT Final
Report.

 

Understand that may still not be close enough to other positions on the
committee, so just throwing out ideas.  USCIB does not have an official
position on this.

 

Chris

 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Mike Rodenbaugh
Sent: Thursday, November 05, 2009 2:57 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

 

Hi Steve,

 

BC members might disagree with most of your first sentence.  Specifically,
the BC appears to have reached consensus that registry operators and/or
registrars should do lookups against the Clearinghouse database, and provide
appropriate notices to all domain registration applicants.  ALAC and other
constituencies are of the same view, though some registrars and registries
appear to resist.  Those registries and/or registrars that choose to ignore
this lookup and notice capability (for whatever reason) ought not be
relieved from liability for that choice, and might be considered a bad faith
contributor to systemic infringement, if not a direct infringer.

 

I support your second sentence though!

 

Thanks,

Mike

 

Mike Rodenbaugh

RODENBAUGH LAW

548 Market Street

San Francisco, CA  94104

(415)
<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer
=http://rodenbaugh.com/contact>  738-8087

http://rodenbaugh.com <http://rodenbaugh.com/> 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Steve DelBianco
Sent: Thursday, November 05, 2009 11:25 AM
To: Zahid Jamil; 'bc - GNSO list'
Subject: Re: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

 

Thank-you, Zahid, for your exhaustive efforts on the rights protection
mechanisms.

As you requested, here's one comment on the draft BC position on Post
Delegation Dispute Mechanism (PDDM):

Twice in your draft you express concern about Registry Operators turning a
"blind eye" to infringements.  I'm a fan of clever phrases such as "turn a
blind eye", but in this case I think the rhetoric may go too far.  

One of my registry members reminded me in Seoul that registry operations are
highly automated processes.  There is no human "eye" looking at registration
Add records as they come in from registrars.  Accordingly, I suggest
replacing the two "blind eye" concerns in the BC comments with this
statement:

Registry operations for adding new names should be a highly-automated
function, and the failure of a registry to take affirmative steps to assess
whether a domain name violates trademark laws should not in itself
constitute bad faith or systemic infringement.  However, a registry operator
who fails to perform the specific rights protection mechanisms enumerated in
its Registry Operator's Agreement should be subject to PDDM claims, as set
forth in the IRT Final Report. 



Again, thanks for working this on our behalf.

 

-- 
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org 
+1.202.420.7482 


On 11/4/09 12:37 PM, "Zahid Jamil" <zahid@xxxxxxxxx> wrote:


Would like to ask members that if there are any comments on the draft BC
position on RPMs that was sent out earlier?  If I don't hear anything on
whether there will be comments and that I should hold sending this out to
the GNSO, I will send it out by tomorrow to both the GNSO and the STI.
 

 


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