RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

Ron (and other BC members who contacted me to ask that I provide alternative 
URS language):

I appreciate the request, as I appreciate the hard work put in by Ron and Sarah 
on the draft.

That said, a few word changes will not suffice to alter ICA's dissent, as we 
have an entirely different perspective. We represent individuals and companies 
with substantial investments in domain portfolios. They view domains in the 
same way that most of you (and we) view trademarks -- as an intangible asset 
with substantial value. When a trademark rights protection is proposed it might 
be useful to ask whether you would be willing to have one of your trademarks 
suspended, or forfeited, on the basis of what is on the table. If not, then 
don't expect registrants to embrace it. In no way do we condone trademark 
infringement, but proposed responses to it need to assure basic due process.

If a majority wills it then the BC is within its rights to proffer a reworking 
of the same positions it has articulated on prior occasions, and it should 
expect essentially the same results -- especially after BC members participated 
in an STI process that reworked the IRT recommendations, and the STI's work was 
embraced by the GNSO and approved by the Board. If ICANN staff have 
significantly altered the STI's consensus recommendations then that certainly 
should be raised, but otherwise the rights protections for new gTLDs have been 
pretty much baked into the DAG. Does anyone really think they will be reopened 
in any significant way?

As regards the specifics of the URS provision, we cannot agree that the URS 
should have the same substantive standard as the UDRP. The URS was proposed by 
the IRT as reserved for "obvious", "no brainer" rights disputes, and was 
originally proposed with a higher evidentiary standard to distinguish URS cases 
from UDRPs. We don't think the BC's credibility on trademark matters is 
enhanced when it consistently articulates a harder line than that of the IPC, 
which conceived of and oversaw the IRT. As for urging that the URS lead to a 
domain transfer and not just a suspension -- again, this goes beyond the IRT 
recommendation and would likewise blur the distinction between the URS and UDRP.

Finally, we find the discussion of the "impact" test for a finding of RDNH in 
the URS to be confusing -- but we do believe that if a complainant advances 
deliberate falsehoods with the intent of having a favorable impact on its 
complaint then it is clearly guilty of attempting to abuse the available system.

Beyond the URS, our only other comment on the rights protection language is to 
note our strong questioning of a TM Clearinghouse regime in which an "identical 
match" is defined as "typographical variations". Identical means identical, not 
variations. Variations to what degree? Having a trademark in one word doesn't 
provide a right to fire warning shots at tens of thousands of possible variants 
of that word, multiple degrees of separation away from it. If you're going to 
propose that variations be encompassed then it really is incumbent to 
articulate some defining limits on that notion - "we know it when we see it" is 
really not adequate assurance for registrants. And, of course, these issues 
become even more problematic for dictionary words that are trademarked for 
various purposes. Please let's remember that in most instances infringement 
can't just be determined by the name of a domain but requires a look at how it 
is being used.

Finally, to note an area of agreement -- we share the concern that ICANN 
devotes inadequate resources to compliance, and indeed in Brussels we suggested 
publicly that it earmark a meaningful portion of revenues from new gTLD 
applications to that end.

Summing up, we would have to oppose the URS regime that the majority of the BC 
seems to favor as providing inadequate assurance of due process to registrants, 
and we think the overall position on rights protection is backwards looking 
given that the STI train has left the station. Again, this does not mean we are 
unsympathetic to the concerns of rights holders. Throughout the past 18 months 
we have advocated comprehensive UDRP reform that would address the concerns of 
all parties across the entire gTLD space, and we continue to believe that a 
good faith collaboration could produce positive changes that could be put in 
place in tandem with the opening of new gTLDs.

Regards to all,
Philip


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 
BRUEGGEMAN, JEFF (ATTSI) [jb7454@xxxxxxx]
Sent: Friday, July 16, 2010 3:36 PM
To: Ron Andruff; frederick felman; bc-GNSO@xxxxxxxxx
Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks Ron and Sarah.  AT&T supports filing comments and I like how you’ve 
updated them.  While I was not involved in the original BC comments, I would 
note that you could add a reference to the recommendation in the Economic Study 
that it may be wise for ICANC to continue its practice of introducing new gTLDs 
in discrete, limited rounds.

Jeff Brueggeman
AT&T Public Policy
(202) 457-2064



From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Ron 
Andruff
Sent: Friday, July 16, 2010 12:34 PM
To: 'frederick felman'; bc-GNSO@xxxxxxxxx
Subject: RE: [bc-gnso] DRAFT BC Public Comments on DAGv4

Thanks to Mark Monitor and AIM for your notes of support for the circulated 
draft.

I encourage other members to give the doc a quick read.  While it is several 
pages long, please note that it is the same document we submitted for DAGv3 so 
what we are asking is for you to review the redlines and give your 
comments/amendments.   To that end, Phil Corwin, can you send your suggested 
URS text asap?

Thanks again everyone for taking a moment to review the DAGv4 draft comments.

RA

Ronald N. Andruff
President
RNA Partners, Inc.
220 Fifth Avenue
New York, New York 10001
+ 1 212 481 2820 ext. 11

________________________________
From: frederick felman [mailto:ffelman@xxxxxxxxxxxxxxx]
Sent: Friday, July 16, 2010 12:21 PM
To: Ron Andruff; bc-GNSO@xxxxxxxxx
Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4
Importance: High

MarkMonitor support the BC comments to DAGv4.


On 7/15/10 7:20 AM, "Ron Andruff" 
<randruff@xxxxxxxxxxxxxxx<https://exchange.sierracorporation.com/owa/UrlBlockedError.aspx>>
 wrote:
Dear Members,

Further to my reminder earlier this week regarding the need for a BC public 
comment on DAGv4, Sarah Deutsch and I have developed a draft for member review 
and comment.  Effectively, we have taken the BC’s DAGv3 comments and 
added/amended based on (1) staff having largely ignored our comments in DAGv2 
and v3; and (2) utilized subsequent information that has come available in the 
interim (e.g., the latest economic study). FYI, Sarah drafted the RPM material 
and I took responsibility for the other elements.

We ask that members review and comment on the document at your earliest 
convenience, so that we can meet the submission deadline of Wednesday, July 
21st.  Sorry for the late posting, but unfortunately with summer holidays and 
all, a few things are slipping between the cracks...

Thanks in advance for your soonest input.

Kind regards,

RA

Ronald N. Andruff
President

RNA Partners, Inc.
220 Fifth Avenue
New York, New York 10001
+ 1 212 481 2820 ext. 11