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

["Mike O'Connor" <mike@xxxxxxxxxx>]

i am in Phil's camp on this.  several years ago i started referring to myself 
as "a member of the business wing of the Business Constituency" just to make it 
clear that i'm not keen on our strident views with regard to rights protections 
and cyber-security.  

of course cyber-crime is important, but folks like Bruce Schneier make an 
extremely compelling case that there needs to be a culture of security in which 
all participants are active and aware rather than creating a culture of passive 
consumers being "protected" by ever-increasingly intrusive "authorities" like 
governments and ICANN.  

of course trademark violations are unacceptable -- but to make this our 
signature issue, to take our position beyond even those of the IPC, and leaving 
*small* business owners defenseless in the face of large corporate 
brand-owners, leaves me continuing to feel disenfranchised (much the way i feel 
disenfranchised by the extreme politics in my country -- where the heck do 
moderates hang out??). 

i would love to see the BC develop a positive message (based on positive 
positions) that truly reflect the needs of businesses large and small rather 
than recycling these views from our reactionary past.  

i would also love to get out of the continuing role of being an apologist for 
our somewhat quirky positions.  haarrrumph!  :-)

so, just to be on record, i do not support these comments on DAGv4.

sorry about the rant.  thanks for taking the time to craft these notes Phil,

mikey


On Jul 16, 2010, at 7:11 PM, Phil Corwin wrote:

> 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 IRTrecommendations, 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> 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
> 
>  
> 

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