Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

Given the diversity of opinion within the BC, as well as the fact that other 
members appear to have broader concerns than those I raised, I would again 
suggest that a poll should be taken of BC members to take the Constituency's 
temperature and determine if there is any consensus for the proposed position 
statement.
Philip S. Corwin
Partner, Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
2026635347/Office
2022556172/Cell

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

From: Michael Castello [mailto:michaelc@xxxxxxxxxxxx]
Sent: Saturday, July 17, 2010 07:04 PM
To: Mike O'Connor <mike@xxxxxxxxxx>
Cc: Phil Corwin; BRUEGGEMAN, JEFF (ATTSI) <jb7454@xxxxxxx>; Ron Andruff 
<randruff@xxxxxxxxxxxxxxx>; frederick felman <ffelman@xxxxxxxxxxxxxxx>; 
bc-GNSO@xxxxxxxxx <bc-GNSO@xxxxxxxxx>
Subject: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4



I agree with both Phil and Mikey. There was certainly a lot of freedom early on 
with the internet and closing ranks on the concerns of trademark holders and 
new entities were, over time, clearly needed. The name space was allowed to 
flourish because it was so available to everyone. We need to make sure that 
these regulations, while needed, do not become too cumbersome to new 
participants. Everyone needs to be invited to the party.


Michael Castello

CEO/President

Castello Cities Internet Network, Inc.

http://www.ccin.com

michael@xxxxxxxx<mailto:michael@xxxxxxxx>


--

Saturday, July 17, 2010, 5:39:34 AM, you wrote:




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<mailto: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<mailto: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> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Ron Andruff

Sent: Friday, July 16, 2010 12:34 PM

To: 'frederick felman'; bc-GNSO@xxxxxxxxx<mailto: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<mailto: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






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