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

[Jon Nevett <jon@xxxxxxxxxx>]

I agree with Mikey as well.  The tone of the comments seem to me to be unduly 
negative, so it's not just the substantive arguments that are of concern.  I 
would prefer a piece that focuses on a discrete issue or two that are 
achievable vs. a rant that likely will be ignored.  As for substance, I agree 
with most of the URS issues that Phil raised and with Mike on dropping the GPML 
comments.  I also think we should drop the reference to ICANN personnel issues 
when we are only speculating as to what happened.  

Thanks.

Jon


On Jul 17, 2010, at 5:48 PM, Mike O'Connor wrote:

> hi Ron,
> 
> i don't really support any of the positions in there.  they strike me as 
> pennies put on the tracks of an oncoming train.  :-)
> 
> i think new gTLDs are a great idea, the sooner the better.  so i'd much 
> prefer to be part of a position that was out in front of that train, or 
> better yet part of the engine, rather than belaboring positions that have 
> already been presented, reviewed and ignored.  it strikes me as somehow 
> Quixotic to keep tilting at those windmills.  
> 
> i don't mean to sound grumpy -- it's just that we give the appearance of 
> trying to stop or slow down the introduction of new gTLDs all the time -- 
> instead of leading the parade for all those businesses that need them.  i had 
> a beer with the COO of Thomson Reuters last week and didn't even think of 
> bringing up the BC when he turned the conversation to new gTLDs.  he's the 
> ops guy -- the trademark stuff is handled by his trademark staff, but he's 
> interested in what he can **do** with gTLDs.  we ought to have an answer for 
> him...
> 
> mikey
> 
> 
> On Jul 17, 2010, at 4:03 PM, Ron Andruff wrote:
> 
>> Mikey, 
>> 
>> There are four positions in the draft BC comments. To be clear, do you not 
>> support any of them? I understood that Phil takes issue with URS only. 
>> 
>> Kind regards, 
>> 
>> RA 
>> ________________________________________
>> Ron Andruff
>> RNA Partners, Inc.
>> randruff@xxxxxxxxxxxxxxx
>> www.rnapartners.com
>> 
>> From: "Mike O'Connor" <mike@xxxxxxxxxx>
>> Sender: owner-bc-gnso@xxxxxxxxx
>> Date: Sat, 17 Jul 2010 07:39:34 -0500
>> To: Phil Corwin<pcorwin@xxxxxxxxxxxxxxxxxx>
>> Cc: BRUEGGEMAN, JEFF (ATTSI)<jb7454@xxxxxxx>; Ron 
>> Andruff<randruff@xxxxxxxxxxxxxxx>; frederick 
>> felman<ffelman@xxxxxxxxxxxxxxx>; bc-GNSO@xxxxxxxxx<bc-GNSO@xxxxxxxxx>
>> Subject: Re: [bc-gnso] DRAFT BC Public Comments on DAGv4
>> 
>> 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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> 
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