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

["Frederick Felman" <Frederick.Felman@xxxxxxxxxxxxxxx>]

We agree wholeheartedly with Sarah's comments below.  We were happy with the 
original draft and feel comfortable with the changes proposed by Mike R and not 
with Phil's. 



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(please excuse any content I might blame on the size of the keyboard & screen 
including but not limited to typos)

On Jul 18, 2010, at 10:44 AM, "Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx> 
wrote:

> I'm not opposed to polling members on this issue.  I can understand that many 
> of Phil's members who are in the domain name business may see business 
> opportunities from the introduction of new gTLDs.  They and others who 
> expressed concern do not own a well known brand or have widespread trademark 
> infringement problems.  Those who object have different business interests 
> and protecting corporate brands and consumers in the new gTLD spaces is not 
> on their list of priorities.  I respect that.
>  
> However, ICANN designated trademark protection as one of the overarching 
> issues surrounding the rollout and pledged that these issues would be 
> adequately addressed in the DAG.  I'm not aware of any major brand owners, 
> including the IPC members participating on the IRT, who are happy with the 
> diluted trademark protections currently contained in DAG 4.  I would hope 
> even members without trademark concerns, should respect the interests of BC 
> members who have such concerns and allow them to express those.  Our BC GNSO 
> councilors have consistently advocated for these protections on our behalf.  
> The BC already submitted consistent comments in the past, including on DAG 3. 
> Ron tried to keep much of the DAG 4 comments identical to the language to the 
> DAG 3 draft.  I'm sure Ron is open to receiving additional constructive edits 
> on tone and substance (e.g., Mike R's helpful suggestion to delete reference 
> to the GPML since that appears to be dead in the water).
>  
> I'm hopeful that we can find a consructive way to move forward given the 
> importance of this issue to so many BC members.  We've heard from those 
> raising concerns, but we've also heard from AT&T, News Corp, Mike Rodenbaugh, 
> NetChoice,  Verizon and RNA Partners weighing in supporting the comments.  I 
> would urge others to weigh in on this as well.
>  
> 
> Sarah
>  
> 
> 
> Sarah B. Deutsch 
> Vice President & Associate General Counsel 
> Verizon Communications 
> Phone: 703-351-3044 
> Fax: 703-351-3670 
>  
> 
> From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
> Phil Corwin
> Sent: Saturday, July 17, 2010 9:48 PM
> To: 'michaelc@xxxxxxxxxxxx'; 'mike@xxxxxxxxxx'
> Cc: 'jb7454@xxxxxxx'; 'randruff@xxxxxxxxxxxxxxx'; 'ffelman@xxxxxxxxxxxxxxx'; 
> 'bc-GNSO@xxxxxxxxx'
> Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4
> 
> 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
> 
> 
> 
> --
> 
> 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 [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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