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

[martinsutton@xxxxxxxx]

Jon,

Thank you for the redraft and to others that have prepared the comments.

I echo Sarah's comments regarding the different perspectives of our 
members and I obviously sympathise with major brand-owners that deal 
day-in, day-out with brand abuse and fraud that targets consumers.  I 
support the comments drafted by Ron and Sarah but would be prepared to 
endorse Jon's latest revision if there was strong consensus amongst the 
BC.

Regards,

Martin

Martin C SUTTON 
Group Risk 
Manager, Group Fraud Risk and Intelligence | HSBC HOLDINGS PLC HGHQ
Group Security & Fraud Risk
8 Canada Square,Canary Wharf,London,E14 5HQ,United Kingdom
________________________________________________________________

Phone.     +44 (0)20 7991 8074 / 7991 8074
Mobile.     +44 (0) 7774556680
Email.       martinsutton@xxxxxxxx
________________________________________________________________



Jon Nevett <jon@xxxxxxxxxx> 
Sent by: owner-bc-gnso@xxxxxxxxx
Jul 19 2010 08:29

Mail Size: 198251


To
Zahid Jamil <zahid@xxxxxxxxx>
cc
"'Deutsch, Sarah B'" <sarah.b.deutsch@xxxxxxxxxxx>, "'Phil Corwin'" 
<pcorwin@xxxxxxxxxxxxxxxxxx>, <michaelc@xxxxxxxxxxxx>, <mike@xxxxxxxxxx>, 
<jb7454@xxxxxxx>, <randruff@xxxxxxxxxxxxxxx>, <ffelman@xxxxxxxxxxxxxxx>, 
<bc-GNSO@xxxxxxxxx>
Subject
Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

  Entity
   HSBC Holdings plc - GMO



Folks:

Attached is a suggested redraft to bridge the gap.  I personally don't 
agree with some of the arguments I left in the attached, but I tried to 
keep the longstanding BC positions while toning down the anti-TLD 
language.  I also deleted a couple of the arguments that were objected to 
in some of the notes I reviewed.

Here are some of the highlights:

*I deleted the GPML section.

*I deleted the clear and convincing evidence issue with regard to the URS. 
 As a member of the IRT, I can say that it clearly was our intent for the 
URS to have a higher burden of proof  than the UDRP -- the legal standard 
is exactly the same.  We wanted the URS to be for "slam dunk" cases.  The 
URS was to be a less expensive alternative to the UDRP cognizant of the 
fact that 70% of UDRPs go unanswered.  Has this issue even been raised 
before by the BC?

*Based on Sarah's helpful e-mail, I left alone the complaint about 
transferring names after a successful URS as that has been an issue that 
Zahid, Mike and others in the BC have argued consistently.  I do note, 
however, that transfer was not in the IRT recommendation and the STI 
agreed to add a year to the registration at the request of the complainant 
as a compromise. 

*Again based on Sarah's e-mail, I left the PDDRP section pretty much alone 
except for an argument about registries warehousing names, but not using 
them, as that argument didn't make much sense to me.  That's exactly the 
function of a registry to warehouse names until they are sold by 
registrars.  If a registry "reserves" a name and it is not in use at all, 
the mark holder should be thrilled that it can't be registered by a 
squatter.

*I also deleted the paragraph about the Director of Compliance.  I don't 
think it appropriate to comment on those kinds of personnel matters. 

*I didn't touch the arguments related to community and 13 points (though I 
personally favor 14 points to avoid gaming -- sorry Ron), as that seems to 
be longstanding BC position.

*I didn't do much on the Market Differentiation section either other than 
soften some of the language.

I have no idea if my attempt will get consensus or not, but I thought it 
worthwhile to offer alternative language and I tried hard to find a 
balance. 

Thanks.

Jon
[attachment "DRAFDT BC Pub Comm DAGv4 - (SD-RA jn).doc" deleted by Martin 
C SUTTON/GMO/HSBC] 
On Jul 18, 2010, at 8:22 PM, Zahid Jamil wrote:

Agree absolutely with Sarah?s comments.
 
Sincerely,
 
 
Zahid Jamil
Barrister-at-law
Jamil & Jamil
Barristers-at-law
219-221 Central Hotel Annexe
Merewether Road, Karachi. Pakistan
Cell: +923008238230
Tel: +92 21 35680760 / 35685276 / 35655025
Fax: +92 21 35655026
www.jamilandjamil.com
 
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From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf 
Of Deutsch, Sarah B
Sent: 18 July 2010 13:41
To: Phil Corwin; 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
 
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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fax    866-280-2356 
web  http://www.haven2.com
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etc.)
 



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