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

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

thanks for this Jon,

i find it much easier to support this version of our comments.

mikey


On Jul 18, 2010, at 8:39 PM, Jon Nevett wrote:

> 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
> 
> <DRAFDT BC Pub Comm DAGv4 - (SD-RA jn).doc>
> 
> 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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>>  
> 

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