[bc-gnso] RE: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re improvements in the new gTLD program

[Phil Corwin <psc@xxxxxxxxxxx>]

Mike:



I'm in general agreement with points 1-3 of your letter.



On point 4, as previously stated, I'm against the URS including a transfer 
option, especially if there's no additional due diligence, and most especially 
as there is as of yet no indication that any credible URS arbitration provider 
can be secured at the $300 filing level. Assuming that a credible provider or 
providers can be secured, I would again propose that rather than having a 
transfer option, which turns URS into a bargain basement UDRP, that suspended 
domains be put on a permanent do not re-register list -- which avoids the 
conflict with UDRP and also obviates the need tor TM owners to pay defensive 
registration fees forever.



On point 5, I generally support limiting TMC to exact matches, especially as 
that has always been its purpose. If any notice is to be given in regard to 
brand + keyword it must be a balanced notice that alerts registrants that their 
proposed domain name MAY OR MAY NOT be infringing, depending on use of the 
website, because, as pointed out in my earlier e-mail, the mere inclusion of a 
TM in a longer domain name is not determinative of infringement. And I'm 
absolutely opposed to inclusion of "Typos" in the TMC database as there is no 
possible way to limit that vast expansion of TM rights into the DNS space -- 
and, as you yourself already pointed out, every dictionary word is already a TM 
for something so even made-up words for Internet startups -- like Google -- 
would trigger warnings under such a regime.



best, Philip



Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/cell



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



________________________________
From: bc-private-bounces@xxxxxxxxx [bc-private-bounces@xxxxxxxxx] on behalf of 
icann@xxxxxxxxxxxxxx [icann@xxxxxxxxxxxxxx]
Sent: Thursday, December 29, 2011 2:31 PM
To: 'Marilyn Cade'; 'bc-private icann.org'; 'Bc GNSO list '
Subject: Re: [Bc-private] URGENT - redrafted letter from officers to ICANN 
Board re improvements in the new gTLD program

Why are our deliberations about policy positions so often pushed by a few 
members to the private list?  I think that is contrary to the reason we have a 
public list, and to our stated commitment to develop policy openly and 
transparently.  I am moving it back to the public list where it belongs.

I attach a redline with suggestions for improvement and accuracy in Marilyn’s 
redraft.  It requires changes, or at least a formal policy process per our 
Charter if she is going to maintain some of her stated positions.

The major issues I see with this, at this point:


1.       The BC has never discussed or recommended any sort of “block list” 
policy, and this would be a major policy recommendation that must go through 
the policy development procedures in Section 7 of the BC 
Charter<http://www.bizconst.org/charter.htm>.  The implementation of such a 
policy across all TLDs would be unfathomable.  As you state it, United can go 
and prevent anyone from registering United in any TLD?  (Um, “which United”… 
one might ask.)  Oh, and lucky for Siemens, they own ‘MUSIC’ as a registered 
trademark for hearing aids in the USA since 1997!  ICANN has already given away 
new TLD operators’ rights to use any country name, ICANN’s trademarks, etc., 
for absolutely no logical reason.  Now you want the BC to propose that all 
words that are registered trademarks anywhere in the world can be blocked by 
any holder of any such registration, across every new TLD in the world?  At 
minimum, this will require more thoughtful, and formal, written policy 
development per our Charter.  You can’t just throw this skeletal and dubious 
proposal into a letter to the Board, merely because you and a few other members 
like the idea.  Particularly while giving the membership just one holiday 
weekend to consider your idea?!  There is no rush to get such a position 
developed, if that is what the membership wants to do, but I suspect the idea 
will die fairly quickly once people think for a moment about the implications.


2.       Your statement about Community Priority should restate the position we 
have agreed upon in prior, formally developed policy positions on this issue.  
Specifically, we have recommended lessening the CPE passing score from 12 to 11 
points.  We have never discussed giving ‘brands’ any priority over other 
applicants, unless somehow they can qualify as a community-based applicant.  
Again the practical implementation of such a policy is unfathomable, given that 
almost every single word imaginable is registered somewhere as a trademark, or 
otherwise used as a ‘brand’ by someone, somewhere.



3.       The BC has never proposed a centralized URS service, and I don’t know 
what you mean by this.  Instead we have expected it to operate similar to the 
UDRP, with several accredited providers, and we suggest ICANN have a contract 
with all providers.  So that proposal needs to come out.



4.       Agreed with URS transfer option, as we have long agreed in our written 
policy positions, but why are we now suggesting an additional fee to trademark 
owners?  Again this seems like a new and unhelpful idea that has not been 
properly discussed, so that proposal should come out.



5.       We should reiterate our call for the TMC to include “brand + keyword” 
and brand typosquats, as we have previously agreed in prior written policy 
documents.  That would be the single biggest help to trademark owners and 
businesses, and could be easily achievable as there really is no downside 
consequence from additional notices going out to applicants for domain 
registration.

I hope everyone has a happy new year, it is regretful that some in the BC 
leadership are so urgently pushing new proposals to us at this point in time.  
I frankly don’t see the urgency, unless someone is hoping to delay the new TLD 
application window from opening, as scheduled for more than six months now…

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com

From: bc-private-bounces@xxxxxxxxx [mailto:bc-private-bounces@xxxxxxxxx] On 
Behalf Of Marilyn Cade
Sent: Thursday, December 29, 2011 8:53 AM
To: bc-private icann.org
Subject: [Bc-private] URGENT - redrafted letter from officers to ICANN Board re 
improvements in the new gTLD program

Dear BC members -- although it is a holiday period, I must ask that you focus 
on the redraft of the improvements document which has been circulating on the 
bc-private list.

I have edited the earlier version of the improvements, added in accurate WHOIS 
at the request of a member, and a reference to not sending 'brands' or NGO or 
charitable gTLD string applicants into auctions. This was called to my 
attention by an applicant for BC membership that has just began to learn about 
ICANN.

The significant addition is the do not register/registry block service, which 
is modeled after the IFFOR .XXX service in many ways.  It is challenging to 
consider defensive registrations costs and UDRP costs across potentially 
hundreds of new gTLDs, a single cross all gTLD block on a number of names 
associated with trademarks will at least lower the defensive registration 
burden somewhat. I proposed a three year period, followed by an assessment.

In order to have impact, this really needs to be sent out Tuesday, January 3.  
The letter is silent on a delay, but does recognize that many global businesses 
are highly concerned, and that the BC has consistently tried to get 
improvements to the program.  Some are expensive to ICANN, but all are 
achievable improvements.

I incorporated the request to express support for multi stakeholder nature of 
ICANN raised by a couple of members.