[bc-gnso] FW: Fadi's blog /Follow up to TMCH working sessions in LA

[Marilyn Cade <marilynscade@xxxxxxxxxxx>]

Dear BC membersPlease see Fadi Chehade's blog conveying his approach for the 
'way forward' for the strawman solution developed during the LA meeting.  This 
included participation by Marilyn Cade, Fred Felman [substituting for Elisa 
Cooper who represented BC in Brussels]; Bryce Coughlin,  Gerald Depardo; and 
Steve DelBianco. Martin Sutton was invited as a .brand representative and was 
also at the meeting in LA. 
The ExComm will meet today and discuss the status and possible approaches.  We 
have a full members call on Friday and look forward to a fuller discussion at 
that time regarding practicalities and approaches to improvements to the 
Guidebook in the RPMs. After this work is concluded, Fadi will focus on RAA and 
URS, also key issues to the BC's members. 
Marilyn Cade, BC Chair
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http://blog.icann.org/2012/11/a-follow-up-to-our-trademark-clearinghouse-meetings/



A Follow-Up to Our Trademark Clearinghouse Meetings
by Fadi Chehadé on November 26, 2012
To wrap up the series of meetings ICANN convened with stakeholders
to find common ground on Trademark Clearinghouse implementation, we conducted
a follow-up briefing today for the group who worked on these issues during
our meetings in Brussels and Los Angeles.
We discussed two items:

1.        An
update on the Trademark Clearinghouse contract, and

2.        A
way forward on the strawman
solution developed during the meeting in Los
Angeles. 
Contracts
ICANN has continued to negotiate the agreements for database
services with IBM and for validation services with Deloitte to include
additional terms that will provide ICANN with maximum operational flexibility
and guaranteed stewardship of the trademark database.
Here is an overview:

ICANN retains all intellectual property rights in the
Trademark Clearinghouse data.
Deloitte’s validation services are to be non-exclusive.
ICANN may add additional validators after a threshold of minimum stability
is met.
Trademark submission fees are capped at USD 150 per record.
Discounts are available for bulk & multi-year submissions.
IBM will charge Deloitte for database access via an application
processing interface (API), and will charge registries and registrars for
real-time access to the database during the sunrise and claims periods.
ICANN may audit Deloitte’s performance (and revenues/costs)
to confirm that the costs and fees for validation services are reasonable.We
are moving to sign agreements as soon as possible and the agreements will
be posted once signed.
The "Strawman Solution"
As promised, we reviewed each of the elements of the
strawman solution to identify a way forward,
paying special attention to determining whether each properly belonged
in a policy or implementation process. We did not find that any element
of the strawman was inconsistent with the policy advice from GNSO
recommendation 3: Strings must not infringe
the existing legal rights of others that are recognized or enforceable
under generally accepted and internationally recognized principles of law.
However, the analysis of the various elements yielded different recommended
steps for consideration, as described below.

Sunrise Notice Requirement. Our analysis is that
the addition of the required 30-day notice period for Sunrise falls clearly
into the realm of implementation. The policy advice did not recommend specific
time periods, and this is a reasonable means to help address the communications
concerns of rights holders, especially in light of the high volume of gTLD
applications.
Trademark Claims. The extension of Trademark Claims
from 60 to 90 days can also be considered implementation, as it is a matter
of continuing a service that is already required. The addition of a “Claims
2” process could also fall into the category of implementation given that
it is an optional, fee-based service for rights holders, and is more lightweight
than what registries and registrars will have implemented in the Trademark
Claims 1 period. This service is envisioned to benefit both consumers and
trademark holders, and is consistent with the objectives of the Trademark
Claims service developed by the community. To the extent that there are
additional costs incurred by registries and registrars, I envision that
these fees can be offset when the process is implemented, as a portion
of the fees to be collected by IBM for this voluntary service are to be
shared with registries and registrars.
Scope of Trademark Claims. The inclusion of strings
previously found to be abusively registered in the Clearinghouse for purposes
of Trademark Claims can be considered implementation, as it provides a
path for associating a limited number of additional domain names with a
trademark record. This is consistent with the policy advice that trademark
rights should be protected, and, given that the inclusion of such names
would be only on the basis of a decision rendered under the UDRP or a court
proceeding, the process would merely take into account names for which
the issues have already been balanced and considered. However, given the
previous intensive discussions on the scope of protections associated with
a Clearinghouse record, involving the IRT/STI, we believe this needs guidance
from the GNSO Council.I will be sending a message
to the GNSO Council asking it for guidance on the Scope of Trademark Claims.
In addition, the strawman model will be posted this week for public comment.
I am also including, along with the strawman model, a revised proposal
from the BC/IPC for limited preventative registrations designed to address
the need for second-level defensive registrations. Although this proposal
is not currently part of the strawman model, I will be seeking guidance
from the GNSO Council on this proposal as well.
As a reminder, the strawman model was developed by participants
selected by the respective stakeholder groups in the GNSO. I thank them
for working with me to explore a balanced set of improvements to the TMCH
and the rights protection mechanisms available for new gTLDs.
I plan to convene this group one last time to discuss the
outcome of planned contractual talks with IBM. I hope for this to happen
later this week or next week.
Sincerely,

Fadi