City of Paris comments on RPM Requirements

[Fabien BETREMIEUX <fabien.betremieux@xxxxxxxx>]

Message sent on behalf of Valérie de Brem, Secrétaire Générale Adjointe,
City of Paris.


Subject : City of Paris comments on RPM Requirements


Following up on our signing of the GeoTLD letter submitted during the
public comment period along with numerous constructive comments, we would
like to take the opportunity of this "reply period" to :
  *   endorse arguments made by Amadeu Abril of CORE and Minds and Machine
  *   complement these arguments with our analysis of the issue at hand,
that is launching a TLD in an ordely manner that protects all legitimate
rights, which has always been our intent as stated in our public answer to
question 29 of the application for the .PARIS TLD.


Indeed, the current version of the draft registry agreement provides a set
of minimum requirements for rights protection mechanisms (“RPMs”). In
addition to these RPMs, registry operators may develop and implement
additional RPMs that discourage or prevent registration of domain names
that violate or abuse another party’s legal rights (see new gTLD Agreement,
Specification 7).


Protecting rights does not mean creating new rights

The current draft of minimum requirements for RPMs focuses on the
protection of trademark rights. However, trademark rights are not the only
category of another party’s legal rights that deserve/require protection in
many jurisdictions. The rights and legitimate interests of e.g. public
authorities, local businesses and individuals may deserve greater
protection than the rights of trademark holders that are by definition
linked to the use in commerce for certain categories of goods and services.
For example, the use of a commercial name can limit the right to use a more
recent trademark. By definition, the legitimate use by third parties of a
domain name that happens to be also another party’s trademark would not
infringe upon this trademark. Allowing third parties having other rights
than trademark rights in a name to participate in a sunrise phase together
with trademark holders (or prior to trademark holders) would not
necessarily limit the protection for trademark holders. However, the
current draft of minimum requirements for RPMs would create a priority for
trademark holders over other third parties. This may lead to situations
where trademark holders are granted more rights than they have under
trademark law, allowing trademark holders to trump other legitimate right
holders. This has never been the purpose of trademark law, nor should it be
the purpose of RPMs. RPMs should protect rights, not create additional
rights at the expense of other legitimate rights.


The creation of new rights in the framework of RPM limits innovation and
competition

In performing its mission, ICANN must respect the creativity, innovation,
and flow of information made possible by the Internet by limiting ICANN's
activities to those matters within ICANN's mission requiring or
significantly benefiting from global coordination. Where feasible and
appropriate, ICANN must depend on market mechanisms to promote and sustain
a competitive environment. It must also introduce and promote competition
in the registration of domain names where practicable and beneficial in the
public interest. (Bylaws, Section 2) In this respect, ICANN views new gTLDs
as important to fostering choice, innovation and competition in domain
registration services (Applicant Guidebook, Preamble).

Whereas we value the need for reasonable protection of legal rights, such
protection must always be balanced with the capacity to innovate.
Overregulation kills innovation, certainly when protection mechanisms are
one-sided, aiming to protect one category of rights at the expense of other
legitimate rights (that often prevail in many jurisdictions over the rights
that the draft RPMs seek to protect). If trademarks receive protection over
other rights in every single new gTLD through a strictly regulated launch
phase, this would seriously impede the opportunity for registry operators
to make innovative uses of their gTLDs. It would unjustifiably limit the
possibility to compete with innovative and creative service offerings and,
thus, limit competition.

We are of the opinion that it feasible and appropriate for ICANN to depend
on market mechanisms to promote and sustain a competitive environment,
while making sure that the rights of trademark holders are protected. In
order to protect the rights of trademark holders, there is no need for
ICANN to intervene in the launch scenarios by limiting the possibility for
registry operators to create RPMs to be used in conjunction (or prior to)
the minimum RPMs designed by ICANN.


Valérie de Brem
Secrétaire Générale Adjointe, City of Paris