RE: [gnso-dt-wg] Need for Statement that AGP is Not Intended to Preempt ACPA Safe Harbor

["Rosette, Kristina" <krosette@xxxxxxx>]

I didn't say we should, and specifically didn't identify who should b/c
I don't have the answer to that.  
 
We don't know that for certain anyone in the group did.  It's
theoretically possible that the registrar in question participated in
the registrar poll, I suppose. 
________________________________

From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx] 
Sent: Wednesday, October 03, 2007 11:05 AM
To: Rosette, Kristina; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Need for Statement that AGP is Not Intended to
Preempt ACPA Safe Harbor



        Kristina,

         

        Why should we do this?  Who in this group at any time argued the
exception to the ACPA?

         

        I would strongly oppose adding this to our report.

         

        Jeffrey J. Neuman, Esq. 
        Sr. Director, Law, Advanced Services  & 

        Business Development 

        NeuStar, Inc. 
        e-mail: Jeff.Neuman@xxxxxxxxxx <mailto:Jeff.Neuman@xxxxxxxxxx>  

        
________________________________


        From: owner-gnso-dt-wg@xxxxxxxxx
[mailto:owner-gnso-dt-wg@xxxxxxxxx] On Behalf Of Rosette, Kristina
        Sent: Wednesday, October 03, 2007 10:52 AM
        To: gnso-dt-wg@xxxxxxxxx
        Subject: [gnso-dt-wg] Need for Statement that AGP is Not
Intended to Preempt ACPA Safe Harbor 

         

        All, 

        The following sentences appear in a preliminary injunction order
that was recently entered by a federal judge in California against an
ICANN-accredited registrar:

        Indeed, Defendant effectively treats the five-day "Add Grace
Period" under ICANN as a five-day safe harbor in which it is able to
infringe Plaintiffs'' marks until the newly registered domain names have
been "trademark scrubbed" and potentially infringing domain names have
been cancelled.  Defendant has provided no authority in support of its
suggestion that the "Add Grace Period" available under ICANN preempts
the ACPA [AntiCybersquatting Consumer Protection Act].  Nothing in the
ACPA suggests that confusingly similar domain names may be registered in
the first instance as long as they are cancelled within five days.
Although the ACPA has a safe harbor provision, that provision is only
intended to protect defendants who had reasonable grounds to believe the
use of an infringing domain name was a fair use or otherwise lawful.  15
U.S.C. 1125(d)(1)(b)(ii).  Absent statutory language or otherwise
persuasive authority, the Court, at least at this stage, will not
construe the ICANN "Add Grace Period" as an additional exception to the
ACPA."

        -*- 

        Regardless of where this group comes out on Terms of Reference
and where the Council ultimately comes out on starting a PDP, I
recommend that a statement be issued that the Add Grace Period is not -
and was never intended to - preempt the ACPA safe harbor.  This is NOT a
public perception that ICANN wants to foster or encourage, or be
perceived as fostering or encouraging.

        Kristina