RE: [gnso-pro-wg] Updated survey: Please comment on this version ONLY

["Michael D. Palage" <Michael@xxxxxxxxxx>]

Kristina,

As the former Chair of Working Group B which was tasked with this
similar task back in 1999 I fully appreciate the rather thankless and
difficult job that you are facing, and I commend you on your efforts as
such a new participant to the ICANN process.

In an effort to make the best out of the given situation, I think the
questionnaire is missing one rather important question and that is one
that I previously circulated to the group:

Should registries provided IP owners new intellectual property rights or
of enhanced protection of rights in cyberspace compared to the
protection that exists in the real world? [y/n]

I think this question needs to be included prominently at the top of the
questionnaire, because it was an important principle in both the WIPO I
and II processes. See for example the following excerpts from the WIPO
Reports:

Paragraph 34. It is further recognized that the goal of this WIPO
Process is not to create new rights of intellectual property, nor to
accord greater protection to intellectual property in cyberspace than
that which exists elsewhere. Rather, the goal is to give proper and
adequate expression to the existing, multilaterally agreed standards of
intellectual property protection in the context of the new,
multijurisdictional and vitally important medium of the Internet and the
DNS that is responsible for directing traffic on the Internet

WIPO Report I,
http://www.wipo.int/amc/en/processes/process1/report/finalreport.html

Excerpt Paragraph 285: A recommendation to adopt such measures
consequently would be a departure from one of the fundamental principles
underlying the Report of the first WIPO Process, namely, the avoidance
of the creation of new intellectual property rights or of enhanced
protection of rights in cyberspace compared to the protection that
exists in the real world.

WIPO Report II, see
http://www.wipo.int/amc/en/processes/process2/report/html/report.html

As Avri can attest, this principle was very important to the discussions
within the recent geographical and geopolitical reserved names working
group.

As I tried to articulate yesterday, as the original author of the
Sunrise concept back in Working Group B, and as someone that has been
directly involved in the launch of both the .INFO and .MOBI TLD that
have used the Sunrise process, I have genuine concerns about the views
of the members within the community that believe that the Sunrise
mechanism should be mandated or strongly encouraged. Although there are
potential scenarios where a Sunrise can be a viable mechanism for the
launch of a TLD, the use of this mechanism should be left to the
discretion of the registry operator. More importantly, any attempts by
the group to advocate a mandatory Sunrise process will only further
promote gaming and undermine its viable as a rights protection
mechanism. 

That is why the question I poses above is based upon the principle
articulated in both the WIPO I and II reports should be included
prominently at the top of the current questionnaire. 

Best regards,

Michael D. Palage



-----Original Message-----
From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx]
On Behalf Of Rosette, Kristina
Sent: Wednesday, April 11, 2007 7:23 AM
To: tim@xxxxxxxxxxx; Rosette, Kristina
Cc: Jeff.Neuman@xxxxxxxxxx; liz.williams@xxxxxxxxx;
gnso-pro-wg@xxxxxxxxx
Subject: Re: [gnso-pro-wg] Updated survey: Please comment on this
version ONLY


Tim, 

You're right about timing.  I was calculating from when I sent it on the
1st instead of when it actually made it to the list, which took about a
day.  That doesn't change the fact that we've been discussing the idea
for a month.

I suggest we call it a questionnaire, which more accurately captures the
informality of its design, scope and purpose.  Calling it a survey has,
understandably, brought along certain assumptions about its design,
scope and purpose.

Delaying it makes sense only if there will be active proposal of
questions and discussion.  I encourage everyone who wants to propose
questions to do so.  It would probably be useful if each question was
accompanied by a short (very, 2-3 words if possible) explanation for
inclusion.

Kristina
Kristina Rosette
Covington & Burling LLP
1201 Pennsylvania Avenue, N.W.
Washington, DC  20004-2401
voice:  202-662-5173
direct fax:  202-778-5173
main fax:  202-662-6291
e-mail:  krosette@xxxxxxx

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-------------------------
Sent from my Wireless Handheld




----- Original Message -----
From: Tim Ruiz <tim@xxxxxxxxxxx>
To: Rosette, Kristina
Cc: Neuman,Jeff <Jeff.Neuman@xxxxxxxxxx>; Liz Williams
<liz.williams@xxxxxxxxx>; gnso-pro-wg@xxxxxxxxx <gnso-pro-wg@xxxxxxxxx>
Sent: Wed Apr 11 00:49:03 2007
Subject: RE: [gnso-pro-wg] Updated survey: Please comment on this
version ONLY

Kristina, with all due respect, the draft survey was not posted until
the 2nd. That's 8 days not 10. And 5 of those days included the ICANN
meeting during which many of us had other responsibilities. We are all
volunteers afterall. 
 
While I understand that we have a timeline, it is also important that
the data we collect from the survey has integrity and is useful.
Otherwise I see no point in doing it, or how it could be referred to at
all in any final report.
 
We very well may be able to agree on a form of survey by EOD Thursday.
But if not, we should take the additional time necessary to get there or
decide not to do it.


Tim Ruiz
Vice President
Corp. Development & Policy





        -------- Original Message --------
        Subject: RE: [gnso-pro-wg] Updated survey: Please comment on
this
        version ONLY
        From: "Rosette, Kristina" <krosette@xxxxxxx>
        Date: Tue, April 10, 2007 11:03 pm
        To: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>, "Liz Williams"
        <liz.williams@xxxxxxxxx>, <gnso-pro-wg@xxxxxxxxx>
        
        
        Hello Jeff,
        
        
        
        First, and most importantly, congratulations!
        
        
        
        Thank you for posting these comments, many of which are
extremely
        
        helpful. I will be in meetings for almost the entire day
tomorrow, which
        
        is why I'm replying by email; otherwise, a call would be ideal
as the WG
        
        calls to discuss the survey have been very productive.
        
        
        
        We agreed during our call today that additional work needs to be
done,
        
        which is why the revised survey was distributed and comments
have been
        
        requested by Thursday morning EST.  Unfortunately, given our
reporting
        
        deadlines, we really cannot delay it any longer.  We recognize
that you
        
        have had other demands on your time over the past few weeks.
However,
        
        we have been discussing the possibility of a survey for quite
some time,
        
        two representatives of the Registry Constituency were present at
the WG
        
        meeting in Lisbon during which we brainstormed as to questions,
the
        
        first draft of the survey was posted to the entire list 10 days
ago, and
        
        it was the sole subject of last week's meeting.  In short, given
our
        
        time constraints, there have been numerous opportunities for WG
members
        
        and observers to propose questions, review proposed questions,
and
        
        otherwise comment.
        
        
        
        We have not consulted with a professional survey organization
because
        
        the "survey" is not intended to accomplish the same goals as a
"true"
        
        survey, but is intended more as an information-gathering
exercise to
        
        obtain informal input from stakeholders.  We discussed this very
issue
        
        in our last call and agreed to include the language in the
header of the
        
        survey:  "The survey is not designed to meet strict data
gathering
        
        standards but will be used to provide some baseline information
from
        
        which additional work may be developed."   As I would likely
omit
        
        something from my summary of our purpose in preparing and
distributing
        
        the survey, you may want to listen to the recording of that call
for the
        
        entire discussion.
        
        
        
        My specific comments are below:
        
        
        
        Definitions.
        
        
        
        IP Claim:  Thank you for adding a definition for IP Claim.
Because the
        
        WG member who agreed to prepare the .biz TLD summary never did
so and I
        
        could not locate the .biz Proof of Concept report during our
call, we
        
        had nothing to draw from.  I propose, however, that we use
instead the
        
        IP Claim definition in the .biz Proof of Concept report (which
I've
        
        copied below for the list's convenience) or, if you prefer, a
slightly
        
        modified version that provides an illustrative list of the types
of IP
        
        rights on which an IP Claim could be based, which would allow
greater
        
        parallel to the Sunrise definition.
        
        
        
        "Intellectual Property Claim (used in Phase 1 of .biz launch),
also
        
        referred to as "Trademark Claim Form" in the .biz Registry
Agreement.
        
        Established to help individuals and companies protect their
trademarks
        
        and service marks during the launch of the .biz TLD by enabling
them to
        
        stake a claim to a domain name prior to the commencement of
service and
        
        live registrations."
        
        
        
        STOP:  Because some questions refer specifically to STOP
Proceeding, it
        
        would be easier for those persons not familiar with our jargon
if we
        
        included a separate definition.  Again, I propose we use the
definition
        
        from the .biz PoC report, modified to past tense:
        
        
        
        STOP: Start-up Trademark Opposition Policy (referred to as the
Start-up
        
        Uniform Dispute Resolution Policy, or SUDRP, in the .biz
Agreement). All
        
        disputes between an IP Claimant and a domain name Registrant
regarding
        
        the registration of a .biz name are decided under the Start-Up
Trademark
        
        Opposition Policy (STOP), a unique dispute resolution solution
that is
        
        similar to the UDRP and RDRP, but with a lower burden of proof
for
        
        intellectual property owners. STOP was available only to
intellectual
        
        property owners who enrolled in NeuLevel's IP Claim Service.
STOP
        
        allowed a Claimant to prevail where he or she demonstrates that
a domain
        
        name was either registered in bad faith or used in bad faith.
        
        
        
        Sunrise:  I believe the "original" definition, which was
discussed at
        
        length during the call, is more accurate, but I defer to our .eu
        
        experts.  
        
        
        
        Question 3 (numbers are those in Liz's version):  According to
my notes,
        
        we anticipated that even those successful in getting a name in a
        
        particular TLD may not believe the RPM for that TLD was
adequate.  We
        
        could certainly include a separate field for comment instead of
trying
        
        to cram it into the current question.  Would that help?
        
        
        
        Questions 5-8:  These questions are a principal reason why we
extended
        
        comment on the survey; you've definitely identified a problem
area.  For
        
        example, some WG members were going to propose additional
categories for
        
        question 8; we also discussed adding a question whether RPM
should not
        
        cover any of the rights listed in #5.  Also, personal names and
entity
        
        names are generally not considered unregistered trademarks in
civil law
        
        countries.  
        
        
        
        Question 9:  Your point about lawyers is a good one; we've
covered it
        
        more broadly in question 1.
        
        
        
        Question 10:  This came up today, and your question indicates
        
        clarification would definitely be helpful.  My notes aren't
clear, but I
        
        recall this question was intended to get at whether the parties
could
        
        have resolved the dispute through another means.
        
        
        
        Question 12:  Your revision raises a good point, but we tried to
avoid
        
        presumptions about the content of future Sunrise.  In that
context,
        
        would this be an acceptable revision:  In the event a Sunrise
Process is
        
        used by a future gTLD, how do you believe domain names within
that TLD
        
        should be allocated if there are multiple persons or entities
eligible
        
        for a Sunrise registration for a particular domain name?
        
        
        
        Question 13:  Again, a good point.  Would the WG member who
proposed
        
        this question respond with some suggested wording that would
clarify?
        
        
        
        Question 18:  While I suspect NeuStar's defensive registration
        
        distribution is far from unique, the WG Statement of Work
outline
        
        specifically calls for a discussion of "new issues that may have
        
        developed" as a result of the introduction of RPM.   One key
issue
        
        identified by many IP owners is an increase in defensive
registrations.
        
        If we were also intended to  cover .com, etc. than I would agree
with
        
        including those TLDs, but we are not.  
        
        
        
        Questions 20-21:  The fact that we do not have many
        
        implementation-specific questions has been raised repeatedly by
many,
        
        including me.  The absence is solely attributable to the
participation
        
        point I initially noted.  Additional registry- and
registrar-specific
        
        questions are absolutely welcome, but they will need to be
posted to the
        
        list for comment within the timeframe we've got to work with.
        
        
        
        Questions 23-24:   The WG SoW doesn't limit us to past
pre-launch
        
        mechanisms.  I think we need to be open to alternative
mechanisms and
        
        these questions are, I believe, intended to informally seek
reaction to
        
        another alternative. Other alternatives could certainly be
included and
        
        these alternatives were the only ones put forth in connection
with the
        
        drafting process. Perhaps another way to approach these
questions and
        
        mechanisms would be to develop a list of possible alternatives
and have
        
        participants rank them or tick the box for those that they may
be
        
        willing to support.  Suggestions anyone?
        
        
        
        Questions 27-28:  These questions are not intended to presuppose
a
        
        Sunrise mechanisms.  As I understand them, they are intended to
propose
        
        a solution to certain structural objections (for lack of a
better
        
        phrase) associated with Sunrise processes implemented to date.
To the
        
        extent that the IP Claim process implementation generated
certain
        
        structural objections, questions that are intended to propose
solutions
        
        to those objections are definitely welcome.
        
        
        
        I look forward to your comments.
        
        
        
        Sincerely yours,
        
        Kristina 
        
        
        
        
        
        
        
        
        
        -----Original Message-----
        
        From: owner-gnso-pro-wg@xxxxxxxxx
<https://email.secureserver.net/pcompose.php?aEmlPart=0&type=replyall&fo
lder=INBOX&uid=91891#Compose>  [mailto:owner-gnso-pro-wg@xxxxxxxxx
<https://email.secureserver.net/pcompose.php?aEmlPart=0&type=replyall&fo
lder=INBOX&uid=91891#Compose> ]
        
        On Behalf Of Neuman, Jeff
        
        Sent: Tuesday, April 10, 2007 6:21 PM
        
        To: Liz Williams; gnso-pro-wg@xxxxxxxxx
<https://email.secureserver.net/pcompose.php?aEmlPart=0&type=replyall&fo
lder=INBOX&uid=91891#Compose> 
        
        Cc: Neuman, Jeff
        
        Subject: RE: [gnso-pro-wg] Updated survey: Please comment on
this
        
        version ONLY
        
        
        
        All,
        
        
        
        Please find enclosed some comments I have on the survey.  Again,
I
        
        apologize I could not have joined in person, but I am available
after
        
        today.
        
        
        
        There are a number of issues with the proposed survey and I
think work
        
        still needs to be done.  There are lots of undefined terms and
questions
        
        that I believe are not likely to lead to objective results.
Have we
        
        consulted with any professional survey organizations that could
help us
        
        develop a truly objective and meaningful survey?
        
        
        
        
        
        I am available to discuss my comments at any time.
        
        
        
        Thanks.
        
        
        
        
        
        
        
        Jeffrey J. Neuman, Esq. 
        
        Sr. Director, Law, Advanced Services  & Business Development 
        
        
        
        NeuStar, Inc. 
        
        
        
        
        
        
        
        -----Original Message-----
        
        From: owner-gnso-pro-wg@xxxxxxxxx
<https://email.secureserver.net/pcompose.php?aEmlPart=0&type=replyall&fo
lder=INBOX&uid=91891#Compose>  [mailto:owner-gnso-pro-wg@xxxxxxxxx
<https://email.secureserver.net/pcompose.php?aEmlPart=0&type=replyall&fo
lder=INBOX&uid=91891#Compose> ]
        
        On Behalf Of Liz Williams
        
        Sent: Tuesday, April 10, 2007 3:46 PM
        
        To: gnso-pro-wg@xxxxxxxxx
<https://email.secureserver.net/pcompose.php?aEmlPart=0&type=replyall&fo
lder=INBOX&uid=91891#Compose> 
        
        Subject: [gnso-pro-wg] Updated survey: Please comment on this
version
        
        ONLY
        
        
        
        
        
        The deadline for any additional comments by noon UTC Thursday 12
April.
        
        Sooner is better.
        
        
        
        I will send this out by COB Brussels time Thursday 12 April.  I
will try
        
        to have it posted to ICANN's public participation site and have
it
        
        distributed through to the various lists.
        
        
        
        Liz
        
        .....................................................
        
        
        
        Liz Williams
        
        Senior Policy Counselor
        
        ICANN - Brussels
        
        +32 2 234 7874 tel
        
        +32 2 234 7848 fax
        
        +32 497 07 4243 mob