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

[Tim Ruiz <tim@xxxxxxxxxxx>]

Again, I think this question falls under *opinion* and all such
questions should be separated from those intended to collect facts -
facts we can use to complete the empirical data we have already
collected.



I have no strong opinion one way or the other about Mike's suggested
question. But will offer a possible revision:



--------------------

Do IP owners need new intellectual property rights or enhanced
protection of rights in cyberspace compared to the protection that
exists in the real world? [Yes/No/No Opinion]



If Yes, should registries be mandated to provide such enhanced
protections during the introduction of new gTLDs? [Yes/No/No Opinion]



Comments/Explanation: [open text field]

--------------------





Tim Ruiz

Vice President

Corp. Development & Policy

The Go Daddy Group, Inc.

 



 -------- Original Message --------

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

version ONLY

From: "Michael D. Palage" <Michael@xxxxxxxxxx>

Date: Wed, April 11, 2007 7:50 am

To: <gnso-pro-wg@xxxxxxxxx>



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

 

 

 

 This message is from a law firm and may contain information that is

 

 confidential or legally privileged. If you are not the intended

 

 recipient, please immediately advise the sender by reply e-mail that

 

 this message has been inadvertently transmitted to you and delete this

 

 e-mail from your system. Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 -------------------------

 

 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