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RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting

  • To: "Tim Ruiz" <tim@xxxxxxxxxxx>, "Smith,Kelly W" <kelly.w.smith@xxxxxxxxx>
  • Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting
  • From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
  • Date: Tue, 15 May 2007 17:58:19 -0700

Currently, as far as I know, registries and registrars are the only
businesses in the world who purport to charge any other entity to
complain that the first party is or likely will be infringing or
materially contributing to the infringement of the second party's legal
rights.  That needs to stop, and eventually logic will prevail and it
will stop, through policy, legislation and/or litigation.  The hope was
that ICANN stakeholders could agree to some binding policy rather than
pursue other avenues.


As a potential political compromise up to this point, realizing how long
the registries and registrars have been benefiting so nicely from this
reality, I have been willing to accept that maybe they could seek to
recover up to half of their costs of this from complaining parties.
This I thought generous, and despite the fact that every other business
in the world must provide these complaint mechanisms as a cost of doing
business, and accordingly charge their customers more.  Registries and
registrars should do that too, their customers benefit from a cleaner
domainspace and so do the registration providers.  These businesses
certainly should not be arguing that rights protection mechanisms should
be a profit center for themselves.  They even seem unwilling to agree to
a general policy principle that their pricing should be reasonably based
on their costs?  


Unreasonable, unjustified costs will lead to less adoption of any rights
protection mechanism, therefore to more abusive registrations.  Abusive
registrations have high social and financial cost to the public and
impose higher litigation costs upon businesses.  Registries and
registrars need to accept more of the burden of minimizing abusive
registrations which they enable and profit from, and need to spread that
cost among their registrants, rather than seeking to profit from rights
protection mechanisms.


I support this as principle/policy stmt #7:


The fees charged by a gTLD for participation in its RPM MUST be
reasonably close to their actual or expected costs.


I also support Kelly and Avri's other principles as stated.


Mike Rodenbaugh

Sr. Legal Director

Yahoo! Inc.


NOTICE:  This communication is confidential and may be protected by
attorney-client and/or work product privilege.  If you are not the
intended recipient, please notify me by reply, and delete this
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From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx]
On Behalf Of Tim Ruiz
Sent: Tuesday, May 15, 2007 1:51 PM
To: Smith,Kelly W
Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx
Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's


Currently, Registries are not required to justify most of their price
increases, and in fact, make no justification for their existing prices
whatsoever. I would be interested in knowing what basis or precedent
there is for any holder of legal rights of any kind to expect special
treatment and require justification of or a basis for Registry pricing
from new gTLD entrants. I propose this alternative language for #7:


gTLD registry operators MAY charge fees for participation in its RPM.
The amount of such fees MUST be at the gTLD registry operator's sole


Also, many of the suggested *principles* (which are actually proposed
policies) use the phrase Prior Rights. The SOW uses the phrase legal
rights. There is a considerable difference. The latter does not, IMHO,
refer solely to the rights of TM holders, famous names, etc. Whereas the
implications of Prior Rights as is used in most of these policy
statements implies that distinction. I propose that all suggested
principles/policy statements use the phrase Legal Rights instead of
Prior Rights to be consistent with our SOW.



-------- Original Message --------
Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
From: "Smith, Kelly W" <kelly.w.smith@xxxxxxxxx>
Date: Tue, May 15, 2007 3:13 pm
To: "Rosette,  Kristina" <krosette@xxxxxxx>,  <gnso-pro-wg@xxxxxxxxx>

I propose the following alternative language for principle #7 (new
language in red): 
The fees charged by a gTLD for participation in its RPM SHOULD be
reasonable and each gTLD applicant MUST identify in its application the
basis of its fee calculation. on which it anticipates charging fees.  

I propose the following language regarding validation (revised from #8,
which we did not agree on).  If we cannot reach agreement, I believe
this at least has support:

The Prior Rights on which a party bases its participation and seeks to
protect in an RPM SHOULD be subject to actual validation, at least if
the validity of such rights is challenged validated.  

I propose the following new principle (based on the questionable
inclusion of U.S. registrations as a rights basis in the .asia launch),
and am happy to hear suggestions regarding alternative language:

To the extent a gTLD is intended for/targeted to a particular geographic
region, the Prior Right on which a rights owner bases its participation
in the RPM SHOULD originate from the laws of a country in that region.

Finally I agree with Avri's comments concerning applicability to IDNs,
and perhaps we can use this language, as the final principle:

The aforementioned principles should equally apply to both ASCII/LDH
TLDs and IDN TLDs. 

Kristina, let me know if you'd like me to reflect these in a further
redline, or if you'll be collecting everyone's comments into a new
version before the call tomorrow.


Kelly Smith 
Intel Corporation 

From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx
<mailto:owner-gnso-pro-wg@xxxxxxxxx> ] On Behalf Of Rosette, Kristina 
Sent: May 14, 2007 2:29 PM 
To: gnso-pro-wg@xxxxxxxxx 
Subject: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting 



Attached is an updated proposals chart that reflects the discussion
today.  I have also attached a redline.  As you will see, I have
indicated the current level of support (based on my notes) for the
proposals we discussed and as we discussed revising them.  Please review
them and let me know ASAP if I have mischaracterized the "revised"
proposal and/or the level of support.  

Tim, once you've had a chance to review, would you please post whether
any of these specific points could be used instead of your principles
1-6?  I will create a consolidated proposals chart shortly before our
call on Wednesday.


<<Redline PRO WG Proposals Chart.DOC>> <<05142007 PRO WG Proposals

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