Re: [gnso-sti] IPC Position Statement

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

At 06/11/2009 09:11 PM, McGradyP@xxxxxxxxx wrote:
> Ladies & Gentlemen of the STI:
>
> Attached please find the IPC Position Statement.  Have a great 
> weekend everyone.
> Regards,
> Paul
I have a few thoughts on the IPC statement, and on the GPML in 
particular, and I hope they will be taken in a positive way.
The comments are my own, and are not made on behalf of ALAC or At-Large.

The statement says "The Globally Protected Marks List should be 
restored to alleviate harm to serial victims of global 
cybersquatting. Based on objective criteria of global trademark 
registration and multiple UDRP and related decisions, the GPML is the 
only proposal that satisfies ICANN's commitment to address the 
problem of defensive registrations. The proposal is modest in that it 
does not preclude registration of domain names on the GPML list, but 
merely shifts the burden to the registrant to demonstrate at the time 
of application that its planned use would be in good faith and not a 
violation of the UDRP."
My following comments apply solely to the second-level registrations.

The GPML had a number of strong criticisms leveled against it during 
the various comment periods, and for this or other reasons, the Board 
chose not to include it in the staff proposals associated with DAGv3. 
So I suspect that requesting that it be reinstated as per the IRT 
report is a non-starter.
That being said, I accept that there is a problem that the GPML was 
trying to address. Compiling the list itself should not be 
controversial. In fact, it could streamline the IP Claims process in 
that the n (or n-hundred) individual registrations need not be echoed 
individually, but could be readily summarized. The real problem is in 
how the list is then used.
The IRT report says "There should, however, be a process by which a 
"blocked" domain name registration applicant should be permitted to 
ultimately register the initially-blocked name if it can demonstrate 
to a dispute resolution provider that its registration would be 
consistent with generally accepted trademark laws; namely, that its 
use of the domain name would not infringe the legal rights of the GPM 
owner. To overcome the block, the applicant must show that it has a 
right or legitimate interest in the initially blocked name."
The concept that a registrant will have to present a defence to a 
dispute resolution provider, at the cost of significant time and 
presumably money is not at all acceptable. It presumes guilt when 
there is no direct evidence of such, takes a 5-minute process and 
elongates it into weeks or months, and increases the cost from $10-20 
to at least hundreds of dollars.
The current IPC Position Statement says "The proposal is modest in 
that it does not preclude registration of domain names on the GPML 
list, but merely shifts the burden to the registrant to demonstrate 
at the time of application that its planned use would be in good 
faith and not a violation of the UDRP."
"at the time of registration" implies that what is envisioned is a 
process at that particular moment in time. The term "demonstrates" is 
not defined. If it means that the registrant must make a declaration 
that the domain will be used for valid purposes and is not a TM 
violation (that is, exactly what they must do with respect to the 
envisioned pre-launch IP Claims), I would likely consider this 
acceptable. If it is a process that takes considerable time and cost, 
then it is not.
More clarity in this statement might make the process acceptable to 
many of us, or at least allow clear statements of what is not acceptable.
And as an aside, I would suggest a new acronym as the "GPML" now 
results in a visceral reaction that cannot help its case.
Alan