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Proposed GNSO Top Level Implementation Plan

  • To: <gnso-tlp@xxxxxxxxx>
  • Subject: Proposed GNSO Top Level Implementation Plan
  • From: "Konstantinos Komaitis" <k.komaitis@xxxxxxxxxxxx>
  • Date: Thu, 10 Jul 2008 16:35:45 +0100

Dear Sir/Madam,

First of all, the main issue is that once again ICANN is getting involved in 
policy-making decisions that fall outside its remit. Especially, I feel, that 
this latest decision of the Board will have serious implications upon long 
standing principles of law. The new scheme opposes the traditional and 
territorial nature of trademark law and creates an equivalent of a 'Treaty' 
Agreement without going through the necessary channels. The new proposal will 
allow trademark owners, and especially the one holding 'strong' marks, to 
automatically acquire international protection over their marks overstepping 
the requirements of acknowledged and international agreements, like the Paris 
Convention. What I am trying to say here is that basically this proposal seems 
to be working at the behest of the trademark community and not really 
protecting or providing any leverage to domain name holders.
In relation to this point there is another concern as to which entity will be 
dealing with potential disputes that might arise. If the rumors are true and I 
quote a statement by Mrs. Valente that disputes will be handled by "an 
international organisation with experience in IP" then once again ICANN is 
creating an elitist system, which is addressed solely to the intellectual 
property community. Any such entity will seek to protect the interests of 
intellectual property constituencies, which means that domain name holders will 
find themselves trapped.
This decision of the ICANN Board will re-shape the face of trademark law. First 
of all, what will be the issue with generic name registrations. Will they be 
allowed - if so such an action will completely oppose the genericness doctrine 
of trademark law. Moreover, only a handful of trademark owners will be able to 
register and make proposals for new gTLDs - namely those who will be able to 
afford to pay the fee. This is elitist and procedurally unfair since it fails 
to provide the same opportunities to all parties concerned.
There are also questions which ICANN has not answered. What will happen in case 
two application concerning similar or the same gTLDs come before these panels? 
Which criteria will then be used for choosing who should become the registry?
Finally, the new proposal does not take into consideration the domain name 
applicant's freedom of expression rights , which, according to Mr.Pritz they 
fall outside the scope of this proposal. How is this possible and what about 
the GNSO's principle G to protect the applicant's freedom of expression rights? 
Moreover, another problem with ICANN staff's implementation plan is to 
auction-off of the most sought after domain names and hold 'beauty contests' in 
order to decide who gets what and which applicant 'provides more value to the 
DNS'. ICANN is by no means assigned to perform such a task and it falls outside 
the administration of the DNS. It is more a content related aspect. At the same 
time, ICANN has failed to provide input as to the criteria that will be used to 
determine what 'value' means.  

Dr. Konstantinos Komaitis,

Lecturer IT & T Law,
University of Strathclyde,
The Law School, The Stenhouse Building,
170 Cathedral Street,
Glasgow, G4 0RQ

email: k.komaitis@xxxxxxxxxxxx
tel: +44 (0)141 548 4306

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