Re: [gnso-vi-feb10] VI in practice, Rights Protection Mechanisms, Registry Agreements and Variants of TLDs

[Avri Doria <avri@xxxxxxx>]

Hi,

While many of us want to protect consumers, not all of us, myself included, see 
the euphemistically  "rights protection mechanisms' as protecting many 
people's, including consumers, rights.  It is all well and good for IPR 
advocates to think of it this way, but we should not all be asked to presume 
that IPR is really intended primarily for consumer protection.

This is not to say that it is illegitimate for IPR people to fight for IPR 
interests I would hope, however, that the small contribution IPR may make to 
consumer protection or to the people's right to communication is not seen as a 
replacement for the real rights of consumers, registrants, Internet users and 
those who want to use the Internet to create new opportunities for the people 
of developing regions and of suppressed communities.

On the blocking example provided, it is clever, I will admit.  But since a 
single registrant could not transfer such a name, the only remedy that could be 
offered would seem to be to take it down and block its further usage.  It is 
well know that the UDRP needs fixing, so if this facet also needs to be fixed 
as well, it can be - we have more then a year in which to fix any of the 
inconsistencies that true reform might cause in any of the ancillary policies.  
so while they should be noted, they should not be sen as blocking.

a.


On 1 Apr 2010, at 19:38, Frederick Felman wrote:

> All - 
>> 
> In a business discussion of single-registrant/branded TLD registries we came 
> upon an interesting but very plausible case that underscores the complexity 
> of TLDs and the importance of getting Vertical Integration (VI) right in the 
> context of rights protection mechanisms and registry agreements. Here’s the 
> situation:
> 
>       • Brand is a company that is granted a single-registrant TLD for their 
> own internal purposes.
>       • Brand registers CompetitiveTrademark.Brand in their registry
>       • CompetitiveTrademark holder files a UDRP against Brand and wins
>       • CompetitiveTrademark holder demands transfer of 
> CompetitiveTrademark.Brand
>       • Brand offers CompetitiveTrademark.Brand to CompetitiveTrademark 
> holder for a very high registration fee (say $1MM++/year)
> 
> CompetitiveTrademark holder might have used URS (if it were approved and 
> implemented) but they’d then need to invoke this administrative procedure 
> annually.
> 
> If Brand transfers the name, they are no longer a single registrant TLD and 
> no longer fall into that category of exceptions.  If Brand leased or rented 
> that name to another and it was governed under a separate agreement Brand 
> would then have other contractual issues.
> 
> The current state of how registries & registrars work together to service the 
> public within existing TLDs is well understood and is largely functional — 
> and to a certain degree there are protection mechanisms that are able to 
> remediate disputes within that system, though many might argue to what degree 
> (MarkMonitor included).  Substitute IndividualName for CompetitiveTradeMark 
> and one can see how changes to these relationships jeopardize the state of 
> equilibrium in this system and may cause chaos that could harm consumers and 
> businesses.
> 
> I recommend that one of the subgroups of this working group focus on VI 
> models, abuse and whether proposed registry agreements and rights protection 
> mechanisms will function within the proposed models.
> 
> - Fred