Some More Comments
As an observation, many of the solutions recommended by the IRT were suggested in the 2007 Protecting the Rights of Others Working Group. Questions were raised then that the PRO WG was not representative of the community and that the participants were overreaching to carve out rights of trademark owners.
The IRT needs to overcome this through extensive & open consultations. I understand these are scheduled beginning with the Sydney meeting.
IP ClearinghouseThe creation of an IP Clearinghouse will create a potentially huge contract for tender by ICANN. The retention of the IP Clearinghouse provider should be follow a procurement process with a publication of a Statement of Work or call for expressions of interest. This contract will create a market for an IP clearinghouse provider.
Should there be only one provider of this service to the community?Does the Clearinghouse provider become a “contracted party” and would the provider be able to participate in the contracted party house of the GNSO for policy development?
Does the Clearinghouse provider need to follow data escrow requirements, and should the Clearinghouse provider have to provide a continuity plan to ICANN as part of its agreement to manage the clearinghouse service?
GPMLThe creation of a GPML should avoid gaming and abuse. A large number of challenges filed in the .INFO Sunrise and .BIZ STOP process (using their IP Claims service) involved arguably generic terms at the second level.
As George pointed out in his submission, the trademark system itself can be gamed - take a look at some of the .eu ADR decisions for examples
It seems that it may be easier to administer such a list for the top- level than the second-level.
The Report states that “the GPML applicant should not be required to apply for a gTLD corresponding to its applied-for GPM as a condition of inclusion on the GPML. The IRT has considered this issue and decided against it. Because of the multiple factors associated with applying for a new gTLD (not the least of which is the $185,000 application filing fee), the IRT does not believe that such a requirement would be fair.”
ICANN should consider stating explicitly that trademark owners should not be obligated to apply for a TLD for defensive purposes. The Guidebook provides Objection mechanisms and recommendations for dealing with the overarching issues of trademarks should address these concerns.
Watch NoticeIt seems that this service is something close to what is provided by a number of trademark watch services in the market today, and attaching it to the IP Clearinghouse will compete with those services.
Post-Delegation Dispute MechanismAs drafted, the post-delegation dispute mechanism puts a huge burden on a registry to police registrations in a way that may be cost- prohibitive. Brand owners have been pushing for registry liability, this seems extreme.
URSThe final IRT Report should include an updated chart to illustrate the URS process flow. The current chart is confusing. The other thing that has been mentioned by several people is that the proposed URS makes a subtle, yet significant change to the process currently in place under the WIPO UDRP. Changing "and" to "or" is not simply a grammatical change!
Thick WHOISI've already commented on this, but after discussing this with colleagues I'd add the following. The IRT recommendation for Thick WHOIS as implemented by the .BIZ and .INFO registries could be put forward for incorporation into the next version of the Guidebook, but the IRT should also recognize that variations may occur depending on local law (Telnic is one example). In other words, the data that is displayed to the public vs. the data that is actually captured is something that needs to be clarified. As I already stated, I would have huge issues with the display of personally identifiable data without there being safeguards in place. The .tel implementation is very sane and balances individual's rights to privacy with law enforcements requirements
I note that the IRT has not raised issues around internationalization of registration data or use of other protocols such as IRIS or CRISP.
Appendix A notes that Thick WHOIS works with IDNs, but this is statement may not be entirely accurate.
The establishment of a central, Universal WHOIS is not described in sufficient detail. How would issues of local law be addressed?
String Confusion AlgorithmIt would be helpful for some examples of how this might be applied, as envisioned by the IRT.
The IRT seems to be attributing more to the string confusion algorithm than can be practically accomplished.
Mr Michele Neylon Blacknight Solutions Hosting & Colocation, Brand Protection http://www.blacknight.com/ http://blog.blacknight.com/ http://mneylon.tel Intl. +353 (0) 59 9183072 US: 213-233-1612 UK: 0844 484 9361 Locall: 1850 929 929 Fax. +353 (0) 1 4811 763 -------------------------------Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
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