Some More Comments

["Michele Neylon :: Blacknight" <michele@xxxxxxxxxxxxx>]

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 Clearinghouse
The 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?
GPML

The 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 Notice

It 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 Mechanism

As 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.
URS
The 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 WHOIS

I'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 Algorithm
It 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/
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