EURALO statement on the IRTP report

[Patrick Vande Walle <patrick@xxxxxxxxxxxxxx>]

This statement has been discussed by the whole At-Large community. A
similar version will be submitted to the ALAC for ratification in the
next few days.  However, due to the short deadline for submitting
comments to the IRT team, the Euralo submits this statement on its own
behalf, ahead of the ALAC statement.

The Euralo recognizes the large amount of work done in a very short time
by the IRTP working group and thanks the working group for this first
step. We are also appreciative of the need to minimize name confusion,
as well as forms of abuse such as phishing. However, we have significant
concerns about the process that created the IRTP, as well as what we
believe to be needless haste in its action.

The entire new-gTLD policy development process has been deliberately
cautious, with multiple drafts of the application guide and associated
comment periods. There is no legitimate reason for the extremely short
time given to submit comments, which fails to offer adequate time for
analysis.

Furthermore, we regret that no representatives of the individual users,
domain name registrants or consumers have been part of the drafting
group. We are aware of a number of qualified individuals who expressed
interest in participating in the IRTP but were summarily refused without
reason. The IRTP also had no representatives of the potential new gTLD
operators, the very groups that will be expected to implement the
policies resulting from this process.

The undue haste of the process, the refusal to include representatives
from the stakeholders to be affected by the IRTP's policies, and the
complete lack of transparency in the group's selection calls into
question the legitimacy of the group's conclusions. We expects that
future developments will be more inclusive of the entire ICANN community.

Notwithstanding the above concerns, the importance of the issues
concerned require a response from ICANN's At-Large community. We submit
the present draft of our comments to the IRTP, reserving the right to
submit an amended version once the Euralo has engaged in full
consultation with our community.

In addition. this report requires an in-depth legal analysis of the IRTP
recommendations by an independent third party to see how its
recommendations comply with relevant international conventions and
treaties, before ICANN commits to support the Globally Protected Marks
List proposal or the Uniform Rapid Suspension system.

IP Clearinghouse, Globally Protected Marks List and associated rights
protection mechanisms, and standardized pre-launch rights protection
mechanisms

Given our reservations expressed above, this section requires
significantly more input from all interested and affected stakeholders.
As it is proposed, the Globally Protected Marks List poses a significant
concern related to community-based gTLDs. We can see instances in which
that a community specific mark may be better known to local communities,
in which case it is the "global mark" that is the cause of end-user
confusion.

Uniform Rapid Suspension System (“URS”)

Again pending our reservations expressed above to the legality of the
proposed system, we believe much of its fairness will depend on the
implementation.

A 14 day notice is insufficient to allow individual domain name
registrants to react to complaints. In addition, we are concerned about
the method of deliver of the notice. The volume and nature of spam has
led to e-mail being unreliable as a means of communications for such
important notices. The validity of e-mail notifications that may be used
in subsequent legal proceedings may easily be challenged under most
jurisdictions. Therefore, we believe that any notification needs to be
done by registered or certified paper mail. If e-mail is being used at
all, it should be used as a backup to paper documentation, and must
implement the highest security standards, digitallly signing both
headers and content. This would greatly help both in bypassing spam
filters and as a legal proof.

As well, given the global nature of the Internet, suspension notices may
be ignored or misunderstood in good faith by recipients who do not
understand its language. Any such notices must be sent in the official
languages of the country of delivery, and include text (or a pointer to
text) in local language detailing their rights under the process.

The implementation of the URS "takedown" process is needlessly complex
and provides inadequate protection to registrants. At a minimum, the
right to take down a domain name must have a fixed expiry after its
registration (we recommend either 90 or 120 days). This process must be
used a tool to clean up unlawful registrations at launch, not for
routine trademark enforcement. At some point, registrants need to have
confidence that their names are theirs and will not be taken down by a
process such as this one. If the URS is intended to be more than such a
new-domain tool, it must go through the normal GNSO policy-development
process before implementation.

The current URS proposal does not indicate which mechanisms will be put
in place to guard against frivolous or other abuse of the process. The
policy must include substantive penalties and other disincentives to
minimize groundless or punitive threats.

Post delegation dispute resolution mechanisms at the top level

The Euralo has not had the time to review this part of the document.

Whois requirements for new TLDs

Our main concern is respect of privacy of the personal data of
individuals, as guaranteed under the laws of several countries. We are
surprised that the only reference to privacy in the report in the report
is about privacy as a (paid for) service. That the issue of privacy as a
legal or constitutional right has not even been examined, calls into
question the enforceability of these provisions. We encourage the IRPT
to investigate this matter further, with the assistance of stakeholders
with expertise on privacy issues, and especially compliance with EU
Directives 95/46/EC (Data Protection) and 2002/58/EC (privacy and
electronic communications), as well as the Commission decision
2000/520/EC (Safe Harbor Agreement).

Furthermore, the legal need for registrar and registry operators to
comply with local laws or international frameworks like the Safe Harbor
Agreement would in effect prevent such a public whois system from being
effective (see references above). As stated in other contexts before,
the Euralo believes that the current whois system does not offer the
functionalities needed to balance the right to the privacy of
individuals with the legitimate concerns of the IP rights holders.

Use of algorithm in string confusion review during initial evaluation

The Euralo reaffirms the position taken by the ALAC in its recent
comments on the new-gTLD Applicant Guide, that evaluation of string
confusion must be restricted to visual similarity, and not be
inappropriately enhanced to include "aural or meaning". This is a very
subjective area that would open the door to endless disputes.

Finally, we consider that the policies to be decided should be applied
to existing gTLDs, too. If they would be limited to the new gTLDs, this
would put them at a competitive disadvantage with the incumbents.