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Registrar Constituency Position on IRT Draft Trademark Protection Report

  • To: "irtp-draft-report@xxxxxxxxx" <irtp-draft-report@xxxxxxxxx>
  • Subject: Registrar Constituency Position on IRT Draft Trademark Protection Report
  • From: "Clarke D. Walton" <clarke.walton@xxxxxxxxxxxxxx>
  • Date: Wed, 6 May 2009 20:28:53 -0400

May 6, 2009

Registrar Constituency Position on IRT Draft Trademark Protection Report


In May 2009, the Registrar Constituency ("RC") was asked to provide feedback 
regarding the Implementation Recommendation Team Draft Trademark Protection 
Report ("IRT Draft Report").  This Position Paper captures the overall 
sentiment expressed by the RC Members who provided feedback about this matter.  
Due to time constraints, however, no formal vote regarding this Position Paper 
was taken.


The RC commends the IRT for its balanced and thoughtful considerations of the 
various interests shared among ICANN stakeholders, including: trademark owners, 
registries, registrars, and registrants.  RC Members have, however, share a 
variety of concerns regarding the proposals contained in the IRT Draft Report.  
Although those concerns are too numerous to fully address in this Paper, the RC 
wishes to call attention to several concerns that appear to represent some of 
the most common among RC Members who have shared their views.  The RC also 
wishes to express its commitment to reviewing the next version of the IRT Draft 
Report, and possibly submitting more detailed comments at that time.

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

RC Members are particularly concerned about the concept of a Globally Protected 
Marks List.  Although some RC Members see how a Globally Protected Marks List 
may be useful, many RC Members are concerned about the possibility of 
non-fanciful marks (such as arbitrary marks with generic meanings like "apple" 
or "delta") receiving heightened IP protection without merit.

 1.  Uniform Rapid Suspension System ("URS").

Some RC Members generally support introduction of a URS System, while other RC 
Members object to it in its entirety.  There are a number of specific concerns 
raised by RC Members.  First, some RC Members are concerned, with the 
possibility that registrants may at times be responsible for paying fees to 
defend against complaints brought under the URS system.

Second, some RC Members seek clarification that in order for registrants to be 
subject to a URS proceeding, the registrant must have an active website that 
allegedly infringes a trademark owner's rights; the mere registration of a 
trademarked name should not be sufficient to trigger URS proceedings.  
Accordingly, in the view of these RC Members, the proposed URS process has 
relatively low barriers for its use, and additional safeguards should be 
considered to ensure that the URS is not used for abusive purposes.

Finally, RC Members wish to further clarify the proposal that URS evaluators 
must review complaints under the same standard as the UDRP, but with a much 
higher burden of proof.  It has been pointed out that the IRT Draft Report 
actually changes the UDRP standard in the following way:

IRT Proposal:

". . . whether the domain name has been registered OR used in bad faith. " 
(emphasis added).

UDRP Standard:

". . . your domain name has been registered AND is being used in bad faith" 
(emphasis added).

RC Members do not believe that the IRT should change the UDRP standard, and 
suggest that the IRT consider the potential ramifications of this subtle change.

 1.  Post delegation dispute resolution mechanisms at the top level.

RC Members agree that this section of the IRT Draft Report deserves significant 
attention.  In its current form, this section is overbroad and simply too 
ambiguous and indefinite.

 1.  WHOIS requirements for new TLDs.

Some RC Members generally support the requirement of a thick WHOIS data model, 
while other RC Members object to it in its entirety.

Some RC Members in favor of a thick Whois model suggest that it would provide 
for uniformity and consistency in the database, as well as would facilitate 
efficient transfers of domain names.

Some RC Members who object to the thick WHOIS data model suggest that its 
consideration by the IRT is merely an attempt to circumvent the standard 
process for WHOIS changes and the work performed by the GNSO.  Accordingly, 
these RC Members believe that changes to or mandates concerning WHOIS should 
not be considered by the IRT.  Others have raised concerns about privacy issues 
and potential misuse of thick WHOIS databases.


The RC is under time pressure to prepare this Paper for consideration by the 
IRT pursuant to the IRT's narrow timeline.  Accordingly, the RC eagerly 
anticipates additional opportunities to more fully review and consider 
subsequent versions of the IRT Draft Report in the near future.

The opinions expressed by the RC in this Position Paper should not be 
interpreted to reflect the individual opinion of any particular RC member.

Attachment: RC Position - Draft IRT Report FINAL.pdf
Description: RC Position - Draft IRT Report FINAL.pdf

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