On Rights Protection
- To: "proposed-protection-mechanisms@xxxxxxxxx" <proposed-protection-mechanisms@xxxxxxxxx>
- Subject: On Rights Protection
- From: "Michele Neylon :: Blacknight" <michele@xxxxxxxxxxxxx>
- Date: Mon, 23 Nov 2009 02:14:55 +0000
Trademark and other rights holders are entitled to protection, but those
protections should be:
- not extend them rights that they are not entitled to in other areas
That ICANN and its staff has spent so much time and resources on IP related
concerns is troubling.
There are other areas of "online" activity that are of much greater and valid
concern, yet some trademark / IP concerns seem to have managed to push their
agenda more than most
The IP clearing house concept seems to go too far, as it forces registrants to
"prove innocence", rather than for IP holders to "prove guilt".
Considering that just about every innocuous word in the English dictionary has
been used as a "mark" somewhere the clearing house concept could prove
troublesome on multiple fronts.
It would make a lot more sense to simply include language in the registry /
registrar agreements to reinforce the existing UDRP style post-registration
dispute mechanisms. (And the DAG already does put emphasis on trademark
It is also noteworthy that while the documents relating to this Clearing House
concept make allusions to interfaces between the registries, registrars and the
database nobody seems to have provided any operational "proof of concept"
How will this work with EPP?
How will this work in "real time"?
What about the contractual implications on registrars and registrants? Most
registrars collect payment for domain registrations either in advance or at the
moment of processing the registration request. By accepting payment for the
domain registration (in good faith) it could be argued that the registrar is
under contract with the registrant to provide a service. Will ICANN, the
trademark holders or the clearing house provide any form of indemnification to
Running a sunrise period has worked reasonably well in previous TLD rampup and
launch periods. When combined with the existing dispute procedures this has
allowed trademark holders ample opportunity to make defensive registrations.
Mandating that all new TLDs run some form of sunrise period makes sense
No matter what provisions ICANN or others may wish to introduce to avoid abuse
within strings there is very little they can do to prevent abuse within
content, which is where the real issue for trademark holders lies.
It is highly unlikely that anyone would confuse apple.shoes with apple.com
There is nothing to stop anyone from creating an A record under a "non-abusive"
domain name using a trademark as the string eg. apple.mneylon.com or
ibm.icann.org - and there is no sane way for anyone to stop this
There is nothing to stop me, or anyone else, from creating a website that
infringes on multiple trademarks using a random string of letters and numbers
In essence, the entire trademark / rights protection concerns are blown out of
all proportion and no matter what is ultimately decided they will probably
still be only effective in one area - delaying the introduction of new tlds
Mr Michele Neylon
Hosting & Colocation, Brand Protection
Intl. +353 (0) 59 9183072
UK: 0844 484 9361
Locall: 1850 929 929
Fax. +353 (0) 1 4811 763
Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business
Road,Graiguecullen,Carlow,Ireland Company No.: 370845