On Rights Protection

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

Trademark and other rights holders are entitled to protection, but those 
protections should be:
- fair 
- reasonable
- 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 
protection etc.,)

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 
registrants?

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

Regards

Michele



Mr Michele Neylon
Blacknight Solutions
Hosting & Colocation, Brand Protection
http://www.blacknight.com/
http://blog.blacknight.com/
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