TM Clearinghouse comments of Leap of Faith Financial Services Inc. (April 1, 2010)

[George Kirikos <gkirikos@xxxxxxxxx>]

Comments on TM Clearinghouse

Submitted By: George Kirikos
Company: Leap of Faith Financial Services Inc.
Company URL: http://www.leap.com/
Date: April 1, 2010


In line with our past comments, we oppose the TM Clearinghouse.

While my company has no intention to ever register domain names in new gTLDs, 
it seems that the intent amongst the TM-mafia/cabal is to at some later date 
apply these same rules to existing gTLDs. Thus, while we don't care about new 
gTLDs whatsoever, we must comment in order that bad rules aren't implemented 
that later put at risk legitimate registrants in existing gTLDs. 

Most TM attorneys share our grave concerns that new gTLDs are a bad idea, and 
ICANN should not be trying to "divide and conquer" by playing interests off 
against one another in order to further their own ambitions which the public is 
against. We stand united with most in the TM community opposing new gTLDs.

1. There is no need for a Trademark Clearinghouse that is sanctioned by ICANN. 
It can clearly be funded and created entirely by the private sector, and does 
not need to be "sanctioned" or funded in any way by ICANN. In our opinion this 
will be a great waste of money, and should only be funded by those who are 
foolish enough to waste their own money (namely TM holders and registry 
operators) on it. Public money should in no way subsidize it or give it a 
monopoly position (i.e. there could be multiple competing TM databases). 
Frankly, it becomes a protection racket that justifies new gTLD operators in 
having sunrise periods that tax TM holders with registering (and even competing 
for via auctions) unwanted defensive registrations. The TM Clearinghouse cannot 
override the courts, wherein TMs are routinely challenged and overturned. 
"Validation" at the clearinghouse would be gamed by those holding the weakest 
marks (e.g. trademark trolls), often for the sole
   purpose of asserting claims on generic descriptive domain names that they 
would otherwise not be entitled to. The TM Clearinghouse also simply adds a new 
layer of bureaucracy to the ICANN ecosystem, another set of contractors and 
consultants who will ultimately tax the public through higher fees, and 
self-interested lobbying.

2. The TM Clearinghouse data should be in the public domain (i.e. there should 
be bulk access for the public to download it for free, just as they can for the 
.com zone file), and be available for free to successor TM clearinghouse 
operators (i.e. no perpetual monopolies). Fees are for things like validation, 
not for access to a new for-profit monopoly "service" who will try to tax users 
and the public over time. The most efficient operator(s) would earn "normal" 
profits via a regular tender process or procurement process, not excess profits 
through perpetual monopolies and a stranglehold over data they deem 
"proprietary." An open XML schema and open bulk access process should be 
created to ensure the public is not held hostage in the future. 

3. We do not support mandatory pre-launch use of the TM clearinghouse. Almost 
every dictionary word, acronym, etc. has some registered TM in some obscure 
class of goods and services. That does *not* give it exclusivity or a 
right-of-first refusal over *all* uses worldwide. A registered TM for "example" 
in Albania should have no weight in blocking "example.newtld" for a good faith 
registrant in the USA or Canada, or even for a registrant in Albania in a 
different class of goods and services. We've already seen frivolous registered 
TMs in the .eu launch, and they were not all from Benelux (i.e. there are a lot 
of frivolous marks in the US, Canada and elsewhere).

4. In a real sense, ICANN needs to make up its mind whether they want an 
expansion of the namespace (in which case new registrants are presumed innocent 
until proven guilty), or simply wants defensive registrations that duplicate 
existing gTLDs. It's clear registry operators do not care, as long as someone 
pays the bill for a domain name (i.e. the cybersquatter, the defensive TM 
registrant, and the good faith registrant are all equal before their eyes). 
There's a hypocrisy to the sunrise periods that undermines everything ICANN and 
other new gTLD advocates say, and that hypocrisy is evident to the broader 
public who does not seek new gTLDs.

5. The TC operator should have no monopoly whatsoever on the data -- they are 
simply a contractor for a fixed period, and the data belongs to the public 
domain.

6. I believe the DOC or GAC should step in and mandate Verified WHOIS via a PIN 
system (i.e. physical letter with a PIN code mailed to registrants to ensure 
address accuracy before a domain name gets activated). This would please TM 
holders, consumers, and legitimate domain registrants who always maintain 
accurate WHOIS. This would be a far greater deterrent to abuse and would be 
more effective than a TM clearinghouse.

7. Lastly, the TM Clearinghouse would be considered "policy". Under the 
Affirmation of Commitments:

http://www.icann.org/en/documents/affirmation-of-commitments-30sep09-en.htm

"To ensure that its decisions are in the public interest, and not just the 
interests of a particular set of stakeholders, ICANN commits to perform and 
publish analyses of the positive and negative effects of its decisions on the 
public, including any financial impact on the public, and the positive or 
negative impact (if any) on the systemic security, stability and resiliency of 
the DNS."

Where is the list of "negative effects" published by ICANN or the GSNO, and an 
economic valuation of the financial size of the positive vs. the negative 
effects to determine whether the benefits exceed the costs?

We've basically had a process where a bunch of lawyers got together, without 
any economists at the table to perform financial analysis or provide a reality 
check on what they are talking about. This is a pure violation of the AOC, the 
lack of attention paid to the requirements to serve the public interest *AND* 
to analyze the positive and negative financial impacts. On that basis alone, 
the TM Clearinghouse should be rejected as "not finished" and should be sent 
back for consideration using the expertise of those who are not lawyers. 

Sincerely,

George Kirikos
http://www.leap.com/