Comments of Key-Systems GmbH on the TMCH "Strawman" proposals
Dear ICANN staff, dear Fadi,Key-Systems GmbH is an ICANN accredited registrar based in Europe. We appreciate the opportunity to comment on the TMCH strawman proposal.
Key-Systems strongly supports the comments submitted on behalf of the Registrar Stakeholder Group (RrSG) as well as the comments made by NCSG, by NTAG and the ICA. We consider the majority of the proposals to be in direct contradiction to previous policy decisions on these very same issues and furthermore to be harmful for the success of the new gTLDs.
The new proposals re-open / significantly expand upon carefully developed and agreed upon policy decisions derived in the multi-stakeholder process. More significantly, the proposals were developed outside the established policy making mechanisms. To gain any semblance of community approval, these proposals need to be vetted by the community, namely the GNSO Council. To quote Steve Crocker from the Toronto public forum:
"Three more items. The rights protection in new gTLDs. The Intellectual Property Constituency and business constituency reached consensus on further mechanisms for new gTLD rights protection and agreed to socialize these to the rest of the GNSO AND THE BOARD LOOKS FORWARD TO receiving input on these suggestions FROM the GNSO. So that is our plan, so to speak, WHICH IS WE WILL CONTINUE TO LISTEN AND WAIT FOR THIS TO COME UP"
From what I have seen, the strawman proposal was developed by the IPC and the BC together with ICANN staff. While members of other stakeholder groups made themselves available to discuss them or were consulted on them, it is not accurate to claim they actually co-developed or even agreed to the proposals.
We join the RrSG, the NCSG and NTAG in urging ICANN staff to reconsider the implications of adopting these one-sided demands for policy change originally submitted by a limited group of stakeholders and without respect for the multi-stakeholder process and to review prior policy decisions and statements in direct contradiction to these proposals.
These proposals have failed to gain any significant support beyond the BC and the IPC stakeholder groups and their constituents. At the very least, these proposals need to be reviewed and accepted by the GNSO as they are in direct contradiction to previous policy decisions. Accepting these proposals will set a dangerous precedent and open the floodgates for any community or stakeholder group to seek to re-open any policy decision or process and push their own agenda beyond what the community was willing to agree upon. It completely undermines the compromise building process inherent in the multi-stakeholder process.
Besides the flawed creation process however, these proposals are also harmful in their content and only serve to protect a very limited interest group. Of course I understand the desire of users of the TMCH to protect their rights against infringements but the proposed measures must end exactly at the point where they begin to infringe upon the legitimate rights of others or cause harm in excess of the perceived benefits.
-Blocking (aka "LPR"): While not directly included in the straw man, we understand this is still on the table. The paper on this proposal is well written and does an excellent job of totally neglecting to mention the actual harms the implementation of this proposal would do. The proposal only takes into account other trademark holders that may apply in the sunrise period whose rights would naturally not be affected. No mention however is made of other legitimate potential registrants whose rights to a non-infringing registration after the sunrise phase would be completely eliminated by adopting this proposal. These include people with the same name as the mark, trademark holders not participating in the sunrise for whatever reason (newer trademark than permitted, lack of prior knowledge, etc) or companies without eligible trademarks. Frankly, only TM-holders that would otherwise participate in the Sunrise would think this is a good idea. There will likely be a lot of money to be made by implementing this demand but this is not good policy and will disenfranchise many potential legitimate registrants.
-Claims 2: The extension of Trademark Claims is a service except for a very small part of the community for which there is no need and that will only serve to scare away otherwise legally eligible registrants, slow the registration process and drive up costs of registrations. As many of the new TLDs will initially have a very small market such restrictions will decrease the customer base even further. This proposal also does not take into account in any way how the technical systems of each individual registrar need to be adapted to set this system up. Having to implement a 60 day temporary system that will have light use (Regular claims) is simpler than a system that will have many more commands running through it and many more TLDs (as it will last for 1 year). The idea that registrars and registries will have to build these systems at their own cost and risk with no guarantee of compensation for their use as Rights Holders could opt out is not appropriate. It creates a definite and substantial financial burden for registries and registrars to alleviate a potential burden resulting from a presumed need for protection against infringing registrations. In other words, this proposal may serve to discourage some registrars from offering new gTLDs in the first place due to the added cost, harming the availability of the new TLDs. Finally, the description of the proposal as "voluntary" fundamentally misrepresents the mandatory nature of the proposal, since it will be anything but voluntary for registrants, registries and registrars. The only parties for whom the optional nature of this proposal applies are its sole beneficiaries.
-Scope: This proposal is effectively a multiplier of the above issues, i.e. every problem resulting from the above proposals will be multiplied by up to 50 strings per TMCH entry. I also have come to understand that UDRP decisions are not always flawless or beyond reproach as many have been successfully overturned in court, so basing a blocking mechanism on UDRP decisions seems like an overreach (again). Furthermore, the community has in previous discussions of this issue reached a clear and unanimous decision that the TMCH protections should be limited to exact matches of the protected string. Anything beyond that would require a new policy decision.
-Notice: Of all the new demands put on the table, the only one that we can support without issues is the Sunrise Notice Requirement. This proposal can makes sense both from a marketing as well as a RPM standpoint and does not unduly impact any party to the registration process.
Naturally, any registry may choose to implement any of these proposals on a voluntary basis, but as policy, Key-Systems disagrees disagree with both the process and format in which these proposals have been suggested and discussed as well - to a large degree - their content.
-- Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@xxxxxxxxxxxxxxx Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu