Comments on Module 3 DAG Version 3
Module 3 – Clause by Clause 3.1.2.1The guidebook is not clear. What does similarity mean here – just appearance as in the String similarity Review of Module 2 (Evaluation Criteria) ? If an existing TLD operator successfully asserts string confusion and the application is rejected the rejected string should not be given to anyone else, including the existing TLD operator who objected and won. 3.1.4Given the limited time to respond to objections especially in English for an IDN applicant and the fact that the applicant may have spent a million and wait several years for ICANN to keep any of its promises, it seems unfair to immediately dismiss an application just because an objector pays a few thousand dollars and spends a few days to prepare an objection and the applicant takes more than a couple of weeks to respond. 3.1.5 and 3.2.3Especially when timelines are tight to object/respond – measured in days - and the monies spent by applicant is large insisting on English as the only means of communication (no other contact – verbal etc, single shot online response etc) is a sure means of ensuring that every IDN applicant from IDN countries is likely to fail even if they have a solid grounds for application. Interestingly, one would think many IDN applicants will have some objections from the IDN community and it would be natural and very sensible to conduct the arguments in that IDN script rather than English. (Hire a panelist in that language as well, will be cheaper too mostly). Needless to say something is utterly illogical about this. The odds are by design always stacked against the IDN applicant and for a English-speaking Western objector (undoubtedly most of the objections, including in IDN cases, will be from well-funded Western companies and lawyers – one should take bets). 3.3.1If rejected on an administrative basis without bias will be there time to re-submit a corrected objection ? If so, one assumes that ICANN will charge yet another fee ? 3.3.2Presumably consolidation of objections results in reduced cost for each objector ? 3.3.4In each of the panel types, even if t here is only one panelist on the panel, if the application in question is an IDN applicant, at least one panelist MUST be from that IDN community – a native speaker of that IDN and from that country/countries where the language is predominantly spoken. This must be a requirement. Period. 3.3.5. No opportunity for back and forth communication (not even a limited ability) and when conducted solely in English, is guaranteed to ensure unfair failure of an IDN applicant (or objector). To ensure fairness, disputes should allow possibility of hearings in more than rare cases. Costs can be mitigated by phone or conference call hearings. 3.4.2 Point 1Even within ASCII “biz” and “com” can be construed similar in meaning if this is taken to its limits. Whatever the case within a script/language there is certainly no basis for similarity on the grounds of aural or meaning across IDN scripts/languages as was established unanimously and clearly in the Report of the GNSO IDN Expert Working group. This was built into the String Contention Review but it keeps re-appearing in the legal rights section over and over again despite general public near-unanimous opposition to this for the past few years at ICANN. It simply illustrates that a few control the agenda at ICANN. Also even if the applied-for gTLD is identical or similar if a party is already objecting on its rights being infringed because of string confusion (string confusion objection) with an existing TLD that it operates, then it should NOT be eligible to view that existing gTLD as an "EXISTING MARK" and pursue the Legal Rights Objection. The guidebook needs to state explicity that all existing TLD string operators can ONLY object via the String confusion mechanism and not the Legal Rights objection mechanism, since they ALREADY have a special mechanism to object. The legal rights objection mechanism should be reserved for those who have legal rights and not already an existing ICANN TLD registry operator. If an existing TLD operator is allowed to make a legal rights objection and allowed to interpret similarity broadly across IDN scripts – more than visual similarity and include aural and meaning – the current ill-thought out New gTLD process could lead to a nightmare scenario. As currently specified an existing ASCII TLD operator can successfully block an IDN application for example a "similar meaning" and thus in effect own rights within ICANN to that meaning in every language. Then say 500 new ASCII gTLD strings for 300 new meaning/concepts are introduced and these new operators (who will be mostly Western applicants with current ASCII-only interests who can afford the million it will take to apply in this round) become "existing operators" for the next round. They in turn will claim “existing TLD rights” and sucessfully block the 500 new meaning/concepts in every language they win at the current round. ICANN would have effectively arranged for all the TLDs with the best/concepts in every language of to be handed over to Western non-IDN companies. The related IDN domains will be all auctioned off at great profit to Western speculators at a future date at the expense of the poor native speakers of that language. As one person put it a “back to Western colonization again this time stealing the language/culture as opposed to gold and slaves”. 3.4.2 Point 4The clause “or operates TLDs or” has no reason to be there, should be deleted. Every TLD operator to date has been operating legitimately and lawfully. If there is an issue with such an operator it should be the preview of a separate unconnected legal challenge between the objector and the operator. The new gTLD process within ICANN is not the place to argue or judge that. Attachment:
Module 3.doc |