[bc-gnso] Update on TM Rights Protection Mechanisms Negotiations

["Zahid Jamil" <zahid@xxxxxxxxx>]

Today the 3 days of off line negotiations and reaching out to the ALAC and
NCSG on the issue of the IRT Report and the RPMs were successful.
 
3 hours of discussion (with the help of the ALAC- Alan and Cheryl) on Monday
with NCSG reps (Kathryn Kleiman and Konstantinos Komaitis) followed by
discussions through yesterday were successful in providing background and a
context to the BC position on the IRT Report.  
 
Initially on the Council list the NCSG had indicated and unwillingness of
the IRT being available as a resource.
 
Summary of points for discussion that were discussed were (subject to them
being taken back to the NCSG):
 
Welcome the IRT and other resources being available to the GNSO Working
Group working on the Board's letter regarding the RPMs (ie. STI review
team).
 
At the session on Thursday (today) express the willingness that NCSG had for
reaching out constructively to the GNSO community (language discussed
included reaching common ground).
 
The GNSO passed a Resolution today with the support of the NCSG stating:
The assistance of members of the IRT in answering questions about the IP
Clearinghouse and Uniform Rapid Suspension System recommendations may be
useful to this work. The GNSO Council requests that members of the IRT who
worked on those recommendations be available to answer any such questions
that may arise;
 
I believe that possibly a more integral part than the discussion with Kathy
in achieving this was the efforts of members from other Constituency(s) that
may have helped mediate this resolution through.
 
 
In today's session on Trademark Protection and new gTLDs (transcript
attached):
 
Kathy responded positively and at the end of her first intervention stated:
 
'....we in the NCUC want to work with you.  We want to establish common
ground, and we wish the best of luck for all of us in this expedited
process.'
 
She even went as far as saying in regards the IRT URS recommendation for
Appeal:
 
'.....and I have to say it, and I guess I'm on the record, the IRT kind of
got this one right and let's go back to that.'
 
This was met with equal good will by CSG members:
 
J. Scott, now President of the IPC said:
 
'I worked with Kathy Kleiman, and we drafted the UDRP final version with
Louis Touton and a group of other talented people, many of whom are here
today................We just want to solve a problem.  That's what we're
here to do.  We want to work with registries, registrars, NCUC.  That's what
we're here for.  We're problem solvers.  We want to solve the problem.
Thank you for the opportunity, and we look forward to working together in
the near future.
 
Zahid Jamil BC Councillor said:
 
'First of all, I would like to acknowledge and thank Kathy for the NCUC's
constructive invitation to work with goodwill. 
We look forward to the sentiment continuing in the GNSO.  So thank you for
that..........'
 
With respect to several aspects of the IRT Solutions it seems that NCSG and
BC may be able to find common ground.
 
I am sure there must have been much discussion in the NCSG itself about
taking these positions after discussing matters with the BC and other
individuals. So Kudos to Kathy and Kostantino for achieving success for not
letting down our discussions from Monday for which I have thanked them.  
 
Efforts of Alan and Cheryl to set up some of the atmosphere for the
interaction also helped.
 
Also in other private discussions this evening with some ALAC reps it seems
that there may be even more common ground possible with the BC positions.
 
This sentiment seems to have created an atmosphere which may enable some
parties with divergent views reaching consensus on some aspects at least.  I
hope this interaction will also help BC, NCSG and ALAC collaborating on
other issues in the future.
 
Through private meetings tomorrow leading up to the STI session I hope this
sentiment continues.
 
Will report back after tomorrows STI meeting.
 
 
 
Sincerely,
 
Zahid Jamil
Barrister-at-law
Jamil & Jamil
Barristers-at-law
219-221 Central Hotel Annexe
Merewether Road, Karachi. Pakistan
Cell: +923008238230
Tel: +92 21 5680760 / 5685276 / 5655025
Fax: +92 21 5655026
 <http://www.jamilandjamil.com/> www.jamilandjamil.com
 
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Trademark Protection and New gTLDs
Wednesday, 28 October 2009
ICANN Meeting
Seoul, Korea

>>KURT PRITZ:  So everybody, we're going to start in two minutes,
okay?

Everybody, thanks very much for coming.  Mr. Foody is here, so we
can start.

[Laughter]

Thanks for coming and attending what I think will prove to be a very
informative and interesting session on proposed trademark protections
for new gTLDs.  You probably remember that the GNSO delivered 19
policy recommendations to guide the implementation of new gTLDs.  A
very important one was that new top-level domain strings should not
infringe the rights of others.

And since the publication of the first applicant guidebook, there's
been a lot of public discussion and work to develop specific rights
protection mechanisms for inclusion into this process.

We're here today to discuss aspects of the various proposed models
for two purposes.  One is to try to hone the model and develop the
best model for inclusion into the guidebook using the collective
expertise of the people in this room, which I think is formidable. 
And the second is to inform the GNSO work that is starting to
consider two of those rights protection mechanisms specifically.  So
we're here for those two things.

Excellent.  So a brief history of the world is that in response to
public comment, the board formed the Implementation Recommendation
Team to develop a specific rights protection mechanisms proposal for
the guidebook.  So let's remember that as recently as Mexico City,
right, we started with a blank sheet of paper.  We had nothing.  And
now we're arguing details, whether and how.  But we've got something
very substantial to look at, and it is an indication of how far we've
come.

Those proposals were discussed in an online public forum where it
garnered over 200 comments and also in face-to-face sessions in
Sydney, New York and London, which sounds quite posh but there was a
lot of work associated with that.

Following that, there was quite a bit of analysis of the various
positions.  And this resulted in an ICANN staff proposal for various
rights protection mechanisms to be included in the guidebook.

Does everybody hear that sound?  Or am I just going -- Okay.

In the guidebook -- and they have been posted for public discussion
in a couple of ways.  Some have been put into the guidebook itself,
which is, you know, a great big proposal, and others have been
referred specifically to the GNSO for additional discussion and
advice to the ICANN board.

So that brings us to where we are today, which is this workshop
which has these two purposes, remember, to kind of hone the model and
inform the GNSO discussion.  

I'm very pleased and ICANN's very pleased to have Dr. Bruce Tonkin
as the moderator of this discussion.  He's of Melbourne I.T. and also
a member of the ICANN board.  And he's joined by a very distinguished
panel.  Mark Partridge of Pattishall in Chicago, he is also the ABA
rep to ICANN and also an UDRP panelist with WIPO.

Eun-Joo Min from WIPO.  

Steve Pinkos on behalf of ENUM.  Jeff Neuman, the vice president of
law and policy, from NeuStar.  Kathy Kleiman, a co-founder of the
NCUC and author -- co-author of the UDRP.  And also we have members
of ICANN staff joining us who are subject matter experts.  So that's
Dan Halloran and also Amy Stathos of the general counsel's office. 
So they will lead the discussion, but we'll all get a chance to
participate in it.

So what rights protection mechanisms are suggested or proposed? 
What's going to be discussed here today?  One way to look at it is
through a registry operating life cycle timeline, which is sort of
divided up between prelaunch, the moment of launch and then ongoing
operations.

So one rights protection mechanism we're going -- that will be
discussed today is an IP or trademark clearinghouse that provides
trademark protections in the prelaunch phase of the registry life
cycle.  That IP clearinghouse would support registry services such as
sunrise or an IP claims service.

Then after launch, after names are registered and there's ongoing
operations, additional rights protection mechanisms are proposed. 
One is a sort of rapid take-down called URS, universal rapid
suspension system.  Another is a post-delegation process, so after
the TLD is delegated and after names are delegated, how can
registries be held accountable to ensure that the policy
recommendation is attained to not infringe the rights of others.  And
I thought it would be instructive in this chart also to indicate that
UDRP is an existing rights protection mechanism that will also be
available for new top-level domains.  So you see where the rights
protection mechanisms are meant to provide protections both prior to
launch and then after launch.

So I'm going to very briefly review each of these three rights
protection mechanisms, and then we will pose questions to the
panelists for discussion.  So in each case, we are going to say "so
what is it" and then "what's changed"?  The IRT made proposals, there
was a churn in the form of public comment, and then analysis by
staff, which is the staff best effort at determining the synthesis of
public comment and the proposals.  But that's just the first step in
iterating towards final models and implementation of these things.

So the IP or trademark clearinghouse, it's simply a database of
authenticated marks, both registered and unregistered marks.  It
fulfills two functions.  The database operator first validates marks
as they come in, validates them before inclusion in the database. 
And then the secondary operation is to provide that data to
registries during the launch phase -- prelaunch phase only to support
a sunrise service or an IP claims service.

And so what's the purpose of this?  That it replaces the need for
trademark holders to register their mark in several different
clearinghouses in an environment where introducing seven new TLDs
every three years, it's not such an onerous task to register multiple
times.  In a new environment where we're introducing maybe 100 TLDs a
year, that becomes a much bigger burden and there's efficiencies that
can be gained.

And then -- so it replaces the need for trademark holders to
register multiple times in clearinghouses and also allows the
registries to efficiently develop these IP claims and watch services.

And the idea is that ICANN's not going to operate this
clearinghouse.  It might be licensed by ICANN, but it would be a
separate entity that does this work.  So what changed as this model's
evolved so far is that we changed the name of it, which isn't
significant, but the role of the clearinghouse is tailored to
trademarks, registered and unregistered trademarks, but trademarks. 
And where -- we don't envision a license -- for ICANN to have a
license to use the data but, rather, there be some sort of limited
terms of use.  So ICANN might have the same access to data which
admittedly is already publicly available data as anyone else.

Significantly, the trademark clearinghouse in the proposal supports
an IP watch and IP claims service but not a globally protected marks
list.  So that isn't part of this proposal.

And then, finally, this proposal's been perturbed by instead of
having one entity perform the validation function and then support
the IP claims and sunrise services rather to bifurcate that function
for two reasons:  Some entities are good at one thing, some entities
are good at the other.  And, two, is it reduces, perhaps, the
incentive to admit more names as a way to kind of make more money. 
So it is meant to tailor abuse.

So I'm not going to read these, but we are going to pose these
questions to the panelists later.  So when I get towards the end of
the presentation, you will get to see this slide again.  But I just
wanted to try to make a little more coherent the layout of it for
when we get to that step of the panel discussion as soon as you're
done with my somewhat tiresome talk.

The second rights protection mechanism is a uniform rapid suspension
system.  It's intended to provide rapid relief to trademark holders
for most clear-cut cases of infringement, so inexpensive and rapid.  

So what are the trade-offs in making it more rapid than, say, UDRP
is that we have to be more certain of the outcome.  It's been
described that many, many, many, many of the UDRP cases are not
answered and the registrant, in fact, abandons ship as soon as a
claim's made.  So this is intended to recognize that many of those
claims are, in fact, uncontested and they're blatant, clear-cut
trademark infringements.  And it's intend to facilitate that finding.
But, therefore, there is a higher burden of proof.

The filing fee will be set by the provider but it is expected to be
in the range of about 300 bucks.  That's the goal.  And it's
different than UDRP.  It results only in the suspension of the name. 
So, say, it is a three-year registration, that name would be
suspended for three years and then made available again.  It is not a
means of gaining -- for the complainant to gain the name.  That's a
major difference between this and UDRP.

What's changed?  Well, instead of referred to -- you know, this is
one of the proposals that it referred to the GNSO discussion and it
asked them to consider as a best practice rather than mandatory.  So
we're going to have the panel talk about the effects of that later.

So the guidebook -- the former would be included in the guidebook
would be as a best practice but with strong incentives for TLD
operators, proposed TLD operators to implement it.

There's -- there was a proposal part to have a fee to defend a large
number of names because some claims are against a large number of
names, but that was removed.

There were some comments that 14 days was too short a time period to
reply, that people go on vacation.  But wishing to keep the "R" part
in URS, it is proposed that the answer could ask for a seven-day
extension to provide an answer.  But absent that request, the 14-day
period would hold and, also, provides for fax -- notice by fax.  So
these were all suggestions made in the public comment.

And so we have a list of issues here that we'll discuss with the
panelists and we are going to read later.  I will skip ahead.

And then slightly more complex, and we'll spend a few more minutes
on this, is a post-delegation dispute process.  After the TLD is
delegated, after the evaluation is done, how can registries be held
accountable?  How can we ensure that they do not systemically violate
the rights of others?

And so this is intended to address a systemic -- systemic or
cybersquatting type of behavior.  Think of the -- the issue is really
the cybersquatting really occurs at the second level, right?  It is
really registrants that are exhibiting this bad behavior.  So at what
level can we take that bad behavior and put it onto the registry
holder, registry liable for the behavior of many registrants?

And so -- and so the dispute is really between the rights holder and
the registry.  It's a little similar to UDRP in that regard, is that
a complainant will say, you know, "These registrants are bad here but
I have evidence that you, registry, you are facilitating this
behavior in a certain way and you should be held responsible for it
and liable for it."

So this will be not an ICANN process but an independent dispute
process because ICANN doesn't adjudicate between claimants of rights.
And remedies of this could include sanctions, suspension or even
termination of the registry.  So that's different than -- that's
different than contractual compliance complaints.  So if a registry
is violating its agreement in some way, then a complainant comes to
ICANN and says, "That guy is violating his agreement."  And then our
contractual compliance staff and legal staff will investigate the
claim and make some sort of determination as to whether the registry
is in breach of the agreement and then take appropriate escalated
actions.  We have process flows to govern that.

So claims of breach should be reported to ICANN and should be
addressed by contractual compliance.  So I made a couple need
graphics.  And one is so a contractual compliance claim, to
differentiate it, the rights holder or any complainant would go to
ICANN and file a report, a compliance report, with ICANN.  And then
ICANN would undertake investigation and take enforcement action as
necessary with the registry.

In this infringement-of-rights claim, a rights holder would go
directly to the dispute resolution provider and make a claim.  And
the registry would answer, and then there would be the dispute
resolution process provided by the service provider.  

And the service provider would provide a report to ICANN that would
suggest or recommend -- you know, report on the finding and then
suggest what sanctions might be given.  But it would be up to ICANN
to decide on what sanctions there would be.  So there's quite a bit
of change here between the IRT proposal and this proposal, some
larger, some smaller.

This dispute resolution process really needs to define both for the
rights holder, I think, and the registry as bright a line as possible
as to what's expected of behavior.  So the standard requires clear
and convincing evidence of affirmative conduct by a registry
operator, that mere knowledge of infringement is not actionable.

A significant change is that ICANN wouldn't be a party to the
dispute, so the IRT proposal had ICANN making a determination
initially in the dispute for the first 45 days.  If ICANN couldn't
come to a determination, then it would be referred to the dispute
resolution provider.  I think at least internally ICANN is not
equipped to make those sorts of adjudications.  And having these
sorts of disputes only go directly to the dispute resolution provider
will be quicker.

So then both sides would prepay a fee, and then the prevailing party
would get a refund so that it's a loser-pays sort of scenario, which
is intended to be a detriment for frivolous or abusive claims.

A shorter list of questions but sure to engender just as much
discussion.  So I'm going to turn it over to Bruce.  Are you ready?

Should I put up the first set of questions?

>>BRUCE TONKIN:  Thanks, Kurt.  I guess just before we commence the
comments from the panel, I guess just stating again the framework
that Kurt pointed out earlier, firstly, that the purpose of this
session and panel is to help inform the GNSO's work that's already
commencing as of today to look at these proposals.  And it's also
intended to stimulate public comment because we are in an open public
comment period on these proposals, and we're really seeking people
from the community to respond to that.

So what we're not going to try to do is solve all the problems here.
And what you'll hear, that some panelists have different views.  And
it's really -- the next steps beyond this is to get other people to
submit their support or further thoughts based on what they hear from
the panelists and also that the views -- different approaches from
the panelists will help inform the GNSO.

The other thing is that I do have a timer that I put on the screen
just to give both the panelists and then later the members of the
audience here, when you're speaking, to try and sort of keep your
comments brief and to the point and then submit more detailed
comments via the public forum.  So don't try and attempt to cover
every possible issue that you can think of.  Try and focus on the
ones that are very significant for you and also try and focus on what
change you would like to see the staff make to the proposal rather
than just say you think the proposal's good or you think the
proposal's bad.

Before we start with comments from the panelists, on the topic of
the trademark clearinghouse, I would first like to ask the panelists
whether they have any questions of clarification they would like to
ask Kurt, if there's any aspect of the staff proposal that's not
clear to you before you state your comments.  

Are there any questions from the panelists?  Jeff?  This is on the
trademark one?

>>JEFF NEUMAN:  Oh, no.

>>BRUCE TONKIN:  Clearinghouse one.  You're good?

>>KATHRYN KLEIMAN:  I do have a question.  Kurt, could you talk a
little bit about how you're going to set up the relationship between
ICANN in the now two parts of the trademark clearinghouse?

>>KURT PRITZ:  I think that would be a good topic of discussion
here.  ICANN certainly wants to at closest hold that at arm's length.
It doesn't want to be an operator of the clearinghouse.  I think
there would be separate relationships with each of the two entities. 
I don't think one would contract with the other.  But I'm pretty --
I'm talking, you know, off the top of my head here, and that hasn't
been thought out and I would like recommendations on that.

>>KATHRYN KLEIMAN:  But the rules for the operation of both would
continue to come through the ICANN process?

>>KURT PRITZ:  Yeah.

>>KATHRYN KLEIMAN:  And if they change, they would come through the
ICANN process?

>>KURT PRITZ:  Right.

>>BRUCE TONKIN:  Okay.  Kathy, why don't you kick off then.  I will
start the timer to give an indicator.  I will let Kathy make some
opening remarks.

>>KATHRYN KLEIMAN:  These questions are fairly new and they just
went around recently so they are incorporated into my comments.

First, thanks, Kurt, Bruce, everyone.  This is a difficult process. 
We come from different places, and my constituency majority believes
the trademark clearinghouse is unnecessary, at least as run and
accredited by ICANN.  The marketplace, the private sector has worked
fine for all prior rollouts.  But that's not our starting point
today.  

Our starting point is the trademark clearinghouse and the report of
ICANN staff.  And I have to say, Kurt, it's getting better.  Here's
why.

The rationale and scope are much more closely tied to trademarks. 
What's the trademark clearinghouse for?  It is a place for trademark
owners to voluntarily submit data, and it is a place that registrars
will use when rolling out their new gTLDs with great discretion and
great choice.

Here's the thing.  In the noncommercial constituency, we understand
the notion of efficiency.  Truly, we do.  The idea that the trademark
owner will not want to take the same piece of paper, the same federal
certification of a trademark -- sorry about that -- to 500 places. 
That makes sense to me, to 500 different clearinghouses.  That makes
sense.  There is an efficiency argument here.  But that's just it, it
is one piece of paper.  It is a federal registration.

It's not a label.  It's not a bottle.  It's not a letter.  It's not
a business card.  Should ICANN get into the business of validating
common law trademarks or unregistered rights?  If it does, it's gone
too far.

Why?  Because there are very few common law jurisdiction countries
to begin with.  And in them, verification is always done by the
courts.  So, let's say -- let's keep it clean.  Let's keep it
efficient.  Let's keep it verifiable.  Use the valid registration
issued by a national jurisdiction which conducts substantive
examinations of trademark applications prior to the registration. 
Complicated language, good language, clear language -- and it's not
mine, it is staff's.  It comes from the URS report.

And perhaps at a threshold of national registration, if you want to
approach the idea of a globally recognized mark, then set a threshold
for the trademark clearinghouse for the number of countries that you
need for trademark registration.  

I've been told to slow it down.  But then I won't be able to keep
with the clock.  Always have the same problem.

Further, keep it local.  Keep it regional.  And that's easy.  ICANN
has now separated the validation function from the administration of
the database function.  It was a brilliant change, and one we didn't
even request.

You can have regional validators, and we recommend that you do. 
That way, the regional validators will know the trademark laws of the
myriad of countries around the world.  They'll -- if you have an
Asian -- if you have an Asian trademark clearinghouse, they will know
the Asian laws.  They will be much closer to the country.  They will
understand the terms, the scope, the uses, the categories of the
trademarks.  They'll provide much better, much more accurate ways of
putting the data into the database in a consistent manner.  And
because there's one database, they can all feed into it.

Further, provide clear required language that protects registrants
when they find out about the trademarks that are in the
clearinghouse.  Our greatest fear is that legitimate registrants,
commercial and noncommercial, will be driven away from a domain name
to which they are otherwise entitled to register.

The fact is that in the real world, the same dictionary word is
often registered hundreds of times.  And, further, it is used
millions of additional ways in non-trademark and noncommercial uses. 
Think "Time," think "Fortune," think "Apple."

So avoid the chilling effect. let's work on information and notice
that comes to registrants and minimizes the chilling effect.  Let's
them know their rights.

Further, limit the clearinghouse to making it interim and make it
subject to evaluation.  As much as we still think it is outside the
scope of ICANN, we think that this particular procedure -- this
clearinghouse is completely doable.  Thank you.

[Applause]

>>BRUCE TONKIN:  Thank you, Kathy, and you did well with the time.

[Laughter]

>>BRUCE TONKIN:  Go ahead.

>>STEVE PINKOS:  Thanks, Bruce.  I think on this issue, the ENUM
position will be a little bit like the Phoenix Suns basketball team,
it's run and gun.  I don't think we have much -- or much problem with
the shot clock.

Quite frankly, we think the clearinghouse is a very practical and
effective way to implement RPMs.  It's very logical.  It brings
logical efficiencies to a rights protection regime within the DNS. 
Kathy has raised some issues that we'll discuss and I think are --
you know, can be resolved, but, by and large, the structure that Kurt
has described today is one that we think the GNSO should endorse, and
ICANN should get to work in a short period of time on implementation.

Again, importantly I think sometimes people get a wrong idea about
what the clearinghouse may be.  I think Kurt was clear today.  It's a
storage facility, it's not a policy determination facility.  And it
is something that can be reasonably relied upon and used by
registries, going forward, multiple new registries, multiple new --
in multiple new TLDs, and we would encourage the GNSO and the
participants at this table that are a part of the GNSO process to
resolve the remaining questions and get to work on implementation. 
Thanks.

[Applause]

>>BRUCE TONKIN:  Thank you.

>>JEFF NEUMAN:  Okay.  I wanted to just -- there's five questions or
so on the board.  I just want to address the chilling effect one.  I
think others can address some other subjects here.

You know, let me just state for the record that there is no chilling
effect to the IP claim process.  It's a hypothetical argument that
has no basis in reality.  I could stand up here today and I could
tell you that the earth is flat.  I can get other people to stand up
at the mic and I could tell them to say the earth is flat.  I can
hire lawyers and go to public interest groups and I can have them
come up here and say that the earth is flat.  That doesn't mean that
the earth is flat.

The trademark claim process is not a new process.  In fact, it's
almost 10 years old.  It has been implemented before in dot biz in
2001.  And to date, it was the largest prelaunch intellectual
property protection service of any gTLD registry that's been launched.

Not one complaint was received by the registry or anybody else, for
that matter, that the service had a chilling effect.

In fact, one could easily argue that there's more of a chilling
effect in a sunrise process, as opposed to an IP claim process.  At
least in a sunrise -- at least in an IP -- let me go back a step.

In a sunrise process, the trademark owner's automatically given the
domain name registration simply by showing it's got a registration. 
There's no attempt for anybody other than a trademark owner to
actually get that name.

In an IP claim process, the reverse is true:  Anyone could apply for
the name.  At that point in time, once the application is submitted --
and again, this is all prelaunch -- at that point in time the
applicant is notified that there is a trademark claim on that name or
that identically matches that name, and in that notice -- at least
the way it worked in dot biz -- in that notice, it said that the
claim was based on a certain federally -- or nationally registered
trademark, had information about the trademark itself -- for example,
the class of goods and services -- and provided all the necessary
information for the domain name applicant to actually make an
informed decision on whether it wants to proceed or not.

This is what the IP claim process actually is.  It lets the
registrant or the prospective registrant make a decision as to
whether the mark is going to infringe on the rights that it's
notified about.

There's no chilling effect in that.  It is what happens in everyday
life.  Someone gets notice of marks that are out there, and then it
could decide for itself whether or not to proceed.

Contrary to what I've heard being said -- yeah, 20 seconds --
contrary to what I've heard been said, that there's an opportunity --
there is no opportunity for a trademark owner to contact a
prospective registrant.  The trademark owner is not notified about an
application.  It's only notified once that registrant decides to
proceed and it becomes a registration.

All I ask is that we talk facts and reality.  This has been done
before, and it can and should be done again.

[Applause]

>>BRUCE TONKIN:  Thank you, Jeff.

>>EUN-JOO MIN:  We don't have comments on the clearinghouse but I
hope to use the three minutes for the other two issues.

[Laughter]

>>BRUCE TONKIN:  Mark, go ahead.

>>MARK PARTRIDGE:  Thank you.  It's nice to hear that overall
there's probably more agreement on this issue than disagreement, in
the sense that there -- it's good to have a centralized database.  It
seems we have agreement with that.  That it helps reduce cost.  It
would be beneficial in a lot of ways.

On the chilling effect, in particular, I think we should also look
at it from the other side of the benefit it provides.  In the
practice I have in dealing with domain name disputes, I see
registrants who end up becoming involved in lawsuits or UDRP
procedures who say that they would have preferred not to be there and
if they had known that there would be a claim made against them up
front, then they would find another way to proceed.  They could avoid
the dispute.

So there's a -- there's a benefit that I think offsets the chilling
effect in helping good-faith registrants avoid disputes early.  So I
think we should keep that in mind as well.

The clearinghouse, I think another point of clarification.  It is
not certifying any rights.  It's really simply authenticating data,
and so that it provides a central database of data that registrars
and registries and potential registrants can rely on, and that's a
good thing.

One of the points that's left out of the clearinghouse proposal that
I think we should give further consideration to is, I know it's a
very controversial topic, and it's why it's not there, but it's the
globally protected marks list.

The omission of that component to the rights protection mechanisms
is a very major concern to a lot of the people who are commenting
throughout this process.  In fact, of all the different proposals
that were made, having some kind of globally protected marks list was
the most widely proposed of them.

It is also the only recommendation that's directed at reducing the
need for defensive registrations, which is one of the stated goals of
ICANN in its public comments.

In thinking about it, don't think of it as a famous marks list.  I
mean, that's an issue that's -- that's been explored before.  It has
not been adopted.  It's not what this is about.

What we recognize going on in the world is that there are some major
brands who have registrations throughout the world, they're frequent
victims of cybersquatting over and over --

>>BRUCE TONKIN:  10 seconds.

>>MARK PARTRIDGE:  -- they are going to bring actions, they are
going to bring claims.  This would be a way to reduce those disputes,
reduce the number of disputes, and that would be a good thing to the
registrants as well, to know that they're not going to be picking a
name that will cause them to become involved in these disputes.

The -- it's not designed to create any new rights; it's simply
designed to recognize the facts that there are marks that are
registered around the world and globally protected, that those
parties are victims of cybersquatting, and that they will bring
claims, so let's deal with it early and try to prevent those claims
from ever needing to be brought.

[Applause]

>>BRUCE TONKIN:  Thank you, my fellow panelists.  Just a couple of
points of clarification that occur to me in the discussions that
we've just heard and also in previous days.

You can tell I've had too many late nights.

And one is as others have mentioned, the clearinghouse is just a
database and the actual processes and rules for what rights used in
sunrise or prelaunch processes is done by the registry, so a registry
for a particular TLD may say, "This registry has a criteria for who
can apply" and they might say, "The only people that can apply are
people that live in Africa" and they might say that, "The rights that
we recognize in our sunrise process is those that have trademarks in
Africa," as an example.

So I just want to make clear there's a -- the database doesn't mean
that because it's in the database, that there's an entry in the
database, that that entry in the database would be used by any
particular registry in their processes.  So they're different
decisions.

The other thing that's come up, too, is a concept that somehow for a
particular string or name that's in the database, that there is only
one entry.  So let's say the name was a name like book.  There could
be hundreds of entries for the name "book" in the database, and each
of those entries would have specific rights associated with it.  It
could be a word that's used for a particular country and for a
particular classification.

The registry itself would then be using that information and they
would have their own allocation method as to if they have multiple
parties wanting the same name, they have their own allocation method
for which party gets that name.  And most registries, in their
prelaunch processes, have a dispute process as well.  So if somebody
relies on data in the registry to say that they have a right on a
particular word -- let's say it's "book" -- but the -- and that party
gets that name, and another applicant challenges their right to have
that name, then that would be going through a dispute process.  The
clearinghouse makes no decision as to which right's got any relative
value over any other right.  It's just purely a database, so I just
wanted to clarify the separation between the database and the
policies and processes that would be used by a registry.

So at that point, I think we'll go across onto the next topic, and I
don't know whether Kurt's still driving the display up there.  But
I'd like to get into the URS discussion and he can just put up some
of the questions that have been on the URS topic.  And then just in
fairness of speaking order, I'll start with Mark and go back in the
opposite direction.

>>MARK PARTRIDGE:  Thank you, Bruce.  Well, the URS, I think, is one
of the critical components of the rights protection mechanism. 
Probably the most important to make the whole system work.

It addresses what's become fairly unanticipated but real problem
that exists now, in that there are cybersquatters who register dozens
-- hundreds of names.  They default in their cases.  There's no
defense brought in the case because none's available.  And this is
creating a great deal of cost and added burden on the system which
should be dealing with legitimate disputes, rather than clear cases
of abuse and causing domain name transfers to brand owners who don't
really want to have those registrations but they have the cost of
maintaining unwanted transferred domain names.

The big difference, I think, in the proposal that's come forward and
what the IRT recommended and I think what the trademark community
brand owner community is seeking would be that this should be a
mandatory policy.  The importance of a mandatory policy is that if
you -- if it's not mandatory, the bad actors will flow to a registry
that's not adopting the policy.  The good registries, the ones who
follow the best practices proposed by ICANN, will be at a
disadvantage.  That's not good for the system.  So if it's mandatory
all around, then everybody would be on an even playing field.

I guess it should be pointed out that the URS proposal, either the
IRT proposal or the staff proposal, doesn't go far enough in the eyes
of many of the people who commented.

What's different is many of the commenters thought that in the event
of a default, there should be an automatic transfer.  That's not what
the IRT proposal was and what's here.  There's a substantive review,
and the result of the adverse decision is that the site is taken
down, not that there's a transfer.

If party wants to seek transfer, the UDRP is available.

So this is a reasonable compromise to a position, but as I said, it
doesn't go as far as some of the brand owners wanted.

Two things that we think should be adopted here to help reduce the
cost all around.

The IRT proposal recommended the use of a form complaint and answer
and decision.  This should be as much of a simplified, automated
process as possible, and also, there should be some kind of
preregistration of rights.

Many of the people who bring UDRP actions bring multiple actions,
and if their rights could be preregistered so that that proof was
already available, that would be a good thing.

Ultimately, this is a benefit to the good-faith registrants because
they will find it easier to respond to these than is currently the
case under the UDRP, where you can get a complaint that's inches
thick, and it can be very daunting.

This would be a -- as envisioned in the IRT report, a very
simplified process that a good-faith registrant could easily show
that they're making good-faith use of this, and because of the higher
burden of proof and the higher standard, that would result in a
decision in favor of the good-faith registrant cheaply, quickly, and
at a lower cost, all -- to all parties concerned.  Thanks.

>>EUN-JOO MIN:  While we believe that the process can be refined to
further achieve the common aspirations for a more time- and cost-
efficient, equitable procedure, our primary concern with the current
URS proposal is the limited effectiveness of the proposed remedy,
which is to take down or to suspend the domain name for the balance
of the registration period.

Kurt, in explaining the current proposal, mentioned that for
example, the domain name would be suspended for three years.  We
think that it will probably be more -- it will probably be more
likely that it's going to be suspended for three months and not three
years, and that is because from the experience of our UDRP cases,
domain names that are used for abusive purposes are not registered
for three years, not for 10 years.  They're mostly for one year.

So for the domain name to be used in an URS proceeding to be brought
up and a decision rendered, the balance of the registration period
will be most definitely less than 12 months, and probably around 3 to
6 months, maybe.

So that will shift merely the burden on the trademark owners from an
undesirable cycle of renewing defensive registrations and we will
recall that one of the primary concerns expressed by the trademark
community was the extraordinary burden in defensive registrations,
but shift that burden to even a more costly cycle of filing URS
complaints.  It's simply going to be a revolving door.  Domain names
will be taken down.  After a few months, they'll be put back to the
pool, snapped up by often automated programs.  URS complaints will
have to be filed again.

We understand that domain names are -- that are used by infringing
purposes can very legitimately use -- are used for good-faith
purposes, and we're not suggesting that the domain names be
automatically transferred.  We're not suggesting that they be put on
a reserved list for an indefinite period of time, but consideration
should be given to adopt measures for a balanced approach.

We were quite pleased to see, in the staff summary of the public
comments, that -- and I'm now quoting -- the deterrent effect of
filing an URS proceeding remains intact absent a transfer because the
next person trying to register it will know it was a subject of an
URS proceeding.

This concept, which I understand is a staff proposal, did not get
explicitly incorporated into the staff proposal, and we hope to see
that more explicitly reflected.  Thank you.

>>JEFF NEUMAN:  Thanks.  I'm going to try to present from a registry
perspective.

I think, you know, I've heard ICANN staff say that, you know, the
reason -- even though it's optional, there is a strong incentive for
a registry to adopt the URS in its proposal, and I think they're
right.  I think there is a strong incentive.  And I think most
registries will actually do that.

However, I do believe that the URS should be mandatory.  And the
reason is probably a little bit different than anybody else will
express on this panel.

First, I want to say that I'm a little disappointed in actually
being put in this position.  In fact, it's unfair of the staff and
the board to put a registry in this position of having to make a
choice about selecting an intellectual property protection mechanism
or deciding whether to put it in place or not.

It's fundamentally unfair to put us in this position.  We want to
provide a service to registrants.  We want to provide whatever it is -
- domain names, in conjunction with additional services.  Why are we
being put in the middle of deciding whether to put in an intellectual
property mechanism?  It is fundamentally unfair.  And I'm
disappointed in the staff and the board for putting registries in
that position.

Make a decision.  I hope it's made mandatory because I believe on
the balance, it's in -- it's in the interests of the Internet
community.  But please do not make it optional.  It is really unfair
to do that.

[Applause]

>>STEVE PINKOS:  We at ENUM, we've supported some form of a rapid
takedown for quite some time, and in fact, we were heartened to see
the IRT take a close look at this, because we had proposed something
early -- early in this year along these same regards, and the
statistics have already been talked about.  The number of UDRP cases
that result in essentially a default judgment.  So it just makes
sense that there would be a fair and efficient mechanism to take it --
to take down the instances of clear infringement.

Because quite frankly, no one should bid -- build a business model
around, you know, profiting from trademark or other intellectual
property -- abuse of trademark or other intellectual property rights,
but at the same time, the -- you know, there must be concern taken
into consideration that the process is not abused.  There has to be --
we've talked -- or we haven't really talked much about the fee and,
yes, the provider ultimately is going to have to set the fee, but the
fee's going to have to be at a reasonable level to help act as
somewhat of a deterrence from abusive filings.  There should be --
there should be recourse or there should be punishment for people
that do abuse the URS.

But much like with the clearinghouse, we think there's been -- there
has been a lot of discussion of this issue.  Yes, there are a few
outstanding remaining issues.  I'm sure Kathy will raise some of them
in just a moment.

[Laughter]

>>STEVE PINKOS:  And, you know, so -- but the reality is, the board
has said there should be new TLDs.  The GNSO has said there should be
new TLDs.  Now it appears to us that the board has said there's going
to be some form of an URS.  If you can interpret the letter as saying
that.  So what I would suggest is for the open issues, that the GNSO
bring the affected parties together, you know, put them in a
conference room, give them 48 hours type of thing, and work out these
remaining issues.

I mean, the GNSO should report back to the staff and the board, in
our view, with a recommendation for an effective URS.  Yes, that is
mandatory for it to have its full -- its full effect with proper
safeguards including reasonable fees, including reasonableness as to
how the claims can be tiered.  And then, you know, the board -- or
the GNSO can make the recommendation to the board.

But, you know, in our view, we're almost there.  Let's cross the
finish line.

[Applause]

>>KATHY KLEIMAN:  I may go a little over my three minutes but I'm
going to try to talk slowly.

Okay.  The URS.  This one, Bruce, is a little more difficult, for my
constituency.  This is a rapid takedown process and frankly we know
that most registrants won't know about the proceeding until it's
finished.

That's when your grandmother, your school, your community, your
child's Web site, loses its resolution.

What can justify this type of expedited process?  What can justify
ICANN setting up a court of injunctions, a court for emergency rapid
takedown?

We're told by staff, in the report, that this is for egregious
cases, clear-cut infringement, blatant cases.  Obviously, that's
something exceptional, presumably something with exceptional harm.

Okay.  Believe it or not we believe there are egregious cases out
there.  And that egregious conducts happens.  But we also believe
that the system must be designed specifically to handle it.

So you have to -- the system must -- here's kind of a list of
criteria that my constituency would expect to see in the URS.

You have to differentiate the complainants.  Separate the wheat from
the chaff.  Make sure the complaint regards egregious conduct. 
Require the best notice possible.  Maintain the assumption of
innocence and good faith.  Have a real evaluation and then have the
high burden of proof.  That's fair for both sides.

It may be a little harsh but this is how we see the staff proposal:

It sets no evidentiary standard for egregious conduct.  Its
standards are lower, not higher, than the UDRP.  Its protections for
the registrants are lower, not higher, than the UDRP.  Its notice is
worse, not better, than the UDRP.  There's no substantive appeal. 
There's no real recovery mechanism.

What's going to be the result?

Frankly, we think the effect on the new gTLD marketplace will be
enormous.  The word will get out that new gTLDs are loaded down with
an unfair process.  We should tell you we're calling it "accuse you
lose."  And then a few real abuses will come along and you'll have
poisoned the marketplace for new gTLDs.  Noncommercial registrants,
individual registrants, small businesses may well find that the old
gTLDs are more stable and more predictable and that's a pity, because
we want new gTLDs, we want the new space, we want the new
opportunities.

So here's a quick checklist:  Make it egregious, make it fair, make
it interim, and you just might make it work.

And as a final note -- and I wanted to share this with everyone as
we go through the new mechanisms -- we in the NCUC want to work with
you.  We want to establish common ground, and we wish the best of
luck for all of us in this expedited process.

[Applause]

>>BRUCE TONKIN:  Thank you, Kathy.  You're pretty much bang on the
three minutes, so well done.

I just wanted to take a couple of comments or questions of
clarification that I think the staff may be able to help with.

My first question, which could be to either staff or any of the
panelists that are familiar with the process, but I think the
distinguishing factor between the UDRP and an URS, in terms of its
outcome is that an UDRP can result in the domain name being
transferred to the complaining party, whereas an URS, the name is
just suspended.

And normally, for me, when something is suspended, usually there's
some way for it to be reinstated.  And I think may address some of
the issues that Kathy has raised is if somebody is not contactable
for some reason and the name is suspended, that when they find out
about it and get back in contact, that there's some mechanism for
them to maybe rectify the issue.  You know, maybe the -- the Web site
has malicious code on it.  Maybe the Web site's got a huge logo on it
that they're not supposed to be using, and that the situation could
be rectified.

So I wonder if either the staff could comment on what would be the
reinstatement process after it's been suspended.

>>DAN HALLORAN:  Bruce, thanks.  This is Dan Halloran from ICANN
staff.  I think in the staff proposal -- and I don't remember off the
top of my head what the IRT proposal said.  The staff proposal said
if the registrant is unhappy with the results of the review, there
would be like an ombudsman set up to make sure the hearing was
decided properly, it wasn't arbitrary and capricious and also the
registrant could take it into a court of competent jurisdiction to
rehear the case if they don't like the result.

>>BRUCE TONKIN:  So Dan, I just want to separate -- I mean, just
something I'm not trying to solve the solution here, but I think
there's difference between appealing a decision because you think
they made a wrong decision versus an option for the registrant to
change their behavior, so they're not disputing the decision.  They
agree they were wrong.  But they've rectified their behavior.  So
just -- I don't know whether, Mark, that was considered in the IRT
team or not.  But if not, it might be something to think about.

>>MARK PARTRIDGE:  Well, we did consider this issue and it was
addressed in a number of different forms in the IRT report.  There
was a provision that was considered, and proposed, that if the site
went down because of default and the party appeared appealed, the
site could go back up.

We also gave consideration to the idea that if there was an appeal,
the site could go up during the term of the appeal.

So those are possibilities that were included in the -- in that
report.

>>BRUCE TONKIN:  I'll come back.

So thanks, yes.  So I think that's something that just in terms of
clarity for the registrant and also for the community, that we
perhaps articulate what the different options would be in really
different cases.  There's an appeal case, which is you dispute the
decision, and there's the case where the registrant wants to make
good, essentially, and there's some process for them to reinstate,
whatever that may be.

Secondly, just to pick up on a comment Kathy made, and I wonder if
the staff could respond:  My understanding was that the standard for
URS would be higher with respect to perhaps showing infringement than
it is for UDRP.  Can the staff perhaps respond as to how the staff
proposal provides criteria or how we're deciding whether something's
clear cut or not clear cut.

>>DAN HALLORAN:  So I'm sure there's a good reason why Kathy said
that, and we'll have to talk and straighten it out why, but we tried
to raise the bar.  We set it -- I think in the UDRP it's a
preponderance of the evidence standard.  We said in the URS it should
be clear and convincing evidence, which is a higher standard,
generally, of proof, to -- that the complainant would have to show to
get the thing taken down.

>>BRUCE TONKIN:  And I think Kathy had a comment to make on the
appeal process as well, if you wanted to make that comment.

>>KATHY KLEIMAN:  Yes, please.

>>BRUCE TONKIN:  Okay.  Go ahead.

>>KATHY KLEIMAN:  Okay.  The appeal, as -- and I've got the staff
report in front of me.  The appeal here is for cases of arbitrary and
capricious or abuse of discretion.  It's not a de novo review.  And
what we're saying is the registrant won't know -- in many cases it's
so fast that until the domain name stops resolving, the registrant
won't know and won't know that there's a proceeding going on and then
they'll say, "Wait a second, I want to tell you my Web site was
hijacked or something was going wrong or I have a defense or I" --
just because there's a defense, there's kind of -- almost an
assumption of bad faith.  We see throughout the UDRP.

So I'd like to see this de novo, and I have to say it, and I guess
I'm on the record, the IRT kind of got this one right and let's go
back to that.

[Applause]

>>MARK PARTRIDGE:  Thank you, Kathy.  Bruce, could I comment on the -
- not on Kathy's point but on the --

>>BRUCE TONKIN:  Yeah, I don't want to get into too much of a
discussion because again what we're trying to stimulate is the
community responding.  But, yeah, if you'd like to respond, yes.

>>MARK PARTRIDGE:  I just want to comment on the burden of proof.  

The IRT's perspective on the burden of proof was that it was a
higher standard.  The UDRP is a preponderance of evidence.  The
higher standard proposed for the URS was clear and convincing
evidence, plus the procedural idea that it had to be no contestable
issue.

It's -- in the -- under U.S. law, it's like a summary judgment
decision.  There's no contestable issues, there's no need for further
trial, and that then -- then the decision can be made right now.

That idea, I think, could be added back into the staff proposal.

>>KURT PRITZ:  Yeah.  So I just want to respond to Kathy.  I think --
and you.  I think the idea of, you know, a way for -- a method for
reinstatement should be inserted into the program, so we can't talk
to it right now because we haven't thought it through.  That's one.

And then somewhere about two-thirds of the way through Kathy's talk,
she essentially gave a list of improvements that could be made to the
process, so I think we want to put bullet points in front of each one
of those and take a look at those.

>>KATHY KLEIMAN:  I promised Bruce I'd limit it -- well, okay.  Then
-- evaluation criteria is different than evaluation standards.  When
we're going into a criminal court, we have different elements of the
crime.  You know, where was -- was the person trespassing and did
they have a gun and then you look at you have to prove it beyond a
reasonable doubt, but if you're looking at the same elements, it is
UDRP criteria and all you're doing is applying a different standard,
you're not going to get to those egregious cases.  Evaluation
criteria is different than evaluation standards and I promised Bruce
we'd take this off line.

>>EUN-JOO MIN:  I'd like to react on just two points.  We've had
over 16,000 UDRP -- UDRP cases, and the respondents that we see in
those cases are not normally grandmothers, grandsons, friends,
engaged in legitimate purposes, but they are -- the trend in
cybersquatting has changed.  They're -- we're rarely seeing -- we are
seeing individuals but more and more, we're seeing respondents that
have snapped up expiring domain names through automated computer
programs.  Grandmothers normally don't know how to operate automated
computer programs, and my children certainly don't know how to do that.

And what are the types of disputed domain names that we're seeing? 
For example, we're seeing -- we're talking about swine flu these
days.  There's a lot of concern.  Is tamiflushop.org,
buytamifluonline, buytamifluonlinewithoutprescriptions,
tamiflucheapest, et cetera, et cetera -- these are not domain names
that are -- sorry.  I'll go slowly.

These are not normally domain names registered by our grandmothers
or grandsons.  That's one point.

The second point is we've talked about how -- how the URS does not
protect respondents.  I think generally speaking, UDRP is regarded as
an ICANN success.

So let's take the standards applied under the UDRP.  Under the UDRP,
the respondent has 20 days to respond.  Under the URS, the respondent
has 14 days to respond with the possibility of requesting a 7-day
extension.  So what is the difference?  

I have a hard time understanding the big difference.  Under the URS
it seems they get one extra day.  Also about notices, that
respondent's domain name will be hijacked so quickly they don't even
realize what's going on. Under the UDRP, notice is granted by post,
fax, and e-mail.  Under the staff URS proposal, the same notice
methods apply.  So, there again, we have some difficulty
understanding the concerns for the URS.  Thank you.

 >>BRUCE TONKIN:  So I'll end it there because we started getting
into the crux of the debate.  But I think, in terms of the next steps
in the process, it does need to be more work in clarifying standards
and what -- you know, how URS is different to UDRP and what the
standards are.  And there does need to be some thought given to what
the appeal and reinstatement processes are, I think, is an outcome of
those. And just what those standards are and, et cetera, we're not
going to try to solve here now.  So I'd like to get on to the next
topic, which is the post-delegation process.  And the reason for that
is that we'll have had the panel address all three topics, but then
we'll allow the audience to raise questions about any of those.  So
last time I started at the end, so this time I'll start in the middle
and allow Jeff Neuman to make remarks on this topic.

 >>JEFF NEUMAN:  Can I, before my three minutes starts, ask a
question?

 >>BRUCE TONKIN:  Questions of clarification are fine.  Don't make a
policy statement, though.

 >>JEFF NEUMAN:  No, I won't.  During Kurt's presentation, you added
this affirmative conduct standard for the registry that's engaged in
affirmative conduct.  I see that in the language at the top level.  I
don't see that at the second level.  Was it your intent to make it
part of the second level, too?

 >>KURT PRITZ:  Yeah, there's similar language, though, that
requires some sort of act, right?  Do you have it in front of you?  I
can't read that tiny font.

 >>JEFF NEUMAN:  I know.  Sorry.  It says there's a substantial
ongoing pattern or practice of specific database intent.

 >>KURT PRITZ:  So the affirmative act is intended to be the
practice.  So the wording is slightly different.  And, if you have a
suggestion for making it more clear, then --

 >>JEFF NEUMAN:  Now I can start my three minutes.  Thanks.  For the
record, I just want to point out that the post-delegation dispute
resolution process that was initially put out by the IRT and
supported by the community is actually not the same one that was put
out by ICANN staff in the last version of the guidebook.  So I just
wanted to make that point for those that may have read the IRT report
but not the staff report.  They are actually quite different.  So
while the IRT was cognizant of the fact that a process may be needed
to combat a bad actor registry, it was also leery to subject registry
operators to the chilling effect of frivolous claims being filed by
overly aggressive trademark owners that were trying to pursue an
avenue of prosecution not available to them under the law of any
national jurisdiction.

This not only includes a high threshold for the substantive
determination of whether a registry is a bad actor but also
significant barriers to the filing of disputes to weed out frivolous
actions by those seeking to use the process as a means to extract
settlements or other actions that are neither in the best interests
of the private parties to a registry agreement or to registrants. 
And, even if the substantive grounds for the dispute that ICANN has
proposed are similar to what the IRT has -- had proposed, the
procedural -- the process that's put in by ICANN staff is completely
insufficient.  ICANN staff needs to go back to some of the IRT
recommendations.  One of them is to, actually, make it clear in
writing in an actual formal process that ICANN's primary role is for
contract compliance.  It's not anybody else's role but ICANN.  ICANN
needs to have a written procedure that documents much of what Kurt
said in the initial opening statements that, really, someone could
submit a complaint to ICANN.  Doing that -- and, actually, it's my
recommendation that that be mandatory before any post-delegation
dispute is filed.  The reason being is that it will be -- not only
important for ICANN to do its job in compliance, but will also serve
a gatekeeper function to make sure that those frivolous claims aren't
filed against the registry.  In addition, it's ICANN's sole
responsibility -- and not anybody else's, not a panel -- to determine
what an ultimate remedy is against a bad actor registry.  This not
only preserves the private party contract between the registry and
ICANN, but also preserves a right of appeal for a registry if it were
to want to go after -- or sorry -- if it wants to appeal that
decision.  If it was a completely independent party making that
determination and not ICANN's determination, then all of the
governing law and dispute resolution in the registry agreement is
pretty much irrelevant.  There are a bunch of procedural concerns
that I put in that I documented in an article including things that --
10 seconds -- ICANN, essentially, has lowered some of the procedural
responsibilities in the name of efficiency.  But it's got to go back
and look at that.  Because, in trying to increase efficiency, it's
lowered the cost and lowered the barriers to frivolous actions being
filed.  And mark my words:  I get a letter every week or every other
week from a trademark owner against my registry for potential
contributory trademark infringement.  And, even though the law is on
my side, I know that these guys would be the same people that take
advantage of the post-delegation dispute.

 >>STEVE PINKOS:  Jeff, I know you're very passionate about this. 
I'll yield you one of my minutes, if you need to keep going.

[Laughter]

 >>BRUCE TONKIN:  I'm sure Jeff will have other opportunity this
week to reiterate his comments.  If we can move to the right.  If you
have a comment on this.

 >>EUN-JOO MIN:  So I agree with Jeff that this is fundamentally a
question of contractual compliance.  The GNSO made it very clear that
TLDs should not infringe the legal rights of others.  And I hope that
that will be made explicit in the registry agreement and also in the
registrar agreements.  And this procedure would be a standardized
form to assist ICANN's contractual compliance team to enforce that
aspect of the contract.  I was very pleased to attend the IPC meeting
yesterday where ICANN's contractual compliance team presented its
efforts in reviewing the behavior of registrars that are engaged in
cybersquatting.  We hope that the same activities will be undertaken
for registries as well and that -- and that this procedure can be
used to complement, complement such ICANN activities.  And I would
use also this opportunity to reiterate our suggestion that a similar
analogous procedure be adopted for registrars.  And I also agree with
Jeff that, in the end, fundamentally, because it is a contractual
compliance question, the remedies should also be up for ICANN to --
to make the final determination and also to enforce.  So that's the
first issue.  

The second -- the second is on standards.  ICANN has adapted the
standards proposed by WIPO and those proposed by the IRT.  And I
think further clarity on these standards would be very useful.  

Jeff asked a question on what affirmative action means.  And we also
have a similar question on that.  For example, in the case of -- in
the UDRP cases, but also some of the troubles that we're having with
certain registrars, when a contracting party is deliberately engaged
in material omission, then is that an affirmative action, for
example?  

And then my last point would be on process.  We also do not want
frivolous overzealous trademark owners filing complains under this
procedure.  And the process, as currently designed by staff, we think
is a little too late.  For example, there's a limit of 5,000 words,
which is the same word limit that applies to UDRP.  And the response
period is also 20 days, which is, again, the same as UDRP.  This
procedure should fundamentally be very different from the UDRPs. 
We're talking about registries conducting businesses.  And the
nuclear bomb remedy would be termination of that agreement.  And the
process should probably be designed to reflect the import of such a
procedure.  Thank you.

 >>BRUCE TONKIN:  Thank you.  Did you have a comment on this one,
Mark?

>>MARK PARTRIDGE:  Just very briefly.  Aside from echoing much of
what's been said so far, I think the point that came to our attention
in the IRT process was that it seemed to be beneficial to have ICANN
involved as one of the steps to help avoid the potential for abuse of
the system.  And that's missing from this report.  And we think it
would be a good addition to keep that there as a -- to decrease the
likelihood of action by overly aggressive trademark owners.

 >>BRUCE TONKIN:  Thank you.  Did you want to comment on this one?

 >>KATHRYN KLEIMAN:  Just a quick, very quick comment on this. 
Because we were asked to prepare responses to two of the three
issues.  But I'd like to say we'd like to see the same protections
for registries in the new gTLDs that we'd like to see for registrants
in the new gTLDs.

[Applause]

 >>BRUCE TONKIN:  Just, I guess, a comment about the changing
environment that might be possible with new registries in the future
and how it might relate to this post-delegation dispute.  Currently,
we have an assumption that most of the existing, whether they're
ccTLD or gTLD registries, generally don't operate a portfolio of
names themselves.  So, generally, the names registered by third
parties are independent from the registry.  What could change in the
future and where this becomes more relevant, perhaps, or more
important is where registry is owned by -- has the same organization
that owns the registry as owns the majority of names.  So we might
see that with more corporate-oriented registries, could even just be
different business models.  And a registry decides to, basically, not
offer names for third party registration.  In that case, they would,
you know, certainly be more directly responsible for the use of the
names than the registries are today.

And then the other aspect of that to think about is that a registry
can also use independent -- not independent -- can actually use
related entities to register names.  So a registry might own a
independent subsidiary.  And that subsidiary might be registering
names in that registry.  So I think ICANN just needs to be careful
that there's not an attempt to disassociate and say, "Well, that's
not us.  That's this other company," when the other company is
actually owned by the same corporate entity.  So there will be more
complex structures or ownership structures.  And I think these post-
delegation processes are going to be increasingly important.  Any
other comments on the panel?

>>STEVE PINKOS:  Real quickly on this issue of post-delegation
dispute, mostly reiterate what Mark and Jeff have said.  

In response to the questions on the screen, I would say yes to
number one and that will help with number two.  And, importantly, I
think that, in keeping with my theme of kind of getting people
together to hash out the differences, this one, the changes from the
IRT seem to -- well, clearly, obviously, were made by ICANN staff in
an attempt to make this an effective procedure.  I'm not sure if they
were driven by any other constituency.  This may be one to be hashed
out directly between ICANN staff and IRT and other people that are
interested.  It seems like there's a desire to go back something a
little bit closer to what the IRT suggested.  In particular, you
know, the top -- at the second level.  I mean, the top level, by and
large, probably things would be pretty taken care of.  And registries
are going to be very disincented, as a business that's invested a lot
of money, to try to pull the wool over people's eyes and be dot apple
and not sell apples and suddenly sell electronic devices.  

But, at the second level, registries are rightfully concerned about
the slippery slope.  These battles have been fought for years in the
copyright arena.  The slippery slope of vicarious liability and the
concerns that Jeff has expressed, I think, are truly legitimate.

 >>BRUCE TONKIN:  Okay.  Well, I think at this point we'll go to the
audience to raise comments or questions on any of the three topics. 
We've covered the idea of a database for trademark information. 
We've covered the idea of a rapid suspension approach.  And I think
Kurt also has a question.

 >>KURT PRITZ:  I'll start.  Everybody wait.

 >>BRUCE TONKIN:  Also can you identify how much time we have for
this discussion?

 >>KURT PRITZ:  So, Jeff, I think you and I agree, as usual, on a
lot of the points you made.  But -- so what I want to clarify and
what I heard is that, you know, we're for this post-delegation
dispute model, especially an independent dispute resolution process
to adjudicate some of these third-party claims.  But in the staff
proposal there needs to be more or greater deterrence to prevent
frivolous or abusive claims, that there needs to be some sort of SLA
for compliance in order to be able to predict for rights holders how
long the claims will take to -- for compliance to address.  And it's
ICANN's role decide on the role for sanction.  It's not for an
independent third party.  I know you said more than that, but you
said those three things.  

In general, just to answer it briefly, I supported the post-
delegation that was in the IRT.  And I do think we could make a
workable version of that, and we can improve on it to make sure that
it deters the abusive filings that we talk about and make sure that
abusive registries, ones that don't own portfolios of names and
aren't the ones that Bruce was talking about, to make sure they
weren't caught in the crossfire.

 >>BRUCE TONKIN:  Start on this side.  Mike.

 >>MIKE RODENBAUGH:  Thank you, Bruce.  They do run a little shot
clock here.  So try keep your comments brief.

 >>MIKE RODENBAUGH:  I want those 20 seconds back.  I'm Mike
Rodenbaugh.  I represent the business constituency.  Couple comments,
maybe a question in here somewhere.  But, if the URS is not
mandatory, the theme of my comments is that you're doing nothing here
and this entire effort is a failure.  At this point you're saying
that you can have either a sunrise period, which definitely ought to
be a standardized sunrise period across all new TLD registries,
which, I think, is not in the proposal now and is very important, or
you can have an IP claim service, which, I believe, only goes up to
the point that you decide to launch a land rush.  After that,
typically, typically, registries won't be doing lookups against the
database.  So, therefore, it's pretty worthless.  Because you can
then just go and infringe at any time after the land rush begins.  I
don't understand what the point of the I.P. claim service is in that
instance at all.  But I do suppose that registries or registrars
could do lookups optionally, if they wanted to, for any registration
that comes after the land rush. And I think they would be incented to
do so particularly because of vicarious liability theories, if their
competitor is doing it and they're not.  It at least has to be
optional.  But I would argue the BC position that we're taking is
that it ought to be mandatory.  Even after land rush, every domain
application should be looked up against the database.  And, if
there's a hit, it should trigger a notice.  If not, again, it just
makes the URS even more critical; because there will be nothing else
in place other than the UDRP, which we all know today -- well, it was
a success at the time, certainly, has over time resulted in really
becoming a -- not an effective remedy for trademark owners, given the
volume and the cost.  So I would urge that the URS definitely be
mandatory and that also trademark owners who are successful in their
URS complaints are able to get transfer of the name.  I certainly
understand and respect the due process concerns.  But, if they're not
able to get transfer of the name, it's just going to go back to the
pool.  And you can have the same issues rise over and over again. 
Moreover, you're also allowing, in the case of competitors -- that
registered names that relate to their competitors, you are allowing
them to, essentially, win.  Because they're keeping the names from
the competitors, unless you file UDRP, which is really what we're
trying to avoid.  So, as a compromise, what we're proposing from the
BC, is that from the date of the URS decision you start the clock. 
You give 90 more days.  And, if there's no appeal filed or court
action filed, then the trademark owner ought to be able to elect to
transfer the name.

 >>BRUCE TONKIN:  Thanks for the suggestion.  Evan.

 >>EVAN LEIBOVITCH:  Hi.  My name is Evan Leibovitch.  I'm chair of
At-Large for North America.  And this is a question.   

And, by the way, Eun-Joo, don't underestimate what children are
capable of doing.  My son was on e-mail at 3 1/2.  

In discussions at At-Large and various other parties we've been
talking to have been coalescing on the issues of trademarks.  We've
been generally supportive of what's been going on, but there's a
couple of things that are really sticking.  And the biggest one that
none of our community can support is the idea of the common law
trademarks included in there.  I'd really like to get your comments
on that.  This is something that's recognized in the U.S. and in the
commonwealth and pretty well nowhere else.  So, as you put this in,
you're imposing that on other countries that don't recognize common
law trademarks.  And, you know, most of this is -- should be
protectable by people who have taken the time to actually go and
register trademark with the national government, go through the
process of designating a scope of the category of trade and things
like that the common law marks don't have to go through.

So I'd like to find out who on this board, who on this panel is
actually defending common law marks.  Because we'd really, really
like to see them out.

 >>BRUCE TONKIN:  Just remember the panel is not making decisions
here.  It's -- but is your question:  Has any panel member looked at
that issue?  You want to just quickly respond to that?

>>MARK PARTRIDGE:  I can try to give a perspective on the issue. 
The idea behind the clearinghouse is it's simply a database of
information.  Some registries, when they've initiated their process,
have said we're going to have a criteria that's based on certain
local rights, for example, trade names in the United Kingdom.  What
would be envisioned here is that that information could be in this
clearinghouse so that the registry that is going to use that
information would have authenticated information to rely on.  It's
not -- at least from the perspective of the IRT, it's not intended to
create any new rights or to extend a common law U.S. right into a
country that doesn't recognize common law rights.  The extent to
which that common law right is recognized would depend on the
decision by the registry to say that this information is of interest
to our particular registry.  We're a local German registry.  We would
like to protect German trade names.  We're a local German registry. 
We'd like to protect German book titles.  That data could be in the
database.  But, again, it's not envisioned, from the IRT point of
view, to create any new rights or to extend rights beyond their
territory.  Believe me, the people on the IRT well recognize that
trademark rights are territorial.  We understand that.  We also
recognize that much of the world doesn't recognize common law rights.
They're based on recognition.  Some places they are.  And the
suggestion would be that the clearinghouse could provide that
information to people where it's relevant.

 >>BRUCE TONKIN:  Okay.  We'll take any more detailed conversation
offline.  Across to John.

>>JOHN BERRYHILL:  Yes, I had one quick comment and one question. 
Ms. Mann, I will be filing an UDRP response today on behalf of a
gentleman and his wife who have eight children and the domain name is
a substantial part of their business.  Believe it or not, among the
16,000 worthless orphans you've seen in UDRP disputes, many of them
do have families and are real human beings.

Following up on the territoriality of trademarks, trademarks are
also temporal.  In any version of the clearinghouse, is there a
mechanism for removing claims in the event the mark is abandoned,
assigned, expired, or invalidated?  I've always heard that this will
be a proprietary database that won't be open to public inspection and
challenge in the way that normal trademark registers are.  That is,
if someone tries to register a domain name, they are deterred by some
claim in the database that may no longer be a supported claim.  But
they don't know that and there's no third-party mechanism for
notifying the clearinghouse of invalidation of a mark or a successful
challenge or expiration of the rights.  Has there been any thought
given to that?  Thank you.

>>BRUCE TONKIN:  I think I will put that to staff rather than the
panel.  But let me make two comments on that.  One comment is
transparency, so whether the public can actually read the data in
some way, maybe through some sort of Web interface as opposed to the
registries which would have automated, you know, retrieval access,
I'd imagine access could be different between public access to the
data and registry access to the data.

But coming back to your point about what happens if the data is no
longer valid, perhaps the staff could respond on how that would be
handled.

>>KURT PRITZ:  Well, the proposal that's written now calls for a
regular renewal of the data.  At one time, it was an annual -- you
know, an annual revalidation of it.  I don't think it's annual
anymore.  But it's regular.

As far as a third party participating in that process. that's
certainly not part of it.  I'd want to hear anybody else's opinion
about that.

>>BRUCE TONKIN:  I think the point John's making there is if a
member of the public inspected an entry in the database and said that
entry's wrong because the trademark's expired, for example, or wasn't
renewed, is there a mechanism -- but like with WHOIS accuracy, that
you would notify saying, "This data is no longer accurate" and there
is some process for that data to be corrected.  

Just keep it to the staff.  Is that something that's been thought
through?

>>J. SCOTT EVANS:  What would happen is if a registry registered --
realized the rights and it is in the database and it is pulled and
you're blocked and they've decided to have a sunrise, let's say, then
you as the blocked party could bring a sunrise challenge to say
that's no longer valid.  

So you do have, as a person, a chance to challenge.  And then you
have to validate our plan, the IRT plan, which you had to validate
annually.  And if you didn't validate, there were sanctions.

>>BRUCE TONKIN:  It seems to me we just need to clarify the
validation process.  I don't want to solve the problems here, but I
think there needs to be a mechanism where someone can report.  It is
a bit different than what you are saying there, J. Scott, inaccurate
data, have an inaccurate WHOIS and there is some mechanism for that
to be deleted or corrected.

>>KATHRYN KLEIMAN:  Can I just make a real quick point on that which
is that Jeff in drafting his IP claims, as I understand it, provided
the registrant with information with a link directly to the trademark
claim itself so they could see it.  They could see the scope of it. 
They could see the language.  They could see the category.  That in
itself reduced the chilling effects.

So here that ability to have that linked, to be able to go in and
see the data and evaluate it will help, not everybody but it will
help; and it will reduce the chilling effects.

>>BRUCE TONKIN:  Thanks, Kathy.  Wendy?  I think we might be losing
the order here.  But go ahead, Wendy.

>>WENDY SELTZER:  Thanks.  Wendy Seltzer.  I'm here speaking as an
individual and as founder of the Web site chillingeffects.org where
we have a clearinghouse of complaints that have been made against
online speakers and analyses of the letters that are sent and where
we see a vast number of reasonable threats and a vast number of
unreasonable threats that because they're made in legal context often
have the effect of chilling an online speaker.

Turning specifically to concerns with the Uniform Rapid Suspension
process, my concern is not for the rights of the serial cybersquatter
but for the process to take account of the inevitable false
positives.  We can't get to a perfect procedure.  So how do we deal
with the wrongful threats against perhaps nearly erroneous, perhaps
maliciously made against somebody who has legitimate right or
interest in a domain name.  

So a few specific suggestions that I want to float for
consideration.  The default timeline seems, while designed to achieve
a rapid result, likely to take some names away from people who simply
fail to respond, allow someone to reopen a proceeding as though he
had never defaulted when he or she notices the complaint in queue or
more likely notices that the domain has stopped functioning properly.

A couple of other quick suggestions, an appeals process within the
URS system so that we build a body of real precedent rather than just
a mass of unreviewed decisions quicker and cheaper for the registrant
than appealing to the ombudsman and allowing for the registrant to
challenge an improper decision.  And some review of the URS decision
providers, a review or audit, to help ensure that the providers and
panelists are following the standards that are, in fact, set out in
any rapid suspension or decision process.

>> Pardon me.  We only have ten more minutes in this program, and we
have quite a few people lined up.  So if you don't mind, we have ten
minutes before we finish.

>>BRUCE TONKIN:  Thanks.  Thanks, Wendy, for making some positive
suggestions for change, too, because that's always useful.

Cross on to this mic.

>>ALEX GAKURU:  Thank you.  My name is Alex Gakuru.  I'm
representing internet consumers from Africa and Kenya, noncommercial
users.  I will be quick.  The board policy mandate to develop
mechanism that protects legal rights of others seems to have morphed
into all sorts of commercial interests of others.  And so what about
the human rights of all the other people that are on the Internet?  

The emphasis, the focus has been intellectual property until now. 
And I'm happy this improved version is just dealing with trademark,
but it is of concern that the rights seem to have been changed into
commercial rights and interests are now we have the trademark.

I want to raise attention to RFC 1591.  It specifically talks about
the rights to names and touches on domain -- rights to names and
trademarks.

Now, alongside that and to be brief -- because of the shortness in
time, I want to ask a simple question.  When people in Africa finally
get connected, because we are under 4% connected to the Internet,
when we get there, shall we find any names still available?  Or will
they have all been taken up through the system that ICANN is enabling
and in view of that RFC?  Or should we have an equal right to have
the names?  Okay, that's question number one.

Question number two is I want to ask on the URS, it presumes guilt
until very complicated processes take place to perhaps confirm you're
innocent.  

Does a registry -- if you make it mandatory, who will bear the legal
burden and costs of a domain taken, if the registrant opts to take
legal action for the damages for the time the domain was suspended,
if it was a commercial, et cetera?  I will stop there because I think
my time is up.  The rest I can always contribute elsewhere.  Thank
you for listening.

>>BRUCE TONKIN:  Thank you.  Perhaps if I could just ask a quick
response from staff on the legal things.  I think we're saying, like
UDRP, there is always the option to go to a legal court if you don't
like the answer.  And I guess the same with URS.  Do you want to just
respond on that -- on the liability?

>>DAN HALLORAN:  Yes, thanks, Bruce.  I think we actually had that
as one of the questions, or at one point we did.  What should we do
if it is taken down incorrectly?  And there's going to be damages
there.  I think the IRT at times and we at times tossed around
mechanisms like having bonds or something to -- and none of that has
made it into the IRT.  But it is a question for discussion for the
GNSO.

>>BRUCE TONKIN:  Okay, thank you.

>>PAUL FOODY:  Hi, Bruce, Paul Foody.  I registered my first domain
in 1997.  That to my mind gives me an existing use because at the
time, there wasn't any use classification in the intellectual
property system.  What I'd like to know from the board, because you
probably know these things, is when did the USPTO, WIPO, introduce a
use classification for the Internet?  Does it have global effect?  Do
you communicate with each other?  Please don't answer the question
right now because I realize that I'm running out of time.

The second point is that there are a lot of people who come here and
their voices are heard frequently.  Wendy Seltzer, who speak before
me, is on the board of the GNSO.  When you've got a public open forum
like this, let's give it to the public so that the public can speak.

Again, as I say, I have got a lot of points.  But in Sydney, I said
something that was -- which was completely misconstrued, something
about knowing what sort of things come from the Far East.  My kids
have been here for same amount of time as me.  I left them on their
own for two hours on Monday.  They came back, they got Louis Vuitton.

>>BRUCE TONKIN:  Hang on.  Is this relevant?

>>PAUL FOODY:  This is relevant, yeah.  They have Louis Vuitton. 
They have Dolce Gabbana.  They've got Gucci.  They have tons of
these.  I'm pretty convinced based on the price they pay that they
are all fake.  

Now, the fact is that the people who hold these rights are allowing
this to happen.  Why?  Because they want their brand to reach, in my
opinion, I should add -- it is in their interest for their brand to
achieve a certain level of market awareness.  And at that point, once
that's happened, they can either then charge full price.

It is my opinion that the trademark lawyers have allowed the
Internet to develop the way it has.  They have allowed the Internet
to become absolutely an essential part --

>>BRUCE TONKIN:  I think we have hit your two minutes.

>>PAUL FOODY:  I apologize.  I will move to the back queue.

>>BRET FAUSETT:  My name is Bret Fausett.  I found both today and in
the written materials that the post-delegation dispute resolution
process is awfully abstract.  I would appreciate either as a question
that you can answer today and more particularly in future written
materials some really concrete examples of what constitutes these bad
actor registries.  We talk about it as though it is a common, known
term, but I don't think it is.  

And if there are current G or ccTLD registries that you would
consider bad actor registries, I would love to hear the examples.

If there are things that people have imagined that would -- that
everyone would agree violate these rules, I would love to hear those
examples.  I would love to see those examples incorporated into
whatever comes out of the process.

>>BRUCE TONKIN:  That's a good point with a lot of processes, is
having what I would call the case studies or test cases.  And you use
the test cases to judge whether the policy is doing its job or not so
I think it is good advice.  Thanks.  

Phil.

>>PHILIP CORWIN:  Phil Corwin, Internet Commerce Association.  And
throughout this process, so over several meetings, we have been
striving to make sure that the due process rights of legitimate
registrants are protected and no way trying to protect intentional
cybersquatters.

Three quick points.  One, we're very concerned that the new proposed
test and the staff proposal, while the original URS was proposed as a
narrower version of the UDRP with the registration requirement, with
a higher evidentiary standard, but with a three-part test, the staff
has now proposed an "and" or an "or" between the last two parts and
that converts it to a two-part test with substantial potential to
displace the UDRP.  We think that's a real mistake and unacceptable.

Second, as this goes forward and we're hoping we can get good
consensus here that protects everyone, rights on both sides, let's
remember that while 70% of UDRP's default and the URS is obviously
designed to reach at least some significant subpart of those default
cases, that of the remaining 30%, the decisions go about 50/50.  So
we want to make sure those don't get swept in.  And those really
involve what the cost of filings are going to be.  

And we are concerned about shot-gun complaints, 50 names at a time
and with inadequate resources to really give due process on each of
those separate names.

And, last, since what we're doing here, everyone knows, much of
what's done on new gTLDs may make its way into incumbents.  We would
hope without delaying anything to give some consideration.  The staff
document says there will be no contractual relationship between ICANN
and the selected URS arbitrators.  We think that should be
reexamined.  

We think a contractual relationship would be good for complainants
and registrants.  It would bind the URS providers to giving
predictability to both sides by binding them to some kind of
following their own precedence, to ensuring neutrality of examiners,
give ICANN some enforcement mechanism short of withdrawing
accreditation.  

We saw with RegisterFly that just having a death-sentence option for
ICANN is not effective.  You need some objective standards for
judging performance.  Accreditation is about capacity.  Contracts are
about performance after you're accredited.  So we hope that's
considered, if not in the initial round, as this is developed.  Thank
you very much.

>>BRUCE TONKIN:  Have to stop you there.  Thank you very much for
those constructive suggestions, too.  

J. Scott?

>>J. SCOTT EVANS:  Hi, I'm J. Scott Evans from Yahoo! and I'm newly
installed president of the intellectual property constituency.  I
worked with Kathy Kleiman, and we drafted the UDRP final version with
Louis Touton and a group of other talented people, many of whom are
here today.

We want to let you know we appreciate you having this session.  We
appreciate that you're listening to our community.  We want to offer
ourselves as resources to assist you to answer your questions and to
work with you because we know that there's a problem, and the problem
affects noncommercial constituents.  It affects trademark owners.  It
affects mothers and daughters and children and billion-dollar
companies.  We want to work together to find a solution to the
problem.  

We were asked on the IRT to come up with solutions that would not
slow down the process and do so in a very, very short timeline.  We
did the very best we could.

We realize that we're drafting ambiguities and questions about
wording.  And all of that was driven by the time.  We had to hold
back the fences from trademark owners who want to burn the Internet
with everything they can.  We want to hold back people who think that
trademark owners are a bunch of lunatics that want to take over the
world and secretly meet everywhere to take over the world.

We just want to solve a problem.  That's what we're here to do.  We
want to work with registries, registrars, NCUC.  That's what we're
here for.  We're problem solvers.  We want to solve the problem. 
Thank you for the opportunity, and we look forward to working
together in the near future.

[Applause]

>>BRUCE TONKIN:  Thank you, J. Scott.

>>KONSTANTINOS KOMAITIS:  Yes, hello.  Dr. Konstantinos Komaitis,
and I'm a trademark law professor.  And I would like to ask
something.  Ten years ago we used the same language to justify the
UDRP and we got the blessing by WIPO and the trademark law community.

Ten years later, we use exactly the same language to justify a
system on top of the UDRP and my question is why don't we proceed to
a full review and amendment of the UDRP.  It's been two years, and
there has been a massive amount of case law.  So why don't we go
back, learn from the lessons and try to incorporate the concerns that
the intellectual property owners are having, trademark owners, within
the UDRP instead of creating a system on top.  Thank you.

>>BRUCE TONKIN:  Thanks for the suggestion.  And, certainly, I think
that's something you can put up through the GNSO.  I mean, it is a
normal part of the GNSO's work to review policy.  So I'm sure that's
on their list.

Kristina?

>>KRISTINA ROSETTE:  Kristina Rosette, IPC representative to the
GNSO council speaking in my personal capacity.  This is a random
selection of points to answer various questions that came up.

First, Kathy, with regard to the URS, there is a provision at least
in what the IRT drafted for de novo appeal.  Yeah.  

Second, with regard to John's questions, not only is there a
requirement in the IRT recommendation that the trademark owner
annually validate -- or authenticate, I think is probably the more
accurate word we should be using, the data, but they need to
accompany that authentication with a declaration or some kind of
affidavit.  And it was our recommendation that if it turned out that
the trademark owner had either falsely submitted information or
falsely withheld information, that the clearinghouse have the ability
to oppose some kind of penalty.  You know, it was one of those
details that, frankly, we were just worried about getting the report
done so we figured we would leave it for later.

And I guess another point is with regard to the access to the data
that -- by the public to the data that's in the clearinghouse, I
think that would probably not meet with a whole lot of opposition on
an incident-by-incident basis.  For example, for the IP claim you
would get a link to the particular data entry.

What I do think you would get resistance from the trademark
community is if you could, basically, have an open database of
everything that's in the IP clearinghouse so that you could find out,
"I want to see everything that Coke has in here.  I want to see
everything that Microsoft has in here."  I think that's the type of
thing that you would likely meet resistance on.

And, finally, for the staff, I noticed that there's a discrepancy in
the IP clearinghouse as to what constitutes an identical match for
purposes of the IP claim.  The language that the IRT used was taken
from dot tel which was taken from dot Asia which was taken from dot
MOBI.  So given that this is language that, frankly, has been used
successfully before and seems to have been effective, I would
encourage them to in the next iteration go back and put that back in.

>>BRUCE TONKIN:  Okay.  We'll just take one more question, and then
I'm going to hold it at that point because I have let everybody had a
chance to speak because we have to end it at some point.  I noticed
you came back a second time, which is fine; but we're just running
out of time.

>>PAUL FOODY:  As long as -- I appreciate that.

>>ZAHID JAMIL:  First of all, I would like to acknowledge and thank
Kathy for the NCUC's constructive invitation to work with goodwill. 
We look forward to the sentiment continuing in the GNSO.  So thank
you for that.

Second, making the URS a best practice is like saying "seat belts
are optional."  

Thirdly, I agree with Kristina.  If you narrow the meaning of
"identical IP claims" and sunrise, then that has a knock-on effect in
the URS since the warranty as part of the IP claims will be
unavailable in the URS proceeding.

Fourthly, with regard to post-delegation, by narrowing the scope to
only where a registry allows infringement through affirmative
conduct, a registry that allows infringement through omission or
negligence, i.e., turning a blind eye, won't be subject to the post-
delegation dispute resolution policy.

>>BRUCE TONKIN:  Okay.  I will draw the session to a close.  We are
20 minutes over the allotted time.  It was good that we had a chance
to talk on this issue.

[Applause]