RE: [soac-mapo] GAC proposal

[Milton L Mueller <mueller@xxxxxxx>]

Philip:
Indeed, the model you propose is much less worse than the kind of thing implied 
by the new GAC statement.
But the TM office examination is a nation-based exceptions procedure - and thus 
it is exactly what the US government refuses to accept.
What the GAC statement implies is that "any controversial strings" are a 
security threat and should be avoided. Thus, NONE of the marks you cite below 
would likely be permitted, because they would be controversial in at least one 
government territory.

--MM

From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of 
Philip Sheppard
Sent: Monday, August 09, 2010 3:51 AM
To: soac-mapo@xxxxxxxxx
Subject: [soac-mapo] GAC proposal

Allow me to repeat an earlier posting to this list in which I provided the link 
to the way the EU trade mark office (multi lingual, multi script) handles this 
issue.
Is this not the "least worst" model?
Philip

________________________________

Most trade mark office examine trade marks on morality grounds (it is called 
one of the absolute grounds for refusal).
By way of interest I paste below the guidelines to the examining officers in 
the EU trade mark office ( an interesting example as the issue of meanings in 
all EU languages is taken into account).
I note that under these guidelines the following EU trade marks have been 
registered suggesting the restriction is not overly severe. I believe .xxx 
would sail through. All that is proposed for ICANN is something akin to this 
with the examining officer not being a staffer (as in the EU trade mark office) 
but a third party. (PS ICANN staff were made aware of all this many moons ago).

fuck and fun reg no 009220831
fucking hell reg no 006025159  (a light beer from the Austrian village of 
Fucking)
xxx gay TV reg no 008793309
jewish vodka reg no 003083664

________________________________

-------------------
http://oami.europa.eu/ows/rw/resource/documents/CTM/guidelines/examination_en.pdf

7.8.1. Public policy or morality, Article 7 (1) (f)

Article 7 (1) (f) excludes trade marks from registration which are contrary to 
public policy or to accepted principles of morality. Like all other grounds for 
refusal, this is a European criterion, irrespective of a looser or stricter 
level of morality in different regions of the Community, but Article 7 (2) 
remains applicable as to the meanings in different languages or to the presence 
of social, political or religious phenomena in different Member States of the 
EC.

It is necessary but not sufficient condition that the use of the mark applied 
for would be illegal and prohibited. However, illegality of the use of the mark 
is not enough to render it objectionable under Article 7 (1) (f).

"Public policy" is the body of all legal rules that are necessary for a 
functioning of a democratic society and a state of law. "Accepted principles of 
morality" are those that are absolutely necessary for the proper functioning of 
a society. Article 7 (1) (f) is thus not concerned with bad taste or protection 
with feelings of individuals. In order to fall foul under Article 7 (1) (f), a 
trade mark must be directly against the basic norms of the society. The 
rationale of Article 7 (1) (f) is to preclude trade marks from registrations 
where the grant of a Monopoly would undermine the state of law.

Article 7 (1) (f) thus excludes blasphemous, racist or discriminatory phrases, 
but only if that meaning is clearly conveyed by the mark applied for in an 
unambiguous manner; trade marks that might be considered in poor taste do not 
offend against this provision. Article 7 (1) (f) also excludes all direct 
references or incitements to commit criminal acts. Furthermore, Article 7 (1) 
(f) excludes names of terrorist organizations as they would be perceived as a 
direct support for them..

There is a clear danger that Article 7 (1) (f) is applied subjectively so as to 
exclude trade marks that are not to the personal taste of the examiner and that 
should be avoided. To be objectionable the word(s) must have a clear offensive 
impact on people of normal sensitivity.