Comments of Key-Systems GmbH on the TMCH "Strawman" proposals

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Dear ICANN staff, dear Fadi,

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

Best regards,

Volker A. Greimann
- legal department -

Key-Systems GmbH
Im Oberen Werk 1
66386 St. Ingbert
Tel.: +49 (0) 6894 - 9396 901
Fax.: +49 (0) 6894 - 9396 851
Email: vgreimann@xxxxxxxxxxxxxxx

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