[ALAC] Outcome of new gTLDs, "Strawman" proposal

[Olivier MJ Crepin-Leblond]

Dear Alan,

thanks for this quick summary.
One item which has been matter of strong debate on the NCSG list has
been the matter of Trademark Claims Protection for Previously Abused Names:

Quoting from the ICANN Staff announcement:
"The fourth element of the Strawman model was a proposal that where
there are domain labels that have been found to be the subject of
abusive registrations (for example, as a result of a UDRP or court
proceeding), a limited number (up to 50) of these could be added to a
Clearinghouse record. These names would be mapped to an existing record
where the trademark has already been verified by the Clearinghouse."

The ALAC has, in its statement, supported the idea whilst insisting that
the exact details of this idea, since it would be a change of policy,
needed to be worked out in the GNSO:

Quoted from the Public Comments report:
"Given the limited nature of this protection and its reliance on past
abuse, ALAC supports the inclusion of domain names previously determined
to have been abusively registered or used in both Trademark Claims
services. This change is a totally new mechanism that has not been the
subject of previous extensive discussion and investigation; as such, it
is clearly policy and cannot be judged simply as implementation. ALAC
encourages the GNSO to fairly investigate the benefits and impacts of
this mechanism and to recommend its adoption. ALAC (16 Jan. 2013)"

Alan - I do not believe that our position has changed on this, and I am
concerned about accusations that the ALAC supports creating new rights.
Whilst it is clear that previously abused names have a significant
negative effect on Internet users, the proper course of action should
have been to consult the GNSO. To-date, we do not know *what* kind of
variation would be allowed, whether this includes typo-squatting, visual
similarity or other systems that might be used to stifle freedom of speech.
May I remind you that the ALAC's position on the STI was to not allow
for other "rights" to be afforded, but that any additional information
that a Trademark holder would like to specify to be displayed for a
potential registrant could be contained in another database - but one
which did not hold the same legal status as the "main" TMCH database.

A GNSO WG would have raised questions about that. I am all for
protecting Internet users from fraud - but I am also process-oriented
and am therefore very concerned that this creates a precedent. We have
complained in the past that staff implementation is different than what
we had envisaged. Here, we clearly said it was policy & staff made a
policy decision.

In light of this, I'd like to first get a point of view from ALAC
members here, and second, suggest that this specific point (TMCH+50) be
a topic for discussion in our meeting with the NCSG on Monday 8 April.

Kind regards,

Olivier


On 22/03/2013 03:44, Alan Greenberg wrote:
> ICANN has announced the outcome of the new gTPD trademark protection 
> discussion.
>
> http://newgtlds.icann.org/en/about/trademark-clearinghouse/strawman-solution-memo-20mar13-en.pdf
>
> Although the outcomes were not exactly as the ALAC advised (in terms 
> of what required policy development), all of the IP protections that 
> ICANN will be moving ahead with were supported by the ALAC, and the 
> one additional protection that the ALAC explicitly did not support 
> will not be implemented.
>
> Also a vlog from the CEO - 
> http://blog.icann.org/2013/03/new-gtld-milestones-and-deadlines/.
>
> Alan
>
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>

-- 
Olivier MJ Crépin-Leblond, PhD
http://www.gih.com/ocl.html