[NA-Discuss] Comments on the IRT report

[Bret Fausett]

My comments, which I submitted to the IRT comment board yesterday, are  
below. My initial draft was more detailed, with lots of word-level  
reviews and small changes, but on reflection it seemed a bit like  
adding new wiper blades to a car that need to go to the scrap heap. So  
I submitted this instead, suggesting that virtually all of the IRT  
recommendations be rethought.

      -- Bret

I have four principal concerns with the IRT Recommendations:

1. The Creation of an "IP Clearinghouse" is Beyond ICANN's Scope.

While the "IP Clearinghouse" could be a valuable tool to ensure that  
information about trademark registrations and other claims of legal  
right are available to a wide audience, the real question is why  
ICANN, of all the organizations in the world, should be the  
organization that designs, accredits and oversees a database of the  
world's trademarks. If the clearinghouse idea has utility, either  
inside or outside the area of domain names, nothing stands in the way  
of other bodies creating one. If a worldwide trademark database were  
created, it could prove to be a useful tool for registries,  
registrars, registrants -- as well as by many others operating outside  
the area of domain names. ICANN, however, should not take on the  
tremendous task of preparing an RFP, evaluating responsive bids,  
selecting and accrediting a trademark database provider.

ICANN can welcome the creation of a worldwide trademark database,  
either by WIPO or through a private, market-based solution, but it  
should neither make this task its own nor delay its own work while  
others build and populate an “IP Clearinghouse.”

2. Protection, Not Allocation.

Trademark registrants should be entitled to trademark protection, but  
not a first-right of registration. Prospective domain name registrants  
should have at least as good an opportunity as anyone else in the  
world to register a domain name that they intend to use for any  
lawful, non-infringing purpose. For this reason, "Rights Protection  
Mechanisms" ("RPMs") should protect trademarks, not allocate domain  
names. Any RPM that acts as an allocation mechanism should be  
rejected. By that test, a significant effect of the IRT's "GPM" is to  
allocate domain names to a certain category of trademark registrant,  
usurping registration opportunities from registrants, even in  
countries where the so-called "GPM" has no registration or effect. The  
premise of the GPM is that certain words cannot be used in other than  
their trademark sense, anywhere those words are used in the DNS,  
anywhere in the world. This is an obviously false premise.

3. "Rapid Suspension" is a GNSO Issue, Not a Board Issue.

As a lawyer who frequently handles domain name arbitrations and  
trademark litigation and who participated in the ICANN processes that  
created the UDRP, I am well aware of the time and effort that went  
into the creation of the UDRP, the successes and failures of the  
current UDRP, the different ways that individual UDRP arbitrators  
evaluate UDRP complaints, and the inconsistent results of those  
arbitrator's decisions over time. Creating a dispute mechanism that is  
predictable and reliable – even for what is intended to be egregious  
cases on the extreme margins of the registration spectrum – is complex  
and requires consideration of the issues from all involved. If "Rapid  
Suspension" has merit, it should be proposed by the IPC within the  
current GNSO structure, where it could be more thoroughly considered  
by the broadest segment of affected parties and considered in  
conjunction with a review and revision of the current UDRP, with which  
it overlaps.

4. "Post Delegation Dispute" is Inappropriate.

The IRT section on a proposed “Post Delegation Dispute” mechanism is  
poorly described, but the intent seems to be to ask ICANN to expand  
its contractual compliance program to a registry’s treatment of  
trademarks. Many of the items described in this section, such as a  
registry creating an environment for trademark abuse, are hard to  
measure and inappropriate for either dispute resolution or contractual  
compliance. The best remedies for the sorts of problems described in  
this section are in courts of law, not in a new dispute mechanism.

-- Bret Fausett