[IDN-WG] Draft Statement on TMCH and Variants

Rinalia Abdul Rahim rinalia.abdulrahim at gmail.com
Sat Apr 20 14:20:01 UTC 2013


Dear Members of the IDN WG, APRALO and ALAC Colleagues,

I have revised the proposed " *ALAC Advice to the ICANN Board on Trademark
Clearinghouse and IDN Variants*" based on Hong's draft,  input received in
Beijing and my own consultation with IDN Variant experts.

Please review and comment on the draft on the wiki for tracking purposes.
The wiki page for the draft is here -
https://community.icann.org/display/alacpolicydev/ALAC+Advice+to+the+ICANN+Board+on+Trademark+Clearinghouse+and+IDN+Variants

Once the text is deemed satisfactory, it will be forwarded to the ALAC for
a vote.  Please try your best to respond with comments by Friday April 26th.

Text pasted below for rapid review.  The final version will be proofread and
a summary of recommendations will be produced as part of the final version
(as per our norm in giving advice to the Board).

Best regards,

Rinalia

 *ALAC Advice to the ICANN Board on Trademark Clearinghouse and IDN Variants
*

The At-Large Advisory Committee (ALAC) is deeply concerned by the
implementation model outlined in the “Trademark Clearinghouse: Rights
Protection Mechanism Requirements” published on April 6, 2013.  We view the
model to be deficient in that it overlooks the critical issue of IDN
variants, which would seriously impact the public interest in the pertinent
user communities.

We wish to highlight two areas of particular concern in the Trademark
Clearinghouse (TMCH) requirements:



*(1) Domain Name Matching*

Language communities have requested that TMCH services factor IDN-script
trademarks involving variants and that ICANN consider adopting
community-based solutions to address this issue since October 2011.  Despite
concerns raised by language community experts in the TMCH Implementation
Assistance Group (IAG), the domain name matching requirements of the TMCH
still does not take into account trademarks in IDN scripts involving
variants.  Variant matching is critical for certain languages and
particularly for the Chinese language.  To illustrate, when a trademark
holder registers a simplified Chinese word-mark and not its traditional
equivalent, the TMCH will accordingly generate only one trademark record.  The
new gTLD registries are obliged to offer sunrise services and trademark
claims for trademarks recorded in the TMCH.  Without variant matching
requirements in place, only that registered simplified word-mark will be
eligible for trademark protection.  This leaves the traditional word-mark
equivalent open for cybersquatting.  Given that both simplified and
traditional writings of the word-mark are deemed identical by the Chinese
community (and by norm few trademarks are registered in both writings),
ruling out the un-registered writing by not allowing variant matching would
make the TMCH completely useless to Chinese trademarks.


*(2) Domain Name Bundling*

The TMCH requirements specifically prohibit any registry from implementing
“variant or bundling rules” and allocating domain names under such “variant
or bundling rules” prior to the conclusion of the Sunrise Period.  Such a
restriction would exclude the accommodation of any solution for IDN
trademarks involving variants during the sunrise period at the TLD level,
even though registries may be willing to address the variants through their
own registration management and at their own expense.

 *A More Open and Flexible TMCH Model*

Trademarks have a very important function of safeguarding the public
interest by
identifying the source of goods and services.  If left unaddressed, the
deficiencies of the TMCH model design may likely cause serious public
confusion and result in market chaos.  In principle, the At-Large community
does not support over-extensive trademark protection measures.  However, we
do strongly believe that ICANN should treat all trademarks equally,
irrespective of the characters of the trademarks, and that users from all
language communities should be protected from confusion equally.



In September 2012, the ALAC statement on the TMCH called for a “more open
and flexible model” that can address our community’s concerns regarding the
limitations of a uniform model, which would be applied to all gTLD
registries irrespective of their differences and competencies.  We believe
that new gTLD registries require a more open and flexible TMCH model to be
successful and we strongly urge ICANN to move away from a model that is
centralized, inflexible and unfriendly to variants.



In light of the considerations above, the ALAC urges the ICANN Board to
call for a more open and flexible TMCH model.  Towards this end, we urge
the Board to support a community-based, bottom-up solution for TMCH
implementation and to ensure that the IDN variant issue is addressed before
the TMCH begin providing services to the new gTLD registries.



We understand that addressing the IDN Variant issue in a holistic way
requires the development of Label Generation Rules (LGR) for the Root Zone,
which experts and Staff have projected to require a minimum of 12 months.  We
appreciate that the LGR development requires conscientious effort to
maintain the security and stability of the Internet, but we are also
mindful that the business and practical requirements of new gTLD
applicants, especially from developing economies, call for urgent
implementation.



To expedite the development of appropriate solutions, the ALAC recommends
that the Board request from the ICANN CEO an interim mechanism that can
yield such solutions efficiently and on an urgent basis.  This may require
additional Staff with the appropriate linguistic capabilities working in
tandem with community members with relevant expertise.  It may also require
a consideration of expediting the LGR process for the Han script.  We
understand that in the general case, the handling of variants is a complex
issue. However, for variant cases that are well defined and understood,
such as the case of the Han script, ICANN should proceed on a fast-track
basis to include variant support in the TMCH in time to accommodate the
delegation of the appropriate TLDs.

END


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