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<p style="margin-bottom: 0in;">Hi All,<br>
Yesterday was the second
public consultation by ICANN of the new gTLD plan (the first being
in Sydney).<br>
A good half the day was devoted to the IRT Report- the
Intellectual Property Constituency's plan to expand trademark<br>
rights
in the new gTLDs. I was there as our NCUC representative.<br>
<br>
We
(NCUC and friends) opened the day early with a breakfast I organized
for
groups and individuals concerned about the IRT proposals.<br>
It was a great group which included representatives of
New Yorkers for Fair Use, Internet Commerce Association (business
registrants), eNom, the chairman of the Registrars Constituency, John
Berryhill (a registrant attorney) and even a reporter for the New
York Times. The breakfast was sponsored by NCUC, ICA, eNom and Tucows.
It was good fun and a great discussion.<br>
<br>
Our group then went into the IRT session next door at 9am. We heard the
IRT Team report (again) and WIPO for hours. Only the newly-added report
of Richard Tindal of eNom with some great concerns and good ideas for
major changes was a highlight. When
the microphones finally opened for questions, not until after lunch, we
jumped up to raise our objections. I got there first. I
jumped up and read the speech below. Others followed with lots of
concerns about noncommercial domain name registrants, individuals and
commercial registrants. I am happy to say our voice was heard loud
and clear. I think our concerns truly resonated.<br>
<br>
Below is my
speech which might of interest. Good luck to Konstantinos, our NCUC
representative, and anyone
who can join him tomorrow AM in London. May the force be with
you!<br>
Kathy<br>
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<p><font face="Arial"><font size="4"><b>Good morning,</b></font></font></p>
<p><font face="Arial"><font size="4"><b>My name is Kathryn Kleiman and
I represent a group not even listed on the descriptions of attendees
in the ICANN signup for today – I represent registrants.</b></font></font></p>
<p><font face="Arial"><font size="4"><b>In my group, ICANN’s
Noncommercial Users Constituency, our 102 members register their
domain names on behalf of human rights groups, public interest
groups, community and political groups worldwide. Some members risk
their lives and livelihoods to post content about corruption,
extortion and malfeasance. It is some of the very highest uses of the
Internet.</b></font></font></p>
<p><font face="Arial"><font size="4"><b>Yet, our domain names, and
those we register in the future, will be at risk under the IRT
proposal. I have been asked to share 3 quick points:</b></font></font></p>
<p><font face="Arial"><font size="4"><b>1. The IRT proposal provides
for only one type of abuse when there are two. The IRT fears
trademark infringement, but not trademark lawyer abuse. Every day,
trademark lawyers threaten domain names. Under the guise of trademark
infringement, they drive out new competitors, squash those who
investigate or criticize them, or simply try to snatch away a good
domain name they did not think to register. The next group must dig
from the deep expertise on both side of the abuse aisle; the next
version must mitigate both abusive experiences.</b></font></font></p>
<p><font face="Arial"><font size="4"><b>2. The IRT proposal goes far
beyond the two limits which should be its bounds, that ICANN is a
technical body with a limited scope and mission, and that trademark
law as it exists under every law is bounded by protections for fair
use and freedom of expression and the right to simply use language.</b></font></font></p>
<font face="Arial"><font size="4"><b>For example, </b></font></font>
<p></p>
<p><font face="Arial"><font size="4"><b>A. The IP Clearinghouse takes
ICANN into the job of global rights protection and beyond its mission
as a technical manager of domain names. For ICANN to enter this field
would require it to become a trademark office, an examiner of the
registered and unregistered marks being entered. For ICANN not be
such an examiner, would create a gigantic database of unverified
intellectual property which will be misused not only again against
future domain name registrants but far outside the scope of ICANN as
well.</b></font></font></p>
<p><font face="Arial"><font size="4"><b>There may well be a need for
this type of service, but the market </b></font></font><font
face="Arial"><font size="4"><i><b>has
shown that it can and will provide it. This is one need the market
should be allowed to meet</b></i></font></font><font face="Arial"><font
size="4"><b>.</b></font></font></p>
<font face="Arial"><font size="4"><b>B. The Globally Protected marks
List brings ICANN into an area even WIPO dares not tread. There is no
international consensus on globally famous marks, and no list of such
marks prepared by WIPO nor any other international organization. It
is beyond the scope and mission of ICANN to be the first down this
path. Further, the GPML proposal goes awry by protecting these
trademarks, not as marks for certain goods and services, but as
strings of characters protected across all new gTLDs, regardless of
use or relevance. This list will remove from the domain name
dictionary basic words, including Apple, Sun, Time and People. That
ICANN cannot allow. </b></font></font>
<p></p>
<ol start="100" type="I">
<li>
<p><font face="Arial"><font size="4"><b>The Uniform Rapid
Suspension Service is among the most dangerous provisions. It will
replace the Uniform Dispute Resolution Policy with a faster, cheaper
and fundamentally more unfair process. It strips UDRP of those few
aspects that made it fair, including strong requirements for notice,
and a reasonable response time. Domain name registrants will lose their
domain names and website speech before they ever know a challenge has
been filed. As many said in their comments, this is a case of UDRP
reform, but an invalid UDRP replacement.</b></font></font></p>
</li>
</ol>
<p><font face="Arial"><font size="4"><b>We have strong objections to
the thick whois and post-delegation dispute mechanism, but time grows
short.</b></font></font></p>
<p><br>
<br>
</p>
<p><font face="Arial"><font size="4"><b>Overall, the IRT Report
includes only one half of trademark law – its rights, but not its
limits or fair use protections. The free and fair use of language
requires this balance – and the free and fair of domain names too. </b></font></font>
</p>
<p><br>
<br>
</p>
<p><font face="Arial"><font size="4"><b>For Registrants, those at the
base of the ICANN Pyramid, those registering domain name for years
into the future, we have to get these rules right, and we must make
them fair. </b></font></font>
</p>
<p> </p>
<p><font face="Arial"><font size="4"><b>Thank you.</b></font></font></p>
<p> </p>
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