[Fwd: robin, one question for new gTLD introduction]

[Robin Gross]

As for an update on the new gTLD policy development process, its a
critical time.

Some members of the task force and policy council will meet in LA next
week to discuss the draft final report on the policy recommendations for
the introduction of new generic top level domains (gTLDs).
(Unfortunately I won't be able to attend the LA meetings because I was
already ticketed to be in Bangalore on those dates). The new gTLD policy
is one of several issues that will be discussed at the LA meetings.

I am currently drafting some "alternative language" that can be
introduced at this meeting to try to reform the existing draft
recommendations that are so restrictive of speech and are modeled on an
ancient trademark treaty.

It is very possible that the GNSO Council will vote on the draft report
(& the alternative language) at the late March Lisbon Board meeting. So
we don't have a lot of time to garner support for reforming the
recommendations. But the current draft is so repugnantly censorious and
burdensome for ICANN that most are opposed to it - once they actually
hear what it proposes. So we as a constituency have to do a lot of
education and awareness raising on this issue. And I'm searching for
more volunteers to work on this policy development process. The
consequences of this policy are enormous for freedom of expression on
the Internet, so I'm a little puzzled why more haven't volunteered to
work on this issue yet. But now would be a most welcome time also.

One idea is that the NCUC could issue a press release on the issue and
we could each work in our own corners of the globe to publicize the
issue with the press release and other efforts. What do others think? We
also need to emphasize that the GAC principles are not nearly as
restrictive as the draft recommendations, so arguments that "we have to
do this because the GAC wants it," simply aren't true.

Here is more background:

This is the website for the new gTLD policy development issue at ICANN:
http://gnso.icann.org/issues/new-gtlds/

This is the draft policy that we want to change:
*WORKING DOCUMENT: DRAFT GNSO Recommendation Summary - Introduction of
New Generic Top-Level Domains
<http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm>* (14
September 2006)
http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm

This is NCUC's position on the policy:
http://www.ipjustice.org/ICANN/NCUC_Comments_on_New_gTLDs.pdf

another NCUC paper on the policy:
http://gnso.icann.org/issues/new-gtlds/ncuc-01feb06.pdf

Thanks! I look forward to hearing what other NCUC'ers think we should
do. And if anyone is willing to donate some energy to this issue in the
coming months, please let me know.

Best,
Robin



-------- Original Message --------
Subject: 	robin, one question for new gTLD introduction
Date: 	Thu, 8 Feb 2007 18:42:36 +0900
From: 	Chun Eung Hwi <ehchun at gmail.com>
Reply-To: 	chun at peacenet.or.kr
To: 	robin at ipjustice.org
CC: 	Mawaki Chango <ki_chango at yahoo.com>



Dear Robin Gross,
Hell, I have met you last year at WIPO development agenda meeting place,
Geneva.
Do you remember me? 8-)
Although usually a silent observer in ncuc list, I want to ask you one
question on new gTLD.
Today, in GNSO IDN WG list, there was the following attached posting.
As you know, Mike Rodenbaugh's argument can be justified in GNSO draft
final report on new gTLD introduction. And I know you had already
submitted very beautiful NCUC position statement on that document. I
express my great thanks to you for that nice job here again.
Then, now where is that document? What's the status of that draft
document at present? What is the timeline for that? Is there any more
chance to modify that document? As NCUC, do we have any other means to
intervene with this issue except for just waiting for what will happen?
If possible, please reply to NCUC list. Now, I cannot access to my
subscribed account, and so using different email account.


---------- Forwarded message ----------
From: *Mike Rodenbaugh* <mxr at yahoo-inc.com <mailto:mxr at yahoo-inc.com>>
Date: 2007. 2. 8 오전 11:37
Subject: RE: [gnso-idn-wg] Comments on notes of 30 Jan
To: gnso-idn-wg at icann.org <mailto:gnso-idn-wg at icann.org>

There is no question, legally speaking, that trademark rights do give
rights to domain strings. The ICANN community seems to have reached
consensus as to that reality long ago, via adoption of sunrise
provisions as to strings that are identical to trademarks. Regardless,
UDRP and court decisions have held that passive registration of a
domain, preventing use by the trademark owner, can amount to bad faith
registration and trademark infringement.

Furthermore, trademark owners can preclude the use of non-identical
strings when such use is likely to confuse consumers. Thousands of UDRP
decisions have found bad faith as to strings not identical to the
trademark in question.

Typographical vs. Visual Confusion:

It is only the end user perception that is relevant to the trademark
analysis, not the underlying punycode rendering. Yet, again there is no
question that trademark rights not only trump use of marks that "appear"
confusingly similar to the trademark, but also marks that "sound"
confusingly similar (Yahoo!, Yahu, Yahoux, Yawho) and marks that have
the same "meaning" (Yahoo! Mail and Yahoo! Correo (Spanish) are legally
equivalent for purposes of TM analysis).

I appreciate Mawaki forwarding the string about 'typographical'
similarity and think that can be a useful distinction as opposed to
overall 'confusing similarity' which must also include the other two
types. I agree with Avri and others that it may be harder for a
registry to make discretionary decisions about phonetic similarity and
equivalence of 'meaning' than about typo similarity.

However, businesses are concerned about all confusing similarities with
respect to their trademarks, since the law protects against all
confusing similarity in order to protect consumers. And the registry is
profiting from trademark infringement in any case of confusing
similarity. Therefore our policy work ought to consider all types, but
I think these issues may be better left to the new WG formed to address
IP protections in new TLDs.

Mike Rodenbaugh
Sr. Legal Director
Yahoo! Inc.

-----Original Message-----
From: owner-gnso-idn-wg at icann.org <mailto:owner-gnso-idn-wg at icann.org>
[mailto: owner-gnso-idn-wg at icann.org <mailto:owner-gnso-idn-wg at icann.org>]
On Behalf Of Avri Doria
Sent: Tuesday, February 06, 2007 1:18 PM
To: gnso-idn-wg at icann.org <mailto:gnso-idn-wg at icann.org>
Subject: [gnso-idn-wg] Comments on notes of 30 Jan



hi,

Re:

> 5.2 Support for a country's rights to define strings for the
> country name. Alternative view; to also accept a country's
> responsibility/right to approve any gTLD strings featuring its
> particular script, if unique for that country. Alternative view; to
> also acknowledge a country's right to influence the definitions/
> tables of its scripts/languages. Alternative view; to require a
> country's support for a gTLD string in "its" script, in analogy
> with the issue of geo-political names. Ancillary view: recognition
> that countries' rights are limited to their respective jurisdictions.


I am pretty sure I expressed the view that no such right existed and
that ICANN defining any such right was inappropriate.

a.






-- 
---------------------
Chun Eung Hwi
General Secretary, PeaceNet Korea
chun at peacenet.or.kr <mailto:chun at peacenet.or.kr>
pcs (+82) 19-259-2667
fax (+82) 2-2649-2624