Another day debating the IRT Report

[Alex Gakuru]

Hi Kathy,

Great Speech! All the best tomorrow, Konstantinos.

Alex

On Wed, Jul 15, 2009 at 12:29 AM, Kathy Kleiman<Kathy at kathykleiman.com> wrote:
> Hi All,
> Yesterday was the second public consultation by ICANN of the new gTLD plan
> (the first being in Sydney).
> A good half the day was devoted to the IRT Report- the Intellectual Property
> Constituency's plan to expand trademark
> rights in the new gTLDs. I was there as our NCUC representative.
>
> We (NCUC and friends) opened the day early with a breakfast I organized for
> groups and individuals concerned about the IRT proposals.
> 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.
>
> 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.
>
> 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!
> Kathy
> -----------------------------------------------------------
>
> Good morning,
>
> 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.
>
> 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.
>
> 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:
>
> 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.
>
> 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.
>
> For example,
>
> 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.
>
> There may well be a need for this type of service, but the market has shown
> that it can and will provide it. This is one need the market should be
> allowed to meet.
>
> 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.
>
> 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.
>
> We have strong objections to the thick whois and post-delegation dispute
> mechanism, but time grows short.
>
> 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.
>
> 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.
>
>
>
> Thank you.
>
>
>