Another day debating the IRT Report

[Kathy Kleiman]

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
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*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. *

 100.

      *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.*




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