GNSO working group
Kathy Kleiman
Kathy at KATHYKLEIMAN.COM
Sun Jun 21 02:52:12 CEST 2009
Dear Ed,
Thank you for being on this Working Group on behalf of the NCUC. For
those of us here in Sydney, is there anyplace you would like us to be?
How can we best support the work you are doing?
Best,
Kathy
> Dear all,
>
> Thanks for your input on this, I'll definitely raise the issues above,
> and any more anyone wishes to contribute, with the RAP-WG. I just
> wanted to point out that we are expecting to make substantial changes
> to the abuse list, as the WG realizes that there are lots of problems
> with it at this point. That's why your commentary at this point is
> helpful because we are just in the preliminary stages of editing the
> list and so people are receptive to ideas about the list.
>
> Also, while I'm the only NCUCer on the group, I have confidence that
> this group will be receptive to our position on limiting the number of
> activities that are defined as abuse. When we were working out the
> definition for registration there was a definite push to expand the
> scope of what would be considered abuse. However, there was an even
> stronger push on limiting the reach of the term "registration abuse."
> The group is receptive to well reasoned positions and I think we can
> definitely have the abuse list made more to our liking.
>
> As I said, any input anyone has would be gladly accepted.
>
> -Ed N
>
> On Fri, Jun 19, 2009 at 6:21 AM, Konstantinos Komaitis
> <k.komaitis at strath.ac.uk <mailto:k.komaitis at strath.ac.uk>> wrote:
>
> Dear Edward and all,
>
> ‘Gripe/commentary’ sites as abusive is a pattern that has been
> established and is being promoted as a normative justification via
> the UDRP. So far it is exemplified mainly via the addition of the
> negative connotation <.sucks> next to the trademarked term in the
> SLD space and up to this day UDRP panels consider gripe sites as
> abusive and thus they transfer the domain name to the trademark
> owner. See for instance the latest UDRP case on <.sucks>, which
> clearly illustrates this normative pattern: ( /Société Air France
> v. Mark Allaye-Chan, /WIPO D2009-0327/ (“The disputed domain name
> contains the Complainant’s entire trade mark. However, it also
> contains the suffix “-suck”. The disputed domain name therefore
> falls within the category of so-called “sucks” cases (where a
> trade mark is joined with a negative term). Previous panels who
> encounter “sucks” cases have found that a domain names can be
> confusingly similar to the trade mark for various reasons,
> including because the disputed domain name is highly similar to
> the trade mark; or because the domain name may not be recognized
> as negative (for example, for non-English speaking Internet
> users). This view (that “sucks” domain names are confusingly
> similar to the trade mark) is the majority view of previous
> panels, and may even be the consensus view. See e.g.*, *Sermo,
> Inc. v. CatalystMD* *LLC*, *WIPO Case No. D2008-0647, Footnote 5;
> Air Austral v. Tian Yi Tong Investment Ltd., WIPO Case No.
> D2009-0020. It is in any event the Panel’s preferred view in these
> circumstances, particularly because the Complainant originated in
> France, and may have a significant number of non-English speaking
> customers who will not automatically recognize “suck” as a
> pejorative term.)
> /This is not only contrary to free speech but it is also contrary
> to trademark and defamation laws. As stated, the US has already
> allowed gripe sites to co-exist in harmony with trademarks – the
> same way Nominet, UK has incorporated a specific clause within
> their own dispute resolution services.
> This should be added as well as issues of RDNH, which nobody seems
> to give the appropriate attention to.
>
>
> Best
> Konstantinos
>
>
>
> On 18/06/2009 20:20, "Milton L Mueller" <mueller at SYR.EDU
> <http://mueller@SYR.EDU>> wrote:
>
> Wow. I just noticed that the list of abuses contains
> “gripe/commentary” sites. In other words, this is an attempt
> to define free expression and commentary using trademarked
> names as an abuse – it is just an attempt to stifle criticism.
>
> Edward, that has to go. First, it does not represent
> well-established positions of this constituency; second it is
> literally ILLEGAL under U.S. law – it is well settled case law
> now that the use of trademarked names in grip domains is legal
> and protected by the First Amendment.
>
>
> ------------------------------------------------------------------------
>
> *From:* Non-Commercial User Constituency
> [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] *On Behalf Of *Edward Nunes
> *Sent:* Tuesday, June 16, 2009 8:16 PM
> *To:* NCUC-DISCUSS at LISTSERV.SYR.EDU
> <http://NCUC-DISCUSS@LISTSERV.SYR.EDU>
> *Subject:* Re: [NCUC-DISCUSS] GNSO working group
>
> Hey all,
>
> I just wanted to update you all on what's been happening with
> the Registration Abuse Policy Working Group.
>
> Since I joined the GNSO Registration Abuse Policies Working
> Group the discussion within the group has focused on the
> definition of registration abuse. During the April 27th
> meeting we decided on a working definition of abuse:
>
>
>
> Abuse is an action that:
>
> 1. Causes actual and substantial harm, or is a material
> predicate of such harm, and
>
> 2. Is illegal or illegitimate, or is otherwise considered
> contrary to the intention and design of a stated legitimate
> purpose, if such purpose is disclosed.
>
> Notes:
>
> * This is a working definition as per group consensus on April
> 27, 2009 and may be re-visited should the WG find it
> inadequate after examining some specific examples.
>
> * The party or parties harmed, and the substance or severity
> of the abuse, should be identified and discussed in relation
> to a specific proposed abuse.
>
> * The term "harm" is not intended to shield a party from fair
> market competition.
>
> * The above definition of abuse is indebted to the definition
> of "misuse" in the document "Working Definitions for Key Terms
> that May be Used in Future WHOIS Studies" prepared by the GNSO
> Drafting Team [18 February 2009, at
> http://gnso.icann.org/issues/whois/whois-working-definitions-study-terms-18feb09.pdf].
>
> While this is the definition we are sticking with for now,
> there has been numerous issued raised about this definition
> both in and outside the working group. Issues raised included:
>
> · The use of “stated” and “disclosed in clause 2 is
> redundant.
>
> · The use of “illegal” and “illegitimate” in clause 2 is
> redundant.
>
> · There should be an intent requirement for violators, so
> as to limit abuse to malicious abusers.
>
> · “Illegal” is too vague of a term, as the law varies
> among the jurisdictions of the world.
>
> · “Harm” is too broad of a term.
>
> · The section “material predicate of such harm” creates
> an overly broad definition of abuse.
>
> · “Illegitimate” is too vague of a term.
>
> · “Illegal” is a legal conclusion derived from a court
> proceeding.
>
> o There has been some preliminary talk about the process to
> determine if whether something constitutes registration abuse,
> but no decisions have been made on this subject.
>
> While we are sticking with this definition for now, we
> understand there are issues with it and expect to revisit it
> at a later time.
> In the May 11th meeting we focused on defining “registration”,
> and how this definition will effect th
>
>
> --
> Dr. Konstantinos Komaitis,
> Lecturer in Law,
> GigaNet Membership Chair,
> University of Strathclyde,
> The Lord Hope Building,
> 141 St. James Road,
> Glasgow, G4 0LT,
> UK
> tel: +44 (0)141 548 4306
> email: k.komaitis at strath.ac.uk <http://k.komaitis@strath.ac.uk>
>
>
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