GNSO working group

[Milton L Mueller]

Thanks for this very useful report, Edward.
I would take issue with the definition of cybersquatting. "Trademark (or variation) in domain name. Domain bought/owned for the purpose of reselling or use in malicious activity.
The problem here is that almost every word in the human language is now trademarked. The issue is whether domain name secondary market or speculation is per se illegal or abusive. Most hard-line TM lawyers would like to make it so. But there is an entire legitimate industry based on resale of names that might prove to be valuable to someone at some time; if a standard word (e.g., "apple" ) that could have many uses is registered for commercial resale, is that cybersquatting? I'd say no, it is cybersquatting only if the name's value is derived solely from extorting a specific trademark owner.
Otherwise, we are saying that having a trademark on "word" entitles one to pre-empt any use of that word by others in the domain name space. But that won't work even in trademark-centric terms (not to mention free expression or domainers) because there could be many TM holders concurrently using the same word.
I just served as a panelist on a WIPO case won by the respondent that dealt with this issue. WIPO 2009-0249

________________________________
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
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 the scope of the working group. It appears that there is no easily borrowed definition of "registration" from ICANN, and there is debate about whether registration abuse can only occur at the exact moment in time the registration is created, or whether it can refer to an abuse at any time regarding registration.
This debate on the definition of "registration" in registration abuse continued into the June 1st meeting.  As RAP-WG member George Kirikos put it, the problem was a definitional one as to whether registration refers to a) the act of registering, or b) an entry in a register.

This definitional issue was important because, for example, if registration were taken to mean an entry in a register a person who registered a domain name could be found guilty of registration abuse for causing consumer confusion with a site that was registered after it.  While there was much debate we determined that registration abuse refers to abuse at the time of registration because abuse after registration would be abuse of domain use, not abuse of domain registration.



At our most recent meeting we started gearing up for compiling more information on types of registration abuse, a major part of the RAP-WG charter.  A preliminary list of abuses is available at http://tinyurl.com/l8kzsb.  We began discussing the abuses on this list, but there is still much more work to be done.  This topic will be continued to worked on in the coming weeks/months.


And that's the word from the RAP-WG.



Sincerely,

Ed Nunes
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