NCUC-STI comments
Robin Gross
robin at IPJUSTICE.ORG
Fri Apr 2 00:59:56 CEST 2010
Thanks all the feedback on this. I think the preference for the use
of "safe harbors" as opposed to "defenses" is a valid one. By
casting a "right" as a "defense" is a semantical weakening of the
underlying right of the user. For example, I frequently hear half-
baked rhetoric from industry copyright maximalists: "fair use is not
a right - it is only a defense to copyright infringement". This
word-shifting is done deliberately to cast the default rule in favor
of the copyright holder and put the fair user on the "defense".
(Just because "fair use" is legally pled as a defense does not mean
it is not also a right - think First Amendment, pled as defense, but
clearly a right).
I also think sticking with the GNSO's term "safe harbors" (which is
cast as a positive right of the user) is more in-line with
international and national laws (like the DMCA) that explicitly
provide for safe habors for acceptable activity with respect to IP.
I agree we need language that makes clear user protections are
explicitly recognized and guaranteed and I think "safe harbors" does
this more than "defenses".
My 2 cents,
Robin
On Apr 1, 2010, at 12:14 PM, Mary Wong wrote:
> Hi Konstantinos and everyone,
>
> Thanks for the additional comments; it may be that my quick read
> (and fact that I don't do UDRP panels) missed some of the nuances.
> Nonetheless, where the "safe harbor" vs "defenses" language is
> concerned, I totally understand and agree with the sentiment that
> registrant protections are ensured; however, I don't know that a
> third party reading our comments in this regard will necessarily
> read it that way. It seems to me that we are not suggesting an
> Examiner have a "binding legal obligation", but, rather, that -
> whatever the phrase ultimately used - that respondent protections
> are explicitly recognized and guaranteed in any policy. While the
> word "defenses" may not be entirely appropriate, the Nominet
> protections still seem to me to require that the respondent show he/
> she comes within them. Once they do that, of course, they are then
> protected.
>
> I realize time is of the essence and don't want to belabor the
> point, but I wanted to guard against possible misunderstandings of
> our fundamental points.
>
> Thanks again for taking the lead on putting comments together,
> Mary
>
> Mary W S Wong
> Professor of Law & Chair, Graduate IP Programs
> Franklin Pierce Law Center
> Two White Street
> Concord, NH 03301
> USA
> Email: mwong at piercelaw.edu
> Phone: 1-603-513-5143
> Webpage: http://www.piercelaw.edu/marywong/index.php
> Selected writings available on the Social Science Research Network
> (SSRN) at: http://ssrn.com/author=437584
>
>
> >>>
> From: Konstantinos Komaitis <k.komaitis at strath.ac.uk>
> To: "'Mary Wong'" <MWong at piercelaw.edu>, "NCUC-
> DISCUSS at listserv.syr.edu" <NCUC-DISCUSS at listserv.syr.edu>
> Date: 4/1/2010 7:24 AM
> Subject: RE: NCUC-STI comments
> Dear Mary and all,
>
> Thanks for this. some comments below.
>
> Best
>
> KK
>
> From: Mary Wong [mailto:MWong at piercelaw.edu]
> Sent: Thursday, April 01, 2010 6:01 AM
> To: NCUC-DISCUSS at listserv.syr.edu; Konstantinos Komaitis
> Subject: Re: NCUC-STI comments
>
> Hi and sorry for chiming in late. Thanks to Konstantinos for
> providing a very thorough set of comments; here are just a few
> minor observations:
>
> - on p. 2 there is a sentence in bold that says "The very fact that
> the registrant has responded automatically demonstrates good
> faith". I think this is putting it too strongly - would it be
> better to say that the fact a registrant responds can be an
> indicator of good faith?
>
> I am not sure I agree with you on this. What we are basically doing
> is following the rationale of the UDRP and the interpretations that
> have been provided through the UDRP decisions all these years. For
> UDRP panels, non submission automatically equates to bad faith. If
> that is what is therefore happening then why not considering
> submission as ‘good faith’?
>
> - still on p. 2, I think the community may understand Default
> somewhat differently, i.e. not as meaning only "failure to respond
> in a timely manner", but more broadly as including failure to
> conform to requirements. Can we not just say that it would be
> unfair to bump the dispute to Default status simply for filing
> errors and omissions? Additionally, I would suggest removing the
> phrase "which in any case are part of human nature" as I don't
> think it necessarily strengthens the point already made.
>
> The community is mistaken and I don’t think that anyone would view
> default like this, despite the efforts of the trademark community
> to expand its interpretation.
>
> - still on p.2, in the following paragraph, when discussing the
> STI's decision not to accept an expansive interpretation of
> "default", I suggest that a more appropriate term than "wilfully
> dismissed" might be "consciously rejected".
>
> - on p. 3 I actually don't agree with the use of the phrase "safe
> harbors" as it does not seem to me to accurately describe the
> circumstances being considered. As such, I'm not sure I agree that
> using the word "defense" instead is necessarily "weaker", and in
> the context of this particular page of our comments seems to imply
> that by using the words "safe harbor" rather than defense will
> therefore imply a "binding legal obligation" on the Examiner. May I
> suggest saying, instead, something along the lines of the need to
> ensure that a respondent's right to demonstrate the registration is
> legitimate and in good faith? (I can't recall the Nominet wording
> but I don't believe they actually use the phrase "safe harbors"
> either.)
>
> Mary we already have incorporated what you are suggesting. The Safe
> Harbors are intended to provide additional protection to individual
> users rather than limit this protection to just the possibility of
> domain name holders to demonstrate rights and legitimate interests.
> In the law context, the word defenses means that even if for
> instance there is fair use of the domain name, the examiner will
> still be able to exercise discretion in deciding whether to accept
> this defense or not. The word Safe Habors leaves no room for such
> discretion.
>
> - on p. 5, instead of "trademark heavens" do we mean "trademark
> havens"? (BTW, as some of you know, I am uncomfortable with
> distinguishing between countries that conduct substantive review
> and those that don't, but can accept that I am in a minority of one
> on this).
>
> Thanks for pointing this out and I will correct it. The paper is
> not suggesting that we have to distinguish between jurisdictions
> that conduct substantive review and those that don’t. There is a
> huge debate about this and even the STI was split. Rather what it
> seeks to do is to draw the attention of the community to the
> possibility that ‘trademark havens’ might be created which will
> complicate things and create more problems.
>
> - finally, and more substantively, can we add something (on p.3
> when discussing Abuse of Process) to urge the staff to develop, in
> consultation with the community, clearer guidelines as to what is
> meant by "deliberate material falsehood"?
>
> Sorry I haven't had the bandwidth to do a more thorough job in
> contributing to the comments, but I hope these observations help.
>
> Best,
> Mary
>
> Mary W S Wong
> Professor of Law & Chair, Graduate IP Programs
> Franklin Pierce Law Center
> Two White Street
> Concord, NH 03301
> USA
> Email: mwong at piercelaw.edu
> Phone: 1-603-513-5143
> Webpage: http://www.piercelaw.edu/marywong/index.php
> Selected writings available on the Social Science Research Network
> (SSRN) at: http://ssrn.com/author=437584
>
>
> >>>
> From:
> Konstantinos Komaitis <k.komaitis at STRATH.AC.UK>
> To:
> <NCUC-DISCUSS at listserv.syr.edu>
> Date:
> 3/30/2010 4:45 AM
> Subject:
> NCUC-STI comments
> Dear all,
>
> - apologies for the long email -
> The time is upon us to submit our comments on the revised versions
> of the
> ICANN staff on the recommendations submitted by the Special
> Trademark Team
> (STI) in January 2010. I know that I should have submitted this to
> you earlier on, but may I remind everyone that the deadline is
> April 1, 2020 for the submission of comments. I would appreciate if
> you could return your comments/suggestions to me by tomorrow at the
> very latest.
>
> Here is a brief reminder of the whole process.
>
> After the rejection of the Implementation Recommendation Team (IRT)
> proposals during the public comment period, ICANN produced two
> documents -
> one of the Trademark Clearinghouse (TMC) and the other on the
> Uniform Rapid
> Suspension (URS) system and asked the GNSO to form a team to review
> these
> documents. The GNSO created the STI, which comprised of
> representatives from
> all its constituencies. NCUC was represented in this team by Robin,
> Kathy,
> Wendy and myself, with Mary being the alternate member.
>
> The STI was tasked to either accept the Staff's proposals or reach
> consensus
> on a new set of proposals. After a month of extensive meetings and
> debate, we managed to
> produce two documents - one on the TMC and the other on the URS -
> which in
> their majority received the consensus of the STI (most of the
> particular
> issues of both proposals received unanimous consensus, whilst some
> specific
> issues received majority consensus). The final STI report can be
> found here:
> gnso.icann.org/issues/sti/sti-wt-recommendations-11dec09-en.pdf
>
> After the STI submitted its report and was endorsed by the GNSO, a
> public
> comment period was initiated -
> http://forum.icann.org/lists/sti-report-2009/. In the meantime, in its
> Nairobi meeting, the ICANN Board endorsed the STI's recommendations:
> http://www.icann.org/en/minutes/resolutions-12mar10-en.htm.
>
> Taking into account the public comments, the ICANN staff produced -
> what
> they called - a revised document on both proposals, seeking to take
> into
> consideration the STI recommendations as well as the comments received
> during the public comments period. These new revised proposals can
> be found
> at: for the TMC ( http://www.icann.org/en/public-comment/#tmc) and
> for the
> URS ( http://www.icann.org/en/public-comment/#urs) and they are now
> open for
> a public comments period. The deadline for submission of the
> comments is
> April 1, 2010.
>
> Generally speaking the revised proposal takes into consideration
> most of the
> issues that the STI recommended. However, there are some specific
> issues, in
> which the new recommendations are worst and additions have been
> made which
> are arbitrary and - at some instances - even illegitimate.
>
> I am attaching our comments for both the URS and the TMC.
>
> Best
> KK
>
>
> Dr. Konstantinos Komaitis,
> Law Lecturer,
> University of Strathclyde,
> The Law School,
> The Lord Hope Building,
> 141 St. James Road,
> Glasgow, G4 0LT
> UK
> tel: +44 (0)141 548 4306
> http://www.routledgemedia.com/books/The-Current-State-of-Domain-
> Name-Regulation-isbn9780415477765
> Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?
> partid=501038
> Website: http://domainnamelaw.ning.com/
>
>
>
IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA 94117 USA
p: +1-415-553-6261 f: +1-415-462-6451
w: http://www.ipjustice.org e: robin at ipjustice.org
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