Greetings,

I have just submitted my below comments (and confirmed). Also attached in .pdf

Alex

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My name is Alex Gakuru. I am the Chairman, ICT Consumers Association
of Kenya, an irrepressible individual Internet users' rights lobbyist,
hereby making a personal view of the IRT proposal before ICANN.

1.Free expression:
The proposal will curtail online expression which will be
counter-productive to our ongoing efforts on expanded IPv6 online
expression space. We risk being asked “whose expression are we
expanding? Ours or that of the IP industry?”

2.Fair use:
By over-protecting and advancing trademarks, IRT will further serve to
criminalise innovation from re-mix of older works, for private and for
fair use-as Prof. Lawrence Lessig in Keeping Culture Free clearly
narrates the current conflict between “old”Copyright/Trademark regime
when applied in the digital age.

3.Competition:
As corporations grow with acquisitions and mergers, competition may be
stifled in the resultant oligopolistic markets which may be harmful to
the interests of consumers.  Flexing their financial muscle, private
companies can potentially influence government directly and
indirectly. Where there is less matured consumer protection
legislation and regulation, there is a danger that basic human
communication rights – the right to receive and share information, and
to form or express opinions or culture – can become vulnerable to
corporate priorities.(Kimani & Gakuru, 2009)

4.Equitable online participation:
In Kenya, and most of Africa, we lack adequate Intellectual Property
legislation and 'famous marks' protection besides absent capacity
and/or resources to record our own marks, locally. IRT proposal
unfairly and inequitably exposes our Internet users to an unfair
Internet domination by developed counties' advanced and well-endowed
IP industry interests. Thus IRT proposes to deny our Internet users
their fair and equitable online participation rights.

5.Cultural heritage marks and symbols, traditional knowledge
Traditional African marks, for example, the Kenyan traditional kiondo
and kikoy both of which have generated heated debate both locally and
internationally over what we regard as “theft” of our cultural
heritage by developed countries.

Kikoy was in the news when a company in UK applied to register the
word KIKOY as a trade mark - UK trade mark application number 2431257.
However an opposition was filed to stop the intended registration by
the UK Patent Office.

The claim that Kiondo is patented by some unnamed Japanese is an
emotive issue in Kenya. However no proof has been put forth to back
the claim of any one having patented the kiondo in any country.

Unlike the KIKOY issue in which it is possible to identify the trade
mark application number and the applicant, we have never heard of any
Japanese individual or company claiming ownership of a Kiondo patent
and the patent number has never been cited in any of the debates.1

6.Conclusion:
If IRT proposal were to be adopted, how would ICANN protect all other
Kenyan and African icons?

Would ICANN maintain a register and enforce the protection of every of
African marks, cultural symbols, traditional rites marks - including
African intellectual knowledge passed through generations though
mostly spoken but unwritten. Is it a domain ICANN really wishes to
enter?

7.Therefore, in view of my above concerns, I pray that ICANN rejects
the IRT proposal.

Thank You.

--
1. See http://ip-kenya.blogspot.com/2008/02/should-kenya-petition-unesco-for-kiondo.html
(viewed on 6 June, 2009), http://en.wikipedia.org/wiki/Kiondo (viewed
on 6 June, 2009)
http://www.ipo.gov.uk/tm/t-find/t-find-number?detailsrequested=C&trademark=2431257
(viewed on 6 June, 2009)


On Mon, Jul 6, 2009 at 9:20 PM, Robin Gross<[log in to unmask]> wrote:
> Dear All,
> Just a quick note to underscore Kathy's call to arms -- and to ask each NCUC
> member to please send in a comment to ICANN today regarding the IRT Report
> and our concerns for its impact on free expression, fair use, and
> competition.  IRT Report expands trademark rights over domain names in ways
> trademark law has never allowed.   Don't let the IP lobbyists make new
> global trademark law in secret via ICANN.   If the public does not speak up
> on this issue, the IP lobbyists will steam-roll over our rights to use
> ordinary words in domain names or to criticize companies or brands in domain
> names.
> Deadline is today end-of-business in California (end of the global day -
> there is still time to get your thoughts on the record).  You can send in
> just a brief paragraph stating your personal view on the IRT Report.
> Please send comments to ICANN's IRT written comment email
> address: [log in to unmask]
> Thank you,
> Robin
>
> On Jul 4, 2009, at 1:53 PM, Kathy Kleiman wrote:
>
> Hi Baudouin,
> At long last, I am so pleased to share with you a French translation of the
> Joint Statement on the IRT Report by ALAC and the NCUC -- translated by
> Patrick Vende Walle of ALAC, one of the statement's co-writers along with
> me.  Thank you for sharing it with different platforms and networks in the
> DR Congo and Central Africa.
>
> Please consider submitting comments in French to the IRT written comment
> email address -- [log in to unmask]
> The deadline is this Monday, and even short comments in support of the
> NCUC/ALAC Joint Statement and its principles will make a difference!
>
> All, this is a side-by-side English/French translation in case you would
> like to see the Joint Statement again. Robin and Cheryl had the entire
> room's full attention when they presented it!
> Best,
> Kathy
>
> Kathy,
>
> thanks to share this draft. It's very important and I wish if possible to
> have a french version allowing me to share it among different plat form and
> network in DR Congo and Central Africa by national and sub regional mailing
> list.
> I tried to do a substantial translation but I have fear to go
> out understanding content.
> congratulations for this work.
>
> Baudouin
>
> 2009/6/23 Kathy Kleiman <[log in to unmask]>
>>
>> Hi All,
>> For discussion purposes a little later in our meeting today, here is a
>> DRAFT Joint Statement on the IRT Report between NCUC and ALAC.
>> It would be very nice if, at the Board Public Forum on Thursday, we could
>> go up together with ALAC to make a strong joint statement.
>> That would make the Board wake up! :-)
>>
>> Best,
>> Kathy
>> (below in text and attached in Word)
>>
>> DRAFT
>>
>> Joint Statement on the DIRT Report
>>
>> From ALAC and NCUC
>>
>>
>>
>>
>> The At-Large Community, ALAC and the Non-Commercial Users Constituency of
>> ICANN strongly support the creation of new gTLDs. Having said that, the
>> process to move forward with changes to the DAG Guidebook requires the
>> legitimacy of full community participation and full transparency.
>>
>> In the case of the IRT Report, we had neither transparency nor openness.
>> The IRT Report and its recommendations harm the interests of domain name
>> Registrants and Internet end users, and consequently we must object to the
>> vast bulk of its recommendations.
>>
>>
>> To be more specific:
>>
>> 1. The Globally Protected Marks List – the GPML database- is a matter well
>> beyond ICANN's scope and its core competence. It presumes to be able to
>> resolve an issue that even WIPO wrestles with. Clearly the creation of the
>> GPML, if even possible, would cause enormous complexity. Instead of speeding
>> up the process of creating new gTLDs, it would introduce delays that would
>> last for years. But the creation of this list must take place outside of
>> ICANN.
>>
>> 2. The GPML takes no consideration of the actual limits of rights and
>> protections allowed to trademarks. In the real world, trademark owners apply
>> for a trademark in a specific class of goods and services, and their use is
>> bound to that class or classes. By protecting a string of letters in all new
>> gTLDs, the GPML would extend trademarks into new gTLDs far beyond the bounds
>> of their class of goods and services, far beyond existing national laws and
>> internationatreaties.
>>
>>
>> 3. We have enormous problems with the Uniform Suspension Service (URS).
>> The URS mechanism subverts conventional UDRP practice as it gives entirely
>> insufficient time for notice to the registrant of the pending dispute. Thus,
>> the registrant is unfairly limited in his/her right of response and the
>> process is missing the fundamental principle of due process.
>>
>>
>> [ Kathy Note: This paragraph below seems to be somewhat controversial
>> within ALAC. I think we will be dropping it. Don't worry, we'll include the
>> statement in our comments -- if you all agree]
>> 4. ALAC and NCUC strongly object to the Thick Whois Registry. In mandating
>> such, the IRT Committee did not address any of the privacy issues that arise
>> from moving personal data from many countries with data protection laws,
>> perhaps, to a single country without data protection. Does ICANN really want
>> to be in a position in which it may be violating national laws?
>>
>> Overall, we wish the result were different. We wish the IRT had delivered
>> a reasonable proposal for the protection of trademarks. But the product
>> delivered is far outside the scope and core competence of ICANN, and outside
>> the bounds of trademark law.
>>
>> We can do better; we must do better before we move forward.
>>
>> Consequently, NCUC and ALAC stand before this forum together in
>> fundamental opposition to many of the IRT Results.
>>
>>
>>
>>
>> Signed [for sharing a written cop y of a floor statement with the Board]
>>
>>
>>
>>
>> ALAC
>> NCUC
>>
>>
>>
>>
>> __________________
>> __________________
>>
>>
>> __________________
>> __________________
>>
>>
>>
>
>
>
> --
> SCHOMBE BAUDOUIN
> COORDONNATEUR NATIONAL REPRONTIC
> COORDONNATEUR SOUS REGIONAL ACSIS/AFRIQUE CENTRALE
> MEMBRE FACILITATEUR GAID AFRIQUE
> téléphone fixe: +243 1510 34 91
> Téléphone mobile:+243998983491/+243999334571
> email:[log in to unmask]
> http://akimambo.unblog.fr
> http://educticafrique.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: [log in to unmask]
>
>
>