Konstantinos:
Whether we agree or disagree with the scope of trademark rights, I think
the non-commercial community at ICANN is in a unique position not only
address the legal trademark arguments (which the NCUC has been very
involved with) but also consider helping these registrants understand
the current types of agreements and conditions a registrant agrees to
when registering a domain - even if you don't agree with the scope of
trademark rights. I think that is one way to move towards fairness.
For example, when a registrant acquires a domain name with Tucows,
he/she agrees to a Terms of Service, a privacy policy and a Domain
Registration Agreement - See:
http://ask.hover.com/forums/32358/entries/21801 &
http://www.opensrs.com/docs/contracts/exhibita.htm. As law professor,
you are probably are familiar with such obligations, what registering a
domain name means and the potential consequences. The point I have been
trying to make is that individual registrant and/or a small organization
in a developing/emerging country may not be aware of the terms what they
are agreeing to. These consequences may or may not impact the name a
registrant decides upon.
Regarding the URS - While the final terms are unsettled, I wonder how
the URS will be used, if at all in the current format. It will be
interesting to watch how the community interprets and defines "clear cut
cases" that warrant use of the URS.
-----Original Message-----
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of
Konstantinos Komaitis
Sent: Friday, July 23, 2010 1:28 PM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
The fact of the matter is that we are all users Debbie: trademark
owners, Registrants and non-registrants. We are first users and then
everything else. The fact that a Registrant has registered a domain name
does not mean that he or she has also unlimited or easy access (you can
ask Alex on this). It just means that he or she registered a domain
name.
You say that "when a person registers a domain name, he should
understand the decision he/she is making". What do you mean? What
exactly should Registrants understand? The fact, for example, that even
if a Registrant uses a trademarked term within a bigger name as part of
his or her free speech, they will lose it under the UDRP? There is
really nothing to understand in such instances - it is nominative use
and no one talks about nominative use in the UDRP. Trademark owners want
users and Registrants to believe that any reference to a trademark term
is infringement.
Thankfully, courts do not agree with this: here is an excellent decision
on the boundaries of trademark protection in the context of domain
names. I have blogged about it here:
http://www.komaitis.org/1/post/2010/07/the-lessons-the-trademark-communi
ty-should-learn-from-judge-kozinskis-ruling-on-nominative-use.html
And you can get the decision here:
http://pub.bna.com/eclr/0755344_070810.pdf.
KK
On 23/07/2010 00:16, "Debra Hughes" <[log in to unmask]> wrote:
The problem I had with Konstantinos' mention of "user" in his email was
that he said: "For many users the Internet is still not a given" in the
context that certain areas have limited access to the Internet. But my
point was that a registrant had access to the Internet when they
registered the domain and to now make the argument that more time is
needed to respond based on that premise seems unclear and difficult to
accept.
When a person registers a domain name, he should understand the decision
he/she is making. The ICANN community (BD, Staff SGs, SOs) should be
responsible for making that information available to all sorts of
potential registrants - like small NGOs or corporations and individuals
in emerging markets. Of course an individual registrant may not plan a
legal defense 30 days before a registrant decides to register a domain
name - that is not what I was suggesting at all. My point was that I
don't think it is unreasonable to expect the registrant to be
accountable for understanding the potential consequences associated with
that decision. The concept of justice and fairness are important, but
it should flow both ways. I agree that large, medium and small entities
should be held accountable for their actions and should not abuse the
system. I don't think it is unreasonable to ask individuals to are
acquiring a valuable resource to also be accountable for understanding
the policies, issues and rules of the DNS associated with that
acquisition - it just seems fair.
Debbie
________________________________
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of
Milton L Mueller
Sent: Thursday, July 22, 2010 6:45 PM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
I really have to agree with Konstantinos and tlhackque. Deb, your
perspective is entirely that of a large trademark holder, which is a
legitimate perspective for you to represent, but a very limited
perspective and others have to be taken into account.
From 2000 - 2002 I compiled a huge database of domain name-trademark
disputes. I saw thousands of cybersquatters and other kinds of abuse but
I also saw hundreds of unfair accusations and plain old reverse domain
name hijacking by companies that just wanted a valuable .com name.
Before you can take valuable resources away from people there has to be
due process. The need for speed has to be moderated by the need for
justice.
I don't get your argument about the distinction between a user and an
internet registrant; a registrant is a user. Most people who register
domains are not preparing legal defenses for 30 days before they
register.
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of
Debra Hughes
Sent: Thursday, July 22, 2010 1:43 PM
To: [log in to unmask]
Subject: Re: [NCSG-NCUC-DISCUSS] Comments filed today by American Red
Cross
Konstantinos,
Regarding rapid decision making, in my comments, we offered the
following suggestion:
In addition, the examiner should be required to render a decision within
seven (7) business days, rather than being allowed up to 14 days, with a
goal and best practice of providing the Answer within three (3) days.
Once again, the use of a form Decision should greatly increase the
ability of examiners to provide their Decisions in a rapid manner.
Regarding your comments about 14 days to respond, let's also remember
the difference between a "user" of the Internet and a "Registrant".
Your mention of users below is perhaps misplaced. We are talking about
Registrants of domain names and not end users of the DNS. A Registrant
had access to the Internet when he/she registered the domain name
(either personally or through another party acting on his/her behalf).
The Registrant had "all the time in the world" to decide to register its
problematic domain name for a problematic use before he/she actually
registered the domain - long before the Complaint was aware. The
Registrant also had the ability to access the Internet to engage in
fraudulent activity - he/she had plenty of time to consider and prepare
the content and use of the domain name. It's a bit one-sided to argue
that if an organization sees a problematic use we should agree to 20
days for the Registrant to prepare a response for the reasons you
mention below. Also, a form for the Answer could minimize the need for
an attorney for Answers, but if not, Registrants should know that the
act of registering a domain name has potential consequences. A
Registrant willingly enters a contractual relationship with the
registrar when he/she decides to register a domain name.
On a related note, I think new gTLD and other outreach efforts to those
in the developing and emerging regions could offer a primer to the
community about the domain registration process - explaining the
contractual relationship between the registrar and the registrant.
Guidance could be given to the community about these processes,
obligations, what a Registrant "agrees to" when registers a domain name
and an explanation of the potential consequences. Perhaps those that
offer pro bono legal services can talk about the types of assistance
they can offer Registrants in these scenarios. These are ideas I am
sharing with those involved with outreach activities within ICANN.
Perhaps there are other ideas NCUC/NCSG members have to help Registrants
understand and the "business" behind the registration process.
Debbie
Debra Y. Hughes l Senior Counsel
American Red Cross
Office of the General Counsel
2025 E Street, NW
Washington, D.C. 20006
Phone: (202) 303-5356
Fax: (202) 303-0143
[log in to unmask] <mailto:[log in to unmask]>
________________________________
From: Konstantinos Komaitis [mailto:[log in to unmask]]
Sent: Thursday, July 22, 2010 12:21 PM
To: Hughes, Debra Y.; [log in to unmask]
Subject: RE: Comments filed today by American Red Cross
Just one point I would like to clarify being involved and having
researched on both the UDRP and the URS. In a system of adjudication,
the term 'rapid' does not really refer to the speed leading up to the
adjudication process; rather, it refers to the 'rapidness' of the
decision-making process. And, the recommendation of the STI has been
consistent with this, instructing panels to submit their decisions
within 3 business days.
This distinction in determining 'rapidness' is crucial for the
adjudication process and in Brussels as well as from the comments it
appears that the trademark community misinterprets what we mean by
rapidness. No system is fair if it is rapid during the discovery process
or in any other process leading up to adjudication.
And, 14 days is not really fair. Again, just like the problems with the
UDRP, the complainant has all the time in the world to compile, submit
and file the complaint. The Respondent is given only 14 days? What about
legitimate Registrants located in parts of the world with limited
Internet access? For many users the Internet is still not a given. What
about legitimate Registrants whose first language is not English? What
about legitimate Registrants that have to find a lawyer to compile the
Response on their behalf? All these are legitimate reasons for the
deadline to be 20 days - at least that is how I feel and that is what 10
years of UDRP experience teaches us.
KK
Dr. Konstantinos Komaitis,
Law Lecturer,
Director of Postgraduate Instructional Courses
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-Reg
ulation-isbn9780415477765
Selected publications:
http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: http://domainnamelaw.ning.com/
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of
Debra Hughes
Sent: Thursday, July 22, 2010 4:25 PM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
Thanks, Rafik. The work of the JAS WG is very important and of course
related, in part, to the outreach work we are both involved with on the
OSC Constituency and Stakeholder Group Operations Work Team.
About the thin v. think comment below: In a thin registry (.COM is an
example), the Whois records includes limited data - only enough to
identify the registrar of the domain name (registrar name, registration
status, creation/expiration dates). So, for a problematic .COM domain,
obtaining the contact details for the registrant is a two (or three or
four or five...) step process for research.
For example,
Step 1: Look up the domain name using a Whois service of choice. Find
out registrar.
Step 2: Then, go to that particular registrar's Whois service to obtain
the publicly available Registrant's contact information.
Step 3: If the bad actor is using a privacy/proxy service, I have to
keep my fingers crossed that the privacy/proxy service has a fair (and
hopefully easy and inexpensive) system for me to request the concealed
contact information for the Registrant. Hopefully they will follow their
policy!
Step 4: Proxy/privacy service does not have a system to request
underlying contact information or ignores request, I have to decide
whether it makes sense to spend donor dollars to get a subpoena, if
applicable or escalate the request for contact information.
A record from a registry operating a thick Whois server (like .ORG)
includes the registrant's contact information, admin/tech and the
registrar info. It eliminates having to go two places to get the
publicly available Registrant contact info, which is important for not
for profit organization that are often asked to do more with less
resources. The other benefit of a thick registry is when a registrar
goes out of business, the thick registry will retain the registrant info
(except if the registrant used a privacy/proxy service).
About the URS, I think fairness is important - fairness to the
registrant and a fair procedure for an organization that is being harmed
by a bad actor from a "clear cut" instance" of trademark abuse." I
think the suggestion of giving Registrants 14 days, rather than 20 days
to file an Answer is fair, not abusive and consistent with the intent of
"rapid" suspension. Also, if ICANN provides a form complaint and
reduces the word/page limit, it is possible a Registrant, who is
inexperienced with such actions, might feel less intimidated. Also, the
suggestion of a form Answer can help inexperienced Registrants prepare
responses.
Debbie
Debra Y. Hughes l Senior Counsel
American Red Cross
Office of the General Counsel
2025 E Street, NW
Washington, D.C. 20006
Phone: (202) 303-5356
Fax: (202) 303-0143
[log in to unmask] <mailto:[log in to unmask]>
________________________________
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of
Rafik Dammak
Sent: Thursday, July 22, 2010 6:24 AM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
Hello Debbie,
Thanks for comments sent to the JAS WG, the document is shared within
the WG members.
I was little bit puzzled by the mention of supporting thick whois as
suggested by IRT, even there are some people arguing for that , I think
that a balanced solution for common ground of different interests is
mandatory with safeguard for privacy. also about URS, maybe we can
assume that there is need make it simple and short, how we can prevent
abuse of using URS for this supposed mechanism to prevent abuse?
Regards
Rafik
2010/7/22 Milton L Mueller <[log in to unmask]>
Deb:
Glad to see that Red Cross is endorsing the idea that nonprofits might
use a new gTLD for "internal business purposes under a model that is
different from a commercial, profit-driven new gTLD"
________________________________
From: NCSG-NCUC [[log in to unmask]] On Behalf Of Debra
Hughes [[log in to unmask]]
Sent: Wednesday, July 21, 2010 8:21 PM
To: [log in to unmask]
Subject: [NCSG-NCUC-DISCUSS] Comments filed today by American Red Cross
All,
Attached are comments filed by the American Red Cross on the Joint SO/AC
Working Group Report and on DAG4.
<<American Red Cross Comments on Joint SO-AC WG Report - 07212010.pdf>>
<<American Red Cross Comments on DAGv4 - 07212010.pdf>>
Thanks,
Debbie
Debra Y. Hughes l Senior Counsel
American Red Cross
Office of the General Counsel
2025 E Street, NW
Washington, D.C. 20006
Phone: (202) 303-5356
Fax: (202) 303-0143
[log in to unmask] <mailto:[log in to unmask]>
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