Dear Kathy

Thanks for the work!!!. I support the statement!

Yours

Klaus

On 4/29/2015 3:37 PM, Kathy Kleiman wrote:
>
> Dear All,
>
> ICANN has published a draft of its “Rights Protection Mechanisms 
> Review” to ask whether the “rights protection mechanisms” of the New 
> gTLD Program work. These include the Trademark Clearinghouse (TMCH), 
> mandatory Sunrise Period in all gTLD to allow trademark owners to 
> register first, Uniform Rapid Suspension (URS) process, etc.
>
> The young NCSG played a special role in this process in 2009-2010. We 
> spent 7 weeks in tight negotiations with the other Stakeholder Groups 
> to try to balance the rights of intellectual property owners with 
> those of new/small businesses, noncommercial entities, users of all 
> stripes and the registry/registrar communities. The NCSG team on the 
> “STI” (“Special Trademark Issues” Working Group was Robin Gross, 
> Konstantinos Komaitis, Wendy Seltzer and me with Mary Wong and Leslie 
> Guanyuan as our Alternates.
>
> Now as this all comes up for review again, I think ICANN Staff has 
> lost its way. This Draft Rights Protection Mechanism (RPM) report does 
> not mention anything about the fairness and balance we tried to put 
> in; it does not ask whether abuse about whether Registrants receive 
> good education about the new domain name dispute proceeding for the 
> URS and its defenses (the answer is No) or whether legitimate “fair 
> use” of words in domain names are truly being protected.
>
> Accordingly, I share a set of comments I have drafted.These are due 
> shortly (sorry, ICANN’s Proxy/Privacy Accreditation Working Group kept 
> us busy!) – tomorrow (Thursday) – *so I circulate them to all who 
> would like to sign on. *
>
> So far, no one has responded to this draft report with any interest in 
> freedom of expression, fair use or the rights of Registrants. I guess 
> that’s our job :-)!
>
> Link: https://www.icann.org/public-comments/rpm-review-2015-02-02-en
>
> Best,
>
> Kathy (Kleiman)
>
> --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
>
> Comments Submitted by Members of the Noncommercial Stakeholders Group
>
> Thank you for the publication of the DRAFT Rights Protection 
> Mechanisms Review paper. Clearly an enormous amount of work was done 
> to compile and analyze quantitative and qualitative data on the use of 
> specially-created mechanisms in the New gTLDs, such as the Trademark 
> Clearinghouse, Trademark Claims and Uniform Rapid Suspension.
>
> It is very important, however, that the questions being asked in the 
> report, and all future reports on this subject, be expanded to reflect 
> the whole of the GNSO and ICANN’s goals in passing these rules:were 
> existing rights protected, were existing fair use protections 
> maintained and did ICANN avoid the creation of new or expanded 
> intellectual property rights (which ICANN has no power or authority to 
> create)?
>
> With the details as set out below, we urge that the final report 
> expand its inquiry to see if the balance and fairness included in 
> these mechanisms worked for all parties: both rights holders and 
> registrants. Did these programs reflect the full range of goals and 
> commitments for all parties that ICANN set out in their adoption?
>
> /We respectfully request that we would like to see more of these 
> issues of balance and fairness raised in the final report. For 
> example, when the final report goes out to the Community with 
> questions of whether the URS (Uniform Rapid Suspension) worked for 
> trademark owners, we also should be asking whether the URS worked for 
> New gTLD Registrants and what obstacles they faced to education and 
> information in responding to URS claims./
>
> /So the comments below both respond to questions raised by ICANN Staff 
> – and new ones that we would like ICANN Staff to raise in the final 
> version of this RPM Review to ensure that all sides and concerns are 
> heard in the feedback that ICANN seeks./
>
> _Specifically: _
>
> 1.In Section 3.2.2 *Trademark Clearinghouse Word Marks:*The section 
> raises some good points that should be addressed more directly. The 
> GNSO adopted rules for the protection of “word marks” – as in the 
> specific text of a mark and the letters, numbers and symbols it may 
> use, e.g., HASBRO.The GNSO rules specifically did not embrace the 
> registration of “design marks,” a mark containing both wording and 
> design features in which the font, the colors and the artistic 
> elements are all part of the features protected by the trademark – and 
> the individual letters and words are expressly NOT protected outside 
> of the design packaging in which they are presented.
>
> The GNSO’s STI Recommendation specifically */did not/* consider it 
> fair to provide the extensive protection of the Sunrise Period and the 
> Trademark Claims notices to lettering within a design mark – lettering 
> offering “disclaimed” and expressly not protected as text alone and in 
> isolation of its design – and yet that is precisely what the Trademark 
> Clearinghouse (TMCH) has gone ahead and accepted.Domain names and URLs 
> don’t have design elements.
>
> We strongly request further inquiry into: how many design marks have 
> been accepted? How many of them expressly disclaim the very letters 
> and words that the TMCH is now protecting? How can we return to the 
> original intent of the GNSO/STI rules and the limits adopted by the 
> GNSO Council and ICANN Board?
>
> 2.*Section 3.3* *Proof of Use* is an important feature of the TMCH; it 
> is designed to prevent gaming of the system and unfair advantage to 
> certain new registrants over others. In addition to requesting 
> feedback from those who have used the Clearinghouse verification and 
> Sunrise registration processes, it is important to request input from 
> those who have observed these practices and wish to comment on whether 
> the balance and intent to prevent individuals/organizations/companies 
> from grabbing Sunrise spots without any existing trademark use has 
> been met. Should the use requirements be expanded – e.g., to 
> trademarks of a certain age such as one year?
>
> 3.*Section 3.4 Matching Rules*: This is an important section as the 
> rules of the GNSO’s STI were specially crafted to allow only exact 
> matches. What the section does not include, and should, is why that 
> decision was made. Going beyond “exact matches” created a firestorm of 
> trouble for what is one person’s “mark contained” is another person 
> word. Inclusion of examples in the next version of this paper would be 
> key to illustrating the point. Thus, an existing trademark in ENOM (an 
> ICANN-Accredited Registrar), but such rules, would create a bar on the 
> domain name registration of VENOM – and entirely different word (and 
> one itself also trademarked now and it will be again and again in the 
> future).Similarly, the ___ registrations of GOGGLE in the US Trademark 
> Office did not prevent the registration of the domain name GOOGLE.COM 
> or the registration of GOOGLE as a trademark in the US Trademark Office.
>
> A few clear illustrations would convey the ambiguity and difficulty of 
> going beyond an “exact match” and shed light on the rationale of the 
> existing rule – a balanced approach as the next draft asks for 
> additional input and possible changes.
>
> 4.*Section 3.5 Trademark Clearinghouse Communications*:In the next 
> version and other related inquiries, we would like ICANN Staff to 
> reflect a much broader question.Should the goal have been only “to 
> reach trademark holders worldwide to inform them of the services 
> related to the Clearinghouse via webinars and Q&F sessions” or should 
> it have been to inform the worldwide community of a massive change in 
> the rules of registration of domain names in the New gTLDs and a new 
> set of protections and notices that ALL registrants should know about 
> and understand.Did the TMCH devote even one second or one dollar to 
> outreach, webinars and Q&A session to explain the impact of the 
> Trademark [Claims] Notice to those receiving it, to answer questions 
> that may arise from ambiguities or the publication of this new type of 
> notice, or to ensure that those registrants who the Trademark Notice 
> was meant to protect were not artificially “chilled” from moving 
> forward with the registration of a domain name if they had the rights 
> to do so.
>
> **
>
> While the TMCH has highly publicized that many potential registrants 
> fail to “click through” a Trademark Claim, where is the additional 
> information about why – so that the forms and notices can be tweaked 
> to be fairer and more balanced?
>
> Our concern is of course that no education and no information was 
> provided to the global community by ICANN or the TMCH.This has left 
> noncommercial registrants, small businesses, and individuals without 
> the guidance that these rules and policies are designed to protect all 
> legitimate overlapping uses of words, names, phrases, acronyms for 
> future domain names, just as they have been protected for existing 
> ones (see e.g., ACM as the Association for Computing Machinery and the 
> Academy of Country Music, and DELTA as Delta Faucets, Delta Airlines, 
> Delta Sigma Theta and Delta the symbol for change in mathematics.
>
> Is the TMCH only helping one side, and shouldn’t it be educating and 
> communicating its rules, policies, protections and balances with all 
> and for all users of the new gTLD domain name system?
>
> 5.*Section 4* *Sunrise Period*:We request that the questions in the 
> next draft and related reports be expanded to see if the sunrise 
> period gives unfair advantage to trademark owners far outside their 
> categories of goods and services. In cases where a New gTLD caters to 
> .PIZZA should Delta Airlines really have a right of first 
> registration?For New gTLDs and future gTLDs catering to individuals, 
> noncommercial organizations, religious groups, etc., should the 
> Sunrise Period exist at all?
>
> **
>
> Inquiry**into whether an automatic and upfront registration benefit 
> for existing trademark owners unfairly benefits McDonalds Restaurant 
> in a .FAMILY or .CATHOLIC gTLD is a question that truly needs to be 
> added and asked.Further, how can Sunrise Periods in future rounds be 
> more narrowly tailored to the limited rights of existing trademark owners?
>
> 6.*Section 4.2 Limited Registration Periods* is an important section 
> and one that fairly highlights the legitimate reasons why registries 
> may want to open registrations to those who are not trademark owners, 
> but otherwise fit into a category, such as football players seeking to 
> register their names in .FOOTBALL prior to the opening in General 
> Availability.
>
> 7.Section 4.5 *Reserved Names.* Reserved names policy is one that 
> raises a lot of questions and should be clarified in the future 
> rounds. The idea of reserved unlimited numbers of domain names in a 
> gTLD and releasing them to any “person or entity at Registry 
> Operator’s discretion” may and has led to gaming and anticompetitive 
> activity. Can these Reserved Name policies be used to cherry-pick all 
> of the best names by one industry competitor and bypass ICANN’s rules 
> barring closed generics?This is an important inquiry for the next round.
>
> 8.*Section 5 Trademark Claims Service*:The Trademark Claims Services, 
> as discussed above, has raised a number of questions and concerns. 
> Questions we request be asked in future drafts and related reports 
> include:
>
> a)Is the Trademark Notice being shown to all Registrants?
>
> b)Do all registrants understand the trademark claims notice?
>
> c)Why are so many potential registrants not registering domain names 
> after reading the Trademark Notice? Are they actually cybersquatters 
> or are potential legitimate customers being “chilled” by language of 
> the notice or the inability to understand the notice (either the 
> phrasing or not reading it in a language they speak?
>
> d)**How can we make the Trademark Notices better, clearer, fairer and 
> more accessible so that those protected by the notices are protected 
> and yet the limits, balances and fair use protections adopted by the 
> GNSO Council and ICANN Board are achieved as well?
>
> 9.*Section 5.2,* *Inclusion of Previously Abused Labels*: there is a 
> lot of concern re: how this non-policy was created and implemented by 
> ICANN.In light of the complaints brought against it, and apologies 
> issues, shouldn’t the report and future versions be asking if this 
> “50+” policy should be reasonably limited, or rolled back completely?
>
> 10.*Section 5.3, Extensions of Trademark Claims Service, may be a 
> completely invalid offering. *The GNSO’s adopted rules and those of 
> the ICANN Board were clearly limited in how long a Trademark Claims 
> Service would last.Trademark Owners are responsible for the policing 
> of their own marks and there are many private services and public 
> tools they can use. Should the ICANN Community be subsidizing or 
> allowing such an expanded and _even unlimited extension of the 
> Trademark Claims Service and what are the intended and unintended 
> consequences to the most vulnerable of our potential future 
> registrants: including noncommercial organizations, individuals and 
> small businesses and entrepreneurs?What is the impact on those in 
> developing countries?What is the impact of those who don’t speak 
> English (e.g., those now registering in our Internationalized Domain 
> Names)?Is the TMCH unlimited extension fair, is it being invalidly 
> subsidized or even paid for by the ICANN Community without 
> authorization and should it be stopped? _
>
> We strongly request that the inquiry of the next and similar reports 
> be expanded to include the questions above and whether the TMCH is 
> allowed to write its own rules. **
>
> 11.*Section 6,* *Uniform Rapid Suspension:*we would like to see the 
> next and future reports reflect that the URS was a controversial 
> mechanism -- an ultra-fast, ultra-cheap takedown mechanism for New 
> gTLDs – and many were worried about whether registrants would be able 
> to respond.
>
> Clearly, registrants ARE responding, and in far greater numbers than 
> we expected given that half the URS claims receive a response. Do 
> Registrants have the information they need to respond? Do they 
> understand the special defenses offered in the URS? Are they using them?
>
> Additional questions that need to be asked in the next draft of this 
> report and similar reports must reflect the education and rights of 
> both sides, the claimant and the respondent, and they must include:
>
> A.Who is educating New gTLD Registrants globally on the existence of 
> the URS?
>
> B.Who is educating registrants about the key differences of the UDRP 
> and URS, including the much more rapid time needed for response, the 
> different standards of proof, and the much more expanded 
> defenses?Where are the ICANN Webinars, ICANN LEARN Websites, FAQ pages 
> and Q & A sheets?
>
> C.Who is educating Registrants about the appellate mechanism of the URS?
>
> D.Is anyone using the Appellate Mechanism of the URS?
>
> E.Are Panelists being rotated as required by the URS rules?
>
> F.Is the limitation of the URS to English proceedings – even in the 
> Internationalized Domain Names (!!) – operating a barrier to responses 
> by Registrants? What percentage of URS cases are coming from the IDNs?
>
> G.How can ICANN and the URS Providers improve the education of 
> Registrants around the URS rules, URS process, and special URS 
> defenses and rights for registrants?
>
> H.How can we improve monitoring of the monitoring and reporting of the 
> URS results?
>
> Conclusion:
>
> Our thanks again to the ICANN Staff for such a comprehensive report. A 
> huge amount of work was done, but work still remains. As in every type 
> of intellectual property rights protection system (legislative, 
> regulatory, etc.), the questions are always asked: are the rights 
> holders protected, but also is the public protected, are all future 
> rights holders protected, are free speech, freedom of expression, fair 
> use and the rights of all to use dictionary words, generic words, 
> common acronyms and phrases as well as their first and last names 
> protected to the fullest extent of national laws, and international 
> treaties? Are these rights in balance, and carefully drafted by the 
> IRT, the STI and when adopted by the GNSO and ICANN Board?
>
> The next version of this report – and all future reports including the 
> upcoming UDRP Review – must include this fair and comprehensively 
> balanced inquiry. We must remain fully cognizant that we are adopting 
> these rules and seeking to protect the balanced rights of the whole of 
> the Internet Community, which is now the world. This is not just a 
> world of commerce, it is a world of free speech, democratic 
> development, and freedom of association, rights that are impacted by 
> restrictions on the use of words.
>
> Sincerely,
>
> THE UNDERSIGNED MEMBERS OF THE NONCOMMERCIAL STAKEHOLDERS GROUP
>
> Kathy Kleiman, Co-Founder Noncommercial Stakeholders Group, NCSG 
> Representative to Special Trademarks Initiative Team
>
> Stephanie Perrin, NCSG Canada
>
> OTHERS – NAMES, TITLES, AND/OR COUNTRIES WELCOME!!!
>
> Penn Engineering Overseers’ Meeting