Hi All,
Yesterday was the second
public consultation by ICANN of the new gTLD plan (the first being
Sydney).
A good half the day was devoted to the IRT Report- the
Intellectual Property Constituency's plan to expand trademark
rights
in the new gTLDs. I was there as our NCUC representative.
We
opened the day with a breakfast I organized on behalf of NCUC for
individuals and groups concerned about the IRT proposals.
The
group that came early to attended (8am!) included representatives of
New Yorkers for Fair Use, Internet Commerce Association (business
registrants), eNom, the chairman of the Registrars Constituency, John
Berryhill (a registrant attorney) and even a reporter for the New
York Times. The breakfast was sponsored by NCUC, ICA, eNom and Tucows
-- and it was great fun and a great discussion.
We then went
into the ICANN meeting and heard the IRT Team report (again). When
the microphones finally opened for questions just after lunch, I
jumped up and read the speech below. Others followed with lots of
concerns about noncommercial domain name registrants, individuals and
commercial registrants. I am happy to say our voice was heard loud
and clear. I think our concerns truly resonated.
Below is my
speech which might of interest. Good luck to Konstantinos and anyone
who can join him tomorrow AM in London. May the force be with
you!
Kathy
-----------------------------------------------------------
Good morning,
My name is Kathryn Kleiman and I represent a group not even listed on the descriptions of attendees in the ICANN signup for today – I represent registrants.
In my group, ICANN’s Noncommercial Users Constituency, our 102 members register their domain names on behalf of human rights groups, public interest groups, community and political groups worldwide. Some members risk their lives and livelihoods to post content about corruption, extortion and malfeasance. It is some of the very highest uses of the Internet.
Yet, our domain names, and those we register in the future, will be at risk under the IRT proposal. I have been asked to share 3 quick points:
1. The IRT proposal provides for only one type of abuse when there are two. The IRT fears trademark infringement, but not trademark lawyer abuse. Every day, trademark lawyers threaten domain names. Under the guise of trademark infringement, they drive out new competitors, squash those who investigate or criticize them, or simply try to snatch away a good domain name they did not think to register. The next group must dig from the deep expertise on both side of the abuse aisle; the next version must mitigate both abusive experiences.
2. The IRT proposal goes far beyond the two limits which should be its bounds, that ICANN is a technical body with a limited scope and mission, and that trademark law as it exists under every law is bounded by protections for fair use and freedom of expression and the right to simply use language.
For example,
A. The IP Clearinghouse takes ICANN into the job of global rights protection and beyond its mission as a technical manager of domain names. For ICANN to enter this field would require it to become a trademark office, an examiner of the registered and unregistered marks being entered. For ICANN not be such an examiner, would create a gigantic database of unverified intellectual property which will be misused not only again against future domain name registrants but far outside the scope of ICANN as well.
There may well be a need for this type of service, but the market has shown that it can and will provide it. This is one need the market should be allowed to meet.
B. The Globally Protected marks List brings ICANN into an area even WIPO dares not tread. There is no international consensus on globally famous marks, and no list of such marks prepared by WIPO nor any other international organization. It is beyond the scope and mission of ICANN to be the first down this path. Further, the GPML proposal goes awry by protecting these trademarks, not as marks for certain goods and services, but as strings of characters protected across all new gTLDs, regardless of use or relevance. This list will remove from the domain name dictionary basic words, including Apple, Sun, Time and People. That ICANN cannot allow.
The Uniform Rapid Suspension Service is among the most dangerous provisions. It will replace the Uniform Dispute Resolution Policy with a faster, cheaper and fundamentally more unfair process. It strips UDRP of those few aspects that made it fair, including strong requirements for notice, and a reasonable response time. Domain name registrants will lose their domain names and website speech before they ever know a challenge has been filed. As many said in their comments, this is a case of UDRP reform, but an invalid UDRP replacement.
We have strong objections to the thick whois and post-delegation dispute mechanism, but time grows short.
Overall, the IRT Report includes only one half of trademark law – its rights, but not its limits or fair use protections. The free and fair use of language requires this balance – and the free and fair of domain names too.
For Registrants, those at the base of the ICANN Pyramid, those registering domain name for years into the future, we have to get these rules right, and we must make them fair.
Thank you.