All,
Konstantinos and I wanted to share some notes from a meeting we had with ICANN Senior Staff Kurt Pritz and Doug Brent last Friday.
It was a fascinating and very worthwhile meeting. It took place in Washington DC, and Konstantinos joined us by videoconferencing.

Konstantinos and I wanted to share with ICANN some of our views as experts in the field who have analyzed the IRT Report closely and consulted widely with NCUC members, ALAC, Registrars, Registrant Attorneys and IRT members. Konstantinos wrote his dissertation on the UDRP and its impact inside and outside of ICANN, and is currently writing a book on Domain Name Regulation. I have represented registrants in domain name disputes since 1996. We made sure everyone knew we were there in our personal capacities.

We discussed why were there (3 reasons):

A. We feel there are important voices not heard in full in the IRT discussion -- including noncommercial, educational, research, academic, entrepreneur, organizational, hobbyist and small businesses.

B. We support new gTLDs - New gTLds promise to open up bold new opportunities for speech and communication, diversity and distinction. The same words, used in different contexts online, will easily serve different markets and community segments.

C. We feel Innovative Solutions are critical to getting the rules right for new gTLDs - Our hope: that the new rules proposed for trademark protection in the new gTLDs reflect the balance of trademark law... and do not extend into the new gTLDs an artificial scarcity and a protection of unrelated legacy rights.


We discussed trademark law and traditional limits and protections of free speech, fair use and the right of all to use basic dictionary words and their own surnames.


We then provided ideas for improvement:

(A) A few private, regional Trademark Clearinghouses, rather than a single monolithic clearinghouse of vague and unverified “intellectual property.”

(B) Deep GPML criticisms and deep concerns that the results of ICANN creating such a list (when even WIPO cannot) will expand trademark rights beyond any existing bounds, both in ICANN and outside of ICANN. There is no global consensus on famous marks.

(C)  Close URS analysis – we showed how many of the concerns driving the creation of the URS, a completely parallel system to the UDRP (and one which replace it) can best we addressed by other means – namely, criminal law for fraud, phishing, fake medicines, etc. There are already criminal takedown procedures in place- and ones in the process of being created!

We suggested that URS be modified by:

  1. Convening a full UDRP forum to address everyone's issues and concerns on a fair playing field;

  2. Adopt suggestion of Registrant Attorney Paul Keating, namely, revise the UDRP for new gTLDs to allow Respondents to decide if they want to defend the domain name, or transfer it immediately.

  3. Narrow the URS to the real concern of the large trademark owners: serial cybersquatting, including the registration of hundreds of variations of well-known marks for the purpose of pay-per-click monetizing of the value.


Attached are three mini-White Papers that Dr. Komaitis and I wrote and shared. They are about the IRT requests, their dangers and problems, and options/innovative solutions explored in greater detail.

Kurt and Doug listened carefully, and engaged us with some excellent questions. We urge you to follow-up with the ICANN staff and share your ideas and concerns – and anything you might agree with in these papers!


Best,
Kathy and Konstantinos