Hi Robin and All, Let me share the links with you to Konstantinos posting (which I fully endorse and support): 1. The main announcement of the new Draft Application Guidebook, now in Version 3 (called the DAG), with an overview of key issues and links. 2. The new Uniform Suspension Services report (written by ICANN Staff)- http://www.icann.org/en/topics/new-gtlds/draft-proposed-procedure-urs-04oct09-en.pdf 3. The new Trademark Clearinghouse Report (written by ICANN Staff)- http://www.icann.org/en/topics/new-gtlds/draft-proposed-procedure-tm-clearinghouse-04oct09-en.pdf We look forward to discussing these documents with those in Seoul and those online. Their impact on the Noncommercial Community will be enormous (IMHO). Best, Kathy > Thank you, Konstantinos. This is very helpful starting point for our > discussion on how to position ourselves going forward. You've > highlighted some big issues below for us to work through. > > Could you please forward White Paper again (or send another link, I'm > not able to access the links below)? > > Thanks again! > > Best, > Robin > > On Oct 21, 2009, at 10:15 AM, Konstantinos Komaitis wrote: > >> Dear all, >> >> Here are some initial thoughts on ICANN's response to the IRT >> proposal, published a little earlier this month. Please bear in mind >> that ICANN is requesting GNSO¹s consensus view on the Trademark >> Clearinghouse and the Uniform Rapid Suspension System (URS). These >> are the views of myself and Kathy Kleiman and a reflection of our >> sense of events. NCUC will be meeting at length in Seoul to discuss >> the issues and develop our position for moving forward. To see the >> new documents, drafted by ICANN staff, please go to >> [http://www.icann.org/en/topics/new-gtlds/draft-proposed-procedure-u...] >> for Uniform Rapid Suspension Service and >> [http://www.icann.org/en/topics/new-gtlds/draft-proposed-procedure-t...] >> for Clearinghouse. >> >> First, some great news. The Globally Protected Marks List (GMPL) is >> completely gone (or so it appears at this stage). The NonCommercial >> Users Constituency (NCUC) was against the GPML from the beginning and >> in White Paper, Kathy Kleiman and myself submitted to ICANN >> (https://st.icann.org/data/workspaces/new-gtld-overarching-issues/at...), >> we further elaborated on the dangers of proceeding with the GPML. >> >> >> The IP Clearinghouse is now re-named Trademark Clearinghouse. I >> consider this to be a great development. The term 'IP' encompasses >> other rights (patents, copyright, etc) and this is not the role of >> the Clearinghouse ¬ nor should it be. The Clearinghouse is just a >> repository and ICANN was correct in recommending a new, more >> restrictive name, following our White Paper >> (https://st.icann.org/data/workspaces/new-gtld-overarching-issues/at...). >> >> >> The ICANN proposal did not follow NCUC¹s recommendation for regional >> clearinghouses. This was an important issue for nations and for IDNs. >> One entity cannot know the trademark laws and practices of all >> countries; but regional registries will understand the laws and >> nuances of trademark practice in the countries of their region. We >> expect to see some attention on this issue from GAC members at this >> meeting. >> >> >> >> One clear problem of the Trademark Clearinghouse is its creation of a >> new, a very new, right to a global common law mark. A common law >> mark, which is trademark protection although there is no >> registration, is a very unusual right. It exists largely in common >> law countries, such as the UK and US. Very few countries allow >> trademark rights absent trademark registration (e.g., though a >> national Trademark Office) and even those countries with common law >> protection have national trademark registration (which all serious >> trademark registrants will use). The new proposal is problematic in >> that it allows any name written or expressed on a handkerchief, on a >> label, on letterhead to be listed and thus to gain global protection >> – absent any proof of national protection. That's a real problem. >> >> The URS is a different story. It has gone worse. >> >> >> As always, we have the same question: why create a new system and not >> stick to the UDRP and amend it accordingly? The UDRP was designed for >> quick, cheap takedown of domain names. The URS is too quick, too >> cheap and new proposal fails even to limit cases to the “egregious >> cases” of domain name use that the IRT had highlighted. >> >> NCUC and the White Paper submitted to ICANN mentioned that the >> creation of the URS could address Œserial cybersquatting¹, a proposal >> that was not taken into consideration >> (https://st.icann.org/data/workspaces/new-gtld-overarching-issues/at...). >> So, the system will be open to gaming and abuse. The idea is for the >> URS to 'lock' the domain name rather than transfer or cancel it, as >> it happens with the UDRP. But, here is a possible outcome of this: >> trademark owners will use the cheap and fast URS to 'lock' the domain >> name and then proceed to the UDRP (submitting the URS decision as >> evidence for bad faith) and get transfer of the domain name. >> >> The URS continues to use and justify itself in the dialectic of the >> UDRP. The new proposal says that the URS standard is similar to the >> UDRP, but the burden of proof is higher – but it is much, much lower. >> >> Moreover, there is no mention on the legitimate rights or interests >> of domain name holders and the deadlines are too short ¬ 14 days as >> opposed to the UDRP¹s 20 days ¬ although there is a possibility for a >> seven-day extension. Trademark owners will game the system, file on >> Christmas Eve, and a domain name will be lost before the registrant >> even knows it is of concern. This should be a huge problem for all >> registrants: noncommercial, commercial and individual. It's simply >> not fair; it's not due process. >> >> Further, the respondent is required to submit a statement on truth >> and accuracy of the submissions, while the trademark owners appears >> not to be under the same obligation. Why? >> >> Also, beware, one error on your response, and you lose. The new URS >> proposal also the definition of Œdefault¹ to include non-compliance >> with any the filling requirements-- even minor, even by a registrant >> representing himself or herself. This is unfair, considering that >> mistakes are human and do not necessarily indicate an attempt to >> abuse the system. Creating such a rule, under the default definition, >> which is already subjected to UDRP misinterpretations, creates a very >> bad precedent. >> >> Basically, the URS, as revised, preempts, replaces and displaces the >> UDRP without any of its balance or fairness. It does not focus on >> egregious cases, but all garden variety disputes – and gives the >> trademark owners a nearly automatic win. >> >> This can't be the way we want to open new gTLDs. And mass freezing of >> domain names under the URS can't be the way we can expect registrants >> to flock to the new gTLDs registry applicants want to offer. >> -- >> Dr. Konstantinos Komaitis, >> Lecturer in Law, >> GigaNet Membership Chair, >> University of Strathclyde, >> The Lord Hope Building, >> 141 St. James Road, >> Glasgow, G4 0LT, >> UK >> tel: +44 (0)141 548 4306 >> email: [log in to unmask] > > > > > 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] > <mailto:[log in to unmask]> > > >