Hi All,

What a great meeting we had in Seoul! It was nice to spend time with so many new and old friends. Our discussions were wide-ranging, and important. You should know that I was approached by several attended, not from our constituency (our meetings are open), who told me that our discussions were some of the very best they had seen at ICANN.

The purpose of the email is to share one issue that is moving very quickly through the ICANN process – the issue of Trademarks and new gTLDs. I will summarize our meeting in Seoul, and talk about events since then.

As in Sydney, we spent a lot of time in our Seoul meeting on the issue of Trademarks and new gTLD issues. In Sydney, we raised objections to the IRT Report. In Seoul, we discussed events since Sydney – the publication of two new documents by ICANN Staff – one on the Trademark Clearinghouse (TMC) and the other on the Uniform Rapid Suspension System (URS) --- and a letter from the Board sending the whole matter of Trademark Protection in the new gTLDs back to the GNSO for review.

The whole process was very responsive to our/NCUC's concerns. Many of our concerns for registrants were reflected in the new Staff Reports; the return of the process to the GNSO reflected our call, with ALAC, to ICANN to follow the proper process of policy formation – the purpose of our GNSO.

The Board's mid-October letter send the Staff Reports to the GNSO Council with a range of questions and a call for input – albeit on a very tight schedule. The GNSO Council must respond to the Board by mid-December (in order to keep the rollout of new gTLDs on schedule). It's a tall order!

So we (NCUC/NCSG) responded. During our all-day meeting on Tuesday, we spent a good amount of time on these new gTLD issues. We reviewed the Trademark Clearinghouse Staff Report and, after discussion, decided on some key principles:

==> While we believe that the best place for trademark clearing is outside of ICANN altogether, if we must have a TM Clearinghouse, then the rules must be explicit as to the limits and protections for Domain Name Registrants, including:

- The Clearinghouse must not expand trademark law beyond national law;
- Registrants must not be dissuaded from registering domain names to which they have a right or would otherwise be entitled;
- The Clearinghouse should minimize Chilling Effects; and
- A clearer IP claims process and sunrise period is required.

We also reviewed the URS Staff Report and expressed our deep concern about this Rapid Takedown System for Domain Names. We are deeply concerned about its creation, and wonder at its rationale, but should it go forward, we noted that it must embrace fundamental principles:
- Due Process;
- An Assumption of Innocence and Good Faith of the Registrant;
- A Fair Right of Response;
- Have a Clear definition of egregious conduct;
- Require a High burden of proof,
- Properly protect Registrant rights, and also
- Provide a process inexpensive enough for small noncommercial trademark owners to pursue.

On the Wednesday of the Seoul meeting, at the GNSO Council meeting, each Constituency named its representatives to the special trademark drafting team (called the “STI Team”). Our STI members are:

Dr. Konstantinos Komaitis,
Wendy Seltzer,
Robin Gross, and
myself.

Wendy is the founder of the Chilling Effects Clearinghouse which tracks online abuse and “aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities." Konstantinos wrote his dissertation on the Uniform Dispute Resolution Policy (UDRP) and had a book coming out on the subject. Robin is an active IP attorney and Chair of our Constituency. I am a Trademark/Telecommunications Attorney who helped draft the UDRP 10 years ago.

The STI Team has already begun to meet with all the stakeholder groups. We attended our first meeting in Seoul last Thursday evening. Today there was a long call on TM Clearinghouse. We meet tomorrow on the URS.

In my next email, I will share my thoughts on the big Trademark and new gTLDs panel held last Wednesday in Seoul – and my great surprise (and pleasure) that our (NCUC/NCSG) offer to work together and find common ground was reciprocated by other groups. That panel helped everyone to come to the negotiating table!

Regards and good night,
Kathy

p.s. Here are the email addresses of our STI team should you want to reach us directly:
Konstantinos -- k.komaitis[at]strath.ac.uk
Wendy – wendy[at]seltzer.com
Robin – robin[at]ipjustice.org
Kathy - kathy[at]kathykleiman.com