Brussels Day One – ICANN Board and GAC Parry on New gTLD Trademark Protections

 

ICANN’s Board and its Governmental Advisory Committee (GAC) engaged in a preliminary discussion of trademark protections for new gTLDs on day one of their conclave in Brussels, with more intensive exploration slated for day two. The topic was scheduled for an initial thirty minutes exploration but received somewhat more time, not surprisingly given its importance and complexity.

Mark Carvell of the UK was lead spokesman for the GAC maintained that they simply wanted to return the Uniform Rapid Suspension (URS) mechanism to its original intent as a low-cost, expedited means of suspending clearly infringing domains, without introducing new concepts to the debate. (However, as ICA documented in a February 25th letter to the U.S. Department of Commerce, the GAC “scorecard” actually proposes multiple changes that were specifically recognized in the past as overreaching by trademark interests, as well as new elements that have received no prior discussion.) He noted that he had held a meeting in his office with a large number of brand owners, including BBC and Shell, all of whom complained that ICANN had not listened to them and that they had been “sidelined” ever since the Implementation Review Team (IRT) first proposed the URS.

That prompted one ICANN Board member to inquire whether ordinary end users would have found such an open door to air their views. For his part Board Chairman Peter Dengate Thrush, while noting he is an IP attorney, observed that the trademark protections in the proposed Applicant Guidebook generally, and the URS in particular, were the result of an “extensive and well-balanced process” and that “we’ll need a lot of persuading” to reopen them in any significant way. He also noted that the existing proposals incorporated the viewpoints of free speech advocates and individual end users, and were a middle ground between their concerns and those of rights holders. Likewise, Board member Rita Rodin commented that what trademark interests viewed as “dilution” had occurred as a result of the balancing operation of ICANN’s multi-stakeholder process.

While we have not seen them, reference was made to extensive questions that the Board had provided to the GAC to try to better understand the details of its scorecard and the reasoning behind it. A far more detailed, two-hour discussion of protection of rights owners is scheduled for 11 am to 1 pm Brussels time on Tuesday, March 1 (that’s 5 am – 7 am Eastern time U.S.) – any domain investor wishing to monitor the dialogue can simply go to http://meetings.icann.org/board-gac-spring11 and click on the Adobe Connect link for both real time audio and a running transcript of the exchange. ICANN deserves significant praise for the strides it has made with this “remote participation” technology – while it’s not the same as being at the meeting room in Brussels, the sound quality is very good and it certainly provides an excellent means of tracking the debate in real time.

Again, these Brussels discussions are just that, and the formal consultation to resolve Board/GAC differences will occur on March 17th during the ICANN meeting in San Francisco. ICA remains quite concerned that any significant adoption of the GAC’s rights protection proposals would fatally undermine ICANN’s multi-stakeholder policymaking process, provide inadequate registrant protections at new gTLDs, and subvert the UDRP reform process that ICANN recently embarked upon. But we are encouraged by the remarks of Board members indicating that they have heard our concerns, and those of many others, and understand fully what’s at stake in these meetings.

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