I generally write these posts in the third person because I am speaking for the ICA’s membership. But today I’m going to depart from that style and speak personally.
Yesterday I received word that my application to become a member of the Internet Committee of the International Trademark Association had been approved, and that my two-year term will commence in January 2014. While I was happily surprised by the news I must admit that I didn’t expect it.
Using the impending launch of new gTLDs as a rationale, The Coalition Against Domain Name Abuse (CADNA) has teamed up with the Council of Better Business Bureaus (BBB) to launch a month-long “‘Know Your Net’ gTLD public awareness campaign”. Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants. If such a proposal was enacted it would vastly increase the litigation leverage of trademark owners and tilt the playing field against defendants in a manner that would result in a high probability of domain shutdown without any final verdict from a court. In short, it’s a SOPA-like proposal grounded in trademark rather than copyright.
Trademark Notice for New gTLD Domain Registrants Must be Substantially Amended and Modified in Context of ICANN’s Trademark-Plus-Fifty Adoption
ICA has just submitted its comments (http://forum.icann.org/lists/comments-rpm-requirements-06aug13/msg00057.html) to ICANN regarding Rights Protection Mechanism (RPM) Requirements at new gTLDs. Our comments focus on serious shortcomings in the current text of the Trademark Notice (TN) that will be generated by some attempted domain registrations. Once a prospective registrant receives a TN it completes the domain registration at its own risk, with an awareness that it may well be challenged in a URS, UDRP, or court action.
During its August 22nd meeting the ICANN Board approved renewal of the registry agreements for the incumbent .Biz, .Info, and .Org gTLD registries. All three contracts were adopted in the identical form to the drafts published for public comment earlier this year.
In taking that action the Board did not adopt the suggestion of ICANN’s Intellectual Property Constituency (IPC) that all three agreements be amended to include “a commitment to adopt the URS if, after a review of its functioning in the new gTLDs, the URS appears to be reasonably effective in achieving its objectives.” That weak and vague standard would give no consideration to whether the substantive and procedural due process rights of domain registrants had received adequate protection in the administration of the as yet untested Uniform Rapid Suspension (URS) rights protection mechanism.
ICANN’s Board meets today, and included on its Consent Agenda is approval of the revised registry contracts for .Biz, .Info, and .Org. ICA saw nothing in the proposed revisions to warrant comment – until we recently became aware that the Intellectual Property Constituency (IPC) had made the immodest suggestion that all three agreements be amended to require the adoption of Uniform Rapid Suspension (URS) at these incumbent registries after a one-sided review that would fall woefully short of a Policy Development Process (PDP). We therefore felt compelled to communicate to the Board to remind them of the underlying history of this issue.
There’s an old joke that only two economists in the entire world actually know what they are talking about – and that they disagree! Apparently something similar holds true for ICANN string confusion experts. Except rather than being asked to prescribe the best policy mix or project the future performance of highly complex economic systems, they are simply being asked to determine whether one proposed new gTLD is confusingly similar to another proposed or existing gTLD, with few relevant facts to consider beyond the strings themselves.
The Legal Rights Objection (LRO) mechanism administered by the World Intellectual Property Organization (WIPO) on behalf of ICANN is starting to look like the reverse FISA Court of domain name system (DNS) rights protection mechanisms (RPMs) at the top level. In FISA Court, the government always wins – at WIPO, the LRO complainant always loses.
On July 18th the Senate Appropriations Committee issued Report 113–78 on S. 1329, the “DEPARTMENTS OF COMMERCE AND JUSTICE, AND SCIENCE, AND RELATED AGENCIES APPROPRIATIONS BILL, 2014”. The Report contains language that is harshly critical of the role played by the National Telecommunications and Information Agency (NTIA) within ICANN’s Governmental Advisory Committee (GAC), and would require NTIA to report back within thirty days after enactment of this spending measure on ICANN’s compliance with the Affirmation of Commitments and whether the new gTLD program is proceeding in a manner consistent with cybersecurity concerns.
ICA on the Record at the Durban Public Forum --Time to “Walk the Walk” on Registrant Rights and Due Process
The following consist of a prepared statement delivered by ICA Counsel Philip Corwin at the ICANN Public Forum in Durban today, plus the raw transcript of the subsequent interchange ---
Good afternoon. Philip Corwin, Counsel to the Internet Commerce Association.
Several weeks ago CEO Chehade stated that domain registrants were ICANN’s primary customer. We welcomed that recognition.
To our shock and dismay, ICANN staff today stated in Durban that it is not developing a standard and enforceable contract for Uniform Rapid Suspension (URS) arbitration dispute providers, going back on its written statement of May that it was doing precisely that.