The following remarks were delivered to ICANN’s Board and senior staff by ICA Counsel Philip Corwin during the Public Forum (http://buenosaires48.icann.org/en/schedule/thu-public-forum) held on the afternoon of Thursday, November 21st at the 48th ICANN meeting in Buenos Aires, Argentina:
Good afternoon. Philip Corwin, speaking on behalf of the Internet Commerce Association, which I am proud to represent on the Business Constituency [BC].
As the new gTLD program launches there will be a focus on the operation of the new rights protection mechanisms – the RPMs.
We know that trademark owners will be watching. But so will registrants. And their perception of whether domains at new gTLDs have secure legal status, whether they are protected from abusive hijacking and can provide a sound foundation for business and speech, will impact the long-term success of the program.
ICA remains concerned that the Trademark Claims Notice is still flawed. We filed comments on this but no changes were made.
We will be watching to see how receipt of that flawed Claims Notice bears on the question of whether a domain registration was made in bad faith, which will arise in both URS and UDRP actions filed against domains at new gTLDs. That will be up to the arbitration providers, who may well reach different conclusions. This again points out the need for a better agreement between ICANN and URS providers than the current two-page MOU.
There also should be a standard enforceable agreement between ICANN and UDRP providers, a position endorsed by the BC. In September the BC sent a letter to ICANN that raised questions about the UDRP Status Report issued the day after the Durban meeting ended. Two months later the BC is still waiting for a response.
So, absolutely, trademark rights must be protected. But registrant rights must be protected as well, through fair, consistent, and balanced application of the new RPMs and the UDRP.
[Note: As the official transcript of the Public Forum is not yet available, this statement has been transcribed from the speaker’s outline for his remarks.]