RE: [wg-b] Final Report

["Roeland Meyer \(E-mail\)" <rmeyer@mhsc.com>]

> Michael D. Palage: Monday, May 15, 2000 2:01 PM
>
> Listed below is the Final Report that I submitted to the
> Names Counsel. I

> The Working Group has reached consensus on the following three items:
>
> (1) Some type of mechanism, yet to be determined, is necessary in
connection
> with famous trademarks and the operation of the Domain Name System.
>
> Comment:  In October 1999, there was a vote among the
> participants of the
> Working Group at that time and a consensus was reached (30 out of 42
> voters - 71%) that additional mechanisms were needed to protect famous
> trademark interests in connection with the domain name system.
> Notwithstanding a controversy over the tabulation of votes during this
> ballot (see Kathy Kleiman's report) at worst there was a
> rough consensus in support of is position.

I don't like the answer, but this seems accurate. I might suggest
dropping the mention of the controversy, as irrelevent to the point, and
simply mention the rough consensus.

> (2) There does not appear to be the need for the creation of
> a universally famous marks list at this point in time.
>
> Comments: The creation of a universally famous marks list was
> a political hot potato. Issues such as who should create the list, the
> criteria that should be used, limits on the size of the list, etc.
were
> hotly debated with no clear compromise in sight. The current Sunrise
proposal
> being advanced by the Intellectual Property Constituency (IPC) and a
> significant portion of the Registrar Constituency does not require the
creation of
> such a list. This position appears to coincide with the Non-Commercial
> Constituency that has vehemently opposed the creation of such a list.
However,
> if and when a universally famous marks list is created, it would be
prudent
> for ICANN to consider whether the list is applicable to the
then-existing gTLD
> registration process.

(See John Bertryhills comments) I agree with him in that this doesn't
parse well. It states some key issues in a very ambiguous manner. Too
much pronounciation (this's and that's) to the point of confusion.

> (3) The protection afforded to trademark owners should depend
> upon the type of top-level domains that are added to the root.
>
> Comments:  This consensus item is based upon the recognition in the
> Registrar and IPC proposals that this mechanism is probably
> not suitable for every new top-level domain, especial certain
non-commercial domains.
> However, this consensus item is conditioned on many
> tangential issues, i.e. the scope of chartered gTLDs, the enforcement
mechanism for
> charter, etc. Defining the procedures for classifying what constitutes
a
> non-commercial top-level domain, is better left to another group.
However,
> nothing in the consensus item should be construed as creating immunity
from
> the UDRP or other legal proceeding should a domain name registrant in
a charted
> top-level domain violate the charter or other legal
> enforceable rights.

What's missing here is that we seem to have, incidentally, derived some
requirements for the valid creation of such a list. From the discusison
threads;
1) Creation of such a list, by a legal authority, with global scope,
such that it is defensible, might be acceptible.
2) The registries and the registrars would have to be indemnified from
liability, related to enforcing such a list.
3) The list would have to be consistent in all jurisdictions.

Otherwise, we seem to be agreed that ICANN is  not such an authority.
There may be other requirements, but these are the ones I am interested
in.

> Conclusion
>
> I regret to inform the Names Counsel that there does not appear to be
> consensus among the Working Group B participants as to the
> type of mechanism that should be incorporated into the rollout of new
top-level domains.
> However, I encourage the Names Counsel Representatives to review the
> proposals contained in my April 17, 2000 formal report.
> During the comment period, the most hotly debated proposal involved
the Sunrise
> Proposal. The supporters and detractors of this proposal each made
> meritorious arguments in behalf of their position. I encourage the
Names Counsel
> and/or Board to continue exploring other ideas and I stand ready to
assist in
> whatever way possible.

Since the sunrise proposal was never fully debated in this forum, I move
to strike any mention of the sunrise propsal, in this WG-B report. It is
not a product of WG-B, as a group. The IPC effort, is a separate effort.
While many of the WG-B are also part of the IPC, the sunrise propsal was
not originated here, nor was it formally introduced here, nor was it
officially discussed here. Therefore, I do not condone attaching a WG-B
signature to the sunrise proposal. I submit that were it to have been
introduced here that it would not have survived in its present,
extremely flawed, form (which may be exactly why it wasn't introduced).

cheers, ttfn.
---
R O E L A N D  M .  J .  M E Y E R
CEO, Morgan Hill Software Company, Inc.
An eCommerce and eBusiness practice
providing products and services for the Internet.
Tel: (925)373-3954
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