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Trademark Clearinghouse Debate is Not About the Trademark Clearinghouse!

Stéphane Van Gelder

A comment period on the "strawman", a proposal to update the Trademark Clearinghouse (TMCH), is currently underway. Originally planned to end on January 11, it has been extended by ICANN to February 5.

The comment portal has so far received 89 email contributions. A fair number, but the real story is how many major brands have spoken out on the proposed amendments to the TMCH model. Facebook, HSBC, Intel, DuPont, Microsoft, Adobe, Coca Cola, Tim Warner, Nestlé, Lego and several other world heavyweights have all submitted comments.

This is probably a healthy sign of how the new gTLD program is taking domain names out of the relative obscurity they have always enjoyed. Let's hope by focussing the attention of global entities that are not ICANN regulars, this debate also leads us all to ask the right questions.

I have before voiced my dismay on how the strawman proposals came to be considered by ICANN in the first place. Domain industry players such as registries and registrars, who fear the proposals will add to their costs and the complexities of implementing and selling the new gTLDs, tend to agree. So do those of a non-commercial disposition, because they worry about possible freedom of speech impacts if the strawman is implemented.

Not surprisingly, big business and Intellectual Property don't agree. They saw my comments as an attack on the strawman itself.

Nothing could be further from the truth.

Creating and running a registrar that mainly serviced big brands for a decade helped convince me long ago that existing mechanisms do not provide adequate protections to brand owners on the Internet as a whole, not just as far as domain names are concerned. I have always believed that anyone who invents, markets, builds and grows a brand should be protected.

My comments were about the process: the age-old "policy versus implementation" debate. There can be no doubt that major changes to a community-agreed TMCH model should go through the proper process: the bottom-up policy development mechanism used at ICANN to make sure everyone has an equal voice in the debate.

That is the real issue here, not the trademark clearinghouse itself. Comments to this effect should not be painted as being pro or against the proposals rather than about the need to keep to the process. Some may think the strawman discussion is all about getting the extra protections they want today, through blatant circumvention of that process. That would be short sighted, as they are bound to realise in the future, when another debate rears its ugly head and this time, they need it to go through full policy development.

Wrapping them in process circumvention actually only serves to harm the strawman proposals themselves. Now that's a real pity because I, like many other people, happen to think that most of these proposals would probably go a long way towards boosting brand owner trust in new gTLDs. And that is something the new gTLD program badly needs.

Go through the proper process, and that's exactly what we would all be discussing: the well-founded strawman proposals themselves, not whether they constitute disguised attempts to get policy changes enacted in closed door, invitation-only meetings…

By Stéphane Van Gelder, Chairman, MILATHAN

Related topics: Domain Names, ICANN, Internet Governance, Top-Level Domains

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Comments

Coca Cola exposed to "Contributory Infringement" by WIPO & CentralNic! Graham Schreiber  –  Jan 22, 2013 2:00 PM PDT

How many of those 'major brands' have had an Infringement, similar to The Coca-Cola Company??

As per: http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1741.html

Now then; how many of those 'major brands' know that, care of ICANN's {disparate treatment} CentralNic, as a Registered Name Holder, of a Domain Name, or more accurately a portfolio of Domain Name's ... have been masqurading as ccNSO sanctioned ccTLD's ... all protected from the rules published in the RAA, in Section 3.7.7.9.

"3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party."
(Source: http://www.icann.org/en/resources/registrars/raa/ra-agreement-21may09-en.htm)

"Major brands" and tiny ones too, must exercise extreme caution when dealing with ICANN, the World's most successful "Not for profit" enterprise, as they're not remotely skilled at avoiding Conflict's of Interest, as has been well published.

Many of you know what constitutes "Contributory Infringement" I'm sure. But here it is, for those who don't. "If a manufacturer or distributer intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributer is contributorially responsible for any harm done as a result of the deceit. "
(Source: http://www.law.cornell.edu/wex/contributory_infringement)

Here you discover "Induce" ... "If you've been wanting to register "whatever.com" and it hasn't been available, you might just be able to get "whatever.us.com" in its place. These unrestricted domain names are now widely available on a first come first serve basis. eNom, one of the largest ICANN Accredited Domain Name Registrars, has introduced a series of two-letter, geo-specific, domain names. These domain names, made possible by CentralNic , a private London Based domain name registry, include US.COM, EU.COM, UK.COM, CN.COM, RU.COM, DE.COM & twelve others that represent the worlds most populated countries. (Source: https://www.centralnic.com/company/news/2004/eNom)

Want to get your message of disdain for ICANN in front of somebody who's opinion matter's; and can make a difference? Please inform the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION and relate your views c/o CASE NO. 1:12-cv-00852.

Your effort, will help prevent your brand & others, from future Infringement / Contributory Infringement, at the hands of ICANN.

I'm struggling to think of any major Kevin Murphy  –  Jan 22, 2013 5:15 PM PDT

I'm struggling to think of any major changes to the Applicant Guidebook over the last couple of years that *did* have the support of the GNSO and/or went through the proper channels.

Is my memory really terrible, or are these strawman proposals really just "implementation"?

/ducks

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