On Monday, ICANN held its second public consultation of the new gTLD plan (the first being Sydney). More than half the day was devoted to the IRT Report- the Intellectual Property Constituency’s plan to expand trademark
rights in the new gTLDs. I was there as our NCUC representative.
Below is the text of my speech. The video is posted at www.isoc-ny.org. We need more people to fight for balance, for freedom of expression, for fair use!! If you want to join us in actively working on this issue, please let me know.
Kathy Kleiman, Co-Founder, NCUC
Speech in NYC, 7/13
My name is Kathryn Kleiman and I represent a group not even listed on the descriptions of attendees in the ICANN signup for today . I represent registrants.
In my group, ICANN.s Noncommercial Users Constituency, our 102 members register their domain names on behalf of human rights groups, public interest groups, community and political groups worldwide. Some members risk their lives and livelihoods to post content about corruption, extortion and malfeasance. It is some of the very highest uses of the Internet.
Yet, our domain names, and those we register in the future, will be at risk under the IRT proposal. I have been asked to share 3 quick points:
1. The IRT proposal provides for only one type of abuse when there are two. The IRT fears trademark infringement, but not trademark lawyer abuse. Every day, trademark lawyers threaten domain names. Under the guise of trademark infringement, they drive out new competitors, squash those who investigate or criticize them, or simply try to snatch away a good domain name they did not think to register. The next group must dig from the deep expertise on both side of the abuse aisle; the next version must mitigate both abusive experiences.
2. The IRT proposal goes far beyond the two limits which should be its bounds, that ICANN is a technical body with a limited scope and mission, and that trademark law as it exists under every law is bounded by protections for fair use and freedom of expression and the right to simply use language.
A. The IP Clearinghouse takes ICANN into the job of global rights protection and beyond its mission as a technical manager of domain names. For ICANN to enter this field would require it to become a trademark office, an examiner of the registered and unregistered marks being entered. For ICANN not be such an examiner, would create a gigantic database of unverified intellectual property which will be misused not only again against future domain name registrants but far outside the scope of ICANN as well.
There may well be a need for this type of service, but the market has shown that it can and will provide it. This is one need the market should be allowed to meet.
B. The Globally Protected marks List brings ICANN into an area even WIPO dares not tread. There is no international consensus on globally famous marks, and no list of such marks prepared by WIPO nor any other international organization. It is beyond the scope and mission of ICANN to be the first down this path. Further, the GPML proposal goes awry by protecting these trademarks, not as marks for certain goods and services, but as strings of characters protected across all new gTLDs, regardless of use or relevance. This list will remove from the domain name dictionary basic words, including Apple, Sun, Time and People. That ICANN cannot allow.
C. The Uniform Rapid Suspension Service is among the most dangerous provisions. It will replace the Uniform Dispute Resolution Policy with a faster, cheaper and fundamentally more unfair process. It strips UDRP of those few aspects that made it fair, including strong requirements for notice, and a reasonable response time. Domain name registrants will lose their domain names and website speech before they ever know a challenge has been filed. As many said in their comments, this is a case of UDRP reform, but an invalid UDRP replacement.
We have strong objections to the thick whois and post-delegation dispute mechanism, but time grows short.
Overall, the IRT Report includes only one half of trademark law . its rights, but not its limits or fair use protections. The free and fair use of language requires this balance . and the free and fair of domain names too.
For Registrants, that enormous base of the ICANN Pyramid, those registering domain name for years into the future, we have to get these rules right, and we must make them fair.