ICANN - Nairobi
Trademark Protection in New gTLDs
8 March 2010

>> Hello.  I think we should get started.  

Hi.  I'm Margie Milam, senior policy counsel with ICANN.  Our
session today is trademark protection in new gTLDs.

Before we get started, I just want to give you a little logistics
information.  One of our speakers at the end, Jeff Neuman, is remote.
And so for those of you who are listening on translated -- in other
languages, his comments will not be translated.  So I just want to
clarify that ahead of time.  Our moderator for today is Michael
Silber, a member of the ICANN board.  So I'll hand it off to him.

>>MIKE SILBER:   Thanks, Margie.  I think, really, just to give a
little bit of background to the session, we're in a situation where
Sydney last year -- well, Sydney and a year ago in Mexico City, there
was a fair amount of attention.  Sydney, a meeting of this size,
almost came to blows.  And I think it was the largest session at the
Sydney meeting, second possibly only to the vertical integration
session.

The fact that we're reasonably well populated but not absolutely
full hopefully means that the tensions have simmered and that the
various people on the panel and elsewhere in the community have done
their work in coming to an appropriate compromise.

But let's go through a little bit of the process and where we're at.

Firstly, the models that are going to be dealt with today are the
combination of significant work by the ICANN community to identify
what we consider to be implementable solutions to address trademark
protection concerns.

Upon the conclusion of the current public comment process, which is
due to close on 1 April 2010, the models will be finalized for
inclusion in what will then still be the draft applicant guidebook,
until such time as we move to the pure applicant guidebook.

Just an indication of what we are planning on doing today.  We have,
I think, a great panel.  We have Mary Wong -- in no particular order -
- Mary Wong, Alan Greenberg, Robin Gross, Zahid Jamil, and Jeff Neuman.

I'm going to be doing the intro.  So you've got about another two
minutes of me, and then I keep quiet.

After that, what we're going to do is turn it into mini sessions
dealing with each of the STI recommendations.

Firstly we're going to deal with the trademark clearinghouse.  Zahid
is going to lead that session.  There's going to be a Q&A within that
session.  We're then going to close that off after 30 minutes.  We're
going to move towards the Uniform Rapid Suspension procedure.  Mary's
going to be leading that.  Then we're going to get on to post-
delegation dispute resolution.  And Jeff will be leading that.

So if you can try to the best of your ability to keep questions to
the specific topics.  I know that some will be general overarching
questions and we'll need to deal with them where they're raised. 
But, generally, we'd prefer to deal with topic-specific questions
wherever possible so we can get to the real nitty-gritty of the
particular issues.

There's a timeline slide over there which gives you some indication
of the work that people have put in.  Again, I just want to pay
tribute to everybody who's put in very significant amounts of work
around this process.

The IRT, who put in an enormous amount of work, whether it was
appreciated by everybody or not is beside the point.  They certainly
put in the hours and the effort to deliver a very significant
document, which was a very useful start towards some.

Additional thinking.  We've been through a number of iterations. 
We've been through a number of procedures.  Where we're at at the
moment is that after the consultation, there was definitely a need to
modify some of the IRT recommendations.  The board sought the GNSO
input on an expedited basis on some of the trademark solutions.  The
GNSO convened a drafting team called the Special Trademark Issues
Drafting Team.  Yes, there have been numerous remarks made about the
particular abbreviation -- that transpired from that name.  They have
arrived at a set of conclusions.  Those were unanimously approved by
the GNSO.  The revised models and explanatory memorandum have now
been posted and we now have public comments running until the end of
March and will close on 1 April.

So if you have significant concerns and you feel they haven't been
addressed, this is the time to do it now.

So it gives us a -- if you want to look at it, a complete set of
trademark protections or right protections mechanisms, specifically
focused to trademarks, but not exclusively, where you have the
trademark clearinghouse, you have the Uniform Rapid Suspension
procedure, you have the post-delegation dispute resolution mechanism,
if it's adopted.  And Jeff will deal with that in more detail.  You
have requirements around a thick WHOIS.  And you have the ability to
rely on the standard UDRP.

Now, that's notwithstanding the fact that the GNSO is currently
going through a PDP around rights protection mechanisms.  This is
likely, given the nature of PDPs, to take a relevant significant
amount of time.  So this will be a topic that, once it's completed,
and assuming that there are no significant issues raised within the
public comment forum or within the public comment period, can be
signed off by the board and go into the draft applicant guidebook,
which means we've completed this phase.

Once the PDP is complete and to the extent that the PDP differs, the
contractual provisions would then allow for the results of the PDP to
supervene the results coming through this process.  So this is, to
some extent, an interim process.  But it is likely, given the nature
of PDPs, to be around for some time.

So that introduction having been provided, I think let's get on to
our first critical issue, which is the question of the trademark
clearinghouse.  And dealing with some of the key features.  Again, as
I've said, we'll take approximately 30 minutes for a brief overview
and then, hopefully, some interaction with the audience in terms of
concerns, questions, or comments that people may want to make.

>>ZAHID JAMIL:   Hi, there.  I'm Zahid Jamil, a GNSO councillor from
the BC, but here on my personal capacity.  The -- if you have a
minute to talk about the work done here, I think this is an excellent
example of how cross-constituent, cross-stakeholder group really
worked well together.  And in that, basically came to a large degree
of consensus and a lot of common ground was reached, especially
between noncommercial and commercials, and even contracted party
house.  However, it is important to know that the STI was formed to
only look at two areas.  One was the trademark clearinghouse.  And
the second was the Uniform Rapid Suspension, and nothing else.

Moving to the trademark clearinghouse, the key features.  I'd like
to just say it's not on the slide at the moment -- are we moving to
the next one?  The slides.

Right.  Thank you.  I've got different slides here.

It's not mentioned on the slide, but the STI recommended this not as
a rights protection mechanism, but merely as a tool.  So it's a
prelaunch, not a post launch, but a prelaunch tool.  That was the
recommendation of the STI.  It's a centralized database.  That's
basically what it is.  It's a storage of trademark registration and
data, so trademark registration data would come in here and be housed
in this.  The data would be authenticated by a third-party provider,
who would take the different application registrations and
authenticate them.  It does not create any new rights or limit any
rights.  And it does not -- this is an important distinction also --
it does not -- any failure to be in this clearinghouse, as the STI
said, does not prejudice your rights, either.  So it's voluntary to
be in there.

The types of trademark data.  Trademark registrations of national
effect.  Those are the things that go in number one.  Number two, the
STI recommended that court-validated common law trademarks should be
included.  So, basically, unregistered trademarks, famous names.  If
you had any sort of company names, et cetera, they wouldn't be part
of this, at least as a mandatory requirement.

Required use by new gTLD registries.  So it's a mandatory
requirement that you have at least two different procedures for
prelaunch.  One, a sunrise service.  Or a trademark claim service,
which is that they will send you and let you know somebody is trying
to register this trademark that you've registered previously, and you
can then subsequent to or after the launch think about if you want to
challenge.  Costs to be borne by parties benefiting the trademark
clearinghouse.  Many people discussed who would pay for this. 
Eventually, the language of the STI recommendation is the costs have
to be borne by the parties benefiting from the trademark
clearinghouse.  That hasn't specified exactly who that might be.

Moving to the next slide, the trademark clearinghouse's key features
are that, in continuation, model, adopt substantially all of the GNSO-
STI recommendations, with a few exceptions.  One of the exceptions is
that the STI had suggested and recommended that only those
registrations go in from trademark registrars where substantive
review has taken place of those applications.

So if somebody's applying, they would have to -- they -- it would be
a question of whether the application is based on a trademark,
registration by a trademark registry in a certain country, and
whether that country actually does a substantive, quote, unquote,
review.  We're not really clear, and I'm going to move on to other
issues from there.

So the registry's required to provide either sunrise or TM claim
service for these particular marks.  The registry may also request
additional validation of use.  But that's not a mandatory
requirement, it's a may.

The TMC is also allowed to have additional solutions built into
this.  So the trademark holders may opt out of an ancillary service. 
Now, this is basically generalizing what the STI recommendation of
trademark clearinghouse are.

Speaking as a person who has represented business, et cetera, in the
past, and especially on the STI, it would be sort of important for me
to also take a few minutes, a couple of minutes maybe, to discuss
what the minority reports, at least from the business constituency,
were.  Those slides are not up here.  It's something I'd like to just
sort of speak about.  And that's the way I've been told to do it. 
Most of the comments -- and you see the summary by the staff also --
a lot of the business people said, and also the BC, we are not going
to completely object to this.  We will put in a minority report.  But
that is because something is better than nothing.  That was basically
the message the business constituency sent forward.

We had an issue with the prelaunch clearinghouse, and the issue
being sunrise, no other remedies being attached to it.  We also had
some reservation with regard to the issue of identical match.  One of
the views was that dot Asia has had a broader match and a successful
launch.  Why should that not be seen as a bare minimum.  And it's
been done before.  And maybe that should be the bare minimum to
protect trademark owners.

So what the dot Asia model was, mark plus words and the needs
classification, and dot E.U.'s recognition of trademarks.  The
limitation on the use of mandatory for the TMC data by contracting
parties that only require sunrise periods or prelaunch TM claims,
which means that all the remedies that the trademark clearinghouse
provides are prelaunch.  The moment the new gTLD is launched, the
trademark clearinghouse provides no remedies per se.  That was at
least our understanding of it.  And so we sort of questioned the sort
of value that this investment would necessarily bring.  Because it
leaves open the issue of defensive registrations after the launch of
a TLD and the burden that defensive registration put on businesses
and people who register.

So these are basically some of the issues that the BC had.  I'm sure
through a lot of questions answered in this 30-minute session, we'll
be able to talk more about it.  But, basically, we have also, sort
of, as I was saying, something is Internet Bill of Rights than
nothing, moved on with it.  It's important to not just us, the entire
STI believes that the trademark clearinghouse is not a rights
protection mechanism for trademark.  It is just a tool.  That's
exactly what the STI says.  I just want to stress that point.  And
thank you for the time.

>>MIKE SILBER:   Thank you.  I think that should be pretty clear. 
But it might be worthwhile, again, because there might be some in the
audience who are not trademark lawyers, my myself.  So we might want
to drill down into this question a little bit, the question of
substantive review, and the question, if the trademark is registered
in a country which doesn't exercise some form of substantive review,
what is the consequence and what is the meaning?

But, Robin, I don't know if you want to possibly come in on this and
give a reaction.

>>ROBIN GROSS:   Thank you.  Yes, overall, I think these -- the
staff did a really good job with the report that came out and
following most of the way the STI group's recommendations.  And then
this issue of including trademarks that have not been substantively
reviewed is a change, is one deviation that we see as being a real
problem from what the STI group agreed to.

And one of the reasons for that is, if you allow the trademarks in
that don't come from countries with substantive review, it's pretty
much just a pay your fee, get your trademark, you're entitled to the
new gTLD, done.

So it's too easy.  It's --  We need to make sure that the trademarks
that get in there actually are vetted, actually are not generic
words, are not something that shouldn't be an entitlement to only one
individual or organization.

So that's, really, the only problem or the biggest problem that we
have with what has come out with the trademark clearinghouse, is that
change, is allowing these substantive -- nonsubstantive review
country trademarks in.  So that's -- we see that as being a problem. 
It's just too broad.  It's going to allow for generic words to be,
essentially, trademarked and entitled to new gTLDs when, in fact,
trademark law wouldn't allow for that.

So it's broadening the scope of rights too far and deviates from
what the STI group came up with, although I -- again, I think,
overall, the report that came out did a very good job overall of
trying to maintain compliance with what the STI group came up with.

So that's the only really big problem that we have with the
trademark clearinghouse.  I don't know if anyone else has any
comments on that.

>>MIKE SILBER:   Alan, I know you wanted to come in there.  But just
one thing I wanted to clarify.  When we are talking about ancillary
services and this question about whether or not trademark holders,
once they're in the clearinghouse, whether ancillary services can be
provided and whether it's an opt in or an opt out or exactly how that
works, I'm assuming that that would then be to provide some sort of
trademark or domain watch service so that the clearinghouse could
then have a life beyond the launch of the new gTLD, but it would be
an option that a trademark holder could elect to proceed with or not.

>>ALAN GREENBERG:   I'll prefix my comments saying at large has not
had any real discussions of the new staff proposals.  But I have had
a number of informal discussions, and I feel comfortable that most of
what I am going to say will be supported by others.

At Large pretty strongly supported the STI proposals.  We did submit
a minority report, which, perhaps curiously enough, was pretty much
in line with the business community report, although not going quite
as far as they would suggest.

The one concern we've seen in the staff proposal is the same one
that Robin suggested, that is, the use of trademarks that have not
received substantive review, that is, the requiring registries to use
them.  Our concern is not a philosophical one.  It's a very practical
implementation one.

The proposal calls for either objections to address the problem
where generic words have been registered or that the trademark
clearinghouse do the kind of substantive review that a UDRP panel
might do.

And we find that that kind of process, I think, is going to be quite
unwieldy and probably impractical to do.  So we question whether it's
implementable as opposed to whether it's philosophically a good way
to follow.

>>MIKE SILBER:   The chair recognizes the chair.

>>PETER DENGATE THRUSH:   Is now a good time to ask a question or do
you want to leave them until later on?

>>MIKE SILBER:   Absolutely, let's engage.

>>PETER DENGATE THRUSH:   I'd like to pick up the point that Robin
and Alan just raised, because the board have gotten hung on this in
reviewing this ourselves.  We've spotted this, and we, too, are
concerned.  

Can you just explain, so that we've got it exactly clear, how the
proposal is going to work.

As we understand it, it's going to allow registrations that have not
been substantively examined, it's going to put the onus on the
clearinghouse to do some kind of validation process itself?

And if that's the case, we are concerned about that, because here
we've got, here we are apparently competing with national
registration systems to check validity.  The clearinghouse managers
don't have the resources, don't have the training.  Why are we doing
this?

What we tend to do at ICANN is go to other people's tests and
standards and say, "You've checked it.  We'll rely on it."  We use
the list of country codes that the U.N. uses.  We haven't tried to
invent our own list of country codes.  Why are we requiring our
clearinghouse to start becoming a trademark registry office?

>>MIKE SILBER:   Mary, do you want to take that?

>>MARY WONG:   Peter, I'm going to take a stab at that.  And I'm
doing this as someone who's reading the staff proposal.  So maybe
staff can clarify if I'm reading it wrongly.

And this goes back to Mike's earlier comment about ancillary
services.  'Cause when I read the February 15th document, I read it
to say that the data in the clearinghouse would only be what Zahid
said, that is, registered trademarks or court-validated unregistered
marks.  And I'm not using the phraseology "common law marks," because
I think it's a lot easier we simply recognize that there are
unregistered marks, meaning they're not registered in any national,
regional, international trademark office.

So those are the only two types of marks that go into the
clearinghouse, in which case the basic service, sunrise or trademark
claims, would then pertain to those marks, the registered and the
court validated.

Then when you go to the later part of the staff proposal, where it
says under sunrise and trademark claims that the clearinghouse should
provide the following services, I read it as a choice, that either
your services are limited only to the marks that you have, i.e., the
registered and the court validated, or, as an ancillary service, as
an arrangement, a voluntary arrangement between the clearinghouse and
a particular registry.  As an ancillary service, they can offer those
services for the other kinds of marks that they are not required to
collect.

I'm not sure if I'm making myself clear.  But that was my
understanding of the document.

>>MIKE SILBER:   I think it's certainly a useful exposé.  And I
think as Peter pointed out, it was an item that caused some
discussion of the board yesterday.  But I think we would certainly
welcome community input on that specific issue and see if people have
some issues.

I think it's worthwhile going to some of the comments.  I am going
to ignore the first, because it's a very general one which we can
possibly turn to a little bit later.

But -- Sorry.  Amy, please.

>>AMY STATHOS:  Thank you.  

I think there's just a little clarification on what Mary said.  My
understanding is that the proposal is that all federally registered
marks and court validated marks get into the clearinghouse.  And
please correct me if I'm wrong, but as I understand it, that the STI
proposal was that the registries would only be required to provide
the services that will be from countries that provided a substantive
review.

So there's more data in the clearinghouse than what the registries
would be required to provide services to.

The revised proposal indicates that there's a choice.  That the
registries could choose to provide services to all the federally
registered and court-validated marks or, and this is the new issue,
that they could also choose to only provide services to the ones
where there was substantive review upon registration.  And if the
clearinghouse validated the marks that were in the clearinghouse in
some subsequent fashion, then those would then be also deemed
substantive review, and they would get a check mark or some kind of
mark in the clearinghouse, and they would then be all the substantive
reviewed ones that were in the clearinghouse that the registries
would be required to provide services for.

>>MIKE SILBER:   Thanks, Amy.

There's a question raised, and I think just to clarify, I thought
that Zahid had clarified it more than adequately already.  The
trademark clearinghouse is used for secondary registrations.

The process of applying for a new gTLD goes through a very different
trademark verification process in the independent review.

So this is once an application has been granted, this is a rights
protection mechanism.  Other form -- I don't know that you don't
necessarily agree that it's a rights protection mechanism, but it's a
mechanism which takes place once you start opening up a new gTLD for
secondary registrations.

One of the comments that's been raised is, well, you know, if this
works so well and efficiently, theoretically you could, as a
trademark holder, cancel your entry in the rights clearinghouse once
there's been -- ones that new gTLD has opened up for registrations.

I think that is, in theory, correct, but in practice, absolutely
incorrect because the intent going forward is not to have a stop-
start new gTLD process, but, rather, once we get the machine going,
the machine should start spitting out new gTLDs on a continuous and
stable basis for so long as it doesn't cause whirls of smoke to start
appearing at the edges of the DNS, as I think the phrase was very
eloquently used earlier this morning.

So there's not going to be a stop.  It's going to be a launch of one
new TLD and followed by another or another four or five, and the
following day or week, another.

So in theory, yes, but in practice, not quite.

Any further questions from the floor?

>>MARGIE MILAM:   There's a question from remote.

Nick Wood asks, has there ever been a definition of substantive
examination in the discussions of the STI?

>>MIKE SILBER:   It seems that there wasn't a clear definition for
various reasons.  And Kathy Kleiman has made the suggestion that the
definition to be used is the one deriving from the IRT definition. 
But I think that's something we should possibly not conjecture about
here.

>>ALAN GREENBERG:   We did do a lot of discussion on the issue, and
it was clear that there are, in some jurisdictions which do no review
whatsoever -- that is, you pay your money, you give the mark, and you
get it.

There are others which do not -- which do some level of review, but
do not do the same level of review that some -- let's say the United
States does.

I do not believe we defined where the threshold was in what we
called substantive review.

>>MARY WONG:   And just to follow up on that briefly, my personal
opinion -- and since we are talking about a clearinghouse that simply
does a match, and I do have some comments on the identical match that
I will leave for the moment, that as the clearinghouse, I would be
concerned about a couple of things.

I would be concerned about having to validate -- and I am using the
language in the recommendations -- an unregistered trademark, which
in those jurisdictions that recognize these as common-law trademarks,
depends on territorial restrictions and evidence of use.

So I would be a bit concerned about that.

I would be much more comfortable if I simply had to authenticate or
validate, whatever you want to use, and list and match registered
trademarks.

As a matter of principle, I think it's really hard to distinguish
between marks with substantive review and marks without substantive
review.  So as the clearinghouse, if you simply had a list of
registered marks and that was what you had to match, that seems to be
the most minimal and safest way to go.

>>MIKE SILBER:   Other questions from the floor specifically on the
trademark clearinghouse?

>>WENDY SELTZER:   Yes, thanks.  Wendy Seltzer.  As another
participant in the STI, I just wanted to add to the discussion that a
concern the STI considered deeply was to -- how can we limit the
discretion of the clearinghouse and not put ICANN or an ICANN
contractor in the role of determining what is a trademark, what is a
valid trademark.

There are national bodies established to do that under national
laws, and we don't want to duplicate that effort.  If we're going to
mandate that the registries listen to and use this clearinghouse, we
want it to be a clearly defined set of marks in that clearinghouse.

And so keeping it to the validated and registered marks or court-
validated marks was a way to define a set that didn't leave
ambiguities and didn't leave a great deal of discretion, which was of
concern to lots of different people in the community for lots of
different reasons.

>>MIKE SILBER:   Thank you.

>>BART LIEBEN:  Thank you.  Bart Lieben.  I am a partner with Laga,
and in the past five years I have managed, directed sunrise processes
for dot AU, dotMobi, dot Asia, dot ME --

>>MIKE SILBER:   Sorry, if you wouldn't mind dropping the mic
slightly so you are speaking more directly into -- 

>>BART LIEBEN:  I'm sorry.  In the past five years, I have directed
a couple of sunrise processes for, for instance, dot EU, dot Asia,
dot tel.  Quite recently, about 450,000 intellectual property claims
were dealt in those processes.

In that sense, when I am looking at the substantive review, I think
we need to make a clear distinction between the actual concern is not
having a domain registration on a trademark for generic words, what I
am referring to as a dictionary word.  Because if you look in
practice, that's perfectly possible to have a trademark for a generic
word.  Take Apple, for instance.  Apple is a protected trademark.  I
don't think there is any argument against that.

Nike is a protected trademark.  It means victory in Greek.  So why
should that be included or excluded?

So I think we clearly need to make a distinction there between, on
the one hand, substantive review, which at a certain point ICANN
would make a determination on what is a good trademark system or a
bad trademark system.

And I think that is a very big risk that is not for ICANN to
determine.

I think if you look at the safeguards that have been implemented,
for instance for dot Asia and that we are now doing for dot CO in a
couple of weeks with the launch process there, is that if somebody
would apply for a domain name on the basis of a trademark that
corresponds with the dictionary words, which the community refers to
as a generic trademark, at that point in time, we will be asking the
trademark owner to provide evidence that he is actually using the
trademark in a trademark sense.

And if you look at the dot EU experience where there was a bit of a
possibility to game the system, if you want, or at least some members
of the community felt like there was the possibility of gaming the
system, you had a lot of -- there exists a lot of trademarks that are
for generic words or dictionary words.

So this is a good way.  I think this has worked in the past, we have
done this in the past.  30,000 claims in dot Asia, not a single
dispute on that.

I think this is a more easy and comfortable way for the new gTLD
process and for ICANN to proceed with.

Thank you.

>>MARGIE MILAM:   I am going to read a statement from David Taylor. 
He states:  The question of eligible trademarks is key.  We should
not exclude many EU countries nor, for that matter, community
trademarks.  Are these included for the URS?  I would say it is wrong
to say that CTMs are not subject to substantive review.

>>MIKE SILBER:   Bruce, do you want to comment here?  And then we
can wrap this up and get a response from the panel.

>>BRUCE TONKIN:   Well, I guess I wanted to raise a different topic,
so did you want to have the panel respond to that question?

>>MIKE SILBER:   No.  Carry on because we need to wrap up on the
clearinghouse.

>>BRUCE TONKIN:   The question I have around the -- whoops, too loud
-- around the review of the trademarks partly relates to whether you
are using a sunrise process versus an IP claims process.  Because I
think they are very different.

I think if you are dealing with an IP claims process, essentially
what you are saying is that a person can apply for a name, and they
are notified if there is any trademarks associated with that name.

Now, presumably, that person that's notified makes a judgment based
on whether the trademark is, you know -- depending on what country
it's from and depending on what classification it's in, and whether
that person applying for that name feels that they might infringe
that trademark.

In that context, I think it's pretty clean.  I think you basically --
you are operating a registry of trademarks.  I don't think you have
to have some external body to decide whether they have had review or
not.  Just a list of trademarks.  You as an applicant make your
decision based on that information.  So I think that's pretty clean.

Sunrise is very different, because sunrise, you are actually giving
one entity, I guess, a first option over identity that doesn't have a
trademark.

So basically saying if I have a trademark, I have the first right to
apply for a name before anybody else is allowed to apply.

So there, perhaps it is more important that you have a higher
standard as to how strong should that right be to basically have
priority over other applicants.

So I think those two things are very clear, where you have sunrise
where you are giving a trademark holder priority over people who
don't have a trademark, and IP claims where there is no priority. 
Anybody can apply.  They just are simply notified of any trademarks
on the names.

I wonder if anyone wants to comment on that distinction.  And have
the panel thought about whether either sunrise or IP claims has
benefits or whether you are fine with leaving those two options on
the table.

>>MIKE SILBER:   Thank you for that.

I just want to go to Jeff Neuman who had a comment, and then Alan
also wants to respond to that question.

>>JEFF NEUMAN: Yes, thank you.  Can you hear me?  I guess you can.

My comment is, from a registry perspective as being on the STI
group, our biggest concern was that we did not want to have a
registry that basically mirrored every other registry that's out there.

In other words, it's not in our interest to have a bunch of
defensive registrations in the sunrise process that really sit there
that don't have any use.

So to the extent that there are trademarks from a jurisdiction that
does not have a substantive review, to the extent they have marks in
there, like blog and Web and auto and all these other generic words,
that really does us no good and really are not marks that we want to
recognize as a registry because, to us, the value of a name being
used is far greater than the minimal fee that we make from a
defensive sunrise registration.

>>MIKE SILBER:   Alan.

>>ALAN GREENBERG:   In response to Bruce, I'm not quite sure what
the final staff February 15th proposal says.  The STI report made it
very clear that the registry had the right to not use marks from
jurisdictions without review for the sunrise process.  It did not
give them that discretion for IP claims.

So it did differentiate in exactly the way you are suggesting.

I'm not sure that was accurately reflected in the staff proposal or
not, but presumably it should have been.

>>MARY WONG:   And Mike has allowed me a quick follow-up so I will
try to make it brief.

Bruce made the point I wanted to make as well.  There is -- there
are, as Alan has said, important distinctions between the two
mechanisms that the clearinghouse can push out to registries.

On the IP claim service, you are not prevented from registering,
even if there is somebody else with a trademark with that name.  In a
sunrise process, the trademark owner gets the priority right to
register.  And in this context, I just want to say that that's why
the test for an identical match, to my mind, in a new process with a
clearinghouse that's going to have a lot of different functions to
deal with, should be kept as narrow as possible.

People in the community have suggested that the different dot X, Y,
and Z have used different processes.  But each sunrise process with
each registry is also different.  So dot Asia's is different from dot
EU's, for example.

And most of them start with the identical match, meaning the exact
textual match.  Things like plurals, for example.  Things like adding
the needs classification of goods and services is not a universal
match test by all existing sunrises.  And to the extent that they are
there, it is a very refined and sophisticated process.  And so far,
the process within ICANN, in talking about the clearinghouse, has
really not gone that far.

So the one thing I would add to the distinction is that in a sunrise
process for the identical match test, I would recommend a very narrow
test.

>>MIKE SILBER:   Let's, I think, take one last issue on this topic,
or one last question on this topic, and then let's move along.

The one thing that I wouldn't mind also just getting a response when
we close off and after the question is also, then, whether the -- as
the DAG moves towards the AG, whether we should allow the current
situation that we have of either a sunrise or an IP claim process,
but that we should actually choose one or the other.

>>RON ANDRUFF:   Chair, if you are going to move on to ancillary
services -- okay.

>>MIKE SILBER:   Continue.

>>RON ANDRUFF:   Very good.  My name is Ron Andruff.  I am with the
business constituency but I am speaking in my personal capacity.

I just wanted to ask the question of why were ancillary services
brought into this mix when, in fact, the clearinghouse had a very
specific function, as we understood from the community.

So it's a little unclear for some of us in the community why
ancillary services is there.  And more importantly, what are those
services?  What would they be?

>>MIKE SILBER:   I made an assumption.  I don't know if anybody can
help save me from making an ASS out of myself by assuming too much.

As I indicated earlier, I think the only reason I can think of for
that -- and again, I think it's something that's worth a little bit
further investigation, is that if you were to offer some sort of
rights watch or IP claims service post registration, that would be an
ancillary service that would be unsolved to people having entered
into the clearinghouse initially.

I would assume that's where it's coming from, but again, as I say,
that's not necessarily a conclusive statement.

>>ZAHID JAMIL:  I think we haven't defined that on STI.  It was open
to ancillary.  There were other examples.  I won't go into the
examples that were there, but it's been left open.  You could even
have some people -- I know some registries are launching, considering
having something equivalent to a list, and that could be done through
this as ancillary services.  But again, the STI didn't actually
specify anything in the report, per se.

And I have points.  Are we going to go back?  Can I finish my points
first?

>>RON ANDRUFF: If I may, then, if I understand this correctly, it
means that if a provider steps up and says we will provide this
service, and if they are selected this is kind of a carrot for them
that they might be able to sell on other services.  Is that a correct
understanding?

>>MIKE SILBER:   As long as the trademark holders consent to that. 
And, of course, the registry consents to that.

I think let's wrap up on that because we do need to move on to the
URS, but let's wrap up.  So closing remark.

>>ZAHID JAMIL:   Thank you.  So just to clarify something that me
and Mike were just discussing.

I was reading the STI trademark clearinghouse section.  Right in the
first line it says, and I think this will clarify for all of us,
there is a consensus among the members of the STI that although this
was not a rights protection mechanism, et cetera, et cetera.

So I think it's very clear that the STI itself -- and I just want to
make sure that it's not my personal view that's coming out, but this
is what the STI suggested.  This is not a rights protection mechanism.

And I completely agree with a lot of statements made here that the
job of the trademark clearinghouse should be limited and it shouldn't
be making a judgment call.

Let me just make one small point.  If you read the red-line version
of the new staff proposal, on paragraph 7, it -- which was earlier
clarified, it says that the services must recognize, one, all
registered trademarks in the trademark clearing database, full stop.
And for some reason, it doesn't actually mention the court-validated
ones in that one.

And then in number two, it says registered and validated.  So I
think maybe there was some -- probably that needs just to be added,
exactly.  I think that's what caused the confusion.  But I think that
clears that the intention was to have court validated in number one
as well.

So just for the audience, to clarify those two points.

Thank you.

>>MIKE SILBER:   Let's wrap up on IP clearinghouse.

>> Excuse me.  Sorry.  I just have one last point on the
clearinghouse.

>>MIKE SILBER:   I'm sorry, can we close up on the IP clearinghouse
and then move on to the URS.  We can take general comments at the
end, or other specific issues.

I did make it clear that I was taking one last question on
clearinghouse.

So IP clearinghouse, we now understand, is not a rights protection
mechanism but, rather, it's an automated database against which
verification can take place, either for sunrise registrations or for
IP claims.

Makes sense.  It seems to be consensus.  We seem to have a few rough
edges which need to be smoothed over, but we seem to have pretty good
consensus.

Let's see if the next one is as easy to understand and to achieve
that level of satisfaction within the community.

So, Mary, if you wouldn't mind just giving a brief exposé of the URS
process, and then we can take some questions and discussion on that
one.

>>MARY WONG:   Mike, I don't mind at all, although that sounded a
little bit like a challenge.

So we have a couple of slides on the Uniform Rapid Suspension
mechanism, known as the URS.  And we're not proposing to go through
them in any great detail because we are assuming that just about
everyone in the room has either followed the process or understands
the basic concepts and how it's going to work.

So there are just a few points I'd like to emphasize.

The primary point is that the URS is not the Uniform Dispute
Resolution Policy, the UDRP, which is in effect right now through all
registrars and registrants.  Neither does it replace or displace the
UDRP.

So it works alongside the UDRP, and some would say it sits on top of
it.

And it actually serves a very different function.  It is meant, and
all the reports from the IRT to the STI to the staff proposals make
it clear that the URS is meant to address very clear-cut cases of
trademark abuse.  And as such, even though, if you look at the URS,
if you look at the document, you might find that the substantive
grounds look the same and are the same as a UDRP proceeding, there
are some very significant differences because of this particular
function.  Only clear-cut cases of abuse.

The two most obvious differences are that the standard of proof in a
URS proceeding is different.  It's higher.  Where a UDRP uses a
preponderance of the evidence, a URS proceeding requires clear and
convincing evidence that the registration is in bad faith, that the
registrant does not have legitimate rights in the domain name and so
forth.

So that's one very big difference.

And the second difference -- rather, the second major difference
that's caused some consternation in the community is that unlike a
UDRP successful complaint, there is no cancellation or transfer of
the domain name.  It is a suspension system.  So in effect, the
domain name is still around.  It is not transferred to the domain
name holder.  It remains in a free state or suspension.

So if I just go quickly through these points, I don't propose to
read them to you.  I just want to highlight a few things.

One of the things that the STI report does and that the staff
proposals pick up on is that it tries to enumerate and it tries to
provide guidance to registrants who may be the subject of a URS
complaint as to what the boundaries are.  What is and is not a clear-
cut case of trademark abuse.

So, for example, if you are an innocent registrant, you are able,
even if you miss the deadline for filing a response, which I believe
is 20 days, even after that time, you can come back and file a
response up to two years after that date.

At some point, you will probably have to pay a bit of an answer fee,
but cost aside, you can always come back during that two-year period
and file a response to the complaint.

So there are a couple of protections.  That's one of them.

Except for the late response fee, there's generally no cost to the
registrants.  And in addition -- I have already talked about the
remedy, so next slide, please.  In addition, other protections for
registrants, which the STI calls safe harbors and the staff proposal
refers to as defenses, there are some examples about what would not
be a clear-cut case of trademark abuse.

So, for example, a fair noncommercial use of the trademark, a parity
or a criticism site, and other types of uses that do not constitute
bad faith or illegitimate rights to the name.

And I understand that the STI referred to quite a lot of models in
coming up with this, including the Nominet model.  And I'm glad to
see that that has stayed in the report.  And I do think that these
additional protections and clarifications will provide a lot more
guidance to the community.

And it's kind of hard trying to listen to yourself, watch yourself
in Adobe Connect and watch the screen all at the same time.

In terms of the --

>>MIKE SILBER:   It adds new meaning to multi-tasking.

>>MARY WONG:   I know.  In a Web 2.0 world, I guess I am a slow
learner.

I have talked about some of these other points already, so I think
the last point I want to highlight is that, again, unlike the UDRP,
there are prescriptions in the STI report and the staff proposal that
deal with abusive complaints.  So for example, if a rights holder or
trademark holder files two abusive complaints, there are penalties. 
If there is what is termed a deliberate material falsehood in the
complaint, penalty should also follow.

At this point I should add, and those of you who have looked at the
proposals will know this, I think still some work needs to be done as
to what an abusive complaint is, as to what a deliberate material
falsehood is.  I know the IRT struggled with this, and we ended up
not making a recommendation.  But at this point I would urge the
community to put in public comments to assist the staff with coming
up with guidelines on this.

The final point I want to mention, and this actually escaped me the
first time I read it.  I hope that you are more eagle-eyed readers
than I am.  Even though I said that the standards in terms of what is
required for a URS complaint and what is required for a UDRP
proceeding are similar, bad faith and so forth, that is true, but the
first requirement, and this is the baseline requirement for any kind
of trademark or trademark-like rights, is that what you are using is
an identical mark or a confusingly similar mark.  In the UDRP it,
simply that it is identical or confusingly similar to a mark in which
the complainant has rights.

As many of you know, this has allowed panelists in a lot of
proceedings to have to wrestle with the idea of whether common law
and unregistered rights actually fall within that ground, and a
number of panel decisions have said yes, unregistered common-law
rights would count under that first limb of the UDRP.

In contrast, the URS, as proposed, is quite a lot narrower, at least
in my view.

So rather than simply any mark in which the complainant has rights,
you can only file a URS complaint if it is a registered mark from a
jurisdiction with substantive review.  

And I suppose that brings us back full circle almost.  And on that,
I'll conclude my remarks and allow for discussion.

>>MIKE SILBER:   Perfect.  Questions, comments from the audience?

Absolutely.

>>ALAN GREENBERG:   I've got two comments.  One of them, in reading
the staff proposal, and perhaps the STI also, ICANN still seems to
have a fixation that domain names are only used for the Web.  And
there needs to be some cleanup, because people do, in fact, use
domain names for things other than the Web.  E-mail may be an example.

The other one is, there is a very substantive change in the STI and
the staff proposal from previous requests.  And this applies both to
the URS and to the clearinghouse trademark claims process.

We have specified that you must talk to people through registrants
in a language which they can understand.  And that is a very
substantive difference.  That is, if you're going to send a complaint
to someone, you should do it in the language that they registered the
domain in.  And since there are very tight time constraints, it's
only reasonable to do that.

One of the examples that was used along the way from one of our
members in a French-speaking country is the statement saying to his
neighbor, anything in English is spam.

And I think the fact that we've caught these kind of things in a
world where we're going into IDN in a big way I think is important.

>>MIKE SILBER:   Robin, comments, response?

>>ROBIN GROSS:   Thank you.

Yeah, one of the -- the noncommercial users worked very hard with
the other members of the STI to make sure that there were these safe
harbors that were built into the URS.  And one of them in particular
was a safe harbor for Web sites that are operated solely in tribute
to or in criticism of a business or a person.

One of the --  There's a slight change that was recommended to this
perhaps from the staff proposals based on a comment from Microsoft
that changes what the STI -- or perhaps changes what the STI said to
require a finding of fair use before -- or adding that on to the
criteria, the tested criteria.

So what we need here is some clarification.  There needs to be a
finding of fair use by whom?  Presumably, we mean the panel; right? 
The panel says, right, this is fair use.  Okay.  Go on.

But it's not clear in the proposal.  It says you can go on if
there's a finding of fair use, but it doesn't say by whom.  And
arguably, one interpretation of that sentence would mean there has to
be a previous finding of fair use, as in, you've got a court ruling
or something to prove that you are in fact a fair user, and without
that, you don't fall under this safe harbor.

So I don't think that's what staff intended.  Again, this is
probably just a clarification error -- issue, where we just need to
add into this that the finding of fair use would have to be by the
panel and not per se a previous court.

>>MIKE SILBER:   Jeff, I believe you have a question?  I'd rather
hear from you rather than reading it.

>>JEFF NEUMAN:   Oh, okay.  I thought it might be easier.

I guess my question for the panel, and maybe for ICANN staff, is,
now that many of the UDRP providers are providing for their own fast
track or cheaper alternative for the, quote, easy cases, has the
panel or has ICANN staff considered what to do with that or whether a
URS is actually needed?

>>MIKE SILBER:   Amy, I think you're being put on the spot here.

>> Thank you.  Amy STATHOS.  Jeff, I'd like to know when you say a
lot of them are providing in expedited fast track or cheaper.  I know
that the Czech arbitration court has recently indicated it is
changing its fee structure for matters in which there is no response.
That is the only change, as far as I see, from theirs.

I don't see that any other UDRP provider has implemented anything
else.  And I could be wrong.  But I don't see that there is any --
any other expedited process from a UDRP provider.

>>JEFF NEUMAN:   Maybe someone from WIPO who is in the audience
could talk.  I know that there is a proposal going around within WIPO
that talks about a new process.  But I don't believe they've released
it to the public.  I certainly haven't seen it.  But I did -- or my
understanding was that it provided for cheaper fees but also a faster-
moving process as well.

>> Amy STATHOS:  Yeah, I think that's what WIPO has said they are
going to propose.  We haven't seen it.  And it hasn't been proposed,
as far as I know.

>>JEFF NEUMAN:   So maybe perhaps, say, before WIPO actually
introduces it, perhaps they -- a review is done by the community to
see how the two would interact, as opposed to just having the dispute
providers implement a new policy that hasn't been considered by the
community.

>>MIKE SILBER:   Jeff, instead of presuming, let's get the answer
from WIPO directly.

>>JEFF NEUMAN:   Thanks.

>> Thanks, Jeff.  

Brian from WIPO here.

It's true we have been exploring ways to further expedite and make
more cost-efficient the UDRP within the existing framework based on
the ability to address issues such as word limits and fees in the
supplemental rules.  And we very much think it's an open question,
and I agree you with there that there are questions regarding the
scope of interoperability between any URS and any efficiency gains
that can be made within the UDRP process.

So for us, that's very much an open question.

>>MIKE SILBER:   Peter, you wanted to comment?

>>PETER DENGATE THRUSH:   Yes.  Thanks, Mike.  I just wanted to warn
the community that there's a real danger of this mechanism actually
having been agreed and the board voting on it and us moving on.

The silence that was the response to Mary's outline and the fact
that Robin can only find one quibble, which she then provided the
answer to, suggests that we really are getting close on this one. 
And I think the evidence of compromise that's all over there is
another great sign.

So just a warning.  We may actually be ready to move on this one.

>>MIKE SILBER:   We do need to wait for public --

[ Applause ]

>>MIKE SILBER:   -- comment to close.

But before we respond, let's take another question from the floor.

>> Can you --  This rapid suspension procedure slide, to move to the
slide, this rapid suspension procedure.  I have a question to the
last item.

Remedies.  Yes.

What do you mean, transfer of domain name after decision is not
remedy?  This means transfer domain name for the company, registrar
who registered an infringed domain or what?

>>MIKE SILBER:   In essence, it's suggesting that this is some sort
of interim process.  It's not a final process.  So that if you
actually then wanted an order for transfer, you would have to go
ahead with the UDRP process.  This would be a way to take down a site
which is causing immediate and ongoing damage.  But it's not a way to
get hold of a site from somebody else.

>> It's not clear.

For example, if I'm registered Coca-Cola.pp, so after some time, I
have registration for one year.  After some time, I just was sued for
infringed trademark.  So I honestly paid.  It's not my responsibility
that registry made this registration.

Do I have right to transfer all my business in this domain?  For
example, to some other domain for the same, the same prices or
similar issues?

>>MIKE SILBER:   My understanding -- and Mary, I don't know if you
want to come in on this -- is that if somebody has applied for
suspension, the domain has been suspended, and no further action has
been taken by the rights holder against you, once the suspension is
lifted, you can carry on doing business in that domain.

Mary, you want to --

>> In this case, please, change the wording of this.  Because it's
unclear.

>>MIKE SILBER:   I think the answer is don't rely on PowerPoint. 
Power corrupts, but PowerPoint corrupts absolutely.  I think the
point is to read the STI proposal and then the staff amendments to
that, and the public comment closes, as I said before, on 1 April. 
Interestingly enough, April fool's day in most of the world.

Alan, you wanted to respond?

>>ALAN GREENBERG:   Yeah, one of the problems is we use the word
"transfer" in at least three different ways.  The word "transfer" for
domain names typically means to transfer to a different registrar. 
That has nothing to do with this here.

Our use of the word "transfer" in the STI, and I think the IRT,
says, can the complainant take custody of the domain name after the
dispute.  In a -- in a UDRP, they can.  We said in the URS, they
cannot, which is what that was saying.

And I think what the gentleman was asking is, can he transfer the
Web site, as it were, to a new domain he registers which wasn't
subject to a complaint.  And the answer is, he can do whatever he
wants with his Web site and a new domain name.

>>ZAHID JAMIL:   Thank you.  Since I am a member of the B.C., just I
want to voice some of their concerns, although I don't represent them
here on this panel, which I agree with.  Some of the minority
positions taken by the B.C. and some of the problems -- and I want to
speak to this, because Peter mentioned that maybe the silence meant
that everything was fine on this one and it will go through.  I just
want to sort of caution that on a few points.  I want to say, though,
that there was a high level of consensus amongst everybody on this,
but there were certain minority aspects.  I'd like to highlight them.

The first point I'd like to mention is that this is the only post-
launch remedy for second level.  That's -- it's very important to
have that context.  And there are no other second-level remedies for
defensive registration issues, number one.

Number two, the remedy, the only remedy allowed under the URS to a
successful complainant that the domain name get suspended, and after
a year, he can pay extra money and allow the suspension to move on
for one extra year.  

Now, what happens at the end of the second year or the year and a
half or whatever it may be, the domain name goes back into the pool. 
So to some people, it was like a game of whack a mole, at the end of
another year, file another URS, file another URS, and at some point,
there will be a pipeline of these that brand owners will have to deal
with.  So some degree of concern was demonstrated.  It's part of the
minority that says that transfer or some other -- even the IPC agrees
you should be able to purchase that domain name on a priority basis. 
Maybe that's the remedy after the suspension.  You know, not a free
transfer, but to buy it.  Fine.

The other aspect of it was the cost of this wasn't, to some, looking
as if this was going to be competitive and be rapid.  Because, you
know, it's a 20-day process to -- 21 is what the UDRP does.  This is
20 days.  But it has other benefits.

So I just want to caution that those are the other aspects.  When we
say that the URS should go through with maybe these minor slight
changes, at least from my perspective, or the perspective of the
B.C., then I think we're pretty much there with a fairly good rights
protection mechanism, which applies.  But it leaves open other areas
of defensive registration or rights protection against the issue of
defensive registration.  And I think those need to be also sort of
taken into account.  However, I agree, this one's pretty much done,
with maybe these few exceptions.

>>MIKE SILBER:   Thank you.

Jeff, I've noted that Kristina has a question.  But first, Margie
has some comments and statements that have come through that she'd
like to read.

>>MARGIE MILAM:   Actually, I was going to refer to Kristina's
question.  What if the URS is not faster or cheaper?

>>MIKE SILBER:   Anyone volunteering to take that?

>>KRISTINA ROSETTE:   Actually, I'd like to follow up on the question.

Just to give some background information, it's been suggested to
some members of the IPC by one UDRP provider that in its current
iteration, the URS may not in fact be faster or cheaper, which were
the two key goals of the URS, of course, in the context of kind of
slam dunk facts.

So I guess my question to the STI members is, if it's really not
faster or cheaper in its current iteration, what changes, if any,
would you be willing to consider agreeing to?  And if none, why not?

>>MIKE SILBER:   Any comment to that?

[ Laughter ]

>>MIKE SILBER:   I think everybody is -- Kurt is volunteering to
pick up the oven gloves.

>>KURT PRITZ:   Only briefly.

You know, the really short answer is, if it's not cheaper or faster,
people won't use it.

But the reason why we think it will be is, it's -- it wasn't just
based on an excellent thought process in the IRT, but, rather, it was
based on real experiences where Nominet, for example, has an
expedited procedure, and we could look at real costs, the IRT could
look at real costs and real prices from Nominet and other places.  So
it's based -- the URS is based on real experiences, not -- and it's
not a -- certainly not a brand-new invention.

>>MIKE SILBER:   The point to be made is that Nominet is one of the
few places that actually uses a mediation approach in its expedited
process rather than an adversarial approach, which would be wonderful
if we could all just get along.

But, Antony, I think you had a comment that you wanted to make?  And
I'm assuming it's largely the same as the one that came through the --
the chat room?

>> (inaudible).

>>MIKE SILBER:   Okay.  So then let's deal with your colleague's
comment that came through.

>>MARGIE MILAM:  Jothan Frakes has a question. 

Has the panel reviewed this Fortune 100 study on defensive
registrations in new TLDs?  He indicates that his company did a study
on the Fortune 100 companies and a number of brands, looking at
registration trends for those brands, and they concluded that all
source data -- and they substantiated the findings, having been
reviewed by a third party.  The studies show there was little
defensive or squatted registration in available new TLDs for these
brands.

Any comments from the panelists?

>>MIKE SILBER:   Nobody jumping on that one.

Antony.

>>ANTONY VAN COUVERING:   Yeah, let me just simply say I have a copy
of that if anyone wants to review it.  If you haven't reviewed it,
obviously, you can't respond.  But I have a copy.  Thank you.

>>MIKE SILBER:   Then maybe we simply note the question.  It's
certainly something that has seen some interesting discussion so far
in corridors and elsewhere.  Maybe then we move on to Jeff, dealing
with the post-delegation rights protection, and then we can take some
general queries at the end.

>>JEFF NEUMAN:   Sure.

So for many of you, I'm sure you have not really focused too much on
the post-delegation dispute resolution process.  But it's something
that the registry stakeholder group has focused on considerably and
has submitted comments in each of the past comment periods.  And not
to disappoint Peter, who made the statement that it seemed like the
URS was substantially done, I think this one has a good way to go. 
And I think there are a lot of pretty controversial issues here.

For those of you that don't know the post-delegation dispute
resolution process, it's essentially a process that was recommended
by the IRT and also had some support initially from the World
Intellectual Property Organization, intended to be used against
registries that are engaging in systemic trademark infringement at
the top or second level.

Parties to the dispute, at least as ICANN has proposed, is the
trademark owner and the registry itself.  There are fees that ICANN
has recommended which, actually, they haven't recommended the exact
fees, but the structure, where the fees would be shared between the
registries and the trademark holder filing the dispute, but,
ultimately, the loser pays.  In other words, the prevailing party
will have their fees returned to it.

The remedies, one thing that ICANN has clarified is that there are a
suggested set of remedies that are graduated tools that ICANN could
use in order to implement against a registry that is found to have
violated this process.

And then ICANN has added a provision that says, absent extraordinary
circumstances, ICANN will review, approve, and enforce the
recommended remedies, or ICANN also has some discretion to amend that
as well.

So let me start with the positive changes that we've seen in the
last draft, that the panel makes the recommendations to ICANN with
respect to the remedies as opposed to ICANN just implementing
whatever the panel has decided.

The default used to be, in the old version, where if there was a
default against the registry, there would be an immediate finding
against the registries and penalties would be implemented.

Right now, as it said in the proposal, there would still be a review
by the panelists of whether the registry violated the policy.  

And then the third thing that was positive change was that, at least
from a registry perspective, was that affirmative conduct was
required under all of the grounds for disputes.

And I think the World Intellectual Property Organization made a
comment earlier today that it disagreed with that new standard of --
or that new burden.

There are --  I have at least seven major items that I believe more
work is needed by ICANN.  I believe that ICANN needs to be more
involved in the disputes at the outset.  As the IRC recommended, it's
not enough to state that ICANN will continue to do contractual
compliance in the explanatory section, but there really should be an
affirmative commitment by ICANN to do this prior to a third party
initiating a complaint.  And there must be ramifications for ICANN's
failure to enforce agreements.

ICANN is very good at asking registries and registrars for service-
level commitments, and I think the community -- it's time for us to
demand that ICANN make those same service-level commitments to us.

I think also ICANN needs to be more involved as -- in determining
the actual remedies as well.

So in their proposal, what's said is that ICANN will -- it says,
"Absent extraordinary circumstances, ICANN will implement what the
panelist determines."

But to rely on one panelist to make a sole determination that -- of
what the remedy should be is really, I believe, an abdication of
ICANN's responsibilities under the registry agreement.  And, really,
what we're talking about in most of these panelists is possibly one
trademark attorney who may or may not have experience in dealing with
these types of adjudications.

The other -- the third point that I would like to make is that this
post-delegation dispute resolution process must not replace
contractual dispute resolution mechanisms in the registry agreements.
In other words, ICANN must make -- or must acknowledge specifically
that all determinations and remedies recommended by the panelists, or
even implemented by ICANN, shall be entitled to de novo review
through the dispute resolution process set forth in the registry
agreement.  In other words, registries have in their agreement an
arbitration provision.  And that provision should not be waived
simply because there's one panelist that decides against a registry.

The fourth thing is that there's still a requirement for registries
to pay half of the costs up-front.  This is an interesting
requirement, because it's not in any other dispute mechanism that's
recommended by ICANN in any other circumstance, nor is it required in
most courts around the world.  And I believe will be used by
overzealous trademark owners to extort a settlement or other
undesirable outcome.

So what I'd like to know from someone at ICANN is, what is the
compelling justification for requiring a registry to pay fees up-
front?  Because I don't believe I've seen that.

Another item that I -- and I do want to kind of move quickly,
because it would be great to get some comments from everyone else in
the community.

But there is an ability in the document for a panelist to award
monetary damages, to actually award some monetary amount that a
panelist finds is the harm of a trademark owner.  And from a registry
perspective, this has to be removed.  Again, this is not in any other
type of dispute resolution proceeding that ICANN has ever endorsed.

So for those of you not familiar with this determination of damages
or financial harm in an ordinary trademark dispute, this can actually
be one of the most complex adjudicatory decisions, which usually only
arise after you have a lot of discovery, the presentation of
evidence, one or more hearings.  And they're you always subject to
cross-examination.

But here, surprisingly, we have a -- one panelist, unless for some
reason the parties both agree there should be three -- which we
believe should be changed -- there's no hearing, there's no
presentation of evidence, there's no cross-examination, and there's a
20-page limit in both the complaint and the response.

With all of those things combined, you know, this is something that,
really, I don't understand how one trademark panelist can decide
financial harm and award that against a registry.

And the final point that I have is that ICANN has done a really good
job at describing in the explanatory notes that this really should
not be used for ordinary trademark infringement or for actions in
which (Loss of audio) which there was no affirmative conduct (Loss of
audio) but I believe that ICANN needs to provide examples of safe
harbors for registries.  In other words, there should be specific
examples, like there are in the UDRP, where a registry can allege or
can put forward an affirmative defense to respond to these claims
against it.

So (inaudible) policy.  And I know that this post-delegation has not
been subject to too many consultations.  And I do think that
substantial work is required in this area before we can check the box
and consider it done.

>>MIKE SILBER:   Jeff, so what I'm hearing from you is the -- that's
not something that you could necessarily live with, it's not
something that requires -- it's something that requires to be
complete reworked?

>>JEFF NEUMAN:   Not sure it needs to be completely reworked But I
think that there are -- and I plan on submitting in the comment
period a red-line of the draft document that ICANN has to make their
job a little bit easier.  Some of us (No audio) have offered to sit
down with the ICANN staff to help them with the red line earlier on
but were not taken up on that offer.  But again will make that offer
to help drive this to conclusion.

The registries as a whole don't object to a (Audio cutting out) post-
delegation dispute resolution process (Audio cutting out) process,
but it needs to be one that actually has due process (audio cutting
out) one where, if you look at some of the comments from ICANN's
analysis, they rejected some of our comments because they said it
wouldn't be -- it would slow down the process or wasn't good for
expediency sake.

And my question back to ICANN staff is, (inaudible) or efficiency a
substitute for just getting it right?  We're talking (No audio).

-- about a registry that could lose its entire (Audio cutting out)
business based on this one complaint.

So, you know, I think efficiency and expediency -- (Audio cutting out)

-- expediency are not necessarily the highest values that we should
be looking at when.

(audio cutting out).

Deciding this issue.

>>MIKE SILBER:   Okay.  I think we have it clear.

Jeff, I suppose that.

(audio cutting out).

Notwithstanding your blog post a couple of months ago where you
expressed dissatisfaction with the fact --

(scribe's audio cutting in and out."  

Post-delegation dispute resolution had been dropped and you called
for its reintroduction.

>>JEFF NEUMAN:   Yeah, I think the comments that I have made today --

(No audio for scribes).

Are consistent with those comments.  And I do believe that ICANN has
made progress in the post-delegation disputes (inaudible) process, so
there were some improvements that were made.

So I am trying to get this to move forward.  I know the community
wants the post-delegation dispute resolution process, and so trying
to make.

--

(audio cutting out).

-- work for everyone.  The registries are willing to sit down and
try and --

(scribes without audio momentarily).

>> Rights protection mechanisms enumerated in the registry operators
agreement.  And this language is also -- doesn't find itself in the
staff proposal, and this is also taken out.

Maybe it's been put someplace else, but I haven't been able to see it.

What the concern, at least, of mine would be, that that means that
if there is a breach of representations when the TLD application,
doesn't give us a remedy post delegation.

If there is a breach of registry agreements, I'm not sure -- at
least ICANN would have a right to do it.  ICANN could, obviously, if
there is a breach between ICANN and the registry, but nobody else
would have a right to say they are doing something which is
infringing.  And the third is there could be systemic breach, and you
could say the standard is affirmative conduct, so if there is a blind
eye and the registry basically doesn't actually affirmatively do
something but allows, by omission, certain things to take place in
the registry, that again would be something that anybody couldn't
initiate a dispute resolution mechanism.

Now, all these three points were there in the IRT.  It's possible to
do that in the IRT, but are not in the staff proposal.  I just want
to underscore that point.

>> On a housekeeping note, we seem to be having some difficulties
with the audio.  So if somebody is busy streaming last night's
episode of "Desperate Housewives" or torrenting the baseball game --
I don't know what season it is, so please forgive my geographic
insensitivity, but if somebody is chewing huge amounts of bandwidth,
if they wouldn't mind just being considerate to the remote
participants and try and drop your torrent speed a little bit.

>> The sound issue has been fixed.  Thank you.

>> Oh, I guess that means I can be heard by everybody, which I don't
know if it's a good thing or not.

Two very brief comments because I am not familiar with registry
practices, and since this was not subject to the STI, it's a
different process, but I wanted to pick up one entity, and Jeff has
said, too, two very quick points.  First, as Jeff mentioned the
parties to this procedure are the registry operator issue and the
trademark holder.  And maybe this is semi-rhetorical or unnecessary
question, but what kind of trademarks?  Registered?  Unregistered? 
Was that considered?

Which would then broaden the universe if it includes unregistered
trademarks.

Second quick comment, and it picks up on your point, Antony, in
terms of the single provider, the recommendation or the proposal as
it stands simply says appropriately qualified.  And it's an
appropriately qualified provider.  It's not just one person.  I mean,
that's just one issue, but it's going to make a determination about
bad faith and so on and so forth on substantive grounds.

So personally thinking, I think some further guidance as to what
"appropriately qualified" means would be very helpful.

>> You wanted to comment?

>> A couple of other things.  I would note if you look at for
instance UDRP decisions, you would find very similar factual bases
for the case, and different opinion.  So we really do need to have a
few safeguards here.

Number one, I would suggest is there some kind of appeal, which
doesn't appear to be there.  In other words, if ICANN decides there's
not extraordinary circumstances and somebody says, well, we need to
shut this registry down, then that happens, and there's no appeal.

Furthermore,, you know, I still have not heard a good justification
for ICANN farming out its responsibilities to enforce its own
contracts.

Why are we having a private third party deciding what ICANN's
contract means.

Surely, in a contract between two parties, the other party is
responsible for enforcing its own contract.

>>MIKE SILBER:   Jeff, you wanted to jump in there?

>>JEFF NEUMAN:   Yes, and I think that relates -- the appeal,
anyway, relates to my statement that the normal dispute resolution
process in the registry agreements still need to apply.

In other words, if there is a finding against a registry and a
remedy that's ordered by ICANN, that the registry can still take
ICANN to arbitration and have a de novo review of the entire
situation, both the determination and the remedy itself, so that
ICANN cannot just basically, like you said, just give it to a third
party to decide the issue and then just wipe its hands clean.

You know, there are contractual remedies that need to be honored. 
And ICANN needs to -- You know, it was very good in its draft policy
of saying that the registry agrees to abide by the policy.  But if
abiding by that policy means waiving any rights they have under the
registry agreement, that has to go.

>>MIKE SILBER:   Jeff, thanks for that.  I think we have gotten a
very clear sense -- sorry.  Another comment from the floor.

>> Sorry, just to clarify a few points.  The original proposal from
WIPO, which informed the IRT's work, recommended that the sanctions
would take the form of graduated responses.  So that just affirms
Zahid's points about the nature of this mechanism.

And just further to that, the panel recommendation was intended to
take the form of a recommendation to the ICANN board that would have
contractual authority to impose sanctions on a registry.

And just wanted to reiterate our willingness, as we have stated in
several of our public letters, to get together with affected parties;
namely, registrars and ICANN, to flesh out some of the consideration
factors that would draw some boundary lines around what would be the
types of bad faith conduct that would be addressed by such a mechanism.

>>MIKE SILBER:   So what I hear you saying is that for ICANN to have
some sort of mechanism, a dispute resolution mechanism, short of full
arbitration.  Say simplified (inaudible) mechanism for those
circumstances which may not be quite as serious, but where ICANN
doesn't act as prosecutor -- investigator, prosecutor and judge, but,
rather, that an independent panel is pulled in to make some of those
decisions, making away the power from ICANN to act arbitrarily.

>> I would just clarify that it's not -- I don't mean to misstate
that it would be intended to take any power away from ICANN, but very
much the idea behind the concept was to act as a standardized form of
assistance to ICANN's own contractual compliance responsibilities. 
And I think that falls against the backdrop of some of the experience
that the WIPO arbitration mediation center has with, for example,
arbitration cases, and that has been sort of a background to this.

>>MIKE SILBER:   I am not suggesting taking power away at all.  I am
just suggesting the appropriate use of power.

Amy, you wanted to come in there?

>>AMY STATHOS:  Yes, I wanted to clarify because I think there is a
misconception with respect to the remedies, and it's perhaps a
language issue.  But the intent is and the change is that a lot of
comments, including Jeff's very well taken comment about the about
the remedies, that the remedies, in fact, are a recommendation.  And
ICANN will maintain full control over whether or not they impose
those remedies, because ICANN halls the relationship with the
registry.  They understand how the registry is operating.

The intent is simply with respect to what the panel is to do.  And
quite frankly, in terms of one versus three, I think the intent was
to make it as expeditious as possible.  But I don't think that ICANN
has a position with respect to whether there be one or three.  And
we'd like some additional comment on that.

But the panel is meant to determine the infringing conduct.  And
that's really the only thing that the panel is meant to declare.  And
then ICANN would be responsible for taking the assistance, as Brian
indicated, the assistance from the panel and then actually
determining which remedy -- what remedy to impose.

So I hope that clarifies that there is no intent to allow the panel
to actually tell us what remedy to impose.

>>JEFF NEUMAN:   If I could jump in on that.

>>MIKE SILBER:   Sorry, can I cut you off over there?  Just we have
another comment that came in via remote, if we can take that one first.

>>JEFF NEUMAN:   Sure.

>>MARGIE MILAM:   We have a comment from David Taylor regarding the
post-delegation dispute resolution procedure.

He indicates that it's a very important remedy to have.  One has to
have a potentially powerful stick to beat a naughty registry with. 
One might not use it and one would hope that it would not be used,
but the mere fact that it exists should help keep some registries in
line and ensure that those good faith registries do not have to
compete with others not adhering to the respective charter.

One of the IRT recommendations was to have three panelists.

>>MIKE SILBER:   Jeff, the floor is yours.

>>JEFF NEUMAN:   Yeah, I like that.  I hope I am never a naughty
registry.

But just to address a comment that was raised by Amy.  Amy, if you
look at the slide that's up there, the second to last point which is
the exact words from the policy, it says "absent extraordinary
circumstances ICANN will review, approve, and enforce the recommended
remedies."

So that, to me -- I'm happy with what you said, and I think that
needs to be codified.  But right now, what it says is that you will
approve it absent extraordinary circumstances.

>>AMY STATHOS:  After the comment or as amended by ICANN.  So I
agree with you, Jeff.  I think we are on the same page and I think
it's just a language issue.  So I think we will revise some of the
language in that regard.

>>MIKE SILBER:   Antony, you had another comment.

>>ANTONY VAN COUVERING:   Yes, I'm sorry to be up here again.  I am
a little shocked to be honest.  I'm glad everybody took it as funny,
but it's not as if we are children and trademark owners are our
fathers.

I would like to see a substantial definition of what abusive conduct
is by a trademark owner.

I can easily see this used as a form of blackmail against
registrants.  And I would like to make sure that that's addressed.

Thank you.

>>MIKE SILBER:   Any further comments from the panel?

If not, we seem to have a relative degree of silence, so if I can
then draw my conclusion from the comments made.  This is an area that
still seems to need a fairly significant amount of work, whether
it's, just as Amy suggested, a question of language which needs to be
improved and some iterations that are required over there or whether
that's a conceptual issue, as some others have been suggesting, that
goes deeper into the principle of the post-delegation dispute
resolution process that needs to be considered.

It certainly seems to be, of the three, the least mature of the
three proposals.

On that basis, can we take any general comments?  And then I will
ask the panel to work around and give their conclusions.  But let's
see if there's anybody from the floor with some general comments.

And I do apologize, we are going slightly over time, even though we
started on time.

>> Hi.  Just on the clearinghouse, you have got here that there's --
I will read it out.  Registrations that include top-level extensions
such as dot com as part of the trademark or service mark will not be
permitted in the clearinghouse regardless of whether a registration
has issued.

And I was just wondering, what was the logic behind that, that
exclusion?

>>MIKE SILBER:   Please.

>>MARY WONG:   Well, I'll try but it may be wrong, simply because I
did not write this proposal.  But my understanding is that this
wasn't invented out of thin air.  That there's a couple of other
registries out there that adopted the same policy.  As to why ICANN
staff put it in, I couldn't tell you.  But I can tell you that that's
not a unique mechanism.

>>MIKE SILBER:   Alan, please.

>>ALAN GREENBERG:   I can't comment on the origin either, but I can
comment on my lack of understanding of what it would mean if it was
in the clearinghouse.  Since dots delineate different levels of
domain, having ICANN.com as a single mark within the clearinghouse to
be used as a second-level domain when it's implicitly a third and a
second level doesn't make sense.  But I really don't know the origin.

>>PAUL FOODY:   It seems to -- it seems to go against people who
have registered dot com addresses originally.  I just find it very
peculiar.

Thank you.

>>MIKE SILBER:  I tend to disagree with that.  I think it goes
against people who have registered generic names within dot com and
want to try to prevent people from registering those same names under
a different gTLD.

I don't think it has anything to do with people who have rights and
have chosen dot com as their place of current registration.

>>PAUL FOODY:   Well, I would understand that if it said -- if it
limited that exclusion only to dot coms.  But it doesn't do that.

>> It's a trademark where the dot and the C-O-M are part of the
trademark, as opposed to mention was made earlier of Apple, which is
a generic name.  And a trademark was registered in respect of records
as well as a separate trademark by a different company in respect to
various electronic devices with that name.

But if somebody went and registered Apple.com without having the
underlying trademark in the name Apple, then the use of the dot and
the com in the trademark registration would then have no effect
because you wouldn't want to go and register Apple.com.blog.  That
is, I think, the issue; that you are creating the possibility of
generating a third-level registration and taking out an entire second
level.

So if I had the name Apple.com but without having rights -- you
know, I am part of an apple picking association, and I had the rights
to Apple.com without having the trademark in Apple, I wouldn't be
able to register Apple.com.blog, thereby taking out com.blog because
the dot in the DNS creates a leveled structure.

So by registering Apple.com.blog I would take out and prevent
anybody else using com.blog.  And that is, I think, the issue being
raised, is that the use of the full stop.  And maybe we need to look
at rewording it, is something that should be considered, is that the
use of the full stop would create a logical inconsistency within the
DNS.

>>PAUL FOODY:   But surely that argument would apply to every
trademark full stop.

>>MIKE SILBER:   No, only those that would have a full stop in them
already, or dot, if you prefer.

>>PAUL FOODY:   Thank you.

>>BART LIEBEN:   If I may comment on that last point.  Bart Lieben. 
If you look at the registries that launched, they had the rule where
you could remove the extension from the trademark.

So if you are referring to the existence of the dot in the trademark
itself, which would be difficult, then, to have a registration at the
second level, there's a rule for that that says, well, if you have a
sign that cannot be transcribed in LDH, at that point in time you can
replace it with a hyphen or you can simply abandon it.

And I think that's also in the STI proposal.

So there's a rule already there that deals with that issue.

So if you look at past experience, Asia, dot tel, dot co shortly, it
is possible to remove that extension and also that is in line with
common trademark examination practices.

So if you look at the examination guidelines that are used before
the U.S. PTO, they do not consider an Internet extension as being
part of the trademark when reviewing -- when performing actually a
substantive review on the thing.

>>MIKE SILBER:   Thank you for that very valuable clarification.

>>BERTRAND DE LA CHAPELLE:   Thank you, my name is Bertrand De La
Chapelle, I am the French GAC representative.

Just two points.  The first thing is in the GAC principles regarding
new gTLDs, there is a clear distinction between basically three
elements in the process of introducing new TLDs.  One is the
introduction of the string.  The other one is the delegation to a
specific operator, and the third one is the ongoing operation or rules.

In the case of the whole debate about trademark protection, which is
both very important but very hard to follow in detail by actors who
are not completely involved in that specific topic, I think it would
be incredibly useful for when you present things to the outside and
the external world to make as clearly as possible the distinction on
what are the things that relate to the top level, which is the things
that are going to be dealt with with the string once and for all when
it is chosen, and the ongoing regime that will have to deal with the
post-delegation system.

It is something that I ended up understanding, but after a long
number of panels.

The second point, very quickly, is for the generic terms; i.e., the
real generic top-level domains, there has been a trend, apparently,
of people trying to trademark or feeling that they needed to
trademark the dot TLD, basically.

I, unfortunately, may not have followed enough.  Can you just tell
me if there is any provision at the moment to deal with this thing,
and whether, for instance, in the case that there is a trademark of
that sort and the TLD itself is allocated or delegated to one actor,
there will be a provision for transferring that trademark or not
taking it into account?  Or will it be considered as being a -- not
to be taken into account as a preliminary right to apply for the TLD?  

To be very precise, there is one element about trademark, but also
people who are registering naturally, if they want to apply for dot
shoe, they are registering dot shoe in one word, in dot com, or
whatever.

Is this going to be transferred when dot shoe, the top-level domain
is going to be delegated?

>>MIKE SILBER:   I think that's a very interesting question and one
that I certainly hadn't considered, assuming that we'd be working off
a relatively blank slate as opposed to people trying to advance their
possibilities of getting into the script.

Is there --  Please respond.  Then let's take the last two questions
-- sorry, last three questions from the floor, and then we'd like to
wrap up the panel.

>>ZAHID JAMIL:   I think Bertrand makes a good point.  To describe
what remedies we have for the TLD post launch.  If you look at that
landscape, you find, as I said earlier, the only post-launch, ongoing
registration remedy that we have is that game -- whack-a-mole game
also known as URS.  As I said, I think it's a very good remedy, just
needs slight tweaking to become something very, very useful.  But
that's the only remedy that we have.  And like that, I think we need
to start categorizing what remedies apply to what aspects of supply
chain of that process.

>>MIKE SILBER:   I think Bertrand is asking a different question,
which is, if somebody has trademarked dot generic, do they somehow
have preferential rights?

Mary, I don't know if you'd like to volunteer an answer?  Wendy
wants to volunteer an answer from the floor.  Thank you, Wendy.

>>WENDY SELTZER:   Well, as a matter of trademark law, I would
simply question how somebody could register dot shoe with either an
actual use in commerce for domain registry services in the ICANN-
supported root or with a genuine intent to use, given this long
process.  So I would hope that those registrations would be subject
to challenge rather than offering an opportunity to preempt this
process.

>>BERTRAND DE LA CHAPELLE:   Let me just say that this is not a
hypothetical.  This is a reality.  And the guy was regularly applying
for dot music has explained that I think in his case, he has applied
for the trademark to protect, but others have been confronted with
others applying for the word.  So....

>>WENDY SELTZER:   And I will just tie that into the general comment
that I wanted to make, which was that a key principle from the GNSO
council is advocating the timely orderly introduction of new gTLDs. 
The longer that this process continues, the more opportunities there
are for people who think that they can jump the gun by engaging in
mechanisms outside of ICANN to reserve names and then preempt the
process here.

I just -- I think that what we've seen here has been a serious
investigation of trademark issues that were raised.  The special
trademark interest team was a serious cross-constituency and
consensus-driven organization from throughout the community.  And I
think that we should now be prepared to say as an organization, we
have investigated this overarching issue, we have addressed the
concerns of trademark holders and others with trademark interests,
and as the chairman suggested earlier, it's time to call a lot of
this closed and move on to the timely introduction of the generic top-
level domains.

[ Applause ]

>>MIKE SILBER:   I think that's a very good point.  Bertrand, it's
certainly something that I'll look into.

It is, to some extent, outside the ambit of this particular
discussion, which is focused on protection of markholders' rights. 
That's at the second level, generally, under new TLDs, and broader,
in the case of the TLDs itself.  But still, it's an interesting
question which certainly we'll make sure there is an answer to it. 
Because it's something that could otherwise present a problem.

Let's take the last two comments from the floor.  Then there was a
generic comment online, and maybe we can just have responses to that
comment as well as to other issues that have been raised this
afternoon.

>> Just a small comment, not really a question.  And I can't speak
to other categories within the DAG or the application process itself.
But at least within the legal rights objection criteria, one of the
consideration factors is whether the -- and I'm paraphrasing here --
whether the use of the mark has been bona fide.  So where you have
potential gaming scenarios for a dot TLD, one of the consideration
factors that a panel would look at would be this exact issue.

>>ANTONY VAN COUVERING:   Again, thank you, everyone.  I'd like to
just say that for those of us who are planning to apply for TLDs, it
would be extremely helpful to have some kind of an advisory opinion
from ICANN regarding the usefulness or nonusefulness of registering
dot TLD.  Because I know there's a great deal of activity out there
and there are a number of people who think they are protected or safe
or they've got it because they registered the trademark.  So I don't
think that ICANN considers a trademark registration your pass to a
TLD.  But it would be very useful to have some kind of opinion from
the board or the staff about that.

Thank you.

>>MIKE SILBER:   I think that's a point worth taking.

Margie, let's end it off with the generic question.

>>MARGIE MILAM:   This is from Constantine Roussos. 

Why is ICANN trying to become a trademark enforcement body?  Why are
today's trademark mechanisms available not good enough?

>>MIKE SILBER:   Anyone want to take that one?

Well, then I'll present what's -- we have a --

>> I can briefly comment on that.  I don't think that anyone from
ICANN -- and I don't mean to speak for ICANN, but -- would mean to
say that they are stepping in the shoes of trademark enforcement
bodies.

I think the thing that underscores all of the proposals that we've
been looking at is really more efficient both in terms of time and
money, ways to address trademark abuses outside of the court system,
which, naturally, given the multijurisdictional nature of the
Internet, can become quite cumbersome, it's not to supplant trademark
laws, but to offer an alternative.

>>MIKE SILBER:   The other thing that I would possibly add to that
is that other than the post-delegation dispute process, which deals
specifically with the registry rather than registrants, all of the
others are interim processes of some form.  None of them are final. 
You know, the URS, even a UDRP, there is the possibility of looking
at a court process in an I.P. claims or a sunrise.  It's not a final
process.  It's a mechanism which, then, based on policies, could
generate certain results and then would involve certain decision-
making.  But none of those are absolutely final processes where ICANN
is taking on a rights protection mechanism.  It's, rather, offering
alternatives, and interim alternatives, to registrants so that we are
not accused of the other potential crime, which is ignoring rights
that exist out there in the real world, as well as in the online
world, and allowing this to be a free fall.

I think on that, let's wrap it up.

Jeff, let's give you an opportunity for any final remarks.

>>JEFF NEUMAN:   I want to thank everyone for letting me participate
remotely.  I hope it's worked out well there.  And we have about 30
or more people here in Reston that are following along in the room. 
So I want to thank everyone.

I think, you know, on the clearinghouse and the URS, I think we are
almost there.  I think there needs to be a study done with the URS
and how that's going to interoperate with some of the proposed
mechanisms.  And I agree with the assertion that post-delegation
dispute, we do need some more work on.  But I will graciously -- I
will make myself available again, make that offer, to help ICANN
staff out, or anyone else, to interface with WIPO and others to bring
this to a conclusion.

>>MIKE SILBER:   Thanks, Jeff.

Robin.  No concluding remarks from Robin?

>>ROBIN GROSS:   I'm sorry.  Yes.  I just wanted to point out that
the STI report that came out was a cross-constituency compromise,
that it was something that all of us really worked hard and made
compromises and came up with something that we could all agree on. 
So I think in many ways, it was a very good, healthy experience for
ICANN.  And I think that the proposals that came out of the STI
report should go forward.  And I expect they will soon.

Thanks.

>>MIKE SILBER:   Alan.

>>ALAN GREENBERG:   One quick statement regarding the post-
delegation dispute.  At Large doesn't have a particular interest in
looking after registries, in general.  On the other hand, we are
potentially very afraid of what this kind of mechanism could do to
very small community-based registries who will not have the resources
to defend themselves if the procedure does not have enough safeguards
in it.

>>MIKE SILBER:   Mary?

>>MARY WONG:   Okay.  We are so close, and we're a long way from
Sydney in many ways.  And I think this is a very welcome development.

I would hope that the comment period that closes on the 1st of
April.  It will be helpful, it will be constructive.  And there will
be feedback for some of the still somewhat open points in the
proposals, some of which were talked about today.

And I just want to conclude by going back to Bertrand's comments,
essentially.  I think some of the things you said is not an ICANN-
specific problem or an issue.  I mean, it exposes the fissures
between having a domain name, you know, one person gets it, and
trademark rights, which are not just territorial, but can vary
depending on goods, services, and so forth.

Having said that, however, I think this community has recognized
that there is a need to protect trademark rights.  And this process,
I think, has shown that there can be a balance, that you protect
existing trademark rights without expanding them at all, not just
unnecessarily, but at all.  And I should hope that we can see this
process come to a good close very soon.

>>ZAHID JAMIL:   Slightly discordant voice from the rest.

The STI was a compromise on certain specific tasks given to the
GNSO.  So it should by no means be interpreted to mean that that is
the solution to all trademark issues.

Two very specific points.  Have to respond to it.  I mean, tools. 
One was an (inaudible).  It doesn't solve the larger question of the
defensive registration.  Let me just say this very clearly.

The only remedy for both pre and post-launch for defensive
registration is for a brand-holder to buy.

He has to buy whatever he wants to protect.

With the number of new gTLDs coming out, if it's just going to be
ten or 20, I don't think that's a big problem.  But if it's going to
go into the hundreds, and with the root scaling study, we wouldn't be
studying that if we didn't think it would be the hundreds, you can
imagine the multiplication and the amount of money the brand holders
are going to have to spend.  Because that's the only thing they can
do.  If you want to protect your trademark, you have to spend pre,
and you have to spend post.

>>MIKE SILBER:   I think that's where Jothan and Antony were making
the point they may have some differing views.  And I think that's the
document that certainly is getting some interest in the community.

What I'd like to say, and not because of the paper put out, but
because I agree completely with the comment, Jothan made a comment in
the chat that if you look at the progress that's been made from
Sydney to today, I think it's really significant.  People who sat on
the IRT and people wanted to beat them up and take them out in Sydney
are now sitting together largely in agreement.  I think we've
clarified a lot of the misconceptions.  I think we have simplified
and smoothed over a lot of the inconsistencies that had, due to the
very nature of the process, crept into the IRT report and some of
those recommendations.

It seems that we've still got a little bit of smoothing to do.  It
seems with regard to the post delegation dispute resolution process,
there may be more than just a bit of smoothing.

I would like to agree with Amy, and I hope I can be proved that Amy
is correct, that it's just a language issue and it's nothing more
than that.  'Cause if that's the case, then it looks like these three
wrap up pretty quickly, and then we can tick one more box on the way
from draft to final applicant guidebook.

That being said, comments close 1 April.  So you have time to
recover from jet lag on your way home from Nairobi, and then those
comments need to be in pretty damn quick after that.

Thank you very much for sticking it out.  It's been a long day. 
It's been an eventful day.  And your presence is greatly appreciated.

[ Applause ]