Re: [council] revisions to draft suggestion for resolution

[KathrynKL@aol.com]

I have read Theresa's draft resolution.  It is a good start, but I fear that 
it includes only a portion of the consensus ideas (and broad areas of  
disagreement) within WG-B, in the Final Report, and in the many DNSO comments 
we received.  

Based on my work in the WG-B and detailed review of  the comments, I would 
like to propose substantive changes to the text below to incorporate the full 
consensus of WG-B -- that noncommercial gTLDs should be created and that they 
do not pose the same danger to trademarks that the commercial gTLDs pose (and 
therefore should not be subject to the same intellectual property protection 
mechanisms that might infringe on open communication).  This is the consensus 
of WG-B and was supported in the WG-B reports and the DNSO comments to it.  
It is altogether fitting and proper for us to include it here. 

Also, Theresa has drafted this resolution asking the Names Council to endorse 
the Sunrise Proposal as something which *** private parties may adopt among 
themselves ***.  This is an absolutely  new and radical idea, not included in 
the WG-B discussions, not included in the WG-B reports, not included in the 
comment issues, and not appropriately included in this resolution.  The 
Sunrise Proposals in forums to date were discussed as something ** ICANN 
would adopt ** (e.g. a formal ICANN mandate of a preregistration period).  It 
was never contemplated as an agreement between private parties and the whole 
issue raises significant legal, political and social issues which were not 
aired in any forum to date and would represent a radical departure from our 
WG-B work. 

Below please find the edits which I hope will supplement Theresa's draft with 
the further consensus material discussed above.  I would like to ask that 
this revised draft be our starting point for tomorrow.

kathy

> 
>  The Names Council recognizes the enormous work undertaken by Working Group
>  B. The Names Council acknowledges that according to its final report,
>  Working Group B has reached consensus on three points, namely:
>  
>  (1) Some type of mechanism, yet to be determined, is necessary in 
connection
>  with famous trademarks and the operation of the Domain Name System.
>  
>  (2) There does not appear to be the need for the creation of a universally
>  famous marks list at this point in time.
>  
>  (3) The protection afforded to trademark owners should depend upon the type
>  of top-level domains that are added to the root.
>  
>  With regards to points (1) and (3), the NC notes that the Working Group
>  members could not reach consensus on the type of mechanism that should be
>  incorporated into the roll-out of new gTLDs (point (1)), which is
>  understandable given their consensus in point (3) that the protection 
should
>  vary depending on the type of top-level domain.  

> The NC concludes that there
>  is community consensus that there 

both commercial and noncommercial new gTLDs created and that within the new 
commercial gTLDs there 

> should be protections of intellectual
>  property, additional to those now in place for the .com, .net, and .org
>  top-level domains, during the startup phase of new top-level domains.  

[new paragraph]
> The
>  NC therefore makes a supplemental recommendation to the Board that, in
>  introducing new 

commercial and noncommercial 

> top-level domains as recommended by the NC on 18-19 April
>  2000, consideration be given to implementing procedures that afford
>  additional protection to intellectual property 

in the new commercial gTLDs 

>  during the start-up phase.

>  In the case of the initial introduction of top-level domains as 
contemplated
>  in the 18-19 April recommendation, this consideration should be done in
>  connection with the overall consideration of specific proposals for new
>  top-level domains, which will allow for use of different mechanisms in the
>  case of different types of top-level domains.  

/* I am not sure what the above sentence means.  I have drafted a revision 
that hopefully addresses the same point. */

The NC urges the Board to carefully consider the protections for both 
intellectual property and open communication appropriate for specific new 
gTLDs and to allow for the use of different protection mechanisms for 
different types of top-level domain such as chartered commercial, generic 
commercial, individual and noncommercial.  The NC notes and endorses the 
conclusion of WG-B's Final Report that: " nothing in the consensus item 
should be construed as creating immunity from the UDRP or other legal 
proceeding should a domain name registrant in a chartered top-level domain 
violate the charter or other legal enforceable rights."


[new paragraph]
>  The NC observes that

the mechanisms to protect intellectual property were the subject of 
tremendous controversy in the WG-B and in the comment period.  The Sunrise 
Proposal drew the vast majority of DNSO comments, and represented a 
tremendous split of the Internet community.   The NC is not prepared to 
endorse or support a mechanism at this time. The NC notes that the principles 
of differentiated gTLDs (see other NC resolution) may provide additional 
assistance in avoiding confusion. 
 
[delete sentence part below as outside the bounds of WG-B discussions, DNSO 
commentary and scope of this resolution]
    >  agreements between private parties, such  as reflected in the Sunrise
    >  Principles, are examples of consensual  solutions that are one means of
    >  providing additional protection.
>  
>  With regards to item (2) on universally famous marks, the NC notes that the
>  proposed creation of a list of universally or globally famous trademarks 
has
>  engendered very significant controversy in the community.  The NC therefore
>  concludes that there is no consensus in the community at the present time
>  that such a list should be adopted by ICANN.
>  
>  The NC also recommends to the ICANN board that it take note of the Working
>  Group B report, including the submissions by participating parties. The NC
>  notes that Working Group B has brought to light the scope beyond merely
>  domain names that the famous trademarks issue raises. 

[I am not sure what the sentence above means.]

[propose deletion of paragraph below -- as it is now included in additions 
above]
>Therefore, the NC
>  strongly recommends to the ICANN Board make clear that nothing in the
>  general consensus items, or areas of non-consensus should be construed as
>  creating immunity from the UDRP or other legal proceeding should a domain
>  name registrant in a chartered top-level domain violate the charter or 
other
>  legal enforceable rights.
>  

>  The NC would like to express its gratitude to the hard work of Michael D.
>  Palage, Katherine 

Kathryn 

>  Kleiman, and Philip Sheppard in steering the Working Group
>  and seeking to guide them towards consensus on the difficult set of issues
>  they were assigned.