Institute for Internet Policy & Law @ Beijing Normal University

ICANN 42th public meeting is going on from Sunday October 23, 2011 to Friday October 28, 2011 in Dakar, Senegal.  The trademark clearinghouse is going to take off despite many doubts and concerns.

The current plan has many flaws, particularly in the following aspects:

1. The trademark database that consists of the trademark registration information submitted from around the world is going to be confidential. This will definitely be detrimental to the people’s right to access public information and transparency and accountability of the services. All trademark registration information is publicly available. Why the database that put up the public information becomes confidential or restrictive accessible to pertinent registries or registrars, rather than public at large? The argument on database right or copyright of the database is not legally sound. Even if there could be such right generated under certain countries’ laws, it should not be used to claim against public access to the information included. The closure of the database is by all means a counteract to the global A2K movement.

2. The clearing house was designed primarily to protect the trademark in Latin scripts. It is poor design lack of diversity consideration. This is cultural arrogance showing the dominance of developed world at ICANN. Character variant issues are coming back to bite the process.

trademark clearinghouse and claim services would need to refer to the variant table for purpose of prevent cyber-squatting (variant squatting) against the Chinese-character trademarks. Otherwise, the service providers (without knowledge of Chinese language) would deem the domain names in simplified characters not visually similar to the trademark in traditional characters, vice verse.

“Variants” have never been an issue for China Trademark Office or Law Enforcement Agency when a trademark is applied for registration and/or seeking for legal protection. Any Chinese speakers know that simplified and traditional version of one character are equivalent. They don’t need the aid of the variant table. Someone who obviously knows neither Chinese language nor law attempted to argue that owner of a word mark in simplified form is entitle to claim the tradition form merely because the latter is “semantically” or “meaningfully” similar to the former. This is nonsense by all means. We should not mix the legal issue with the language variants issues. Character reform and evolution are the public knowledge of Chinese speakers, just like the upper case and lower case of Latin scripts. Is there any need for Latin script countries to enact a law to stipulate the trademark protection is not case sensitive? So, Chinese trademark protection is NOT variant sensitive!

The issue is only for the  Trademark Database and/or authentication & validation service providers who does not know Chinese and mechanically compare the virtual similarity of a word mark and a Domain Name string.

Although variants are “considered” in trademark examination or enforcement, they are not shown in trademark registration
certifications. If a word mark is applied for registration and approved by the trademark office, the certificate will merely show the
word (in either simplified or traditional characters) as it is, rather than listing all its variants. Then how to include the variants in TCH
database and how to verify those “non-registered” variants? Question is still there.

Taobao Mall is the country’s leading online retail platform, accounted for nearly a third of China’s online retail B2C market share in the second quarter, followed by 360buy.com’s 12.4 percent and amazon.cn’s 2.3 percent.

From early October 2011, a large number of small sellers on Tabao’s system went on a riot when the company earlier announced an up to 10-fold increase in membership fees, along with a maximum 15-fold increase in cash deposits, from next year. The proposed fees ignited a storm of protest online and the owners of some small businesses disrupted the site’s operation. The company believed that some of those responsible for the disruption had been fined by Taobao for selling fake products, Ma said.

Partially pressed by Ministry of Commerce, Taobao announced on October 18 revised fees and a 1.8 billion yuan ($282.2 million) investment plan to aid the development of small- and medium-sized enterprises, in a move seen as a conciliatory gesture following a bitter online fee dispute. But some small vendors insisted that the “fight for their rights” will continue.

The revised measures include a 9-month grace period for regular sellers, who have maintained good ratings, before new fees kick in. But those who register after the revised policy will have to pay the new fees from Jan 1, 2011.

The cash deposit paid by vendors will also be cut in half, and Alibaba will pay 1 billion yuan to make up the shortfall and invest that money to help small businesses. Alibaba said it would pay another 500 million yuan as a guarantee fund to help small online traders obtain loans from banks, and it will spend an extra 300 milllion yuan on technical support and promotion. However, stores at the bottom 10 percent in terms of customer satisfaction rating will not be eligible.

Alibaba’s online retail unit split into three sections in June. Taobao Mall enables businesses to sell to customers and Taobao Marketplace allows customers to trade with each other. The third section is a shopping-related search engine, eTao. Taobao Mall, the business-to-customer (B2C) section, connects consumers in China with retailers ranging from small operators to retail giants like Gap Inc of the US and the Uniqlo brand of Japan’s Fast Retailing Co. Alibaba said that a total of 50,000 traders are registered with Taobao Mall, and some 5 percent of vendors will be affected by the new policies.

The incident involves a number of legal issues and occurred at a sensitive moment when the draft of the Regulations on Internet Retails are being reviewed by the State Council and a variety of Ministerial Agencies. The new Regulations will set out an administrative license system for any Third-Party Transactional Platform services, such as Taobao. On the other hand, the market dominance by Taobao in Internet Retail Market raised the people’s concerns on competition and consumer protection. With respect to protection of SMEs in Internet Retails, there may be an issue of Internet governance subject to multi-stakeholder and transparency.

The Asia Pacific Trade Facilitation Forum 2011, under the theme of “Trade Facilitation beyond Borders: International Supply Chain Efficiency,” focusing on how trade facilitation can enhance supply chain efficiency, was held on October 3-8, 2011 in Seoul. Critical trade facilitation issues affecting the efficiency of regional and international supply chains were discussed. There were two events related to UNNeXT Legal Panel, which is primarily tasked to research the feasibility of a Regional Agreement on Electronic Exchange of Trade Data and Documents and provide the pertinent training materials and services for the stakeholders in the Region.

On October 6, 2011, The United Nations Network of Experts for Paperless Trade in Asia and the Pacific (UNNExT) had a side meeting at the Forum in the afternoon. The leads of each working group on legal issues, data harmonization, trade process and single window implementation gave a briefing on their works done so far. Prof. Xue presented on behalf of the legal panel and reported the outcome of Legal Panel Bangkok Meeting in July. The suggestions on the regional agreement attracted many comments from the audience.

On October 7-8, 2011, UNNExT Capacity Building Workshop on Addressing Legal Issues for Single Window Implementation and Paperless Trade was held at Seoul COEX Complex. The pilot workshop introduced participants to legal issues that need to be addressed to enable paperless trade and single window implementation at the national level, as well as to facilitate interoperability and interconnectivity of e-trade systems across borders. It built the capacity of participants to develop comprehensive and harmonized paperless trade legal frameworks, providing a sound legal basis for the operation and interoperability of national single windows and related e-business and e-logistics platforms. More than 20 countries’ delegations joined the workshop. Prof. Xue who reviewed the training materials prepared and presented by Prof. Rolf Weber, gave a presentation on the Legal Environment of Paperless Trade in China. The audience was particularly interested in the progress China made to legally enable and facilitate the electronic transaction, particularly on Internet Retails. Prof. Xue’s talk had got most questions of the workshop. These questions are on the electronic signatures and transactional data that are newly subject to national regulations.

IGF 2011 was completed in the last week of October in Nairobi.  Before the workshop on Government’s Responsibility on Day 4, I prepared a written statement and sent to the moderator and organizer well before.

I’m posting here the OBSERVATIONS ON INTERNATIONAL CODE OF CONDUCT FOR INFORMATION SECURITY (September 28, 2011) I made at a CoE workshop.

“I note a group of civil society organizations’ Open Letter to the President of the UN General Assembly on International Code of Conduct for Information Security. I deeply appreciate their timely contribution. I agree with some of the views they presented, but also believe we should be focusing on the most important issues.

I would like to share with you my observations. As a Chinese poem says, “you could not see the whole picture of a mountain when being in the ranges of the mountain.” Since I’m now almost 10,000 km away from Nairobi, hopefully my observation could be interesting to you.

I agree that the International Code of Conduct For Information Security (ICOC) proposed by the four countries does not have any direct “reference to the multistakeholder approach.” Although the document primarily defines the responsibilities of the States, it does not seem being the product of multi-stakeholder consultation and consensus.

On the other hand, ICOC, para. (h), does mention “all elements of society.” Given that language difference may result in variants of expressions, such as calling “civil society” as  “social groups” (see “MIIT of China response to the Further Notice of Inquiry on the IANA Functions”) , “all elements of society” could arguably imply multi-stakeholders. Truthfully,  the statement that “all elements of society” are under the leadership of the States does not imply the equal footing of all stakeholder groups. But is there any INTER-NATIONAL decision-making process really ensuring equal footing of all stakeholder groups? I’d be happy to learn more about how international law-making adapts to multi-stakeholder environment, as I had presented via unsuccessful remote participation system in Workshop 144 on September 27.

Making a simply comparison between ICOC and the two documents presented by Council of Europe (the “Declaration by the Committee of Ministers on Internet governance principles” and “Recommendation CM/Rec(2011)8 of the Committee of Ministers to member states on the protection and promotion of the universality, integrity and openness of the Internet”), I can see quite a lot of commonalities and interoperable elements. Both initiatives have the emphasis on “No harm”, which reflect the concern for world peace in the Internet age.

Since CoE’s document also mentions “Cultural and linguistic diversity”, I think it could be biased or mind-guessing to state that ICOC’s reference to “ ‘respect for the diversity of history, culture and social systems of all countries’ might be interpreted as diminishing the commitment of the UNGA to the universality of human rights.”

To my belief, the most important commonality is that both ICOC and CoE’s documents highlight the human rights and fundamental freedom. ICOC, the third sentence of para. (a), is a brilliant statement that is so dear to the people who are keen on access to knowledge. It may also explain why ICOC was not widely reported in the media in these four countries . So it would be good if ICOC, including the third sentence of para. (a), could be avail to the people of the four states, particularly when not all four states have ratified the International Covenant on Civil and Political Rights (ICCPR).

But the devil is in details. I fully agree that ICOC, para. (c) is the real concern and can be subject to different interpretations. Actually even the second sentence of para. (a), “respect for the sovereignty, territorial integrity and political independence of all States” could have alternative implication. I shall sincerely hope none of the interpretations would revoke the commitment to respect for human rights and fundamental freedoms, as stated in ICOC, para. (a) as well.”

The proposed International code of conduct for information security is contained in a Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General is attached here for reference.

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Many people was not able to attend physically. But the so-called remote participation is most unreliable and ineffective way for anyone who genuinely intended to participate.

In the morning of Day One, I spent a long time to test and wait patiently for workshop “IG Principles” that I would present. Tragically, there was no signal on both the webcast and webex (participation platform) until the whole session started several minutes later. After I could finally log on webex, I posted messages to let the remote moderator know that there would be speakers remote and asked for testing. My testing requests were denied for unknown reason. Then I found that there was neither video nor sound on webex and told the RP moderator. The replies was always “fixing.” Frustrated by inaccessibility, I had to rely on the webcast to listen, which made me in an awkward situation of either listening without participation or particiaption without sounds. After one third of the workshop, I can finally hear some sounds from webex but the sounds were extremely weak, unclear and full of noises. I contacted the RP moderator but no fixation was offered.  As a result, I was not able to interact with the moderator and speakers of the workshop. Most unforgivably, my chance of presentation was unfairly deprived. I was merely given a few seconds to talk before the line was brutally cut by the RP moderator. I heard mildly that people on spot said that I should submit a written statement and RP was not reliable. Okay I then wrote a short note and posted on the webex. It was not read until almost the end of the workshop by the impatient and unqualified RP moderator.

After experiencing such unhappiness, I learned that RP was very unreliable.

My RP at another workshop on sort of OKE was equally unpleasant. There was no other RP participants at all. I sent in a comment but it was not read until the very end of the workshop. Sadly it was distorted and mutilated by the RP moderator. It was the insult to my sincere participation.

The current CEO of ICANN made the announcement on 16 August 2011 his intention to leave the corporation in July 2012, at the end of his current contract. This was quickly followed by an official announcement on the ICANN website. Some concern was expressed about the way the search for a CEO had been conducted in 2009, a process which many consider had not been transparent, nor a model of good governance within the ICANN Board itself.

In this context of fairly wide concern for the future of ICANN, a group of ICANNers, (in alphabetic order)

AIZU Izumi, from Japan; 

Manal ISMAIL, from Egypt; 

Yrjö LÄNSIPURO, from Finland; 

Evan LEIBOVITCH, from Canada;

Alejandro PISANTY, from Mexico;

Nii QUAYNOR, from Ghana; 

Njeri RIONGE, from Kenya; 

Carlton SAMUELS, from Jamaica and US;

Jean-Jacques SUBRENAT, from France; and,

XUE Hong, from China,

reflected on the situation, and on 17 September 2011, sent the following letter to Dr. Stephen D. Crocker, Chair of the Board of Directors of ICANN.

The letter was widely circulated in the community and more people are showing their support. For example, two persons from North America have asked to add them as co-signatories.

The content of the Open Letter is below. The Chinese version is attached as well.

“As a group of friends of ICANN from various parts of the world, we would be grateful if you would share this letter with your fellow Directors.

The President & CEO of ICANN has announced that he will be leaving this corporation in July 2012, when his current contract expires. At a time when ICANN has to deal with other important challenges, its Board of Directors will have the additional task of selecting his successor.

In any corporation, selecting a CEO is one of the most crucial responsibilities incumbent upon the Board. In ICANN, with its distinctive multi-stakeholder structure and volunteer Board, the importance of such a choice cannot be overstated, especially at this stage in the development of the Internet and of ICANN itself. The progress made by ICANN so far must be further consolidated. At the same time, upholding the value of the multi-stakeholder model, which some are actively seeking to jeopardize, requires continuity of purpose as well as renewed imagination. Under the guidance and oversight of the Board, the next CEO will have the duty not only of leading, but also of strengthening ICANN.

The selection of a new CEO, shortly after the completion of the first Accountability and Transparency Review, provides the Board with an excellent opportunity to demonstrate that it is now fully equipped and prepared to implement all the ATRT recommendations, perhaps even to go beyond that. In the spirit of these recommendations, the Board of ICANN should adopt a more transparent and accountable method for the selection and appointment of the next CEO.

Candidates should be sought through a transparent process (appropriate advertising in global and regional media; call for tenders in order to choose an external consultant, if one is needed). The Board should remain on top of the process, so that all its members are fully informed by the time a decision is called for. Failing to abide by these basic rules of good governance would expose Board members to the risk of eschewing one of their chief responsibilities toward the ICANN community, which is the duty of care. While the confidentiality of some Board deliberations sets understandable constraints, it is possible and desirable, within those bounds, to carry out the selection process in an open and transparent manner, so as to make it irrefutable. It is also important that the next CEO be chosen before the end of the predecessor’s current term, and be ready to begin without delay.

These improvements would be in line with ICANN’s committments. They would also send a strong signal of confidence and clarity to ICANN’s worldwide community, while at the same time consolidating the foundation upon which it aspires to build further global partnerships for the Internet and its users.

With best wishes to you and the Board of Directors, we remain

Yours sincerely”

致互联网名称与数字地址分配机构（ICANN）理事会的公开信

 尊敬的理事会主席库克先生：

吾辈ICANN之友谨此致信于阁下并理事会其他人士。

ICANN现总裁暨首席执行官任期将届满，将于2012年7月卸任。籍此ICANN关键之际，理事会必于万机之中，着眼于选任继任者之重任。

任一机构之中，选任首席执行官均为理事会之第一要务。于ICANN，独特之多方利益相关者之结构及其志愿者理事会，此选择之重大，莫可过之，更遑论互联网与ICANN正值发展之机。已获之进展葺需巩固。持多方利益相关者模式之价值，不致其危，需目的之坚持、想象之充盈。理事会之指导与监督下，下一任首席执行官之职责何止领导，更在加强。

新首席执行官选择正值首次问责和透明度审查完成之后不久，理事会可以此证明践行所有之问责及透明度之建议，甚或可过之。此等建议精神之下，理事会甚应于新任首席执行官之选任中愈加透明与负责。

候选人应藉透明之程找寻（经全球和地区媒体之适当宣传；如有必需，或可以招标之法选择一外部顾问）。理事会应全程领导，决定之时，全体成员均须充分知悉。置妥善治理基本规则于不顾，将致理事会成员不履行于互联网社区之主要职责（即注意义务）之境地。虽理事会某些商议之秘密性需予合理保护，然于此界限之内，将选举过程公开、透明展开、不授人以柄，实为可行与理想之举。下一任首席执行官之选择须在本届任期结束之前进行，不可迟延，极其重要。

上述之改进符合ICANN所承担之义务。籍此ICANN向全世界社区传递信任与透明之明确信号，同时巩固其基础，并进一步奠定与互联网及其用户之全球合作。

致敬于您及理事会成员全体！

商祺

IZU Izumi 自日本; Manal ISMAIL 自埃及; Yrjö LÄNSIPURO 自芬兰; Evan Leibovitch 自加拿大；Alejandro PISANTY 自墨西哥;Nii QUAYNOR 自加纳; Njeri RIONGE 自肯尼亚; Carlton Samuels自牙买加和美国； Jean-Jacques SUBRENAT 自法国; 薛虹自中国

二零一一年九月十七日