International Trade Lawmaking @ Beijing Normal University

Drafted by Dr. Hong Xue on behalf of CDNUA, At-Large@China and ISOC-Australia
This document is consistent with the statements and advices made by the ALAC and At-Large Community to the ICANN Board and that it is reflective of the views of many ALSes within the Asia Pacific Region and that it is expected to gain support of the APRALO as a formal Statement at our next meeting on the 28th of July. We also get the support from the other organizations/ key stakeholders in this Region.
A majority of Asians are non-ASCII users. The implementation of IDN TLDs is essentially important in Asia. However, we have concern that the IRT proposals, particularly the additional “meaning” (commercial impression) criterion, would negatively impact the IDN TLD applicants. Since this criterion has never been applied to the existing ASCII TLDs- for instance .biz was not precluded for being “meaningfully or semantically similar” to .com, ICANN should not impose the double standards to the IDN TLDs merely for the protection of interests of one stakeholder group. We strongly affirm that evaluation of string confusion must be restricted to visual similarity, and not be inappropriately enhanced to include “aural or meaning (“commercial impression”)”, which is very subjective and would open the door to endless disputes.
With respect to GPM, we concern the proposal that “the confusing similarity analysis of applied-for gTLD strings against GPMs include the aural and commercial impression (meaning) of the applied-for string in addition to the visual similarity” would unreasonably prejudice the IDN TLD applicants. Legal protection of a trademark in translation or transliteration must be subject to the complicated legal analysis and judgment based on special law in the respective territory. ICANN has neither the authority nor capacity to do this in the Initial Evaluation process. If taken into account those famous marks that consist of generic terms, the IRT proposal would seem absurd. Why should a trademark such as “BOSS”, “DOVE” or “VOGUE” bar the Chinese-character TLDs like “.老板”、“.鸽子”or “.时尚”?
In contrast to the trademarks that have been singled out as an overarching issue for new gTLD implementation, we concern that the other legal issues that are protected by the international treaties, such as non-trademark “traditional knowledge”, would be unreasonably ignored or push aside.
We reiterate the concerns that have been expressed in various circumstances by the at-large communities that ICANN should not engage in any trademark protection regime which extends beyond existing international intellectual property treaties and the inherent legal limitations on the trademark rights.

http://forum.icann.org/lists/ft-implementation/msg00030.html

Date: Tue, 14 Jul 2009 16:16:08 +0800

a) Fast-track IDN ccTLDs must be implemented as planned, i.e. in Q4 of 2009 as the latest, to meet the “pressing need” of non-ASCII user community;

b) Any implementation plan must strictly observe the IDN Guidelines and IDN tables reserved at the ICANN. Any ignorance on variant character set would cause serious user confusion. The present draft policy on variants would seriously pledge the non-ASCII users, particularly in Chinese and Japanese community, by distorting their character usage. If the present policy equals ASCII TLD variants in either capital letters or low-case letters, non-ASCII users should have the equal right to use the variant scripts in the relevant fast-track IDN ccTLDs.

c) The cost estimated for the processing of each new IDN ccTLD request is prohibitively high. The financial barrier for IDN ccTLD managers especially from developing countries would widen the digital divide and be against the ICANN’s social responsibility.

http://forum.icann.org/lists/irt-final-report/msg00138.html

Date: Mon, 6 Jul 2009 11:35:47 +0800

We strongly concern the IP Clearinghouse and Globally Protected Marks List. Trademarks have always been protected and enforced by national law, which is not changed by any relevant international conventions, particularly Paris Convention or WTO TRIPS Agreement, let alone that not every country or territory is the members of these conventions. ICANN, in its limited technical coordination role as declared in its mission, has absolutely no authority to create any international or even global law to change the territorial nature of trademark rights. What is recommended by IRT is to set up a private ordering through ICANN DNS governance to create a de facto global enforcement for trademarks, irrespective of legal limits of trademark protection. We do believe if ICANN go ahead with this line, it will be an obvious mission creep of ICANN.

We assume that URS would become an unnecessary additional layer of UDRP. Another concern over URS is that its rapidness, which will inevitably deprive a TLD string without even full trial of the whole facts. This approach was even abandoned when drafting UDRP.