[x-pubpol] Fwd: Return of the Globally Protected Marks List - now called HARM "High At-Risk Marks)

[Joly MacFie]

Hi Kathy,

Cross posting to ISOC-NY x-pubpol list.

j

---------- Forwarded message ----------
From: Kathy Kleiman <kathy at kathykleiman.com>
Date: Fri, Aug 17, 2012 at 3:48 PM
Subject: [NCSG-Discuss] Return of the Globally Protected Marks List - now
called HARM "High At-Risk Marks)
To: NCSG-DISCUSS at listserv.syr.edu


Hi All,
I don't know how many people remember our work on the GPML - the Globally
Protected Marks List. It was a proposal of the intellectual property
community to create a "reserved list" of words that would be ineligible for
registration as second-level domain names in the new gTLDs. At least, not
until the user first proved that there was no remote likelihood of
confusion with any of the trademark owner's users.

Needless to say, this is not ICANN's balliwick. It's not a word smith, or a
trademark forum, it's a technical organization. So we, NCUC, responded that
the right place to create protections for "famous marks" is somewhere other
than ICANN.

We pointed out that while trademarks have international protections via
treaty, famous marks don't. There is simply no consensus internationally on
famous marks, no international list of famous marks, and no international
standard of protection on famous marks.   So Orange, Caterpillar and Virgin
are famous marks to some, and normal words to others.

So, sigh, the issue rears its head again. Melbourne IT released a paper
called Minimizing HARM where it posits the creation of an infinite number
of "High At-Risk Marks (HARM)," their new term for Famous Marks, and a
permanent protection in all new gTLDs -- including takedown by the URS
dispute process in two days (2 days!) unless the registrant responds **and
pays**.  We fought against two weeks as too short -- especially for the
many new gTLD domain names that will be registered by individuals, small
organizations, small businesses, and people from countries where English is
neither a first (nor second) language. Two days!!??

One bright note is that new "HARM" famous marks are supposed to "be
distinctive" and "not match common words," but the paper notes that "marks
like Apple or Gap may not be eligible."  The use of the word "may" instead
of will-definitely-not-be-**eligible-because-they-are-**normal-words-used-by-everyone
suggests to me that the "slippery slope" of expansion has already begun.

Plus there's no limit -- infinite numbers of these new soon-to-be-famous
registrations possible.

So let the fun begin, a new proposal to massively expand intellectual
property rights now takes the floor.

Press release by Melbourne IT is posted by Reuters at
http://www.reuters.com/**article/2012/08/16/idUS121841+**
16-Aug-2012+BW20120816<http://www.reuters.com/article/2012/08/16/idUS121841+16-Aug-2012+BW20120816>.
It includes a link to the "Minimizing HARM" paper released yesterday.

Sigh and best,
Kathy


Kathy Kleiman, Esq.
Internet Counsel, Fletcher, Heald & Hildreth, Arlington, Virginia, US
Co-Lead Internet Law and Policy Group
kleiman at fhhlaw.com



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