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IP-Watch Interns Summer 2013

IP-Watch interns Brittany Ngo (Yale Graduate School of Public Health) and Caitlin McGivern (University of Law, London) talk about their Geneva experience in summer 2013. 2:42.

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2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

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5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

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    ICANN Trademark Clearinghouse: Preregistration Rights Only For Those Who Pay?

    Published on 26 March 2013 @ 3:01 am

    By for Intellectual Property Watch

    Starting today, trademark owners from around the world will be able to have their rights recorded in the Trademark Clearinghouse of the Internet Corporation for Assigned Names and Numbers (ICANN). Designed to help trademark owners manage the flood of new internet domains being launched by ICANN, it’s an open question whether they will be satisfied with it.

    The Trademark Clearinghouse (TMCH), active on 26 March at California-based ICANN, was created in an effort to prepare for a wave of new top-level domains (TLDs) expected to go live over the coming years. More choice for users from hundreds of new address zones like .web, .paris or .xinwen could result in chaos for trademark owners, Jan Corstens, partner at Deloitte, the chosen provider for the TMCH, told Intellectual Property Watch.

    Having their data recorded in the Clearinghouse, Deloitte consultant Jonathan Robinson explained to Intellectual Property Watch, “does not secure them their name in every single registry. Every single registry will have its own policy.” One registry policy might limit registration in a zone to entities based in Africa, for instance, while another might only be open to a certain language or community group.

    At the same time, where registration is open to everybody, a rights owner might face a long list of records in the TMCH for the same mark. Auction, the experts say, might in the end be the fairest way to decide about who will be able to register the name during what is called the sunrise phase.

    Clearinghouse No Fix for Mismatch

    Sunrise phases were introduced for the first launches of new TLDs 10 years ago to allow trademark owners to run first and stem the tide of domain grabbers and name pirates – but it came at a huge difficulty for the registries inexperienced in checking the validity of marks. Deloitte has trained over a hundred experts to be able to check the validity of marks in (nearly) every country on earth, Corstens said, though, “Will I get marks in Urdu and from Ethiopia in different scripts?,” he did not know.

    Checking the validity of the mark and allowing nationally or internationally (and court-) registered trademarks to sit in a global database which is managed under a separate contract by IBM is the core service of the TMCH. The Clearinghouse “does not create new rights,” Robinson underlined. It is, so to speak, no fix for the fundamental mismatch between the domain name system which secures universality for one domain name owner only and the trademark system that allows for protection in national or regional areas and under different classes.

    What the Clearinghouse offers is validation and additional services in a special environment which do not come with classical trademark rights, Corstens said. Besides the sunrise service, there is a trademark claims service – a kind of early warning system to a registrant aiming at registering a trademarked name not taken earlier.

    The registrant after acknowledging he has been notified – with a dispute ongoing if IP addresses for this session can be stored by the registrars under strict EU data protection legislation – can still continue with registration, but cannot claim anymore to not be aware of the protection. If the domain is registered, the right owner is notified and can choose what to do, the experts said.

    Trademark owners would have liked to extend this kind of service indefinitely, but ICANN CEO Fadi Chehade just announced that while ICANN will extend the claims service 90 days into the general registration phase, the organisation would let go an extended “Claims 2” provision.

    A possible result, said Torsten Bettinger, domain and trademark law expert and WIPO Uniform Dispute Resolution Procedure (UDRP) panellist: “Violation of the trademark right will then happen after 90 days.” Bettinger expects no further changes in the short run, if not governments will step up for more protection yet again. Changes to trademark services in the future are possible, said Robinson, who also acknowledged that some trademark owners might never be fully satisfied “to that extent that there is a group of people who always want more.”

    Obliged to Pay for Trademark Protection?

    Reaction to the TMCH services from rights owners is not yet clear. How many will record their marks and pay US$145 per domain?

    A discount is offered when 1000 “status points” is reached, which could mean 1000 registrations in a year or earlier if the trademarks are registered for 3 or 5 years (more status points are given for longer registrations, according to the clearinghouse website) [clarified]. Robinson said that the records are obligatory to be eligible for sunrise pre-registration.

    It is still up to interpretation, said Johannes Lenz-Hawliczek, spokesman for dot.berlin, if registries could also acknowledge pre-registration rights for non-TMCH recorded marks. “We think you can provide for that in your registration policy,” he wrote in reply to questions from Intellectual Property Watch.

    On the other hand, the registration policy also could make TMCH validation a pre-condition for sunrise rights, Bettinger argued. “The whole issue is, ICANN left it to the registries, what they will do,” he said.

    A question also addressed down the road will be whether ICANN will allow trademark owners to choose from a variety of Trademark Clearing Services and have competition in the field. ICANN’s management retroactively settled for a hard split between the service provider (Deloitte) and the database provider (IBM), negotiating a separate contract with IBM. With the database of recorded trademarks under direct contract, ICANN has paved the way for opening up competition on the service level, even if it is still very much open if the organisation will go for it.

    Deloitte Partner Corstens points to the need to first evaluate the potential impact on consistency of validation and integrity of data if there is are more validating agencies. Also the currently capped flat-rate pricing would have to be reconsidered, Corstens said. If another provider for example only offered services to an easy-to-validate niche, Deloitte could be compelled to reduce the price in the developed countries, and raise the price for more cost-intensive developing countries, something ICANN tried to avoid in the first place.

    In the short run, all parties seem to be looking for some stability in the ever-moving target of the new gTLD process. Chehade appealed to the community not to challenge the latest proposals he made with regard to the process, including a 30-day notice period before sunrise and the extension of the trademark claim service to abuse names. With the first 30 non-Latin TLDs just through the ICANN’s general evaluation report, the first TLDs could be introduced to the root zone in early summer, according gTLD Director Christine Willet.

    So will a lot of TLDs start their sunrise phase soon? Yes, said Willet, if there are no competing applications and the string is “in contention,” if it does not have any objection and if it was not a recipient of GAC advice, they could go on to pre-delegation testing and contracting with ICANN. These are some ifs to consider.

    What an “if” could look like can be seen in the first list of the “Legal Rights Objection” that is being addressed at the WIPO Arbitration and Mediation Centre where the globally operating pharmaceutical companies Merck KGaA (Germany) and Merck & Co. (US) are trying to get their names as a TLD respectively.

     

    Monika Ermert may be reached at info@ip-watch.ch.

     

    Comments

    1. Trademark Clearinghouse, To Protect Trademarks In New gTLDs, Launches Today | Domain Dealer says:

      [...] their data recorded in the Clearinghouse, Deloitte consultant Jonathan Robinson explained to Intellectual Property Watch, “does not secure them their name in every single registry. Every single registry will have [...]

    2. Domain Industry » Trademark Clearinghouse, To Protect Trademarks In New gTLDs, Launches Today says:

      [...] their information accessible in a Clearinghouse, Deloitte consultant Jonathan Robinson explained to Intellectual Property Watch, “does not secure them their name in each singular registry. Every singular registry will [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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