Industry man Chehade admits strawman “mistake”

ICANN CEO Fadi Chehade today admitted that he badly handled recent discussions about improving trademark protections in the new gTLD program, saying he made a “mistake”.
The remarks came during his speech at a meeting of registries and registrars in Amsterdam this afternoon.
The address, which along with a Q&A lasted an hour, was remarkable for Chehade’s passion and candor, and his apparently conscious decision to portray himself as an industry man.
But he arguably risked alienating the parts of the ICANN community that would certainly not define themselves as part of the “industry”, such as the intellectual property community.
This was no more evident as when he discussed the controversial trademark protection “strawman” proposals.
“We’re moving very fast at ICANN now,” he said. “You almost have no idea how fast we’re moving. We are opening so many new things and fixing so many things, that frankly should have been done for a long time at ICANN, that the speed at which we’re moving is making me, and sometimes my team, make mistakes.”
“I made one big mistake in the last few months,” he said. “I didn’t quite fully understand… this concept of ‘trying to take a second bite at the apple’, when I engaged with the Trademark Clearinghouse discussions.”
That’s a reference to meetings in Brussels and Los Angeles late last year, convened by Chehade at the request of the Intellectual Property Constituency and Business Constituency.
These meetings came up with the strawman proposals, which would create (arguably) new rights protection mechanisms and bolster others in favor of trademark owners.
Registries, registrars and new gTLD applicants complained that the IPC/BC proposals had already been considered multiple times by ICANN and the community and discarded.
Apparently Chehade has now come around to their way of thinking, helped in part by Non-Commercial User Constituency member Maria Farrell’s complaint about the strawman process.
“I frankly didn’t fully understand until I went through the process, and appreciated what people were actually trying to do,” Chehade said. “So, okay, big learning experience for me… I take it, I move on and hopefully I won’t make that mistake again.”
What does this mean for the strawman? Well, it’s not looking great.
While the proposals are still open for public comment, at some point ICANN is going to have to decide which bits it wants to adopt as “implementation” and which are more suited to policy development.
After today’s comments, I’d expect Chehade to be less inclined to push for the former.

Downtime emerges as key barrier to Trademark Clearinghouse changes

The risk of embarrassing technical glitches is now the major stumbling block in discussions about the best way to deploy the forthcoming Trademark Clearinghouse for new gTLDs.
ICANN is worried about the “reputational implications” of the TMCH going offline if, as proposed by domain name registries, it is in the “critical path” of the live registration process.
The concerns emerged in a letter earlier this week, and were discussed during an ICANN conference call yesterday.
The TMCH is expected to be a big database of trademarks, used to support the Trademark Claims and Sunrise periods that new gTLD registries will have to offer.
The policy behind both rights protection mechanisms is settled (essentially), but the actual technical implementation is still open to question.
While ICANN and its two contractors — IBM and Deloitte — have been quietly working on their favored model for some months, the registries that will support most new gTLDs have their own model.
Neustar, ARI Registry Services, Verisign and Demand Media have proposed a TMCH design that they say would be less costly to registries (and therefore brand owners) as well as having certain security benefits.
The problem with the registry’s plan is that it calls for real-time interactions between registrars, registries and the TMCH during the Trademark Claims phase of new gTLD launches.
This would require the Clearinghouse to operate with 100% up-time, which makes ICANN very nervous. It said in its letter this week:

Though requirements for resiliency to guard against such failures will be in place, the risk and impact of a failure incident in a centralized live query system are significant and have an impact on the reputation and, therefore, the effectiveness of the rights protection mechanisms supported by the Trademark Clearinghouse. Such an event could have reputational implications for the Clearinghouse and the New gTLD Program.

If the Clearinghouse went down, the argument goes, it would prevent domain names being registered in new gTLDs.
This would look very bad for ICANN, which has already experienced a few embarrassing technical problems with the program. How its policies and processes perform with live gTLDs will be scrutinized intensely.
But the registries say they’ve mitigated the problem as much as they can in their centralized model.
“It only puts the Trademark Clearinghouse in the critical path for registration for a limited number of registrations,” Neustar vice president Jeff Neuman said on yesterday’s call.
“In our model if a domain name does not match a trademark in the Clearinghouse then the Clearinghouse never sees it, it doesn’t matter if the Clearinghouse is up or down,” he said.
The negative impact of downtime in this scenario is that registrars would not be able to show would-be registrants Trademark Claims notices. But it would not necessarily enable cybersquatting.
Neuman further argued that the TMCH should be covered by the same kinds of service level agreements and data escrow requirements as contracted gTLD registries, minimizing the risk of downtime.
The second major hurdle to the implementation talks is the relative lack to date of input from brand owners.
The intellectual property community has previously expressed reservations about any TMCH model that would enable data mining by bad actors or opportunistic registrars and registries.
Yes, it’s a data privacy issue. Brand owners are worried that the contents of the Clearinghouse could be used by competitors to find holes in their trademark protection strategies, or by scammers.
While yesterday’s call had more input from the trademark community, the real work will come next Wednesday during a session at ICANN 45 in Toronto.