2019-04-14

News Review | GDPR & ICANN EPDP Phase 2, The Facebook Effect?

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Domain Mondo's weekly internet domain news review (NR 2019-04-14) with analysis and opinion: Features •  1) GDPR & ICANN EPDP Phase 2, The Facebook Effect? 2) ICANN Org & CCWG-IG WSIS Forum 2019 Session re: EPDP, 3) a. ICANN 4.0? ICANN's Broken Model, b. IDN Variant TLDs, c. .AMAZON Redux, d.Read this, 4)a.Trademark FUCT? b. Trademark Basics, c. Jones Day,  d. Legal Fakes & Trademark Squatting, e. Smart Regulation, 5)ICYMI: GDPR & Microsoft, EU Digital Tax, Antitrust & Privacy6) Most Read.

1)  GDPR & ICANN EPDP Phase 2, The Facebook Effect?
From the EPDP Mail List (emphasis and link added):
"On geographic differentiation, and on the subject of GDPR compliance generally, I was pleased to see the CEO of Facebook come out in favor of global, non-differentiated privacy protection. In his widely-read blog, Mark Zuckerberg said:
'... effective privacy and data protection needs a globally harmonized framework. People around the world have called for comprehensive privacy regulation in line with the  European Union’s General Data Protection Regulation, and I agree. I believe it would be good for the internet if more countries adopted regulation such as GDPR as a common framework.'
"I look forward to seeing Margie [Milam][BC EPDP member] and other FB employees join us in support for a globally harmonized application of GDPR as we enter Phase 2"--Milton Mueller, Professor, Georgia Tech (NCSG EPDP member).

2) ICANN EPDP, GDPR & WHOIS--WSIS Forum 2019 Session 11 Apr 2019
WSIS Forum 2019 (graphic)
ICANN Org & CCWG IG briefing presented by CCWG IG Chair Olivier Crepin-Leblond, former EPDP Chair Kurt Pritz (remotely), and GNSO Chair Keith Drazek (remotely). Slides from presentation embed below:

Public comment period closes 17 Apr 2019 23:59 UTC on the EPDP (Phase 1) Final Report's recommendations.

See also briefing note (pdf) on the session prepared by Nigel Hickson.

Postscript from the CCWG IG mail list re: organization of an IGF Workshop:
"... EPDP is a piece of ex post facto internal ICANN-esque housekeeping. The time to have had an IGF session on WHOIS Privacy was about two years ago when we all knew about GDPR, except, apparently, GNSO. As of today, We don't know whether the ICANN Board will adopt EDPR, we don’t know whether the outcome will be compatible with GDPR, even if to goes up to the ECJ. For my part I haven’t the faintest idea what to expect from ‘Phase 2’ of EPDP, so I say no more."--Christopher Wilkinson
"I have concerns about the CCWG IG and ICANN Org proposing an IGF workshop on SSR (or on any subject) without adequate coordination and vetting of the proposal, panelists, subject matter, and messaging. I was happy to have been able to jump in and help with today’s WSIS Forum session on the EPDP, but I think we need to be more deliberate in our planning and decision-making around externally-facing engagements. I am not comfortable with proposing this session without sufficient preparation and agreement, neither of which I’ve seen. We’re probably better off not proposing a session at all, rather than scrambling to fit something in at the 11th hour."--Keith Drazek, GNSO Chair

3) Other ICANN News
graphic "ICANN | Internet Corporation for Assigned Names and Numbers"
a. ICANN 4.0? ICANN's Broken Model
"ICANN is a b[r]oken model, I vote for ICANN 4.0. No ICANN"--J. Scott Evans is a "Trademark Titan and Adobe Rockstar" and past president of INTA, the International Trademark Association.

Editor's note: I agree, "ICANN is a broken model"--
 ICANN's Broken Model

b. Managing IDN Variant TLDs: Letter (pdf) of 08 April 2019 from ICANN GDD Sr. VP Cyrus Namazi to ccNSO Chair Kartina Sataki and GNSO Chair Keith Drazek, excerpt:
"... the ICANN Board approved a set of Recommendations for Managing Internationalized Domain Name (IDN) Variant Top-Level Domains (TLDs) on 14 March 2019 and requested that the ccNSO  and GNSO take these recommendations into account while developing their respective policies to define and manage IDN variant labels for current and future TLDs. The ICANN Board has also requested that the ccNSO and GNSO keep each other informed of their progress in developing the relevant details of their policies and procedures to ensure that a consistent solution, based on these IDN variant TLD recommendations, is developed for IDN variant ccTLDs and gTLDs ..."

c. .AMAZON Redux
08 April 2019 Letter from ICANN Board Chair Cherine Chalaby to Amb. Alexandra Moreira Lopez (pdf) re: new gTLD applications for .AMAZON, excerpt:
"... the 7 April 2019 deadline has now passed, and the ICANN Board has not received either a mutually agreed-upon proposal for a solution or a joint request for an extension of the 7 April 2019 deadline. Therefore, the Board will proceed with next steps, as laid out in the resolution quoted below, which calls on the Amazon corporation to submit by 21 April 2019 a proposal for how it will address the ACTO member states’ concerns regarding the .AMAZON applications ..."
UPDATE: ICANN Letter 15 April 2019 re Proposed Extension of Time to 7 June 2019.

As I said last week:
Editor's note: the idea of having private .BRAND gTLDs was a mistake from the beginning, a corruption of the concept of generic top-level domains (gTLDs) as set forth in RFC 1591 written by Jon Postel, which predates the formation of ICANN and its "Californication" of the internet and global DNS. I'm with the South American countries. ICANN should do the "right thing" for once and end the .BRAND gTLD program, refund the application fees, and "undelegate" all .BRAND gTLDs from the internet "root," while allowing every owner of a distinctive trademark to block use of that mark as a gTLD in the future. [End the ICANN extortion racket -- see .PING testimony.]

dRead this ICANN Org: Working together when we’re not together | blog.google--We were happy to find no difference in the effectiveness, performance ratings, or promotions for individuals and teams whose work requires collaboration with colleagues around the world versus Googlers who spend most of their day to day working with colleagues in the same office. See also Google's Distributed Work Playbooks (pdf).

4) Names, Domains & Trademarks
graphic "Names, Domains & Trademarks" ©2017 DomainMondo.com
a. Trademark FUCT? (domain: fuct.com): U.S. Supreme Court granted certiorari January 4, 2019, and will hear oral arguments April 15, 2019, and decide whether "Section 1052(a)'s prohibition on the federal registration of "immoral" or "scandalous" marks is facially invalid under the Free Speech Clause of the First Amendment." U.S. Supreme Court Case: 18-302 IANCU V. BRUNETTI.

b. Don’t Ignore Trademark Basics--finnegan.com: "... Trademark registrations protect your name, or logo, or in some cases the shape of your product ... A trademark registration can also be a useful tool in takedown procedures on social media, recovering a domain name, and preventing import of counterfeit products ..."

c. ICANN's outside legal counsel, Jones Day (jonesday.com), has been named the strongest law firm brand in the United States for the third year in a row per this year’s Acritas US Law Firm Brand Index, with Skadden (skadden.com) gaining to a close second. All top U.S. law firm brands listed in the Acritas Index use a .COM domain name exclusively as their primary domain.

d. Trademarks & 'Legal Fakes'--how to steal a brand by trademarking it in other jurisdictions--Trademark Squatting
  • Foreign Trademarks, Legal Feuds and Fake News: Supreme v. Supreme Italia--thefashionlaw.com
  • Bird & Bird | The Phenomenon of "Legal Fakes": A Supreme Contradiction? (pdf): "... One of the more common ways in which a brand might be regarded as a "legal fake" is when the "fake" brand obtains a trade mark registration in a market where the original has yet to expand into, or obtain trade mark registrations in. Intellectual property rights are territorial in nature, and registering a trademark in a country typically does not automatically grant one a global monopoly to use that trademark – the protection does not extend beyond the border of the country where it was granted. Many jurisdictions, including Singapore, adopt the first-to-file system, instead of the first-to-use system. This means that, generally speaking, an applicant who registers the trademark first would obtain an earlier, and therefore better, right on the trade mark register ..."

e. Smart regulation for combating illegal content--blog.google"... we support refinement of notice-and-takedown regimes, but we have significant concerns about laws that would mandate proactively monitoring or filtering content, impose overly rigid timelines for content removal, or otherwise impose harsh penalties even on those acting in good faith. These types of laws create a risk that platforms won’t take a balanced approach to content removals, but instead take a “better safe than sorry” approach—blocking content at upload or implementing a “take down first, ask questions later (or never)” approach. We regularly receive overly broad removal requests, and analyses of cease-and-desist and takedown letters have found that many seek to remove potentially legitimate or protected speech ..."

See also:
  • Official EU Agencies Falsely Reported Terrorist Content on more than 550 archive.org URLs--blog.archive.org.

5) ICYMI Internet Domain News 
"... The EDPS investigation will therefore assess which Microsoft products and services are currently being used by the EU institutions, and whether the contractual arrangements concluded between Microsoft and the EU institutions are fully compliant with data protection rules. Regulation 2018/1725 brings the data protection rules applicable to the EU institutions in line with the rules for other organisations and businesses operating in the EU, set out in the General Data Protection Regulation (GDPR). As the data protection supervisory authority for the EU institutions, the EDPS is not only responsible for monitoring their compliance, but also for ensuring public awareness of any possible risks to individual and societal rights and freedoms in relation to the processing of personal data, and for working in close cooperation with national data protection authorities and other relevant national bodies to mitigate these risks. It is in this spirit of cooperation that the EDPS takes note of the Data Protection Impact Assessment Report on diagnostic data in Microsoft Office ProPlus of 5 November 2018, commissioned by the Dutch Ministry of Justice and Security. Any EU institutions using the Microsoft applications investigated in this report are likely to face similar issues to those encountered by national public authorities, including increased risks to the rights and freedoms of individuals ..."
EU Digital Tax: EU competition commissioner Margrethe Vestager: Europe must lead the way with a digital tax if there is insufficient consensus globally.

EU Antitrust: Google and Facebook’s Next Big Fight--the EU regulator nicknamed “Mr. GDPR” wants to go way beyond privacy and into antitrust. "The linking of these two things should worry the tech giants."--bloomberg.com.

Federal Trade Commission (FTC) urged by Senators. Amy Klobuchar (D-Minn.) and Marsha Blackburn (R-Tenn.) to "take action" against Facebook and Google over possible antitrust and data privacy violations.--thehill.com. See also The Privacy Project | nytimes.com.

6) Most Read this past week on DomainMondo.com: 
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