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Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

On October 12, 2021, the World Intellectual Property Organization (WIPO) held its of the series “Closing the Gender Gap in IP,” titled “Looking at Good Practices.” This part of the series looks to the existing policy changes that, according to the session’s moderator Aurora Diaz-Rato Revuelta, a UN ambassador for Spain, will “trace the path to be followed.” WIPO had a commendably diverse group of panelists. Four speakers from Mexico, Oman, Uganda, and the UK provided their insights and initiatives to close the gender gap in IP.

The first speaker, Anel Valencia Carmona, is the Deputy Director General for Support Services for IMPI, the Mexican Institute of Industrial Property. This organization aims to increase women’s role in innovation and entrepreneurship. Interestingly, when her group attempted to assess the gender gap using patent data, they initially found no way to identify if a man or a woman wrote a patent. The group thus implemented a gender-identifying number which patentees can add to their application if they choose to participate in gathering data on women in IP. Prior to the gender identifier, any applicant without a gender-specific name was considered a man. The that from 2014-2018, men filed 62.5% of patent applications, 31.4% of applications involved both genders or were gender neutral, and women filed 6.2%. The project had two main goals: enhancing women’s visibility in the IP space and providing women the information to help them innovate. The team put on weekly podcasts to spotlight women inventors and held sessions with outside experts to help women with IP processes. In creating network opportunities for women in IP, the hope is that entrepreneurial women will be emerged in IP for years to come.

The second speaker, Thuraya Saud Al-Alawi, is the head of the intellectual property section and innovation and technology transfer center at Sultan Qaboos University in Oman. Ms. Al-Alawi also spoke to the barriers in Oman as women are still in IP in the country. IP was initially not accessible in Oman. The IP office, located in the country’s capital Muscat, required paper applications. The distance to the IP office and the physical requirements only further discouraged people from filing. However, Oman has recently implemented an electronic patent system set to fees by up to 90%. The University has also collaborated with WIPO to set up efforts to incubate women’s ideas and help explain IP policy by setting up a ‘summer school’ program. The hope is to enhance women’s IP knowledge and accessibility to registration to close the gender gap.

The third speaker, Ms. Mubiru Lilian Nantume, is the Founder of Grooming a Successful Woman with Intellectual Mind , a Ugandan NGO to empower women in the community to create a business and utilize IP to commercialize their products. The perception of women’s roles in remote communities is belonging ‘in the kitchen.’ This mindset is a significant barrier to women’s participation in innovation. GSWIM works with women in the community, finding out their interests and passions, then giving them a small amount of capital to help them grow their business ideas. GSWIM equips women with knowledge regarding product development, branding, and IP. The organization further empowers women with business sense by giving them capital and hosting product expos for them to display their work. This grassroots initiative demonstrates how we can collaborate to help all women participate in IP, including those living in remote and metropolitan communities.��

The final speaker, Andrea Brewster, is the lead executive officer of , a volunteer group of UK-based IP professionals. Ms. Brewster emphasizes that inclusivity is crucial, as it will “facilitate and sustain diversity.” Hence, it is essential to have professionals that are willing to grow their networks and practices to involve women. IP Inclusive has several members and hosts joint events across communities. They have a for business leaders to commit to championing diversity and inclusion. IP Inclusive wishes to focus less on the symptoms of gender disparity, like the pay gap and societal perceptions and targets the underlying causes such as lack of inclusivity and insufficient allyship in the profession.

The commonalities between the panelists included mentorship, encouragement, and accessibility in their communities as methods for encouraging women in IP. With WIPO continuing the series in 2022, the hope is to improve the statistics and perhaps see these initiatives implemented on a larger scale.

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Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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The new documentary about the late , (“Roadrunner”), came out on July 16, 2021. Fans of the legendary celebrity chef, author, and travel documentarian rushed to see the film, directed and produced by . The documentary outlines the Bourdain’s life, featuring interviews with those close to him, along with crew members from Bourdain’s famous television series, .

As fans waited in anticipation for the film, Neville confessed to using AI technology to replicate Bourdain’s voice. In press interviews with the and , Neville explained how he went through tens of thousands of hours of video of Bourdain. In the final edit, which stands at one hour and 59 minutes of film time, there are three lines that Bourdain never actually said.

Neville pointed to one of the three lines in an ; Bourdain reading out a quote from an email he wrote to his friend before he died by suicide:

“You were successful … and I am successful … and I’m wondering … are you happy?”

Fans immediately responded with on Twitter. In his interview with the New 91��ɫer, Neville replied, “.”

Roadrunner: A Film About Anthony Bourdain

I watched Roadrunner with the news of the AI voice in mind, thinking that I could easily spot the fake Bourdain voice. I was swept away by his remarkable story. I will reserve my full review of the documentary for another time, but I will say this: during the movie, I could not spot the difference between Bourdain’s authentic voice and the AI-generated voice. However, hearing the one specific line in the ABC News segment after seeing the film, I believe the replication is inaccurate.

Legal Issues with Deepfake Voices

The controversy surrounding Bourdain’s AI-generated voice erupted amidst heavy discussions about ethics and law on the matter. My fellow IPilogue Writer , recently discussed ; but given the American context for the film and its subject, this post will look south of the border and internationally for a legal response to the non-consensual recreation of Bourdain’s voice.

As deepfakes and AI technology develop, the United States continues to expand their laws to counteract potential human rights and privacy violations. In 2019, was the first state to criminalize the use of deepfakes to influence an election. That same year, criminalized deepfake pornography. In California, it is illegal to create a deepfake of “.” None of these laws apply to Roadrunner.

In 2019, the World Intellectual Property Organization (“WIPO”) published the “.” The Draft acknowledges the issues and data collected on deepfakes thus far, yet provides no solutions. WIPO, in another , states: “The more profound issues of personal identity, the right to privacy, the right of publicity, and the ability to control the use of one’s image for any purpose appear more appropriately to be human rights issues, rather than purely or even primarily copyright issues.” The only solution that WIPO offers is that in situations such as the deepfakes in Roadrunner, the copyright may belong to the actor or the person who created the deepfake.

The Future of Deepfake Voices

In short, research seems to suggest that Neville had the right to recreate Bourdain’s voice without consent. In , the Court ruled that the usage of recognizable and widely known voices is not always a violation of the law. Additionally, in , the Court ruled that although song lyrics are protected under copyright, the voice singing those lyrics are not. These precedents suggest no issue with deepfaking another person’s identity. However, I believe society and the law must adapt to the evolution of technology, as these issues are more significant than copyright violations. As WIPO stated, reproducing another person’s identity without their permission is a human rights issue.

Regardless, the late Anthony Bourdain was a fantastic human that graced prime-time television watchers with his charm, knowledge, and extravagant mind. If you have the chance, I suggest you see Roadrunner. And who knows, maybe you can spot the two other deepfake lines. ��

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Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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On July 7, 2021, I attended the World Intellectual Property Organization’s (WIPO) second session of their three-part series, “Closing the Gender Gap in IP” titled “Exploring Multi-Stakeholder Initiatives”. The series aims to encourage greater participation by women in the innovation ecosystem. In 2020, women filed . While this number marks an increase in PCT patent filings by women , the percentage rose only from over fifteen years despite of research in the life sciences while in university positions. WIPO recognizes that the gender gap is multi-faceted, stemming from intertwining economic, educational, and informational barriers.

Sarah Callegari, WIPO’s Gender and Diversity Specialist, began the event by outlining the current data on the gender gap in IP. Callegari explained that while we have gender-stratified information on PCT patent filings, the same cannot be said for trademarks or other forms of IP. Missing data is attributed to a lack of transparency, which gender-sensitive technology can help to resolve. The worldwide gender-name dictionary generated the current pattern by disaggregating inventors’ names by gender. Callegari recommends that other IP offices utilize this dictionary to obtain further gender-stratified data in trademarks and other IP filings. WIPO estimates that if the gender disparity in IP is left alone, gender parity in patent filings will not be achieved for another 40 years.

On a similar note, gender-sensitive technology can also construct barriers for women. , CEO and founder of Women at the Table, is a coalition builder. She is currently heading the A+ Alliance for Inclusive Algorithms. Unconscious bias perpetuates gender disparity in technology and innovation spaces. These biases spill over into the artificial intelligence (AI) and algorithm space. Callegari recommended unconscious bias sensitivity training. However, unconscious bias invades algorithms uncontrollably. In 2018, was found to from all-women colleges and resumes with the word “women’s” in them when vetting for ideal candidates. In effect, Amazon’s recruitment system was revealing and reinforcing gender disparity in technical fields. Kraft-Buchman suggested that partnerships between women and tech creators are essential in controlling gender bias in data sets. Tech companies need to recruit women, especially for designing AI algorithms, even if they are not tech experts, to show companies how to train algorithms to remove implicit biases and promote women’s presence in the fields of IP and technology.

was the final speaker at the event. Fechner is a partner at Covington and Burling LLP and the Executive Director of the Invent Together coalition. Multistakeholder initiatives are key because they provide opportunities for women to invent and have their input valued and included. Studies have demonstrated that . The environment in which an individual grows up, therefore, plays a significant role in promoting innovation. Fechner suggests that the idea of inventing together is critical in expanding the innovation ecosystem to include more women. She highlights universities as key partners in promoting the initiative. However, an ongoing problem is that universities are limited in patenting activity. Universities do not value patenting as much as publication when granting tenure positions to professors. Thus, women academics are disincentivized to patent if they plan to further their academic career through tenure. While it may be simple to ask universities to promote women’s presence in the innovation space, systemic barriers within academia would still discourage women from focusing on their IP. These large-scale problems require large-scale solutions, such as legislative change. The has been proposed to allow the U.S. Patent and Trademark Office to collect demographic data to precisely measure the and to incorporate the data into future national strategies dedicated to closing the gender gap in IP.

WIPO’s event underscores the gaps not only among genders in IP, but in our understanding of the extent to which gender disparities pervade IP and technology. Turning to multi-stakeholder initiatives means building coalitions to encourage women’s participation in innovation and remove the implicit biases that sustain the gender gap. As WIPO’s Deputy-Director General Lisa Jorgenson stated during the event, we are “missing out on a vast capital of ingenuity and creativity” if we maintain the gender gap at its current rate.

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On April 26, 2021, the theme of World IP Day 2021 is “”. Since I founded the IP Innovation Clinic in 2010, the Clinic has helped countless innovators, entrepreneurs, and small businesses to do exactly that. Our students have provided basic legal information to clients who otherwise would not have any access to it. To date, the Clinic has subsidized over $2,000,000CDN of legal fees that would otherwise have been paid by those without access to resources. This past year, the Clinic has expanded its impact through the recently launched , a free legal chatbot which uses a vast database of credible IP information to answer users’ initial IP questions and guide them to the type of legal help they need. This is only the beginning of the ChatBot’s story.

In a critical time of Covid-19 isolation, I aim to ensure that the IP Innovation ChatBot’s content is accessible and attuned to the unique realities of underrepresented communities in Canada’s intellectual property (IP) innovation ecosystem; namely, women and indigenous peoples. Having assisted clients in these underrepresented groups in the IP Innovation Clinic, and through my own research and writing in this area, I have seen first-hand the distinct struggles these groups confront in the traditional IP innovation ecosystem and the distinct challenges they face to bring their innovations to society; from being silenced in their ideation phase to lacking adequate resources and know-how to develop IP strategies attuned to their unique needs and perspectives.

This AI-powered initiative has been launched thanks to the Canadian government’s , and supports its mandate to increase IP awareness and education by making IP information more accessible. These learnings can easily be applied to other areas of the law.

The ChatBot has been realized due to visionary IP Innovation Clinic champions backing our work, Innovation 91��ɫ at 91��ɫ, Ontario Centre of Innovation (OCI) at the very outset and Bergeron Entrepreneurs Science and Technology (BEST) Program at Lassonde School of Engineering and Norton Rose Fulbright (NRF) Canada LLP. Indeed, the technical and legal expertise of Partner, Maya Medeiros, and Al Hounsell at NRF, and our Osgoode JD team of students led by Ryan Wong, class of 2021. It is also an honour to work closely with other leaders in the federal government such as the Konstantinos Georgaras, CEO (Interim) at the Canadian Intellectual Property Office (CIPO) and Jennifer Miller, Erin Campbell and their teams at Innovation, Science and Economic Development (ISED), who understand and work hard to overcome the challenges Canadian innovators face.

I previously uncovered the various challenges that underrepresented communities face in the IP innovation system and how grassroots initiatives, such as IP legal clinics, can assist in and in more recent work to use the power of artificial intelligence (AI) to build an IP Innovation ChatBot to make IP law more accessible. Going forward, I plan to expand on this foundational and empirical work to build the IP Innovation Clinic and the ChatBot to make the IP innovation ecosystem more accessible.

Ultimately, in an era of increasing technological disruption and lingering societal inequality and pandemic isolation, I hope to influence future legal education and make our justice system accessible to all Canadians.

Indeed, AI applications, including legal chatbots, use machine learning to make the law more understandable, manageable, useful, accessible, predictable, and efficient. Legal chatbots increase access to justice through their wider reach and lower costs. Many underrepresented communities receive either inadequate or no legal help at all. Technology currently cannot provide complex legal advice, but AI-powered online legal services can cost-effectively deliver accessible, basic legal help. Some, like our IP Innovation ChatBot, do so for free. Chatbots can thus democratize access to basic legal services for the underserved, and therefore deserve greater study and adoption.

Since its January 29, 2021 launch, the IP Innovation ChatBot has been a magnet for public use. Several members of the legal community have already inquired to learn how to emulate it. With the information from these analyses, I plan to design and build an enhanced, interactive, dynamic, and accessible portal powered by next-generation artificial intelligence operating on big data curated by our pioneering IP Innovation ChatBot.

The ChatBot will remain a free, sophisticated, and smart online tool, driven by AI and designed to cater to underrepresented and disenfranchised innovators. It will soon house key IP resources and information, leading updates, and links to Canadian and international government IP resources. The ChatBot’s scaled-up national platform will analyse its amassed archive of data and identify common IP knowledge translation problems to devise and anticipate solutions. Adapted for the COVID-19 era and beyond, the ChatBot will support the next generation of lawyers, educate and stimulate innovation from underrepresented communities, provide start-up entrepreneurs with access to IP resources, and be the public’s go-to tool for independent and impartial IP knowledge.

Prof Pina D’Agostino is Associate Professor at Osgoode Hall Law School and Founder and Director of IP Osgoode, the IPilogue, the IP Innovation Clinic, and officially since January 2021 the recently launched IP Innovation Clinic ChatBot.

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The 2014 budget, , is an omnibus bill that includes changes to several pieces of legislation, including the Trade-Marks Act. While some of the proposed changes are relatively insignificant issues of terminology, others have the potential to alter fundamental aspects of Canadian Trade-mark law.

According to the , the changes are intended to make the Act consistent with treaty obligations and will adopt the .��Changes to terminology include an end to the hyphenated “trade-mark” and changing “wares” to “goods”. Simplified registration requirements will also reduce the term of registration from 15 to 10 years.�� The new definition of a trade-mark will include a sign or combination of signs including; 3D shapes, holograms, moving images, mode of packaging goods, sound, scent, taste, texture, and position of sign. The new Act will also remove distinguishing guises and introduces utilitarian function as a limit to registrability. In addition, the Act will permit divisional applications.

The change causing the most consternation is the apparent move from a use-based system to one that is established merely on registration. In the current system, one can apply to register a proposed mark not yet in use. However, if approved, the proposed mark is not actually registered until the owner files a declaration of use. As recently as the decision, the Supreme Court has��stated that:

Registration itself does not confer priority of title to a trade-mark. At common law, it was the use of a trade-mark that conferred exclusive right to the trade-mark. While the Trade-Marks Act provides additional rights to a trade-mark holder than were available at common law, registration is only available once the right to the trade-mark has been established by use.

Under the amended legislation, this would no longer be true. Applicants will be able to gain registration for proposed marks without any proof of use of that mark. This departure from fundamental statements of law is likely to result in some tumultuous case law in the coming years.

The shift away from use will necessitate new statements on modes of analysis. For instance, tests for confusion rely on the use of confusing marks or the potential for confusion if the mark is used in any manner open to it under the registration, as the court held in Depreciation of goodwill also has an element of use. How can one depreciate the goodwill in a mark if the owner has not established any goodwill or consumer associations with the mark through use in the marketplace? Theoretically, an owner may be able to argue that even absent their own use, use of the mark by another could depreciate the goodwill and value in the mark. For example, if the junior user had an inferior or hazardous product or created a poor reputation in the marketplace. The senior rights holder may be able to argue that they will have to overcome this depreciation if they actually enter the marketplace. However, it is still difficult to conceive of how courts will protect marks that are unused.

Some fear that the changes will result in an increase in “trade-mark trolls”, entities willing to pay the fees and go through the application process to then sit on marks, which will congest the register and result in costly litigation for individuals who may wish to actually use the marks. Yet, the marks will still be vulnerable to expungement proceedings under of the Act three years after the date of registration, which will provide a check on rampant registration. At that point, interested third parties will still be able to make a request that the registrar demand proof of use. If the registered owner does not produce evidence of use, then the registrar may expunge the mark. It would then be open to the interested party to apply for registration. However, nothing would prevent the initial rights holder from simply re-applying for the mark and sitting on it for another three years.

Although the bill represents an attempt to simplify the registration process, its likely effect will be an increase in litigation. ��Without use to act as a guide, courts will have to navigate new tests and precedents as rights holders engage in disputes to clarify their rights under the changed legislation.��For now it is��, but if enacted as is, Bill C-31 is sure to bring some interesting years to trade-mark law.

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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Movies – A Global Passion

This year, the World IP Day theme is: Movies – A Global Passion.

As WIPO Director General, Francis Gurry stated at the U.S. Copyright Office's “early” celebration of World IP Day on April 23, 2014, “movies really are collections of intellectual property.” Gurry also said, “intellectual property ensures we have a global production of movies that rewards all of those who are involved in the production of movies.”

IP is of course essential to the film business, from the inception of a film throughout the process, including the film hitting the screen. For more information, see��

What Role for You on World IP Day?

Organizations around the world are seizing the opportunity to educate others about IP and the people and process involved in creating IP. ��You too could join in and host a film festival, organize a concert, or exhibit inventions of local inventors. WIPO makes several of activities you can do.�� These activities include:

• Mounting a public exhibition displaying how consumers benefit from IP
• Organizing a workshop to educate specific users such as artists, musicians and inventors about how IP rights benefit them
• Promoting IP through social media
• Running a photo contest to manifest creativity and the working of copyright in practice
• Creating and distributing World IP Day publicity materials such as posters, brochures, etc., for specific audiences

WIPO can help if you are planning a public outreach campaign. Its site suggests that you establish your campaign with specific objectives, you identify the target audience, research the best way of getting the word out to your audience and develop a plan to get that word out. For more information, see��.

Spreading the IP Word

A celebration of World IP Day could be as simple as discussing downloading music with your children around the dinner table. Or sharing with a colleague a URL to an article about legally using trade-marks. Or posting a message on your Facebook page about others obtaining permission to use your photos. Whether we create or use IP, it is easy to see how IP is an integral part of our daily lives. And it seems that IP has grown so quickly to encompass even more of our activities.

One of my favourite quotes about understanding copyright law and “spreading the copyright message” comes from U.S. Register for Copyright, Maria Pallante, where she states that copyright is a life skill:

It’s one of those life skills now, right? When you graduate from high school or college, you should know how to read a map, you should know how to use GPS, you should know a little bit about copyright. If you are somebody who is going to be in a field where you will encounter copyrighted materials all the time, you should know more. If you’re going to be an artist or musician and you’re getting a red-hot degree in the performing arts, you should know a lot. And I don’t think that’s quite the case - I don’t think it’s been built into the curricula.

Do you know a little bit about IP or more? And what can you do today to help your friends, families and colleagues understand how IP affects us all?

Lesley is a lawyer, author, educator, and Osgoode����(’85). Her book,��, was recently published by Wiley. You can read more of Lesley’s posts at��.��

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The Guide’s primary author is Canadian . In the Guide’s acknowledgments, Pantalony recognized the instrumental help of fellow Canadian art IP expert . Art and law commenters the new guide, but that it fails to address what museums can do when faced with copyright law shortcomings born from the in counterfeit art facilitated by new technologies. The Guide openly states that it “does not argue for strong or weak IP protection” but rather focuses on how museums can manage IP while balancing their societal mandates to be centres of learning and intellectual curiosity.

Analysis: Guide Review

This 90-page document is a must read for anyone in the museum, art or cultural industries. It’s an accessible, straightforward read. Given the variability in copyright and intellectual property between countries, it acts to whet the appetite of anyone looking for a general guide to the issues of art and culture preservation within a legal context.

Moreover, the document flows brilliantly. The author takes the reader through introductory definition chapters; for example, how copyright and trade-marks are defined in a museum context. The author then goes into heavier issues such as best practices for a museum IP audit. It also covers digital rights management solutions and notes on social media and museums. It includes case studies of successful museum IP management models around the world. Finally, it lists out important commercial considerations such as distribution, licensing and co-branding with non-museum entities.

In regards to the Guide’s attempt to take a neutral position vis-à-vis the laws themselves, there is certainly no such thing as neutrality, especially when it comes to museum art and ownership. One need look no further than the or the to know that even where the law is clear, politics pervades. Additionally, WIPO in its entirety has for its western cultural and legal bias.

Another controversial issues is that assertive museum IP policies – aptly described in Canadian Heritage Information Network’s (CHIN’s) as the demise of the “” – can have a on museums as educative experiences for consumers.��Growing focus on IP laws by museums increases the tension between museums and the consumers of the content; copyright versus education is one of the most common debates in intellectual property law. One of the most obvious examples of this, one that touches all of us, is the way museums choose to restrict visitor photography. Some museums believe that photos violate intellectual property, while some and ��are advocating for more open photo policies.

Even with these tectonic issues underlying museum IP and WIPO, the Guide does do a fairly good job of being fair. It attempts to stand back from the fray and be as politically agnostic in its recommendations as possible. And it succeeds.

On a final personal note, it’s nice to see the Canadian authors and those that influenced the document comfortably promote our domestic museum management practices on the world stage. CHIN's Community Memories initiative for smaller Canadian museums and community centre archives is profiled. The Guide also outlines CHIN’s North America-wide studies of museum IP and management practices. And finally, the Guide profiles the Department of Heritage’s launch of the , an online museum of internet-based exhibitions.

So even amidst mild criticisms of the Guide’s neutrality in regards to the current IP laws, it’s hard not to be proud of this document, its authors, and the progressive work that Canada has done to support museums and their IP management.

Denise Brunsdon is an IPilogue Editor, JD/MBA Candidate at Western University, and researcher for GRAND (Graphics, Research and New Media) Centre.

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Background

This LRO by the Objector was one of 14 objections that have so far been decided by , all of which have been rejected. For further coverage of these 14 decisions, and the framework that WIPO and the��Internet Corporation for Assigned Names and Numbers () works within, see past IPilogue coverage .

The Parties

Afilias Limited (the��) is a domain holding and development��organization based in Ireland that owns and manages many other domains, including .info, .mobi and .org. The Panel decision shows that��their intent in applying for the .mls domain is to develop it into a worldwide domain for the listing of real estate properties.

The Canadian Real Estate Association of Ottawa (the��) is a Canadian not-for-profit trade organization��involved��in the management of real estate professionals in Canada. The Objector also possesses a certification mark for MLS, which its members use to brand real estate advertisements.

The Meaning of MLS

The letters "MLS" are����as an��abbreviation��for Multiple Listing Service; services used for displaying residential and commercial real estate properties for sale or lease. The Panel discussed the nature of the term, and its usage across English and non-English speaking countries both as a generic term for a collection of real estate listings, but also its other meanings.

The Decision

The����included two findings: first, a determination of whether the Objector has a legal right adequate for an LRO; and second, whether that legal right was��sufficient��to block the registration of .mls by the Applicant.

The adequacy of the Objector's legal right was brought up by the Applicant, who challenged the Objector's certification mark in "MLS" as insufficient for an LRO under the . The Panel found that under interpretation of the Guide Book, a��certification��mark is a sufficient right with which to challenge a gTLD registration. The Panel relied upon the fact that such marks, in addition to unregistered��trade-marks��are all sufficient for domain name��objections��under the��. The Panel also found there is nothing indicating the intention of ICANN to exclude these types of rights as insufficient for providing standing to launch an LRO.

Once the Panel established the Objector had��standing��to challenge the application, they considered the Objection. There were three key findings that caused the Panel to reject the LRO.

The Panel first discussed what level of infringement is��required��for a��successful��objection. Here they adopted the approach used in��, in which the Panel interpreted the Guide Book as��requiring��a high level of infringement to the point of "untoward impairment" of the Objector's rights, or something "intolerable" in allowing the gTLD registration. Many have seen this as an exceeding high level of��infringement, making it very difficult to raise a successful Objection.

Once this objectionable level of��infringement��was defined, the Panel considered if the infringement by the Applicant would rise to this level. Of key finding here was that the term "MLS" is widely considered a generic term, which would not qualify for trade-mark registration in many jurisdictions. Even in Canada, the Objector does not hold a trade-mark for the term, but a certification mark. The Panel also��found��that the Objector holds those rights only in Canada, and nowhere internationally where the term is used as a general term and not a trade-mark. While finding this, the Panel did acknowledge that the Objector does hold title to "MLS" in Canada, and that��impairment��of that mark��would��result from issuing the .mls domain to the Applicant. The Panel rejected, however, the objection as the��potential��infringement��failed to rise to the level adopted from��Right at Home.��

Commentary

Taken in context with the other 14 rejected LROs, this decision further bolsters future gTLD applicants in two ways. It first endorses the high bar for permissible infringement set out by��Right at Home, and second it��highlights��the difficulties any objector will have establishing an objection to the registration of a generic term when they possess a legal right in only limited jurisdictions. ��There is some good news for future Objectors��however, as the decision acknowledges both Certification Marks and Unregistered Marks as valid bases to propose an LROs. Given the exceedingly high allowance of ��permissible infringement, however,�� it is difficult to see what will be required for a successful LRO. This paints an overall ominous future for other potential Objectors.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at The University of British Columbia.

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Background

The World Intellectual Property Organization () is a specialized UN agency focused on intellectual property. It operates an alternative dispute resolution () process for a variety of intellectual property disputes that may arise internationally, including disputes related to patents, copyrights, and trade-marks. WIPO also handles disputes related to the for the Internet Corporation for Assigned Names and Numbers (). ICANN is an American non-profit that manages IP addressing and domain name registration for the internet, essentially organizing every device and website that can be connected to over the internet. In 2011, ICANN decided to open up registration of new gTLDs. (More coverage by the IPilogue on this topic can be found , , , and .)

The Decisions So Far

For a successful LRO, the objector must prove on a balance of probabilities that the applied-for gTLD infringes an established legal right. (See the��, Module 3.5.2.) In doing so, there are two steps that need to be completed - first the objector must establish a legal right, and second the objector must demonstrate the proposed gTLD will infringe that right. Given the nature of domain names, trade-marks have been the only established rights currently used to challenge a proposed gTLD. The objections so far have been rejected for��either��failing to establish an existing right, or failing to demonstrate infringement of an established right.

Failing to Establish a Legal Right

These decisions involve a number of firms that seem to have applied for trade-mark registration for the purpose of objecting to gTLD applications, as in the case of�� - an entity that objected to an application by a wholly-owned subsidiary of Google to register ".home". ,

“The attempted acquisition of trademark rights appears to have been undertaken to create a basis for filing the objection, or defending an application. There appears to have been no attempt to acquire rights in or use any marks until after the New gTLD Program had been announced.”

The US Postal Service (USPS) had a����when of .mail, as the USPS owns a trade-mark for "U.S. Mail", but not the word "mail". Some����these early decisions ruling there was no established right as bringing clarity and predictability to the process, while strongly rejecting any��perceived��abuses of the objection system.

Failing to Establish Infringement

The more controversial rejected objections have been those where the objector had a clearly established trade-mark, but failed to show the proposed gTLD would infringe their right. A legal analyst at Bloomberg���� and����as setting two precedents that will make it difficult to launch a successful trade-mark based LRO. the panelist in��Right at Home��sets an exceedingly high burden for demonstrating infringement that would justify an objection. It is also argued that��Express LLC reinforces that the registration of a mark for a common English word is��insufficient��to block a proposed gTLD. It is possible that these decisions and their subsequent endorsement make it almost impossible for an objector with a valid established right to successfully challenge a proposed gTLD.

Going Forward

If these legal commentators are correct, it will be all but impossible for mark holders to successfully challenge gTLD registrations. As a result, any further objections will have to be filed through the pre-existing Uniform Domain Name Dispute Resolution Policy on a domain-by-domain basis, where panelists will decide if a specific URL infringes a trade-mark. Given the good track record of success by many rights holders using this process, the same commentators����this will be the true mechanism for objectors to protect their intellectual property. Even with the complete shut-out of objectors, it is still too early to completely dismiss a successful LRO, and perhaps one of the outstanding 50 will set a precedent for what a��successful��LRO looks like.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at Thompson Rivers University.

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There were significant international tensions at play in this negotiation. With of print materials currently in an accessible format for visually impaired persons (VIPs) and the print disabled, this treaty represents a significant educational and social benefit. In the international sphere, the ability to access these materials may represent a human rights issue; Article 13, the right to education, and Article 15(1)(a), the right of everyone to take part in cultural life, of the (ICESCR) are both important considerations for treaty-makers and nations.�� On the other hand, the rights of the copyright holder are supported by several international agreements; Article 9(2) of thedictates the “three-step test”, which limits the ability of nation states to provide exceptions to copyright.

The Canadian provides exceptions for those with “perpetual disabilities”, where�� “perpetual disability” (with respect to print works) is defined as “a disability that prevents or inhibits a person from reading a literary… work in its original format.” Section 32 states that reproduction of a work in an alternate format for persons with a perpetual disability is not a circumvention of copyright. Canada, however, is one of fewer than 60 countries that currently limit copyright to promote access for VIPs and the print disabled. Even in countries where limitations are allowed, these exceptions often do not cover the import and export of a converted work, even between countries with similar exceptions. This leads to costly negotiations between governments and rights-holders, which further limits access. ��This treaty may not only provide an international standard for limitations, but also represent an end to the complicated licensing process that is currently in place.

A significant issue in the meeting was the exception allowing for the circumvention of technological protection measures (TPMs) for VIPs and the print disabled. TPMs allow copyright holders to control how their work is accessed and used in an online environment. ��Specialized technologies can prevent copying, printing, or making alterations. TPMs can also prevent the use of certain applications - for example, text-to-speech software - a limitation which is clearly devastating for people with print disabilities. Section 41.16 of the states that the circumvention of TPMs are not prohibited for the sole purpose of making the work accessible to persons with perpetual disabilities. Article 11 of the , however, protects TPMs internationally. This provision ensures that contracting nation states provide adequate protection and legal remedies against the circumvention of technological measures for copyrighted works.

Midway through negotiations, a proposal to provide exceptions for the visually impaired and print disabled read as follows:

“A Member State/Contracting Party shall ensure effective and necessary measures in accordance with that Member State/Contracting Party’s national copyright law regarding technological protection measures such that beneficiary persons are not prevented from enjoying limitations and exceptions under this instrument/Treaty.”

This proposal reached a near-consensus in its initial stages.�� The United States, however, had proposed a limiting clause on this exception which would allow VIPs and the print disabled the benefit of this exception only where “appropriate and effective protection measures have not been taken.” This response was expected, as even before negotiations had began the United States and the European Commission appeared to be .

Late on June 25^th, 2013, a consensus was reached on the treaty provisions. A was issued and all the articles were adopted. Both those lobbying for and against broad exceptions appear to .

A wide-ranging international treaty now appears to be a certainty; however, actual implementation by nation states is still at issue. Supporters must now fight to ensure that this treaty is ratified and enforced. It seems that while these negotiations concluded on June 28^th, conversations regarding copyright exceptions and increasing access for the visually impaired and print disabled are likely far from over.

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