[council] Discussion kick-off on BC/IPC strawman proposal as blogged by Fadi

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Dear fellow councillors,

frankly, I do not like most of what I am seeing regarding the latest 
BC/IPC demands. The new proposals re-open and significantly expand upon 
carefully developed and agreed upon compromise positions beyond their 
original scope and intent at the last minute and more significantly, 
outside the established policy making mechanisms. Such a precedent will 
only serve to open the floodgates for any community or stakeholder group 
to reopen any nominally closed and agreed process to push their agenda 
just a little beyond what the community had already agreed upon.
We should consider the ramifications of the CEO getting involved in what 
easily could be viewed as policy making decisions and that to me should 
be the focus of the council now as we look to provide feedback to Fadi 
about his strawman and what implications it would have on future policy 
development.
While I welcome the more hands-on and practical approach of our new CEO, 
it would be helpful to have more detailed information on how ICANN staff 
and Fadi arrived at the conclusion that most of these positions are 
implementation issues rather than policy. However, even if it were 
implementation rather than policy, this does not mean these suggestions 
should be implemented without proper process and especially if the 
majority of the community is in disagreement. Just because you can does 
not mean you should.
These proposals need to be vetted by the community, namely the GNSO 
Council. To quote Steve Crocker from the Toronto public forum:
"Three more items. The rights protection in new gTLDs. The Intellectual 
Property Constituency and business constituency reached consensus on 
further mechanisms for new gTLD rights protection and agreed to 
socialize these to the rest of the GNSO AND THE BOARD LOOKS FORWARD TO 
receiving input on these suggestions FROM the GNSO. So that is our plan, 
so to speak, WHICH IS WE WILL CONTINUE TO LISTEN AND WAIT FOR THIS TO 
COME UP"
From what I have seen, the strawman proposal was developed by the IPC 
and the BC together with ICANN staff. Others made themselves available 
to discuss them, but it does not seem accuracte to say they actually 
developed the proposals. It is now our job as the GNSO council to weigh 
in and make our opinions on these proposals clear. To kick this process 
off, I will make the first move:
-Blocking (aka "LPR"): While not directly included in the straw man, I 
understand this is still on the table. The paper on this proposal is 
well written and does an excellent job of totally blocking out the 
actual harms the implementation of this proposal would do. Its arguments 
only take into account other trademark holders that may apply in the 
sunrise period whose rights would naturally not be affected. No mention 
however is made of other legitimate potential registrants whose rights 
to a non-infringing registration after the sunrise phase would be 
completely eliminated. These include people with the same name as the 
mark, trademark holders not participating in the sunrise for whatever 
reason (newer trademark than permitted, lack of prior knowledge, etc) or 
companies without eligible trademarks. Frankly, only TM-holders that 
would otherwise participate in the Sunrise would think this is a good 
idea. There will likely be a lot of money to be made by implementing 
this demand but this is not good policy.
-Claims 2: The extension of Trademark Claims is a service except for a 
very small part of the community for which there is no need and that 
will only serve to scare away otherwise legally eligible registrants, 
slow the registration process and drive up costs of registrations. As 
many of the new TLDs will initially have a very small market such 
restrictions will decrease the customer base even further.
Furthermore, the description of the proposal as  "voluntary" seems to 
fundamentally misrepresent the nature of the proposal, since it will be 
anything but voluntary for registrants, registries and registrars. The 
only parties for whom the optional nature of this proposal applies are 
its sole beneficiaries.
This proposal also does not take into account in any way how the 
technical systems of each individual registrar need to be adapted to set 
this system up. Having to implement a 60 day temporary system that will 
have light use (Regular claims) is simpler than a system that will have 
many more commands running through it and many more TLDs (as it will 
last for 1 year).
Finally, the idea that registrars and registries will have to build 
these systems at their own cost and risk with no guarantee of 
compensation for their use as Rights Holders could opt out is not 
appropriate as it creates a definite financial burden for registries and 
registrars to alleviate a potential burden resulting from the presumed 
need for protection against infringing registrations.
-Scope: This proposal is effectively a multiplier of the above issues, 
i.e. every problem resulting from the above proposals will be multiplied 
by up to 50 strings per TMCH entry. I also have come to understand that 
UDRP decisions are not always flawless or beyond reproach as many have 
been successfully overturned in court, so basing a blocking mechanisms 
on UDRP decisions seems like an overreach (again).
-Notice: Of all the new demands put on the table by the IPC and the BC, 
the only one that I can support without issues is the Sunrise Notice 
Requirement. This is pure implementation, and makes sense both from a 
marketing as well as a RPM standpoint. The rest are mostly overreach to 
benefit a single interest group to the detriment of all others.
Of course I understand the desire of users of the TMCH to protect their 
rights against infringements but the proposed measures must end exactly 
at the point where they begin to infringe upon the legitimate rights 
rights of others. Of course, there is nothing to prevent any registry 
from implementing any of these demands voluntarily, but as policy, I 
heartily disagree with both the process and format in which these 
proposals have been suggested and discussed as well - to a large degree 
- their content.
Like I indicated above, this is a topic that needs to be discussed on 
our level and given the limited time on our schedules during the monthly 
council calls and the urgency of the matter, I would like to kick off 
the discussion with this paper.
Best regards,

Volker Greimann