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

[Maria Farrell <maria.farrell@xxxxxxxxx>]

Volker,

Thank you very much. I share many of your concerns, particularly regarding
this 'extra-judicial' process'; its secrecy and its imbalance.

I would very much like to have clarity on what the role of the GNSO
Council, and the GNSO more broadly, should now be.

While I wish to be as constructive as possible regarding the substance of
any new proposals formally presented to the GNSO, I do not wish for the
GNSO to be asked to rubber-stamp the outcomes of a flawed process.

I look forward to learning more about these proposals, including the
publication of - at a minimum - who was involved in drawing them up, and
what process was invoked to ensure transparency, participation and balance.

All the best, Maria

On 28 November 2012 18:24, Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>wrote:

>
> 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
>