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

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Hi Maria,

I just read a very good summary from a potential applicants' perspective:

http://www.circleid.com/posts/20121129_new_gtlds_last_minute_end_arounds_and_fundamental_fairness/

Jon does a really good job pointing out how the current proposals 
contradict previous GNSO, Board and other community decisions and go 
against previously agreed upon compromise positions. I really recommend 
this read for all councillors that may not know the full background of 
the prior discussions on these issues.
Best,

Volker

> 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 
> <mailto: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

--
Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.

Mit freundlichen Grüßen,

Volker A. Greimann
- Rechtsabteilung -

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