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

  • To: Maria Farrell <maria.farrell@xxxxxxxxx>
  • Subject: Re: [council] Discussion kick-off on BC/IPC strawman proposal as blogged by Fadi
  • From: Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>
  • Date: Fri, 30 Nov 2012 10:34:59 +0100
  • Cc: "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>
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Hi Maria,

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


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.




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

    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

    -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 -

Key-Systems GmbH
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