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

Thanks Mason,


Your commitment to working on solutions and through them to improving
reality and perceptions is appreciated, by me at least!


I do believe in your point, we as a Council need to put our own house (or
should that be houses?) in as ordered a state as possible.

To me, this means working effectively with all on the Council and also
outwardly towards and within our respective SGs.








From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Mason Cole
Sent: 30 November 2012 17:32
To: Maria Farrell
Cc: Volker Greimann; council@xxxxxxxxxxxxxx
Subject: Re: [council] Discussion kick-off on BC/IPC strawman proposal as
blogged by Fadi


I agree with Volker's concerns too an find them to be well stated.


Jeff's email regarding policy vs. implementation is on target as well.
Unfortunately, the community has looked for and found ways to outright
circumvent the processes we all agreed to for establishing policy when those
processes don't suit them.  Doing so robs us all of predictability, which I
know is of little concern to some, but is very important to most.  The
sooner we stop playing these games the better.


In Toronto, we heard again accusations that the GNSO is broken, that it
takes too long to develop policy, that confidence is lacking.  Speaking for
myself, I don't believe that's correct, but the perception remains.  My
belief is we have a duty to the council and to the community to address that
head on and improve our performance.  We can, for example, improve the PDP
timeline, not propose policy that has little chance to come into effect and
thus waste our and staff's time, be respectful of the workload the council
can actually carry, and set priorities.  Councilors and others have
discussed these issues before and we have yet to see a good result, but,
blame the optimist in me, we're all smart people and if we build some trust
and work together, we can take people by surprise and make some changes for
the better.  


Until we do, I'm concerned we will continue to see process freelancing like
this, which may be a short-term gain for some but will continue to erode the
GNSO model -- that would indeed be a disappointing outcome for the ICANN
model we all seem to support.



On Nov 29, 2012, at 11:27 AM, Maria Farrell wrote:


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>

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

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

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

>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
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



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