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Re: [council] Proposed Response to the GAC regarding November 28th Letter


I support a letter from council to the GAC communicating our understandings.  I 
agree it should include the timeline with references to the events in the 
timeline where council either elected or was asked to take action.  

I also support pointing out the contradictory information from the GAC.  NOT as 
a way to try to pin them down or embarrass them but to help explain some of the 
confusing circumstances we all find ourselves now in.


On Dec 12, 2012, at 1:06 AM, Jonathan Robinson wrote:

> Berry,
>  
> Thank-you.  That is very helpful. 
>  
> It seems to me that a link to this page may suffice.  If we re-write, we risk 
> creating an inconsistency between the two.
> I suggest that we therefore:
>  
> a.       Check your version and provide any comment or input on it
> b.      Refer to it and provide a link in our / my reply to the GAC.
> 
> Jonathan
>  
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
> Behalf Of Berry Cobb
> Sent: 11 December 2012 16:59
> To: 'Jonathan Robinson'; 'Neuman, Jeff'; council@xxxxxxxxxxxxxx
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th 
> Letter
>  
> As an FYI,
>  
> On the GNSO website, there is a page dedicated to IOC/RCRC DT.  It contains a 
> chronological order of key events/milestones from the DT.  It will probably 
> be a good reference to documenting the past, if not just only include a link 
> to the page.
>  
> http://gnso.icann.org/en/group-activities/red-cross-ioc.htm
>  
> If you happen to see anything that I may have missed, please send me an email 
> off-list, and I will be happy to update the page accordingly.
>  
> Thank you.  B
>  
> Berry Cobb
> Internet Corporation for Assigned Names & Numbers (ICANN)
> 720.839.5735
> mail@xxxxxxxxxxxxx
> @berrycobb
>  
>  
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
> Behalf Of Jonathan Robinson
> Sent: Tuesday, December 11, 2012 09:46
> To: 'Neuman, Jeff'; council@xxxxxxxxxxxxxx
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th 
> Letter
>  
> Thanks Jeff,
>  
> History – Concise summary of key dates and events (picking up from Mason’s 
> previous work).  Any volunteers?
>  
> I do not believe a motion is required.  We seem to be moving towards 
> consensus on the substantial points on list.
> I’d like to work with you on refining the text (since my name will be on it!) 
> but that will be about minor details AOT substance.
>  
> Jonathan
>  
> From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx] 
> Sent: 11 December 2012 15:13
> To: Jonathan Robinson; council@xxxxxxxxxxxxxx
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th 
> Letter
>  
> All,
>  
> I am fine with having the history in an appendix if someone can draft that 
> up.  With respect to the “misunderstanding” language, I am also fine with 
> removing that language as well.
>  
> Jonathan, are we going to need a motion to approve the letter? I don’t 
> believe we do.  But, if we do, then we need to draft it by tomorrow to get it 
> on the agenda, right?
>  
>  
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 
>  
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
> Behalf Of Jonathan Robinson
> Sent: Tuesday, December 11, 2012 6:45 AM
> To: council@xxxxxxxxxxxxxx
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th 
> Letter
>  
> All,
>  
> Good contributions from various Councillors.  Great to see.  Thanks all for 
> getting fully engaged with this important issue.
>  
> My reading is that we now have to resolve a couple of substantial points 
> before fine-tuning the draft.  I believe that the points are as follows:
>  
> 1.       Do we include the history?  If so where?  I think I am in favour but 
> as a factual summary of key points in an appendix / second page.
> The motivation is to put it on record and as background or context for this 
> reply.  I suspect that many (including in the GAC) will read this exchange in 
> isolation and not have a good grasp on the history.
> 2.       Policy v Implementation?  Agree with Thomas that we should state our 
> view politely and clearly but not suggest that we may not understand 
> accurately.  
> Perhaps here an invitation to the GAC to provide their view by contributing 
> it to any future work (working group) that looks into this?
> Here I should note that I suspect that the GAC feels that it is able to 
> participate and contribute, but not necessarily at the WG level in the same 
> way as many of us do.
>  
> Please feel free to support 1 & 2 above or disagree / re-iterate your view.  
> Also, please comment if I have missed any substantial points. 
> Thereafter, I think we should proceed to fine-tuning the draft.
>  
> Jonathan
>  
>  
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
> Behalf Of Thomas Rickert
> Sent: 11 December 2012 09:41
> To: David Cake
> Cc: council@xxxxxxxxxxxxxx
> Subject: Re: [council] Proposed Response to the GAC regarding November 28th 
> Letter
>  
> David and Mason,
> your point regarding the GAC is well understood. I will not try to convince 
> you of my proposal, but let me explain that I made the proposal since I would 
> very much like to hear the GAC's view on this. That does not mean that this 
> view is going to be adopted by us. Also, getting input on the GAC's 
> understanding of the demarkation of policy vs implementation helps us 
> understand the GAC better and maybe respond to that to improve the working 
> relationshipo. 
>  
> Anyway, even if the group wishes not to ask the GAC for its view, please 
> amend the language so it does not say that we might misunderstand something. 
> I think we should not populate the idea that we might be wrong as I truly 
> believe that this is not the case.
>  
> Thomas
>  
>  
>  
> Am 11.12.2012 um 08:27 schrieb David Cake <dave@xxxxxxxxxxxxxxxxx>:
>  
> 
> I admire the very non-confrontational yet clear tone of the letter - I don't 
> think I'd be able to manage that tone on this issue. Thank you Jeff. 
>  
> I'm fine with the descriptions of the specific issue here, clearly setting 
> out that there are numerous specific issues not addressed in the GACs advice 
> etc. 
>  
> Like Mason, I'm not sure we should ask the GAC for its determination of 
> policy vs implementation, for a wide range of reasons. As Mason points out, a 
> decision being 'implementation' isn't necessarily grounds for excluding 
> policy making structures such as the GNSO from decision making. 
>  
> Regards
>  
>             David
>  
>  
>  
> On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote:
>  
> 
> All,
>  
> In the past few days, a few of us at Neustar have been thinking about a 
> proposed response to the November 28th letter from the GAC to the GNSO on the 
> determination to initiate a PDP on the protection of names of international 
> organizations.  Given that we should be drafting a response, we took a stab 
> at coming up with a first draft to get your input on.  
> 
> This is just a first draft, but one which we believe sets the right 
> non-confrontational tone on some issues that we know are sensitive to a 
> number of GAC members (and ICANN community members alike).  We have also 
> taken a stab at defining how policy development has traditionally applied to 
> ICANN activities before the whole onslaught of new gTLD issues.  
> 
> Please let me know your thoughts on this letter and whether this serves as a 
> good starting point to finalize a response.
> 
> Thanks!
>  
>  
> +++++++++++++++++++++++++++++++++++++++
>  
> Dear Madam Chair:
>  
> I am writing in response to your letter dated 28 November 2012 seeking 
> information about the GNSO’s determination to initiate a Policy Development 
> Process (PDP) on the protection of the names of international organizations 
> “in all gTLDs.” 
>  
> We are not aware of a bright line test to distinguish “policy” from 
> “implementation” in general, or in the ICANN context, and believe that this 
> question might benefit from further review and consideration within ICANN’s 
> multi-stakeholder processes.  For purposes of responding to your letter, 
> however, the term “policy development” has traditionally applied to ICANN’s 
> consideration of an issue that is within the scope of ICANN’s mission 
> statement and involves developing an approach that (1) is broadly applicable 
> to multiple situations or organizations; (2) is likely to have lasting value 
> of applicability; (3) will establish a guide or framework for future 
> decision-making; and/or (4) implicates or affects an existing ICANN policy.   
> The ICANN Board, the ICANN staff, and the GNSO has each concluded at 
> different points that the question of enhanced protections for international 
> governmental organizations (“IGO’s”) and international non-governmental 
> organizations (“INGO’s”) at the top and second level meets the criteria 
> described above. 
>  
> We do not dispute the validity of the GAC’s advice to the ICANN Board in May 
> 2011 regarding protections for the International Olympic Committee (“IOC”) 
> and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact 
> that ICANN received preliminary legal advice that some 60 countries protect 
> certain intellectual properties of the IOC and RC/RC.   We note, however, 
> that most such laws – like the Nairobi Treaty on the Protection of the 
> Olympic Symbol itself - provide exceptions for non-commercial uses, 
> pre-existing commercial uses, and certain geographic references, among other 
> things.  (To our knowledge, however, these laws would not create intermediary 
> liability or impose affirmative obligations on ICANN, registries, and/or 
> registrars with respect to third party registrations.)  In any case, policy 
> development is needed to determine what, if any, exceptions (i.e., for 
> pre-existing, non-commercial, and/or geographic use) should apply in the 
> domain name context – particularly at the second level and in both new and 
> existing TLDs. 
>  
> Likewise, we do not dispute the validity of the GAC’s advice in Toronto with 
> respect to the use of the current .int registration requirements as a 
> starting basis for protection of IGO names and acronyms.  We also appreciate 
> your point that this advice is “complementary” to the provision of the 
> Applicant Guidebook permitting use of the .int registration criteria as the 
> basis for IGOs to file a Legal Rights Objection to a new gTLD application.  
> We do not understand, however, how a prohibition of even non-infringing uses 
> of an IGO’s acronym at the first or second level is merely an implementation 
> of the Legal Rights Objection policy, which provides for an independent panel 
> to determine whether an applicant’s potential use of the applied-for gTLD 
> would be likely to infringe the objector’s existing IGO name or acronym.  The 
> views and perspectives of various participants in this discussion, including 
> those of the Governmental Advisory Committee, have evolved over time – 
> including quite recently. 
>  
> The GNSO believes that the issues identified above fall within the definition 
> of “policy” used by ICANN.  We understand, of course, that the policy 
> development process can be time consuming.  We also understand that some may 
> view resort to policy development as a delaying or blocking tactic.  With 
> respect to the question of enhanced protections for international 
> governmental organizations, however, the GNSO has attempted to find practical 
> solutions to ensure that reasonable protections are in place during the 
> pendency of the policy discussions.  That approach is reflected in the ICANN 
> Board’s recent resolutions to create a moratorium on registration of certain 
> names at the second level pending this policy work. 
> Perhaps we are misunderstanding the distinction between “policy” and 
> “implementation” drawn by the GAC, and, as previously stated, the GNSO 
> Council would welcome further dialogue on this point.  Meanwhile, we do take 
> seriously our obligation to respond in a collaborative, timely and 
> transparent way when policy development is necessary. 
>  
>  
>  
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 46000 Center Oak Plaza, Sterling, VA 20166
> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
> jeff.neuman@xxxxxxxxxxx  / www.neustar.biz
>  
>  
> ___________________________________________________________
> Thomas Rickert, Rechtsanwalt
> Schollmeyer &  Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm)
> Geschäftsführer / CEO: Torsten Schollmeyer, Thomas Rickert
> HRB 9262, AG Bonn
> 
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>  



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