Re: [ispcp] WG: Trademark Clearinghouse "Strawman Solution" - Public comment 30 November - 21 December 2012

["Mike O'Connor" <mike@xxxxxxxxxx>]

hi all,

here's a note that i *meant* to forward to our list and then…   um…  forgot.  :-(

i posted this to the group that participated in the LA meetings, clearly as an individual.  but it's not a bad starting point for our discussion.  i think the position boils down to

-- the bottom-up policy process is important and we bypass it at our peril

-- most of the proposals probably need a "policy vs implementation" discussion/decision by the Council

-- the work of rolling out the TMCH needs to proceed and is on a very tight schedule

-- thus, there should be minimal changes to the TMCH, the AGB and RPMs in this round and the GNSO should take up most of the proposals in due order.

let's have a quick round of discussion of these bullets (plus the sentiment that i've written into this post below) amongst ourselves on this ISPCP list and then, based on that, i'll draft up a response for your review.

thanks,

mikey



here's my post.  i've added some annotations of a post by Jon Nevett, and a "policy vs implementation" document that Margie Milam presented at day-1 of the LA meetings.

From: Mike O'Connor <mike@xxxxxxxxxx>
Sent: Sat, Dec 1, 2012 09:44:41 EST
Subject: thoughts from Mikey

hi all,

i'd like to break my silence on some of these issues.  first about a miscommunication that may be happening around the term "straw man proposal" and then dipping my oar into the "implementation vs policy" debate.

i think we may be talking past each other because of the use of the term "straw man proposal" which is a phrase that has a deep and specific meaning to some people, and a broader less-nuanced meaning to the rest of us.

here's a little clip from Wikipedia -- "A straw man proposal is a brainstormed simple draft proposal intended to generate discussion of its disadvantages and to provoke the generation of new and better proposals."   that article goes on to describe the history of the term and its use as a decision-making tool.  search wikipedia for "straw man proposal" and you'll get there.

i am betting that Fadi was using "straw man proposal" that specific way when he led us through that brainstorming session to the draft that we came up with in LA.  i think it's doing just what it's supposed to do -- generating extensive discussion of its disadvantages, and new and better proposals.

i just want to firmly sign on as a part of the group that came up with the straw man proposal.  i didn't have a lot of substance to contribute because RPMs are not my strong suit.  but i helped where i could with the "process" bits and as a process type guy i thought Fadi did a great job of getting us all to step a bit outside our normal zone.   so i think it *is* fair to say that the straw man came from the participants in the room.  i typed the notes in the Adobe room -- i watched it evolve.  it was definitely something that *we* did.  and i think we all did good.

where i think things get a bit more murky is where the state of *agreement* is.  i think it's fair to say that nobody has really signed on to the proposal yet (sometimes i can be the master of understatement, it comes from growing up in the Midwest).  i think we would do well by refining our description to the rest of the community of where the proposal stands with regard to agreement and actionability.  which gets us to the "implementation vs policy" discussion.

i think there are two threads there -- the first is the one i will call the "analysis" angle but please take that loosely.  i thought Jon's post was a really good framing of the implementation/policy discussion from that point of view (although i'd love to see an opposing brief).  here's a link to that post, slightly rewritten for CircleID:

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

i'll call my second thread "coming to agreement"  -- the next, needed, step to getting us from "straw man" to something that's closer to a consensus view that Fadi and others can base action upon.  

as many of you know, i'm quite keen on the bottom-up policy-making process and part of the reason i am is because i think it helps us do a good job of both the "analysis" and "coming to agreement" parts of these puzzlers we work on.  so i'm biased toward that process because i think it's useful and effective, not because i oppose moving forward with any of these ideas.  

but by it's nature that process is not nimble.  consensus is like that.  i also understand the situation that Fadi, staff, applicants, rights holders, registrars and others find themselves in.  the clock is ticking and there are hard deadlines to meet with issues still unresolved.  Fadi needs to be able to provide requirements to people who are building things.  i can remember buying a lot of antacid tablets when large late-breaking changes would come into requirements documents that i thought were already firm.  that's the situation many people in that room found themselves in and that's where a lot of the pressure is coming from to either push requirements into "implementation" (to speed them up) or "policy" (to defer them).

"scope" is the tool that is often used to solve puzzlers like this.  if i were the project manager on this one i'd be lobbying for freezing the requirements so that i can get something built, and moving most of the new stuff into the next phase.  i think in this circumstance that translates into minimal changes to the AGB for this round and Margie's two flavors of GNSO policy-process (PDP or Policy Guidance WG) to look at the rest of the proposals.  

[Note to ISPCP readers, here is an outline of the approach Margie is describing]

Proposed action
    is an "implementation change" if…

        criteria
            it is not a result of a policy discussion
            does not materially change community proposed approach

        process
            depends on scope/nature of proposed change
            must include public comment or input that is informed by analysis

        example
            http://archive.icann.org/en/topics/new-gtlds/change- review-applicant-guidebook-19sep11-en.pdf

        safeguard
            if public comment indicates Policy Guidance is required, then move it into the "policy guidance" column
    	    
    is in the "policy guidance required" column if it's either 

        a "policy guidance working group" if...

            criteria
                affects limited parties or for limited period
                new information available or original approach not workable
                does not change intent of polciy

            process (recommended)
                SO/AC forms "Policy Guidance" working group
                SO/AC consideration of Policy Guidance working group recommendation (including public comments)

        or if it should go through the full PDP (policy development process) if...

            criteria
                new issue
                one affecting all registry and registrar agreements
                long lasting impact on multiple parties
                alters policy intent

            process
                PDP process as posted in ICANN bylaws


finally, a joke which, like Alan's contains a grain of truth.

when i describe my position to you and you disagree, i conclude that

you're ill-informed

and that all i need to do is provide you with all the facts.  then you'll come around.  so i provide you with lots of good info and, when you still disagree with me i conclude that

you're stupid

and that i'll need to restate my facts and maybe say them REAL LOUD so that you hear them.  when you still disagree with me i conclude that 

you're evil

and that i need to somehow isolate you from the rest of us so that we can get stuff done.

i am happy to report that none of the people who have participated in this process are ill-informed, stupid or evil.  we disagree.  and, although it's still clunky and needs some rough edges filed off, we have a pretty good policy process (PPPP) for sorting those disagreements out.  for those who say that the PPPP is broken (voices on all sides have raised this point) i'd say it's not the perfect form of decision-making process it's just better than all the other ones.

<stepping off soapbox>

mikey



On Dec 4, 2012, at 5:36 AM, "tony holmes" <tonyarholmes@xxxxxxxxxxxxxx> wrote:

> Mikey – would you be willing to have a crack at this?
> Having attended the recent meetings you’re probably closest to the issues.
> Regards
> tony
>  
> From: owner-ispcp@xxxxxxxxxxxxxx [mailto:owner-ispcp@xxxxxxxxxxxxxx] On Behalf Of KnobenW@xxxxxxxxxx
> Sent: 04 December 2012 11:01
> To: ispcp@xxxxxxxxx
> Subject: [ispcp] WG: Trademark Clearinghouse "Strawman Solution" - Public comment 30 November - 21 December 2012
>  
> Do we have somebody voluntarily taking the lead in drafting an ISPCP comment?
>  
> Best regards 
> Wolf-Ulrich 
> 
>  
>  
> Von: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] Im Auftrag von Glen de Saint Géry
> Gesendet: Montag, 3. Dezember 2012 19:33
> An: council@xxxxxxxxxxxxxx
> Betreff: [council] Trademark Clearinghouse "Strawman Solution" - Public comment 30 November - 21 December 2012
> 
> http://www.icann.org/en/news/announcements/announcement-30nov12-en.htm
> Trademark Clearinghouse "Strawman Solution"
> 
> Comment/Reply Periods (*)
> Important Information Links
> Comment Open:
> 30 November 2012
> Comment Close:
> 21 December 2012
> Close Time (UTC):
> 23:59 UTC
> Public Comment Announcement
> Reply Open:
> 22 December 2012
> To Submit Your Comments (Forum)
> Reply Close:
> 11 January 2013
> View Comments Submitted
> Close Time (UTC):
> 23:59 UTC
> Report of Public Comments
> Brief Overview
> Originating Organization:
> ICANN Staff
> Categories/Tags:
> Top-level Domains
> Intellectual Property
> Purpose (Brief):
> The Trademark Clearinghouse facilitates the protection of trademark rights during the initial allocation and registration periods for domain names in new generic top level domains (new gTLDs). All new gTLD registries will be required to use Clearinghouse data to ensure that a set of mandatory trademark rights protection mechanisms are applied to all new domain registrations occurring in at least the first 90 days of domain registration.
> 
> Following discussions at the Toronto meeting, ICANN met with a group of stakeholder representatives to complete implementation discussions on the Trademark Clearinghouse and its associated rights protection mechanisms. Among other subjects, these implementation meetings addressed the recentIPC/BC proposal for Improvements and Enhancements to the RPMs for new gTLDs [PDF, 68 KB].
> 
> Out of discussions evaluating the merits of these recommendations, the group produced at a strawman solution to address the concerns of affected stakeholders. This strawman solution is being posted for public comment.
> 
> One element of the IPC/BC proposal that was not included in the strawman solution concerned a proposal for a "Limited Preventative Registration" mechanism, which attempts to address concerns related to solutions to the second level defensive registration issue that did not achieve consensus among the participants in the implementation meetings. Although this revised proposal is not included in the strawman solution, this proposal is also being posted for public comment to determine whether it should also be considered along with the strawman solution.
> 
> Current Status:
> The Strawman Proposal is the result of collaboration among the participants of the post-Toronto TMCH implementation meetings. The Limited Preventative Registration Proposal is developed by and supported by the BC/IPC. In addition to the public comment period, ICANN is also seeking policy implementation guidance from the GNSO Council in relation to both of these proposals.
> Next Steps:
> Comments will be summarized and analyzed, and revisions to the relevant procedures may be considered based on the feedback received in this public comment period and from the GNSO Council.
> Staff Contact:
> Karen Lentz
> Email:
> karen.lentz@xxxxxxxxx
> Detailed Information
> Section I: Description, Explanation, and Purpose
> Out of the recent Clearinghouse implementation discussions, a strawman solution has been produced to balance and address the concerns of affected stakeholders. This strawman solution is being posted for public comment. This includes:
> 
> A requirement for 30 days notice in advance of each new gTLD sunrise period.
> An extension of the required Trademark Claims service to the first 90 days of general registration.
> A lightweight "Claims 2" period of 6-12 months that is an additional fee-based option for rights holders.
> Inclusion of domain names previously determined to have been abusively registered or used in both Trademark Claims services.
> One element of the IPC/BC proposal that was not included in the strawman solution concerned a proposal for a "Limited Preventative Registration" mechanism. This revised mechanism is proposed by the IPC/BC to address concerns related to solutions for second level defensive registrations that did not achieve consensus among the participants in the implementation meeting. The Limited Preventative Registration proposal is also being posted for public comment to determine whether it should be considered along with the strawman solution.
> 
> Section II: Background
> The Trademark Clearinghouse facilitates the protection of trademark rights during the initial allocation and registration periods for domain names in new generic top level domains (new gTLDs). All new gTLD registries will be required to use Clearinghouse data to ensure that a set of mandatory trademark rights protection mechanisms are applied to all new domain registrations occurring in at least the first 90 days of domain registration. These mechanisms are described in theApplicant Guidebook for new gTLD applicants.
> 
> Following discussions at the Toronto meeting, ICANN met with a group of stakeholder representatives to complete implementation discussions on the Trademark Clearinghouse and its associated rights protection mechanisms. Among other subjects, these implementation meetings addressed the recent IPC/BC proposal for Improvements and Enhancements to the RPMs for new gTLDs [PDF, 68 KB].
> 
> Section III: Document and Resource Links
> Public Comment is being sought on the following documents:
> 
> Summary of TMCH Strawman Solution [PDF, 254 KB]
> Description of the IPC/BC Proposal for Limited Preventative Registrations [PDF, 26 KB]
> Section IV: Additional Information
> http://blog.icann.org/2012/11/building-a-secure-and-reliable-trademark-clearinghouse/
> http://blog.icann.org/2012/11/trademark-clearinghouse-update/
> http://blog.icann.org/2012/11/a-follow-up-to-our-trademark-clearinghouse-meetings/
> http://newgtlds.icann.org/en/program-status/correspondence/metalitz-to-pritz-17oct12-en.pdf [PDF, 68 KB]
> http://newgtlds.icann.org/en/about/trademark-clearinghouse
> http://newgtlds.icann.org/en/applicants/agb
>  
> (*) Comments submitted after the posted Close Date/Time are not guaranteed to be considered in any final summary, analysis, reporting, or decision-making that takes place once this period lapses.
> 
>  
>  
> Glen de Saint Géry
> GNSO Secretariat
> gnso.secretariat@xxxxxxxxxxxxxx
> http://gnso.icann.org
>  


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