ICANN Ombudsman Case System - reconsideration requested

[Kathy Kleiman]

Hi Maria,
I am sorry to share but I don't agree with the Complaint filed below. We 
were included in the meeting, and we did participate in it. We had the 
ability to bring in more people, but Wendy had a flight conflict, and 
Konstantinos had a NY session at the same time. There was certainly an 
imbalance of people, but our concerns were well-represented. We were 
regularly recognized to speak.

If the session had been as closed and imbalanced as the complaint 
describes, then we would not have been in the room (for 3 1/2 of the 4 
days, I was on the phone) and the results of the IPC/BC proposals would 
have been adopted. I have to tell you that they (IPC/BC) are very, very 
unhappy that their lead proposal -- for blocking of their trademark 
across all gTLDs -- was itself blocked.

If the issue were privacy or freedom of expression, we would be fighting 
for it. Here the issue is TM protection, and the concerns on the other 
side are sincere. I get it, and Fadi tried to listen -- not in a closed 
room, but in a room with me and Robin, Alan and Evan (ALAC), Registrars 
and Registries. It's so much better than the old days of disappearing 
back into the closed ICANN Board Room and listening to Joe Sims, of 
Jones Day law firm, tell ICANN what to do.

The contracts for the Trademark Clearinghouse needed to be signed, the 
system specifications needed to be finalized. The IPC/BC presented a 
bunch of unreasonable things, and most were recognized as unreasonable 
and pushed back.  I think Fadi Chehade, as our new CEO, felt the need to 
listen to the concerns, and I am so, so, so glad that he did it when we 
were in the room too.

I would recommend that the complaint be withdrawn because I think it 
will have the unintended effect of pushing things into the back room 
again. Fadi worked very hard to ensure that our concerns were heard and 
voiced and shared.

Best,
Kathy (Kleiman)

:
> Thanks so much for doing this Maria.
>
> My fear is we're going to see more of this in the new ICANN. Without 
> the fiscal strength of corporate support noncommercial stakeholders 
> are often at a disadvantage. Couple that with a staff under orders to 
> be more efficient and we certainly have some challenges to overcome. 
> Is the "multi-equal stakeholder" concept enunciated by Fadi Chehade 
> going to transform itself into, with apologies to Orwell, a typology 
> where "all stakeholders are equal but some stakeholders are more equal 
> than others"? Let's hope not.
>
> Anything the rest of us can do to support you on this?
>
>
>
>
> On Fri, Nov 30, 2012 at 12:44 PM, Maria Farrell 
> <maria.farrell at gmail.com <mailto:maria.farrell at gmail.com>> wrote:
>
>     Dear NCSG colleagues,
>
>     I've submitted a complaint to the ICANN Ombudsman regarding the
>     closed and unbalanced nature of the Trademark Clearing House process.
>
>     Below, FYI, is the text I submitted. I will keep you posted on any
>     follow-up.
>
>     All the best, Maria
>
>
>     Ombusdman complaint - TCMH
>
>      NATURE OF THE COMPLAINT
>
>     Apparent decision by staff to disregard GNSO policy-making process
>     and community consensus on the Final Applicants Guidebook and
>     already agreed outcomes to run its own, closed and biased process
>     regarding Trademark Clearing House and new gTLDs. Decision by
>     staff to enter into secret negotiations with GNSO Commercial
>     Stakeholders Group and invoke a new, closed process to develop a
>     proposal by that sole group. Acts by staff to constitute two
>     in-person meetings (Brussels and Los Angeles) and several phone
>     conferences to 'develop' a one-sided proposal. Acts by staff to
>     exclude and prevent evenly balanced participation by other
>     affected stakeholders, notably noncommercial ones. Explicit
>     statement by staff that it would not countenance equal
>     participation by noncommercial stakeholders at Los Angeles meeting
>     - end result was two noncommercial and twelve commercial. Refusal
>     by staff to offer travel support to meetings, disadvantaging
>     noncommercial stakeholders. Failure of staff to run meeting
>     according to agreed timings, resulting in further disadvantaging
>     of noncommercial representatives who needed to leave on time to
>     catch flight - meeting continued regardless and came to
>     'agreements' in absence of affected parties. Insistence of staff
>     on conducting ‘straw polls’ to determine agreement of those
>     present, despite unbalanced nature of participation. Failure of
>     staff to communicate basic transparency requirements such as names
>     of those invited to participate (staff has yet to respond to
>     11/19/12 request to name participants:
>     http://blog.icann.org/2012/11/trademark-clearinghouse-update/#comments
>     <http://blog.icann.org/2012/11/trademark-clearinghouse-update/%23comments>),
>     information about meetings before they took place, publication of
>     documents before they were discussed.
>
>     Overall failure of staff to be neutral and transparent in its
>     dealings with stakeholder groupings, leading to a marked bias in
>     favour of commercial stakeholders.
>
>      HOW IT AFFECTS ME
>
>     As a current and potential (in the new TLDs) domain name
>     registrant, and as a member of the NCSG, I have been disadvantaged
>     by ICANN staff conducting a closed and imbalanced process to
>     determine substantive issues on rights protection mechanisms.
>     Substantive changes are being proposed that will affect me as a
>     future domain name registrant, and I have had no opportunity to
>     participate in the process. As a member of the NCSG, I have been
>     disadvantaged by the clear bias shown by staff against this
>     group's opportunity to participate on an equal basis with
>     commercial stakeholders. I am simply one of many people who could
>     not participate in a closed, biased and expensive process that may
>     nonetheless unravel years of hard-won community agreement.
>
>     WHAT I HAVE DONE ABOUT IT
>
>     I publicly requested on 11/19/12 that the names of the
>     participants in this imbalanced process be published:
>     http://blog.icann.org/2012/11/trademark-clearinghouse-update/#comments
>     . This request has been ignored.
>
>     I wrote directly to the CEO by email on 11/26/12, expressing my
>     concerns.
>
>     I wrote to the GNSO Council on 11/29/12, in my capacity as a
>     councilor, expressing my concerns at the flawed process:
>     http://gnso.icann.org/mailing-lists/archives/council/msg13902.html
>
>      ANY OTHER INFORMATION
>
>     I believe the NCSG was invited by the CEO to appoint four people
>     to participate in this group. Due to the extremely late notice
>     given to us of the considerable time commitment required, and the
>     expense of travel to Brussels / Los Angeles, it was impossible for
>     more than two of our constituency to attend; one in person at the
>     Los Angeles meeting, and one by phone, also one or two by phone to
>     Brussels. As we are not paid by our employers to participate in
>     ICANN, the late notice and expense prevented even the paltry four
>     'invitations' being taken up.
>
>
>
>     ---------- Forwarded message ----------
>     From: *ICANN Ombudsman (via SeeMore System)* <ombudsman at icann.org
>     <mailto:ombudsman at icann.org>>
>     Date: 30 November 2012 12:34
>     Subject: ICANN Ombudsman Case System: Thank you for your submission
>     To: maria.farrell at gmail.com <mailto:maria.farrell at gmail.com>
>
>
>     Dear Maria,
>
>     Thank you for your submission. Below is a copy of your complaint
>     which was sent to the ombudsman.
>     It will be reviewed and you will receive a response as soon as
>     possible.
>     -----------------------------------------------------------------
>
>     ALTERNATE LANGUAGE: English
>
>     ############################################
>     ############################################
>     SUBMITTED BY
>
>     Name:
>     Maria Farrell
>
>
>     ############################################
>     ############################################
>     CONTACT INFO
>
>     Registry:
>
>
>     Registrar:
>
>
>     Domain:
>
>
>     Comments:
>     Apparent decision by staff to disregard GNSO policy-making process
>     and community consensus on the Final Applicants Guidebook and
>     already agreed outcomes to run its own, closed and biased process
>     regarding Trademark Clearing House and new gTLDs. Decision by
>     staff to enter into secret negotiations with GNSO Commercial
>     Stakeholders Group and invoke a new, closed process to develop a
>     proposal by that sole group. Acts by staff to constitute two
>     in-person meetings (Brussels and Los Angeles) and several phone
>     conferences to 'develop' a one-sided proposal. Acts by
>     staff to exclude and prevent evenly balanced participation by
>     other affected stakeholders, notably noncommercial ones. Explicit
>     statement by staff that it would not countenance equal
>     participation by noncommercial stakeholders at Los Angeles meeting
>     - end result was two noncommercial and twelve commercial. Refusal
>     by staff to offer travel support to meetings, disadvantaging
>     noncommercial stakeholders. Failure of staff to run meeting
>     according to agreed timings, resulting in further disadvantaging
>     of noncommercial representatives who needed to leave on time to
>     catch flight - meeting continued regardless and came to
>     'agreements' in absence of affected parties. Insistence
>     of staff on conducting ‘straw polls’ to determine
>     agreement of those present, despite unbalanced nature of
>     participation. Failure of staff to communicate basic transparency
>     requirements such as names of those invited to participate (staff
>     has yet to respond to 11/19/12 request to name participants:
>     http://blog.icann.org/2012/11/trademark-clearinghouse-update/#comments),
>     information about meetings before they took place, publication of
>     documents before they were discussed.
>     Overall failure of staff to be neutral and transparent in its
>     dealings with stakeholder groupings, leading to a marked bias in
>     favour of commercial stakeholders.
>
>
>     ############################################
>     ############################################
>     WHOIS
>
>     No WHOIS info
>
>
>

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