ICANN Ombudsman Case System - reconsideration requested

Sat Dec 1 00:22:49 CET 2012

There seem to be some discrepancies that I find curious (and alarming), that appear to be a direct result of the inappropriate policy development outside of the proper gnso process. I've been reading the final version of the AG for the first time recently, and if I understand what I'm reading, the claims service period is set to be "at least the first 60 days that registration is open for general registration". The strawman model (as explained in Fadi's blog) stated that the AG described the claims period as being 90 days. This is not entirely accurate, but since the AG says "at least" 60 days, I thought this could arguably be an implementation issue, as opposed to a parallel pdp outside of the normal gnso process.

Now, the TMCH strawman solution posted for public comment states that protection mechanisms will be applied for "at least" the first 90 days!! The IPC-BC asked for improvements including extending the TMCH and claims notices for an indefinite period, and it looks like they're slowly getting what they asked for. Maybe I'm confused, but if the standing decision of the initial strawman model was a precise 90 day period, and this has been changed to at least 90 days semantically allowing for further extensions of the claims notices period…, does this mean that the decisions being made outside of the gnso process are also being amended in a third pdp?

Maybe I AM missing something, but I'm relatively new here and don't know my way around very well yet, but the way I see it, that's a very good reason why the gnso pdp shouldn't be meddled with. At least within that process, I can read transcripts, listen to recordings and find out what decisions were transparently made by who.

Thanks.

Amr

On Nov 30, 2012, at 11:10 PM, Avri Doria wrote:

> Kathy I am amazed that you are defending this perversion of the ICANN processes: the rejection of the Rule of PDP that makes the work ICANn does legitimate.
> 
> Yes, you participated, but this was NOT community participation.  As an individual you may fought he valiant fight under bad circumstance, but that does not legitimize a transgression against our processes and against the balanced and proper treatment of all stakeholders.
> 
> This is not the way ICANN multistakeholder process is supposed to be done.  I cannot beleive you support these transgressions.
> 
> This was an abuse of ICANN.  The complaint needs to be supported and needs to be carried out to its end.  The processes we have worked hard for over many years are being trampled upon.  We cannot allow this to happen.  We cannot allow the new CEO to destroy mutlistakeholder ICANN by disregarding the Rule of PDP.
> 
> avri
> 
> On 1 Dec 2012, at 00:50, Kathy Kleiman wrote:
> 
>> 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> 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), 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>
>>> Date: 30 November 2012 12:34
>>> Subject: ICANN Ombudsman Case System: Thank you for your submission
>>> To: 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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