ICANN Ombudsman Case System - reconsideration requested

[Mary.Wong at LAW.UNH.EDU]

Hi Amr and everyone,


There's obviously a close connection between this topic and another that
Robin posted to the list, about the recent "strawman" proposal that
emerged from the LA meeting that Fadi and ICANN staff held with
selective GNSO stakeholders:
http://www.icann.org/en/news/public-comment/tmch-strawman-30nov12-en.htm.
I think it's important for NCSG to discuss and comment on both the
substantive and procedural aspects of this latest development - where
the substantive concerns the actual proposal and the procedural concerns
the process leading up to Maria's ombudsman submission.


Some further background on the former may be helpful - first, on the
TMCH claims service period. Way back in 2009, the much-maligned IRT
initially (consisting mostly of TM attorneys, plus Jeff Neuman for
registries' operational concerns, Jon Nevett for registrars and me as an
IP academic) then the STI team (consisting of a cross-community group
including our own Kathy Kleiman and Konstantinos Komaitis) had not
specified a time limit/period for this service, which was conceived as a
pre-launch rights-protection mechanism. In subsequent versions of the
Applicant Guidebook (AGB), ICANN proposed a 60-day period that was
opposed by the GAC, BC and IPC but which remained unchanged (until this
latest proposal). Basically, therefore, the IPC and BC has opposed a
60-day limit since it was introduced.


Secondly, on the expansion of the "identical match" test. Again, this
was something proposed by the IRT and continued by the STI. In this
case, there was opposition already when the IRT's report first came out,
in early 2009. I can attest to that as I wrote that part of the IRT
report that stated the "identical match" test, and I believe that some
BC/IPC reps were roundly rebuked by their members for allowing that to
be the standard. Nonetheless, that test was never changed throughout the
subsequent life of the AGB, even against constant public comments
against it by the BC, IPC and also the GAC. Again, therefore the latest
IPC-BC proposal represents yet another attempt to get something they
failed to achieve during the AGB process.


My suggestion is that, given time constraints, we leave the more
abstract "is this policy vs. implementation" question to our Councilors,
since I understand that this is a question that has been formally raised
at Council level. I don't think that this question can be satisfactorily
resolved in time and in any case won't (IMHO) affect or change the
nature or substance of our reaction to the strawman proposal.


On the procedural side, I thank Maria for starting the ball rolling with
the Ombudsman. I think it imperative for NCSG - many of whose members
rely (as Amr said) on transcripts, recordings and reports to follow
topical discussions - to stress the importance of transparency in the
following respects: disclosure of meetings, disclosure of participants,
and availability of recordings and transcripts unless there is a clear
need to limit them.


I assume that those NCSG folks that were asked to attend the Brussels
and LA meetings will take the helm in preparing a robust public comment
to be submitted in response to the strawman proposal (deadline 21
December). I hope that this bit of additional background information
will be helpful to members in either assisting with preparing the
comment or in supporting/discussing it.


Cheers
Mary



Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong at law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network
(SSRN) at: http://ssrn.com/author=437584  

>>> Amr Elsadr  11/30/12 5:23 PM >>>
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  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) 
>>> 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
>>> 
>>> 
>>> 
>>