Fwd: Fwd: Draft reply from GNSO to Fadi

[joy]

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Hi - reposting a message which was sent earlier today to this list,
but does not appear to have been posted . To avoid further delay, I
have copied and pasted the draft letter into this text below.
Apologies if there have been any cross-postings.

Regards

Joy
- -------- Original Message --------
Subject: Fwd: Draft reply from GNSO to Fadi
Date: Wed, 19 Dec 2012 06:26:56 +1300
From: joy <joy at APC.ORG>
Reply-To: joy at apc.org
Organisation: APC
To: NCSG-DISCUSS at LISTSERV.SYR.EDU

Hi all - apologies for the lateness in sending this through to this
list, but attached is an outreach from Mason Cole in drafting a GNSO
Council letter to ICANN CEO.
A number of NCSG GNSO Councillors have supported Mason to take this
letter forward and it is on the council meeting agenda for this week.
It is of course still open for edits and suggestions and, if you have
any, please do feel free to share them and we can discuss these at (or
before) the meeting
Cheers
Joy Liddicoat


- -------- Original Message --------
Subject: Draft reply from GNSO to Fadi
Date: Wed, 12 Dec 2012 14:07:24 -0800
From: Mason Cole <mcole at 5x5com.com>
To: Maria Farrell <maria.farrell at gmail.com>, "David Cake
(dave at difference.com.au) (dave at difference.com.au)"
<dave at difference.com.au>, Wendy Seltzer <wendy at seltzer.com>, Wolfgang
Kleinwächter <wolfgang.kleinwaechter at medienkomm.uni-halle.de>, "Joy
Liddicoat (joy at apc.org)" <joy at apc.org>

Maria, David, Wendy, Wolfgang and Joy --

I took the liberty of drafting a council response to Fadi's request
for the council's input on the BC/IPC proposals:
http://gnso.icann.org/mailing-lists/archives/council/msg13964.html

It's attached here.  The thesis is that the RPMs requested by the BC
and IPC are in fact changes to established policy and not matters of
implementation, and, further that using such categorizations as a
basis for changing policy circumvents the council in a way that isn't
acceptable.  I kept the tone reasonable but I think the message comes
across.

Before I send this to the list, would you read it over an let me know
if it's something you can support?  I hope you can and would think
this is something that aligns with your belief in the council's
responsibility over policy development.

I'm under little impression the BC and IPC would sign on to this, so
perhaps the best available outcome is a letter detailing majority and
minority positions.  What I believe should be avoided is a response
only from the SGs, as this would further portray the council as broken
and ineffective.

Thanks for your attention.  I'd like to get this to the list soon -- I
realize we're all quite busy, but if you could provide feedback soon I
would be appreciative.

Happy holidays --

Mason


[DRAFT LETTER COPIED FROM ATTACHMENT BEGINS}

Dear Fadi:

Thank you for your e-mail of 5 December, in which you request the
advice of the GNSO Council on TMCH implementation.  This letter is the
Council?s reply to your request.

While our member constituencies and stakeholder groups will comment at
their discretion regarding the content of the so-called strawman, the
Council here addresses the issues identified in your e-mail, and as
you so invited, others in the strawman:

Expansion of trademark rights in TLDs
The Council draws a distinction between the launch of new gTLDs, where
policy has been set and agreed to, and a longer-term discussion about
amended or additional rights protection mechanisms (RPMs), which would
apply to all gTLDs.

The Council believes generally that expansion of trademark rights
beyond law is a matter of policy, as it is of impact to the full
community.  The majority of the Council believes protection policies
for new gTLDs are sufficient and need not be revisited.  If the
community seeks to augment existing RPMs, they are appropriately the
subjects of Council policy action.

Indeed, ICANN Chairman Steve Crocker and other Board members set an
expectation in Toronto that new RPM proposals should have the
Council?s support to be considered now:

"Three more items. The rights protection in new gTLDs. The
Intellectual Property Constituency and business constituency (sic)
reached consensus on further mechanisms for new gTLD rights protection
and agreed to socialize these to the rest of the GNSO and the Board
looks forward to receiving input on these suggestions from the GNSO.
So that is our plan, so to speak, which is we will continue to listen
and wait for this to come up. "

http://toronto45.icann.org/meetings/toronto2012/transcript-public-forum-18oct12-en.pdf,
at p.12.

It is fair to say these proposals do not have the support of the
Council?s majority.

In addition, in the context of ICANN?s goal to advance competition in
the domain name industry, the Council finds that RPM proposals, or
other measures that could impact the marketability of new gTLDs, would
deserve GNSO policy development to ensure applicability to all gTLDs,
new and existing.  This is consistent with the NTIA?s recent letter to
ICANN, which states in part:

?We encourage ICANN to explore additional trademark protections across
all TLDs, existing and new, through community dialogues and
appropriate policy development processes in the coming year.?

http://www.icann.org/en/news/correspondence/strickling-to-crocker-04oct12-en.pdf


Extension of Claims 1
The majority of the Council considers the community?s standing policy
agreement for a 60-day Claims 1 period settled, and finds no reason to
reconsider it.  Were reconsideration warranted, a PDP would be required.

The Council?s rationale is the Board?s policy determination of the
timing of trademark claims as ?60 days from launch.?  In addition, the
presence of both sunrise and trademark claims is a further compromise,
as the Council voted unanimously to require either sunrise or claims,
but not both.

With regard to Claims 1, staff?s determination that a timing extension
is appropriate is inconsistent with previous communications.  In your
19 September 2012 letter to the US Congress, you wrote (emphasis added):

?For the first round of new gTLDs, ICANN is not in a position to
unilaterally require today an extension of the 60-day minimum length
of the new trademark claims service.  The 60-day period was reached
through a multi-year, extensive process with the ICANN community.?

	http://www.icann.org/en/news/correspondence/chehade-to-leahy-et-al-19sep12-en

The majority of the Council concurs with your message and believes the
current 60-day Claims 1 period is agreed-to policy and as such should
not be changed.

Claims 2
The Claims 2 proposal is a longer-term RPM with potentially
significant impacts and would be subject to a PDP, in order to explore
the complex issues therein. This advice is based on the following:

1.	Claims 2 is a new RPM, not implementation of an agreed-to RPM.  It
is fundamentally different from the 60- (or the proposed 90-) day
claims service.

2.	Beyond this important distinction, there are many unanswered
questions about a Clams 2 process.  Are potential registrants,
legitimately entitled to non-infringing registrations, unfairly
disenfranchised?  How would payments be made and allocated?  How do
registries and registrars adapt their technical systems to accept the
many more commands received over nine to ten additional months?  Is
the burden as currently proposed (registries and registrars assume the
cost and risk to build these systems with no predictable method of
cost recovery) fair to all parties?  What should the claims notice
say?  (In this regard, the Council respectfully points out that Claims
2 should not be characterized as ?more lightweight.?)  The purpose of
the GNSO Council is to collaboratively answer these types of questions
before recommending policy.

Scope of Trademark Claims
The Council?s majority believes your determination, as documented in
your updated blog posting, that an expansion of trademark claim scope
(beyond exact match) is a matter of policy, is correct.  It is further
consistent with the following section of your letter to Congress:

?It is important to note that the Trademark Clearinghouse is intended
to be a repository for existing legal rights, and not an adjudicator
of such rights or creator of new rights.  Extending the protections
offered through the Trademark Clearinghouse to any form of name would
potentially expand rights beyond those granted under trademark law and
put the Clearinghouse in the role of making determination as to the
scope of particular rights.  The principle that rights protections
?should protect the existing rights of trademark owners, but neither
expand those rights nor create additional rights by trademark law? was
key to work of the Implementation Recommendation Team??

Consistent with this, the Limited Preventative Registration (LPR)
proposal, or any other blocking mechanism, also represents a change in
policy and should be a matter of Council policy business if it is to
be considered.

Staff activity and input
While the Council appreciates staff?s perspective regarding
circumvention of GNSO procedures, regrettably, an attempt to
circumvent the GNSO Council is very much in evidence.  The Council
further appreciates your determination to focus on implementation; the
Council expects however that implementation will be of agreed-to
issues, and not new proposals not subject to adequate community review
and input.

[ENDS]




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