Fwd: Fwd: Draft reply from GNSO to Fadi

[Kathy Kleiman]

Hi Joy and All,
Tx for sharing this letter. It's interesting to see how the debates continue.

I think Mason had done an excellent job with this letter The reasoning is
solid and the rationale is clear. The letter certainly represents deep concerns of the NCUC/NCSG Community.

I wonder if the Registries are on board too?
Best,
Kathy
:

> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA1
>
> 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]
>
>
>
>
> -----BEGIN PGP SIGNATURE-----
> Version: GnuPG v1.4.9 (MingW32)
> Comment: Using GnuPG with undefined - http://www.enigmail.net/
>
> iQEcBAEBAgAGBQJQ0UzwAAoJEA9zUGgfM+bq0d8IAI8kMxmhZl18i50IejOO2kNB
> iVVYM9qS1tR7FhYitoXYu2+1pgbNvZW47wwyiWOVyNu6TL+txQ4AI5BggGH7sDmX
> 3CMfm+o2sq/5U3LX8H+GTxbzLcUE7R1Jr686I57G5dPniB587Vzmc0MLhvEY1COV
> 91paFzzEoLSRWQDwUz8EBcmj6RLUArL9sp006cJhUM41edo7odWplnwL+pnkXeW2
> jcbOOtvz/un+fawmjD12LpCOb79PMfFaANG89q5EpAIa6628QCzpR1/M4yQu4iEn
> ONvCCi4aF4aiKG6VfgMoCelcQa1+fO52mIj2bpCRazA0DOLJn8ywES5pyITrzA4=
> =wOp6
> -----END PGP SIGNATURE-----