ICANN Ombudsman Case System - reconsideration requested

Fri Nov 30 21:58:39 CET 2012

Hey Kathy,

Thank God we have you at NCUC to watch over our shoulders. Maria -- she's a
fine member doing her greatest, the best way she knows how.

Long live NCUC!

Alex, Nairobi, Kenya.

On Fri, Nov 30, 2012 at 11:50 PM, Kathy Kleiman <kathy at kathykleiman.com>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 I would recommend that the complaint be withdrawn because I think it will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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