[NCSG-Discuss] ICANN is bottom-up, except for when it is top-down. Fwd: Memorandum on the Trademark Clearinghouse ³Strawman Solution²

[Robin Gross]

Despite the fact that Fadi Chehade admitted the TMCH and staff's  
'strawman solution' was a mistake for violating the proper policy  
development process, staff has decided to go forward with some of the  
strawman's more controversial proposals (attached staff memo).

Most notably, the creation of entirely new and unprecedented rights  
such its proposal to give trademark holders privileges to +50  
derivations of their trademark.  It is an insane proposal that exists  
no where in trademark law and in fact, turns trademark law on its  
head by presuming that any subsequent use of trademark by any other  
party will always be an infringement - simply because at one point in  
time, someone else in an entirely different situation infringed that  
trademark.  It is an insane proposal that would never have come from  
a balanced process, even by ICANN standards.

NCSG's strawman response:
http://ipjustice.org/wp/wp-content/uploads/NCSG-Strawman-Response.pdf

The GNSO Council told ICANN this staff proposal was a policy and not  
implementation decision and not to do it.

But staff is including this insane proposal in the new gtld program  
despite all its countless flaws, and without any serious explanation  
for it can violate its own processes in such a blatant and serious way.

The strawman solution was a staff creation.  It was never something  
"the community" developed as falsely claimed by ICANN in this memo.   
And the meeting at which staff claims "the community" developed it  
was 14 CSG members to 2 NCSG members.  I was there and it was a total  
farce of an experience on so many levels.

ICANN staff are committing a huge fraud on the public with this white  
wash and complete violation of its stated policy processes.   We  
really do have senior staff at ICANN that do not feel bound to follow  
the multi-stakeholder bottom-up policy development process and  
believe in ICANN staff unilaterialism.

Between this major new debacle and staff's insistence on unilateral  
control in all contracts and right to insert un-negotiated terms at  
the last minute, I'm becoming more and more convinced that ICANN is  
simply "using" civil society especially, but all the stakeholders  
really, to try to claim it represents some kind of public interest  
bottom-up process and make-up unprecedented rights.  From what I'm  
seeing, the only "interest" ICANN operates in, is its own interest to  
expand its power.  Unless the community can reign in this power- 
grabbing staff, we should all just walk away from ICANN as an  
experiment in multi-stakeholder Internet governance that has sadly  
ended.

Sigh,
Robin


PS: Also note ICA's comments on ICANN's announcement to adopt its  
strawman:

"In regard to expanding the TMCH database to incude up to 50  
previously abused variations, Fade informed members of the US  
Congress on September 19, 2012:

“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…”

And ICANN’s own summary of the Strawman Model clearly states that  
this proposed expansion of the scope of trademark claims involves  
policy and not mere implementation:

“The inclusion of strings previously found to be abusively  
registered in the Clearinghouse for purposes of Trademark Claims can  
be considered a policy matter. This proposal provides a path for  
associating a limited number of additional domain names with a  
trademark record, on the basis of a decision rendered under the UDRP  
or a court proceeding. Given the previous intensive discussions on  
the scope of protections associated with a Clearinghouse record,  
involving the IRT/STI, we believe this needs guidance from the GNSO  
Council.”

So why does ICANN now believe that this expansion is within its  
powers, and that GNSO Council guidance is not required? The written  
memo they just issued does not provde a satisfctory explanation."


Begin forwarded message:

> From: David Olive <david.olive at icann.org>
> Date: March 20, 2013 2:17:42 PM PDT
> To: "soac-infoalert at icann.org" <soac-infoalert at icann.org>
> Subject: [Soac-infoalert] Memorandum on the Trademark Clearinghouse  
> ³Strawman Solution²
>
>
>
> New gTLDs, "Strawman" and Contract Negotiations
>
> Fadi's Report on Milestones and Deadlines
> Watch Fadi's vlog »
> Read "Strawman" Memo »
> Review Public Comments »
>
>
> --
> David A. Olive
> Vice President, Policy Development Support
> Internet Corporation for Assigned Names and Numbers (ICANN)
> 1101 New York Avenue, NW - Suite 930
> Washington, D.C.    20005
> Office: 202.570.7126      Mobile:  202.341.3611
>
>
>
>
>
>
>
>
>

> _______________________________________________
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> soac-infoalert at icann.org
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IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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