[NCSG-Discuss] Should NCSG consider filing an ombudsman complaint against ICANN senior staff for violating the organization's policy development process?

[Robin Gross]

I think NCSG should consider filing an ombudsman complaint against  
the organization's senior management for violating the organization's  
policy development process by adopting staff's "strawman solution"  
which never went through proper process (or any process for that  
matter).

The most dangerous part of staff's adopted proposal creates  
unprecedented new rights for trademark holders with this "once  
infringed" theory of new rights to TM+50 derivations of that mark.   
This particular proposal was stitched together by TM lobbyists and  
staff when NCSG wasn't even in the room - because it was 10pm at  
night in LA and I had left for my flight on staff's assurances that  
no policy discussions would take place that evening.  ALAC wasn't in  
the room either (although Evan & Alan participated remotely on the  
phone in the middle of their night).

The GNSO Council said don't adopt this policy.

ICANN staff admitted the proposal was a policy decision and not an  
implementation decision - a key distinction in staff's ability to  
make decisions. [Although the first time staff published its report  
on the mtg's discussion of that proposal, staff's blog report  
differed from what the CEO stated to meeting participants and said  
this proposal had been characterized as an "implementation" decision  
by mtg participants.  It took some persistence and insistence from  
mtg participants to correct staff's blog post and classify this  
proposal as "policy" - which was the truth of what the LA mtg  
participants had said.  Finally staff gave-in, as I was not the only  
one to complain about the inaccurate reporting, and they changed the  
web-posting to reflect that the group - and staff - had classified  
this proposal as "policy, and not implementation" at the LA mtg.  The  
CEO apologize for staff's "mistake".  I'm sure it's all another  
coincidence...]

The CEO told Congress only a few weeks' previously that ICANN could  
not adopt such a policy - in part because it creates new rights (and  
ICANN isn't supposed to creating new rights).

The above doesn't even go into the underlying substance of the  
particular (TM+50) proposal (which turns trademark law on its head).   
How is anyone going to criticize a company or product that was "found  
to abused" by someone else, somewhere else, in an entirely unrelated  
circumstance?  This proposal actually thumbs its nose at trademark  
law because trademark law recognizes that "once infringed" does not  
create some magical new category of rights that is allowed to trample  
on the expression rights of all the innocent and lawful uses of a  
word (that resembles a trademark).  But I'll save the complaints  
about how nonsensical the substance of this proposal is for another  
email.  This email is just about the insanity of ICANN senior staff  
attempting to usurp the bottom-up policy development process to  
appease powerful political interests.

If ICANN staff refuses to follow the organization's own stated  
policies, the Ombudsman is supposed to be able to intercede, no?

Best,
Robin


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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