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

Fri Mar 22 04:31:27 CET 2013

I feel your pain, Robin.

Let's first state the obvious: none of this has anything to do with
traditional trademark protection. We've been past that point for some time.
I'm still in shock over ICM's Sunrise B "nonuse" trademark...think of the
concept, a nonuse trademark. Now we are apparently going to be offering
some semblance of privilege for misspellings. We've mutilated the
cybersquatters, now let's kill the typosquatters!

I hope what's been going on dispels the notion of Mr. Chehade as this
wonderful forward looking man sympathetic to the downtrodden internet user.
Fadi Chehade as an example of diversity? Folks, we replaced one Stanford
alumnus with another. ICANN is the only group on earth where the Ivy League
needs an affirmative action program.  I know I'm in the minority here but I
actually liked the first guy better. For all his excesses, behavioral
issues, things many of you experienced that I didn't, Rod,  despite his
imperial tendencies,  got some things right. He knew he wasn't running a
corporation. A Kingdom perhaps, a corporation no.

One of the things I most dislike about strawman is the elevation of UDRP
decisions to be the co-equal of national law. '...domain names would only
be accepted for association with an existing Clearinghouse record, and only
on the basis of a determination made under the UDRP or national laws.' How
many years overdue are we for a UDRP review? It is a one sided biased
arbitration process with numerous flaws. Now it's decisions are to be given
added amplification. That makes complete sense: to the corporate brand
owners and their wholly owned arbitrators.

I  discovered at the  Los Angeles intersession meeting  that our SG was
either the rot in the dwelling or the crazy uncle in the attic,  or so
implied Mr. Chehade on his own and with a little prompting.  I didn't like
either characterization. However, if Mr. Chehade and his staff would like
to think of us in this way I'm OK with it but with one exception: I want to
be the crazy uncle in the attic  with an assault rifle. Him you have to
take seriously. At the moment I'm not sure the Mr. Chehade or his staff
feel that way about us. If they did I'm quite sure we in the NCUC  would
not have had the problems we've had getting space for a policy conference
in Beijing. You jerk around the crazy uncle in the attic, not the guy in
the attic with the rifle.

Since becoming involved in this SG I've heard a lot of complaining about
how the business community goes running to Washington when they don't get
what they want out of the multistakeholder process. Absolutely true. Milton
has been great at documenting this. Well, that appears to be how things
work. I think we need to have a discussion at both the Constituency and SG
level about playing that game ourselves.

In order to make the multistakeholder model work I'd suggest we need to
formulate an external strategy to keep things internally fair. We had
success doing something like this with the Article 29 letter. I'm thinking
we need to target our friends in Washington, Brussels and elsewhere and
talk to them about our current structural problems. Be it his special
meetings with CEO's (but not with noncommercial CEO's), the extended time
given BC at the intersessional, Strawman, staff empowerment, empire
building through ICANN expansion: it is clear where the leadership of ICANN
is taking us and I'd suggest it is not where we as a SG want to go.

I'd strongly believe that  the most effective strategy to counter these
developments is to reach out  to our external allies. A letter from
noncommercial CEO's to Mr. Chehade and Mr. Crocker may be more effective
than a protest of our own. A Congressional letter of inquiry addressed to
both ICANN and the NTIA  ( 'How can you implement policy you admit was
improperly developed') is something Mr. Chehade and company will have to
respond to. I'd suggest that a coordinated external effort now on the
specific procedural issues we've been discussing might have the desired
effect of reigning in the attempted administrative control of the entire
multistakeholder process.

Extreme? Well, when the respected and experienced Chair of our SG suggests
that we're close to the time where we need to take our ball and go
home...and declare the battle lost...that should be a sign that we need to
try some different strategies. I hope we together can figure out what those
strategies should be as we gather to meet, both in person and remotely,  in
that land of internet openness and freedom, the Peoples Republic of China.

Ed

On Fri, Mar 22, 2013 at 1:51 AM, Robin Gross <robin at ipjustice.org> wrote:

> Despite the fact that Fadi Chehade admitted<http://domainincite.com/11732-industry-man-chehade-admits-strawman-mistake> 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<http://gnso.icann.org/en/correspondence/robinson-to-chehade-28feb13-en.pdf> 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<http://ipjustice.org/wp/2012/11/18/icanns-11th-hour-domain-name-trademark-policy-negotiations-the-good-the-bad-and-the-ugly-dissecting-the-strawman/> 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*
>
>
>
>    1.
>    New gTLDs, "Strawman" and Contract Negotiations
>
>    Fadi's Report on Milestones and Deadlines
>    [image: Video Icon]Watch Fadi's vlog »<http://blog.icann.org/2013/03/new-gtld-milestones-and-deadlines/>
>    Read "Strawman" Memo »<http://newgtlds.icann.org/en/about/trademark-clearinghouse/strawman-solution-memo-20mar13-en.pdf>
>    Review Public Comments »<http://www.icann.org/en/news/public-comment/report-comments-tmch-strawman-20mar13-en.pdf>
>
>
> --
> 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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>
>
>
> 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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