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

[Avri Doria]

Hi,

I can support the NCSG filling such a complaint, though it would be better for the GNSO Council to file it.

Perhaps we can first introduce it as a motion for the next g-council meeting, and if the council decides against it, then we could do it independently.

avri

On 26 Mar 2013, at 15:14, Robin Gross wrote:

> 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
> 
> 
>