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

[Robin Gross]

Thanks, Avri.  I do believe the GNSO Council should file a complaint  
against staff for this.   I'm wondering if there should be at least 2  
separate and different complaints filed.  One from the GNSO Council  
on how its role and the GNSO Policy Development Process (as stated by  
ICANN) was entirely circumvented and disregarded by senior staff in  
the adoption of its strawman.  An NCSG complaint could focus on the  
inequality of participation afforded to NCSG at the LA meeting where  
staff and the TM lobbyists cooked this up.  Remember, the CEO said in  
plain unequivocal terms that NCSG would not be allowed participate at  
the same level as CSG at that meeting.  It was 14 CSG to 2 NCSG who  
were allowed to participate (and of the 2 NCSG reps, I was on my  
flight back home and Kathy was on the phone in the middle of the  
night having difficulty getting the floor from the in-room meeting  
participants, who were drinking beer and wine for 3+ hours.)  Maria  
filed a complaint on the inequality issue previously, but NCSG as a  
group did not.  Now that staff said it would implement the policies  
cooked up at this ad-hoc LA meeting at which NCSG was expressly  
discriminated against, the time has come for NCSG to file its  
complaint as a group.

Robin

On Mar 26, 2013, at 12:20 PM, Avri Doria wrote:

> 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
>>
>>
>>
>




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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