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

[Robin Gross]

Thank you, Ed.  I believe you are right and we should also consider  
the Request For Reconsideration, although given ICANN is going  
forward with new gtlds in a few months and companies are now building  
the specs and requirements ICANN is stating now, I wonder if it would  
be too late on a practical standpoint.  Although it certainly would  
be appropriate on a principled level to have the examination of the  
issue, even if only after the fact.

Thanks again,
Robin

On Mar 26, 2013, at 1:20 PM, Edward Morris wrote:

> This is a bit of a line in the sand issue for me, both in terms of  
> policy and process. To the extent those of us lower in the food  
> chain, at the Constituency level, can support and help in this  
> effort please be so kind as to reach out and let me know. I fully  
> support as many efforts to get this matter on the table for review  
> as we can jointly muster.
>
> I have a question for those who have been involved in this process  
> longer than I: Are we at the stage, is this is the sort of action,  
> for which we can file an an Article IV (2) reconsideration request?  
> It certainly involves a staff action that we hold contradicts  
> established ICANN policy that adversely affects each and every one  
> of us.
>
> Thanks for the clarification and, also,  for your leadership on  
> this matter Robin.
>
>
> Ed Morris
>
>
>
> On Tue, Mar 26, 2013 at 7:40 PM, Robin Gross <robin at ipjustice.org>  
> wrote:
> 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
>
>
>
>




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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